SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-06-0240-AP
Appellee, )
) Yuma County
v. ) Superior Court
) Nos. SC89C15444
ALVIE COPELAND KILES, ) and SC89C15577
)
Appellant. )
_________________________________ ) O P I N I O N
Appeal from the Superior Court in Yuma & Maricopa Counties
The Honorable Kirby D. Kongable, Judge Pro Tempore1
AFFIRMED
________________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation
Amy Pignatella Cain, Tucson
Assistant Attorney General
Attorneys for State of Arizona
LAW OFFICES OF PAUL J. MATTERN Phoenix
By Paul J. Mattern
Attorney for Alvie Copeland Kiles
________________________________________________________________
R Y A N, Justice
I
A
¶1 In February 1989, Valerie Gunnell, and her five-year-
old and nine-month-old daughters were beaten to death in their
1
Judge Kongable presided over this case first as a superior
court judge in Yuma County, and later, after he had left the
bench in Yuma County, as a judge pro tempore in Maricopa County.
1
Yuma apartment. After a jury convicted Alvie Kiles of three
counts of first degree murder and two counts of child abuse, the
trial judge sentenced Kiles to death for each murder. The
convictions and Kiles’ sentences were affirmed on direct appeal.
See State v. Kiles (Kiles I), 175 Ariz. 358, 857 P.2d 1212
(1993). In post-conviction relief proceedings, the superior
court found ineffective assistance of counsel and vacated the
convictions and sentences.
¶2 After a second jury trial in 2000, Kiles was again
convicted of three counts of first degree murder and two counts
of child abuse. The parties later stipulated to transfer the
case to Maricopa County. In 2006, a jury2 found three
aggravating factors for each murder: (1) Kiles had been
previously convicted of a crime involving the use or threat of
violence, (2) he had been convicted of multiple homicides, and
(3) he had committed the offenses in an especially cruel,
heinous, or depraved manner. See Ariz. Rev. Stat. (“A.R.S.”) §
13-703(F)(2) (1989) (prior offense involving threat or use of
violence); A.R.S § 13-751(F)(6), (F)(8) (Supp. 2008) (multiple
2
After Ring v. Arizona, 536 U.S. 584 (2002), legislation was
enacted providing for a jury trial as to both the existence of
capital aggravating circumstances and the appropriate sentence.
2002 Ariz. Sess. Laws, ch. 1, § 3 (5th Spec. Sess.); see State
v. Ring, 204 Ariz. 534, 545, ¶ 13, 65 P.3d 915, 926 (2003).
2
murders and especially cruel, heinous or depraved).3 The jury
also concluded that the two children were less than fifteen
years of age. A.R.S. § 13-751(F)(9) (defendant an adult and
victim younger than fifteen). The jurors, however, returned a
verdict of death only for the murder of Valerie Gunnell.4
¶3 An automatic notice of appeal was filed under Arizona
Rules of Criminal Procedure 26.15 and 31.2(b) and A.R.S. §§ 13-
4031 and -4033 (2001). This Court has jurisdiction under the
Arizona Constitution, Article 6, Section 5(3), and A.R.S. §§ 13-
4031, -4033.
B5
¶4 Alvie Kiles moved in with Valerie Gunnell and her two
daughters in January 1989. Valerie and Kiles soon began arguing
about Kiles stealing her food stamps to support his cocaine
habit. On February 9, 1989, Deirdre Johnson, who lived next
3
Arizona’s capital sentencing statutes were reorganized and
renumbered to A.R.S. §§ 13-751 to -759. 2008 Ariz. Sess. Laws,
ch. 301, §§ 26, 38-41 (2d Reg. Sess.). Because the renumbered
statutes are not materially different, we cite the current
version of the statute, unless otherwise noted.
4
The jurors could not reach a unanimous verdict regarding
the imposition of a capital sentence for the murders of the
children. The State dismissed the notice of death penalty
regarding those two slayings and the superior court sentenced
Kiles to consecutive life sentences. Kiles does not appeal
these convictions or sentences.
5
We view the facts in the “light most favorable to
sustaining the [guilty] verdict.” State v. Tucker (Tucker I),
205 Ariz. 157, 160 n.1, 68 P.3d 110, 113 n.1 (2003).
3
door to Valerie, saw Kiles outside the apartment working on his
car. Early the next day, Johnson saw Kiles back his car into a
parking space at the apartment. Later that morning Valerie’s
mother knocked on the door of the apartment, but got no answer.
¶5 Larry Hawkins saw Kiles outside Hawkins’ apartment
that morning in Valerie’s car. Valerie’s step-father also saw
Kiles driving her car that day. Later, Deirdre Johnson noticed
Kiles struggling to lift a trash bag over the fence behind the
apartment. He dropped the bag, which emitted a “loud thud
sound” when it landed.
¶6 That afternoon, Kale Johnson saw Kiles sitting in
Valerie’s car at a Yuma park. Referring to Valerie, Kiles told
Johnson, “I killed that girl.” Kiles admitted to Johnson that
“I killed the kids too” because they were “crying and hollering
and screaming.” He told Johnson that he had used something he
took from the car to commit the murders. Kiles also told
Johnson that he had disposed of the children’s bodies in the
Colorado River.
¶7 Johnson did not believe Kiles, so Kiles took Johnson
to Valerie’s apartment. Johnson saw Valerie’s body lying on the
floor. There was a puddle of blood on the floor and blood “all
over the walls and the ceilings.” Johnson attempted to leave
the apartment, but Kiles hit him with a broom handle.
¶8 Kiles admitted killing Valerie and the children to
4
others. Kiles told Larry Hawkins that he had killed Valerie and
her children. He explained that he and Valerie had argued over
food stamps that Kiles had taken to buy cocaine. Kiles told
Hawkins that Valerie had slapped him twice, once after he had
told her not to. Kiles then went to his car and retrieved a
tire jack, which he used to strike Valerie at least twice.
Hawkins stated that Kiles told him that Valerie “regained
consciousness” after the initial blow and asked Kiles, “[W]hy
did [you] do this?” Kiles told Hawkins that he had killed the
children “because . . . they had seen him.” Hawkins wrote a
letter to Yuma Silent Witness describing Kiles’ admissions.
¶9 Kiles also admitted to Jesse Solomon, a family friend,
and to his mother, Imojean Kiles, that he had killed Valerie
with the jack. He further told his mother that he had “taken
care of” the children “because they could talk,” and had
“dumped” the children’s bodies in a canal.
¶10 The Yuma police went to Valerie’s apartment on
February 11, 1989. The police found the apartment in
“disarray,” with cartons of eggs on the floor and a lamp
overturned. An officer saw blood spatters in a bedroom, signs
of a struggle, blood on the bed, and something “wrapped up in a
blanket” in the hall. It was Valerie’s body.
¶11 Further investigation at the apartment revealed blood
smeared on the bathroom floor “as if somebody had tried to wipe
5
[it up].” The bathroom smelled of cleanser and police found a
pile of bloody towels.
¶12 In Valerie’s bedroom, the bed was covered in papers
and money and there was clothing all over the floor. A blood-
soaked pillow and a piece of a car jack with her hair and blood
on it were also found. In the children’s bedroom, two “very
large pools of blood” were found on the bed. Blood spatter was
found on the walls, drapes, ceiling, and door of the west
bedroom. A blood spatter expert testified that at least
fourteen blows were delivered in the children’s room. In the
northwest corner of the living room, a blood-stained ottoman and
a bone fragment were also found. Blood had soaked into the
carpeting. Blood spatter and blood stains were found in the
living room. A chair in the living room had stains that
indicated someone had lost a lot of blood. A large bone
fragment and blood spatter were found near the south wall. In
addition, blood smears were found on the front door of the
apartment. Blood spatter and smears were found in the kitchen-
dining area as well.
¶13 Valerie died from multiple blunt force trauma to the
head with multiple scalp lacerations, skull fractures, and a
brain laceration. She had a broken arm, which medical testimony
identified as a defensive wound. The body of Valerie’s younger
child was later found in a canal in Mexico. She died of blunt
6
force trauma to the skull with extensive skull fractures and a
brain laceration. The older child was never found. Her blood,
however, was detected on the mattress cover in the apartment.
¶14 In his 2000 guilt-phase trial, Kiles admitted
murdering Valerie.6
II
A
¶15 Kiles first argues that the trial court’s instruction
on premeditation, combined with the prosecutor’s arguments, ran
afoul of this Court’s ruling in State v. Thompson, 204 Ariz.
471, 479-80, ¶¶ 32-34, 65 P.3d 420, 428-29 (2003).
¶16 Because Kiles failed to object to either the jury
instruction or the prosecutor’s argument, we review only for
fundamental error. See State v. Gallegos, 178 Ariz. 1, 11, 870
P.2d 1097, 1107 (1994) (“Failure to object at trial to an error
or omission . . . waives the issue on appeal unless the error
amounts to fundamental error.”); see also Ariz. R. Crim. P.
21.3(c). Fundamental error is “error going to the foundation of
the case, error that takes from the defendant a right essential
to his defense, and error of such magnitude that the defendant
could not possibly have received a fair trial.” State v.
Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005)
6
Kiles did not testify at the first trial. See Kiles I, 175
Ariz. at 363, 857 P.2d at 1217.
7
(internal quotation marks omitted). “To prevail under this
standard of review, a defendant must establish both that
fundamental error exists and that the error in his case caused
him prejudice.” Id. at ¶ 20.
1
¶17 First degree murder is committed when a person
“[i]ntending or knowing that his conduct will cause death . . .
causes the death of another with premeditation.” A.R.S. § 13-
1105(A)(1) (1989). The superior court gave the following
instruction about premediation:
Premeditation means the defendant acts with the
knowledge that he will kill another human being, when
such intention or knowledge precedes the killing by a
length of time to permit reflection. An act is not
done with premeditation if it is the instant effect of
a sudden quarrel or heat of passion.
¶18 No error occurred here. Thompson invalidated the use
of an instruction stating both that premeditation could be “as
instantaneous as successive thoughts of the mind” and that
“proof of actual reflection is not required.” 204 Ariz. at 479-
80, ¶¶ 32-34, 65 P.3d at 428-29. The jury instruction given
here is similar to the alternative instruction approved in
Thompson, and reflects the statute in force at the time. Id. at
479, ¶ 32, 65 P.3d at 428.7 As Kiles acknowledges, the
7
The statute defined premeditation as meaning that
8
instruction neither included the disapproved “instantaneous as
successive thoughts” language nor stated that actual reflection
was not required. Indeed, the instruction specifically stated
that premeditation required consideration of the murder
preceding the act.
¶19 This instruction correctly distinguishes between
reflection and action. See id. (“[The jury must find that the
defendant] reflected on the decision before killing. It is this
reflection, regardless of the length of time in which it occurs,
that distinguishes first degree murder from second degree
murder.”).
¶20 This distinction is crucial because it was the
language stating “that the length of time [for reflection] can
be ‘as instantaneous as successive thoughts of the mind’” that
created the problem in Thompson. Id. at 478, ¶ 26, 65 P.3d at
427. This problem was obviated by the trial court’s instruction
here, consistent with Thompson, specifying that an act that is
the “instant effect of a sudden quarrel or heat of passion” is
not premeditated. Id. at ¶ 28. “This language distinguishes
the defendant acts with either the intention or the
knowledge that he will kill another human being, when
such intention or knowledge precedes the killing by a
length of time to permit reflection. An act is not
done with premeditation if it is the instant effect of
a sudden quarrel or heat of passion.
A.R.S. § 13-1101(1) (1989).
9
impulsive killings from planned or deliberated killings and
confirms the legislature’s intent that premeditation be more
than just a snap decision made in the heat of passion.” Id.
2
¶21 Nor did the prosecutor’s argument create fundamental
error. The State’s theory of the case was that Kiles left
Valerie’s apartment, went to his car, returned with the jack,
attacked her, and when she regained consciousness, began the
final, fatal onslaught. With respect to premeditation, although
the prosecutor noted that the time required to actually
premeditate could be “instantaneous,” he made clear that such
was not the case in this matter. His argument focused on the
circumstantial evidence of premeditation, noting that Kiles had
to go out to his car, open the hatchback, find a weapon, return
to the apartment, and then attack Valerie. Further, after his
first attack did not kill Valerie, Kiles resumed his assault.
¶22 The prosecutor’s argument was consistent with
Thompson, which approved an instruction that said reflection can
occur “regardless of the length of time in which it occurs” and
specifically permits prosecutors to argue circumstantial
evidence of reflection. 204 Ariz. at 479, ¶¶ 31-32, 65 P.3d at
428 (“Such evidence might include, among other things, threats
made by the defendant to the victim, a pattern of escalating
violence between the defendant and the victim, or the
10
acquisition of a weapon by the defendant before the killing.”).8
B
¶23 The State charged Kiles with murdering Valerie Gunnell
knowingly and with premeditation. See A.R.S. § 13-1105(1)
(1989).9 During closing arguments, the prosecutor and Kiles’
attorney argued about whether the jury could consider
intoxication in determining premeditation.
¶24 The prosecutor argued that “intoxication does not
apply when you consider first degree murder. That is all there
is to it. No argument could be made that it’s any different.
When you are discussing . . . the crime of first degree murder,
whether it be premeditated or whether it be felony murder, you
are not allowed to consider that the defendant may have been
drinking or may have been intoxicated. That’s the law.” On
rebuttal, the prosecutor similarly argued that intoxication was
not a consideration in determining whether first degree murder
had been committed, particularly noting that intoxication does
8
In his reply brief, Kiles attempted to add new arguments
relating to prosecutorial misconduct. These arguments, however,
are waived, because “opening briefs must present significant
arguments, supported by authority, setting forth an appellant’s
position on the issues raised.” State v. Carver, 160 Ariz. 167,
175, 771 P.2d 1382, 1390 (1989).
9
This Court has held that A.R.S. § 13-1105 permits a
defendant to be charged with either knowing or intentional
murder, and that knowing alone could be charged “[e]ven if the
State charged knowingly rather than intentionally to preclude
the introduction of evidence of defendant’s intoxication.”
State v. Lavers, 168 Ariz. 376, 389, 814 P.2d 333, 346 (1991).
11
not apply to a “knowing” crime.
¶25 In contrast, the defense argued that Kiles’
intoxication affected his ability to “premeditate and commit
that murder.” Kiles’ attorney continued, “You can consider the
intoxication. We would not have put them in those instructions
if we didn’t want you to consider it . . . . As I told you in
opening, this is a case about the degree to which you have to
hold Alvie Kiles responsible for the death of Valerie.”
¶26 Kiles also asked the court for a curative instruction
on premeditation in light of the prosecutor’s argument. The
trial court concluded that the following instruction on
intoxication sufficed:
“Intoxication” means any mental or physical incapacity
resulting from use of drugs or intoxicating liquors.
No act committed by a person while in a state of
voluntary intoxication is less criminal by reason of
his having been in such condition, but when the actual
existence of the culpable mental state of
intentionally or with the intent to is a necessary
element to constitute any particular species or degree
of offense, the jury may take into consideration the
fact that the accused was intoxicated at the time in
determining the culpable mental state with which he
committed the act.
¶27 “A trial court’s refusal to give a jury instruction is
reviewed for abuse of discretion.” State v. Anderson (Anderson
II), 210 Ariz. 327, 343, ¶ 60, 111 P.3d 369, 385 (2005). The
Court reviews de novo whether a jury instruction accurately
reflects the law. State v. Cox, 217 Ariz. 353, 356, ¶ 15, 174
12
P.3d 265, 268 (2007).
¶28 Kiles’ claim that he was entitled to an instruction on
his “defense” of intoxication is without merit. The trial court
instructed the jury under the terms of former A.R.S. § 13-503
(1989).10 That section provided that
[n]o act committed by a person while in a state
of voluntary intoxication is less criminal by
reason of his having been in such condition, but
when the actual existence of the culpable mental
state of intentionally or with the intent to is a
necessary element to constitute any particular
species or degree of offense, the jury may take
into consideration the fact that the accused was
intoxicated at the time in determining the
culpable mental state with which he committed the
act.
¶29 The statute unambiguously provides that intoxication
is a defense only against the culpable mental state of
intentionally. See Lavers, 168 Ariz. at 389, 814 P.2d at 346
(concluding that voluntary intoxication is no defense to knowing
first degree murder). Consequently, Kiles’ argument that he may
not have reflected on his decision to bludgeon Valerie because
he was voluntarily intoxicated cannot be sustained.
¶30 Kiles also argues that this Court’s holdings in State
v. Moody (Moody II), 208 Ariz. 424, 466-67, ¶¶ 188-96, 94 P.3d
1119, 1161-62 (2004), and State v. Schurz, 176 Ariz. 46, 55 &
10
The legislature amended the statute in 1994 to eliminate
intoxication as a defense “for any criminal act or requisite
state of mind.” A.R.S. § 13-503 (2001); 1993 Ariz. Sess. Laws,
ch. 256, §§ 2, 3 (1st Reg. Sess.).
13
n.5, 859 P.2d 156, 165 & n.5 (1993), indicate that intoxication
under § 13-503 is a defense to premeditation. These cases do
not so hold. Rather, consistent with the statute, they hold
that intoxication is relevant to the culpable mental state of
intentional.
¶31 For instance, in Moody II, we observed that the trial
court erred because “[r]ather than instructing the jury that
intoxication could be considered in determining Moody’s mental
state at the time of the acts, the trial court instructed the
jury on the later version of the statute, which disallows
intoxication as a defense.” 208 Ariz. at 466, ¶ 188, 94 P.3d at
1161 (emphasis added). In Schurz, we explained that § 13-503
permitted a jury to consider voluntary intoxication only when
the culpable mental state is intentional or with intent to. 176
Ariz. at 55, 859 P.2d at 165.
¶32 Schurz addressed whether an intoxication instruction
was appropriate when a defendant was charged with
“intentionally” or “knowingly” committing first degree murder.
Id. at 55, 859 P.2d at 165. The Court explained that “[a]s a
matter of logic and statutory construction, an allegation of
‘intending or knowing’ is indistinguishable from an allegation
of ‘knowing.’” Id. “An inexorable result of the statute, then,
is that voluntary intoxication under A.R.S. § 13-503 will be
considered by the jury only when intent is alleged and knowing
14
is not alleged.” Id. The same reasoning applies to the
premeditation instruction given in this case.
¶33 Schurz left open whether “intoxication could be
relevant and admissible on the question of reflection [as a
requirement of premeditation], even if not admissible on the
question of culpable mental state.” Id. at 55 n.5, 859 P.2d at
165 n.5. But the premeditation instruction given here required
proof that Kiles acted “with the knowledge that he will kill
another human being when such intention or knowledge precedes
the killing by a length of time to permit reflection.”
(Emphasis added.) Because the instruction referred to both the
knowledge and intentional mental states, there was no error.
C
¶34 Although Kiles has affirmatively waived any challenge
to the guilt and sentencing for the deaths of the two children,
he nevertheless argues that the admission of various
photographs, both at the guilt trial and during the sentencing
proceedings, was error.
¶35 Admission of such evidence is reviewed for abuse of
discretion. State v. Spreitz (Spreitz I), 190 Ariz. 129, 141,
945 P.2d 1260, 1272 (1997). “The admissibility of a potentially
inflammatory photograph is determined by examining (1) the
relevance of the photograph, (2) its tendency to incite or
inflame the jury, and (3) the probative value versus potential
15
to cause unfair prejudice.” State v. Cruz, 218 Ariz. 149, 168-
69, ¶ 125, 181 P.3d 196, 215-16 (2008) (internal quotation marks
omitted).
¶36 Kiles’ opening brief does not specify his objection to
any but two of the challenged photographs. He has therefore
waived any argument as to the other photographs. See State v.
Martinez, 218 Ariz. 421, 434 n.14, ¶ 59, 189 P.3d 348, 361 n.14
(2008) (waiver found when argument fails to identify basis).
¶37 Exhibit 70, one of two exhibits on which Kiles
presented argument, plainly meets the test for admissibility.
The photograph demonstrates Valerie’s broken arm, which medical
testimony explained was a defensive wound. “[T]he fact and
cause of death are always relevant in a murder prosecution.”
Cruz, 218 Ariz. at 169, ¶ 126, 181 P.3d at 216 (internal
quotation marks omitted). Kiles has identified nothing about
the photograph that is particularly inflammatory, especially
given that “[t]here is nothing sanitary about murder.” Id. at ¶
127 (internal quotation marks omitted). Finally, the defensive
wounds portrayed in the photograph are highly probative; the
photograph thus corroborated that Kiles committed first degree
murder and supported the existence of the aggravating factor of
cruelty. See A.R.S. § 13-751(F)(6).
¶38 With respect to Exhibit 72, a photograph of one of the
16
children,11 Kiles suffered no prejudice. Given that the jury did
not determine that a sentence of death was appropriate for the
slayings of the children, we cannot conclude that this
photograph prejudiced the jury with regard to the verdict
rendered for Valerie’s murder.
D
¶39 Kiles claims that he was denied representation of
counsel in violation of the Sixth Amendment. In briefing and in
oral argument, Kiles’ appellate counsel contends that cumulative
evidence of alleged ineffectiveness and delays in the
appointment of counsel constitute complete deprivation of
counsel for Sixth Amendment purposes, obviating any need for him
to establish prejudice. See Powell v. Alabama, 287 U.S. 45, 68-
73 (1932) (holding that due process requires the provision of
counsel).
¶40 Kiles does not claim that he was without counsel in
any proceeding critical to his defense or that counsel lacked
ample time to prepare. State v. Glassel, 211 Ariz. 33, 51, ¶¶
62-64, 116 P.3d 1193, 1211 (2005) (rejecting claim of per se
ineffective assistance when defense counsel presented arguments
and evidence, but no witnesses, in mitigation); see also Powell,
287 U.S. at 71 (holding due process requires courts to assign
11
This photograph depicts the child’s body after it was
recovered from a canal in Mexico a week after the murders.
17
counsel to capital defendants in a manner that does not
“preclude the giving of effective aid in the preparation and
trial of the case”). Nor does Kiles contend on appeal he had an
irreconcilable conflict with counsel. See State v. Moody (Moody
I), 192 Ariz. 505, 508-09, ¶¶ 21, 23, 968 P.2d 578, 581-82
(1998) (reversing conviction and sentence when record
demonstrated irreconcilable conflict).
¶41 Kiles recognizes that ineffective assistance of
counsel claims are properly brought in post-conviction
proceedings under Arizona Rule of Criminal Procedure 32. E.g.,
State v. Spreitz (Spreitz II), 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525,
527 (2002). Indeed, his counsel conceded at oral argument that
all of his claims could be brought in such a proceeding. But he
nonetheless claims that his numerous allegations of
ineffectiveness may be combined to create structural error and
should be considered on direct appeal. See United States v.
Cronic, 466 U.S. 648, 659 n.25 (1984) (“The Court has uniformly
found constitutional error without any showing of prejudice when
counsel was either totally absent, or prevented from assisting
the accused during a critical stage of the proceeding.”).
¶42 Even accepting all of Kiles’ allegations as true,12 we
12
The State challenges the accuracy of Kiles’
characterization of the record below. Because we do not address
his claims of ineffective assistance, we express no opinion on
the allegations or their veracity and leave them for Kiles to
18
cannot conclude that he was effectively deprived of counsel.
The most that can be said is that there were delays and
allegations of poor professional conduct.
¶43 Because we cannot consider facts outside the record,
our consideration of ineffective assistance of counsel claims on
direct appeal would rarely result in reversal. We caution that
raising an argument such as this on direct appeal gains very
little, but risks a great deal, as the defendant who asks this
Court to determine issues of ineffectiveness on the appellate
record faces the possibility of later preclusion. See Ariz. R.
Crim. P. 32.2(a)(2) (“A defendant shall be precluded from relief
under this rule based upon any ground . . . [f]inally
adjudicated on the merits on appeal or in any previous
collateral proceeding . . . .”); see also Spreitz II, 202 Ariz.
at 3, ¶ 9, 39 P.3d at 527 (explaining that improvidently raised
ineffective assistance claims are not precluded because
appellate courts will decline to address such claims).
¶44 Nonetheless, Kiles attempts to distinguish his case by
arguing that the record demonstrates several violations of the
ABA Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases (rev. ed. 2003) (“ABA Capital
Standards”), the ABA Criminal Justice Defense Function Standards
raise in a proper proceeding. See Glassel, 211 Ariz. at 51 n.9,
¶ 64, 116 P.3d at 1211 n.9.
19
(3d ed. 1993) (“ABA Criminal Standards”), and the Arizona Rules
of Professional Conduct. Specifically, he alleges that his
attorneys failed to properly assemble a defense team,
investigate the underlying facts of the case, communicate with
Kiles, and represent him competently and diligently. See, e.g.,
Ariz. R. Sup. Ct. 42, E.R. 1.1, 1.3 (competence and diligence);
ABA Capital Standard 10.4, 10.5 (establishing defense team,
relationship with client); ABA Criminal Standard 4-2.1, 4-3.1,
4-4.1 (communication, relationship with counsel, and
investigative duties). These alleged violations, he argues,
constitute structural error.
¶45 Citing Wiggins v. Smith, 539 U.S. 510 (2003), Kiles
argues that breach of these standards is qualitatively different
from typical claims of ineffective assistance of counsel. But
Wiggins announced no new category of structural error. Rather,
that case addressed an ineffective assistance of counsel claim,
an issue on which professional standards have considerable
bearing. See id. at 519-20 (“Petitioner renews his contention
that his attorneys’ performance at sentencing violated his Sixth
Amendment right to effective assistance of counsel.”);
Strickland v. Washington, 466 U.S. 668, 691-92 (1984) (noting
professionally unreasonable standard).13 Nor do any of the
13
Although this Court has subscribed to the ABA Capital
Standards under Arizona Rule of Criminal Procedure 6.8
20
allegations raised by Kiles obviate the need for a proper Rule
32 proceeding at which there will be a full opportunity to
assess counsels’ actions.
E
¶46 Kiles’ case was subject to regular news coverage;
Kiles claims the Yuma Sun published ninety-eight articles during
a ten-year period. He maintains the articles detailed evidence
of the case, including that the victims likely died from the
same cause, that Kiles had told several people in Yuma he had
committed the crimes, that Kiles had made inculpatory statements
during sentencing at the original trial, and that he elected to
stay silent in that trial. In addition, he argues, the coverage
revealed personal information about witnesses, expert testimony
from sentencing, and many other facts. Kiles argued that the
trial court should have concluded that this publicity was
excessive and inflammatory and that the court should have
presumed prejudice and moved the second trial to another
county.14
(b)(1)(iii), the comment to the rule itself makes clear “[a]
deviation from the guidelines . . . is not per se ineffective
assistance of counsel. The standard for evaluating counsel’s
performance continues to be that set forth in Strickland
. . . .” Ariz. R. Crim. P. 6.8, 2006 cmt.
14
Kiles did not contend that he proved actual prejudice from
the news coverage. See State v. Davolt, 207 Ariz. 191, 206, ¶
50, 84 P.3d 456, 471 (2004) (“The critical inquiry is the
21
¶47 The trial court denied Kiles’ motion. The court noted
the ten-year span and the fact that Yuma is a “growing
community” with a “transient” population, which suggested that
the most damaging stories simply would be unknown to most
people.
¶48 Whether a change of venue must be ordered turns on
whether “pretrial publicity will probably deprive the party of a
fair trial,” and the Court reviews the trial court’s
determination for an abuse of discretion. Cruz, 218 Ariz. at
156, ¶ 12, 181 P.3d at 203 (alterations and internal quotation
marks omitted).
¶49 Kiles argues that the pre-trial publicity in Yuma
County was such that this Court should presume prejudice to his
fair trial rights. He has not established, however, that the
media coverage created an “outrageous . . . ‘carnival-like’
atmosphere.” Id. at 157, ¶ 15, 181 P.3d at 204 (quoting State
v. Atwood, 171 Ariz. 576, 631, 832 P.3d 593, 648 (1992)); see
also State v. Bible, 175 Ariz. 549, 567, 858 P.2d 1152, 1170
(1993) (“Although many cases discuss the doctrine, very few
cases have actually presumed prejudice due to a carnival or
circus atmosphere at trial.”). At most, Kiles’ brief and the
arguments presented below point to regular press coverage over
‘effect of publicity on a juror’s objectivity’”) (quoting State
v. LaGrand, 153 Ariz. 21, 34, 734 P.2d 563, 576 (1987)).
22
the course of some ten years. Kiles simply has not satisfied
the “extremely heavy” burden of demonstrating that the pre-trial
publicity was presumptively prejudicial. See Bible, 175 Ariz.
at 564, 858 P.2d at 1167.
¶50 Kiles also argues that State v. Schmid, 109 Ariz. 349,
509 P.2d 619 (1973), requires an automatic change of venue if
certain facts are reported by the news media. But that case,
which offers suggestions to news organizations to avoid unfair
proceedings, simply does not stand for the proposition that any
mention of certain information will require reversal. Id. at
353-54, 509 P.2d at 623-24 (suggesting “publicity” of sensitive
information like guilt or innocence, existence and contents of
confessions and admissions, identity and credibility of
witnesses “may result in reversal”).
III
A
¶51 Over defense objection, the trial court permitted the
State to offer both Kiles’ conviction for aggravated assault and
his conviction for attempted aggravated assault to prove the
(F)(2) aggravating factor. See A.R.S. § 13-1204(A)(8) (Supp.
1985) (aggravated assault); A.R.S. §§ 13-1001(A) (2001)
(attempt), 13-1204(A)(1) (2001) (aggravated assault). When
Kiles committed Valerie’s murder, a defendant’s prior conviction
for “a felony in the United States involving the use or threat
23
of violence on another person” was an aggravating circumstance.
A.R.S. § 13-703(F)(2) (1989).15 This Court affirmed the use of
both convictions in Kiles I. See 175 Ariz. at 370, 857 P.2d at
1224.
¶52 At the second trial, defense counsel correctly argued
that Kiles I is inconsistent with subsequent case law defining
the (F)(2) aggravator. As this Court has clarified, “if [an]
offense could have been committed without the use or threat of
violence, the prior conviction does not qualify as an (F)(2)
aggravator.” State v. McCray, 218 Ariz. 252, 257, ¶ 17, 183
P.3d 503, 508 (2008). For example, because Arizona’s attempt
statute permits a crime to be committed with a single nonviolent
step, an attempted murder did not qualify under (F)(2). State
v. Williams, 183 Ariz. 368, 382, 904 P.2d 437, 451 (1995).
Kiles I is inconsistent with these decisions. See 175 Ariz. at
370, 857 P.2d at 1224.
¶53 At oral argument, the State argued that Kiles I is the
law of this case. The law of the case is
a rule of general application that the decision of an
appellate court in a case is the law of that case on
the points presented throughout all the subsequent
proceedings in the case in both the trial and the
appellate courts, and no question necessarily involved
and decided on that appeal will be considered on a
second appeal or writ of error in the same case,
15
The legislature later rewrote the statute to list the
crimes that qualify for the (F)(2) aggravator. See 1993 Ariz.
Sess. Laws, ch. 153, § 1 (1st Reg. Sess.).
24
provided the facts and issues are substantially the
same as those on which the first decision rested, and,
according to some authorities, provided the decision
is on the merits.
State v. Bocharski, 218 Ariz. 476, 489, ¶ 60, 189 P.3d 403, 416
(2008) (quoting State v. King, 180 Ariz. 268, 278, 883 P.2d
1024, 1034 (1994)). Kiles is correct that the use of the
attempted offense is inconsistent with recent cases such as
McCray. But the Yuma County judge was not free to question this
Court’s ruling on a legal issue for the subsequent retrial.
Nevertheless, the law of the case is a procedural rule, and this
Court can recognize that a former ruling has been rendered
obsolete by later case law. Cf. King, 180 Ariz. at 278-79, 883
P.2d at 1034-35 (recognizing court’s power to revisit prior
rulings). Under more recent cases, the attempted aggravated
assault conviction does not establish the (F)(2) aggravator.
¶54 The (F)(2) aggravator remains valid, however, because
of the other conviction. Williams, 183 Ariz. at 382, 904 P.2d
at 451 (noting that reliance on ineligible conviction is
“immaterial” when another conviction suffices). Because Kiles
does not challenge the use of his aggravated assault conviction,
any error here is harmless beyond a reasonable doubt. See State
v. Sansing, 206 Ariz. 232, 237, ¶ 16, 77 P.3d 30, 35 (2003)
(holding error harmless when no reasonable jury could have
25
failed to find aggravating factor established).16
B
¶55 Kiles next contends that because two jurors were not
convinced beyond a reasonable doubt that Kiles himself committed
the murders of the children, the (F)(8) aggravator should have
been stricken. In essence, he argues that an inconsistency
between the aggravation-phase jury’s verdict and the guilt-phase
jury’s felony murder verdict renders the (F)(8) aggravator
unconstitutional.
¶56 In 2000, the guilt-phase jury convicted Kiles of first
degree murder of the two children. In reaching their verdicts,
two jurors concluded that the murder of one daughter was felony
murder, and five jurors concluded that the murder of the other
daughter was felony murder. The remaining jurors concluded the
murder of each child was premeditated.
¶57 Before the 2006 sentencing jury could consider the
16
We also reject Kiles’ argument that Brown v. Sanders, 546
U.S. 212 (2006), requires remand for resentencing. Brown held
that in a state like Arizona, in which “the [capital]
eligibility factors by definition identif[y] distinct and
particular aggravating features, if one of them was invalid the
jury could not consider the facts and circumstances relevant to
that factor as aggravating in some other capacity.” Id. at 217.
Even if “the sentencer’s consideration of an invalid eligibility
factor . . . skewed its balancing of aggravators with
mitigators,” reversal is not required if “a state appellate
court determine[s] the error was harmless or reweigh[s] the
mitigating evidence against the valid aggravating factors.” Id.
(emphasis added). Here, the factor itself remains properly
established, and, in any event, because we independently review
Kiles’ sentence, Brown is inapposite.
26
aggravating factors, the trial court charged the jury with
determining whether the convictions for first degree murder of
the children qualified as death-eligible murders under Tison v.
Arizona, 481 U.S. 137 (1987), and Enmund v. Florida, 458 U.S.
782 (1982).17
¶58 The verdict form specifically asked the jurors to
reach conclusions on four separate Enmund/Tison issues: (1)
whether Kiles killed each child, (2) whether Kiles attempted to
kill each child, (3) whether Kiles intended that a killing take
place, and (4) whether Kiles was a major participant in the
crime of child abuse and acted with reckless indifference to
human life. Ten jurors found that Kiles killed both; eleven
found that he attempted to kill both; and twelve jurors found
that Kiles both intended a killing to take place and that he was
a major participant in the crime of child abuse and acted with
reckless indifference to human life.
¶59 After making its Enmund/Tison findings, the jurors
17
Enmund and Tison address the proportionality of capital
punishment for felony murder under the Eighth Amendment. See
Tison, 481 U.S. at 146-48 (explaining Eighth Amendment issues).
In Enmund, the Supreme Court reversed a Florida Supreme Court
decision because it “affirmed the death penalty . . . in the
absence of proof that Enmund killed or attempted to kill, and
regardless of whether Enmund intended or contemplated that life
would be taken.” 458 U.S. at 801. In Tison, the Court
concluded that a capital sentence could be appropriate when the
defendant exhibits “reckless disregard for human life implicit
in knowingly engaging in criminal activities known to carry a
grave risk of death.” 481 U.S. at 157-58.
27
were asked whether the State had proven the (F)(8) aggravator.
The court instructed the jurors: “You must assess the
aggravators based upon evidence of the defendant’s own actions
and mental state.” The judge then told the jury that
to find the aggravating factor of the defendant being
convicted of one or more other homicides, which were
committed during the commission of this offense, you
may not make your finding based solely upon the trial
jury’s verdict of guilt on multiple homicides. . . .
[Y]ou must find that the other murders were related in
time and space and motivation to the first degree
murder, which you are considering. This instruction
applies to each of the three murders.
A temporal or time relationship exists between
multiple homicides when it is established beyond a
reasonable doubt that the murders were committed
within a short span of time.
A spatial relationship exists when it is established
beyond a reasonable doubt that the victims were killed
in close physical proximity to each other.
A motivational relationship exists when it is
established beyond a reasonable doubt that the victims
were killed for a related reason.
The jury unanimously found the (F)(8) aggravator was proven
beyond a reasonable doubt.
¶60 Kiles’ arguments with regard to the (F)(8) aggravator
miss the mark. First, as the State notes, there is no need for
unanimity on a single theory. Cf. State v. Gomez, 211 Ariz.
494, 498 n.3, ¶ 16, 123 P.3d 1131, 1135 n.3 (2005) (“A jury need
not be unanimous as to the theory of first degree murder so long
as all agree that the murder was committed.”). Second, Kiles’
28
argument confuses two separate issues. The first issue is the
Enmund/Tison question: whether a felony murder may qualify to
make a person eligible for consideration of a capital sentence.
The second issue is whether the jury may consider convictions
for the murders of the children in determining whether the
(F)(8) aggravator was proven as to Valerie.
¶61 Under the (F)(8) aggravator, jurors are asked whether
“the defendant [has been] convicted of one or more other
homicides, which were committed during the commission of this
offense,” and whether such crimes are motivationally,
temporally, and spatially related to the offense considered for
a capital sentence. Determining whether the mixed premeditated-
murder and felony murder verdicts for the children’s deaths made
those convictions death-eligible differs from deciding whether
the convictions for those murders qualify under the (F)(8)
aggravator for Valerie’s death. Indeed, at oral argument, Kiles
conceded that because he does not challenge his guilt for the
slayings of the two children, he is guilty of those crimes.
Consequently, we reject Kiles’ effort to question the jury’s
findings on the (F)(8) aggravator.
IV
¶62 Because the murders were committed before August 1,
2002, we review aggravation, mitigation, and the propriety of
the sentence “independently” under A.R.S. § 13-755(A)-(C) (Supp.
29
2008). 2002 Ariz. Sess. Laws, ch. 1, § 7 (5th Spec. Sess.). In
conducting such 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
¶63 The jury found three aggravating circumstances: that
the defendant was previously convicted of a felony involving the
use or threat of violence on another person, see A.R.S. § 13-
703(F)(2) (1989), that the defendant committed the offense in an
especially heinous, cruel, or depraved manner, see id. § 13-
751(F)(6) (Supp. 2008), and that the defendant was convicted of
one or more other homicides that were committed during the
commission of the offense, see id. § 13-751(F)(8). We review
the record de novo to “determine[] [whether] an error was made
regarding a finding of aggravation.” Id. § 13-755(B); Anderson
II, 210 Ariz. at 354 & n.21, ¶ 119, 111 P.3d at 396 & n.21.
1
¶64 As previously discussed, it was error to permit the
jury to use Kiles’ attempted aggravated assault conviction to
satisfy the (F)(2) aggravator. Kiles’ previous conviction for
aggravated assault, however, proves the (F)(2) aggravator beyond
a reasonable doubt. See ¶¶ 51-54, supra.
30
2
¶65 “Cruelty involves the pain and distress” to the victim
and may be found when “the victim consciously experienced
physical or mental pain prior to death, and the defendant knew
or should have known that suffering would occur.” Anderson II,
210 Ariz. at 352 n.18, ¶ 109, 111 P.3d at 394 n.18 (internal
quotation marks omitted).
¶66 The evidence shows beyond a reasonable doubt that the
murder of Valerie was especially cruel. Kiles admitted that
Valerie remained conscious after the attack began, and the
medical testimony regarding defensive wounds supported that
conclusion.
¶67 Additional evidence supports the (F)(6) aggravator and
the version of events Kiles admitted to Hawkins. A pillow with
blood on it consistent with a source that continued to move was
found in Valerie’s bedroom. A transfer stain consistent with a
person running a bloody hand along a door was also identified.
Blood spatter was found between eighteen and twenty-four inches
from the ground, indicating that “the source of the blood would
be lower toward the floor.” The transfer stain on the door,
together with spatter on the lower part of the north and south
walls of the living room, indicated that either the blood source
or the attacker was moving. A piece of the jack itself was
found in the bedroom with Valerie’s blood on it. This evidence
31
directly contradicts Kiles’ trial testimony, when, contrary to
his earlier admissions, he claimed that when he hit Valerie with
the jack, she fell down in a living room chair and never got
up.18
¶68 The (F)(6) cruelty aggravator was proven as to mental
and physical cruelty. See State v. Boggs, 218 Ariz. 325,
341, ¶ 78, 185 P.3d 111, 127 (2008) (affirming (F)(6) aggravator
based on admissions by defendant corroborated by physical
evidence).
¶69 Kiles’ argument that State v. Soto-Fong, 187 Ariz.
186, 928 P.2d 610 (1996), requires the Court to vacate the
(F)(6) finding is incorrect. In Soto-Fong, we rejected the
(F)(6) mental cruelty finding because the evidence indicated
only that one of the defendants “thought” one of the victims
lingered before dying. Id. at 204-05, 928 P.2d at 628-29. In
this case the evidence shows that Valerie was conscious after
the attack began and thus “experienced significant uncertainty
as to her ultimate fate.” State v. Ellison, 213 Ariz. 116, 142,
18
Kiles separately raises on appeal the denial of his motion
for acquittal of the (F)(6) aggravator under Ariz. R. Crim. P.
20 (stating that “[i]n an aggravation hearing, . . . on a motion
of a defendant . . . , the court shall enter a judgment that an
aggravating circumstance was not proven if there is no
substantial evidence to warrant the allegation”). Because this
case is subject to our independent review, however, our analysis
of sufficiency of the evidence supporting an aggravating factor
subsumes any Rule 20 issue. Anderson II, 210 Ariz. at 354, ¶
119 & n.21, 111 P.3d at 396 & n.21.
32
¶¶ 120-21, 140 P.3d 899, 925 (2006) (internal quotation marks
omitted). We distinguished Soto-Fong on similar terms in Boggs.
218 Ariz. at 341, ¶ 78, 185 P.3d at 127.
3
¶70 “To establish the [(F)(8)] aggravator, we evaluate the
temporal, spatial, and motivational relationships between the
capital homicide and the collateral homicide . . . .” Id. at ¶
79 (internal quotation marks and substitutions omitted).
¶71 Kiles was convicted of first degree murder of all
three victims. Kiles no longer disputes that he murdered the
children, and his own testimony confirms that he bludgeoned
Valerie to death. Witnesses testified that Kiles admitted
killing the children because they had seen the murder and
because they were screaming. Larry Hawkins testified that Kiles
admitted that all three murders had been committed at the same
time and that he disposed of the children’s bodies. Further,
blood from both children was found in their bedroom in Valerie’s
apartment. Given this evidence, “[t]he record demonstrates that
all three murders occurred on the same day and in the same
apartment . . . it is difficult to imagine a motive for the
killings [of the children] unrelated to the murder of
[Valerie].” State v. Tucker (Tucker II), 215 Ariz. 298, 321, ¶
105, 160 P.3d 177, 200 (2007) (internal quotation marks
omitted). Further, a continuing course of criminal conduct
33
establishes a motivational link. See Boggs, 218 Ariz. at 342, ¶
81, 185 P.3d at 128. Accordingly, the (F)(8) aggravator was
proven beyond a reasonable doubt.
B
¶72 The jury considered a comprehensive mitigation
presentation that sought to establish several mitigating facts,
including good behavior while in custody; a family history of
substance abuse; Kiles’ substance abuse; good character; and
various psychological and character disorders including post-
traumatic stress disorder and attention deficit hyperactivity
disorder. In urging this Court to conclude that he should
receive a sentence of less than death, Kiles emphasizes
psychological issues, chronic substance abuse, his good behavior
in custody, and his “traumatic” childhood. He argues both
statutory and non-statutory mitigation.
1
¶73 Kiles makes two claims to establish that his “capacity
to appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of law was significantly impaired.”
A.R.S. § 13-751(G)(1). He argues that psychological conditions
and chronic intoxication establish this statutory mitigator.
a
¶74 At the penalty phase, Kiles offered testimony of four
mental health experts who suggested that a combination of
34
psychological and substance abuse issues impaired Kiles’
judgment. This evidence, Kiles argues, establishes the
statutory mitigating factor of diminished capacity. See id.
¶75 Psychiatrist Albert Globus testified, based on his
review of records and an interview of Kiles, that at the time of
the murders Kiles was addicted to and dependent on alcohol and
cocaine, that he suffered from chronic depression stemming from
childhood, and had experienced “psychotic decompensation,” a
“toxic psychosis as a result of too much drugs, such as cocaine,
and even to some extent from alcohol.” He also testified that
Kiles had some impairment due to exposure in utero to alcohol,
based on his mother’s admitted drinking and pharmaceutical use
while pregnant. Kiles’ family history included evidence of
violence and drug and alcohol abuse. His family history was
consistent with making him genetically and environmentally
predisposed to depression, which in turn may have led to his
drug use, while at the same time preventing the development of
proper coping mechanisms. Dr. Globus concluded that Kiles’ use
of cocaine caused him to act impulsively, without “careful
consideration” of the consequences.
¶76 Dr. Thomas Gaughan, another psychiatrist, also
testified. He interviewed Kiles for five hours and reviewed
numerous school, police, medical, and other records. Dr.
Gaughan diagnosed Kiles with post-traumatic stress disorder
35
brought on by violence and abuse. He found Kiles’ strong
reaction to being touched a symptom of that abuse. Although
Kiles himself claimed his home life was loving, Dr. Gaughan
testified that evidence suggested it was not. Based on Kiles’
description of his childhood and school reports, Dr. Gaughan
also diagnosed Kiles with attention deficit hyperactivity
disorder, which includes impulsivity. He further opined that
drug and alcohol use, combined with attention deficit
hyperactivity disorder and post-traumatic stress disorder,
“decreas[e] the ability to apply [the] sort of rational thought
and judgment in terms of inhibiting actions.”19
¶77 Dr. Ashley Hart also testified. He originally
diagnosed Kiles with post-traumatic stress disorder based on the
murders themselves. In addition, he stated that Kiles had a
narcissistic personality disorder, bipolar disorder, and poly-
substance dependencies. He further testified that, although the
murders were the result of an “irresistible impulse,” Kiles knew
that his violence and substance abuse were related.
¶78 Finally, Dr. Mark Cunningham, a clinical psychologist,
identified “factors [that] predisposed [Kiles] to criminal
behavior.” Cunningham’s presentation was based on an interview
with Kiles and an extensive review of records. His method was
19
In addition, Dr. Gaughan diagnosed Kiles with obsessive
compulsive disorder.
36
to take studies, particularly studies from the U.S. Department
of Justice, and apply them to the facts of Kiles’ life to
establish his risk of criminal behavior.
¶79 In rebuttal, the State offered the testimony of Dr.
John Scialli, who testified based on his review of numerous
psychological and psychiatric reports, and a five-hour interview
of Kiles. He stated that Kiles reported routinely carrying
weapons, getting into fights, and feeling the need for
retribution. Because Kiles’ birth weight was normal, Dr.
Scialli concluded that Kiles did not have fetal alcohol syndrome
and that any effect from fetal exposure to alcohol would have
been minimal. He also directly contradicted Dr. Gaughan’s post-
traumatic stress disorder diagnosis. He testified that, in any
event, the disorder does not lead to the kind of impaired
judgment Kiles’ experts claimed. Dr. Scialli’s principal
diagnosis was that Kiles suffered from an anti-social
personality disorder along with substance dependencies and
intoxication.
¶80 John Moran, a psychologist, also testified for the
State. He stated that the results of a personality test showed
Kiles had traits consistent with an anti-social personality
disorder.
¶81 The opinions offered by the experts indicate Kiles has
a personality or character disorder. On balance, however, the
37
expert testimony does not show that Kiles established the
statutory mitigating factor of diminished capacity. See A.R.S.
§ 13-751(G)(1); Tucker II, 215 Ariz. at 323, ¶ 118, 160 P.3d at
202 (rejecting similar evidence as proof of statutory
mitigation). Rather, Kiles proved that he suffered from some
form of personality disorder, which we consider as non-statutory
mitigation. See Tucker II, 215 Ariz. at 323, ¶ 118, 160 P.3d at
202.
b
¶82 Kiles claims that his chronic drug abuse at the time
of the offense established the statutory mitigator of voluntary
intoxication. “Voluntary intoxication is a mitigating
circumstance under § 13-[751](G)(1) if it significantly impairs
a defendant’s capacity to conform his conduct to requirements of
the law.” Kiles I, 175 Ariz. at 374, 857 P.2d at 1228 (citation
omitted). But “[w]e have frequently found that a defendant’s
claim of alcohol or drug impairment fails when there is evidence
that the defendant took steps to avoid prosecution shortly after
the murder, or when it appears that intoxication did not
overwhelm the defendant’s ability to control his physical
behavior.” State v. Reinhardt, 190 Ariz. 579, 591-92, 951 P.2d
454, 466-67 (1997). Kiles admitted he attempted to clean up the
scene of the crime and disposed of the bodies of the two girls.
Accordingly, he has not proven the statutory mitigation of
38
impairment due to abuse of alcohol and drugs. See A.R.S § 13-
751(G)(1). Nonetheless, because Kiles’ abuse of intoxicants was
not disputed by the State’s experts, he has proved chronic
intoxication as a non-statutory mitigating factor.
2
¶83 Kiles raises many non-statutory mitigating factors
which, he claims, also demonstrate that he has established a
capital sentence is inappropriate.
a
¶84 Kiles proved by a preponderance of the evidence good
behavior in custody through evidence that he was entitled to
special privileges in prison and evidence that he was a model
prisoner in the Yuma County jail, where he treated staff with
the “utmost respect” and had no disciplinary record in six
years.
b
¶85 Kiles established that he had a less-than-ideal
childhood. For example, Kathy Perrone, who lived with the Kiles
family for about a year, recalled that Imojean Kiles was strict,
drank heavily, and administered “spankings, whippings, [and]
beatings.” She also stated that Kiles’ father’s death in the
early 1980s was hard on him. Imojean Kiles reported to Dr.
Gaughan that Kiles’ father threatened Kiles with a gun and once
choked him. Kiles reported seeing his father and mother fight
39
violently.
¶86 The evidence presented is not entirely clear cut,
however, because witnesses testified that Kiles’ home-life was
ordinary. For example, Kathy Perrone agreed that the Kiles
family had a “nice home,” that he was a “mama’s boy,” and that
she never saw either parent strike him. Similarly, she
testified Kiles was a well-liked child who did as he was told
during his early adolescence. Another witness, Yolanda
Beibrich, testified that in high school Kiles was well-liked,
respected his elders, and got along with his peers. Although
Kiles did not establish an extraordinarily bad home life, he did
establish that his home life was not ideal.
c
¶87 As noted above, Kiles established that he suffered
from some form of personality disorder and that he was substance
dependent at the time of the murders. Accordingly, we consider
these factors as non-statutory mitigators.
C
¶88 The State proved three aggravating factors, including
the multiple-murder aggravator, which “receives extraordinary
weight.” Boggs, 218 Ariz. at 344, ¶ 93, 185 P.3d at 130
(internal quotation marks omitted). Valerie’s murder was
especially cruel and inflicted both mental and physical pain on
her as she remained conscious after the attack began.
40
¶89 In light of this significant aggravation, Kiles’
mitigation evidence is not particularly compelling. Although
Kiles established that he has been a model prisoner since being
taken into custody, this Court accords this mitigating factor
minimal weight because of the expectation that prisoners behave
in prison. State v. Dann, 220 Ariz. 351, ___, ¶ 141, 207 P.3d
604, 628 (2009).
¶90 The psychiatric testimony, although consistent with a
personality disorder, did not establish a sufficient connection
to the murder to warrant significant weight; at most it
established Kiles’ bad judgment, not his inability to judge.
See Tucker II, 215 Ariz. at 323, ¶ 118, 160 P.3d at 202; State
v. Pandeli, 215 Ariz. 514, 533, ¶ 81, 161 P.3d 557, 576 (2007)
(noting that insubstantial impairment and defendant’s ability to
discern right from wrong lead to according such mitigation
lesser weight). Kiles argues that this Court should give great
weight to the fact that he acted impulsively, suggesting this
means he could not control his behavior. But this claim does
not account for the sustained attack on Valerie, nor his
decision to murder the children.
¶91 Likewise, Kiles’ non-statutory chronic intoxication
claims warrant reduced weight given that his efforts to cover up
the crime demonstrate his knowledge of its wrongfulness.
Reinhardt, 190 Ariz. at 591-92, 951 P.2d at 466-67. In
41
addition, although Kiles established that he was a “good kid”
who had a less-than-ideal childhood, this evidence carries
minimal weight “because the evidence . . . is far removed from
the crime.” State v. Armstrong, 218 Ariz. 451, 465-66, ¶ 79,
189 P.3d 378, 392-93 (2008). Kiles was twenty-seven at the time
of the murder.
¶92 Taken together, and in light of the significant weight
accorded to the (F)(6) and (F)(8) aggravators, the mitigation
offered by Kiles is not sufficient to call for leniency. In
light of the facts and circumstances of Kiles and his crime,
death is the appropriate sentence.20
V
¶93 For the forgoing reasons we affirm the verdict and
sentence.
_______________________________________
Michael D. Ryan, Justice
20
Kiles raises several issues previously decided by the
Supreme Court, the Ninth Circuit Court of Appeals, or this Court
to preserve for federal review. These, with one exception, are
listed in the attached appendix, along with authority Kiles
identifies as having rejected his arguments.
The exception is Kiles’ argument that lethal injection as
employed by the State is cruel and unusual. We reject that
issue as premature because Kiles “may raise in a petition filed
pursuant to Arizona Rule of Criminal Procedure 32 any objections
to the protocol to be used.” State v. Andriano, 215 Ariz. 497,
510 n.9, ¶ 62, 161 P.3d 540, 553 n.9 (2007).
42
CONCURRING:
_______________________________________
Rebecca White Berch, Chief Justice
_______________________________________
Andrew D. Hurwitz, Vice Chief Justice
_______________________________________
W. Scott Bales, Justice
_______________________________________
Ruth V. McGregor, Justice (Retired)
43
Appendix
Issues preserved for federal review
1) The death penalty is per se cruel and unusual
punishment and violates the Eighth and Fourteenth Amendments,
and Article 2, § 15 of the Arizona Constitution. Rejected by
Gregg v. Georgia, 428 U.S. 153, 186-87 (1976); State v. Harrod
(Harrod I), 200 Ariz. 309, 320, ¶ 59, 26 P.3d 492, 503 (2001);
State v. Salazar, 173 Ariz. 399, 411, 844 P.2d 566, 578 (1992);
State v. Gillies, 135 Ariz. 500, 507, 662 P.2d 1007, 1014
(1983).
2) The death statute unconstitutionally requires
imposition of the death penalty whenever at least one
aggravating circumstance and no mitigating circumstance exist.
Rejected by Walton v. Arizona, 497 U.S. 639, 648 (1990); State
v. Miles, 186 Ariz. 10, 19, 918 P.2d 1028, 1037 (1996); State v.
Bolton, 182 Ariz. 290, 310, 896 P.2d 830, 850 (1995).
3) The death statute is unconstitutional because it fails
to guide the sentencing jury with a limiting definition of who
is eligible for the death penalty aggravating circumstances,
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, the broad
definition of premeditation, and the expansive number of
offenses under Arizona’s felony murder law make death-eligible
44
nearly anyone who is involved in a murder, in violation of the
Eighth and Fourteenth Amendments and Article 2, § 15 of the
Arizona Constitution. Rejected by State v. Greenway, 170 Ariz.
155, 164, 823 P.2d 22, 31 (1991).
4) Arizona’s death statute unconstitutionally requires
defendants to prove their lives should be spared. Rejected by
State v. Fulminante, 161 Ariz. 237, 258, 778 P.2d 602, 623
(1988).
5) Arizona’s death penalty statute unconstitutionally
fails to require either cumulative consideration of multiple
mitigating factors or that the jury make specific findings as to
each mitigating factor. Rejected by State v. Gulbrandson, 184
Ariz. 46, 69, 906 P.2d 579, 602 (1995); State v. Ramirez, 178
Ariz. 116, 131, 871 P.2d 237, 252 (1994); State v. Fierro, 166
Ariz. 539, 551, 804 P.2d 72, 84 (1990).
6) Arizona’s statutory scheme for considering mitigating
evidence is unconstitutional because it limits full
consideration of that evidence. Rejected by State v. Mata, 125
Ariz. 233, 242, 609 P.2d 48, 57 (1980).
7) The statute is unconstitutional because there are no
statutory standards for weighing. Rejected by State v. Atwood,
171 Ariz. 576, 645-46 n.21, 832 P.2d 593, 662-63 n.21 (1992).
8) Arizona’s death statute insufficiently channels the
sentencer’s discretion in imposing the death penalty. Rejected
45
by Greenway, 170 Ariz. at 164, 823 P.2d at 31.
9) Arizona’s death statute is unconstitutionally
defective because it fails to require the State to prove that
death is appropriate. Rejected by Gulbrandson, 184 Ariz. at 72,
906 P.2d at 605.
10) The prosecutor’s discretion to seek the death penalty
unconstitutionally lacks standards, in violation of the Eighth
and Fourteenth Amendments and Article 2, §§ 1, 4, and 15 of the
Arizona Constitution. Rejected by State v. Salazar, 173 Ariz.
399, 411, 844 P.2d 566, 578 (1992).
11) The constitution requires a proportionality review of
a defendant’s death sentence which would allow the court to
identify cases sufficiently above the norm of first degree
murder to justify capital punishment. Rejected by Salazar, 173
Ariz. at 416, 844 P.2d at 588.
12) There is no meaningful distinction between capital and
non-capital cases, making each crime the product of an
unconstitutionally vague statute. Rejected by Salazar, 173
Ariz. at 411, 844 P.2d at 578.
13) Arizona’s capital sentencing scheme unconstitutionally
serves no deterrent purpose, exceeds any legitimate retributive
aim, is without penalogical justification, and results in the
gratuitous infliction of suffering. Rejected by Gregg, 428 U.S.
at 183.
46
14) The conditions and length of appellant’s confinement
constitute cruel and unusual punishment. Rejected by Comer v.
Stewart, 215 F.3d 910, 916 (9th Cir. 2000).
47