State v. Hargrave

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-06-0061-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2002-009759
CHRISTOPHER ALLEN HARGRAVE, )
)
Appellant. ) O P I N I O N
________________________________ )

Appeal from the Superior Court in Maricopa County
The Honorable Roland J. Steinle, Judge

REMANDED FOR RESENTENCING ON BURGLARY,
AFFIRMED IN ALL OTHER RESPECTS
________________________________________________________________

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

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Karen M. Noble, Deputy Public Defender
Louise Stark, Deputy Public Defender
Attorneys for Christopher Allen Hargrave
________________________________________________________________

B E R C H, Chief Justice

¶1 Christopher Allen Hargrave was convicted of three

counts of first degree murder, one count of armed robbery, one

count of burglary, and three counts of kidnapping. He was

sentenced to death for each of the murders. In this automatic

appeal, Hargrave raises fourteen claims of error and lists
fifteen additional issues to avoid preclusion. This Court has

jurisdiction pursuant to Article 6, Section 5(3) of the Arizona

Constitution and Arizona Revised Statutes (“A.R.S.”) § 13-4031

(2010).

I. FACTUAL AND PROCEDURAL BACKGROUND1

¶2 Late on the evening of May 19, 2002, Christopher

Hargrave and Steve Boggs drove to a fast food restaurant from

which Hargrave had recently been fired. Hargrave entered

dressed in his work uniform and told the employees that he had

been called into work.

¶3 Armed with a handgun, Boggs followed Hargrave into the

restaurant and ordered the three employees to lie down on the

floor and empty their pockets. Hargrave watched the employees

while Boggs took money from two registers. Hargrave then

assisted Boggs in directing the employees through the cooler

into the freezer where Boggs lined them up and shot them as he

shouted racial epithets. Hargrave also fired the murder weapon

once inside the cooler. He later tried to withdraw money from

an ATM using a bank card belonging to one of the victims.

¶4 A customer who arrived at the restaurant after the

shootings saw victim B.A. on the ground by the back door and

called the police. When police officers arrived, they found the

1
We view the facts in the light most favorable to sustaining
the verdict. State v. Dann, 205 Ariz. 557, 562 n.1, 74 P.3d
231, 236 n.1 (2003).
- 2 -
body of victim F.J. on the floor near a telephone and the body

of victim K.B. inside the freezer. All three victims died from

their gunshot wounds. Between $200 and $500 was missing from

the cash registers.

¶5 On May 21, 2002, Boggs pawned a .45 caliber handgun at

a shop owned by Hargrave’s girlfriend’s parents, who reported

the transaction to the police. Ballistics tests indicated that

the gun had ejected the shell casings found at the restaurant,

and an analyst concluded that Hargrave was a “major contributor”

to the DNA recovered from the grip of the weapon.

¶6 On June 6, 2002, officers apprehended Hargrave while he

was sleeping at a campsite. Nearby, officers found two

handguns, a shotgun, two assault rifles, boxes of ammunition,

and several documents evidencing Hargrave’s involvement with the

“Imperial Royal Guard,” a white supremacist organization. As

officers arrested him, Hargrave stated that “things would have

been different” if he had been awake when they arrived.

¶7 A jury found Hargrave guilty of three counts of first

degree felony and premeditated murder and all other charges.

The jury found three aggravating factors for each murder:

(1) the murders were committed in the expectation of pecuniary

gain, A.R.S. § 13-751(F)(5) (2010);2 (2) the murders were

2
In 2008, the capital sentencing statutes were renumbered as
A.R.S. §§ 13-751 to -759. 2008 Ariz. Sess. Laws, ch. 301,
- 3 -
committed in an especially cruel manner, id. § 13-751(F)(6); and

(3) multiple homicides were committed during the offense, id. §

13-751(F)(8).

¶8 Hargrave did not present mitigation during the penalty

phase and the jury determined that he should be sentenced to

death for each murder. The court imposed a death sentence for

each of the murders and concurrent terms of twenty-one years for

the armed robbery, fifteen years for the burglary, and twenty-

one years for each of the three kidnapping counts.

II. DISCUSSION

A. Guilt Phase Issues

1. Prior act evidence

¶9 Hargrave argues on appeal that the trial court erred in

admitting three categories of evidence at trial: (1) evidence

related to his membership in the Imperial Royal Guard (“IRG”),

(2) evidence of his statement to officers during his arrest that

“things would have been different” had he been awake, and

(3) evidence regarding the guns and ammunition recovered from

the campsite. He claims that the evidence was not relevant and

its admission violated Arizona Rule of Evidence 404(b) because

its limited probative value was substantially outweighed by the

danger of prejudice. He also contends that the prosecutor used

§§ 26, 38-41 (2d Reg. Sess.). Because there were no relevant
substantive changes, we cite the current version of the
statutes.
- 4 -
the evidence for an improper purpose.

¶10 Evidence of a defendant’s prior or subsequent acts is

not admissible “to show that the defendant is a bad person or

has a propensity for committing crimes.” State v. McCall, 139

Ariz. 147, 152, 677 P.2d 920, 925 (1983) (prior acts); see also

State v. Moreno, 153 Ariz. 67, 68, 734 P.2d 609, 610 (App. 1986)

(subsequent acts). Other act evidence may be admitted, however,

for other purposes, such as proving “motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.” Ariz. R. Evid. 404(b). The proponent

must establish by clear and convincing evidence that the

defendant committed the act, State v. Terrazas, 189 Ariz. 580,

582, 944 P.2d 1194, 1196 (1997), and the court must then “(1)

find that the act is offered for a proper purpose under Rule

404(b); (2) find that the prior act is relevant to prove that

purpose; (3) find that any probative value is not substantially

outweighed by unfair prejudice; and (4) give upon request an

appropriate limiting instruction,” State v. Anthony, 218 Ariz.

439, 444 ¶ 33, 189 P.3d 366, 371 (2008).

a. IRG evidence

¶11 Hargrave and Boggs had formed the Imperial Royal Guard

(“IRG”), a paramilitary organization that asserted the supremacy

of the white race and espoused negative views of racial

minorities. Boggs served as “Chief of Staff” and Hargrave as
- 5 -
“Assistant Chief of Staff.” At Hargrave’s campsite, police

discovered Hargrave’s IRG membership application, his oath of

allegiance to the IRG, a binder containing a declaration

describing the IRG’s tenets, and a camouflage jacket bearing his

IRG “Assistant Chief of Staff” name tag.

¶12 The State offered the IRG evidence to establish racial

bias as a potential motive for the crimes. It presented

evidence that all three victims were members of minority groups

and that Boggs had shouted racial epithets during the shootings.

Hargrave argues that the trial court erred in admitting the IRG

evidence because it was not relevant to the crimes charged and

no evidence established that the murders were motivated by

racial bias.

¶13 Because Hargrave did not object to the IRG evidence at

trial,3 we review its admission for fundamental error, which is

“error going to the foundation of the case, error that takes

from the defendant a right essential to his defense, [or] error

of such magnitude that the defendant could not possibly have

3
The State filed a pretrial notice of its intent to admit
evidence of Hargrave’s membership in the IRG. At a subsequent
status conference, Hargrave’s attorney said that he had not read
the State’s notice, but would file a response. Hargrave’s
counsel later withdrew from the case without filing a response.
When the case was assigned to a different judge for trial, the
court ordered the parties to file all pretrial motions twenty
days before trial. Hargrave’s new counsel filed various
pretrial motions, but did not contest the admission of the IRG
evidence in a motion or at trial.
- 6 -
received a fair trial.” State v. Henderson, 210 Ariz. 561, 567

¶ 19, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142

Ariz. 88, 90, 688 P.2d 980, 982 (1984)). To prevail under this

standard, Hargrave must first establish that an error occurred,

then prove that the error was fundamental in nature and caused

prejudice. Id. at 567 ¶¶ 20, 23, 115 P.3d at 607.

¶14 Hargrave has not established that any error occurred.

Contrary to Hargrave’s argument, motive is relevant in a murder

prosecution. State v. Hunter, 136 Ariz. 45, 50, 664 P.2d 195,

200 (1983). He counters that the State presented evidence of

other motives, such as robbery or retaliation for having been

fired from his job. But the fact that the State may have

evidence of other motives does not preclude the State from

presenting the IRG motive evidence. See Ariz. R. Evid. 404(b);

see also State v. Andriano, 215 Ariz. 497, 503 ¶ 26, 161 P.3d

546, 549 (2007) (finding evidence of defendant’s extra-marital

affair admissible under Rule 404(b) to prove motive, even though

less prejudicial evidence of motive existed).

¶15 Citing Dawson v. Delaware, 503 U.S. 159 (1992),

Hargrave claims that his affiliation with the IRG was protected

by the First Amendment. In Dawson, the prosecution attempted to

introduce evidence of the defendant’s Aryan Brotherhood and

swastika tattoos during the penalty phase of his murder trial.

503 U.S. at 161. The Court held that the First and Fourteenth
- 7 -
Amendments prohibited the introduction of this evidence because

it was not relevant to the capital sentencing proceedings. Id.

at 160.

¶16 Here, in contrast, evidence of Hargrave’s affiliation

with the IRG was relevant to establish a motive for the crimes

and its probative value was not substantially outweighed by the

prejudice it might have caused. Hargrave has not satisfied his

initial burden of establishing that the trial court committed

any error in admitting this evidence.4

b. Statements to police officers

¶17 Hargrave argues that the trial court erred in admitting

his post-arrest comments that “things would have been different”

if he had been awake when the officers arrived and that “the

police were lucky that he was asleep” when they took him into

custody. He contends that the statements served no proper

purpose, were not connected to the murders, and allowed jurors

to speculate that he was a violent person. The prosecutor

offered the statements to show a consciousness of guilt.

¶18 Because Hargrave did not object to these statements at

trial, we review for fundamental error. Henderson, 210 Ariz. at

4
Hargrave also challenges the authenticity of the IRG
documents, noting that the handwriting was not identified as
his. Hargrave did not raise this objection at trial, see Estate
of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 286 ¶ 9,
9 P.3d 314, 317 (2000) (applying contemporaneous objection
rule), and does not persuasively argue that any error in this
respect was fundamental.
- 8 -
567 ¶ 19, 115 P.3d at 607.

¶19 There was no fundamental error. Hargrave’s statements

did not go to the foundation of his case, cause him prejudice,

or otherwise deprive him of a fair trial or any right essential

to his defense. See id. at 568 ¶ 24, 115 P.3d at 608. The

State produced substantial evidence of Hargrave’s participation

in the murders, including eyewitness testimony, Hargrave’s DNA

on the murder weapon, a photograph of Hargrave attempting to use

victim F.J.’s ATM card after the murders, and Hargrave’s own

admission of his culpability in planning and implementing the

armed robbery.

c. Guns and ammunition

¶20 Hargrave objected to the admission of guns, boxes of

ammunition, and shell casings found at his campsite, arguing

that the evidence was not relevant because the guns and

ammunition were not used during the murders. The court

overruled Hargrave’s objection, finding the evidence of

Hargrave’s arrest with Boggs’s guns relevant to rebut Hargrave’s

claim that he did not know that Boggs would have a gun during

the restaurant robbery.5

5
Citing State v. Uriarte, 194 Ariz. 275, 282 ¶ 36, 981 P.2d
575, 582 (App. 1998), Hargrave claims that no clear and
convincing evidence shows that he “took any affirmative action
to possess the guns”; Boggs left him at the campsite with the
weapons and without transportation. But in Uriarte, the court
found error in the admission of evidence that was largely
- 9 -
¶21 We review the trial court’s evidentiary ruling for

abuse of discretion. State v. Aguilar, 209 Ariz. 40, 49 ¶ 29,

97 P.3d 865, 874 (2004).

¶22 In State v. Ellison, we found that the trial court did

not abuse its discretion in admitting evidence that a defendant

possessed a gun before and after the charged crime because it

made the defendant’s story less plausible. 213 Ariz. 116, 133

¶ 58, 140 P.3d 899, 915 (2006). The evidence here was similarly

relevant to rebut Hargrave’s main defense – that he did not know

Boggs would have a gun. The trial judge did not abuse his

discretion in admitting evidence of the campsite guns and

ammunition.6

uncorroborated and unsupported. Id. Here, in contrast, the
State proved by clear and convincing evidence that Hargrave
possessed the campsite guns.
6
  Several of the guns recovered at the campsite belonged to
W.D., the owner of the pawn shop where Boggs pawned the murder
weapon. Hargrave argues that in presenting the guns and
ammunition evidence, Detective Vogel violated the trial court’s
order not to mention a burglary of W.D.’s residence. The
reference occurred in response to a juror’s question asking how
officers learned that the .45 was at the pawn shop. The
detective responded that the shop owners mentioned the gun when
they contacted the sheriff’s office regarding a burglary of
their home. Hargrave did not object to the question or the
response. This fleeting mention of the burglary does not
constitute fundamental error. Moreover, Hargrave’s briefs did
not set forth any argument that this statement caused reversible
error. See State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382,
1390 (1989) (noting that failure to “present significant
arguments, supported by authority,” “usually constitutes
abandonment and waiver of that claim”).

- 10 -
 d. Limiting instruction

¶23 Hargrave asserts that the trial court erred in its

final limiting instruction regarding 404(b) evidence.7 The State

concedes that the trial court erred in instructing the jurors

that they could consider this evidence as demonstrating that

Hargrave had a character trait that predisposed him to commit

7
The instruction stated:

Evidence of other acts has been presented. You
may consider these acts only if you find that the
State has proved by clear and convincing evidence that
the defendant committed these acts. You may only
consider this act to establish the defendant’s motive,
opportunity, intent, preparation, plan, knowledge,
identity or absence of mistake or accident. You must
not consider this act to determine that the defendant
acted in conformity with the defendant’s character or
character trait and therefore committed the charged
offense.

You may consider this evidence in determining
whether the defendant had a character trait that
predisposed him to commit the crimes charged. You may
determine that the defendant had a character trait
that predisposed him to commit the crime charged only
if you decide that the State has proved by clear and
convincing evidence that:

1. The defendant committed these acts; and
2. These acts show the defendant’s
character predisposed him to commit the
crimes charged.

You may not convict the defendant of the crimes
charged simply because you find that he committed
these acts, or that he had a character trait that
predisposed him to commit the crime charged. Evidence
of these acts does not lessen the State’s burden to
prove the defendant’s guilt beyond a reasonable doubt
[sic] the crimes charged.
- 11 -
the crimes. Such a limiting instruction is properly given when

the jury hears evidence regarding sexual propensity, Ariz. R.

Evid. 404(c), not evidence of prior acts, Ariz. R. Evid. 404(b).

Hargrave did not object to this erroneous instruction at trial,

however, and so we review for fundamental error. Henderson, 210

Ariz. at 567 ¶ 19, 115 P.3d at 607.

¶24 The erroneous instruction did not deny Hargrave a fair

trial or a right essential to his defense. Despite the error,

the jury instruction, taken as a whole, properly advised jurors

of the State’s burden to prove guilt beyond a reasonable doubt

and instructed them not to use the prior act evidence as a basis

for convicting Hargrave of the charges. Hargrave has not met

his burden of establishing that this error constituted

fundamental error.

¶25 There was also either an error in the trial court’s

reading of the limiting instruction or in the court reporter’s

transcription of the instruction. The transcript reads: “You

must [sic] consider this act to determine that the defendant

acted in conformity with the defendant’s character or character

trait and therefore committed the charged offense.” The “[sic]”

notation, which appears in the original transcript, could be

interpreted in one of two ways: Either the judge misspoke and

the court reporter noted the error, or the court reporter did

not hear what was said and included the notation to fill the
- 12 -
blank in the transcript.

¶26 Hargrave has not met his burden of persuading us that

the trial judge gave an improper instruction. It is highly

unlikely that such an improper instruction, if given, would have

escaped the notice of the trial judge, the prosecutor, and

defense counsel. Moreover, the jurors had with them when they

deliberated an instruction that correctly stated the law on this

issue. Viewing the jury instructions as a whole, we cannot

conclude that the error in reading the limiting instruction, if

one occurred, rises to the level of fundamental error.

2. Armed robbery indictment

¶27 Hargrave argues that the armed robbery indictment was

duplicitous because it charged more than one crime in the same

count and erroneous because it charged armed robbery of the

restaurant. He therefore urges us to vacate the armed robbery

conviction and the felony murder convictions predicated on it.

¶28 A defendant must challenge a defect in a charging

document before trial. Ariz. R. Crim. P. 13.5(e), 16.1(c).

This requirement affords the state an opportunity to cure a

defective charging document. State v. Anderson (Anderson II),

210 Ariz. 327, 336 ¶ 17, 111 P.3d 369, 378 (2005). Because

Hargrave failed to challenge the indictment before trial, he has

waived this issue unless he can establish fundamental error.

See Henderson, 210 Ariz. at 567-68 ¶¶ 19-20, 115 P.3d at 607-08.
- 13 -
¶29 We require each offense alleged against a defendant to

be charged in a separate count. State v. Whitney, 159 Ariz.

476, 480, 768 P.2d 638, 642 (1989); see also Ariz. R. Crim. P.

13.2, 13.3. Duplicitous indictments, which charge more than one

crime in the same count, are prohibited because “they fail to

give adequate notice of the charge to be defended, they present

a hazard of a non-unanimous jury verdict, and they make a

precise pleading of prior jeopardy impossible in the event of a

later prosecution.” Whitney, 159 Ariz. at 480, 768 P.2d at 642.

A single count is permissible, however, if several transactions

are “merely parts of a larger scheme.” Id. (quoting State v.

Via, 146 Ariz. 108, 116, 704 P.2d 238, 246 (1985)).

¶30 The single verdict form for armed robbery in this case

did not specify the individuals harmed or the property taken.

Hargrave thus claims that we cannot know whether the jurors

convicted him of the nonexistent crime of armed robbery of the

restaurant, or whether the jury returned a non-unanimous verdict

on armed robbery by convicting him of taking different property

from different victims.

¶31 We have rejected a similar argument. In State v. Van

Vliet, the defendant also argued that the information was

erroneous because it alleged armed robbery of a grocery store.

108 Ariz. 162, 163, 494 P.2d 34, 35 (1972). We upheld the

conviction, observing that “[a]n information is sufficient if it
- 14 -
clearly sets forth the offense in such manner as to enable a

person of common understanding to know what is intended.

Simplicity rather than technicality is the goal to be achieved.”

Id. Here, the indictment also adequately conveyed the offense

charged. Moreover, it did not charge robbery of the restaurant,

but instead named the three victims.

¶32 We have also rejected the argument that not specifying

the victim or property in an armed robbery count requires

reversal, see id., concluding that proper jury instructions and

verdict forms may cure an allegedly defective charging document,

see State v. Axley, 132 Ariz. 383, 392, 646 P.2d 268, 277

(1982). Hargrave did not object to the armed robbery jury

instruction and verdict forms and has failed to demonstrate

fundamental error.

3. Robbery lesser-included offense instruction

¶33 Hargrave next argues that the trial court erred by

failing to instruct the jury on the lesser-included offense of

robbery. A lesser-included offense instruction must be given,

if requested, if the jury could find that (1) the state failed

to prove an element of the greater offense, and (2) the evidence

is sufficient to support a conviction on the lesser offense.

State v. Wall, 212 Ariz. 1, 4 ¶ 18, 126 P.3d 147, 151 (2006);

cf. State v. Schad, 163 Ariz. 411, 417, 788 P.2d 1162, 1168

(1989) (not requiring lesser-included offense instruction for
- 15 -
robbery serving as the predicate for felony murder in a capital

case). With Hargrave’s consent, the trial judge instructed the

jury on armed robbery and theft, but not simple robbery.

Because Hargrave requested a robbery instruction, we review the

trial court’s refusal to give one for abuse of discretion.

State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995).

¶34 A defendant commits robbery “if in the course of taking

any property of another from his person or immediate presence

and against his will, such person threatens or uses force

against any person with intent either to coerce surrender of

property or to prevent resistance to such person taking or

retaining property.” A.R.S. § 13-1902(A) (2010). Armed robbery

includes all these elements, and also requires that the

defendant be “armed with a deadly weapon or a simulated deadly

weapon.” A.R.S. § 13-1904(A)(1) (2010).

¶35 When the defendant is charged as an accomplice, we look

to the accomplice’s intent to aid the main actor. Wall, 212

Ariz. at 4-5 ¶ 20, 126 P.3d at 151-52. Hargrave argues that the

jurors could have found that he did not intend to assist in an

armed robbery because he did not know that Boggs planned to

carry a gun. The evidence shows, however, that Hargrave not

only watched the victims while an armed Boggs obtained money

from the cash registers, but also helped move the victims to the

freezer and fired the murder weapon. Although Hargrave did not
- 16 -
carry his own weapon during the robbery, he assisted Boggs in

committing the armed robbery knowing that Boggs possessed a

weapon, and he held the weapon and fired it.

¶36 Hargrave requested that the court give a lesser-

included offense instruction either on robbery or theft, noting

that, if the court were to give only one, he preferred an

instruction on theft. The trial court gave a theft instruction,

based on Hargrave’s claim that he and Boggs intended to steal

money from the restaurant while Hargrave distracted the

employees. If, however, the jury found that more than a theft

occurred and that the robbery element of force or threat was

proven, a rational juror could not have found that the State

failed to prove the additional element of armed robbery: the

presence of a weapon. Boggs entered the restaurant brandishing

a gun and Hargrave continued to assist him during the armed

robbery. The evidence thus did not support a lesser-included

offense instruction on simple robbery, and therefore the trial

court did not abuse its discretion in declining to give such an

instruction.

4. False imprisonment lesser-included offense instruction

¶37 Hargrave claims that the trial court erred by failing

to instruct the jury on unlawful imprisonment as a lesser-

included offense of kidnapping. Because Hargrave did not

request a lesser-included offense instruction, we review the
- 17 -
trial court’s failure to give one only for fundamental error.

State v. Nordstrom, 200 Ariz. 229, 253 ¶ 81, 25 P.3d 717, 741

(2001).

¶38 Unlawful imprisonment, defined as “knowingly

restraining another person,” A.R.S. § 13-1303(A) (2010), is a

lesser-included offense of kidnapping, which is “knowingly

restraining another person with the intent to [i]nflict death,

physical injury or . . . otherwise aid in the commission of a

felony,” A.R.S. § 13-1304(A)(3) (2010). The “distinguishing

element between kidnapping and unlawful imprisonment is the

perpetrator’s state of mind, i.e., whether the unlawful

imprisonment was accompanied with one of the enumerated intents

set out in A.R.S. § 13-1304 so as to elevate the unlawful

imprisonment to kidnapping.” State v. Detrich, 178 Ariz. 380,

383, 873 P.2d 1302, 1305 (1994); see also State v. Bearup, 221

Ariz. 163, 169 ¶ 24, 211 P.3d 684, 690 (2009).

¶39 Hargrave argues that the trial court should have

instructed the jury on false imprisonment because the jury could

have found he did not intend to harm the employees. The

evidence showed, however, that Hargrave intended to “aid in the

commission of a felony” – the robbery – and knew that victims

might be harmed. See A.R.S. § 13-1304(A)(3). He discussed the

robbery plan with Boggs and knew that Boggs “always carrie[d] a

gun.” Boggs had also warned Hargrave that “if it came down to
- 18 -
it, he would shoot [the employees].” Hargrave watched the

victims as an armed Boggs took money from the cash registers,

opened the door as Boggs marched the victims into the freezer,

and fired the gun as the victims were directed into the freezer.

He assisted Boggs in restraining the victims to aid in the

commission of the armed robbery, which distinguishes kidnapping

from unlawful imprisonment. See id. Hargrave has failed to

demonstrate fundamental error.

5. Non-residential burglary sentence

¶40 The court sentenced Hargrave to fifteen years for third

degree burglary, a dangerous crime. At the time of Hargrave’s

conviction, this crime carried a presumptive sentence of six

years’ imprisonment and a maximum sentence of eight years.

A.R.S. § 13-604(F) (Supp. 2000) (subsequently re-enacted and

renumbered as A.R.S. § 13-704(A) (2010)). The State concedes

that the fifteen-year sentence is unlawful because it falls

outside the statutory range. See State v. House, 169 Ariz. 572,

573, 821 P.2d 233, 234 (App. 1991). We remand Hargrave’s

burglary conviction for resentencing within the statutory range.

B. Aggravation Phase Issues

1. Sufficiency of the evidence to support aggravators

¶41 Hargrave argues that the evidence was insufficient to

prove the (F)(5) pecuniary gain and (F)(6) especially cruel

aggravating factors. These claims are subsumed within our
- 19 -
independent review and are addressed in section III of this

opinion. See Andriano, 215 Ariz. at 506 n.5, ¶ 41, 161 P.3d at

549 n.5.

2. Constitutionality of (F)(6) especially cruel
aggravating circumstance

¶42 Hargrave argues that the A.R.S. § 13-751(F)(6)

aggravating factor – murder committed in an “especially cruel”

manner – is unconstitutionally vague, incapable of principled

application, and arbitrary and capricious as applied. We review

alleged constitutional violations de novo, State v. McGill, 213

Ariz. 147, 159 ¶ 53, 140 P.3d 930, 942 (2006), and when

possible, construe statutes to uphold their constitutionality,

State v. Cromwell, 211 Ariz. 181, 188 ¶ 38, 119 P.3d 448, 455

(2005).

¶43 The United States Supreme Court has found Arizona’s

(F)(6) aggravating circumstance facially vague, but held that it

may be remedied with appropriate narrowing judicial

constructions. Walton v. Arizona, 497 U.S. 639, 654-56 (1990),

overruled in part by Ring v. Arizona, 536 U.S. 584 (2002); see

also Ellison, 213 Ariz. at 138 ¶ 96, 140 P.3d at 921. We have

approved of jury instructions defining “especially cruel” as

requiring evidence that the victim was conscious during the

violence and that the defendant knew or should have known that

the victim would suffer mental anguish or physical pain.

- 20 -
Ellison, 213 Ariz. at 139 ¶¶ 98-99, 140 P.3d at 922; Cromwell,

211 Ariz. at 189 ¶ 42, 119 P.3d at 456; Anderson II, 210 Ariz.

at 352-53 n.19, ¶ 111, 111 P.3d at 394-95 n.19. We have also

upheld instructions requiring that the victim experience

“significant uncertainty” about his or her fate. Cromwell, 211

Ariz. at 189 ¶ 42, 119 P.3d at 456; Anderson II, 210 Ariz. at

352-53 n.19, ¶ 111, 111 P.3d at 394-95 n.19.

¶44 Hargrave argues that these limiting interpretations no

longer save the (F)(6) aggravator from unconstitutional

vagueness because juries, rather than judges, now find the

existence of aggravating factors. See A.R.S. § 13-751(E). We

rejected this argument in Cromwell, 211 Ariz. at 189-90 ¶¶ 41-

42, 44, 119 P.3d at 456-57, and Anderson II, 210 Ariz. at 353 ¶¶

112-14, 111 P.3d at 395.

¶45 The instruction here contained the essential narrowing

factor that the defendant either knew or should have known that

his actions would cause the victims mental anguish or physical

pain before death. We upheld a nearly identical instruction in

State v. Tucker, 215 Ariz. 298, 310-11 ¶¶ 30-31, 160 P.3d 177,

189-90 (2007), and find no reason to depart from that decision

now. The only difference between the Tucker instruction and the

one here is that in Tucker, the instruction stated that a crime

is especially cruel if the “Defendant either intended or knew.”

Here, the instruction used the phrase “the defendant either knew
- 21 -
or should have known” that the crime would cause the victims to

experience physical pain or mental anguish. This slight

alteration does not deprive the instruction of the essential

narrowing factor that maintains its constitutionality.

¶46 Hargrave also argues that the (F)(6) instruction is

facially vague because it failed to properly channel the jurors’

discretion by providing clear, objective standards. We have

previously rejected this argument.8 E.g., id.

3. Jury instruction to not consider punishment at the
aggravation phase

¶47 At the aggravation phase of the trial, the judge

instructed the jury that “[i]n reaching your verdicts in this

phase, you are not to consider the possible punishment.”

Hargrave argues that this instruction improperly relieved jurors

of their duty to consider the gravity of their sentencing

decision. Because Hargrave failed to object to this

instruction, we review for fundamental error, see Henderson, 210

8
Hargrave also argues that the aggravator was arbitrarily
and capriciously applied, in violation of the Fifth, Eighth, and
Fourteenth Amendments. He claims that the expansion of the
Gretzler list of factors “destroys the ‘consistency’ that
preserved the constitutional validity of the statute.” In
Gretzler, we established factors to be considered when deciding
if a murder was especially heinous or depraved. State v.
Gretzler, 135 Ariz. 42, 51-52, 659 P.2d 1, 10-11 (1983).
Although the verdict forms indicate that the murders were
committed in an “especially cruel or depraved manner,” the State
did not present evidence of depravity and the jury was not
instructed on depravity. Thus Gretzler is inapplicable. See
id.
- 22 -
Ariz. at 567 ¶ 19, 115 P.3d at 607.

¶48 It is unconstitutional to minimize the importance of a

capital sentencer’s role in imposing the death penalty, Caldwell

v. Mississippi, 472 U.S. 320, 328-29 (1985), or to make remarks

that “improperly describe[] the role assigned to the jury by

local law,” Dugger v. Adams, 489 U.S. 401, 407 (1989). Under

Arizona law, however, the jury does not consider punishment

until the penalty phase of the trial, see A.R.S. § 13-752(F),

and the instruction was therefore appropriate.

¶49 Moreover, during the penalty phase of the trial, the

court clearly and correctly instructed the jurors, “[i]t is now

your duty to determine whether the Defendant should be sentenced

to death or life imprisonment on his convictions for first

degree murder.” The penalty phase instructions conveyed the

gravity of the jurors’ task: “Your decision is not a

recommendation. Your decision will be binding. If your verdict

is that the Defendant should be sentenced to death, the

Defendant will be sentenced to death.” These instructions

adequately informed the jurors, at the appropriate time, of the

gravity of their decision.

C. Penalty Phase Issues

1. Jury instruction regarding penalties applicable if the
death sentence was not imposed

¶50 Hargrave argues that the trial court improperly

- 23 -
instructed the jury at the aggravation and penalty phases of

trial that he could be released after serving twenty-five years

of a life sentence. He claims that telling the jurors that he

could be released made them consider his future dangerousness as

a factor in determining the sentence.

¶51 Because Hargrave failed to object to these

instructions, we review for fundamental error. Ariz. R. Crim.

P. 21.3(c); Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.

¶52 Hargrave relies on Simmons v. South Carolina, in which

the trial court instructed the jury that the defendant could be

released on parole if not sentenced to death. 512 U.S. 154

(1994) (plurality opinion). In Simmons, however, the defendant

was not eligible for parole because he had two prior felony

convictions. Id. at 156. The trial court refused to inform the

jury of the defendant’s ineligibility for parole, despite

Simmons’ repeated requests for the instruction and even after

the jury asked whether he could be released on parole if not

sentenced to death. Id. at 160, 162. Because the prosecution

in Simmons emphasized the defendant’s future dangerousness if

released, the Court found reversible error. Id. at 162.

¶53 In contrast, the instructions here correctly reflected

the statutory potential for Hargrave’s release. See A.R.S.

§ 13-751(A) (providing that a defendant not sentenced to death

or natural life may not be released for twenty-five or thirty-
- 24 -
five years, depending on the age of the victim). Unlike

Simmons, Hargrave was eligible for release after twenty-five

years, as the jury instruction correctly stated. See id.

Hargrave’s argument that he is not likely to actually be

released does not render the instruction legally incorrect. See

State v. Cruz, 218 Ariz. 149, 160 ¶¶ 41-42, 181 P.3d 196, 207

(2008); see also Dann, 220 Ariz. at 373 ¶¶ 123-24, 207 P.3d at

626 (upholding similar instructions as properly conveying the

jury’s sentencing options). The jury instructions correctly

stated the law, did not mislead the jurors about Hargrave’s

possible penalties, or deny Hargrave the benefit of mitigating

evidence.

2. Jury instruction regarding mitigation

¶54 After consulting his attorney, family, and outside

counsel, Hargrave made a considered decision not to present

mitigation evidence during the penalty phase of his trial,

although he chose to allocute. At the conclusion of the penalty

phase, the judge instructed the jury, without objection, as

follows:

Both parties have had an opportunity to present
additional evidence to you in the penalty phase.
However, neither party was required to present
additional evidence in the penalty phase.

. . . .

- 25 -
 . . . [T]he defendant had the opportunity to prove the
existence of mitigating circumstances by a
preponderance of the evidence.

The burden of proving the existence of mitigation is
on the defendant.

¶55 Hargrave argues that these instructions improperly

commented on the evidence and erroneously placed a burden on him

to testify. Because Hargrave failed to object, we review his

claim for fundamental error. Henderson, 210 Ariz. at 567 ¶ 19,

115 P.3d at 607.

¶56 There was no error. The instructions given correctly

state the law. Moreover, the trial court also instructed the

jurors that (a) they must not consider the defendant’s choice

not to present mitigating evidence in their deliberations,

(b) they “should give the defendant’s statement [in allocution]

as much weight as [they] feel it deserves under all the facts

and circumstances of this case,” and (c) they could “also

consider any other relevant mitigation evidence presented during

any phase of the trial, even if it was not proposed by either of

the parties.”

D. Post-Trial Issues

1. Adequacy of the record on appeal

¶57 Hargrave argues that the trial record is inadequate to

allow proper appellate review because the trial court held

several unrecorded bench conferences throughout the proceedings.

- 26 -
¶58 During jury selection, the parties held two unrecorded

conferences without objection from the defense. The State

argues that, by failing to object to these conferences, Hargrave

waived any claim of error. We disagree. Hargrave filed a

pretrial motion requesting a record of all trial proceedings,

which the court granted, and he requested a standing objection

to unrecorded bench conferences. See State v. Sharp, 193 Ariz.

414, 421 ¶ 22, 973 P.2d 1171, 1178 (1999).

¶59 During trial, the court held several other unrecorded

bench conferences, despite repeated defense objections. When

defense counsel asked to maintain a standing objection, the

court noted the objection, but observed that it lacked the

equipment to record bench conferences.

¶60 The court then began to make an after-the-fact record

of each unrecorded conference and changed its practice regarding

juror questions. The court’s staff would show counsel the

jurors’ written questions, and if either party objected, the

court would excuse the jury to allow counsel to state the

reasons for any objections on the record. Hargrave argues that

this practice forced him to object in front of the jury, in

violation of Arizona Rule of Criminal Procedure 18.6(e), which

requires that the court provide counsel an “opportunity . . . to

object to such questions out of the presence of the jury.”

Ariz. R. Crim. P. 18.6(e) (emphasis added). The trial court, in
- 27 -
response, invited counsel to “ask for an opportunity to make a

record,” at which point he would excuse the jury so that counsel

could state objections. Hargrave also notes other gaps in the

record such as an unreported bench conference regarding an

exhibit that the court subsequently admitted into evidence.

¶61 The court record must be sufficiently complete to allow

“adequate consideration of the errors assigned.” State v.

Moore, 108 Ariz. 532, 534, 502 P.2d 1351, 1353 (1972) (citing

Draper v. Washington, 372 U.S. 487 (1963)). We have disapproved

of the practice of holding unrecorded bench conferences. State

v. Bay, 150 Ariz. 112, 115, 722 P.2d 280, 283 (1986); State v.

Fletcher, 149 Ariz. 187, 189, 717 P.2d 866, 868 (1986).

Nevertheless, we have never required “the verbatim reporting of

all bench conferences.” State v. Berndt, 138 Ariz. 41, 46, 672

P.2d 1311, 1316 (1983).

¶62 The procedures here, while not ideal, sufficiently

protected Hargrave’s right to have a reviewable record. Despite

failing to record all sidebar conferences, the trial judge did

ensure that an adequate after-the-fact record was made of the

discussions that occurred during each unrecorded conference and,

as to each, he obtained defense counsel’s assent that he had

adequately described the discussions. By this procedure, the

- 28 -
trial court maintained a sufficient record for appeal.9

2. Constitutionality of Arizona’s method of execution by
lethal injection

¶63 Arizona administers the death penalty “by an

intravenous injection of a substance or substances in a lethal

quantity sufficient to cause death, under the supervision of the

state department of corrections.” A.R.S. § 13-757(A) (2010).

Hargrave argues that Arizona’s method of execution by lethal

injection fails to provide procedural safeguards that ensure a

humane execution and is unconstitutionally cruel and unusual.

¶64 We have rejected the claim that Arizona’s method of

execution by lethal injection automatically constitutes cruel

and unusual punishment. See State v. Van Adams, 194 Ariz. 408,

422 ¶ 55, 984 P.2d 16, 30 (1999). Defendants seeking to

challenge the lethal injection protocol must file a petition

pursuant to Arizona Rule of Criminal Procedure 32. Andriano,

215 Ariz. at 510 n.9, ¶ 62, 161 P.3d at 553 n.9.

III. INDEPENDENT REVIEW

¶65 Because Hargrave’s crimes occurred before August 1,

9
  Hargrave’s counsel also argues that he did not waive his
client’s presence at the unreported bench conferences. Although
proceedings “held outside of the defendant’s presence are
fraught with danger and should be conducted, if at all, only for
valid reasons and only where the record clearly shows that the
defendant has waived his right to be present,” State v.
McCrimmon, 187 Ariz. 169, 171, 927 P.2d 1298, 1300 (1996),
defense counsel acknowledged at one point below that the
conferences Hargrave did not attend addressed only juror
questions to which counsel did not object.
- 29 -
2002, we independently review the aggravating and mitigating

circumstances and assess the propriety of the death sentences.

A.R.S. § 13-755(A) (2010). In conducting independent review,

“we consider the quality and the strength, not simply the

number, of aggravating and mitigating factors.” State v. Roque,

213 Ariz. 193, 230 ¶ 166, 141 P.3d 368, 405 (2006) (quoting

State v. Greene, 192 Ariz. 431, 443 ¶ 60, 967 P.2d 106, 118

(1998)).

A. Aggravating Circumstances

¶66 The jury found three aggravating factors: (1) Hargrave

committed the crime in expectation of pecuniary gain, A.R.S.

§ 13-751(F)(5), (2) the victims were murdered in an especially

cruel manner, id. § 13-751(F)(6), and (3) multiple homicides

were committed during the same criminal act, id. § 13-751(F)(8).

1. A.R.S. § 13-751(F)(5): Pecuniary gain

¶67 A defendant convicted of first degree murder becomes

“death eligible” if the state proves beyond a reasonable doubt

that he “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). Pecuniary gain motivates a

crime “if the expectation of pecuniary gain is a motive, cause,

or impetus for the murder and not merely a result of the

murder.” State v. Lamar, 210 Ariz. 571, 574 ¶ 11, 115 P.3d 611,

614 (2005) (quoting State v. Hyde, 186 Ariz. 252, 280, 921 P.2d
- 30 -
655, 683 (1996)).

¶68 The evidence established the pecuniary gain aggravator

beyond a reasonable doubt. Hargrave and Boggs entered the

restaurant planning to steal money, cash was taken from two cash

registers, an attempt to pry open a third register was

unsuccessful, and credit cards and other items were taken from

the victims.

¶69 Citing State v. Milke, 177 Ariz. 118, 127, 865 P.2d

779, 788 (1993), and State v. Styers, 177 Ariz. 104, 115, 865

P.2d 765, 776 (1993), Hargrave argues that the State did not

establish the pecuniary gain aggravator because conflicting

inferences may be drawn from the evidence. The comparisons to

Milke and Styers are unconvincing. In this case, unlike Milke

and Styers, substantial evidence demonstrates Hargrave’s

financial motivation for the murders. He maintained throughout

his interrogation that robbery was the underlying purpose of the

crime. The State’s allegation of racism as an additional motive

does not detract from the pecuniary gain motive, as pecuniary

gain need be only one of the motives for the murders. See State

v. Boggs, 218 Ariz. 325, 340-41 ¶ 75, 185 P.3d 111, 126-27

(2008).

2. A.R.S. § 13-751(F)(6): Especially cruel

¶70 A defendant is eligible for the death penalty if he

commits first degree murder in “an especially heinous, cruel, or
- 31 -
depraved manner.” A.R.S. § 13-751(F)(6). Only one of the three

manners of killing need be shown to establish the aggravating

circumstance. State v. Clark, 126 Ariz. 428, 436, 616 P.2d 888,

896 (1980). Cruelty requires a showing 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. Trostle, 191 Ariz. 4, 18, 951 P.2d 869, 883

(1997) (citations omitted). Mental anguish “includes a victim’s

uncertainty about her ultimate fate.” State v. Kiles, 175 Ariz.

358, 371, 857 P.2d 1212, 1225 (1993).

¶71 Hargrave argues that the evidence does not prove the

(F)(6) aggravator because he did not actively participate in the

murders and was not present when Boggs shot the victims.

Hargrave’s argument misstates the evidence and minimizes his

participation. In his June 6 interrogation, Hargrave admitted

that he held the freezer door open as the victims were ordered

in at gunpoint, fired the murder weapon in the cooler just

outside of the freezer, assisted in restraining the victims, and

remained in the cooler while the shootings occurred.

¶72 Hargrave compares his case to State v. Soto-Fong, 187

Ariz. 186, 204, 928 P.2d 610, 628 (1996), in which we held that

the state failed to prove the (F)(6) aggravating circumstance

because the record did not establish the events leading up to

the homicides. Unlike the situation in Soto-Fong, ample
- 32 -
evidence supports the finding of cruelty here: Hargrave

admitted that he and Boggs forced the victims to lie down, empty

their pockets, and later march into the freezer with their hands

in the air. In the freezer, Boggs ordered the victims to turn

around and shot them several times in rapid succession. In

contrast to Soto-Fong, the record establishes that the victims

here suffered uncertainty as to their ultimate fate.

¶73 The State also proved beyond a reasonable doubt the

physical cruelty of two of the murders because victims B.A. and

F.J. did not die immediately, but struggled to get help. B.A.

suffered two gunshot wounds to her back, but managed to crawl

from the freezer to the back door of the restaurant. When

police arrived, she was lying on the ground, moaning and begging

for help. F.J. was shot three times in the back, but still

managed to crawl to the phone, dial 911, and “utter[] a few

words.” A trail of his blood leading from the freezer to the

telephone indicated his consciousness after sustaining the

gunshot wounds. This evidence establishes beyond a reasonable

doubt that B.A. and F.J. suffered physical pain, that all three

victims experienced mental suffering, and that Hargrave should

have known that such suffering would occur.

3. A.R.S. § 13-751(F)(8): Other homicides

¶74 To satisfy the A.R.S. § 13-751(F)(8) multiple homicides

aggravating factor, the state must establish that a first degree
- 33 -
murder and at least one other homicide were “temporally,

spatially, and motivationally related, taking place during one

continuous course of criminal conduct.” Dann, 220 Ariz. at 364

¶ 57, 207 P.3d at 617.

¶75 The evidence established this aggravator beyond a

reasonable doubt. The three victims were shot in close

proximity and in rapid succession to facilitate an armed

robbery. The murders therefore had a temporal, spatial, and

motivational relationship that establishes the (F)(8)

aggravator.

B. Mitigating Circumstances

¶76 Hargrave declined to present mitigating evidence at the

penalty phase of the trial. He urges us to consider as

mitigating both his decision to waive presentation of mitigation

evidence and the statutory mitigating circumstances of youth,

impaired mental condition, and relatively minor participation in

the crimes. See A.R.S. § 13-751(G). Hargrave “must prove the

existence of the mitigating circumstances by a preponderance of

the evidence.” Id. § 13-751(C).

1. Lack of mitigation at penalty phase

¶77 Hargrave contends that his decision not to present

mitigation at trial prevents this Court from adequately

reviewing his case. He relies on State v. Cornell, in which the

record did not contain “all of the mitigating evidence and
- 34 -
circumstances that a reasonable investigation and preparation

might have enabled counsel to present to the court and that

might properly have been part of the record.” 179 Ariz. 314,

335-36, 878 P.2d 1352, 1373-74 (1994). In Cornell, however, the

defendant represented himself in the guilt phase of the trial,

and because of his frequent invocation, then waiver, of his

right to represent himself, his sentencing-phase counsel was not

adequately prepared for the sentencing hearing. Id. at 335, 878

P.2d at 1373.

¶78 In contrast, Hargrave’s defense counsel represented him

throughout all phases of the trial. The defense made a

strategic decision not to present mitigation evidence and made a

thorough record regarding the mitigation strategy at the penalty

phase: “[T]his is a decision I have not come to lightly. I

discussed it with . . . several other attorneys and two

mitigation specialists, including my client [and] his family.

Everybody is in[] total agreement about my position.” We accord

defense counsel’s strategic decision to not present mitigation

no weight and conclude that it does not impair our ability to

independently review the death sentence.

2. Age

¶79 Hargrave was twenty-one years old at the time of the

murders. Although youth “is entitled to great weight as a

mitigating circumstance,” State v. Gerlaugh, 144 Ariz. 449, 461,
- 35 -
698 P.2d 694, 706 (1985), we also consider the defendant’s

maturity, judgment, intelligence, and involvement in the crime,

State v. Herrera, 174 Ariz. 387, 398, 850 P.2d 100, 111 (1993).

¶80 We discount age as a mitigating factor when the

defendant had a significant criminal record or actively

participated in the murders. State v. Poyson, 198 Ariz. 70, 81

¶ 39, 7 P.3d 79, 90 (2000). Hargrave was substantially involved

in the armed robbery leading to the murders. He helped plan the

robbery, and his uniform and previous employment provided the

means to enter the restaurant. Once inside, Hargrave assisted

Boggs in restraining the victims and moving them to the freezer

where they were eventually shot, and Hargrave fired the murder

weapon at least once.

¶81 Hargrave also had a significant juvenile criminal

record. By the time he was seventeen, he had already been

adjudicated regarding eleven complaints, including charges for

aggravated assault, burglary, and theft. We therefore give

little weight to Hargrave’s age as a mitigating circumstance.

3. Minor participation

¶82 A mitigating circumstance exists if a “defendant was

legally accountable for the conduct of another . . . but his

participation was relatively minor, although not so minor as to

constitute a defense to prosecution.” A.R.S. § 13-751(G)(3).

Hargrave argues that he was not the shooter and did not intend
- 36 -
to harm any of the victims when he entered the restaurant. The

evidence shows, however, that Hargrave was not a minor

participant. He helped plan and execute the robbery, using his

work uniform to gain entry to the restaurant, even though Boggs

had provided advance notice that he was prepared to shoot the

employees “if it came down to it.” Hargrave has not established

by a preponderance of the evidence the mitigating circumstance

of minor participation. See Bearup, 221 Ariz. at 175 ¶ 63, 211

P.3d at 696 (finding defendant a major participant even though

he did not strike the death blows).

4. Mental impairment

¶83 Hargrave argues that his “capacity to appreciate the

wrongfulness of his conduct or to conform his conduct to the

requirements of law was significantly impaired, but not so

impaired as to constitute a defense to prosecution.” A.R.S.

§ 13-751(G)(1) (listing statutory mitigating circumstance of

impaired mental health). He asks us to consider that the court

originally found him incompetent to stand trial and committed

him to the Arizona State Hospital to restore his competency.

After Dr. Jason Lewis, a psychologist for the Restoration to

Competency Program, concluded that Hargrave was competent to

stand trial and had “malingered symptoms of psychosis and

ignorance of the legal system,” the trial court found that

Hargrave had been restored to competency.
- 37 -
¶84 In various examinations, Hargrave reported different

information regarding his educational background and mental

health history. He claimed to have attended college in some

interviews; in others, he said he had only a GED-level

education. In some interviews, he claimed to have auditory

hallucinations, but did not report this symptom in other

interviews. Dr. Lewis observed that “[t]he gross differences in

the . . . reports of symptoms and history are suggestive of

malingering.” Indeed, all four of the mental health

professionals who evaluated Hargrave found actual malingering or

the possibility of malingering.

¶85 Thus, even if we were to consider this mental health

evidence, we do not find it sufficiently mitigating to call for

leniency.

C. Propriety of the Death Sentences

¶86 The State established the (F)(5) “pecuniary gain”

aggravator, the cruelty prong of the (F)(6) “cruel, heinous, or

depraved” aggravator, and the (F)(8) “multiple murders”

aggravator, which receives “extraordinary weight.” State v.

Hampton, 213 Ariz. 167, 185 ¶ 90, 140 P.3d 950, 968 (2006).

Under the circumstances of this case, we do not find the

mitigating evidence sufficiently substantial to warrant leniency

and affirm the three death sentences imposed by the superior

court. See A.R.S. § 13-755(B).
- 38 -
 IV. CONCLUSION

¶87 For the foregoing reasons, we affirm Hargrave’s

convictions and death sentences, and remand for resentencing on

the burglary conviction.

_______________________________________
Rebecca White Berch, Chief Justice

CONCURRING:

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
W. Scott Bales, Justice

______________________________________
A. John Pelander, Justice

- 39 -
 APPENDIX10

Issues Raised to Avoid Federal Preclusion

For purposes of federal review, Hargrave raises the
following fifteen challenges to the constitutionality of
Arizona’s death penalty scheme to avoid preclusion:

1. The fact-finder in capital cases must be able to
consider all relevant mitigating evidence in deciding whether to
give the death penalty. See Woodson, 428 U.S. 280, 304. The
failure to allow this jury to consider and give effect to all
mitigating evidence in this case by limiting its consideration
to that proven by a preponderance of the evidence is
unconstitutional. U.S. Const. Amends. VIII, XIV; Contra State
v. McGill, 213 Ariz. 147, 161, ¶ 54, 140 P.3d 930, 944 (2006).

2. Aggravating factors under A.R.S. § 13-703(F) are
elements of capital murder and must be alleged in an indictment
and screened for probable cause. The State’s failure to allege
an element of a charged offense in the grand jury indictment —
the aggravating factors making the Defendant death eligible — is
a fundamental defect that renders the indictment
constitutionally defective under U.S. Const. Amends. V, VIII,
XIV; Ariz. Const. Art. II, §§ 1, 4, 13, 15, 23, 24. See United
States v. Chesney, 10 F.3d 641 (9th Cir., 1993); Apprendi v. New
Jersey, 530 U.S. 466 (2000). Contra McKaney v. Foreman, 209
Ariz. 268, 100 P.3d 18 (2004).

3. Ex post facto laws are unconstitutional and
prohibited. U.S. Const. Art. 1, § 10, Clause 1, Ariz. Const.
Art. II, § 25; State v. Noble, 171 Ariz. 171, 173, 829 P.2d
1217, 1219 (1992). Application of the new death penalty to
Defendant constitutes an impermissible ex post facto application
of a new law. Rejected in Ring III, 204 Ariz. at 547, ¶ 23.

4. Allowing victim impact evidence at the penalty phase
violated Defendant’s constitutional rights. U.S. Const. Amends.
V, VI, VIII, XIV; Ariz. Const. Art. II, §§ 1, 4, 13, 15, 23, 24.
Contra Lynn v. Reinstein, 205 Ariz. 186, 68 P.3d 412 (2003);
State ex rel. Thomas v. Foreman, 211 Ariz. 153, 118 P.3d 1117
(App. 2005).

10
The Appendix is taken verbatim from Hargrave’s list of
issues raised to avoid preclusion.
- 40 -
 5. Arizona’s capital sentencing scheme is
unconstitutional because it does not require the State to prove
the death penalty is appropriate or require the jury to find
beyond a reasonable doubt that the aggravating circumstances
outweigh the accumulated mitigating circumstances. Instead,
Arizona’s death penalty statute mandates defendants to prove
their lives should be spared violating U.S. Const. Amends. V,
VI, VIII, XIV; Ariz. Const. Art. II, § 15; Contra State v.
Pandeli, 200 Ariz. 365, at 382, ¶ 92, 26 P.3d 1136, at 1153
(2002), vacated on other grounds, 536 U.S. 953 (2002).

6. Arizona’s death penalty scheme does not sufficiently
channel the sentencing jury’s discretion. Aggravating
circumstances should narrow the class of persons eligible for
the death penalty and reasonably justify the imposition of a
harsher penalty. A.R.S. § 13-703.01 is unconstitutional because
it provides no objective standards to guide the jury in weighing
the aggravating and mitigating circumstances. The broad scope
of Arizona’s aggravating factors encompasses nearly anyone
involved in a murder, violating U.S. Const. Amends. VIII, XIV;
Ariz. Const. Art. II, § 15; Contra Pandeli, 200 Ariz. 365, 382,
¶ 90.

7. The trial court improperly omitted from the penalty
phase instructions words to the effect that jurors may consider
mercy or sympathy in deciding the value to assign the mitigation
evidence. Instead it told them to assign whatever value the
jury deemed appropriate and not to be influenced by mere
“sentiment” or by prejudice in determining these facts.
(I,378A). This error limited the mitigation the jury could
consider violating U.S. Const. Amends. V, VI, VIII, XIV; Ariz.
Const. Art. II, §§ 1, 4, 15, 23, 24; Contra State v. Carreon,
210 Ariz. 54, 70-72, ¶¶ 81-87, 107 P.3d 900, 916-918 (2005).

8. The death penalty is cruel and unusual under any
circumstances and violates U.S. Const. Amends. VIII, XIV; Ariz.
Const. Art. II, § 15; Contra State v. Harrod, 200 Ariz. 309,
320, ¶ 59, 26 P.3d 492, 503 (2001), vacated on other grounds,
536 U.S. 953 (2002).

9. The death penalty is irrational and arbitrarily
imposed, serving no purpose not adequately addressed by life in
prison, in violation of the defendant’s right to due process
under the Fourteenth Amendment to the United States Constitution
and Article 2, §§ 1 and 4 of the Arizona Constitution. Contra
Pandeli, 200 Ariz. 365, 382, ¶ 88. See also State v. Beaty, 158
Ariz. 232, 247, 762 P.2d 519, 534 (1988).
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 10. The prosecutor’s discretion to seek the death penalty
has no standards violating U.S. Const. Amends. VIII, XIV; Ariz.
Const. Art. II, §§ 1, 4, 15. Contra Sansing, 200 Ariz. 347,
361, ¶ 46, vacated on other grounds by Ring II, 536 U.S. at 584.

11. Arizona’s death penalty is applied so as to
discriminate against poor, young, and male defendants in
violation of Ariz. Const. Art. II, §§ 1, 4, 13. Contra Sansing,
200 Ariz. at 361, ¶ 46. The U.S. Supreme Court recognizes,
“drawing the line at 18 is subject to the objections always
raised against categorical rules.” Roper v. Simmons, 543 U.S.
551, 554 (2005). The Roper Court recognized three differences
between juveniles and adults that rendered “suspect any
conclusion that a juvenile falls among the worst offenders” that
the death penalty should be reserved for. 543 U.S. at 570.
Summarily, finding that a juvenile is no longer beset by those
same differences simply because he has reached 18 years
disregards “the concerns expressed in Furman that the penalty of
death not be imposed in an arbitrary or capricious manner.” See
Gregg, 428 U.S. 153. Because “the line at 18” is arbitrary and
capricious, execution by lethal injection of 21-year-old
Christopher is cruel and unusual punishment that is
fundamentally unfair violating U.S. Const. Amends. V, VIII, XIV;
Ariz. Const. Art. II §§ 4, 15, 24.

12. Proportionality review serves to identify which cases
are above the “norm” of first-degree murder, narrowing the class
of defendants who are eligible for death. The absence of
proportionality review of death sentences in Arizona denies
capital defendants due process of law and equal protection
amounting to cruel and unusual punishment in violation of U.S.
Const. Amends. V, VIII, XIV; Ariz. Const. Art. II, § 15; Contra
Harrod, 200 Ariz. at 320, ¶ 65.

13. Arizona’s death penalty unconstitutionally requires
imposition of the death penalty whenever at least one
aggravating circumstance and no mitigating circumstances exist,
in violation of t[sic] U.S. Const. Amends. VIII, XIV; Ariz.
Const. Art. II, § 15. Arizona’s death penalty law cannot
constitutionally presume that death is the appropriate default
sentence. Contra State v. Miles, 186 Ariz. 10, 19, 918 P.2d
1028, 1037 (1996).

14. Arizona’s death penalty scheme is unconstitutional
because it does not require the sentencer to find beyond a
reasonable doubt that aggravating circumstances outweigh the
accumulated mitigating circumstances, violating U.S. Const.
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Amends. V, VIII, XIV; Ariz. Const. Art. II §§ 4, 15. State v.
Poyson, 198 Ariz. 70, 83, 7 P.3d 79, 92 (2000).

15. The death penalty is the irreversible denial of human
rights. The Eighth Amendment “draw’[s] [sic] its meaning from
evolving standards of decency that mark the progress of a
maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958); see
also, Roper, 543 U.S. 551. The international community of
nations has evolved to a state of maturity that abolishes the
death penalty. Today, the majority of nations have abolished
the death penalty. Amnesty International, Facts and Figures on
the Death Penalty (January 1, 2006). The Universal Declaration
of Human Rights, GA Res. 217A (III), U.N. GAOR, 3d Sess. Art. 3,
U.N. Doc. A/810 (1948), provides that “Everyone has the right to
life, liberty, and security of person.” The death penalty
violates the Universal Declaration of Human Rights.
Christopher’s death sentence not only violates the Eighth and
Fourteenth Amendments of the U.S. Constitution but international
law as the majority of civilized nations bar the death penalty.
This Court previously held that the death penalty is not
unconstitutional or violative of international law. State v.
Ross, 180 Ariz. 598, 602, 886 P.2d 1354, 1358 (1994). Hargrave
disagrees.

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