SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-07-0164-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR1999-016742-001 DT
JULIUS JARREAU MOORE, )
)
Appellant. )
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Norman D. Hall, Judge (Deceased)
CONVICTIONS OTHER THAN FIRST-DEGREE PREMEDITATED MURDER
AFFIRMED; FIRST-DEGREE PREMEDITATED MURDER CONVICTIONS AFFIRMED
IN PART, REVERSED IN PART; SENTENCES AFFIRMED
________________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Lacey Stover Gard, Assistant Attorney General Tucson
Attorneys for State of Arizona
DAVID GOLDBERG, ATTORNEY AT LAW Fort Collins, CO
By David Goldberg
Attorney for Julius Jarreau Moore
________________________________________________________________
B A L E S, Justice
¶1 This mandatory appeal is from a jury’s determination
that Julius Jarreau Moore should be sentenced to death for two
of the three murders for which he was convicted. We have
jurisdiction under Article 6, Section 5(3), of the Arizona
Constitution and Arizona Revised Statutes (“A.R.S.”) section 13-
4031 (2001).
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In November 1999, Delia Ramos and Sergio Mata were
selling crack cocaine from a small rental house in which they
lived on East Yale Street in Phoenix.1 Delia’s brother Guadalupe
Ramos lived with the couple.
¶3 On November 15, Debra Ford came to the house around
5:30 p.m., bought $30 to $40 of crack cocaine, and began smoking
it. After Ford ran out of money and drugs, she remained at the
house hoping Delia would give her more crack. Later that
evening, Ford sat outside the house smoking crack with Moore and
Sarry Ortiz. At some point, Moore left and Ford went with Ortiz
to drive around and smoke more crack. Ford again smoked crack
when she later returned to the Yale Street house.
¶4 While Ford was away with Ortiz, Moore went to his
mother’s house, where he lived with his girlfriend, Jessica
Borghetti. Moore told Borghetti that he had seen a person who
had tried to run him over and he was not going to stand for it.
He took a 9 mm pistol and drew a map for Borghetti of where he
was going in case something happened to him. The map showed a
destination other than the Yale Street house.
¶5 Tony Brown, an acquaintance of Ford, stopped by the
1
Except in our independent review of the death sentence, A.R.S.
§ 13-755(A) (Supp. 2008), we view the facts in the light most
favorable to sustaining the jury’s verdict. See State v. Garza,
216 Ariz. 56, 61 n.1, 163 P.3d 1006, 1011 n.1 (2007).
2
Yale Street house at about 4:00 a.m. on November 16, looking for
his girlfriend. Brown saw Mata outside and offered him cash if
he would tell Brown’s girlfriend to come out. When Mata tried
to take the cash, Brown hit Mata and threatened him. Mata ran
inside and Brown decided to leave.
¶6 As he was leaving, Brown saw a man, whom he later
identified as Moore, hiding in oleander bushes near the house.
Brown had seen Moore earlier that evening at a different crack
house. Brown testified that Moore called him over to the
bushes, flashed a gun, and asked if Brown wanted to help Moore
“get” Mata. Brown declined and left on his bicycle.
¶7 After Brown left, Moore sat outside the Yale Street
house smoking cigarettes with Ford and Guadalupe. Moore went
inside, obtained a small amount of crack, and then came back
outside to smoke it. Guadalupe and Ford went back inside the
house. While inside, Ford could hear Moore repeatedly knocking
on the door and calling for her. Delia gave Ford some crack and
asked her to leave.
¶8 When Ford went outside, Moore asked if she got more
crack and offered to let her use his pipe. Mata then came
outside. Moore asked whether Mata had a problem with him. Ford
heard no response; instead, she saw Moore shoot Mata and then
turn and shoot her. Ford fell to the ground and heard several
more gunshots in quick succession.
3
¶9 Shortly afterward, Ortiz picked up Moore near the Yale
Street house and drove him to his mother’s house. When he went
inside, his mother began yelling at him. Moore told Borghetti
he did not “need that right now” because he had just shot four
people. Upon learning that Moore had been out all night, his
mother kicked him and Borghetti out of the house. Moore and
Borghetti left with Ortiz. Moore gave Ortiz some crack while
they drove around.
¶10 While driving, Ortiz saw Ford lying in the front yard
of the Yale Street house. Ortiz got out of her car and flagged
down a taxi driver who called 911. Ortiz noticed Moore trying
to “take off in [her] car.” She got back in her car and they
drove around the neighborhood, picked up Ortiz’s friend, stopped
at another crack house to smoke crack, and then drove past the
crime scene again. After seeing the police had arrived, Ortiz
took Moore and Borghetti back to his mother’s house. As he got
out of the car, Moore gave Ortiz and her friend some crack.
¶11 Moore and Borghetti packed some belongings, including
Moore’s gun and the clothes he had worn the previous night, and
went to some friends’ apartment. After his photo appeared in
the newspaper, Moore cut off his braids in an effort to alter
his appearance. On November 23, 1999, Phoenix police officers
arrested Moore and Borghetti at the apartment. A firearms
examiner later concluded that bullets found at the crime scene
4
had been fired from Moore’s gun.
¶12 Moore was indicted for and convicted of two counts of
premeditated and felony murder for the murders of Delia and
Guadalupe, one count of premeditated murder for the murder of
Mata, one count of attempted first-degree murder for the
injuries to Ford, and one count of first-degree burglary. The
trial court was to sentence Moore in August 2002, but the
hearing was vacated after the Supreme Court held that Arizona’s
capital sentencing scheme was unconstitutional. See Arizona v.
Ring (Ring II), 536 U.S. 584, 609 (2002).
¶13 In November 2004, the trial court empanelled a jury to
determine Moore’s sentence. The State alleged two aggravators:
that Moore murdered Delia in an especially cruel manner, see
A.R.S. § 13-703(F)(6) (Supp. 1999), and that Moore murdered
multiple persons on the same occasion, see id. § 13-703(F)(8).
The jury did not reach a verdict on the (F)(6) aggravator, but
did find the (F)(8) aggravator. Before the penalty phase
concluded, the court declared a mistrial because Moore’s medical
expert suffered a heart attack.
¶14 In May 2007, the trial court empanelled a second jury
to determine Moore’s sentence. The court allowed the State to
retry the (F)(6) aggravator, and the second jury also failed to
reach a verdict on this aggravator. The court instructed the
jury that the (F)(8) aggravator had been established. The jury
5
determined that Moore should be sentenced to death for the
murders of Delia and Guadalupe, but should serve life
imprisonment for the murder of Mata.
DISCUSSION
A. Suggestive Identification
1. Pretrial Identification Procedures
¶15 Moore challenges the trial court’s denial of his
motions to suppress Ford’s pretrial and in-court
identifications. He argues that the court correctly concluded
that the pretrial identification procedures were unduly
suggestive, but erroneously found that Ford’s identification of
Moore was nonetheless reliable and therefore admissible under
Neil v. Biggers, 409 U.S. 188, 199-201 (1972).
¶16 Even if a pretrial identification procedure was
impermissibly suggestive, a subsequent identification is
admissible if it is nonetheless reliable. See State v. Lehr,
201 Ariz. 509, 520 ¶ 46, 38 P.3d 1172, 1183 (2002). To
determine reliability, Arizona courts consider the Biggers
factors. Id. at 521 ¶ 48, 38 P.3d at 1184.
[T]he factors to be considered [in evaluating the
likelihood of misidentification] include the
opportunity of the witness to view the criminal at the
time of the crime, the witness’ degree of attention,
the accuracy of his prior description of the criminal,
the level of certainty demonstrated at the
confrontation, and the time between the crime and the
confrontation.
6
Id. (alterations in original) (quoting Manson v. Brathwaite, 432
U.S. 98, 114 (1977)).
¶17 This Court reviews trial court rulings on pretrial
identifications for abuse of discretion. Id. at 520 ¶ 46, 38
P.3d at 1183. We defer to a trial court’s factual findings that
are supported by the record and are not clearly erroneous. See
State v. Grell, 212 Ariz. 516, 528 ¶ 58, 135 P.3d 696, 708
(2006). The ultimate question of the constitutionality of a
pretrial identification is, however, a mixed question of law and
fact. Sumner v. Mata, 455 U.S. 591, 597 & n.10 (1982)
(discussing difference between factual findings on particular
Biggers factors and ultimate conclusion whether facts state a
constitutional violation). This Court reviews de novo such
mixed questions of law and fact. See State v. Altieri, 191
Ariz. 1, 2 ¶ 7, 951 P.2d 866, 867 (1997) (applying de novo
review to ultimate legal determination of whether facts
supported investigatory stop). A trial court ruling on a motion
to suppress is reviewed based solely on the evidence presented
at the suppression hearing. State v. Newell, 212 Ariz. 389, 396
¶ 22, 132 P.3d 833, 840 (2006); State v. Dessureault, 104 Ariz.
380, 384, 453 P.2d 951, 955 (1969) (outlining procedures for
hearing).
¶18 On the morning of the shooting, Detective Tim Cooning
questioned Ford at the hospital. Ford described her assailant
7
as “Jay,” a “black male, approximately twenty-one years of age.”
She also said that she had not seen Jay before the shooting. In
the days that followed, Cooning showed Ford a photo of another
suspect – Tony Brown. Ford indicated that Brown was not the
shooter and that the shooter was “smaller in size and thinner
than [Brown].”
¶19 On November 20, 1999, four days after the shootings,
Cooning questioned Ford again at the hospital. Lying in a
hospital bed, Ford could not easily speak because she had a
tracheotomy and tubes in her nose. Cooning showed Ford a photo
lineup of six African-American males that included Moore. Asked
if she recognized anyone, Ford shook her head no. Cooning then
asked Ford if she had any doubt that it was “Jay” who shot her
and she again shook her head no. She nodded in assent when
asked to confirm that she had previously said that Jay acted
alone, that he was smaller and skinnier than Brown, and that he
was a black male, approximately twenty-one years of age, who
wore braids. Cooning also showed Ford two composite sketches,
which she indicated looked a bit like the shooter.
¶20 Ford was deposed on videotape on April 28, 2000.
Although Ford was in a wheelchair and paralyzed from the neck
down, she was able to speak and appeared alert. At the
deposition Ford testified that Jay, the man who shot her, had
medium-size braids and was wearing a stocking cap and hooded
8
shirt. Ford also testified that she had met Jay three years
earlier while using crack and hanging out near 23rd Avenue and
Indian School and that she had not seen him again until the
night before the shootings. She stated that her shooter was
eighteen years old and about 6’1”. The prosecutor showed Ford a
video lineup comprised of short video clips of seven African-
American men, including Moore. Ford was again unable to
identify Moore.
¶21 On cross-examination defense counsel asked Ford to
confirm that she had previously been shown pictures to see if
she could identify the shooter. Ford said that while she was in
the hospital an unidentified policeman had shown her a picture
of the person who shot her. On redirect, the prosecutor showed
Ford the video of the November 20, 1999 interview in which
Cooning showed her the six-person photo lineup and the two
composite sketches. The prosecutor then asked if the composite
in the video looked like someone she knew. Ford instead focused
on the photo lineup and said: “That looked like — one of them —
it’s two of them in the middle, right? Looked more like him —
more like him than the picture I just seen just now.” The
prosecutor then showed her the original photo lineup and she
immediately identified Moore as the shooter.
¶22 Before trial, Moore moved to suppress Ford’s out-of-
court identification and any prospective in-court
9
identification. Moore argued that the identification was unduly
suggestive because Moore was the only common subject in the six-
person photo lineup and the seven-person video lineup and Ford
had identified him only upon the fourth showing of a lineup that
included his picture. After conducting a Dessureault hearing,
the court found that the State had failed to establish that the
deposition identification procedures were not unduly suggestive,
but the State had established that Ford’s “in-court
identification could be reliable, independent of and untainted
by the April 28, 2000 identification.”
¶23 Because the State does not challenge on appeal the
trial court’s conclusion that the identification procedures at
the April deposition were unduly suggestive, we must apply the
Biggers factors to determine whether the trial court erred in
concluding that Ford’s identification was nevertheless reliable.
See Lehr, 201 Ariz. at 521 ¶ 48, 38 P.3d at 1183-84.
a. Opportunity to view the criminal at the time of the
crime
¶24 The trial court found, with support in the record,
that Ford had an adequate opportunity to view Moore. Although
the shootings occurred in the darkness of early morning, and
Ford had been consuming crack throughout the night, Ford
testified that thirty seconds before Mata came outside she
talked with Moore from a distance of six to seven feet. She
10
also had spent time with Moore earlier that evening when they
had smoked crack together, and she had heard him calling for her
several times during a fifteen minute period before she went
outside.
b. Witness’s degree of attention
¶25 Although the trial court did not make an explicit
finding on this factor, the record shows that Ford’s attention
was directed to Moore when the shootings began. She went
outside in response to his persistent calling for her, and when
she emerged they talked about whether she had more crack.
Within seconds Mata came outside and the encounter between the
two men occurred.
c. Accuracy of the witness’s prior description of the
criminal
¶26 Under Biggers, we assess the accuracy of a witness’s
prior description, i.e., before the unduly suggestive procedure.
See 409 U.S. at 199-200. Moore did not argue below, and we do
not find, that the initial showing of the six-person photo
lineup to Ford in November 1999 was unduly suggestive. In that
interview, Ford confirmed an earlier description of her
assailant as a black male, twenty-one years old, named Jay, who
wore braids, and who was smaller and thinner than Tony Brown.
The record supports the trial court’s finding that Ford’s prior
description of the shooter coincided with Moore’s appearance.
11
d. Level of certainty demonstrated by the witness at
the confrontation
¶27 Although the prosecution did not ask Ford about her
level of certainty in identifying Moore, the video deposition
reflects that she was certain that the person she identified in
the photo lineup shot her. Before seeing the photo lineup
again, she testified, “I know who shot me.” After watching the
video of her November 1999 interview, she said that one of
photos “looked more like him” than the composite sketches. When
she was then shown the actual photo lineup, she immediately
identified Moore.
e. Length of time between the crime and the
confrontation
¶28 The deposition took place nearly six months after Ford
witnessed the shooting. This passage of time does not in itself
defeat the reliability of the identification. See, e.g., id. at
201 (finding identification made seven months after crime
reliable); Lehr, 201 Ariz. at 521 ¶ 51, 38 P.3d at 1184 (stating
passage of four months gives pause but ultimately does not
threaten reliability).
f. Weighing of factors and conclusion
¶29 Whether a pretrial identification is reliable is based
on the “totality of the circumstances.” Biggers, 409 U.S. at
199. We find that the State established a reliable basis for
Ford’s identification independent of any suggestive procedures
12
used at the April 2000 deposition. Ford’s use of crack cocaine,
her failure to identify Moore in her November 1999 interview,
and any inconsistencies in her account affect the weight, rather
than the admissibility, of her identification and were
appropriately the subject of cross-examination. The trial court
did not err in admitting Ford’s pretrial and in-court
identifications.
2. The Prosecution’s Opening Statement Comment
¶30 During opening statements, the prosecutor told the
jury, “Debra . . . knew Julius Moore, Jay. She described him.
She recognized him from the night of the shooting from seeing
him before, and she recognized him sometime later as well.”
Toward the end of his remarks, the prosecutor again emphasized
Ford’s identification. While the prosecutor spoke, Ford sat in
the courtroom without objection from Moore.
¶31 After opening statements, defense counsel renewed the
Dessureault objection. Counsel asserted that Ford had not
previously been told that the person she identified in the photo
lineup was indeed Moore, and therefore any in-court
identification by Ford would be “even more suggestive, and less
likely to have a source independent of the previous unduly
suggestive out-of-court identification.”
¶32 “[I]f [a] pretrial identification comports with due
process, subsequent identification at trial does not violate a
13
defendant’s rights merely by following on the heels of the
earlier confrontation.” Lehr, 201 Ariz. at 521 ¶ 52, 38 P.3d at
1184. Because Ford’s pretrial identification was otherwise
reliable, and therefore did not violate due process, the
prosecutor’s reference to it in his opening statement does not
render inadmissible either the pretrial identification or the
later in-court identification.
B. Guilt-Phase Jury Selection Issues
1. Morgan v. Illinois Challenge
¶33 In Morgan v. Illinois, the Supreme Court held that a
capital defendant is entitled, upon request, to inquire whether
prospective jurors believe death should always be imposed for
the conviction of a capital offense. 504 U.S. 719, 735-36
(1992). Failure to permit such questioning is structural error.
Id. at 729-30.
¶34 Moore argues that the trial court committed structural
error by not asking jurors if they thought the death penalty
should be imposed in all cases in which a person knowingly or
intentionally kills another, even though counsel had
specifically requested a jury questionnaire including such
“life-qualifying” questions.
¶35 There was no Morgan error here. The trial court
declined to use a written juror questionnaire and instead told
counsel: “[T]hat is not to suggest that these questions can’t
14
and won’t be asked.” After conducting oral voir dire, the trial
court allowed the prosecutors and defense counsel to question
the panel. Among other questions, Moore’s counsel asked: “Is
there anyone on the panel here that thinks the death penalty is
not given enough in the United States, or this state, for that
matter?” Defense counsel did not ask other life-qualifying
questions.
¶36 Because Moore was allowed to question the jurors, he
cannot complain that the trial court did not itself ask life-
qualifying questions. See State v. Moody (Moody II), 208 Ariz.
424, 452 ¶ 98, 94 P.3d 1119, 1147 (2004) (“[A] defendant who
believes a trial court’s voir dire to be deficient cannot sit on
his rights and bypass the opportunity to cure the error
. . . .”). The trial court did not prevent defense counsel from
asking life-qualifying questions, but instead refused to ask
them in a written questionnaire and invited counsel to ask such
questions in oral voir dire.
2. Witherspoon v. Illinois Challenge
¶37 Moore argues that the trial court erroneously struck
three jurors for cause in violation of Witherspoon v. Illinois,
391 U.S. 510 (1968). We review a trial court’s decision to
strike a potential juror for cause for abuse of discretion.
State v. Jones, 197 Ariz. 290, 302 ¶ 24, 4 P.3d 345, 357 (2000).
¶38 “A death sentence cannot be upheld if the jury was
15
selected by striking for cause those who ‘voiced general
objections to the death penalty or expressed conscientious or
religious scruples against its infliction.’” State v. Ellison,
213 Ariz. 116, 137 ¶ 88, 140 P.3d 899, 920 (2006) (quoting
Witherspoon, 391 U.S. at 522). A judge, however, is required to
question jurors regarding their opinions on the death penalty,
see, e.g., State v. Anderson (Anderson I), 197 Ariz. 314, 318-19
¶¶ 7-10, 4 P.3d 369, 373-74 (2000), and, after attempting
rehabilitation, must remove a potential juror from the jury pool
if the juror’s personal views may “prevent or substantially
impair the performance of [the juror’s] duties.” Wainwright v.
Witt, 469 U.S. 412, 424 (1985) (internal quotation marks
omitted). We defer to the trial judge and a juror’s bias need
not be proved with unmistakable clarity. Id. at 424-25.
Instead, “even if a juror is sincere in his promises to uphold
the law, a judge may still reasonably find a juror’s
equivocation ‘about whether he would take his personal biases in
the jury room’ sufficient to substantially impair his duties as
a juror, allowing a strike for cause.” Ellison, 213 Ariz. at
137 ¶ 89, 140 P.3d at 920 (quoting State v. Glassel, 211 Ariz.
33, 48 ¶¶ 49-50, 116 P.3d 1193, 1208 (2005)).
¶39 Moore makes two arguments with regard to the striking
of the three potential jurors. He primarily argues that the
trial court committed structural error under Anderson I by
16
striking jurors who had expressed general reservations about the
death penalty without specifically asking if they could set
aside their beliefs and follow the law. He also suggests that
the trial judge abused his discretion in excluding these jurors
given their responses to the questions asked.
¶40 During jury selection, the court informed the
prospective jurors that if they were selected they would be
instructed not to consider the possible punishment in
determining guilt or innocence; that if the defendant were found
guilty of first-degree murder, the court may impose a sentence
of either life imprisonment or death; and that the jury would
not determine the sentence. The court then asked the potential
jurors: “Do any of you have any conscientious or religious
scruples or feeling that would prevent you from voting for first
degree murder because of the possible imposition of the death
penalty?” In response, three jurors responded affirmatively.
After briefly questioning these jurors, the court dismissed each
for cause.
¶41 Moore relies on Anderson I to argue that the trial
court’s failure to ask prospective jurors if they could set
aside their beliefs and follow the law is itself a structural
error that requires reversal. We reject this argument.
Anderson I held that structural error results if jurors are
dismissed based on their generalized answers to a written
17
questionnaire without any opportunity to rehabilitate them
through oral voir dire. Ellison, 213 Ariz. at 137 ¶ 87, 140
P.3d at 920.
¶42 The court’s failure here to specifically ask jurors if
they could set aside their beliefs is not analogous to the trial
court’s refusal in Anderson I to allow any oral voir dire after
jurors voiced general objections. The Federal Constitution does
not dictate a “catechism” for voir dire, and we have recognized
that jurors may be excluded for cause even if they affirm that
they can set aside their beliefs and follow the law. Id. at
¶ 89.
¶43 The issue thus becomes whether, given the questions
that were asked and the responses, the trial judge abused his
discretion in dismissing Jurors M., S., and G. for cause. These
jurors did not merely state general objections to the death
penalty. Instead, after the judge explained that the jury would
not determine, and should not consider, sentencing, they each
stated that their views on the death penalty could affect their
ability to decide the merits. Juror M. said that even though
the jury was not going to decide punishment, she was so strongly
opposed to the death penalty that it might affect her ability to
decide the case on its own merits. Juror S. said that his
feelings about the death penalty would probably interfere with
how he would decide the case. Finally, Juror G. said there was
18
a pretty good chance that her strong feelings about the death
penalty would “come into play” in her decision on guilt or
innocence.
¶44 Although the trial court asked less extensive follow-
up questions than trial courts in many other cases we have
considered, cf. Uttecht v. Brown, 551 U.S. 1 (2007) (noting that
deference to trial court’s assessment of prospective demeanor of
juror is appropriate when trial court “has supervised a diligent
and thoughtful voir dire”), given the trial court’s prefatory
statement that the court and not the jury would decide
sentencing, as well as the individual juror’s responses, the
trial court could reasonably conclude that the views of these
prospective jurors might substantially impair the performance of
their duties as jurors.
C. Refusal to Order Drug Test of State’s Witness
¶45 Moore asserts that the trial court abused its
discretion by refusing to order Ortiz to undergo a drug test to
determine if she was under the influence of drugs while
testifying. “We review a trial court’s ruling on the competency
of a witness for an abuse of discretion.” State v. Cruz, 218
Ariz. 149, 166 ¶ 105, 181 P.3d 196, 213 (2008). A trial court’s
refusal to order a witness to submit to a drug test is also
reviewed for abuse of discretion. See State v. Apodaca, 166
Ariz. 274, 276, 801 P.2d 1177, 1179 (App. 1990).
19
¶46 A witness under the influence of drugs is not
necessarily incompetent to testify. See State v. Ballesteros,
100 Ariz. 262, 265, 413 P.2d 739, 741 (1966). A witness is
competent unless she is so impaired that she cannot coherently
respond to questioning. See Cruz, 218 Ariz. at 166 ¶ 106, 181
P.3d at 213.
¶47 Ortiz testified during the guilt phase trial; among
other things, her testimony placed Moore near the scene of the
murders. After her redirect examination, defense counsel asked
the trial court to order Ortiz to submit to a urinalysis test to
determine whether she was under the influence of drugs. Counsel
said that Ortiz was acting strangely because she was talking
rapidly and got “off track” during questioning. The court
denied the request because it did not view Ortiz’s behavior as
atypical of a witness. The court stated that Ortiz was
coherent, quick to respond to questions, and not slurring her
speech.
¶48 The trial court did not abuse its discretion in
refusing to order a drug test. The transcript and partial video
recording of Ortiz’s testimony show that Ortiz was coherent and
responded appropriately to questioning, even though she had a
tendency to ramble and interrupt counsel. Cf. id. (“Although
[witness’s] testimony was somewhat rambling, it was coherent.”).
The trial court therefore did not abuse its discretion in
20
finding her competent to testify. Moreover, defense counsel was
not prevented from cross-examining Ortiz regarding her drug
history or whether she was under the influence of drugs while
testifying. Cf. State v. Orantez, 183 Ariz. 218, 222-23, 902
P.2d 824, 828-29 (1995) (discussing impeachment of witness based
on drug use).
D. Notice and Sufficiency of Evidence of Burglary and Felony
Murder Charges
¶49 With regard to the deaths of Delia and Guadalupe, the
indictment charged that Moore had committed first-degree
premeditated murder or, in the alternative, had committed first-
degree felony murder with a predicate felony of first-degree
burglary. The indictment also charged Moore with first-degree
burglary, alleging that he, while possessing a handgun, had
“with the intent to commit a theft or a felony therein, entered
or remained unlawfully in or on the residential structure of
Delia Ramos” at East Yale Street. Arizona statutes identify
burglary as one of the predicates for felony murder, A.R.S.
§ 13-1105(A)(2) (Supp. 1999), and define burglary to include
unlawfully entering or remaining in a residence with the intent
to commit “theft or any felony therein.” Id. §§ 13-1506, -1507,
-1508 (1989).
¶50 Moore argues that he was denied due process because
the State did not provide notice until the settling of jury
21
instructions, and after the close of evidence, that it intended
to establish burglary based on Moore’s entering the house with
the intent to commit murder rather than theft. Moore further
argues that burglary based on a defendant’s intent to murder
cannot validly serve as a predicate for felony murder and
accordingly there was insufficient evidence to support his
felony-murder convictions.
1. Notice
¶51 This Court reviews constitutional issues and purely
legal issues de novo. Moody II, 208 Ariz. at 445 ¶ 62, 94 P.3d
at 1140. The Sixth Amendment and due process require that a
defendant be given “notice of the specific charge, and a chance
to be heard in a trial of the issues raised by that charge.”
Cole v. Arkansas, 333 U.S. 196, 201 (1948). Similarly, Arizona
Rule of Criminal Procedure 13.2 provides that an “indictment or
information shall be a plain, concise statement of the facts
sufficiently definite to inform the defendant of the offense
charged.”
¶52 Moore chiefly relies on State v. Blakley, 204 Ariz.
429, 65 P.3d 77 (2003). In Blakley, the state initially
disclosed sexual assault as the predicate offense for felony
murder; at the close of evidence and before closing arguments,
however, the state requested a jury instruction that added child
abuse as an alternative predicate offense. Id. at 439 ¶ 46, 65
22
P.3d at 87. Blakley had defended the case assuming that sexual
assault was the sole predicate felony and had presented evidence
suggesting that the victim died of injuries consistent with
child abuse rather than sexual assault. Id. at 440 ¶ 54. He
also identified other evidence he would have presented had he
known child abuse was also alleged. Id.
¶53 Blakley concluded that “[t]he insertion of a new
predicate felony after all the evidence was in and the defense
had rested constitutes reversible error. The prejudice caused
by such late notice was obvious. The defendant was deprived of
his constitutional right to a fair trial.” Id. at ¶ 55. We
further noted, “[i]n order to avoid injustice and to ensure that
proper notice has been given in a felony murder case, we believe
the state should include the predicate felony in the original or
an amended indictment.” Id. at ¶ 56.
¶54 Moore’s case is distinguishable from Blakley. Moore
does not argue that the State charged or argued one theory and
then attempted to adopt another after the close of evidence.
Instead, Moore complains that the State, while charging felony
murder based on burglary, did not specify until the settling of
jury instructions, and after the close of evidence, that
burglary would be defined by his intent to commit murder rather
than theft.
¶55 We agree with Moore that Blakley implies that the
23
state should identify before trial the particular felony that
will be used to define burglary when the latter crime is the
predicate for felony murder. But Blakley itself recognizes that
the state’s failure to specify the predicate felony before trial
will not be reversible error if the defendant otherwise has
notice and an opportunity to respond to the accusations. See
id. at 439-40 ¶¶ 50, 52, 65 P.3d at 87-88. Blakley explained
that in State v. Arnett, 158 Ariz. 15, 18, 760 P.2d 1064, 1067
(1988), the Court found adequate notice when the state mentioned
the predicate felony on the first day of trial, “giving defense
counsel a reasonable chance to rebut the allegation.” Blakley,
204 Ariz. at 439 ¶ 50, 65 P.3d at 87. Similarly, in State v.
Eastlack, 180 Ariz. 243, 258, 883 P.2d 999, 1014 (1994), the
Court rejected the defendant’s argument that he had received
inadequate notice that kidnapping would be used as a predicate
felony when the defendant failed to show either prejudice or
unfair surprise.
¶56 Like the defendants in Eastlack and Arnett, Moore was
not denied notice of the predicate felony in a way that violates
due process or otherwise constitutes reversible error. Although
the State did not specifically identify until after the close of
evidence that the predicate burglary would itself be based on
Moore’s intent to murder, he had both notice and an opportunity
to defend against the underlying accusations. Moore had notice
24
he was accused of entering or remaining in the Yale Street house
with the intent to murder because he was charged with the
premeditated murders of Guadalupe and Delia and with first-
degree burglary of the house.
2. Felony Murder and the Merger Doctrine
¶57 Relying on State v. Essman, 98 Ariz. 228, 403 P.2d 540
(1965), Moore also argues that under the merger doctrine, felony
murder cannot be predicated upon a burglary that is itself based
on the intent to murder.
¶58 In Essman, the Court held that the trial court had
erred by instructing the jury that the felony-murder doctrine
could apply based on assault with a deadly weapon. Id. at 235,
403 P.2d at 545. Although Arizona statutes did not identify
assault as a predicate for felony murder, the Court reasoned
more generally that allowing assault to serve as a predicate
would eliminate any requirement of proof of premeditation for
nearly all first-degree murders. See id. at 235-36, 403 P.2d at
545. Quoting Judge Cardozo, the Court observed:
“The felony that eliminates the quality of the intent
must be one that is independent of the homicide and of
the assault merged therein, as e.g., robbery or
larceny or burglary or rape.”
Id. (quoting People v. Moran, 158 N.E. 35, 36 (1927)).
¶59 Later Arizona cases implicitly rejected the broad
language in Essman suggesting that the predicate felony must be
25
“independent of the homicide.” For example, in State v.
Miniefield, the defendant argued that it was fundamental error
to charge him with felony murder by arson because “the arson was
merely the use of fire to attempt to kill the victim.” 110
Ariz. 599, 601, 522 P.2d 25, 27 (1974). The Court rejected this
argument by noting that the felony murder statute provided that
when a person commits arson and the arson results in death it is
first-degree murder. Id. at 602, 522 P.2d at 28. “The statute
does not draw a distinction between a person who intends to kill
another by fire and one who only intends to burn down a dwelling
house and accidentally kills one of the occupants.” Id.; see
also State v. Lopez, 174 Ariz. 131, 141-42, 847 P.2d 1078, 1088-
89 (1992) (distinguishing Essman).
¶60 Most recently, the Court distinguished Essman in State
v. Dann (Dann I), 205 Ariz. 557, 74 P.3d 231 (2003). There, the
defendant argued that because he intended to murder a victim
rather than assault him, he could not be convicted of felony
murder. Id. at 567 ¶ 29, 74 P.3d at 241. Noting that the
defendant did not dispute that felony murder could be predicated
on burglary based on intent to commit assault, the Court held
that sufficient evidence supported the finding of the predicate
offense. Id. at 567-68 ¶¶ 27-29, 74 P.3d at 241-42. The Court
further observed that “[m]erger does not apply in cases in which
26
the separate crime of burglary is alleged and established.” Id.
at 568 n.7 ¶ 29, 74 P.3d at 242 n.7.
¶61 Dann I and Miniefield defeat Moore’s argument that
felony murder cannot be predicated on a burglary that is based
on the intent to murder. The felony murder statute, A.R.S.
§ 13-1105(A)(2), does not distinguish between burglaries defined
by intent to commit assault versus intent to murder. It would,
moreover, 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.
¶62 Moore notes that courts in several other states have
held that a felony-murder conviction cannot be based on a
burglary intended solely to murder the victim. See Parker v.
State, 731 S.W.2d 756, 758-59 (Ark. 1987); People v. Garrison,
765 P.2d 419, 435 (Cal. 1989); People v. Wilson, 462 P.2d 22,
27-28 (Cal. 1969); Williams v. State, 818 A.2d 906, 910-13 (Del.
2002); People v. Cahill, 809 N.E.2d 561, 588-89 (N.Y. 2003). We
find these cases unpersuasive because we have already recognized
that Arizona’s felony-murder statute identifies burglary based
on assault as a valid predicate offense; these out-of-state
cases conflict with Miniefield and Lopez insofar as they require
the predicate offense to be separate or independent from the
homicide, and our Court in Lopez distinguished Arizona’s felony
27
murder scheme from that of California. 174 Ariz. at 142, 847
P.2d at 1089. Cf. People v. Farley, 2009 WL 1886072, No.
S024833 (Cal. July 2, 2009) (overruling Wilson and holding
merger doctrine does not apply to first-degree felony murder).
¶63 We therefore reject Moore’s use of the merger doctrine
to challenge his convictions for felony murder.
E. Definition of Premeditation
¶64 Moore argues that the trial court incorrectly
instructed the jury that “proof of actual reflection is not
required” to establish premeditation and the prosecutor’s
closing argument compounded this error.
¶65 The use of the phrase “proof of actual reflection is
not required” is an erroneous instruction on premeditation if
given in a jury instruction “without further clarification.”
State v. Thompson, 204 Ariz. 471, 480 ¶ 34, 65 P.3d 420, 429
(2003); accord Dann I, 205 Ariz. at 565 ¶ 16, 74 P.3d at 239.
¶66 Here, the court instructed the jury that
“[p]remeditation” means that a person 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. Proof of actual reflection is not
required, but an act is not done with premeditation if
it is the instant effect of a sudden quarrel or heat
of passion.
28
During closing arguments the prosecutor reinforced the court’s
instruction by repeatedly telling the jury that Moore “had time
to reflect” with respect to the murders.
¶67 Moore properly objected to the instruction, and the
State correctly concedes that it was erroneous. Accordingly, we
must determine if the error was harmless. Dann I, 205 Ariz. at
565 ¶ 18, 74 P.3d at 239. “An error is harmless if it appears
beyond a reasonable doubt that the error . . . did not
contribute to the verdict obtained.” Id. (alteration in
original) (internal quotation marks omitted).
¶68 The State argues that Moore was not prejudiced by the
erroneous premeditation instruction because he pursued a
mistaken identity offense. We have previously rejected a
similar argument in the context of harmless error review. See
State v. Gomez, 211 Ariz. 494, 499-500, 123 P.3d 1131, 1136-37
(2005); Dann I, 205 Ariz. at 566 & n.3 ¶¶ 19-20, 74 P.3d at 240
& n.3.
¶69 There was, however, overwhelming evidence of Moore’s
premeditation with respect to the murder of Mata. Before
leaving his mother’s house with his gun, Moore told his
girlfriend that he had seen the person who had tried to run him
over and he was not going to stand for it. He later told Brown
that he was going to “smoke” Mata and asked if Brown wanted to
“get” Mata with him. When Mata came outside, Moore confronted
29
him by asking if Mata had a problem with him and then began
shooting. Moore told Borghetti after the shootings that he had
shot the person who had tried to run him over and he was sorry
about the other victims who “didn’t have anything to do with
it.” Given this evidence, the error in the premeditation
instruction was harmless beyond a reasonable doubt with regard
to the murder of Mata.
¶70 In contrast, the evidence of premeditation is less
compelling with regard to the other victims. The State argues
that premeditation was established because Moore, after shooting
Mata and Ford, “entered the house and hunted for Guadalupe and
Delia.” The State’s assertion that Moore “hunted” for the
victims is based on the fact that Moore entered the house, shot
Guadalupe in his sleep, and then immediately shot Delia as she
hid behind a pillow in the closet of another room.
¶71 In Dann I, the Court did not find overwhelming
evidence of premeditation based on the defendant’s killing the
victims by placing his gun muzzle against their heads or his
later making incriminating statements about his motives for
these shootings. See Dann I, 205 Ariz. at 566 ¶ 20, 74 P.3d at
240. This Court also noted that this evidence had to be
considered in light of the court’s erroneous instruction and the
prosecutor’s statements in closing that the passage of time
alone would support a finding of first-degree murder. See id.
30
at 565 ¶ 16, 74 P.3d at 239.
¶72 Consistent with Dann I, the evidence here is not so
overwhelming that this Court can conclude, beyond a reasonable
doubt, that the error in the premeditation instruction did not
affect the verdicts as to Delia and Guadalupe. We therefore
reverse the convictions for the premeditated murders of Delia
and Guadalupe. Because Moore remains convicted of felony murder
for their deaths, however, remand is unnecessary.
F. Lesser-Included Offense Instruction
¶73 Moore argues that the trial court committed
fundamental error by instructing the jury that it could find the
defendant guilty of second-degree murder only if it unanimously
found that the State had failed to prove first-degree murder
beyond a reasonable doubt, but did prove the less serious crime
beyond a reasonable doubt.
¶74 This Court disapproved such an “acquittal-first”
instruction in State v. LeBlanc, 186 Ariz. 437, 438-39, 924 P.2d
441, 442-43 (1996). Because Moore’s counsel did not object to
the instruction at trial, we review for fundamental error.
State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607
(2005).
¶75 The use of the instruction, although erroneous in
light of LeBlanc, does not constitute fundamental error. The
error is not fundamental in nature because Moore has not shown
31
that it denied him a fair trial or deprived him of a right
essential to his defense. See id. at 567 ¶ 19, 115 P.3d at 607.
Although LeBlanc disapproved of the instruction’s prospective
use, the Court expressly noted that the instruction does not
violate the state or federal constitutions, that its use is not
fundamental error, and that the adoption of a new instruction
was a procedural change made for purposes of judicial
administration. See LeBlanc, 186 Ariz. at 439-40, 924 P.2d at
443-44. We reject Moore’s argument that once LeBlanc
disapproved the instruction, its subsequent use necessarily
makes the error fundamental.
G. Right to Conflict-Free Counsel
¶76 Moore argues that he was denied his Sixth Amendment
right to conflict-free counsel when, after he had been convicted
in his first trial, the trial court denied two motions for
substitute counsel before the sentencing trials.
¶77 A trial court’s decision to deny a request for new
counsel will not be disturbed absent an abuse of discretion.
State v. Cromwell, 211 Ariz. 181, 186 ¶ 27, 119 P.3d 448, 453
(2005). “The presence of an irreconcilable conflict or a
completely fractured relationship between counsel and the
accused ordinarily requires the appointment of new counsel.”
Id. at ¶ 29. Disagreements over defense strategy do not
constitute an irreconcilable conflict. Id.
32
¶78 In 2002, Moore’s counsel moved to withdraw on the
grounds that there was an irreconcilable conflict between them
and Moore. The identified conflict concerned the evidence to be
presented at sentencing. Moore desired to maintain his
innocence and to offer testimony by an alibi witness (whom
counsel, with Moore’s agreement, decided not to call at the
guilt trial) and also to inform the jury, in allocution, that he
had passed a polygraph examination after his convictions.
Moore’s counsel instead wanted to present Moore’s drug use as
mitigation. The trial court denied the motion to withdraw on
the grounds that the conflict concerned sentencing strategy.
¶79 Moore contends that determining what evidence to
present at a capital sentencing trial is a “fundamental
decision” that must be made by the defendant himself, and not
merely a strategic decision to be made by his lawyers. Cf.
Jones v. Barnes, 463 U.S. 745, 751 (1983) (recognizing that
defendant has “ultimate authority” over certain “fundamental
decisions regarding the case” including whether to plead guilty,
waive a jury trial, testify on his own behalf, or take an
appeal).
¶80 The trial court did not abuse its discretion in
denying the motion to withdraw. Recognizing that certain
decisions during the sentencing phase of a capital case may be
fundamental, we do not regard Moore’s desire to present evidence
33
of actual innocence to be such a decision. The trial court
properly precluded evidence of actual innocence from the
sentencing phase. See infra ¶¶ 107-09. A defendant’s desire to
present inadmissible evidence contrary to counsel’s sentencing
strategy does not give rise to an irreconcilable conflict.
¶81 Moore’s counsel again sought to withdraw in 2003, this
time arguing that they had an actual conflict because their
office had previously represented a statutory victim in the case
who did not want to testify. This victim, counsel avowed, knew
that other persons wanted to kill the victims, which would be
relevant to residual doubt, and that the victims were drug
dealers, which could rebut any victim impact evidence the State
might present. Moore’s counsel argued that new counsel could
call the witness in question without violating any ethical
rules. After a hearing, the trial court denied the motion
because Moore had failed to show the witness could offer any
relevant, noncumulative information.
¶82 To succeed on a conflict of interest claim, a
defendant must prove the existence of an actual conflict that
adversely affected counsel’s representation. State v. Jenkins,
148 Ariz. 463, 465-66, 715 P.2d 716, 718-19 (1986). To
establish an actual conflict, a defendant must demonstrate that
some plausible alternative defense strategy or tactic might have
been pursued. Id. at 466 n.1, 715 P.2d at 719 n.1.
34
¶83 The trial court correctly denied the second motion to
withdraw. Moore has not shown that there was a plausible
alternative defense strategy that could have been pursued absent
the alleged conflict. Moore argues that a conflict-free lawyer
could have subpoenaed the former client and forced him to
testify. This possibility, however, was not a plausible
alternative strategy because the witness’s contemplated
testimony concerned either residual doubt, which would not have
been admissible at sentencing, or rebuttal of victim impact
evidence, which the State did not introduce. Moore has not
shown that the identified conflict adversely affected his
counsel’s representation.
H. (F)(8) Aggravator
¶84 Moore contends that trial court erroneously failed to
completely instruct the jury on the elements of the (F)(8)
aggravator at the first sentencing trial, that the instruction
given was unconstitutionally vague, and that structural error
occurred.
¶85 This Court reviews de novo whether “instructions to
the jury properly state the law.” See Glassel, 211 Ariz. at 53
¶ 74, 116 P.3d at 1213. Because Moore did not object to the jury
instruction at the first sentencing trial, we review for
fundamental error. See Henderson, 210 Ariz. at 567 ¶ 19, 115
P.3d at 607.
35
¶86 To prove the (F)(8) aggravator, the State must
establish beyond a reasonable doubt that the murders took place
during a “continuous course of criminal conduct” and were
“temporally, spatially, and motivationally related.” State v.
Armstrong (Armstrong III), 218 Ariz. 451, 464 ¶ 67, 189 P.3d
378, 391 (2008). The instruction here instead required only a
finding that the homicides were “committed on the same
occasion,” and was therefore erroneous, which the State
concedes. See State v. Ring (Ring III), 204 Ariz. 534, 560-61
¶¶ 80-81, 65 P.3d 915, 941-42 (2003).
¶87 Moore must also show prejudice to establish that the
incomplete instruction was fundamental error. He cannot meet
this burden because the record of Moore’s first sentencing trial
demonstrates a temporal, spatial, and motivational relationship
substantial enough that no reasonable jury could fail to find
the (F)(8) aggravator beyond a reasonable doubt. See State v.
Armstrong (Armstrong II), 208 Ariz. 360, 364-65 ¶ 11, 93 P.3d
1076, 1080-81 (2004). Ford’s uncontroverted testimony
established the temporal element because within seconds, she saw
Moore shoot Mata and her and then heard multiple gunshots. See
State v. Dann (Dann II), 206 Ariz. 371, 373 ¶ 9, 79 P.3d 58, 60
(2003) (finding temporal element established when murders
occurred in a “short, uninterrupted span of time”). The spatial
element was established by the uncontested evidence that
36
Guadalupe and Delia were shot inside the Yale Street house,
while Mata was shot just outside the front door. See State v.
Tucker (Tucker I), 205 Ariz. 157, 169 ¶ 66, 68 P.3d 110, 122
(2003) (noting that spatial relationship was established when
victims were in different rooms of an apartment). Finally, no
reasonable jury could fail to find the motivational element
because the murders involved a continuous course of criminal
conduct and “it is difficult to imagine a motive for the
killings unrelated to the murder of [Mata].” See id.; see also
State v. Boggs, 218 Ariz. 325, 342 ¶ 81, 185 P.3d 111, 128
(2008) (upholding (F)(8) aggravator where “all the murders
involved a continuous course of criminal conduct”).
¶88 We also reject Moore’s arguments that the (F)(8)
instruction here was facially vague or that we should reconsider
Ring III and hold that a jury finding of an aggravator based on
an incomplete instruction is structural error.
I. Sentencing Jury Did Not Decide Guilt or Aggravating
Circumstance
¶89 Moore argues that his death sentences must be reversed
because the second sentencing jury did not itself find the
(F)(8) aggravator. He contends that because the first
sentencing jury invalidly found the (F)(8) aggravator based on a
flawed jury instruction, the State should have been required to
reprove this aggravator. He argues that this situation is
37
analogous to State v. Pandeli (Pandeli IV), 215 Ariz. 514, 522
¶ 15, 161 P.3d 557, 565 (2007), which recognizes that when a
capital sentence is vacated and remanded for resentencing, the
State must reprove the aggravating circumstances. Pandeli IV is
inapposite because neither Moore’s capital sentence nor the
first jury’s finding of the (F)(8) aggravator was vacated.
¶90 We also reject Moore’s related argument that the
second sentencing jury could not properly determine his sentence
in a “vacuum.” Substantially the same evidence was introduced
at the second sentencing trial as at the guilt phase trial and
the first sentencing trial. There was extensive presentation of
mitigation evidence. The second sentencing jury was therefore
able to make an individualized determination of Moore’s sentence
consistent with the case law of the Supreme Court and this
Court. See Tuilaepa v. California, 512 U.S. 967, 972 (1994);
State ex rel. Thomas v. Granville (Baldwin), 211 Ariz. 468, 472
¶ 17, 123 P.3d 662, 666 (2005).
¶91 Moore also argues that notwithstanding Lockhart v.
McCree, 476 U.S. 162 (1986), juries should no longer be death
qualified because “they unconstitutionally stack the deck
against a capital defendant.” We have previously upheld death
qualification of jurors. See, e.g., State v. Dann (Dann III),
220 Ariz. 351, ___ ¶ 28, 207 P.3d 604, 613 (2009); State v.
Bocharski, 218 Ariz. 476, 483 ¶ 18, 189 P.3d 403, 410 (2008).
38
¶92 Finally, Moore argues that permitting a jury to impose
a death sentence when it did not determine his guilt or the
(F)(8) aggravator violates the Sixth and Eighth Amendments
because the jury that sentenced him to death was able to
abdicate its responsibility to the other juries. Under Caldwell
v. Mississippi, “it is constitutionally impermissible to rest a
death sentence on a determination made by a sentencer who has
been led to believe that the responsibility for determining the
appropriateness of the defendant’s death rests elsewhere.” 472
U.S. 320, 328-29 (1985).
¶93 We have previously concluded that Caldwell’s dictate
is not violated when different juries determine guilt and
sentence if the sentencing jury is not misled as to its role.
Dann III, 220 Ariz. at ___ ¶¶ 29-30, 207 P.3d at 613-14;
Bocharski, 218 Ariz. at 483 ¶ 20, 189 P.3d at 410; State v.
Anderson (Anderson II), 210 Ariz. 327, 337 ¶¶ 21-23, 111 P.3d
369, 379 (2005). Moore argues, however, that this Court has
never sanctioned a bifurcation of the aggravation phase and
penalty phase juries. But this kind of bifurcation is not
substantively different from the bifurcation sanctioned under
our prior cases, and it did not mislead the sentencing jury to
believe that the responsibility for determining Moore’s sentence
would rest elsewhere. Moore’s sentencing jury received clear
instruction that it alone was responsible for the sentencing
39
decision. Therefore, Caldwell was not violated.
J. Sentencing Jury Voir Dire
¶94 Moore argues that the trial court deprived him of his
right to a fair and impartial sentencing jury by refusing to
strike pro-death jurors and restricting his questions to
potential jurors about their views on mitigation.
¶95 Morgan requires that defendants be afforded an
opportunity during voir dire to identify, and to strike for
cause, prospective jurors who would automatically impose the
death penalty once guilt is found. See Glassel, 211 Ariz. at
45-46 ¶¶ 37-41, 116 P.3d at 1205-06. Morgan does not, however,
entitle defendants to ask prospective jurors to identify
circumstances they would find mitigating or to answer open-ended
questions about their views on mitigation. See id. at 45-47
¶¶ 37, 42-44, 116 P.3d at 1205-07.
¶96 Trial court rulings on the scope of voir dire and
whether to strike jurors for cause are reviewed for abuse of
discretion. State v. Smith, 215 Ariz. 221, 230 ¶ 37, 159 P.3d
531, 540 (2007); Ellison, 213 Ariz. at 137 ¶ 88, 140 P.3d at
920. If a defendant is forced to use a peremptory challenge to
remove a juror who should have been excused for cause, an
otherwise valid conviction will not be reversed unless the
defendant shows prejudice. State v. Hickman, 205 Ariz. 192, 198
¶ 28, 68 P.3d 418, 424 (2003).
40
1. Denial of the Motions to Strike
¶97 Moore contends that the trial court misapplied Morgan
and improperly denied his motions to strike prospective Jurors
4, 9, 22, 61, 62, and 122.
¶98 Only one of these six jurors – Juror 9 – was selected
for the jury. In her responses during voir dire, Juror 9
indicated that she would listen to all of the evidence and the
instructions and could decide between a sentence of life or
death depending on the facts. Defense counsel did not object
that Juror 9 would automatically vote for a death sentence.
Instead, counsel argued that she should be disqualified because
she had said, in response to a question from defense counsel,
that she did not think age would make a difference to her as a
mitigating factor. As the trial court noted, the juror had not
been instructed on the law and was being posed the question in a
vacuum. Given Juror 9’s other responses to the voir dire
questions, the trial court did not abuse its discretion in
denying the motion to strike.
¶99 Jurors 4, 22, 61, 62 and 122 did not sit on the jury.
Thus, under Hickman, any error by the trial court in refusing to
strike them was not reversible error absent prejudice to Moore.
See Glassel, 211 Ariz. at 50 ¶ 56-57, 116 P.3d at 1210. No
evidence suggests that the sentencing jury was not fair and
impartial. We reject Moore’s argument that Hickman should not
41
apply because the trial court systematically misapplied Morgan.
Consistent with Morgan’s requirements, prospective jurors were
asked questions in both a twelve-page jury questionnaire and in
oral voir dire aimed at identifying those who would
automatically impose the death penalty.
2. Restrictions on voir dire regarding mitigation
¶100 Moore argues that the trial court refused to allow him
to “meaningfully” question “many additional” jurors on “whether
they were open to considering any evidence of mitigation.” In
this regard, Moore cites to the transcripts of the oral voir
dire of eleven prospective jurors, but five were not empanelled
and two were designated as alternates and did not deliberate.
Any error in the voir dire of these seven jurors was harmless.
See Glassel, 211 Ariz. at 46 ¶ 41, 116 P.3d at 1206 (stating
that alleged error in restricting voir dire was harmless as to
jurors that did not participate in deliberations).
¶101 With regard to the remaining jurors who were
empanelled – Jurors 27, 77, 196, and 210 – Moore sought to
strike for cause all but Juror 77. The question becomes whether
the court abused its discretion in restricting Moore’s voir dire
or denying his motions to strike these jurors.
¶102 The four identified jurors each completed a written
questionnaire and answered questions in oral voir dire. None
indicated that they would automatically impose the death
42
penalty. We are not persuaded by Moore’s arguments that the
trial court’s restrictions on voir dire regarding mitigation
violated Morgan.
¶103 The trial court refused to allow Moore to ask Juror 27
what things she would or would not consider mitigating. The
trial court also sustained an objection when Moore asked Juror
77 if there were particular areas the juror would want to hear
about. With respect to Juror 196, the trial court sustained the
State’s objection when counsel asked “how can you tell us that
you’d be open minded to consider all mitigation without knowing
anything about what might be out there?” Defense counsel was
allowed, however, to ask this juror if she was open minded and
if “there [were] some things that you’re not open minded about?”
With regard to Juror 210, the trial court sustained objections
to open-ended questions asking the juror to identify what she
thought were “good reasons” for having or not having a death
penalty. The trial court did allow Moore to ask this juror
whether “there [are] some cases in particular in which you think
the death penalty would be justified, some cases where you would
be less open minded?”
¶104 The trial court’s restrictions on voir dire were
consistent with this Court’s decisions. We have repeatedly
rejected arguments that Morgan requires courts to allow
defendants to ask prospective jurors to identify circumstances
43
that they would find mitigating or to respond to open-ended
questions on this topic. For example, in Glassel, this Court
held that Morgan does not require that courts permit defendants
to question prospective jurors as to their understanding of the
phrase “sufficiently substantial to call for leniency.” 211
Ariz. at 46 ¶ 40, 116 P.3d at 1206. The Court also rejected the
use of open-ended questions about the mitigating circumstances a
juror would consider important in deciding whether to impose
death. Id. at ¶ 44.
¶105 The Court further narrowed the scope of sentencing
jury voir dire in State v. Johnson, 212 Ariz. 425, 435 ¶ 33, 133
P.3d 735, 745 (2006). In that case, the Court held that Morgan
does not require courts to allow defendants to ask prospective
jurors about their views on specific mitigating circumstances.
Id. In Smith, the Court held that trial courts may prohibit
open-ended questions seeking to determine a juror’s views “about
the best reason for having or not having the death penalty, the
importance of considering mitigation, and the type of offense
for which the juror would consider death to be appropriate.”
215 Ariz. at 231 ¶ 41, 159 P.3d at 541.
¶106 Under these precedents, the questions that Moore
sought to ask prospective jurors about their views on mitigation
were not required by Morgan. Accordingly, the trial court did
44
not abuse its discretion in limiting voir dire or denying
Moore’s related motions to strike Jurors 27, 196 and 210.
K. Preclusion of Actual Innocence Evidence and Argument
¶107 Moore next asserts that the trial court’s preclusion
of evidence and argument regarding actual innocence violates his
rights to due process, to present a complete defense, and to
have his sentencer consider all relevant mitigation, as well as
the prohibition against ex post facto laws. Moore sought at
sentencing to introduce expert testimony on eyewitness
identification and evidence that he passed a polygraph
examination after the jury found him guilty, and to argue
residual doubt as a mitigating factor. On the State’s motion,
the trial court precluded all evidence on residual doubt from
both the aggravation and penalty phases.
¶108 We have previously rejected the argument that trial
courts are constitutionally or statutorily required to admit
evidence or permit argument regarding residual doubt at a
sentencing trial. See State v. Harrod (Harrod III), 218 Ariz.
268, 281 ¶ 46, 183 P.3d 519, 532 (2008); State v. Garza, 216
Ariz. 56, 70 ¶ 67, 163 P.3d 1006, 1020 (2007); see also Oregon
v. Guzek, 546 U.S. 517, 523 (2006) (“We can find nothing in the
Eighth or Fourteenth Amendments that provides a capital
defendant a right to introduce new evidence of this kind at
sentencing.”). Moore attempts to distinguish his situation by
45
arguing that actual innocence evidence should be admitted
because the (F)(8) aggravator focuses on the defendant’s role in
the murders. However, in Dann III we specifically rejected
using residual doubt evidence at the aggravation phase to
disprove the (F)(8) aggravator when the evidence is to be used
only to disprove guilt. See Dann III, 220 Ariz. at ___ ¶¶ 66-
69, 207 P.3d at 618-19.
¶109 In Dann III, we also rejected the claim that
preclusion of residual doubt evidence is an ex post facto law.
Id. at ___ ¶¶ 119-20, 207 P.3d at 625. Moore also argues that
the preclusion of residual doubt evidence violated his right to
due process because his trial strategies assumed that the judge
presiding over his guilt trial could consider residual doubt in
determining the sentence. This argument, however, mistakenly
presumes that, before jury sentencing, Moore had a right to have
residual doubt considered as mitigation. This Court had never
recognized such a right and more recent cases have clarified
that a defendant has no constitutional right to present residual
doubt evidence at sentencing. See Harrod III, 218 Ariz. at 278-
81 ¶¶ 37-46, 183 P.3d at 528-31.
L. Constitutionality of Burden of Proof at Sentencing
¶110 Moore argues that Arizona’s death penalty scheme is
unconstitutional under the Eighth and Fourteenth Amendments
because it does not require the State to prove beyond a
46
reasonable doubt that mitigating circumstances are not
“sufficiently substantial to call for leniency.”
¶111 This Court, as Moore acknowledges, has previously
rejected this argument. See, e.g., Glassel, 211 Ariz. at 52
¶ 70, 116 P.3d at 1212. Moore argues, however, that under
Kansas v. Marsh, 548 U.S. 163 (2006), when a state allows the
jury to decide whether the death penalty is appropriate, the
issue is an element of the offense of capital murder that must
be proven by the state beyond a reasonable doubt.
¶112 We have rejected this reading of Marsh. That opinion
does not hold that the Federal Constitution requires the state
to prove that mitigating circumstances do not warrant leniency;
instead, as we noted in State v. Tucker (Tucker II), the Supreme
Court held that so long as the state is required to prove the
elements of the offense and aggravating circumstances, the state
may place on the defendant “the burden of proving mitigating
circumstances sufficiently substantial to call for leniency.”
215 Ariz. 298, 316 ¶ 67, 160 P.3d 177, 195 (2007) (internal
quotation marks omitted). For this reason, we held that
instructing a jury that the defendant had the burden of proving
mitigation was sufficiently substantial to warrant leniency,
although contrary to our decision in Baldwin, did not constitute
fundamental error. See id. at 316-17 ¶ 69, 160 P.3d at 195-96.
47
¶113 The trial court here did not err by instructing the
jury, consistent with Baldwin, that the determination of the
appropriate sentence is not a fact question on which either side
has a burden of proof.
M. Independent Review
¶114 Because the murders occurred before August 1, 2002,
this Court must “independently review the trial court’s findings
of aggravation and mitigation and the propriety of the death
sentence.” A.R.S. § 13-755 (Supp. 2009); see 2002 Ariz. Sess.
Laws, ch. 1, § 7 (5th Spec. Sess.).
1. Aggravating Circumstance – (F)(8)
¶115 As discussed in Part H above, the evidence presented
during aggravation establishes beyond a reasonable doubt that
the murders were temporally, spatially, and motivationally
related as required for the (F)(8) aggravator.
2. Mitigating Circumstances
¶116 Moore presented evidence related to two statutory
mitigating factors and several non-statutory mitigating factors.
a. Statutory Mitigation
i. Intoxication
¶117 To establish intoxication as a statutory mitigator, a
defendant must prove by a preponderance of the evidence that
“[t]he defendant’s capacity to appreciate the wrongfulness of
his conduct or to conform his conduct to the requirements of law
48
was significantly impaired, but not so impaired as to constitute
a defense to prosecution.” A.R.S. § 13-703(G)(1) (Supp. 1999).
¶118 Moore established that he used crack cocaine in the
days and hours leading up to the murders. Dr. Stan Cabanski,
who performed a juvenile court psychological evaluation on Moore
when he was seventeen years, eight months old, concluded Moore
was abusing several street drugs. Moore also offered the expert
testimony of Dr. Alex Stalcup, a doctor specializing in
addiction medicine. Stalcup concluded that Moore had been
addicted to crack since age fifteen, that Moore’s drug use had
impaired his brain development and impulse control, and that
Moore had committed the murders in an explosive rage caused by
his craving for cocaine. He further opined that Moore’s
irritability would have been enhanced by his diabetes if his
blood sugar was low because he had not eaten.
¶119 To rebut Moore’s evidence, the State offered testimony
by Dr. Eugene Almer, who acknowledged that Moore had a cocaine
habit and had smoked crack before the murders, but opined that
Moore’s acts the morning of the shooting were volitional. He
noted that although Moore showed signs of anger or rage earlier
in the evening when he informed his girlfriend that he intended
to confront the person who tried to run him over, there were no
signs of rage immediately before the shooting. Dr. Almer also
noted that Moore made efforts to avoid detection by not leaving
49
behind fingerprints or cigarette butts. Neither Dr. Stalcup nor
Dr. Almer interviewed or otherwise examined Moore; they based
their conclusions on reviewing trial evidence and other
information.
¶120 Based on our review of the record, we do not find that
Moore has established the statutory mitigator of intoxication.
“[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). Moore took steps to
avoid prosecution and we do not find that his use of crack
cocaine overwhelmed his ability to control his behavior.
¶121 Although Moore’s evidence of impairment from his crack
cocaine use does not satisfy the statutory mitigation
requirements, we will consider such evidence as non-statutory
mitigation. See State v. Gallegos (Gallegos I), 178 Ariz. 1,
17-18, 870 P.2d 1097, 1113-14 (1994).
ii. Age
¶122 In assessing age as a mitigating circumstance, the
Court considers the defendant’s chronological age, as well as
“his level of intelligence, maturity, past experience, and level
50
of participation in the killings.” State v. Poyson, 198 Ariz.
70, 80 ¶ 37, 7 P.3d 79, 89 (2000).
¶123 Moore was eighteen years, seven months old at the time
of the murders. Although his teachers testified that he was
intelligent, Moore was held back a year in elementary school.
Further, Moore stopped attending school in the ninth grade. He
appears to have lacked maturity, possibly due to his crack
cocaine use, which the experts agreed stunted his emotional
development. Although Moore had a child, he lived with his
mother and never consistently held a job.
¶124 Moore also had extensive experience with the juvenile
justice system. By the time he became an adult, he had twelve
referrals to juvenile court. Although criminal history
typically lessens the mitigating weight assigned to age, see
id., we do not believe Moore’s juvenile record should have a
similar effect because he was never adjudicated delinquent and
the offenses were all non-violent. That is not to say, as Moore
argues, that the failure of the criminal justice system to hold
him accountable as a juvenile itself qualifies as mitigation.
¶125 Moore was the sole participant in the murders, a fact
that tends to reduce any mitigating significance of his age.
¶126 On balance, we conclude that Moore’s age deserves some
weight as a mitigating factor.
51
b. Non-Statutory Mitigation
i. Appellant’s addiction to crack cocaine
¶127 Moore has clearly established his use of crack
cocaine, both habitually and on the night of the shootings, and
this factor combined with Moore’s relative youth and early-onset
drug use, which likely impacted his mental development, deserves
some mitigating weight.
ii. Appellant’s dysfunctional childhood
¶128 A difficult family background may be a mitigating
circumstance in determining whether a death sentence is
appropriate; however, we give this factor little weight absent a
showing that it affected the defendant’s conduct in committing
the crime. State v. Sansing (Sansing II), 206 Ariz. 232, 240-41
¶¶ 34-36, 77 P.3d 30, 38-39 (2003).
¶129 Moore established that he had a dysfunctional
childhood. His father suffered from depression and flashbacks
related to his service in the Vietnam War. He testified that he
was a chronic alcoholic and that his children grew up watching
him kill himself by drinking. Before the murders, Moore’s
father had stopped communicating with his family.
¶130 As a child, Moore was often depressed and kept to
himself. His mother filed for divorce when he was in eighth
grade, and Moore soon thereafter began running away from home.
Approximately one month before Moore’s eighth grade graduation,
52
and weeks after his fifteenth birthday, police stopped Moore in
an area known for drug activity. Moore skipped his graduation
and was arrested that day for consumption of alcohol as a minor.
¶131 On several occasions, Moore’s mother kicked Moore out
of the house. Because he was a minor, the police made her take
him back. Ultimately she filed papers with the courts
unsuccessfully seeking to have Moore declared incorrigible.
Moore’s twelve referrals to juvenile court included several
involving possession of drug paraphernalia.
¶132 Moore has offered sufficient evidence to prove that he
was raised in a dysfunctional environment, but we do not find
that it merits significant weight as a mitigating factor
independent of his drug use as a youth.
iii. Residual doubt
¶133 Once a person is found guilty beyond a reasonable
doubt, claims of innocence or residual doubt do not constitute
mitigation for sentencing purposes. See Dann III, 220 Ariz. at
___ ¶ 136, 207 P.3d at 628; Harrod III, 218 Ariz. at 280 ¶¶ 42-
43, 183 P.3d at 531.
iv. Appellant’s family support and impact on his
family
¶134 “The existence of family ties is a mitigating factor.”
State v. McGill, 213 Ariz. 147, 162 ¶ 67, 140 P.3d 930, 945
(2006). During the penalty phase, Moore’s mother, father,
53
sisters, and grandmother provided testimony or interviews
expressing their love for Moore and indicating that his family,
including his daughter who was eighteen months old at the time
of the murders, would be negatively impacted by his execution.
Although Moore established this mitigating factor, we give it
minimal weight. See Poyson, 198 Ariz. at 82 ¶ 47, 7 P.3d at 91.
v. Appellant has expressed remorse
¶135 Remorse may be a non-statutory mitigating
circumstance, but we give this factor little weight when a
defendant denies responsibility for his or her conduct. See
Dann III, 220 Ariz. at ___ ¶ 150, 207 P.3d at 629; State v.
Andriano, 215 Ariz. 497, 512 ¶ 76, 161 P.3d 540, 555 (2007).
¶136 Although Moore points to statements he made to
Borghetti and his sister as indicating remorse, these statements
carry little weight given that Moore continues to deny
responsibility for the murders. His comments to his sister
express regret about the impact on his family rather than
remorse about the murders. Moore has not established remorse by
a preponderance of the evidence.
3. Propriety of Death Sentence
¶137 In reviewing the propriety of the death sentence, “‘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.
54
Greene, 192 Ariz. 431, 443 ¶ 60, 967 P.2d 106, 118 (1998)). We
give the multiple murders aggravator extraordinary weight.
Garza, 216 Ariz. at 72 ¶ 81, 163 P.3d at 1022. In light of this
significant aggravator, we must determine whether Moore’s
mitigating evidence is “sufficiently substantial to warrant
leniency.” See A.R.S. § 13-755(B).
¶138 Although Moore presented significant mitigating
evidence based on his age and the impact of his extensive use of
crack cocaine both habitually and on the night of the murders,
this evidence is not sufficiently substantial to warrant
leniency.
N. Issues Preserved for Federal Review
¶139 To avoid preclusion, Moore raises twenty-six other
constitutional challenges that he states have been rejected by
the Supreme Court or this Court. These claims and the decisions
Moore identifies as rejecting them are set forth verbatim in the
Appendix.
CONCLUSION
¶140 For the foregoing reasons, we affirm Moore’s
convictions for the first-degree felony murders of Delia Ramos
and Guadalupe Ramos, for the first-degree premeditated murder of
Sergio Mata, for the attempted first-degree murder of Debra
Ford, and for first-degree burglary, and affirm Moore’s death
55
sentences. We reverse Moore’s convictions for the first-degree
premeditated murders of Delia Ramos and Guadalupe Ramos.
_______________________________________
W. Scott Bales, Justice
CONCURRING:
_______________________________________
Rebecca White Berch, Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Ruth V. McGregor, Justice (Retired)
_______________________________________
Daniel A. Barker, Judge*
*Vice Chief Justice Andrew D. Hurwitz has recused himself from
this case. Pursuant to Article 6, Section 3 of the Arizona
Constitution, the Honorable Daniel A. Barker, Judge of the
Arizona Court of Appeals, Division One, was designated to sit in
this matter.
56
APPENDIX
(1) The death penalty is per se cruel and unusual punishment.
Gregg v. Georgia, 428 U.S. 153, 186-87 (1976); State v.
Salazar, 173 Ariz. 399, 411, 844 P.2d 566, 578 (1992).
(2) Execution by lethal injection is per se cruel and unusual
punishment. State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d
602, 610 (1995).
(3) The statute unconstitutionally requires imposition of the
death penalty whenever at least one aggravating circumstance
and no mitigating circumstances exist. Walton v. Arizona, 497
U.S. 639, 648 (1990); State v. Miles, 186 Ariz. 10, 19, 918
P.2d 1028, 1037 (1996);
(4) The death penalty is unconstitutional because it permits
jurors unfettered discretion to impose death without adequate
guidelines to weigh and consider appropriate factors and fails
to provide principled means to distinguish between those who
deserve to die or live. State v. Johnson, 212 Ariz. 425, 440
¶ 69, 133 P.3d 735, 750 (2006).
(5) Arizona’s death statute unconstitutionally requires
defendants to prove that their lives should be spared. State
v. Fulminante, 161 Ariz. 237, 258, 778 P.2d 602, 623 (1988).
(6) The statute unconstitutionally fails to require the
cumulative consideration of multiple mitigating factors or
require that the jury make specific findings as to each
mitigating factor. State v. Gulbrandson, 184 Ariz. 46, 69,
906 P.2d 579, 602 (1995).
(7) Arizona’s statutory scheme for considering mitigating
evidence is unconstitutional because it limits full
consideration of that evidence. State v. Mata, 125 Ariz. 233,
242, 609 P.2d 48, 57 (1980).
(8) The statute is unconstitutional because there are no
statutory standards for weighing. State v. Atwood, 171 Ariz.
576, 645-46 n.21(4), 832 P.2d 593, 662-63 n.21(4) (1992).
(9) Arizona’s death statute insufficiently channels the
sentencer’s discretion in imposing the death sentence. State
v. Greenway, 170 Ariz. 151, 164, 823 P.2d 22, 31 (1991).
57
(10) The prosecutor’s discretion to seek the death penalty
unconstitutionally lacks standards. State v. Cromwell, 211
Ariz. at 181, 192 ¶ 58, 119 P.3d 448, 459 (2005).
(11) Death sentences in Arizona have been applied arbitrarily
and irrationally and in a discriminatory manner against
impoverished males whose victims have been Caucasian. State
v. West, 176 Ariz. 432, 455, 862 P.2d 192, 215 (1993).
(12) The Constitution requires a proportionality review of a
defendant’s death sentence. State v. Gulbrandson, 184 Ariz.
46, 73, 906 P.2d 579, 606 (1995).
(13) Subjecting Appellant to a second trial on the issue of
aggravation and punishment before a new jury violates the
double jeopardy clause of the Fifth Amendment. State v. Ring
(Ring III), 204 Ariz. 534, 550-51 ¶ 39, 65 P.3d 915, 931-32
(2003).
(14) Appellant’s death sentence is in violation of his rights
to a jury trial, notice and due process under the Fifth,
Sixth, and Fourteenth Amendments since he was not indicted for
a capital crime. McKaney v. Foreman, 209 Ariz. 268, 271 ¶ 13,
100 P.3d 18, 21 (2004).
(15) Imposition of a death sentence under a statute not in
effect at the time of Appellant’s trial violates due process
under the Fourteenth Amendment. State v. Ellison, 213 Ariz.
116, 137 ¶ 85, 140 P.3d 899, 920 (2006).
(16) The absence of notice of aggravating circumstance prior
to Appellant’s guilt phase trial violated the Sixth, Eighth
and Fourteenth Amendments. State v. Anderson (Anderson II),
210 Ariz. 327, 347 ¶¶ 79-80, 82, 111 P.3d 369, 389 (2005).
(17) The reasonable doubt jury instruction at the aggravation
trial lowered the state’s burden of proof and deprived
Appellant of his right to a jury trial and due process under
the Sixth and Fourteenth Amendments. State v. Dann (Dann I),
205 Ariz. 557, 575-76 ¶ 74, 74 P.3d 231, 249-50 (2003).
(18) Arizona’s death statute creates an unconstitutional
presumption of death and places an unconstitutional burden on
Appellant to prove mitigation is “sufficiently substantial to
call for leniency.” State v. Glassel, 211 Ariz. 33, 52 ¶ 72,
116 P.3d 1193, 1212 (2005).
58
(19) The failure to provide the jury with a special verdict on
Appellant’s proffered mitigation deprived him of his rights to
not be subject to ex post facto legislation and right to
meaningful appellate review. State v. Roseberry, 210 Ariz.
360, 373 ¶ 74 & n.12, 111 P.3d 402, 415 (2005).
(20) The trial court improperly omitted penalty phase
instructions that the jury could consider mercy or sympathy in
evaluating the mitigation evidence and determining whether to
sentence the defendant to death. State v. Carreon, 210 Ariz.
54, 70-71 ¶¶ 81-87, 107 P.3d 900, 916-17 (2005).
(21) Arizona’s current protocols and procedures for execution
by lethal injection constitute cruel and unusual punishment in
violation of the Eighth and Fourteenth Amendments. State v.
Andriano, 215 Ariz. 497, 510 ¶¶ 61-62, 161 P.3d 540, 553
(2007).
(22) The jury instruction that required the jury to
unanimously determine that the mitigating circumstances were
“sufficiently substantial to call for leniency” violated the
Eighth Amendment. State v. Ellison, 213 Ariz. 116, 139
¶¶ 101-102, 140 P.3d 899, 922 (2006).
(23) The failure to instruct the jury that only murders that
are “above the norm” may qualify for the death penalty
violates the Sixth, Eighth and Fourteenth Amendments. State
v. Bocharski, 218 Ariz. 476, 487-88 ¶¶ 47-50, 189 P.3d 403,
414-15 (2008).
(24) The State’s introduction of unsworn rebuttal testimony
violated Appellant’s rights to confrontation and cross
examination under the Sixth Amendment. State v. McGill, 213
Ariz. 147, 158-59, 140 P. 3d 930, 941-42 (2006).
(25) The refusal to permit voir dire of prospective jurors
regarding their views on specific aggravating and mitigating
circumstances violates Appellant’s rights under the Sixth and
Fourteenth Amendments. State v. Johnson, 212 Ariz. 425, 440
¶¶ 29-35, 133 P.3d 735, 750 (2006).
(26) Refusing to instruct the jury or permit the introduction
of evidence and argument regarding residual doubt violated
Appellant’s rights under the Sixth, Eighth and Fourteenth
Amendments and Arizona law. State v. Harrod (Harrod III), 218
Ariz. 268, 278-79 ¶¶ 37-39, 183 P.3d 519, 529-30 (2008); State
v. Garza, 216 Ariz. 56, 70 ¶ 67, 163 P.3d 1006, 1020 (2007).
59