State v. Gallardo

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0171-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2006-175408
MIKE PETER GALLARDO, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Sally Schneider Duncan, Judge

AFFIRMED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Susanne Bartlett Blomo, Assistant Attorney General
Attorneys for State of Arizona

DROBAN & COMPANY, PC Anthem
By Kerrie M. Droban
Attorneys for Mike Peter Gallardo
________________________________________________________________

B A L E S, Justice

¶1 This mandatory appeal arises from Mike Peter

Gallardo’s conviction and death sentence for the murder of Rudy

Padilla. We have jurisdiction under Article 6, Section 5(3) of

the Arizona Constitution and Arizona Revised Statutes (“A.R.S.”)

section 13–4031 (2010).
 FACTUAL AND PROCEDURAL BACKGROUND

¶2 On December 9, 2005, Rudy Padilla was murdered at his

parents’ home in Phoenix. Padilla’s father returned from work

and saw that a sliding glass door into the house had been

broken. He found his son’s body in the master bedroom.

Padilla’s wrists and ankles had been bound, a pillowcase had

been tied over his head, and he had been shot once in the back

of the head. The bedroom was in disarray; jewelry and a

revolver were missing. Telephone records showed that Gallardo

had called the Padilla home from his cell phone the day of the

murder, and DNA profiles developed from evidence at the crime

scene matched Gallardo’s profile. Neither Rudy nor his parents

knew Gallardo.

¶3 Gallardo was indicted for first degree murder,

burglary, and kidnapping. After a mistrial for juror

misconduct, a second jury was impaneled. This jury convicted

Gallardo on all counts. In the aggravation phase, the jury

found two aggravating factors: Gallardo had been previously

convicted of a serious offense, see A.R.S. § 13–751(F)(2)

(2010), and the murder was especially cruel, id. § 13–751(F)(6).

(Statutes are cited in their current version unless they have

materially changed since the date of the offense.) In the

penalty phase, the jury determined Gallardo should receive a

death sentence for the murder. The trial court also sentenced

2
Gallardo to concurrent prison terms of 15.75 years for the

burglary and kidnapping counts.

DISCUSSION

¶4 Gallardo raises six issues on appeal. For the reasons

explained below, we affirm his convictions and sentences.

A. Mistrial After Juror Misconduct

¶5 Gallardo argues that the trial court erred in

declaring a mistrial after several jurors prematurely discussed

the evidence.

¶6 The decision to grant a mistrial rests within the

sound discretion of the trial court. McLaughlin v. Fahringer,

150 Ariz. 274, 277, 723 P.2d 92, 95 (1986). If there is

“manifest necessity” for the mistrial, the Double Jeopardy

Clause does not bar retrial. Id. Manifest necessity may arise

when juror impartiality is compromised by jurors discussing

evidence before deliberations. Cf. Ross v. Petro, 515 F.3d 653,

658 (6th Cir. 2008) (holding that state trial court exercised

sound discretion in declaring mistrial based on manifest

necessity where juror had engaged in misconduct); United States

v. Gianakos, 415 F.3d 912, 921 (8th Cir. 2005) (explaining that

premature deliberation by a jury “is not a light matter” and

that a court must carefully consider “[a] legitimate concern

that a juror's impartiality is suspect”). Because curative

instructions or other measures “will not necessarily remove the

3
risk of bias,” the trial court “must have the power to declare a

mistrial in appropriate cases.” Arizona v. Washington, 434 U.S.

497, 513 (1978).

¶7 At the beginning of the guilt phase, the trial court

admonished the jurors not to discuss the case “until all the

evidence has been presented and [you] have retired to deliberate

on the verdict. You therefore may not discuss the evidence

amongst yourselves until you retire to deliberate on your

verdict.”

¶8 Upon learning that some jurors had prematurely

discussed the evidence, the trial court individually questioned

each of the sixteen impaneled jurors. The parties agreed that

one juror (Juror 13) should be excused for an unrelated

hardship. The trial court found that three other jurors should

be excused for violating the admonition and not candidly

responding to questions. The trial court also found that three

other jurors had formed opinions about other jurors that would

affect their deliberations. Striking all these jurors would not

leave twelve to deliberate; striking only those who violated the

admonition would leave no alternates for a capital case expected

to last three months. The trial court also found it “highly

likely” that four other jurors had violated the admonition

despite having denied doing so.

¶9 Gallardo argues that less onerous sanctions were

4
available, all of the jurors stated they could remain fair and

impartial, and he was satisfied with the jurors selected. But

he agreed to the removal of two jurors (Jurors 11 and 13), and

he offers no good reason to question the trial court’s

conclusions about the others. The trial court carefully

considered Gallardo’s interest in having the trial concluded by

the originally impaneled jury and did not abuse its discretion

in declaring a mistrial.

B. Batson Challenge

¶10 Gallardo argues that the trial court erred in denying

his challenges to the State’s peremptory strikes of three

minority jurors during selection of the second jury. We review

for clear error. State v. Roque, 213 Ariz. 193, 203 ¶ 12, 141

P.3d 368, 378 (2006).

¶11 Excluding a potential juror based on race violates the

Equal Protection Clause of the Fourteenth Amendment. Batson v.

Kentucky, 476 U.S. 79, 89 (1986). Batson challenges require a

three-step analysis: “(1) the party challenging the strikes must

make a prima facie showing of discrimination; (2) the striking

party must provide a race-neutral reason for the strike; and (3)

if a race-neutral explanation is provided, the trial court must

determine whether the challenger has carried its burden of

proving purposeful racial discrimination.” State v. Cañez, 202

Ariz. 133, 146 ¶ 22, 42 P.3d 564, 577 (2002). Whether the

5
justifications offered for striking a juror are pretexts for

discrimination turns on the lawyer’s credibility, and “the best

evidence [of discriminatory intent] often will be the demeanor

of the attorney who exercises the challenge.” Snyder v.

Louisiana, 552 U.S. 472, 477 (2008) (alteration in original).

¶12 The trial court did not clearly err in overruling

Gallardo’s Batson challenges. Although Gallardo made a prima

facie showing of discrimination, the State offered an

explanation for each strike “based on something other than the

race of the juror.” Hernandez v. New York, 500 U.S. 352, 365

(1991) (plurality opinion). The State struck one juror for

hardship, another for her negative feelings toward police, and

the last for her criminal history.

¶13 The trial court found that the reasons the State

articulated were not pretexts and there was no pattern or

practice of discrimination. Other minority jurors were

ultimately selected for the panel, and “[a]lthough not

dispositive, the fact that the state accepted other [minority]

jurors on the venire is indicative of a nondiscriminatory

motive.” Roque, 213 Ariz. at 204 ¶ 15, 141 P.3d at 379

(internal quotation marks omitted) (second alteration in

original). The trial court did not clearly err in overruling

the Batson challenges.

6
 C. (F)(6) Aggravator

¶14 Gallardo argues that the State failed to present

sufficient evidence to support the jury’s finding that the

murder was “especially cruel.” He also argues that the jury

instruction on the (F)(6) aggravator was unconstitutionally

vague and improperly reduced the State’s burden of proof.

1. Sufficiency of the Evidence

¶15 We determine whether substantial evidence supports the

jury’s finding, viewing the facts in the light most favorable to

sustaining the jury verdict. Id. at 218 ¶ 93, 141 P.3d at 393.

“Substantial evidence is such proof that reasonable persons

could accept as adequate and sufficient to support a conclusion

of defendant’s guilt beyond a reasonable doubt.” Id. (citations

and internal quotation marks omitted).

¶16 Under A.R.S. § 13–751(F)(6), a first degree murder is

aggravated when “[t]he defendant committed the offense in an

especially heinous, cruel or depraved manner.” “A finding of

cruelty alone is sufficient to establish the [(F)(6)]

aggravator.” State v. Morris, 215 Ariz. 324, 341 ¶ 80, 160 P.3d

203, 220 (2007). To establish cruelty, the State must prove

beyond a reasonable doubt that “the victim consciously

experienced physical or mental pain prior to death, and the

defendant knew or should have known that suffering would occur.”

State v. Martinez, 218 Ariz. 421, 436 ¶ 70, 189 P.3d 348, 363

7
(2008) (citation and internal quotation marks omitted).

¶17 The record contains substantial evidence that Rudy

experienced mental anguish before death and that Gallardo knew

or should have known that such suffering would occur. Rudy

almost certainly was conscious when bound, as there is no reason

to bind an unconscious person. See State v. Lynch, 225 Ariz.

27, 41 ¶ 79, 234 P.3d 595, 609 (2010); State v. Djerf, 191 Ariz.

583, 596 ¶ 49, 959 P.2d 1274, 1287 (1998); see also State v.

Bible, 175 Ariz. 549, 604–05, 858 P.2d 1152, 1207–08 (1993)

(“The fact that [the victim’s] hands were bound indicates that

she was conscious and tied-up to prevent struggling.”).

Ligature abrasions on Rudy’s neck, wrists, and ankles indicate

that the bindings were not loose.

¶18 Moreover, there is evidence that Rudy struggled

against the ligatures attempting to free himself. See Lynch,

225 Ariz. at 41 ¶ 79, 234 P.3d at 609; Djerf, 191 Ariz. at 596

¶ 51, 959 P.2d at 1287 (inferring mental anguish from contusions

and abrasions on victim’s wrists). Rudy’s right hand was folded

underneath him, not behind his back like his left arm. Rudy

apparently had pulled his right wrist away from his left, almost

freed his right hand, and pulled it in front of him.

¶19 That Rudy was bound hand and foot, a pillowcase was

tied over his head, and he struggled to free himself also

indicates he had time to suffer significant uncertainty as to

8
his fate. See Lynch, 225 Ariz. at 41 ¶ 79, 234 P.3d at 609;

State v. Ellison, 213 Ariz. 116, 142 ¶ 120, 140 P.3d 899, 925

(2006) (“Mental anguish is established if the victim experienced

significant uncertainty as to her ultimate fate.” (citation and

internal quotation marks omitted)). The record also supports

the jury’s conclusion that Gallardo knew or should have known

that Rudy would suffer. See Lynch, 225 Ariz. at 41 ¶ 80, 234

P.3d at 609 (concluding that it was “surely foreseeable that

[the victim] would suffer significant mental anguish while being

bound to the chair”).

¶20 The evidence supports the jury’s finding that the

murder was especially cruel.

2. F(6) Jury Instruction

¶21 Arizona’s (F)(6) aggravator is facially vague but may

be remedied by appropriate limiting instructions. See Walton v.

Arizona, 497 U.S. 639, 654–56 (1990), overruled on other grounds

by Ring v. Arizona, 536 U.S. 584, 589 (2002); Ellison, 213 Ariz.

at 138 ¶ 96, 140 P.3d at 921. We have approved narrowing

instructions for the “especially cruel” aggravating factor that

require the jury to find that (1) “the victim was conscious

during the mental anguish or physical pain” and (2) “the

defendant knew or should have known that the victim would

suffer.” State v. Tucker, 215 Ariz. 298, 310 ¶ 31, 160 P.3d

177, 189 (2007) (citations omitted).

9
¶22 The trial court here gave the following (F)(6)

instruction:

Concerning this aggravating circumstance, all first-
degree murders are to some extent cruel. However,
this aggravating circumstance cannot be found to exist
unless the State has proved beyond a reasonable doubt
that the murder was “especially” cruel. “Especially”
means “unusually great or significant.”

The term “cruel” focuses on the victim’s pain and
suffering. To find that the murder was committed in
an “especially cruel” manner you must find that the
victim consciously suffered physical or mental pain,
distress or anguish prior to death. Mr. Gallardo must
know or should have known that the victim would
suffer.

¶23 The instruction contains the two “essential narrowing

factors” identified in Tucker and is materially identical to

instructions we have previously upheld. See, e.g., State v.

Chappell, 225 Ariz. 229, 237–38 ¶ 27 & n.6, 236 P.3d 1176, 1184–

85 & n.6 (2010); State v. Villalobos, 225 Ariz. 74, 82 ¶ 31 &

n.4, 235 P.3d 227, 235 & n.4 (2010). The trial court did not

err in giving this instruction.

D. Victim Impact Evidence

¶24 Gallardo argues that victim impact statements by

Rudy’s parents were unduly prejudicial and denied him due

process. He contends that he limited his mitigation evidence to

avoid infusing “irrelevant emotions into the proceeding” and the

parents’ statements caused the jury to sentence him to death

based on “raw emotion.” He also argues that the victim impact

10
evidence was irrelevant to the mitigation presented and that,

absent a curative instruction, the jury was improperly allowed

to make “comparative judgments on the value of human life.”

¶25 Arizona law generally allows victim impact evidence

during the penalty phase to rebut mitigation. See Ariz. Const.

art. II, § 2.1(A)(4) (entitling a victim to be heard at

sentencing); A.R.S § 13–752(R) (allowing victim to present

information during penalty phase about the murdered person and

the impact of the murder on the victim and other family

members). “Victim impact evidence should not be allowed,

however, if it is ‘so unduly prejudicial that it renders the

trial fundamentally unfair.’” State v. Dann, 220 Ariz. 351, 369

¶ 98, 207 P.3d 604, 622 (2009) (quoting Payne v. Tennessee, 501

U.S. 808, 825 (1991)), cert. denied, 130 S. Ct. 466 (2009).

¶26 Gallardo did not object to the victim impact evidence

until after it was presented, when he moved for a mistrial. The

trial court’s decision whether to grant a mistrial is reviewed

for an abuse of discretion, Dann, 220 Ariz. at 363 ¶ 48, 207

P.3d at 616, as is the admission of victim impact evidence,

State v. Garza, 216 Ariz. 56, 69 ¶ 60, 163 P.3d 1006, 1019

(2007).

¶27 In their statements, Rudy’s parents spoke of Rudy’s

character and the impact of his murder upon their family. Mr.

Padilla ended his statement by playing the 911 call he made

11
after finding his son murdered. The Padillas’ statements did

not call for any specific sentence and were within the

appropriate bounds of victim impact testimony — discussing only

the kind of person Rudy was and how his death affected his

family.

¶28 Gallardo argues that the statements were irrelevant to

the “limited and truncated” mitigation presented. Admissibility

of victim impact statements does not depend on the particular

mitigation evidence presented by the defendant. Jurors may

“consider mitigating circumstances, whether proved by the

defendant or present in the record, in determining whether death

is the appropriate sentence.” State ex rel. Thomas v. Granville

(Baldwin), 211 Ariz. 468, 473 ¶ 18, 123 P.3d 662, 667 (2005).

Even if victim impact statements are not offered to rebut any

specific mitigating fact, they are “generally relevant to rebut

mitigation” and thus admissible in the penalty phase. Garza,

216 Ariz. at 69 ¶ 60 n.12, 163 P.3d at 1019 n.12.

¶29 Although the jurors were moved by the statements, and

some passed a tissue box, the statements were not “so unduly

prejudicial” as to render the trial fundamentally unfair. See

State v. Glassel, 211 Ariz. 33, 54 ¶ 86, 116 P.3d 1193, 1214

(2005). Moreover, the trial court appropriately instructed the

jury that victim impact evidence could not be considered as an

aggravating circumstance and could be considered “only for [the]

12
limited purpose” of rebutting mitigation. The trial court did

not abuse its discretion in admitting victim impact statements

or denying Gallardo’s motion for mistrial.

¶30 Gallardo also argues that the trial court failed to

instruct jurors (1) not to rely on the statements for “a purely

emotional response,” and (2) “not to make comparative judgments

about the value of human lives.” “We review de novo whether

jury instructions adequately state the law.” Tucker, 215 Ariz.

at 310 ¶ 27, 160 P.3d at 189.

¶31 The cases Gallardo cites do not suggest the trial

court’s instructions were inadequate. State v. Bocharski states

that the “trial judge appropriately instructed the jurors that

they could consider the victim impact statement only to rebut

the mitigation evidence.” 218 Ariz. 476, 488 ¶ 53, 189 P.3d

403, 415 (2008). State v. Carreon notes that the “trial court

cautioned the jury not to consider the impact statements as

aggravation and not to be tainted by sympathy or prejudice.”

210 Ariz. 54, 72 ¶ 93, 107 P.3d 900, 918 (2005).

¶32 Although this Court has approved jury instructions

containing the language suggested by Gallardo, we have never

held that such language is required. See Dann, 220 Ariz. at

369–70 ¶ 101, 207 P.3d at 622–23 (approving, but not requiring,

instruction that cautioned jurors not to “rely upon the

statements for a ‘purely emotional response’” and “not to make

13
comparative judgments about the value of human lives”). The

instructions here properly informed the jury of the limited

purpose of the victim impact statements. We find no error.

E. Prosecutorial Misconduct

¶33 Gallardo argues that comments made by the State during

its penalty phase opening statement and closing argument

constituted prosecutorial misconduct and deprived him of a fair

trial and due process.

¶34 We “will reverse a conviction for prosecutorial

misconduct if (1) misconduct is indeed present; and (2) a

reasonable likelihood exists that the misconduct could have

affected the jury’s verdict, thereby denying [the] defendant a

fair trial.” State v. Velazquez, 216 Ariz. 300, 311 ¶ 45, 166

P.3d 91, 102 (2007) (alteration in original) (internal quotation

marks and citation omitted). The defendant must show that the

offending statements were “so pronounced and persistent” that

they “permeate[d] the entire atmosphere of the trial” and “so

infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Morris, 215 Ariz. at 335

¶ 46, 160 P.3d at 214 (citations and internal quotation marks

omitted); see also State v. Newell, 212 Ariz. 389, 402 ¶ 60, 132

P.3d 833, 846 (2006).

¶35 We separately “evaluate each instance of alleged

misconduct, and the standard of review depends upon whether [the

14
defendant] objected.” Morris, 215 Ariz. at 335 ¶ 47, 160 P.3d

at 214. If Gallardo objected, we review for harmless error; if

not, we review only for fundamental error. See id. “[E]ven if

there [is] no error or an error [is] harmless and so by itself

does not warrant reversal, an incident may nonetheless

contribute to a finding of persistent and pervasive misconduct

if the cumulative effect of the incidents shows that the

prosecutor intentionally engaged in improper conduct and did so

with indifference, if not specific intent, to prejudice the

defendant.” Id. (alteration in original) (citation and internal

quotation marks omitted).

1. Reference to Gallardo’s Prison Packet

¶36 Before the penalty phase, Gallardo filed a motion to

limit the scope of rebuttal evidence. Gallardo stated that he

intended to present only two categories of mitigation: expert

testimony regarding the conditions of confinement in the maximum

security units of Arizona prisons and testimony by members of

his family about their affection for him and the impact a death

sentence would have on them. Gallardo asked the court to

preclude the State from asking witnesses about his “criminal

history, institutional history, or any other past events,” and

in particular an incident involving a handcuff key, escape

attempts, or the expert’s conversations with Gallardo. The

trial court granted the motion.

15
¶37 Gallardo contends that the prosecutor committed

misconduct by suggesting in his opening statement that

Gallardo’s prison packet would illustrate his personal history.

Gallardo, however, mischaracterizes the prosecutor’s remarks.

The prosecutor simply stated that Gallardo’s expert had not

reviewed the Arizona Department of Corrections’ records for

Gallardo, which had been previously admitted, but instead would

talk about the treatment of inmates generally. By noting the

limited scope of the expert’s opinion, the prosecutor did not

violate the trial court’s ruling on the scope of rebuttal.

2. Reference to Gallardo’s Childhood and Intelligence

¶38 In his opening statement, the prosecutor stated that

the jury would hear evidence regarding Gallardo’s childhood.

Gallardo objected and moved for a mistrial, arguing the

statement violated the court’s ruling on the scope of rebuttal.

The trial court denied a mistrial but ruled that the prosecutor

could not introduce evidence of Gallardo’s childhood or

intelligence unless the defense “opened the door” on those

issues.

¶39 The prosecutor’s statements about the anticipated

evidence concerning Gallardo’s childhood and intelligence did

not violate the court’s prior ruling on the motion in limine or

otherwise constitute misconduct, given that the judge’s ruling

precluding such evidence came only after the opening statement.

16
Moreover, Gallardo later offered testimony by his sister about

his family and argued in closing that his family members had

been in the courtroom and the jury should consider that “[t]hey

care about him.” The defense did not offer evidence regarding

Gallardo’s intelligence, and the prosecutor did not comment on

this issue again after the court’s ruling.

¶40 Even if the comments by the prosecutor were improper,

we would reverse only if Gallardo established “a ‘reasonable

likelihood’ that the ‘misconduct could have affected the jury’s

verdict.’” Newell, 212 Ariz. at 403 ¶ 67, 132 P.3d at 847

(quoting State v. Atwood, 171 Ariz. 576, 606, 832 P.2d 593, 623

(1992), overruled on other grounds by State v. Nordstrom, 200

Ariz. 229, 241 ¶ 25, 25 P.3d 717, 729 (2001)). “[A]ny improper

comments must be so serious that they affected the defendant’s

right to a fair trial.” Id. (citation omitted). The

preliminary and final jury instructions noted that “[t]he

attorneys’ remarks, statements, and arguments are not evidence,

but are intended to help you understand the evidence and apply

the law.” Presuming that jurors follow the court’s

instructions, id. at ¶ 68 (citation omitted), we conclude that

any possible prejudice from the prosecutor’s statements was

cured by the trial court’s instructions.

3. Comparison of Victim and Gallardo

¶41 In closing argument, Gallardo argued that a life

17
sentence was “sufficient punishment” given the “severe

restriction” and “isolat[ion]” of prison. In response, the

prosecutor said that maximum security inmates are allowed to

watch television, receive magazines, make phone calls, and see

visitors. Noting that victim impact statements could rebut

mitigation, the prosecutor then said, “Do you think [Rudy’s

father is] going to be able to call his son, Rudy . . ..” The

defense objected to the comparison between Gallardo and the

victim, and the trial court sustained the objection.

¶42 Even if the prosecutor’s statements were improper,

reversal is not required. See Newell, 212 Ariz. at 403 ¶ 67,

132 P.3d at 847. The trial court instructed the jurors “not to

be swayed by mere sympathy not related to the evidence presented

during this phase” and to disregard any question to which the

judge sustained an objection. These instructions negated the

effect of the prosecutor’s statements. See id. at ¶ 68; see

also Morris, 215 Ariz. at 336–37 ¶ 55, 160 P.3d at 215–16 (“Even

if the prosecutor's comments were improper, the judge's

instructions negated their effect.”).

4. Reference to Mitigation Witness’s Fees

¶43 In the penalty phase, Gallardo presented expert

testimony from a retired corrections director about the

conditions of maximum security facilities in Arizona. During

cross examination, the prosecutor elicited testimony concerning

18
the expert’s fees and potential bias. During closing argument,

the prosecutor characterized this testimony as an inconsistent

statement, Gallardo objected to the argument as misleading, and

the trial court sustained the objection. The prosecutor

persisted with the line of argument and the trial court twice

sustained further objections.

¶44 A prosecutor should not repeat an argument after it

has been the subject of a sustained objection. Cf. Pool v.

Superior Court in and for Pima County, 139 Ariz. 98, 104 n.7,

677 P.2d 261, 267 n.7 (1984) (noting that repetition of

questions to which objection has been sustained is misconduct);

In re Gustafson, 650 F.2d 1017, 1020 (9th Cir. 1981) (noting

that attorney’s disregard of court’s limits on permissible

argument constituted misbehavior for purposes of federal

contempt statute). Although the repeated statements by the

prosecutor were improper, Gallardo’s objections were sustained

and the trial court instructed the jury to “disregard questions

. . . that were withdrawn or to which objections were

sustained.” Again, because “we presume jurors follow the

court’s instructions,” Newell, 212 Ariz. at 403 ¶ 68, 132 P.3d

at 847, any prejudice that may have resulted from the

prosecutor’s argument was cured by the trial court’s

instructions.

5. Misstatement of the Law

19
¶45 Gallardo further claims that it was improper for the

prosecutor to suggest in closing that the jurors must vote for

death if they found no mitigation. We have previously rejected

this argument: “Under our sentencing scheme . . . given the

findings of one or more aggravators, a juror must vote to impose

a sentence of death if he or she determines there is no

mitigation at all or none sufficiently substantial to warrant a

sentence of less than death.” Tucker, 215 Ariz. at 318 ¶ 74,

160 P.3d at 197.

6. Cumulative Effect

¶46 Gallardo argues that even if no single incident of

misconduct warrants reversal, the deliberate and persistent

conduct of the prosecutor deprived him of a fair trial. We

consider whether “persistent and pervasive” misconduct occurred

and whether the “cumulative effect of the incidents shows that

the prosecutor intentionally engaged in improper conduct and did

so with indifference, if not a specific intent, to prejudice the

defendant.” Morris, 215 Ariz. at 339 ¶ 67, 160 P.3d at 218

(citation and internal quotation marks omitted).

¶47 The record does not suggest pervasive prosecutorial

misconduct that deprived Gallardo of a fair trial.

F. Constitutionality of Burden of Proof at Sentencing

¶48 Gallardo argues that Arizona’s death penalty scheme

violates the Eighth and Fourteenth Amendments because it does

20
not require the State to prove beyond a reasonable doubt that

mitigating circumstances, once proved by the defendant, are not

sufficiently substantial to call for leniency. We rejected this

argument in State v. Moore, 222 Ariz. 1, 20 ¶¶ 110–13, 213 P.3d

150, 169, cert. denied, 130 S. Ct. 747 (2009).

G. Review of the Death Sentence

¶49 Because the murder occurred after August 1, 2002, we

“determine whether the trier of fact abused its discretion in

finding aggravating circumstances and imposing a sentence of

death.” A.R.S. § 13–756(A). We conduct this review even if, as

here, the defendant does not argue that the jury’s verdict was

an abuse of discretion. Morris, 215 Ariz. at 340 ¶ 76, 160 P.3d

at 219. A decision is not an abuse of discretion if there is

“any reasonable evidence in the record to sustain it.” Id. at

341 ¶ 77, 160 P.3d at 220 (citation and internal quotation marks

omitted)

1. Aggravating Circumstances

¶50 The jury found two aggravating circumstances: Gallardo

had been previously convicted of a prior serious offense, see

A.R.S. § 13–751(F)(2), and the murder was especially cruel, see

id. § 13–751(F)(6). As discussed, there is sufficient evidence

to support the jury’s finding that Gallardo committed the murder

in an especially cruel manner. The jury also properly found

that Gallardo had previously been convicted of a serious offense

21
based on evidence of his prior convictions for armed robbery and

burglary.

2. Death as the Appropriate Sentence

¶51 Once the jury finds one or more aggravating factors,

each juror must individually determine whether death is the

appropriate penalty. See A.R.S. § 13–751(C) (stating that

“[e]ach juror may consider any mitigating circumstance found by

that juror in determining the appropriate penalty”); see also

Baldwin, 211 Ariz. at 473 ¶ 21, 123 P.3d at 667. We will not

reverse the jury's decision if “any reasonable jury could have

concluded that the mitigation established by the defendant was

not sufficiently substantial to call for leniency.” Morris, 215

Ariz. at 341 ¶ 81, 160 P.3d at 220.

¶52 Gallardo presented evidence about the impact of

execution on his family and the general conditions of

confinement in Arizona’s maximum security facilities. A

reasonable juror could conclude that the mitigation presented

was not sufficiently substantial to call for leniency. See

State v. Harrod, 200 Ariz. 309, 319 ¶ 54, 26 P.3d 492, 502

(2001) (minimal weight given to family support), vacated on

other grounds, 536 U.S. 953 (2002).

H. Issues Preserved for Federal Review

¶53 To avoid preclusion, Gallardo raises twelve additional

constitutional claims that he states have been rejected in

22
previous decisions by the United States Supreme Court or this

Court. The attached appendix lists the claims raised by

Gallardo and the decisions he identifies as rejecting them.

CONCLUSION

¶54 We affirm Gallardo’s convictions and sentences.

_____________________________________
W. Scott Bales, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
A. John Pelander, Justice

_____________________________________
Michael D. Ryan, Justice (Retired)

23
 Appendix

Gallardo raises twelve issues to preserve them for federal

appeal. This Appendix lists his claims and the decisions he

identifies as rejecting them.

(1) Arizona’s statutory scheme for considering mitigating
evidence is unconstitutional under the Eighth and
Fourteenth Amendments because it limits consideration of
mitigating evidence to that proven by a preponderance of
the evidence. State v. McGill, 213 Ariz. 147, 161 ¶ 59,
140 P.3d 930, 944 (2006).

(2) Gallardo’s death sentence is in violation of his rights
under the Fifth, Sixth, Eighth, and Fourteenth Amendments
and the Arizona Constitution because the State failed to
allege the aggravating factors that made the defendant
death eligible in the grand jury indictment. McKaney v.
Foreman ex rel. County of Maricopa, 209 Ariz. 268, 273 ¶
23, 100 P.3d 18, 23 (2004).

(3) Application of the new death penalty law to Gallardo
constitutes an impermissible ex post facto application of
the law. State v. Ring, 204 Ariz. 534, 547 ¶¶ 23–24, 65
P.3d 915, 928 (2003).

(4) Gallardo’s rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments and under the Arizona Constitution
were violated by the admission of victim impact evidence at
the penalty phase of the trial. Lynn v. Reinstein, 205
Ariz. 186, 191 ¶ 16, 68 P.3d 412, 417 (2003).

(5) The trial court improperly omitted penalty phase
instructions that the jury could consider mercy or sympathy
in evaluating the mitigation evidence and in determining
whether to sentence the defendant to death. State v.
Carreon, 210 Ariz. 54, 70–71 ¶¶ 81–87, 107 P.3d 900, 916–17
(2005).

(6) The death penalty is cruel and unusual punishment. State
v. Harrod, 200 Ariz. 309, 320 ¶ 59, 26 P.3d 492, 503
(2001), vacated on other grounds, 536 U.S. 953 (2002).

24
(7) The death penalty is arbitrarily imposed in violation of
Gallardo’s due process rights under the Fourteenth
Amendment and under the Arizona Constitution. State v.
Beaty, 158 Ariz. 232, 247, 762 P.2d 519, 534 (1988).

(8) The prosecutor’s discretion to seek the death penalty
unconstitutionally lacks standards. State v. Sansing, 200
Ariz. 347, 361 ¶ 46, 26 P.3d 1118, 1131 (2001), vacated on
other grounds, 536 U.S. 954 (2002).

(9) The death penalty in Arizona has been applied in a manner
that discriminates against poor, young, and male defendants
in violation of the Arizona Constitution. Sansing, 200
Ariz. at 361 ¶ 46, 26 P.3d at 1131.

(10) The absence of proportionality review by Arizona courts of
a defendant’s death sentence is unconstitutional under the
Fifth, Eighth, and Fourteenth Amendments and Article 2,
Section 15 of the Arizona Constitution. Harrod, 200 Ariz.
at 320 ¶ 65, 26 P.3d at 503.

(11) Arizona’s death penalty statute unconstitutionally presumes
that death is the appropriate sentence. State v. Miles,
186 Ariz. 10, 19, 918 P.2d 1028, 1037 (1996).

(12) Execution by lethal injection is cruel and unusual
punishment. State v. Van Adams, 194 Ariz. 408, 422, 984
P.2d 16, 30 (1999).

25