SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-07-0301-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR 2005-138481
RYAN WESLEY KUHS, )
)
Appellant. ) O P I N I O N
_________________________________ )
Appeal from the Superior Court in Maricopa County
The Honorable Paul J. McMurdie, Judge
AFFIRMED
________________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel, Criminal
Appeals/Capital Litigation Section
Susanne Bartlett Blomo, Assistant Attorney General
Attorneys for State of Arizona
MICHAEL S. REEVES, ESQ. Phoenix
By Michael S. Reeves
And
STEPHEN M. JOHNSON, P.C. Phoenix
By Stephen M. Johnson
Attorneys for Ryan Wesley Kuhs
________________________________________________________________
B E R C H, Chief Justice
¶1 A jury convicted Ryan Wesley Kuhs of first degree
burglary and first degree murder and determined that he should
be sentenced to death. In this automatic appeal, Kuhs raises
seven issues.1 Ariz. R. Crim. P. 31.2(b). We have jurisdiction
pursuant to Article 6, Section 5(3) of the Arizona Constitution
and Arizona Revised Statutes (A.R.S.) § 13-4031 (2001).
I. FACTUAL AND PROCEDURAL BACKGROUND2
¶2 In 2005, Ryan Kuhs entered Enrique Herrera’s apartment
and stabbed him while he slept. Herrera awoke and attempted to
defend himself. During the struggle, Kuhs stabbed Herrera
twenty-one times.
¶3 Three residents of the apartment complex saw Kuhs leave
Herrera’s apartment with blood on his shirt and arms. They
entered Herrera’s apartment, saw Herrera lying in a pool of
blood, and called 911. Herrera died later that day after being
taken to the hospital.
¶4 Kuhs went to another apartment, cleaned himself up,
changed clothes, and left the apartment complex with his bloody
clothes in a bag. When he returned later that afternoon, he was
arrested.
¶5 After being given Miranda warnings, Kuhs agreed to talk
to the police and eventually confessed to the killing. Kuhs
said that he went to Herrera’s apartment to confront him about
1
He lists thirteen additional challenges to the
constitutionality of Arizona’s death penalty scheme to avoid
preclusion. Those thirteen claims are appended to this opinion.
2
We view the facts in the light most favorable to sustaining
the verdict. State v. Moore, 222 Ariz. 1, 5 n.1 ¶ 2, 213 P.3d
150, 154 n.1 (2009).
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an argument between the two the previous night.
¶6 The jury convicted Kuhs of first degree burglary and
first degree murder. The jury found five aggravating factors:
(1) a prior conviction for a serious offense based on the first
degree burglary from this prosecution, A.R.S. § 13-751(F)(2)
(Supp. 2009); (2) a second prior conviction for a serious
offense based on a second degree burglary, A.R.S. § 13-
751(F)(2); (3) the especially heinous, cruel, or depraved manner
of the murder, A.R.S. § 13-751(F)(6); (4) the commission of the
murder while on release from prison, A.R.S. § 13-751(F)(7)(a);
and (5) the commission of the murder while on probation for a
prior felony, A.R.S. § 13-751(F)(7)(b).
¶7 The jury found that the mitigation was not
sufficiently substantial to call for leniency and that the death
penalty should be imposed. The court sentenced Kuhs to death
for the first degree murder and to a concurrent term of twenty-
eight years for the burglary.
II. DISCUSSION
A. Guilt Phase
1. Kuhs’s competency
¶8 Kuhs argues that the trial court erred by finding him
competent to stand trial without holding an evidentiary hearing.
We review the trial court’s determination of whether to require
an evidentiary hearing on competency for abuse of discretion.
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See State v. Amaya-Ruiz, 166 Ariz. 152, 162, 800 P.2d 1260, 1270
(1990).
¶9 In January 2006, Kuhs requested a prescreening
examination pursuant to Arizona Rule of Criminal Procedure
11.2(c), alleging that he was experiencing hallucinations.
After that preliminary examination, the court ordered a full
Rule 11 evaluation. See Ariz. R. Crim. P. 11.2(d).
¶10 During the evaluation process, Drs. Jack Potts and
Scott Sindelar independently examined Kuhs and both found him
incompetent to stand trial. They noted that he claimed to
experience auditory and visual hallucinations in which God spoke
to him. They opined, however, that Kuhs could be restored to
competency.
¶11 Based on the doctors’ reports, the trial court found
Kuhs incompetent to stand trial and ordered him committed to the
Maricopa County Correctional Health Services Restoration
Program. The trial court ordered a written report on Kuhs’s
“progress and prognosis.”
¶12 While in the restoration program, Kuhs was evaluated by
Dr. Jason Lewis, who submitted a report concluding that Kuhs had
feigned his earlier reported psychosis and was competent to
stand trial. Dr. Lewis’s report detailed Kuhs’s understanding
of the charges against him as well as the trial process and its
participants. The prosecutor and defense counsel stipulated
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that the court could assess Kuhs’s competency based on Dr.
Lewis’s report. At a July 11, 2006 hearing, the judge found
Kuhs competent to stand trial based on “a review of that [July
4] final report as well as the pleadings filed pursuant to Rule
11.”
¶13 A defendant has a due process “right not to be tried or
convicted while incompetent.” Amaya-Ruiz, 166 Ariz. at 161, 800
P.2d at 1269 (quoting Drope v. Missouri, 420 U.S. 162, 172
(1975)). Arizona Rule of Criminal Procedure 11.2 protects that
right by providing for a prescreening examination and hearing if
reasonable grounds exist to question the accused’s competence.
“Reasonable grounds exist when ‘there is sufficient evidence to
indicate that the defendant is not able to understand the nature
of the proceeding against him and to assist in his defense.’”
Id. at 162, 800 P.2d at 1270 (quoting State v. Borbon, 146 Ariz.
392, 395, 706 P.2d 718, 721 (1985)); see also Ariz. R. Crim. P.
11.1 (prohibiting trial of a person who “is unable to understand
the proceedings against him or her or to assist in his or her
own defense”).
¶14 If the court has determined that an incompetent
defendant is restorable to competency, the court must “order the
person supervising defendant’s court-ordered restoration
treatment to file a report with the court.” Ariz. R. Crim. P.
11.5(d). When the court receives a report that the defendant
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has become competent to stand trial, “[t]he court shall hold a
hearing to redetermine the defendant’s competency” at which the
parties may “introduce other evidence regarding the defendant’s
mental condition” or “submit the matter on the experts’
reports.” Id. R. 11.6(a), 11.5(a).
¶15 Kuhs complains that he was denied the hearing required
by Rules 11.5 and 11.6 because the court allowed “the parties
[to] stipulate[] to competency,” and by doing so, the court
violated its duty “to conduct a competency hearing” and “to make
an independent inquiry to determine [whether Kuhs] was competent
to stand trial.”
¶16 Counsel, however, did not stipulate to competency.
Instead, they stipulated to the admissibility of Dr. Lewis’s
report and presented no other evidence regarding Kuhs’s
competency. In finding that Kuhs had been restored to
competency, the trial court stated that it had reviewed Dr.
Lewis’s “final report as well as the pleadings filed pursuant to
Rule 11.” Because the same judge had presided over the initial
Rule 11 proceeding, the court was familiar with the reports
previously submitted by Drs. Potts and Sindelar. On this
record, we conclude that the trial court did not abuse its
discretion in making its competency determination without
holding an evidentiary hearing.
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2. Denial of motion for mistrial
¶17 During the State’s guilt phase closing argument, the
victim’s stepmother cried audibly. After the prosecutor
concluded her closing argument, Kuhs moved for a mistrial, which
the court denied. Kuhs now claims that the court erred in
denying his motion.
¶18 We review the denial of a motion for mistrial for abuse
of discretion. State v. Hoskins, 199 Ariz. 127, 142 ¶ 52, 14
P.3d 997, 1012 (2000). “This deferential standard of review
applies because the trial judge is in the best position to
evaluate ‘the atmosphere of the trial, the manner in which the
objectionable statement was made, and the possible effect it had
on the jury and the trial.’” State v. Bible, 175 Ariz. 549,
598, 858 P.2d 1152, 1201 (1993) (quoting State v. Koch, 138
Ariz. 99, 101, 673 P.2d 297, 299 (1983)).
¶19 Although Kuhs characterizes the disruption as a
“raucous outburst,” the record does not contain any direct
evidence of the disruptiveness of the incident. During the
State’s closing argument, the court asked the prosecutor to
pause, apparently in reaction to the occurrence. The only other
reference to the event in the record is the discussion between
the court and counsel held outside the jury’s presence after the
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prosecutor’s closing argument.3
3
After the State’s closing argument, the following exchange
took place:
DEFENSE COUNSEL: I think we need to address what
happened right at the tail end of the State’s close,
their first close. I think we fought a pretty clean
trial, but that outburst at the end of the State’s
close — I know we tell the jury not to be swayed by
sympathy or passion, but then we have a wailing woman
at the end of the State’s close.
I think a mistrial is in order now. If the Court
is not inclined to grant that mistrial, then I would
ask that you instruct the victims — I understand this
is a trying time for them, but if they cannot control
themselves, that they need to leave the courtroom.
THE COURT: All right. Does the State wish to be
heard?
THE STATE: Your Honor, obviously the State didn’t
know that was going to happen.
The victims [the deceased’s father and
stepmother] have generally come to trial. They have
not shown one iota of inappropriate or even emotion at
all, including when [the stepmother] testified.
So it’s not too hard to understand why Ricky’s
stepmother would become extremely upset upon seeing
this. . . . [M]y victim advocate[] has spoken to the
family, and they understand the importance of keeping
their composure and have agreed if they cannot do
that, they will leave the court.
THE COURT: All right. Just so the record is clear, I
agree with the assessment that the next of kin, who
were in my line of sight throughout the entire
proceedings, have not acted in any inappropriate
fashion whatsoever.
There was a point towards the end of the State’s
opening argument where one of them burst into tears.
I immediately instructed the bailiff to escort the
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¶20 On this record, we cannot conclude that the trial court
inaccurately assessed the situation or abused its discretion in
denying Kuhs’s motion for mistrial. We previously have found
that more substantial emotional outbursts in the jury’s presence
did not mandate a mistrial. In State v. Bible, 175 Ariz. at
597, 858 P.2d at 1200, for example, as the father of a murdered
girl walked out of the courtroom, he referred to the defendant
as “[t]hat f[***]ing asshole” within earshot of the judge and
jury. The judge admonished the jury to disregard the outburst,
id., and denied the defendant’s motion for mistrial, explaining:
“I don’t think it’s really the substance for a mistrial. I
don’t think there is any doubt in the jury’s mind about how [the
victim’s father] feels about [the defendant].” Id. at 597–98,
858 P.2d at 1200–01 (first alteration in original). We
emphasized that “the victim’s father had taken no action at
trial warranting reprimand or comment prior to his outburst” and
“[n]o information was conveyed other than the father’s animosity
toward Defendant, a feeling that could hardly have surprised the
jurors.” Id. at 599, 858 P.2d at 1201.
¶21 Similarly, Herrera’s stepmother’s tears did not convey
any new information to the jury. When she “burst into tears,”
she was immediately escorted from the courtroom. The court had
woman out of the courtroom, which she did. I don’t
think a mistrial is appropriate at this point, so the
motion for mistrial is denied.
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no indication before the incident that she would respond in such
a fashion. She had behaved appropriately throughout the trial,
even during her own testimony. Finally, the trial court took
immediate and appropriate action to prevent repetition of the
incident by addressing the gallery outside the jury’s presence
and directing observers to avoid future outbursts that might
cause a mistrial. Under these circumstances, the trial court
did not abuse its discretion in denying Kuhs’s motion for
mistrial.
3. Sufficiency of the evidence to support the felony-
murder conviction
¶22 The jury found Kuhs guilty of felony murder, for which
first degree burglary served as the predicate offense. See
A.R.S. § 13-1105(A)(2) (2001) (defining felony murder as
occurring when “in the course of and in furtherance of [a
defined burglary] offense . . . , the person . . . causes the
death of any person”). The burglary charge was predicated on
Kuhs’s entry of the apartment with the intent to assault Herrera
with a knife. See A.R.S. § 13-1508(A) (defining first degree
burglary as occurring if a person commits second or third degree
burglary “and knowingly possesses . . . a deadly weapon or a
dangerous instrument in the course of committing any theft or
any felony”).
¶23 Kuhs contends that the State presented insufficient
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evidence that he entered Herrera’s apartment with the intent to
commit aggravated assault. Instead, Kuhs argues, he entered
Herrera’s apartment intending to commit murder.4
¶24 We review the sufficiency of the evidence by
determining whether substantial evidence supports the jury’s
finding, “viewing the facts in the light most favorable to
sustaining the jury verdict.” State v. Roseberry, 210 Ariz.
360, 368–69 ¶ 45, 111 P.3d 402, 410–11 (2005). “Substantial
evidence is proof that ‘reasonable persons could accept as
adequate . . . to support a conclusion of defendant’s guilt
beyond a reasonable doubt.’” State v. Bearup, 221 Ariz. 163,
167 ¶ 16, 211 P.3d 684, 688 (2009) (alteration in original)
(quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53
(1980)).
¶25 The State introduced evidence that Kuhs entered
Herrera’s apartment uninvited and armed with a knife. In his
statement to police, Kuhs said he went to the apartment to talk
4
Kuhs argues that he “only entered the apartment to commit
murder,” not to assault Herrera. He asserts that “one cannot
commit felony murder when one committed burglary in order to
commit murder.” We rejected this argument in State v. Moore,
reasoning that it would “be anomalous to conclude that first-
degree murder occurs if a burglary with intent to assault
results in death but not if the burglary is based on the more
culpable intent to murder.” 222 Ariz. at 13-14 ¶¶ 57–63, 213
P.3d at 162–63 (concluding that proof of entering with intent to
commit murder suffices to establish felony murder through
burglary). Thus, even if Kuhs’s factual argument were correct,
his legal argument would fail.
- 11 -
to Herrera about an altercation they had the preceding night.
Kuhs explained that he thought Herrera wanted to fight him and
that Herrera was “calling [him] weak.” In a prolonged struggle,
Kuhs inflicted several non-fatal stab wounds before delivering
the wound that caused Herrera to collapse. Thus, although Kuhs
claims to have entered with the intent to murder Herrera, the
evidence amply supported the jury’s finding that he entered
Herrera’s apartment intending to commit aggravated assault.
4. Denial of motion to strike jurors for cause
¶26 Kuhs argues that the trial court erred by failing to
strike two potential jurors for cause. Neither juror was seated
on the jury. Because the State peremptorily struck one juror,
Kuhs suffered no prejudice from the trial court’s refusal to
strike that juror for cause. We therefore address only the
juror struck by Kuhs.
¶27 In State v. Hickman, 205 Ariz. 192, 201 ¶¶ 39, 41, 68
P.3d 418, 427 (2003), this Court held that when defense counsel
peremptorily strikes a juror, we will not find reversible error
based on the trial court’s refusal to remove that juror for
cause unless the resulting jury was not fair and impartial.
Kuhs does not claim that the jury that decided his case was not
fair and impartial. We therefore conclude, as we did in
Hickman, that no prejudicial error has occurred. Id.; see also
State v. Medina, 193 Ariz. 504, 510–11 ¶¶ 16–19, 975 P.2d 94,
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100–01 (1999) (on facts similar to those in Kuhs, finding no
error in judge’s refusal to strike juror).
B. Penalty Phase
1. Jury coercion
¶28 Kuhs makes two jury coercion arguments. First, he
argues that the trial judge erred in rejecting the jury’s
“verdict” that it could not unanimously decide on a sentence of
life or death. Second, he argues that the trial court coerced
the jury verdict by giving an impasse instruction after the jury
had twice indicated that it was deadlocked.
¶29 At the beginning of the penalty phase, the court
instructed the jury as follows:
If you unanimously find that the mitigation is
not sufficiently substantial to call for leniency, you
must return a verdict of death.
Any verdict of death or life imprisonment must be
unanimous.
If you unanimously find that no mitigation
exists, then you must return a verdict of death. If
you unanimously find that mitigation exists, each one
of you must individually weigh that mitigation in
light of the aggravating circumstances already found
to exist, and if you unanimously find that the
mitigation is not sufficiently substantial to call for
leniency, you must return a verdict of death.
If you unanimously find that mitigation exists
and that it is sufficiently substantial to call for
leniency, you must return a verdict of life. If you
cannot unanimously agree on the appropriate sentence,
your foreperson shall tell the judge.
¶30 After receiving the case, the jury deliberated for less
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than an hour before being excused for the day. The jury
deliberated for several hours on the second day and during the
morning of the third day. On returning from lunch, the jury
sent a note to the judge stating: “We, the jury, cannot
unanimously agree on the appropriate sentence.”
¶31 The trial court immediately called counsel. Both
agreed that the judge should give the following instruction,
which was given to the jury within five minutes of receiving the
jury’s note: “Please continue to deliberate until four o’clock.
. . . If you’re still deadlocked, we’ll bring you back in the
courtroom at 10 tomorrow morning.”5
¶32 The jury then deliberated until the end of the court
day. When the jury recessed, the bailiff delivered a second
note to the judge that stated, “We are still deadlocked
following our deliberation.” The court dismissed the jury for
the day.
¶33 The next morning, the trial court discussed the second
impasse note with counsel. The court suggested giving the
impasse “instruction suggested by [Rule 22.4], and approved by
the Arizona Supreme Court in [State v.] Andriano,” 215 Ariz.
5
The judge initially wanted the jurors to continue to
deliberate and return to the courtroom at 4:00 p.m. if they
remained deadlocked. One of Kuhs’s attorneys, however, could
not return that afternoon. After additional discussion with
counsel, it was agreed to address the jury the next morning at
10:00 a.m.
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497, 508-09 ¶ 54, 161 P.3d 540, 551-52 (2007).6 Neither the
State nor defense counsel objected. Defense counsel stated as
follows: “Judge, not that I have an objection, but I just don’t
want this to be a battle in futility. If they’re locked now, I
don’t want them to go back there and get into a fist fight. If
it’s going to be a situation where it’s just not going to
happen, I think we should know that now.”
The court agreed:
And I don’t disagree with what you said. The
instruction actually asks them to write us a kind of a
note, a detailed note, to say, “How could we help
you?” And if they send me back a note, that says,
“You can’t,” then it’s over.
. . . .
I really want them to try to see if there’s
something we can’t do to help them break. . . . I
don’t know what the split is, I don’t know anything
about it. My suggestion is, we send the instruction
in, see what we get out. I don’t disagree with you.
I’m not going to let them sit there for a week.
Defense counsel approved the court’s approach.
¶34 At 10:35 a.m., the court delivered the impasse
instruction to the jury and deliberations continued. At 3:28
that afternoon, the jury announced its death penalty verdict.
6
The instruction is not in the record. Both parties agree,
however, that the court delivered an instruction that followed
the language of the sample instructions suggested in Rule 22.4
and approved by this Court in Andriano, 215 Ariz. at 508-09
¶ 54, 161 P.3d at 551-52 (instruction); id. at 510 ¶ 60, 161
P.3d at 553 (court approval of instruction). Kuhs concedes that
the language of the impasse instruction given was not coercive.
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a. Initial penalty-phase instruction
¶35 Kuhs argues that the instruction to the jury at the
beginning of the penalty phase gave the jurors three distinct
choices: (1) return a unanimous verdict calling for a life
sentence; (2) return a unanimous verdict calling for a death
sentence; or (3) inform the judge that the jury could not
unanimously agree on the appropriate sentence. Kuhs bases his
argument on the last sentence of the initial instruction, which
read, “[i]f you cannot unanimously agree on the appropriate
sentence, your foreperson shall tell the judge.”
¶36 Kuhs maintains that by sending two notes stating that
they were deadlocked, the jurors were informing the court that
they had chosen the third option and made a final decision that
they could not unanimously agree on a sentence. Kuhs therefore
contends that sending the jurors back twice to deliberate — once
directing them to deliberate until 4:00 p.m. and once with an
Andriano instruction — constituted coercion.
¶37 We review de novo whether the court misinstructed the
jurors. See State v. Zaragoza, 221 Ariz. 49, 53 ¶ 15, 209 P.3d
629, 633 (2009). We will not reverse a conviction unless the
instructions, taken as a whole, misled the jurors. Id.
¶38 Kuhs focuses entirely on one sentence from an
instruction given at the beginning of the penalty phase. After
closing arguments in the penalty phase, just before the start of
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deliberations, however, the court again instructed the jury.
This time the trial court focused on how the jury should decide
on a verdict:
Ladies and gentlemen of the jury, the case is now
submitted to you for decision. . . .
You will be given one form of verdict. It reads
as follow[s] . . . :
We, the jury, duly empaneled and sworn in the
above-entitled action, upon our oaths, do unanimously
find, having considered all of the facts and
circumstances, that the defendant should be sentenced
to, and there’s a line for life or a line for death.
(Emphasis added.) Thus, just before deliberations, the jurors
were clearly instructed they had two choices: a life sentence
or a death sentence.
¶39 Kuhs contends that, to avoid confusion, the court
should have also instructed the jurors that, “if you cannot
agree, then we will give you further instructions.” But Kuhs
did not request such an instruction, so the question is whether
the instructions given so misstated the law or misled the jury
as to constitute fundamental error. We do not find that the
initial instruction either misled the jury as to its duty or
required the court to discharge the jury, without giving any
further instruction, once the jurors indicated that they could
not unanimously agree on a sentence. After reviewing all of the
penalty-phase instructions, including the specific guidance
provided just before the jury retired to deliberate, we conclude
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that the instructions appropriately informed the jury of the
verdict and sentencing options.
b. Sending the jury back to deliberate after two
separate impasse or deadlock notes
¶40 Kuhs argues that the trial court also erred in giving
the Andriano instruction after receiving a second impasse note.
Although he made no contemporaneous objection, Kuhs now argues
that the court should instead have released the jury. Kuhs
relies on A.R.S. § 13-752(K) (Supp. 2009), which requires that,
“[a]t the penalty phase, if . . . the jury is unable to reach a
verdict, the court shall dismiss the jury and shall impanel a
new jury.”
¶41 The judge, however, need not blindly accept the jury’s
indication of an impasse. The trial judge retains authority to
assist a jury that has reached an impasse. Rule 22.4 of the
Arizona Rules of Criminal Procedure, for example, explicitly
permits the trial court to assist a deadlocked jury. It
provides that, “[i]f the jury advises the court that it has
reached an impasse,” the court may ask the jurors if the court
or counsel can assist them. Id.; see also Andriano, 215 Ariz.
at 508-09 ¶ 60, 161 P.3d at 551-52 (noting that court may assist
jury that has indicated a need for help).
¶42 We review a trial court’s response to jurors for an
abuse of discretion. See, e.g., State v. Ramirez, 178 Ariz.
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116, 126, 871 P.2d 237, 247 (1994). In determining whether an
abuse has occurred and whether the abuse coerced the jury’s
verdict, we examine “the actions of the judge and the comments
made to the jury based on the totality of the circumstances and
attempt[] to determine if the independent judgment of the jury
was displaced.” State v. Huerstel, 206 Ariz. 93, 97 ¶ 5, 75
P.3d 698, 702 (2003).
¶43 In reviewing coercion claims, we have focused on
whether the judge knew the numerical split among the jurors.
See, e.g., State v. McCrimmon, 187 Ariz. 169, 172, 927 P.2d
1298, 1301 (1996) (calling knowledge of the jury’s numerical
division “an important factor when considering the totality of
the circumstances”); State v. McCutcheon, 150 Ariz. 317, 320,
723 P.2d 666, 669 (1986) (noting that “[w]hen the numerical
division is known, particularly if the division is lopsided,
encouraging the jury to decide can amount to coercion”). We
have also found the length of time that the jury has deliberated
when the trial court delivers an impasse instruction to be
important in determining coercion. See Huerstel, 206 Ariz. at
99 ¶ 17, 75 P.3d at 704 (determining that three days of
deliberations following a three-week trial “did not clearly
signal that this jury had reached an impasse”).
¶44 In this case, these factors do not indicate coercion.
The trial judge did not know the numerical division of the jury
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or ask the cause of the deadlock. And the time the jury had
deliberated before sending its impasse note was relatively
brief. When the jury sent its first impasse note to the court,
it had deliberated for approximately twelve hours, including
lunch periods. Approximately three hours after being instructed
to continue deliberations, the jury delivered the second impasse
note to the court. The impasse instruction was given because
the jury had indicated that it was deadlocked, not as an
anticipatory measure motivated by the jury split or the length
of the deliberations.
¶45 Kuhs argues that this case is governed by State v.
Huerstel, in which we stated that a trial court may violate
Arizona Rule of Criminal Procedure 22.4 by giving an impasse
instruction before the jury has given an “affirmative
indication” that it needs help. 206 Ariz. at 99 ¶ 17, 75 P.3d
at 704. Kuhs argues that, as in Huerstel, the jury here never
affirmatively indicated a need for assistance.
¶46 In Huerstel, after the jury deliberated for
approximately three days without giving any indication that it
was at an impasse, the trial judge, over counsel’s objection,
gave the jury an impasse instruction. Id. at 97-98 ¶ 8, 75 P.3d
at 702-03. In contrast, Kuhs’s jury sent two notes
affirmatively indicating that it was at an impasse, and counsel
did not object to the instruction or to the court’s proposed
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course of action.
¶47 Huerstel is distinguishable in other ways as well. In
Huerstel, our conclusion that the court coerced the jury verdict
was based not only on the trial court’s issuance of an impasse
instruction without an affirmative indication from the jury that
it had reached an impasse.7 We also relied heavily on the fact
that the trial court knew the numerical division of the jurors
and asked the holdout juror for clarification, which we found
improperly pressured one juror to reconsider his position. Id.
at 98, 101 ¶¶ 12, 25, 75 P.3d at 703, 706. In Kuhs’s case, no
such circumstances occurred.
¶48 We review the trial court’s actions by examining the
totality of the circumstances. See id. at 97–101 ¶¶ 5–25, 75
P.3d at 702–06. The record reflects that the experienced trial
judge communicated with and sought approval from counsel each
time before interacting with the jury. During these
communications, not only did neither party object, but both the
prosecutor and defense counsel affirmatively approved the trial
court’s proposed instructions and course of action. Immediately
after receiving the first note from the jury, the judge
7
In Huerstel, after finding that the trial court’s premature
issuance of an impasse instruction violated Rule 22.4, we
concluded that “standing alone, the court’s premature giving of
the instruction recommended by the comment to Rule 22.4 does not
rise to the level of reversible error.” 206 Ariz. at 100 ¶ 18,
75 P.3d at 705.
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contacted all counsel and suggested that he would tell the jury
to “[p]lease continue to deliberate until four o’clock. . . .
If you’re still deadlocked, we’ll bring you back in the
courtroom at 10 tomorrow morning.” The prosecutor responded,
“Sure, that’s fine, Judge,” and defense counsel replied, “I
don’t have any problem with that.”
¶49 The next day, after the judge had received a second
note from the jury indicating deadlock, he told counsel that he
intended to give the jurors “the instruction suggested by Rule
[22.4] and approved by the Arizona Supreme Court in Andriano.”
The State did not object, nor did Kuhs’s counsel, who responded,
“not that I object . . . to the instruction, but if it’s going
to be a . . . futile attempt, I would hate to send them back in
there and get things even more cantankerous.” The trial court
agreed with defense counsel and acknowledged that if, upon
receiving the impasse instruction, the jury decided there was
nothing that the court could do to help, then the court would
declare the case “over.” Defense counsel then approved the
court’s proposed course of action.
¶50 On this record, we cannot find an abuse of discretion.
Although we do not find the trial court’s actions coercive in
this case, we caution that, with less careful instruction and
absent defense counsel’s approval of the court’s proposed
actions, impermissible coercion might well be found when a jury
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twice indicates a deadlock. The penalty phase of a capital case
is unique. Unlike any other part of the trial, the jury’s
determination that a particular mitigating circumstance exists
need not be unanimous, A.R.S. § 13-751(C) (Supp. 2009), and
whether to impose the death penalty is based on “each juror’s
individual, qualitative evaluation of the facts of the case, the
severity of the aggravating factors, and the quality of any
mitigating evidence.” State ex rel. Thomas v. Granville, 211
Ariz. 468, 472 ¶ 17, 123 P.3d 662, 666 (2005). Because of the
individual nature of the penalty determination, there is more
cause for concern that jurors may be coerced rather than
convinced to change their views. Therefore, we caution trial
courts to exercise special care, as did the court here, when
faced with circumstances similar to those presented in this
case.
2. Jury instructions regarding sympathy
¶51 During the guilt phase of the trial, the jury was
instructed that it “must not be influenced by sympathy or
prejudice.” At the aggravation phase, the court instructed that
“[i]n deciding whether an aggravating circumstance exists,
you’re not to be swayed by mere sentiment, conjecture, sympathy,
passion, prejudice, public opinion, or public feeling.”
¶52 Kuhs contends that these guilt- and aggravation-phase
instructions resulted in an improperly instructed penalty-phase
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jury because these earlier instructions could have led the jury
to disregard sympathy during its penalty-phase deliberations.
Because Kuhs did not object at trial, we review Kuhs’s claim for
fundamental error. See State v. Valenzuela, 194 Ariz. 404, 405
¶ 2, 984 P.2d 12, 13 (1999).
¶53 To avoid confusing the jury regarding the applicable
instructions, at the penalty phase the court destroyed all of
the earlier jury instructions, without objection by either side.
The court then issued new instructions, which included the
following:
You must not be influenced at any point in these
proceedings by conjecture, passion, prejudice, public
opinion, or public feeling. Do not be swayed by mere
sympathy not related to the evidence presented during
the penalty phase.
. . . .
Mitigating circumstances are any factors that are a
basis for a life sentence instead of a death sentence,
including any sympathetic or other aspect of the
defendant’s character, propensity, history or record, or
circumstances of the offense.
Mitigating circumstances are not an excuse or
justification for the offense, but are factors that, in
fairness or mercy, may be considered by you as
extenuating or reducing the degree of defendant’s moral
culpability or blameworthiness.
. . . You must consider and give effect to all
mitigating circumstances that have been raised by any
aspect of the evidence. You must disregard any jury
instruction given to you at any other phase of this
trial that conflicts with this principle.
(Emphasis added.)
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¶54 “The Eighth and Fourteenth Amendments of the United
States Constitution require that the sentencer in a capital case
‘not be precluded from considering, as a mitigating factor, any
aspect of a defendant’s character or record and any of the
circumstances of the offense that the defendant proffers as a
basis for a sentence less than death.’” State v. Carreon, 210
Ariz. 54, 70 ¶ 83, 107 P.3d 900, 916 (2005) (emphasis omitted)
(quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)). Kuhs
argues that if the jurors remembered the guilt- and aggravation-
phase instructions and focused on them rather than the penalty-
phase instructions they had just been given, they might have
thought they were precluded from considering sympathy.
¶55 We presume that the jurors follow instructions. See
State v. Velazquez, 216 Ariz. 300, 312 ¶ 50, 166 P.3d 91, 103
(2007) (citing State v. Newell, 212 Ariz. 389, 403 ¶ 68, 132
P.3d 833, 847 (2006)). Kuhs does not provide any reason for us
to conclude that the jurors chose to follow the earlier jury
instructions, especially in light of the court’s destruction of
the earlier instructions, provision of new written instructions
for the penalty phase, and direction to the jurors to disregard
any “jury instructions given to you at any other phase of this
trial that conflict [with each juror’s duty to consider all
mitigating evidence].” The penalty-phase instructions
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appropriately instructed the jury.
¶56 But even if the court had not informed the jurors at
the penalty phase to disregard the guilt-phase instructions on
sympathy, such inaction would not constitute fundamental error.
See Carreon, 210 Ariz. at 71 ¶ 87, 107 P.3d at 917.
3. Constitutionality of Arizona’s death-by-lethal-
injection statute
¶57 The death penalty in Arizona is “inflicted 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) (Supp.
2009). Kuhs argues that § 13-757(A) is unconstitutionally vague
because it “does not establish a detailed protocol of chemicals
to be used . . . [or] standards for the training and expertise
of persons . . . conducting the executions.”
¶58 We have previously found that Arizona’s death penalty
statute is not unconstitutionally vague in prescribing lethal
injection as the method for imposing the death sentence.
Andriano, 215 Ariz. at 510 ¶¶ 61-62, 161 P.3d at 553. We have
also held that a challenge to the protocol to be used during a
lethal injection must be made by petition filed pursuant to
Arizona Rule of Criminal Procedure 32. Id. ¶ 62.
III. REVIEW OF SENTENCE
¶59 Because Kuhs’s offense occurred after August 1, 2002,
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we review the jury’s finding of aggravating circumstances and
verdict of death for abuse of discretion. A.R.S. § 13-756
(Supp. 2009). Although Kuhs did not argue that the jury abused
its discretion, our review is mandatory. State v. Morris, 215
Ariz. 324, 340 ¶ 76, 160 P.3d 203, 219 (2007).
A. Aggravating Circumstances
¶60 We first consider the jury’s finding of aggravating
circumstances. We will uphold a jury decision “if there is ‘any
reasonable evidence in the record to sustain it.’” Id. at 341
¶ 77, 160 P.3d at 220 (quoting State v. Veatch, 132 Ariz. 394,
396, 646 P.2d 279, 281 (1982)).
¶61 The jury found five aggravating circumstances beyond a
reasonable doubt: (1) Kuhs was convicted of the first degree
burglary from this prosecution, A.R.S. § 13-751(F)(2) (Supp.
2009); (2) he had a previous conviction for a serious offense —
a second degree burglary charge, A.R.S. § 13-751(F)(2); (3) he
committed the murder in an especially heinous, cruel, or
depraved manner, A.R.S. § 13-751(F)(6); (4) he committed the
murder while on release from prison, A.R.S. § 13-751(F)(7)(a);
and (5) he committed the murder while on probation for a prior
felony, A.R.S. § 13-751(F)(7)(b).
¶62 The only aggravator that Kuhs contested at trial was
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whether the murder was especially cruel.8 To prove cruelty, the
State must prove “that the manner of death caused the victim to
suffer mental and physical anguish and the defendant knew or
should have known that suffering would occur.” State v. Cañez,
205 Ariz. 620, 624 ¶ 14, 74 P.3d 932, 936 (2003) (internal
citation and quotation marks omitted). The State established
special cruelty by showing that Herrera suffered significant
pain before his death. Not only was he stabbed several times,
but he ultimately died by bleeding to death while choking on his
own blood. Herrera had ample opportunity not only to feel pain,
but also to contemplate his impending death. After the final
stab wound to the head, Herrera was not immediately unconscious,
but lay immobile in a pool of his blood. Kuhs left Herrera
alive and dying after the fight and took no action to alleviate
his suffering. We conclude that the jury did not abuse its
discretion in finding that the State proved the (F)(6)
aggravator beyond a reasonable doubt.
B. Propriety of the Death Sentence
¶63 We also must consider whether the jury abused its
discretion in determining that death is the appropriate
8
The jury plainly did not abuse its discretion in finding
the (F)(2) or (F)(7) aggravators. The State properly used the
burglary conviction from this case and a prior burglary
conviction to establish the (F)(2) aggravating factors, see
A.R.S. § 13-751(F)(2), and proved that Kuhs committed this
murder while on release from prison and serving probation for a
prior offense, see A.R.S. § 13-751(F)(7).
- 28 -
sentence. Although Kuhs presented mitigation evidence, the jury
found the mitigation not sufficiently substantial to call for
leniency. See A.R.S. § 13-751(E). “[W]e will not reverse the
jury’s decision so long as any reasonable jury could have
concluded that the mitigation established by the defendant was
not sufficiently substantial to call for leniency.” Morris, 215
Ariz. at 341 ¶ 81, 160 P.3d at 220.
¶64 Kuhs contended that the crime resulted from poor
impulse control caused by ADHD or antisocial personality
disorder. Kuhs was relatively young (twenty-one) when the
murder occurred, he grew up in a poor family, and he was abused
at least once at age nine by his mother’s boyfriend. The record
also contains some evidence of remorse and testimony from which
the jury could have found that Kuhs was under the influence of
methamphetamine, marijuana, or alcohol during the attack,
although he was not so impaired as to preclude criminal
responsibility.
¶65 The mitigation in this case, however, was not
compelling. Kuhs’s alleged mental disorder is linked to the
incident itself only insofar as it might have made Kuhs more
impulsive. And Kuhs’s childhood was not so difficult or abusive
that it mitigates his actions in committing this murder.
Moreover, there was evidence that Kuhs possessed average or
above average intelligence. Under the highly deferential
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standard of review, we cannot conclude that the jury abused its
discretion in not finding the mitigation sufficiently
substantial to call for leniency and instead rendering a verdict
of death in this case.
IV. CONCLUSION
¶66 For the foregoing reasons, we affirm Kuhs’s conviction
and death sentence.
_______________________________________
Rebecca White Berch, Chief Justice
CONCURRING:
_______________________________________
Andrew D. Hurwitz, Vice Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
W. Scott Bales, Justice
_______________________________________
A. John Pelander, Justice
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APPENDIX9
Issues Raised to Avoid Federal Preclusion
For purposes of federal review, Kuhs raises the following
thirteen challenges to the constitutionality of Arizona’s death
penalty scheme to avoid preclusion:
1. The death penalty is cruel and unusual under any
circumstances and violates the Eighth and Fourteenth Amendments
to the United States Constitution and Article 2, § 15 of the
Arizona Constitution. State v. Harrod, 200 Ariz. 309, 320, 26
P.3d 492, 503 (2001).
2. The death penalty is imposed arbitrarily and
irrationally in Arizona in violation of the Eighth and
Fourteenth Amendments to the United States Constitution and
Article 2, § 15 of the Arizona Constitution, as well as
Appellant’s right to due process under the Fourteenth Amendment
to the United States Constitution and Article 2, § 4 of the
Arizona Constitution. State v. Beaty, 158 Ariz. 232, 762 P.2d
519 (1988).
3. Application of the death penalty on the facts of this
case would constitute cruel and unusual punishment in violation
of the Eighth and Fourteenth Amendments to the United States
Constitution and Article 2, §§ 1, 4, and 15 of the Arizona
9
The Appendix is taken verbatim from Kuhs’s list of issues
raised to avoid preclusion.
- 31 -
Constitution.
4. The prosecutor’s discretion to seek the death penalty
has no standards and therefore violates the Eighth and
Fourteenth Amendments to the United States Constitution and
Article 2, §§ 1, 4, and 15 of the Arizona Constitution. State
v. Sansing, 200 Ariz. 347, 361, 26 P.3d 1118, 1132 (2001).
5. Arizona’s death penalty is applied so as to
discriminate against poor, young, and male defendants in
violation of Article 2, §§ 1, 4, and 13 of the Arizona
Constitution. Sansing, 200 Ariz. at 361, 26 P.3d at 1132.
6. The absence of proportionality review of death
sentences by Arizona courts denies capital defendants due
process of law and equal protection and amounts to cruel and
unusual punishment in violation of the Fifth, Eighth, and
Fourteenth Amendments to the United States Constitution and
Article 2, § 15 of the Arizona Constitution. Harrod, 200 Ariz.
at 320, 26 P.3d at 503. Proportionality review serves to
identify which cases are above the “norm” of first-degree murder
thus narrowing the class of defendants who are eligible for the
death penalty.
7. Arizona’s capital sentencing scheme is
unconstitutional because it does not require that the State
prove that the death penalty is appropriate. Failure to require
this proof violates the Fifth, Eighth, and Fourteenth Amendments
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to the United States Constitution and Article 2, § 15 of the
Arizona Constitution. State v. Ring, 200 Ariz. 267, 284, 25
P.3d 1139, 1156 (2001) (Ring I), rev’d on other grounds by Ring
v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 2443 (2002).
8. A.R.S. § 13-703.01 provides no objective standards to
guide the sentencing judge in weighing the aggravating and
mitigating circumstances and therefore violates the Eighth and
Fourteenth Amendments of the United States Constitution and
Article 2, § 15 of the Arizona Constitution. State v. Pandeli,
200 Ariz. 365, 382, 26 P.3d 1136, 1153 (2001).
9. Arizona’s death penalty scheme is unconstitutional
because it does not require the sentencer to find beyond a
reasonable doubt that the aggravating circumstances outweigh the
accumulated mitigating circumstances, in violation of the Fifth,
Eighth, and Fourteenth Amendments to the United States
Constitution and Article 2, §§ 4 and 15 of the Arizona
Constitution. State v. Poyson, 198 Ariz. 70, 83, 7 P.3d 79, 92
(2000).
10. A.R.S. § 13-703.01 does not sufficiently channel the
sentencer’s [sic]. Aggravating circumstances should narrow the
class of persons eligible for the death penalty and reasonably
justify the imposition of a harsher penalty. The broad scope of
Arizona’s aggravating factors encompasses nearly anyone involved
in a murder, in violation of the Eighth and Fourteenth
- 33 -
Amendments to the United States Constitution and Article 2, § 15
of the Arizona Constitution. Pandeli, 200 Ariz. at 382, 26 P.3d
at 1153.
11. Execution by lethal injection is cruel and unusual
punishment in violation of the Eighth and Fourteenth Amendments
to the United States Constitution and Article 2, § 15 of the
Arizona Constitution. State v. Hinchey, 181 Ariz. 307, 315, 890
P.2d 602, 610 (1994).
12. 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 the Eighth and Fourteenth Amendments to the
United States Constitution and Article 2, § 15 of the Arizona
Constitution. State v. Miles, 186 Ariz. 10, 19, 918 P.2d 1028,
1037 (1996).
13. Arizona’s death penalty statute is unconstitutional in
that it requires defendants to prove their lives should be
spared, in violation of the Eighth and Fourteenth Amendments to
the United States Constitution and Article 2, § 15 of the
Arizona Constitution. State v. Fulminante, 161 Ariz. 237, 258,
778 P.2d 602, 623 (1988).
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