SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-06-0220-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2001-092032
SHAWN PATRICK LYNCH, )
)
Appellant. )
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable David M. Talamante, Judge
CONVICTIONS AFFIRMED; REMANDED IN PART
________________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Deborah A. Bigbee, Assistant Attorney General
Attorneys for State of Arizona
DAVID GOLDBERG, ATTORNEY AT LAW Fort Collins, CO
By David Goldberg
Attorney for Shawn Patrick Lynch
________________________________________________________________
H U R W I T Z, Vice Chief Justice
¶1 Shawn Patrick Lynch was convicted of armed robbery,
burglary, kidnapping, and first degree murder. He was sentenced
to death for the murder and to lengthy prison sentences for the
other crimes. An automatic notice of appeal was filed under
Arizona Rules of Criminal Procedure 26.15 and 31.2. This Court
has jurisdiction under Article 6, Section 5(3) of the Arizona
Constitution and Arizona Revised Statutes (“A.R.S.”) §§ 13-755,
13-4031, and 13-4033 (2010).1
I. FACTS AND PROCEDURAL HISTORY2
¶2 James Panzarella lived in a guesthouse behind his
parents’ Scottsdale home. On March 24, 2001, James left his car
at his brother’s home and took a cab to a Scottsdale bar. He
was seen at the bar with two men later identified as Mike
Sehwani and Shawn Patrick Lynch. James, Sehwani, and Lynch went
to James’s guesthouse early in the morning of March 25.
¶3 At around 5:00 a.m., an escort service received a call
from Sehwani and dispatched an escort and bodyguard to the
guesthouse. The bodyguard collected a $175 fee from James.
¶4 The escort and Sehwani went into a bedroom, while
James and Lynch talked with the bodyguard in the kitchen.
Sehwani wrote two checks from James’s checkbook to the escort
totaling $300. The bodyguard and escort left around 6:00 a.m.
¶5 About 7:15 a.m. Lynch and Sehwani went to a
supermarket, where Sehwani bought cigarettes with James’s
American Express card. Ten minutes later, the card was reported
as lost and invalidated. Sehwani nonetheless shortly thereafter
1
This opinion cites the current version of statutes unless
there has been a material change in the relevant law since the
offenses.
2
We view the facts in the light most favorable to sustaining
the guilty verdicts. State v. Garza, 216 Ariz. 56, 61 n.1, 163
P.3d 1006, 1011 n.1 (2007).
2
used the card to buy gas at a convenience store. Lynch then
entered the store to get matches. Later that morning, Sehwani,
accompanied by Lynch, unsuccessfully attempted to use the card
at a department store.
¶6 Around noon, Sehwani used James’s Bank One credit card
at a restaurant. This credit card was also used twice that day
at a convenience store. That afternoon, Lynch and Sehwani
checked into a motel. Lynch registered in his name and paid
with cash; Sehwani presented James’s credit card to rent movies.
That evening, Lynch and Sehwani checked into another motel,
again registering in Lynch’s name and paying cash.
¶7 On the afternoon of March 25, James was found bound to
a metal chair in the guesthouse kitchen. His throat was slit
and blood was pooled on the tile floor.
¶8 The guesthouse was in disarray. In a bedroom, police
found a large hunting knife. In the kitchen, they found a knife
block with a missing knife. American Express receipts from the
March 25 supermarket and convenience store purchases were also
found in the guesthouse.
¶9 Early in the morning of March 26, James’s Bank One
debit card was used to withdraw cash from an ATM. A later
attempted withdrawal was unsuccessful. The debit card was also
used later that morning to buy clothing and Everlast shoes, and
at least twice otherwise that same day.
3
¶10 Police arrested Lynch and Sehwani that afternoon as
they entered a truck in the motel parking lot. Sehwani wore
white Everlast sneakers and had James’s credit cards and checks
in his wallet. Matches from the convenience store and the keys
to James’s car were in the truck. A black sweater with James’s
blood on it was behind the seats. A .45 caliber pistol
belonging to James was later found in the motel room. Blood on
Lynch’s shoes tested positive for James’s DNA.3
¶11 Lynch and Sehwani were charged with first degree
murder (both felony and premeditated), armed robbery, burglary,
and kidnapping. Lynch was tried first. The jury found him
guilty on all counts, but did not reach a unanimous verdict on
premeditated murder.
¶12 In the aggravation phase of the trial, the jury could
not agree on whether the murder was committed in expectation of
pecuniary gain. See A.R.S. § 13-751(F)(5) (2010). The jury
made separate findings that the murder was both especially
heinous and cruel, but could not decide whether the murder was
also especially depraved. See A.R.S. § 13-751(F)(6). In the
penalty phase, the jury could not reach a unanimous verdict.
¶13 A second jury was impaneled. That jury found both the
(F)(5) aggravator and the depravity prong of the (F)(6)
3
The murder weapon could not be positively identified. The
handle of the hunting knife found in the guesthouse bedroom
contained Sehwani’s DNA, but there was no blood on the blade.
4
aggravator. The second jury then unanimously determined that
Lynch should be sentenced to death for the murder.4
II. ISSUES ON APPEAL
A. GUILT PHASE
1. Competence to Stand Trial
¶14 Before trial, the court ordered a Rule 11 examination
after Lynch refused to meet with his lawyers. See Ariz. R.
Crim. P. 11. Based on that evaluation, the court found Lynch
incompetent to stand trial and ordered restoration services.
Five months later, after considering a psychologist’s report
that was stipulated into evidence, the court found Lynch
restored to competency.
¶15 Six months later, defense counsel requested a second
Rule 11 evaluation, alleging that Lynch suffered from delusions
and therefore could not assist in his defense. He offered no
other support for this motion, which the court denied.
¶16 Lynch argues that the trial court erred in finding
that he had been restored to competency and refusing to order a
second Rule 11 examination. We review these rulings for abuse
of discretion. State v. Glassel, 211 Ariz. 33, 44 ¶ 27, 116
P.3d 1193, 1204 (2005); State v. Romero, 130 Ariz. 142, 147, 634
P.2d 954, 959 (1981).
4
Sehwani later pleaded guilty to first degree murder and
theft. He received consecutive sentences of natural life and
one year, respectively.
5
¶17 The psychologist’s report amply supports the trial
court’s finding that Lynch had been restored to competency. The
psychologist concluded that Lynch understood the nature of the
proceedings against him and could assist in his defense.
Although acknowledging that Lynch suffered from various
delusions and idiosyncratic thought processes, the psychologist
noted that these “errant thoughts . . . do not appear to
significantly affect his ability to deal with relevant issues
pursuant to his alleged crime and pursuant to a possible trial.”
The expert concluded that Lynch “can cooperate with his
attorney, should he choose to do so.”
¶18 Nor did the court err in refusing to order a second
competency hearing. Lynch proffered no new information to call
into question the court’s previous finding of competency. The
earlier expert report had noted Lynch’s delusions but concluded
that they did not render him incompetent to assist in his
defense. In the absence of any new evidence, the court did not
abuse its discretion in continuing to rely on that report. See
State v. Kuhs, 223 Ariz. 376, 380 ¶ 16, 224 P.3d 192,
196 (2010).
2. Description of Capital Case Process to First Jury
¶19 Lynch argues that during voir dire of the first jury,
the trial court “gave no details regarding what an aggravating
or mitigating circumstance might entail or how a juror would
6
factor such information into the penalty decision.” He
maintains that the State was thus able to pack the first jury
with pro-death penalty jurors. No objection was raised below,
so we review only for fundamental error. Id. at 386 ¶ 52, 224
P.3d at 202.
¶20 Because the first jury did not return a death
sentence, Lynch was not prejudiced by the trial court’s
description of the capital sentencing process. But in any
event, we find no error.
¶21 The superior court properly told the panel that “[n]ot
every murder contains aggravating factors and only those that
are found to have aggravating factors are eligible for
consideration for the death penalty.” See A.R.S. §§ 13-752(D)
(2010), 13-751(E). The court also correctly defined a
“mitigating circumstance” as “any factor relevant in determining
whether to impose a sentence less than death, including any
aspect of the defendant’s character, propensities, record or
circumstances of the offense.” See A.R.S. § 13-751(G). The
court accurately explained that each juror should consider any
mitigating factors found by that juror in determining whether a
death or life sentence was appropriate. See A.R.S. § 13-751(C).
3. Refusal to Conduct Sequestered Voir Dire
¶22 Lynch maintains that the trial court erred by denying
sequestered voir dire of the first jury. We review for abuse of
7
discretion. State v. Bible, 175 Ariz. 549, 570, 858 P.2d 1152,
1173 (1993).
¶23 Lynch does not claim that sequestered voir dire was
necessary because of “unusually sensitive subjects” or extensive
pretrial publicity. See id. (noting that in camera voir dire is
“most useful” in such cases). Rather, Lynch argues that
separate voir dire is required in every capital case. We
expressly rejected that proposition in Bible. Id.
¶24 Lynch also fails to identify any “contaminating”
statement by a prospective juror that “might color the entire
jury’s outlook.” Ariz. R. Crim. P. 18.5(d), cmt.; see Bible,
175 Ariz. at 570, 858 P.2d at 1173 (noting absence of such a
statement in finding no error in group voir dire). On this
record, the trial court did not abuse its discretion in
declining to order sequestered voir dire.
4. Striking Juror 119 for Cause
¶25 Lynch argues the trial court erred by striking Juror
119 from the first jury for cause over his objection. “Because
a trial judge has the best opportunity to assess whether a juror
can be fair and impartial, appellate courts review such
decisions only for abuse of discretion.” State v. Hickman, 205
Ariz. 192, 201 ¶ 39, 68 P.3d 418, 427 (2003); see also Uttecht
v. Brown, 551 U.S. 1, 22 (2007) (requiring appellate “deference
8
to the trial court, which is in a superior position to determine
the demeanor and qualifications of a potential juror”).
¶26 Jurors cannot be excluded “simply because they voiced
general objections to the death penalty or expressed
conscientious or religious scruples against its infliction.”
Witherspoon v. Illinois, 391 U.S. 510, 522 (1968); accord State
v. Anderson (Anderson I), 197 Ariz. 314, 324 ¶ 23, 4 P.3d 369,
379 (2000). A juror may properly be excused, however, if his
views would “prevent or substantially impair the performance of
his duties as a juror.” Wainwright v. Witt, 469 U.S. 412, 424
(1985) (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)).
“[J]urors who state unequivocally that they could never impose
the death penalty regardless of the facts of the particular
case” are properly excluded. Anderson I, 197 Ariz. at 318 ¶ 7,
4 P.3d at 373.
¶27 Juror 119 stated several times during voir dire that
she was not certain she could sentence someone to death. During
questioning by defense counsel, however, she stated, “[w]hen you
were asking [another juror] the questions, I thought to myself
if the circumstances – if I would hear that it were a
particularly brutal or heinous murder, yes. I might be able to
vote for the death penalty in that case.”
¶28 Lynch contends that this statement demonstrated that
Juror 119 could fairly consider the death penalty. However,
9
after making this statement, Juror 119 said that “[i]t would be
very difficult to make that decision to take someone’s life. It
would be very, very difficult.” The trial judge excused the
juror only after considering the entirety of her answers and
demeanor. Given Juror 119’s statements and the deference we owe
to the trial court, we cannot conclude that the judge abused his
discretion.
5. Admission of Crime Scene Photographs
¶29 During the guilt phase, the trial court admitted six
crime scene photographs over Lynch’s objection. We review
rulings admitting evidence in general, and photographs in
particular, for abuse of discretion. State v. McGill, 213 Ariz.
147, 154 ¶ 30, 140 P.3d 930, 937 (2006).
¶30 “The admissibility of a potentially inflammatory
photograph is determined by examining (1) the relevance of the
photograph, (2) its tendency to incite or inflame the jury, and
(3) the probative value versus potential to cause unfair
prejudice.” State v. Cruz, 218 Ariz. 149, 168-69 ¶ 125, 181
P.3d 196, 215-16 (2008) (internal quotation marks omitted).
Although photographs may not be introduced solely to inflame the
jury, State v. Anderson (Anderson II), 210 Ariz. 327, 340 ¶ 40,
111 P.3d 369, 382 (2005), “[t]here is nothing sanitary about
murder,” and we do not “require[] a trial judge to make it so,”
10
State v. Rienhardt, 190 Ariz. 579, 584, 951 P.2d 454, 459
(1997).
¶31 The photographs depict blood spatter and blood pools
in relation to the victim’s body and thus corroborate the
opinion of the State’s expert that the person who slit James’s
throat stood behind the chair. Although the photographs are
disturbing, none is overly gruesome. The probative value of the
photographs is not substantially outweighed by any prejudicial
effect, see Ariz. R. Evid. 403, and the trial court did not
abuse its discretion in admitting them.
6. Refusal to Give an Instruction on Second Degree Murder
¶32 Lynch requested an instruction on second degree
murder. The trial court denied the request because it found no
evidence that the murder was not premeditated.
¶33 A trial court must give an instruction on lesser-
included offenses when warranted to reduce the risk that a jury,
faced only with a choice between convicting for a capital crime
and setting a violent criminal free, might be unduly pressured
to opt for the conviction on the capital offense. Beck v.
Alabama, 447 U.S. 625, 637 (1980). However, Beck “does not
require a trial court to instruct on a lesser offense that is
unsupported by the evidence.” State v. Bearup, 221 Ariz. 163,
170 ¶ 29, 211 P.3d 684, 691 (2009) (quoting State v. Landrigan,
176 Ariz. 1, 6, 859 P.2d 111, 116 (1993)).
11
¶34 In this case, the jury agreed only that Lynch
committed felony murder; it did not reach a unanimous verdict on
premeditated murder. Second degree murder is not a lesser
included offense of felony murder. State v. Jackson, 186 Ariz.
20, 27, 918 P.2d 1038, 1045 (1996). Therefore, even if we
assume that the record warranted such an instruction, Lynch
suffered no prejudice from the trial court’s refusal to give it.
B. AGGRAVATION PHASE
1. Exclusion of Jurors 25 and 49 (Second Jury) For Cause
¶35 During voir dire of the second jury, Juror 25 stated
that she was Catholic and did not believe in the death penalty,
but would “go against” those views in a case involving children.
When informed that this was not such a case, she stated that she
“could not do the death penalty because of my beliefs.”
¶36 The court excluded Juror 25 for cause over Lynch’s
objection. Citing State v. Johnson, 212 Ariz. 425, 434-35 ¶¶
29-35, 133 P.3d 735, 744-45 (2006), Lynch argues that the trial
court erred in telling the juror about the specific facts of
this case. Lynch did not raise this argument below, so
fundamental error review applies. Kuhs, 223 Ariz. at 386 ¶ 52,
224 P.3d at 202.
¶37 Contrary to Lynch’s argument, Johnson does not
prohibit telling jurors about the particular facts of the case
during voir dire. Rather, Johnson only held that the trial
12
court may refuse to permit parties to ask jurors to speculate on
or commit to how they would assess specific mitigation. 212
Ariz. at 435 ¶ 33, 133 P.3d at 745; see also State v. Smith, 215
Ariz. 221, 231 ¶ 42, 159 P.3d 531, 541 (2007) (“[T]he same is
true of voir dire focused on the assessment of specific
aggravators.”).
¶38 The trial judge’s statement to Juror 25 that children
were not involved in the case was appropriate to determine
whether the juror’s views would “prevent or substantially impair
the performance of [her] duties.” Witt, 469 U.S. at 424
(quoting Adams, 448 U.S. at 45). And, given Juror 25’s
responses, the judge reasonably concluded that her religious
beliefs would substantially impair her ability to impose death.
¶39 We also find no error in excluding Juror 49. In her
questionnaire, Juror 49 stated, “I am ADAMANTLY anti death
penalty and absolutely could not sit on a jury that would
possibly be responsible for killing anyone, even a guilty
person.” She said that she could not vote for death “under any
circumstances,” that she did not know whether she would be able
to follow the law, and that she likened the death penalty to
“murder.”
2. Failure to Clarify Theory of First Degree Murder
¶40 Lynch requested that prospective jurors for the second
aggravation phase be told that he had not been convicted of
13
premeditated murder, but only felony murder. The trial court
instead initially informed the panel that Lynch had been
convicted of “first degree murder.” Citing Morgan v. Illinois,
504 U.S. 719 (1992), Lynch argues the court erred by not
instructing the second jury that the first panel had unanimously
found only felony murder.
¶41 Morgan held that a defendant must be allowed to ask
prospective jurors if they would automatically vote for death
after a guilty verdict. 504 U.S. at 729. Lynch was not
prevented from so inquiring. Rather, he unsuccessfully urged
the trial court to describe the theory underlying the murder
conviction. In any event, the second jury was told after
selection that Lynch had been convicted of felony murder. Thus,
no sitting juror was under any misapprehension that Lynch had
been convicted of premeditated murder.
3. Reckless Indifference Instruction
¶42 The first jury found that Lynch was a major
participant in the crime and acted with reckless indifference to
the grave risk of death. See Tison v. Arizona, 481 U.S. 137,
157-58 (1987) (requiring such findings for imposition of death
sentence in felony murder cases). Lynch contends the trial
court improperly instructed the jury as to what constitutes
reckless indifference.
14
¶43 Tison defined reckless indifference as “knowingly
engaging in criminal activities known to carry a grave risk of
death.” 481 U.S. at 157. The standard is subjective – whether
the defendant “subjectively appreciated that [his] acts were
likely to result in the taking of innocent life.” Id. at 152.
¶44 Lynch requested the following “reckless indifference”
instruction:
In order to find that Shawn Lynch acted with reckless
indifference to human life, it must be proven that he
subjectively knew his acts were likely to result in
the taking of innocent life, yet nonetheless engaged
in criminal activities known to carry a high
probability of death.
The court instead instructed the jury that “[a] defendant acts
with reckless indifference when the defendant knowingly engages
in criminal activities that he is aware will likely create a
grave risk of death to others.” Lynch acknowledges that the
court’s instruction correctly required subjective awareness, but
argues that it was “not as clear” as his proposed instruction.
¶45 The trial court’s reckless indifference instruction
clearly and correctly stated the law. Nothing in the
instruction even remotely suggests an objective or “reasonable
person” standard.
4. Sufficiency of the Evidence on the Tison Findings
¶46 Lynch contends that the jury’s Tison findings were not
supported by the evidence. We determine “whether substantial
15
evidence supports the jury’s finding, viewing the facts in the
light most favorable to sustaining the jury verdict.” State v.
Roque, 213 Ariz. 193, 218 ¶ 93, 141 P.3d 368, 393 (2006).5
Substantial evidence is “proof that reasonable persons could
accept as adequate and sufficient to support a conclusion of
defendant’s guilt beyond a reasonable doubt.” Id. (internal
quotations omitted).
¶47 Substantial evidence supported the jury’s finding that
Lynch was a major participant in the predicate felonies. The
American Express receipts found at the guesthouse show that
Lynch and Sehwani returned to the guesthouse after discovering
that James had deactivated the American Express card. James’s
car keys, credit cards, checks, sweater, and pistol were found
in the truck that Lynch was entering when arrested. See State
v. Lacy, 187 Ariz. 340, 351, 929 P.2d 1288, 1299 (1996) (finding
substantial participation in predicate burglary when defendant
stole property).
¶48 Reasonable jurors could also conclude from the
evidence that Lynch and Sehwani acted in concert to bind James
to the chair and that Lynch was thus a major participant in the
kidnapping. Lynch probably helped tie James to the chair
5
Tison findings are not aggravating circumstances and
therefore not subject to independent review under A.R.S. § 13-
755(A). State v. Garcia, 224 Ariz. 1, 20 ¶ 88 n.3, 226 P.3d
370, 389 n.3 (2010).
16
because Sehwani likely could not have done it alone. See State
v. Robinson, 165 Ariz. 51, 62, 796 P.2d 853, 864 (1990) (finding
that actions of defendant who “was at least present” when
victims’ hands and feet were bound and when the murder occurred
met Tison standard).
¶49 Substantial evidence also supports the jury’s finding
that Lynch acted with reckless indifference toward James’s life.
See State v. Ellison, 213 Ariz. 116, 135 ¶ 73, 140 P.3d 899, 918
(2006) (finding reckless indifference when defendant bound
victims and held pillow over one victim’s face). A State expert
opined that James’s throat was slit by someone standing behind
the chair and that the blood on Lynch’s shoes was consistent
with his having been in that position.6
5. “Retrial” of Tison Predicates
¶50 Lynch contends that the second jury improperly
“retried” the Tison predicates. The trial court, however, never
submitted any Tison issues to the second jury. That jury
appropriately heard evidence about Lynch’s participation in the
crime, because it was entitled to consider the circumstances of
the offense in evaluating mitigation. See A.R.S. § 13-751(G);
State v. Garza, 216 Ariz. 56, 68 ¶ 57, 163 P.3d 1006,
1018 (2007).
6
Another expert testified that Lynch’s left shoe was a
“highly probable” match for footwear impressions in the bathroom
and living room of the guesthouse.
17
6. Admission of Autopsy Photos
¶51 During the first aggravation phase, the court admitted
three autopsy photographs over Lynch’s objections. During the
second aggravation phase, the court admitted two of those
photographs over Lynch’s objections. We review for abuse of
discretion. McGill, 213 Ariz. at 154 ¶ 30, 140 P.3d at 937.
¶52 The photographs are close-ups of the victim’s neck
wound. One depicts a cut jugular vein. Another shows a
completely severed carotid artery. The third, admitted only in
the first penalty phase, depicts the victim’s torso covered in
dried blood and his head tilted back, exposing a severed larynx.
¶53 The photographs were properly admitted to illustrate
the testimony of the medical examiner. Moreover, before seeing
the images, both juries heard expert testimony about the neck
injuries without objection. See State v. Pandeli, 215 Ariz.
514, 529 ¶ 56, 161 P.3d 557, 572 (2007) (finding jurors were
likely not shocked by photographs in light of medical examiner’s
prior testimony). Although these photographs were undoubtedly
disturbing, the superior court did not abuse its discretion in
admitting them. See Anderson II, 210 Ariz. at 340 ¶¶ 41-42, 111
P.3d at 382 (upholding admission of graphic photographs of
murder victim).
18
7. Prosecutorial Misconduct
¶54 Lynch alleges a litany of prosecutorial misconduct,
arguing that either the individual instances or the cumulative
effect of the purported misconduct requires a retrial of the
aggravation phases. “Because the trial court is in the best
position to determine the effect of a prosecutor’s comments on a
jury, we will not disturb a trial court’s denial of a mistrial
for prosecutorial misconduct in the absence of a clear abuse of
discretion.” State v. Newell, 212 Ariz. 389, 402 ¶ 61, 132 P.3d
833, 846 (2006). “Reversal on the basis of prosecutorial
misconduct requires that the conduct be so pronounced and
persistent that it permeates the entire atmosphere of the
trial.” State v. Hughes, 193 Ariz. 72, 79 ¶ 26, 969 P.2d 1184,
1191 (1998) (citations and internal quotation marks omitted);
see also Anderson II, 210 Ariz. at 340-41 ¶ 45, 111 P.3d at 382-
83 (requiring a showing that the misconduct likely denied the
defendant a fair trial).
a. References to Lynch as the “Murderer”
¶55 In his opening statement in the second aggravation
phase, the prosecutor said “the person sitting here in court has
already been convicted of first degree murder. Shawn Patrick
Lynch is a murderer.” He further stated, “[James] was murdered,
and the person who murdered him is sitting right here.” Lynch
moved for a mistrial.
19
¶56 The court denied the motion, noting that “Mr. Lynch
has been convicted of first degree murder” and that referring to
him “as a murderer is an accurate statement.” In any event, the
court later informed the second jury that Lynch had been
convicted of felony murder, thus negating any suggestion that
the first jury had found Lynch to be the actual killer.
Therefore, the trial court did not abuse its discretion in
denying the mistrial motion.
b. Testimony about Hunting Knife
¶57 In his second aggravation phase opening statement, the
prosecutor said a witness would testify that the hunting knife
found at the murder scene was “not consistent with that being
the murder weapon.” Lynch moved for a mistrial, arguing that
the expert in question would not rule out the knife as the
murder weapon but rather would only testify that no DNA was
detected on the blade. The trial court denied the mistrial
motion without prejudice to renewal if the expert testimony did
not support the prosecutor’s statement. The court then
instructed the jury that opening statements are not evidence.
¶58 Lynch did not renew his mistrial motion after the
expert’s testimony. Even assuming that this omission did not
waive any argument of misconduct, we find no impropriety in the
prosecutor’s statement. The expert testified that because he
could find neither blood nor DNA on the blade, he could not
20
conclude that it was the murder weapon. Although not
conclusive, that testimony supported the prosecutor’s assertion.
c. Opening Statements
¶59 Lynch argues the prosecutor misstated the evidence in
his opening statements in the guilt and second aggravation
phases.
¶60 In the guilt phase, the prosecutor stated that Lynch
and Sehwani “rode around in a truck that Mr. Sehwani – that the
defendant drove.” Because Lynch was entering the passenger side
of a truck when he was arrested, he contends this statement was
false. The identity of the truck’s driver, however, was
immaterial and, given that Lynch was riding in the truck, we can
perceive no prejudice from any technical misstatement.
¶61 The prosecutor also asserted that Lynch and Sehwani
“render[ed James] helpless” and that “there are some bruises as
[James] attempted to get up.” The evidence supported this
statement. The medical examiner testified that James was tied
to a chair and that a bruise on his shoulder may have been
caused by “bang[ing] against the surface” of the chair.
¶62 The prosecutor later stated that “[t]here are keys,
car keys to a Lexus. [James] owns a Lexus and they also took
that.” Although not a model of clarity, this statement can be
construed as meaning that Lynch and Sehwani took the car keys,
not the car. Moreover, given the trial testimony that James had
21
left his car at his brother’s house on March 24 and never
retrieved it, the jury could not have understood the statement
to mean that Lynch and Sehwani stole the car.
¶63 Lynch argues that the prosecutor also suggested that
Lynch arranged the escort service transaction by stating that
“the financial terms are taking place at that table . . . and
they take place between the [bodyguard]; James . . . and the
individual, the defendant, that’s just sitting there.” This
statement is reasonably understood, however, as meaning that the
bodyguard and James participated in the negotiations, while
Lynch was “just sitting there.” This statement is supported by
the testimony.
¶64 In the second aggravation phase, the prosecutor
asserted that the bodyguard would testify that Lynch was “acting
as if he owned the place . . . kind of like he was in charge”
and that a knife was on the kitchen table. Lynch did not
object. Moments later, the prosecutor stated that Lynch was
“kind of being the boss of things.” The evidence at least
peripherally supported the prosecutor’s statements. The
bodyguard testified that a knife was on the table, Lynch did
most of the talking, and he offered the bodyguard a beer.
d. Cumulative Misconduct
¶65 Lynch contends that even if each instance of alleged
misconduct is individually harmless, reversal is warranted for
22
cumulative misconduct. Reversal is required “if 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.” Roque, 213
Ariz. at 228 ¶ 155, 141 P.3d at 403 (internal quotation marks
and citations omitted). However, “[a]bsent any finding of
misconduct, there can be no cumulative effect of misconduct
sufficient to permeate the entire atmosphere of the trial with
unfairness.” State v. Bocharski, 218 Ariz. 476, 492 ¶ 75, 189
P.3d 403, 419 (2008). Even assuming that one of the cited
incidents technically involved a misstatement, we find no
misconduct and nothing approaching pervasive unfairness in this
case.
8. (F)(5) Aggravator
a. Retrial of the (F)(5) Aggravator
¶66 Lynch argues that the trial court improperly permitted
the second jury to reconsider the pecuniary gain aggravator. We
find neither statutory nor constitutional error.
¶67 The governing statutes, A.R.S. §§ 13-752(F) and (K),
permit resubmission of the pecuniary gain aggravator to the
second jury. Section 13-752(F) mandates that the trial proceed
directly to the penalty phase if the first jury finds at least
one aggravating circumstance, even if that jury cannot reach a
unanimous decision on another aggravator. If the jury cannot
23
reach a unanimous decision in the penalty phase, the court must
impanel a new jury. A.R.S. § 13-752(K). The second jury is
only precluded from retrying “the defendant's guilt or the issue
regarding any of the aggravating circumstances that the first
jury found by unanimous verdict to be proved or not proved.”
Id. (emphasis added). The statute thus contemplates submission
to the second jury of those aggravating circumstances that were
not unanimously found by the original jury.
¶68 Contrary to Lynch’s arguments, such a procedure did
not subject him to double jeopardy. Failure to unanimously find
an aggravator is not an acquittal for Fifth Amendment purposes,
Poland v. Arizona, 476 U.S. 147, 155-56 (1986), nor does it
collaterally estop a new trier of fact from considering the
issue, Yeager v. United States, 129 S. Ct. 2360, 2368 (2009).
b. Sufficiency of Evidence on the (F)(5) Aggravator
¶69 Lynch contends that the evidence was insufficient to
support the second jury’s finding that “[t]he defendant
committed the offense as consideration for the receipt, or in
expectation of the receipt, of anything of pecuniary value.”
A.R.S. § 13-751(F)(5). Because the murder occurred before
August 1, 2002, we independently review the jury’s aggravation
findings. A.R.S. § 13-755(A); Anderson II, 210 Ariz. at 354
¶ 119 & n.21, 111 P.3d at 396 & n.21.
24
¶70 A felony murder conviction predicated on robbery or
burglary does not automatically establish the (F)(5) aggravator.
Anderson II, 210 Ariz. at 351 ¶ 103, 111 P.3d at 393. Rather,
the murder must itself be “prompted by the desire for pecuniary
gain.” Id. at 351 ¶ 105, 111 P.3d at 393.
¶71 The evidence here establishes the (F)(5) aggravator
beyond a reasonable doubt. After the murder, James’s gun and
magazine clip were found in a motel room used by Lynch. James’s
Bank One debit and credit cards were repeatedly used after the
murder, among other things to secure charges at a motel room
registered in Lynch’s name. Property belonging to James was
found in the passenger compartment of the truck that Lynch was
entering at the time of his arrest.
¶72 The evidence also strongly supports the conclusion
that the killers returned to the guesthouse intending to steal
further from James and that he was murdered to avoid detection
of both the initial theft of the American Express card and the
subsequent robbery and burglary. See Ellison, 213 Ariz. at 143
¶ 125, 140 P.3d at 926 (finding (F)(5) aggravator established
when defendant planned a burglary and killed victims to escape
and avoid identification). The record does not suggest that
pecuniary gain was an originally unintended consequence of the
murder. See State v. Gillies, 135 Ariz. 500, 512, 662 P.2d
1007, 1019 (1983) (finding (F)(5) aggravator not established
25
when defendant confessed that purpose of murdering rape victim
was to eliminate her as a witness to her own rape, not to steal
credit cards and cash).
¶73 Lynch argues that an (F)(5) finding is inappropriate
because the evidence is not conclusive as to who controlled
James’s car keys and gun and because Sehwani used James’s credit
cards. But a lack of subsequent control over robbery proceeds
does not bar an (F)(5) finding; the aggravator requires only
that the desire for pecuniary gain motivated the murder. State
v. LaGrand, 153 Ariz. 21, 36, 734 P.2d 563, 578 (1987).
Similarly, we reject Lynch’s argument that upholding the (F)(5)
aggravator would require imputing Sehwani’s motivations to
Lynch. The evidence sufficiently establishes that Lynch acted
with his own pecuniary motivations.
9. (F)(6) Aggravator
a. Absence of “Vicarious Liability” Instruction
¶74 Lynch contends the trial court erred in giving the
following instruction in the first aggravation phase:
Cruelty involves the infliction of physical pain
and/or mental anguish on a victim before death. A
crime is committed in an especially cruel manner when
a defendant either knew or should have known that the
manner in which the crime is committed would cause the
victim to experience physical pain and/or mental
anguish before death.
Lynch argues that the instruction allowed the jury to impute
cruelty to him solely because of Sehwani’s actions. Because
26
Lynch neither objected to this instruction nor requested an
alternative, we review for fundamental error. Kuhs, 223 Ariz.
at 386 ¶ 52, 224 P.3d at 202.
¶75 “There is no vicarious liability for cruelty in
capital cases absent a plan intended or reasonably certain to
cause suffering.” State v. Carlson, 202 Ariz. 570, 583 ¶ 49, 48
P.3d 1180, 1193 (2002). If the defendant neither committed the
murder nor knew or should have known that the victim would
suffer, the cruelty aggravator cannot be found on a “tort theory
of culpability.” Id.
¶76 Carlson involved a defendant who “was not present
during commission of the crime, did not supply the murder
weapon, and was not involved in planning the details or method
of murder.” 202 Ariz. at 583 ¶ 47, 48 P.3d at 1193. In
contrast, a reasonable inference from the evidence in this case
is that Lynch, at a minimum, helped bind the victim before his
throat was slit. Given the evidence that Lynch’s own actions
caused the victim mental anguish, the instruction given was not
fundamental error.
b. Sufficiency of Evidence on the (F)(6) Aggravator
¶77 First degree murder is aggravated when conducted “in
an especially heinous, cruel or depraved manner.” A.R.S. § 13-
751(F)(6). Although worded in the disjunctive, this subsection
describes but one aggravating circumstance. State v. Djerf, 191
27
Ariz. 583, 595 ¶ 44, 959 P.2d 1274, 1286 (1998). If the
evidence supports one of the statutory grounds, we will uphold
the (F)(6) finding. See State v. Cromwell, 211 Ariz. 181, 189
¶ 43, 119 P.3d 448, 456 (2005) (declining to consider alleged
errors related to heinousness or depravity because cruelty was
established).
¶78 A murder is especially cruel when “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. Trostle, 191 Ariz. 4, 18, 951 P.2d 869, 883
(1997) (internal citation omitted). That standard was met here.
The evidence showed that James would have felt physical pain as
his throat was cut. He would have continued to feel pain
thereafter for at least a minute until he lost consciousness.
¶79 The evidence also establishes that James experienced
mental anguish. He was almost surely conscious when bound to
the chair, as “[t]here is no reason to bind an unconscious
person who offers no resistance.” Djerf, 191 Ariz. at 596 ¶ 49,
959 P.2d at 1287. Ligatures, abrasions, and bruising on James’s
wrists, hands, forearm, shoulder blade, back, and chest wall
establish that he struggled. See State v. Sansing, 206 Ariz.
232, 236 ¶ 10, 77 P.3d 30, 34 (2003) (inferring mental anguish
from victim’s defensive wounds). Moreover, the number and
complexity of the knots suggest that James had ample time to
28
suffer “significant uncertainty as to [his] ultimate fate.”
State v. Van Adams, 194 Ariz. 408, 421 ¶ 44, 984 P.2d 16, 29
(1999).
¶80 It was also “reasonably foreseeable” that James would
suffer physical or mental pain. Djerf, 191 Ariz. at 595 ¶ 45,
959 P.2d at 1286. Lynch argues that physical pain was not
foreseeable because the fatal wound was designed to lead to a
quick death. But it is not obvious that cutting a throat will
always lead to instantaneous death. In any event, it was surely
foreseeable that James would suffer significant mental anguish
while being bound to the chair.
¶81 The evidence supports the jury’s finding that the
murder was especially cruel. Because the (F)(6) aggravator was
therefore established on that ground, we need not determine
whether the evidence also supports the findings of heinousness
or depravity. Cromwell, 211 Ariz. at 189 ¶ 43, 119 P.3d at 456.7
C. PENALTY PHASE
¶82 Lynch requested an instruction stating that the three
separate jury findings of especial heinousness, cruelty, and
depravity constituted only one aggravating circumstance. The
7
Similarly, we need not consider any allegations of error
relating to the jury’s findings of heinousness or depravity.
Even if those findings were vacated, the (F)(6) aggravator would
remain established.
29
court instead instructed the second penalty phase jury as
follows:
The following aggravating circumstances have been
found to exist:
1. The defendant committed the murder in an
especially cruel manner.
2. The defendant committed the murder in an
especially heinous manner.
3. The defendant committed the murder in an
especially depraved manner.
4. The defendant committed the murder in expectation
of the receipt of anything of pecuniary value.
¶83 In his closing argument, the prosecutor cited this
instruction and characterized the (F)(6) prongs as “three
aggravating factors.” After the argument, Lynch unsuccessfully
moved for a new trial.
¶84 Our decisions make plain that the (F)(6) aggravator is
a single aggravating circumstance that can be established in
alternative ways: “Because this subsection is stated in the
disjunctive, a finding of either cruelty or
heinousness/depravity will suffice to establish this factor.”
Djerf, 191 Ariz. at 595 ¶ 44, 959 P.2d at 1286. The court
therefore erred in instructing the jury that three separate
(F)(6) aggravating circumstances were proved. State v. Miles,
186 Ariz. 10, 19, 918 P.2d 1028, 1037 (1996) (finding error in
counting cruelty and heinousness as two separate factors).
30
¶85 The State argues that any error in the instruction was
cured because the court also instructed the jury that “you shall
not consider twice any fact or aspect of the murder.” But this
general statement did not clarify that the especially heinous,
cruel, and depraved findings constituted a single aggravating
circumstance, because, as the jury here was instructed, each
(F)(6) theory requires proof of different facts. Especial
cruelty requires proof that the victim was conscious, suffered
physical pain or mental anguish, and the defendant knew or
should have known the victim would suffer. Trostle, 191 Ariz.
at 18, 951 P.2d at 883. In contrast, under the only theory
proffered by the State that would support finding heinousness or
depravity – gratuitous violence - proof is required that the
defendant inflicted more violence than was necessary to kill and
either knew or should have known that he had done so.
Bocharski, 218 Ariz. at 494 ¶¶ 85-87, 189 P.3d at 421.
¶86 Nor was the trial court’s instructional error
harmless. An error is harmless only when the State proves
beyond a reasonable doubt that the jury’s decision “was surely
unattributable to the error.” State v. Valverde, 220 Ariz. 582,
585 ¶ 11, 208 P.3d 233, 236 (2009) (quoting State v. Anthony,
218 Ariz. 439, 446 ¶ 39, 189 P.3d 366, 373 (2008)). The State
has not met that burden here. The jury was told incorrectly
that there were four aggravating factors rather than two, and
31
the prosecution emphasized this incorrect instruction in urging
the death penalty. See A.R.S. §§ 13-751(E) (requiring penalty
phase jury to “take into account the aggravating . . .
circumstances that have been proven”); 13-751(F) (requiring jury
to “consider . . . aggravating circumstances in determining
whether to impose a sentence of death”).
¶87 When an “error was made regarding a finding of
aggravation” we are required to “independently determine if the
mitigation . . . is sufficiently substantial to warrant leniency
in light of the existing aggravation.” A.R.S. § 13-755(B).
When we conclude that the jury has erroneously found an
aggravating circumstance, we use this extraordinary statutory
power of independent reweighing to determine whether a death
sentence nonetheless remains appropriate. See, e.g., State v.
Tucker, 215 Ariz. 298, 320-23 ¶¶ 96-120, 160 P.3d 177, 199-202
(2007); State v. Carreon, 210 Ariz. 54, 73 ¶¶ 96-98, 107 P.3d
900, 919 (2005).
¶88 The statute, however, only requires independent
reweighing when “an error was made regarding a finding of
aggravation.” A.R.S. § 13-755(B) (emphasis added). This is not
such a case. The jury here properly found both the (F)(5) and
(F)(6) aggravators. The error in this case arises not from an
improper aggravation finding, but rather from the trial court’s
faulty instruction in the penalty phase that the jury should
32
treat the case as involving four aggravators and the
prosecutor’s highlighting of that instruction during arguments
exacerbated the error. Under these circumstances, § 13-755(B)
does not authorize independent reweighing. Rather, we are
constrained to remand for a new penalty phase trial before a
properly instructed jury.8
III. CONCLUSION
¶89 For the reasons above, we affirm the convictions and
non-capital sentences, but remand for a new penalty phase
proceeding on the murder conviction. Any new penalty phase jury
should be instructed that the (F)(5) and (F)(6) aggravators have
been previously found and that it is not to retry those issues.
See A.R.S. § 13-752(K).
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
Michael D. Ryan, Justice
8
We therefore need not address Lynch’s other arguments
regarding imposition of the death penalty, including the twenty-
seven arguments submitted to avoid preclusion in future federal
proceedings.
33
_____________________________________
W. Scott Bales, Justice
_____________________________________
A. John Pelander, Justice
34