SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-05-0174-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2002-009759
STEVE ALAN BOGGS, )
)
Appellant. ) A M E N D E D
) O P I N I O N
)
Appeal from the Superior Court in Maricopa County
The Honorable John Foreman, Judge (retired)
AFFIRMED
________________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel, Capital
Litigation Section
Jeffrey A. Zick, Assistant Attorney General
Attorneys for State of Arizona
BRUCE PETERSON, ACTING LEGAL ADVOCATE Phoenix
By Thomas J. Dennis, Deputy Legal Advocate
Attorneys for Steve Alan Boggs
________________________________________________________________
M c G R E G O R, Chief Justice
¶1 On May 12, 2005, a jury determined that Steve Boggs
should receive the death penalty for the May 2002 murders of
Beatriz Alvarado, Kenneth Brown, and Fausto Jimenez. In
accordance with Arizona Rule of Criminal Procedure 31.2(b),
appeal to this Court is automatic. We exercise jurisdiction
pursuant to Article 6, Section 5.3 of the Arizona Constitution
and Arizona Revised Statutes (A.R.S.) section 13-4031 (2001).
I.
A.
¶2 On May 19, 2002, Alvarado, Brown, and Jimenez were
working at a fast-food restaurant in Mesa, Arizona.1 After ten
p.m., only the drive-through window was open. At approximately
11:15 p.m., as Keith Jones drove toward the drive-through
speaker to order food, he noticed an SUV in the parking lot
behind the restaurant with a male in the driver’s seat. Jones
saw three uniformed employees inside the store: a Hispanic
woman, a Hispanic man, and a Caucasian man.2
¶3 Luis Vargas arrived at the drive-through window
between 11:30 and 11:45. After waiting for ten minutes, Vargas
yelled to get the attention of someone working at the restaurant
and then heard Alvarado moaning. He approached Alvarado, who
was lying on the ground outside the restaurant’s back door. She
told him in Spanish that “men entered,” “they were robbing,” and
that she thought “they were still robbing.” Vargas backed away
from the restaurant and called 911.
1
We view the facts in the light most favorable to upholding
the jury’s verdict. State v. Tucker, 205 Ariz. 157, 160 n.1, 68
P.3d 110, 113 n.1 (2003).
2
According to Boggs, Christopher Hargrave, who is Caucasian
and was also charged with the murders, was wearing his uniform
when he entered the restaurant.
2
¶4 Police Officer Daniel Beutal, who responded to the 911
call, talked with Alvarado and understood her to mean that “bad
people” might still be in the restaurant. From outside, Beutal
could see Jimenez lying on the restaurant floor. Beutal called
for backup and a K-9 unit. After other officers arrived, but
before entering the restaurant, Beutal moved Alvarado away from
the store to the paramedics. Beutal testified that Alvarado
repeatedly asked for help; she subsequently died from two
gunshots to her back.
¶5 Inside the restaurant, the police found Jimenez’s body
next to a telephone and found Brown’s body in the freezer.
Brown had died almost immediately from two gunshot wounds, one
of which perforated his heart. Jimenez apparently had escaped
from the freezer and, shortly after dialing 911, died from three
gunshot wounds to his back.
¶6 The police found shell casings and bullet projectiles
inside the freezer, evidencing that the perpetrators shot the
victims there. Two cash registers were open and contained only
coins, while the third register was closed but appeared as if
someone had tried to pry it open. Approximately $300 had been
taken from the registers. Police found a purse inside the
office, but did not find a wallet for either Jimenez or Brown.
Just after midnight on May 20, a man, later identified as
3
Christopher Hargrave, tried to use Jimenez’s bank card at an
ATM.
¶7 Hargrave, a friend of Boggs, had worked at the
restaurant from April 19 to May 15, 2002. Boggs and Hargrave
participated in a militia, the “Imperial Royal Guard,” which
focused on “uplifting” the white race and fostered negative
views of minority groups. The Imperial Royal Guard consisted
entirely of Boggs as Chief of Staff, Hargrave as Assistant Chief
of Staff, and their girlfriends, Amy Willet and Gayle Driver.
¶8 Before the murders, Hargrave lived in a trailer on
land belonging to his girlfriend’s parents, Kay and William
Driver. The Drivers allowed Hargrave to live there on the
condition that he remain employed. In May 2002, Jimenez, an
assistant manager in training at the restaurant, reported
Hargrave for twice having a short register. When Hargrave
subsequently was fired for the shortages, the Drivers asked him
to leave their property.
¶9 The Drivers also knew Boggs, who often came into their
pawn shop. On May 21, two days after the murders, Boggs took
two guns, one of them a Taurus handgun, into the pawn shop to
trade for a new gun. William Driver cleaned the Taurus, but
placed it in his safe because he had a “feeling” about the
transaction. Kay Driver later called police and told them about
4
the Taurus that Boggs had pawned. On June 3, Boggs and Hargrave
each called the pawn shop and asked to buy back the Taurus.
¶10 The police recovered the gun from the Drivers and
conducted several test firings. The State’s criminalist
concluded that all the shell casings and bullet fragments from
the scene, as well as fragments removed from the bodies, were
fired from the Taurus. DNA found on the Taurus came from at
least three sources. The DNA matched Hargrave’s profile at 14
locations; the DNA expert could not eliminate Boggs as a source.
¶11 On June 5, Mesa Detective Donald Vogel interrogated
Boggs for approximately three hours. Boggs waived his Miranda3
rights and agreed to answer questions. During the interview,
Boggs told several versions of what happened on the day of, and
the days following, the murders. Information gained in this
interview led to the apprehension of Hargrave the following day.
¶12 On June 6, Detectives Kaufman and Price took Boggs to
obtain his photograph, fingerprints, and DNA, and to transport
him to his initial appearance. As the detectives secured the
evidence, Boggs asked Kaufman how he could change the story he
had told to Detective Vogel the previous day. En route to his
initial appearance, Boggs asked Price how he could change his
story. At the initial appearance, Boggs requested counsel,
3
Miranda v. Arizona, 384 U.S. 436 (1966).
5
which the judge appointed. Subsequently, while returning to
jail, Boggs once more asked Kaufman with whom he needed to speak
to change his story. Price telephoned Vogel and arranged to
take Boggs to the interrogation room for further questioning.
Once at the police station, after Boggs informed Detective Vogel
that he wished to speak with him, Vogel read Boggs his Miranda
rights and again interviewed him.
¶13 During the June 6 interview, Boggs first claimed that
Hargrave committed all the crimes inside the restaurant and
denied knowledge of Hargrave’s actions at the time. In his next
version of events, he admitted helping to plan a non-violent
robbery, but maintained that he remained outside the store as a
lookout during the robbery. A short while later, Vogel
mentioned Boggs’ infant son. When Vogel asked his son’s name,
Boggs repeated, “Just leave me alone,” three times. After Vogel
twice offered to leave the room, Boggs began discussing suicide.
¶14 Boggs then asked to speak with the prosecutor so that
“he could assure me that I would at least in some way be able to
still be with my son.” Vogel responded that no one could make
any promises to Boggs. Vogel also assured Boggs that, whether
or not Boggs talked with him, Vogel would ask the jail to place
Boggs in protective custody. After more than an hour of
interrogation, Boggs confessed to playing an active role in the
robbery and admitted shooting at the victims.
6
¶15 In January 2004, Boggs sent a letter to Detective
Vogel detailing the order and manner in which the deceased
employees fell to the ground and stating that he wished to speak
with Vogel in person. Boggs also stated that his motivation for
the murders was not pecuniary, but rather, based on race.
¶16 In June 2004, Boggs moved to represent himself.
During the following months, the trial judge discussed several
times the repercussions of proceeding in propria persona (pro
per) and attempted to dissuade Boggs from doing so. The
following September, the court granted his motion and appointed
advisory counsel. While acting pro per, Boggs complained to the
trial judge of interference by the Maricopa County Sheriff’s
Office (MCSO) with his self-representation. Specifically, Boggs
claimed that the MCSO seized legal documents from his cell and
refused to provide him items sent to the jail by his advisory
counsel.
¶17 Meanwhile, Detective Vogel and the prosecutor received
threatening letters, allegedly sent by Boggs. In response, the
MCSO began searching Boggs’ cell and confiscating items. After
Vogel warned the MCSO employees not to proceed without a
warrant, they moved Boggs to a different cell, replaced the
items, and waited for a search warrant before resuming the
search. A detective took the confiscated materials to a
superior court judge who had been appointed as a special master
7
for the purpose of reviewing the items for relevance as to the
warrant. The jail staff ultimately confiscated eighteen items
and returned those items that the special master deemed
improperly seized. The prosecutor did not see any of the
privileged items confiscated during the search. Boggs’ advisory
counsel was informed of the special master’s independent review,
but declined to participate or review the seized items. Boggs
alleged that certain legal documents, including discovery items,
were never returned. The trial judge recommended that both
parties review the property to determine what items, if any, may
have been missing.
¶18 On March 23, 2005, Boggs filed a motion to dismiss
based on the search and seizure of items from his cell. The
trial judge addressed the issue on April 4, 2005, when Boggs
told the judge that some items were still missing, including
questions he had prepared for a voluntariness hearing scheduled
for later that day. Boggs expressed concern that his missing
questions could have been used to coach state witnesses. The
prosecutor reminded the court that he had not seen any
privileged items from the search. The judge concluded that
nothing “untoward occurred” and stated that the hearing would
continue as scheduled unless Boggs could show that a
“substantial amount of materials were actually taken.”
8
¶19 At the voluntariness hearing, the trial court
addressed Boggs’ motion to suppress all statements made in the
June 5 and June 6 interrogations. During the hearing, Boggs
appears to have been expressing a Miranda objection, claiming
that he had requested an attorney, and a voluntariness
objection, pointing to the manner in which police detained him
and transported him to the police station. Detectives Heivilin,
Price, and Vogel testified at the voluntariness hearing.
Heivilin testified that during his apprehension on June 5, Boggs
did not request an attorney. Price testified next about Boggs’
June 6 request to speak with Vogel so that he could change the
statements he made during the June 5 interrogation. Vogel then
testified regarding the interrogations themselves. As to the
June 6 interrogation, Vogel testified that Boggs initiated the
contact with the police and that he read Boggs his Miranda
rights. Vogel also testified that he did not threaten Boggs,
make any promises of leniency, or physically abuse Boggs during
the ninety-minute interrogation. At the close of the hearing,
the trial court ruled that Boggs’ statements were voluntary.
¶20 Also on April 4, Boggs’ advisory counsel asked the
trial judge to allow hybrid representation for voir dire. The
judge agreed, but warned that he would not permit hybrid
representation during the trial. He told Boggs that if he
wanted, his advisory counsel could take over the trial, but that
9
“if they take over the trial, they are going to take over the
trial.” On April 11, 2005, after several days of jury
selection, Boggs relinquished his right to proceed pro per. The
trial court responded that this was a “wise move” and stated,
“Just so we are clear on this, Mr. Boggs, we are not going [to]
go back and forth on this.”
B.
¶21 The guilt proceeding began on April 11, 2005. During
the trial, the prosecution played videotapes of the June 5 and 6
interrogations and gave the jury transcripts to follow as they
watched the video. The defense did not object. On May 3, 2005,
at the close of the guilt proceeding, the jury found Boggs
guilty of three counts of first degree murder.
¶22 The sentencing proceeding began on May 4, 2005. At
the aggravation phase, the State presented no new evidence and
the jury returned its verdicts the same day, finding three
aggravating factors for each of the murders: expectation of
pecuniary gain, under A.R.S. § 13-703.F.5; murders committed in
an especially heinous, cruel or depraved manner, under § 13-
703.F.6; and a conviction for one or more other homicides during
the commission of the offense, under § 13-703.F.8.
¶23 On May 5, before the penalty phase, Boggs again moved
to represent himself. The trial judge denied his motion,
stating:
10
Mr. Boggs, I indicated to you earlier, we’re not
going to play ping-pong on this. You’ve indicated
that you wanted Mr. Alcantar and Mr. Carr to represent
you during the trial. I think that was a wise move.
I do not think it would be a wise move to change.
And more importantly, the law indicates that this is
not something that we can – we can’t be changing
horses in the mid-stream here.
When Boggs responded that he wished to “fire” his counsel, the
court stated: “We’ve gone over that. You have a right to
counsel. You’ve got counsel. We’re at the very end of a long
and difficult trial . . . . We’re not going to be changing
counsel here.” The penalty phase continued on May 9, 2005.
¶24 During the penalty phase, the defense presented
mitigation evidence concerning Boggs’ troubled childhood and his
mental health. At the close of the trial, the jury found Boggs’
mitigation not sufficiently substantial to call for leniency and
concluded that death was the appropriate sentence for each
murder. See A.R.S. § 13-703.01.G-H.
II.
A.
¶25 Boggs first argues that the trial court violated his
right to counsel by admitting the June 6 interview into
evidence. We review constitutional issues de novo. State v.
Pandeli, 215 Ariz. 514, 522 ¶ 11, 161 P.3d 557, 565 (2007).
¶26 The right to counsel attaches at “‘critical’ stages in
the criminal justice process ‘where the results might well
11
settle the accused’s fate and reduce the trial itself to a mere
formality.’” Maine v. Moulton, 474 U.S. 159, 170 (1985)
(quoting United States v. Wade, 388 U.S. 218, 224 (1967)). When
a defendant asserts this right, the state has an “affirmative
obligation to respect and preserve the accused’s choice to seek
this assistance.” Id. at 171. The state may not engage in
further interrogation unless the accused initiates the
communication and makes a voluntary, knowing, and intelligent
waiver of his right to be silent. See State v. Smith, 193 Ariz.
452, 459 ¶ 29, 974 P.2d 431, 438 (1999).
¶27 Boggs asserted his Sixth Amendment right to counsel at
the June 6 initial appearance. Subsequently, however, Boggs
asked several times to speak with someone to change the story he
had told Detective Vogel during the previous day’s
interrogation. Importantly, after Boggs asserted his right to
counsel at the initial appearance, Boggs asked Detective Kaufman
with whom he could speak to change his story and told Detective
Vogel that he wanted to speak with him. Finally, at the
beginning of the June 6 interrogation, Detective Vogel asked
Boggs a series of questions to clarify that Boggs, rather than
the detectives, initiated the conversation. Vogel again read
Boggs his Miranda rights, and Boggs agreed to voluntarily answer
Vogel’s questions. Boggs thus initiated the communication with
12
the police, and Detective Vogel was not barred from conducting
further interrogation.
¶28 Boggs argues that although he initiated contact by
asking to change his story, the June 6 interview nonetheless
violated his right to counsel. He cites State v. Hackman, 189
Ariz. 505, 507-08, 943 P.2d 865, 867-68 (App. 1997), for the
proposition that once counsel is appointed, counsel must be
present for an accused to validly waive his Sixth Amendment
rights. But Hackman, unlike this case, involved contact
initiated by the state’s investigator rather than by the
accused. Id. at 506, 943 P.2d at 866. Boggs also relies on a
New York case which again involved a police-initiated interview.
See People v. Arthur, 239 N.E.2d 537, 537-38 (N.Y. 1968). We
decline to hold that an accused cannot waive the right to
counsel unless counsel is present when the accused himself
initiates contact with the police. We find no violation of
Boggs’ Sixth Amendment rights.
B.
¶29 Boggs next argues that the trial court violated his
right to confront witnesses and his right to a fair trial by
admitting that portion of the June 6 interview in which
Detective Vogel confronted Boggs with statements allegedly made
by Hargrave earlier that day. Specifically, Vogel stated,
“Chris told me that you did all the shootin’ inside the store”
13
and “I’m just tellin’ ya’ that Chris told me that you were the
one that went in the back cooler with everybody . . . and that
you did all the shootin’.”
¶30 Detective Vogel testified more than a week after the
jury watched the interrogation video. During Vogel’s testimony,
both parties elicited statements from him to the effect that he
had “more information” about the murders during the June 6
interview than he had during the June 5 interview. Vogel
explained that this new information included information he
received from Hargrave. On cross-examination, Vogel
acknowledged that lying is a permissible interrogation
technique. The defense did not request that the court instruct
the jury that they could not use the statements attributed to
Hargrave to prove the truthfulness of the assertions.
1.
¶31 We review de novo challenges to admissibility based on
the Confrontation Clause. State v. Tucker, 215 Ariz. 298, 315 ¶
61, 160 P.3d 177, 194 (2007). When a defendant fails to object
to error at trial, we engage in fundamental error review. State
v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005).
Fundamental error is limited to “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
14
v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). A
defendant bears the burden of proving that fundamental error
exists and that the error caused him prejudice. Henderson, 210
Ariz. at 567 ¶ 20, 115 P.3d at 607. Because Boggs did not
object to the admission of the unredacted interview, we are
limited to fundamental error review.
¶32 The Confrontation Clause provides: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend.
VI. The Confrontation Clause attaches to “testimonial witness
statements made to a government officer to establish some fact.”
State v. Roque, 213 Ariz. 193, 214 ¶ 70, 141 P.3d 368, 389
(2006). The right is not violated, however, “by use of a
statement to prove something other than the truth of the matter
asserted.” State v. Smith, 215 Ariz. 221, 229 ¶ 26, 159 P.3d
531, 539 (2007); see also Roque, 213 Ariz. at 214 ¶ 70, 141 P.3d
at 389.
¶33 In Roque, we addressed a similar situation that
involved a trial court’s admission of a videotaped interview in
which a detective repeated statements allegedly made by a non-
testifying witness against the defendant. 213 Ariz. at 213-14 ¶
69, 141 P.3d at 388-89. There, we recognized the use of such
statements as a valid interrogation technique and found no
Confrontation Clause violation because the statements were used
15
merely as a method of interrogation and the jury was instructed
that the statements could not be used to establish the truth of
the matters asserted. Id. at 214 ¶ 70, 141 P.3d at 389.
¶34 Boggs attempts to distinguish his case from Roque, in
which the prosecution did not present any evidence to establish
the truth of the out-of-court statements repeated by the
detective. Id. Here, Boggs argues, Detective Vogel suggested
the truthfulness of Hargrave’s statements when he testified at
trial that he “had more information with which to confront Mr.
Boggs” at the June 6 interview, including information from
Hargrave. On the other hand, the State did not present the jury
with any direct testimony as to the truthfulness of the
statements, did not seek to introduce a transcript of Hargrave’s
interrogation into evidence, and did not rely on the statements
as substantive evidence. Furthermore, on cross-examination,
Detective Vogel testified that lying is a permissible
interrogation technique.
¶35 Had Boggs objected at trial, he might well have been
entitled to an instruction that the statements attributed to
Hargrave were introduced as part of the interrogation and could
not be used to prove the truth of the matters asserted. But
because the statements were admissible at least for the limited
purpose of showing the context of the interrogation, Boggs
cannot demonstrate fundamental error.
16
2.
¶36 Boggs also asserts that Vogel’s testimony about
Hargrave’s statements violated his right to a fair trial because
the judge did not instruct the jury that the statements were
untrue. The defense, however, not only failed to object to the
admission of the June 6 interview, but also failed to request
that the judge give such a limiting instruction. The trial
judge’s failure to provide a limiting instruction sua sponte was
not fundamental error.
C.
¶37 During the June 5 and June 6 interrogations, Detective
Vogel repeatedly accused Boggs of lying. The State played the
June 5 and 6 interrogation videos for the jury without redacting
any portions in which Detective Vogel accused Boggs of lying.
Boggs did not object or request a limiting instruction. Boggs
now argues that the admission of the unredacted interrogations
violated his right to a fair trial.
¶38 We review a trial court’s evidentiary rulings for
abuse of discretion. Tucker, 215 Ariz. at 314 ¶ 58, 160 P.3d at
193. When the alleged error is based on a constitutional or
legal issue, we review the issue de novo. Pandeli, 215 Ariz. at
522 ¶ 11, 161 P.3d at 565. Because Boggs failed to object, our
review is limited to fundamental error. Henderson, 210 Ariz. at
567 ¶ 19, 115 P.3d at 607.
17
¶39 Arizona prohibits lay and expert testimony concerning
the veracity of a statement by another witness. State v. Moran,
151 Ariz. 378, 382, 728 P.2d 248, 252 (1986) (expert witness);
State v. Reimer, 189 Ariz. 239, 240-41, 941 P.2d 912, 913-14
(App. 1997) (lay witness). Determining veracity and credibility
lies within the province of the jury, and opinions about witness
credibility are “nothing more than advice to jurors on how to
decide the case.” Moran, 151 Ariz. at 383, 728 P.2d at 253.
The issue of whether a videotaped interrogation that includes
accusations of a defendant’s untruthfulness can be admitted,
however, is one of first impression in Arizona.
¶40 Because Vogel’s accusations were part of an
interrogation technique and were not made for the purpose of
giving opinion testimony at trial, we find no fundamental error.
Decisions from other states buttress our conclusion. See State
v. Cordova, 51 P.3d 449, 455 (Idaho Ct. App. 2002) (allowing
such statements by interrogating officers at trial “to the
extent that they provide context to a relevant answer by the
suspect”); Lanham v. Commonwealth, 171 S.W.3d 14, 27-28 (Ky.
2005); State v. O’Brien, 857 S.W.2d 212, 221-22 (Mo. 1993);
State v. Demery, 30 P.3d 1278, 1284 (Wash. 2001) (plurality
opinion); see also Dubria v. Smith, 224 F.3d 995, 1001 (9th Cir.
2000) (concluding, in the context of reviewing a denial of
habeas corpus, that an officer’s statements simply gave context
18
to the defendant’s answers). But see State v. Elnicki, 105 P.3d
1222, 1229 (Kan. 2005) (holding that an officer’s statements in
a videotaped interrogation are inadmissible opinion evidence and
noting that “context” for a defendant’s shifting stories could
be shown in other ways); Commonwealth v. Kitchen, 730 A.2d 513,
521 (Pa. Super. Ct. 1999) (analogizing an interviewer’s
statements regarding a defendant’s truthfulness to a
prosecutor’s inadmissible personal opinion as to the defendant’s
guilt).
¶41 Lanham, one of the most recent cases to address this
issue, noted that “[a]lmost all of the courts that have
considered the issue recognize that this form of questioning is
a legitimate, effective interrogation tool. And because such
comments are such an integral part of the interrogation, several
courts have noted that they provide a necessary context for the
defendant’s responses.” Lanham, 171 S.W.3d at 27. The court
concluded that “such recorded statements by the police during an
interrogation are a legitimate, even ordinary, interrogation
technique, especially when a suspect’s story shifts and
changes.” Id. The court also stated that because the
statements are not admissible to prove that the suspect was
lying, courts should provide the jury with a limiting
instruction if one is requested. Id. at 27.
19
¶42 We agree that, if Boggs had requested a limiting
instruction, one would have been appropriate, but Boggs neither
objected to the evidence nor requested a limiting instruction.
In addition, Boggs cannot establish prejudice because he did, in
fact, provide multiple stories about his involvement; the jury
did not need Vogel’s comments to know that Boggs lied. Boggs
has not established fundamental error.
D.
¶43 Boggs next argues that all the statements he made to
Detective Vogel after he said “[J]ust leave me alone” and
mentioned suicide were involuntary and therefore inadmissible.
We review a trial court’s ruling on the admissibility of a
defendant’s confession for abuse of discretion. State v.
Ellison, 213 Ariz. 116, 126 ¶ 25, 140 P.3d 899, 909 (2006).
¶44 Only voluntary statements made to law enforcement
officials are admissible at trial. Id. at 127 ¶ 30, 140 P.3d at
910. A defendant’s statement is presumed involuntary until the
state meets its burden of proving that the statement was freely
and voluntarily made and was not the product of coercion. State
v. Arnett, 119 Ariz. 38, 42, 579 P.2d 542, 546 (1978). The
state meets its burden “when the officer testifies that the
confession was obtained without threat, coercion or promises of
immunity or a lesser penalty.” State v. Jerousek, 121 Ariz.
420, 424, 590 P.2d 1366, 1370 (1979). In determining whether a
20
confession is voluntary, we consider whether the defendant’s
will was overcome under the totality of the circumstances.
State v. Newell, 212 Ariz. 389, 399 ¶ 39, 132 P.3d 833, 843
(2006). To find a confession involuntary, we must find both
coercive police behavior and a causal relation between the
coercive behavior and the defendant’s overborne will. Colorado
v. Connelly, 479 U.S. 157, 165-66 (1986). In this case, the
court did not abuse its discretion in ruling the statements
voluntary.
¶45 Boggs alleges that Vogel employed psychological
pressure to provoke his confession by preying on his love for
his son. He analogizes this case to United States v. Tingle,
658 F.2d 1332 (9th Cir. 1981), which held that police statements
were patently coercive because they implied that a mother might
not see her child for a long time unless she cooperated with
police. Id. at 1336.
¶46 Any analogy to Tingle is strained. Unlike the agents
in Tingle, Detective Vogel did not threaten Boggs with the loss
of his child. Rather, Vogel attempted to solicit a sense of
responsibility for his son to encourage Boggs to “tell the
truth,” not to intimate that Boggs would never see his son if he
did not cooperate. When Boggs was unresponsive to Vogel’s
question regarding his son’s name, Vogel responded, “[Y]ou don’t
have to talk about the boy,” and changed the subject. In fact,
21
although Boggs brought up his son later in the conversation,
Vogel refrained from further conversation regarding Boggs’ son.
Also, Boggs did not confess in direct response to Vogel’s
comments about his son, demonstrating that these comments did
not overcome his will.
¶47 Although his argument is not clear, Boggs also seems
to argue that the statements must be excluded because Vogel
coerced him when he did not cease questioning after Boggs
stated, “Just leave me alone.” Miranda requires that when an
“individual indicates in any manner, at any time prior to or
during questioning, that he wishes to remain silent, the
interrogation must cease.” Miranda, 384 U.S. at 473-74. If the
alleged assertion of the right to silence is ambiguous, or
“susceptible to more than one interpretation, the limit of
permissible continuing interrogation immediately after the
assertion would be for the sole purpose of ascertaining whether
the defendant intended to invoke his right to silence.” State
v. Finehout, 136 Ariz. 226, 229, 665 P.2d 570, 573 (1983); see
State v. Flower, 161 Ariz. 283, 287, 778 P.2d 1179, 1183 (1989)
(“[B]y failing to at least clarify [the defendant’s] intent,
[the detective] did not ‘scrupulously honor’ [the defendant’s]
right to silence, and the entire statement was inadmissible as a
violation of Miranda.”).
22
¶48 When Boggs stated, “Just leave me alone,” Vogel did
not ignore the statement, but instead offered to leave him alone
by asking, “Do you want me to walk out for a few minutes?” and
stating, “If you want me to leave the room, tell me.” These
comments attempted to clarify whether Boggs wanted Vogel to end
the interrogation or merely to stop discussing his son. Instead
of responding in the affirmative, Boggs stated that the police
were going to kill him anyway and they “might as well just get
it over with now.” Boggs then continued talking with Vogel.
Vogel did not engage in coercive behavior by clarifying the
meaning of Boggs’ statements and responding to Boggs’ further
comments.
¶49 Under the totality of the circumstances, Boggs’
statements were voluntary. Vogel neither threatened Boggs nor
made him any promises. Indeed, Vogel made clear to Boggs that
he could not make any promises and was only looking for the
truth. Boggs presented no evidence of coercive behavior.
E.
¶50 Boggs next argues that the MCSO’s failure to return
some of the documents seized from his cell violated his
constitutional right to keep confidential pretrial preparations
and attorney-client communications and required the court to
grant his motion to dismiss. We review de novo alleged
violations of a defendant’s Sixth Amendment right to counsel,
23
State v. Glassel, 211 Ariz. 33, 50 ¶ 59, 116 P.3d 1193, 1210
(2005), but review a ruling on a motion to dismiss for abuse of
discretion, State v. Moody, 208 Ariz. 424, 448 ¶ 75, 94 P.3d
1119, 1143 (2004).
¶51 The Sixth Amendment and Article 2, Section 24 of the
Arizona Constitution guarantee criminal defendants the right to
counsel, State v. Warner, 150 Ariz. 123, 127, 722 P.2d 291, 295
(1986), but “not every intrusion into the attorney-client
relationship results in a denial of effective assistance of
counsel. Whether a Sixth Amendment violation exists depends on
whether the intrusions were purposeful and whether the
prosecution, either directly or indirectly, obtained evidence or
learned of defense strategy from the intrusions.” State v.
Pecard, 196 Ariz. 371, 377 ¶ 28, 998 P.2d 453, 459 (App. 1999)
(citing Weatherford v. Bursey, 429 U.S. 545, 558 (1977)).
¶52 In Warner, this Court addressed an argument similar to
that made by Boggs. See 150 Ariz. at 125-28, 722 P.2d at 293-
96. Jail personnel had seized all papers from Warner’s cell in
an attempt to secure evidence of alleged perjury. Id. at 125,
722 P.2d at 293. Jail staff returned the seized papers,
including transcripts and summaries of conferences between the
defendant and his counsel, to the defendant but provided copies
to the prosecutor. Id. The prosecutor’s assistant read the
materials, and the prosecutor read some of the materials. Id.
24
at 126, 722 P.2d at 294. Because the prosecutor viewed the
privileged materials, we found a presumptive violation of the
defendant’s right to counsel. Id. at 127, 722 P.2d at 295.
¶53 Boggs’ case differs from Warner, however, because the
prosecutor here never received or reviewed any privileged items.
In fact, the State protected the defendant’s right to counsel by
requesting that a special master review the seized materials and
return any privileged items to Boggs. The trial court then held
evidentiary hearings to address the alleged violation of Boggs’
right to counsel. At the hearings, the court found the
testimony of two MCSO officers and Detective Vogel credible and
concluded that nothing “untoward occurred.”
¶54 Thus, unlike the defendant in Warner, Boggs failed to
show improper interference with his right to counsel. See
Moody, 208 Ariz. at 448 ¶ 77, 94 P.3d at 1143 (“The defendant
bears the initial burden to establish an interference in the
attorney-client relationship.”).
F.
¶55 At the guilt phase, Luis Vargas and Officer Beutal
testified to Alvarado’s statements on the night of the murders.
Boggs contends that the admission of Alvarado’s statements
violated his Sixth Amendment right to confrontation. Although
we usually review de novo Confrontation Clause challenges,
Tucker, 215 Ariz. at 315 ¶ 61, 160 P.3d at 194, because Boggs
25
failed to object below, he must show fundamental error,
Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.
¶56 The Confrontation Clause applies only to testimonial
evidence. Crawford v. Washington, 541 U.S. 36, 51 (2004).
Crawford defined testimony as “[a] solemn declaration or
affirmation made for the purpose of establishing or proving some
fact.” Id. The Court clarified “testimonial” in Davis:
Statements are nontestimonial when made in the course
of police interrogation under circumstances
objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet
an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no
such ongoing emergency, and that the primary purpose
of the interrogation is to establish or prove past
events potentially relevant to later criminal
prosecution.
Davis v. Washington, 126 S. Ct. 2266, 2273-74 (2006); see also
id. at 2279 (finding statements non-testimonial when declarant
“was seeking aid, not telling a story about the past”).
¶57 The admission of Alvarado’s statements did not violate
Boggs’ right to confrontation. As she lay dying on the ground
just outside the restaurant, Alvarado told Vargas that “men
entered,” “they were robbing,” and that she thought “they were
still robbing.” When Officer Beutal arrived, she told him that
two people were in the store and repeatedly asked him for help.
¶58 The circumstances in which Alvarado made the
statements indicate that she was seeking aid for herself and the
26
others inside the store to meet an ongoing emergency. Further,
the officers’ actions, including surrounding the restaurant and
sending dogs in to confront anyone still inside the restaurant,
demonstrate that they understood the situation to be an ongoing
emergency. See State v. Alvarez, 213 Ariz. 467, 473 ¶ 19, 143
P.3d 668, 674 (App. 2006) (finding an “ongoing emergency” when
facts indicate that “[a]lthough the criminal activity . . . had
ended, the emergency that those events set in motion was very
much ongoing”). Because Alvarado’s statements described what
appeared to be an ongoing emergency, they were non-testimonial.
G.
¶59 Boggs raises two arguments with respect to the
sentencing proceeding. First, he argues that the trial court
abused its discretion by denying his motion to proceed pro per
at the penalty phase.4 See State v. De Nistor, 143 Ariz. 407,
413, 694 P.2d 237, 243 (1985) (stating that a trial court
maintains discretion to deny an untimely motion for self-
representation). The right to proceed without counsel is not
unqualified, but must be balanced against the government’s right
to a “‘fair trial conducted in a judicious, orderly fashion.’”
De Nistor, 143 Ariz. at 412, 694 P.2d at 242 (quoting United
States v. Dujanovic, 486 F.2d 182, 186 (9th Cir. 1973)).
4
Boggs moved to proceed pro per in the middle of the
sentencing proceeding, before the start of the penalty phase.
27
¶60 A defendant who exercises the right to self-
representation can subsequently waive that right, either
explicitly or implicitly. See, e.g., McKaskle v. Wiggins, 465
U.S. 168, 182 (1984). In this case, Boggs relinquished his
right to proceed pro per on April 11, 2005, despite the trial
judge’s warning that “if [advisory counsel] take over the trial,
they are going to take over the trial.” The judge further
cautioned, “[W]e are not going [to] go back and forth on this.”
¶61 When a defendant has waived his right to self-
representation, the trial court may exercise its discretion in
deciding whether to permit or deny a subsequent attempt to
proceed pro per. See United States v. Singleton, 107 F.3d 1091,
1099 (4th Cir. 1997) (stating that if a defendant has waived the
right to self-representation, “[t]he decision at that point
whether to allow the defendant to proceed pro se at all or to
impose reasonable conditions on self-representation rests in the
sound discretion of the trial court”). The nature of the right
to self-representation does not “suggest[] that the usual
deference to ‘judgment calls’ . . . by the trial judge should
not obtain here.” McKaskle, 465 U.S. at 177 n.8; see also State
v. Cornell, 179 Ariz. 314, 326, 878 P.2d 1352, 1364 (1994)
(recognizing that self-representation is not an absolute right
and stating that “the court need not stop the trial for the
convenience of the defendant each time he changes his mind”).
28
¶62 Before Boggs decided to relinquish his right of self-
representation, the trial judge cautioned that if Boggs wished
to have appointed counsel take over his representation, counsel
would remain in that position for the remainder of the trial.
When Boggs relinquished his right to self-representation and
thereby waived his right to proceed pro per, the judge again
gave a similar warning. When the trial court denied Boggs’
second motion to represent himself, it reminded Boggs of its
previous warnings and stated that it would not go back and forth
on the issue. Because Boggs had relinquished the right to self-
representation, the trial judge did not abuse his discretion in
denying Boggs’ second request to represent himself.
H.
¶63 Finally, Boggs argues that the trial court violated
his due process right to a fair trial by allowing the State to
present threatening letters as rebuttal evidence in the penalty
phase. We review a trial court’s evidentiary rulings at the
penalty phase for abuse of discretion, State v. McGill, 213
Ariz. 147, 156 ¶ 40, 140 P.3d 930, 939 (2006), but review
constitutional issues de novo, id. at 159 ¶ 53, 140 P.3d at 942.
1.
¶64 Arizona’s sentencing scheme provides:
At the penalty phase, the defendant and the state may
present any evidence that is relevant to the
determination of whether there is mitigation that is
29
sufficiently substantial to call for leniency. In
order for the trier of fact to make this
determination, the state may present any evidence that
demonstrates that the defendant should not be shown
leniency.
A.R.S. § 13-703.01.G. Relevant information is admissible at
sentencing “regardless of its admissibility under the rules
governing admission of evidence at criminal trials.” A.R.S. §
13-703.C. Both parties are also “permitted to rebut any
information received” at the penalty phase. A.R.S. § 13-703.D.
¶65 Evidence presented for rebuttal must be relevant to
the mitigation proffered. A.R.S. § 13-703.C; Roque, 213 Ariz.
at 220 ¶ 107, 141 P.3d at 395. Relevant means “‘tending to
prove or disprove the matter at issue,’ a standard virtually
identical to that employed in Rule 401 of the Arizona Rules of
Evidence.” Roque, 213 Ariz. at 220-21 ¶ 107, 141 P.3d at 395-96
(quoting McGill, 213 Ariz. at 157 ¶ 40, 140 P.3d at 940). While
we give “deference to a trial judge’s determination of whether
rebuttal evidence offered during the penalty phase is ‘relevant’
within the meaning of the statute,” McGill, 213 Ariz. at 156-57
¶ 40, 140 P.3d at 939-40, “[t]rial courts can and should exclude
evidence that is either irrelevant to the thrust of the
defendant’s mitigation or otherwise unfairly prejudicial,” State
v. Hampton, 213 Ariz. 167, 180 ¶ 51, 140 P.3d 950, 963 (2006).
¶66 We agree that the threatening letters are relevant to
rebut mitigation testimony. The thrust of the mitigation was
30
that Boggs suffers from mental health issues, including bipolar
disorder. To support the diagnosis, two mental health experts,
Drs. Ruiz and Lanyon, testified about Boggs’ delusional
involvement in a militia and suggested that, because the militia
was a delusion, Boggs could not cause any harm through the
entity. Dr. Ruiz stated that although she had no knowledge to
confirm or disaffirm the militia’s existence, she believed
Boggs’ militia activities to be delusional. When the State
questioned Dr. Lanyon about the concrete manifestations of the
current militia, including uniforms and weapons, he responded:
“That to me seemed to support the delusional aspects of this
that he was – had a big organization that was going to shake up
the world or something, going to put bombs in, you know.”
Boggs’ letters that threatened harm for mistreating the leader
of the militia rebut the suggestion that Boggs’ militia
involvement was benign.
¶67 Boggs further argues that even if the letters are
relevant, they are too prejudicial, relying on language from
State v. Hampton. In Hampton, the prosecution offered bad acts
evidence to rebut mitigation testimony that Hampton was a
“caring person who deserved leniency.” Id. at 179 ¶ 47, 140 P.3d
at 962. We concluded that the bad acts evidence was admissible,
but recognized that our death penalty statutes do not “strip[]
courts of their authority to exclude evidence in the penalty
31
phase if any probative value is substantially outweighed by the
prejudicial nature of the evidence. Trial courts should not
allow the penalty phase to devolve into a limitless and
standardless assault on the defendant’s character and history.”
Id. at 180 ¶ 51, 140 P.3d at 963. The language that Boggs
relies on, however, does not extend to the circumstances before
us because here the threatening letters were not offered to show
Boggs’ bad character. The trial court therefore did not abuse
its discretion in admitting them.
2.
¶68 Rebuttal evidence in the mitigation phase must comport
not only with Arizona’s sentencing scheme, but also with the
requirements of the Due Process Clause. Hampton, 213 Ariz. at
179 ¶ 48, 140 P.3d at 962. Although the sentencing process does
not require the same procedural safeguards as does the guilt
phase of a trial, Gardner v. Florida, 430 U.S. 349, 358 n.9
(1977), testimonial hearsay presented at sentencing must be
“accompanied by sufficient indicia of reliability,” McGill, 213
Ariz. at 160 ¶ 57, 140 P.3d at 943. Boggs asserts that the
letters did not contain sufficient indicia of reliability to
comply with due process.
¶69 Introduction of the letters at the penalty phase did
not violate due process. As a primary matter, the threatening
letters in this case were neither hearsay nor testimonial.
32
Furthermore, Boggs knew of the threatening letters before the
trial started, as he successfully kept them out of the guilt
phase. Yet, Boggs failed to object on foundational grounds at
the sentencing hearing. When the trial judge specifically asked
the defense if it objected to the foundation of the evidence,
the defense responded in the negative. On cross-examination,
the defense questioned the reliability of the threatening
letters by comparing the handwriting with another letter signed
by Boggs and noting that one of the letters contained no
evidence that it was sent from jail. Thus, the defense did
address the letters’ reliability before the jury, but did not
object to their foundation.
¶70 Boggs now asserts that the threatening letters are not
reliable because the State provided insufficient proof that he
wrote them. This argument is not persuasive. First, nearly
identical letters were sent to the lead detective and to the
prosecutor. Second, Boggs’ militia title was “Chief of Staff,”
and the letters specifically referred to the “Chief.” Third,
jail staff intercepted one of the letters, which an inmate
stated that Boggs had asked him to mail. Finally, the letters
stated, “we know where you live,” and Boggs possessed an address
for Vogel. The introduction of the threatening letters at the
penalty phase did not violate Boggs’ due process rights.
III.
33
¶71 Because the murders occurred before August 1, 2002, we
independently review the aggravating and mitigating factors and
the “propriety of the death sentence.” A.R.S. § 13-703.04.A;
see also State v. Roseberry, 210 Ariz. 360, 373 ¶ 77, 111 P.3d
402, 415 (2005) (“[The Court] independently determines ‘if the
mitigation is sufficiently substantial to warrant leniency in
light of existing aggravation.’” (citation omitted)).
A.
¶72 The State alleged the existence of three aggravating
factors for each of the murders. We address each in turn.
1.
¶73 A defendant convicted of first degree murder is
eligible for the death penalty if the state proves beyond a
reasonable doubt that he “committed the offense as consideration
for the receipt, or in expectation of the receipt, of anything
of pecuniary value.” A.R.S. § 13-703.F.5. This aggravating
factor is present “if the expectation of pecuniary gain is a
motive, cause, or impetus for the murder and not merely a result
of the murder.” State v. Hyde, 186 Ariz. 252, 280, 921 P.2d
655, 683 (1996).
¶74 The evidence allowed the jury to find the pecuniary
gain aggravator beyond a reasonable doubt. Boggs’ June 6
confession clearly indicated his monetary motivation: Boggs
told Detective Vogel that money was his motivation and that the
34
incident happened “[b]ecause of the money.” Moreover, the
evidence demonstrated that money was taken from two registers;
that someone attempted to pry open a third register; that the
victims’ pockets were emptied and wallets taken; and that one
victim’s bank card was used in an attempt to withdraw money from
an ATM.
¶75 Boggs urges that the pecuniary gain aggravating factor
is lacking because the evidence indicates multiple motivations
for the murders, including a desire to silence witnesses and
racist beliefs. Silencing witnesses so that none survive the
robbery, however, is an act in furtherance of the robbery and
thus supports a finding of the pecuniary gain aggravating
factor. See State v. Hoskins, 199 Ariz. 127, 147 ¶ 87, 14 P.3d
997, 1017 (2000) (“When a robbery victim is executed to
facilitate the killer’s escape and hinder detection for the
purpose of successfully procuring something of value, the
pecuniary gain motive is present.”). Moreover, because
pecuniary gain need only be a motive or cause of the murder, see
Hyde, 186 Ariz. at 280, 921 P.2d at 683, the fact that Boggs may
have had other motives does not mean that the State failed to
prove this aggravator.
2.
¶76 A defendant who commits first degree murder in “an
especially heinous, cruel or depraved manner,” is eligible for
35
the death penalty. A.R.S. § 13-703.F.6. The state need prove
the existence of only one of these elements to establish this
aggravating factor. Tucker, 215 Ariz. at 321 ¶ 103, 160 P.3d at
200. To show that a defendant committed a murder in an
especially cruel manner, the state must show beyond a reasonable
doubt that the victim suffered mental or physical distress.
Ellison, 213 Ariz. at 141-42 ¶ 119, 140 P.3d at 924-25. The
defendant must also “intend that the victim suffer or reasonably
foresee that there is a substantial likelihood that the victim
will suffer as a consequence of the defendant’s acts.” State v.
McCall, 139 Ariz. 147, 161, 677 P.2d 920, 934 (1983).
¶77 We conclude that the State proved beyond a reasonable
doubt that the victims suffered mental anguish sufficient to
render the murders especially cruel. Mental anguish requires
evidence that the victim “was conscious during the infliction of
violence.” State v. Van Adams, 194 Ariz. 408, 420 ¶ 44, 984
P.2d 16, 28-29 (1999). Moreover, the state can prove mental
anguish by showing that a victim experienced “significant
uncertainty about his or her ultimate fate.” Tucker, 215 Ariz.
at 311 ¶ 33, 160 P.3d at 190.
¶78 Boggs unsuccessfully attempts to analogize his case to
State v. Soto-Fong, which involved the murder of three
individuals in a store. 187 Ariz. 186, 190, 928 P.2d 610, 614
(1996). In Soto-Fong, the record lacked evidence demonstrating
36
what occurred between the time the defendant entered the store
and the time that he killed the victims. Id. at 204-05, 928
P.2d at 628-29. In addition, only inconclusive evidence
suggested that the victims suffered. Id. at 205, 928 P.2d at
629. In contrast, Boggs described the murders in detail during
both the June 5 and June 6 interrogations. Boggs admitted that
the victims were forced at gunpoint to lie down in the work area
of the restaurant, ordered to remove everything from their
pockets, ordered to march through the cooler into the back
freezer with their hands interlaced on top of their heads,
forced to kneel down, and then shot in rapid succession. Boggs
also stated that after he and Hargrave left the victims in the
freezer, he heard screaming, at which point he returned to the
freezer and shot some more. Physical evidence corroborates
Boggs’ statements. The State thus presented sufficient evidence
to establish the especially cruel aggravator for all three of
the victims.5
3.
¶79 A defendant is death eligible if he “has been
convicted of one or more other homicides . . . committed during
the commission of the offense.” A.R.S. § 13.703.F.8. This
5
Because the especially cruel aggravator requires only
mental or physical suffering, see Ellison, 213 Ariz. at 141-42 ¶
119, 140 P.3d at 924-25, we need not determine whether the
evidence also shows physical suffering.
37
aggravator applies if “the defendant was found criminally
liable, even if he himself did not physically commit the
murders.” Ellison, 213 Ariz. at 143 ¶ 129, 140 P.3d at 926. To
establish the aggravator, we evaluate “the temporal, spatial,
and motivational relationships between the capital homicide and
the collateral [homicide], as well as . . . the nature of that
[homicide] and the identity of its victim.” State v. Lavers,
168 Ariz. 376, 393-94, 814 P.2d 333, 350-51 (1991) (alterations
in original) (citations omitted); see Ellison, 213 Ariz. at 143
¶ 128, 140 P.3d at 926 (requiring the murders be “part of a
continuous course of criminal conduct”).
¶80 Boggs concedes the temporal and spatial relationship
among the victims, but argues that the homicides lack a
motivational relationship. With regard to the various
motivations, Boggs asserts that Hargrave shot one of the victims
because he caused Hargrave to lose his job at the restaurant.
Boggs also suggests that he participated in the shooting only
because he was “flipping out upon seeing the victims after
Hargrave shot them.” Then he suggests that one of the killings
was based on race and another was to eliminate a witness.
¶81 Regardless of Boggs’ specific motive for committing
the murders, all the murders involved a continuous course of
criminal conduct. The evidence, including Boggs’ admission from
his June 6 interrogation, demonstrates that the victims were
38
killed, at least in part, as a means of witness elimination so
that they could not identify the perpetrators. Boggs also
stated that the victims were shot in the freezer to lessen the
gunshot noise and avoid detection. This evidences that the
murders were intended to prevent detection of the perpetrators,
as part of a continuous course of criminal conduct.
¶82 Additionally, other alleged potential motivations
apply to all the victims. First, the racial motivation applied
to all the victims. Although Kenneth Brown was Native American
and Alvarado and Jimenez were Hispanic, Boggs confessed to the
killings in his January 2004 letter to Vogel and stated that his
motive was “to rid the world of a few needless, illegals.”
Because Boggs’ confession does not distinguish among the victims
based on their race, any attempted distinction now seems
disingenuous.
¶83 Second, Boggs contends that Hargrave shot one of the
victims because he informed the restaurant manager of Hargrave’s
short drawer, resulting in Hargrave losing his employment.
Hargrave, however, was angry not merely about being fired, but
also about what he perceived to be disparate treatment between
him and the “Mexican” employees with regard to discipline and
salary. The record indicates that Hargrave did not distinguish
among the employees based on their specific minority heritage.
As a result, any race-based motive or motive related to
39
Hargrave’s animosity toward the restaurant applies to all the
victims. Because the murders were motivationally related and
Boggs concedes the temporal and spatial relationship, the State
established this aggravator beyond a reasonable doubt.
B.
¶84 A capital defendant may present any relevant evidence
during the penalty phase so long as it “supports a sentence less
than death.” Tucker, 215 Ariz. at 322 ¶ 106, 160 P.3d at 201.
The defendant must prove mitigating circumstances by a
preponderance of the evidence. A.R.S. § 13-703.C. Boggs
suggests three mitigating circumstances: difficult upbringing;
mental illness; and cooperation with the police in apprehending
Hargrave.
1.
¶85 Boggs presented sufficient evidence during the penalty
phase to establish his difficult childhood by a preponderance of
the evidence. Boggs’ aunt testified that Boggs was born with a
cleft palate that required numerous surgeries at an early age
and led to emotional problems. Dr. Ruiz explained that constant
hospitalizations and numerous surgeries during the developmental
stages of Boggs’ life affected his later functioning, causing
him to be dissociated and delusional.
¶86 Boggs’ aunt also testified that his mother abused him
mentally and practiced “extreme discipline,” although she never
40
abused him physically. She explained that Boggs’ mother was
diagnosed as having mental retardation and did not know how to
parent. Boggs developed behavioral problems and, from the ages
of ten to fifteen, spent significant time in group homes.
Boggs’ mitigation testimony also included allegations of sexual
abuse between the ages of ten and fourteen, once involving
another boy in a group home and once involving a police officer.
Additionally, Boggs’ aunt recalled him talking of suicide from
the age of ten. Boggs was hospitalized for at least one
suicidal episode.
¶87 Boggs’ difficult life extended into his early
adulthood, as most of his immediate family died when he was
between the ages of sixteen and twenty-one. His maternal
grandmother died of liver failure in 1996, his mother died of
cancer in 1997, his sister died of an epileptic seizure in 1998,
his brother committed suicide in 1998, and his maternal
grandfather died of cancer in 1999.
2.
¶88 The defense also presented evidence sufficient to
establish Boggs’ mental health mitigating circumstance by a
preponderance of the evidence. Dr. Ruiz testified about his
traumatic life events and diagnosed Boggs with post-traumatic
stress disorder (PTSD) and bipolar disorder based on his medical
records. She explained that, with PTSD, “there are rare
41
instances where somebody . . . is reminded of [a past traumatic
experience] because of an event that occurs in their lifetime,
and they go into a [dissociative] state.” Dr. Ruiz also
explained that bipolar individuals suffer mood shifts from
extremely depressed to manic or hypo-manic states, bypassing
“normalcy.” In a manic state, she said, “[e]ventually you rev
up so fast, that you become psychotic” and disinhibited. Dr.
Ruiz could not, however, offer an opinion as to whether Boggs
was in a dissociative or manic state at the time of the murders.
¶89 Dr. Lanyon, a forensic psychologist, evaluated Boggs
several times and concluded that he suffered from chronic
bipolar disorder. Dr. Lanyon explained that delusions are a
symptom of bipolar disorder and testified that “to a reasonable
degree of psychological certainty” Boggs suffered from bipolar
disorder at the time of the crimes, but stated: “That doesn’t
necessarily mean that his behavior on that day was driven by it.
That means that his life up to that point . . . was heavily
colored by it.” Like Dr. Ruiz, Dr. Lanyon could not determine
whether Boggs was in a manic state when he committed the crimes
and even testified that it seemed “reasonably clear” that, at
the time of the murders, Boggs was not doing the “out of control
impulsive things” typical of a manic state. On the other hand,
Dr. Lanyon testified that he believed Boggs was affected by his
disorder at the time, particularly with regard to Boggs’
42
motivations for committing the crimes. In addition, Dr. Lanyon
stated that delusions are a symptom of bipolar disorder and that
Boggs’ belief in his militia supported the delusional aspects of
his mental health. He testified that Boggs may have been
delusional at the time of the crimes, but not in a manic state.
¶90 In rebuttal, the State’s expert, Dr. Almer, testified
that although Boggs exhibited characteristics of anti-social,
narcissistic, and borderline personality disorders, he was not
bipolar. Dr. Almer suggested that Boggs was exaggerating his
mental illness when Lanyon performed psychological tests on him,
but testified that Boggs did have traits typical of a sociopath,
which include a lack of “appreciation for the rights of other
people [and] empathy for the misery of mankind, except to create
[misery] for mankind.” The evidence thus conflicts as to
whether Boggs was bipolar or only anti-social. Taking all the
evidence into account, the defense established that Boggs
suffered from mental health issues, but could not establish his
mental state at the time of the crimes.
3.
¶91 Boggs also argues on appeal that we should consider
his voluntary assistance in helping the police capture Hargrave
as mitigation. The defense contends that Boggs’ assistance led
to the peaceful apprehension of a dangerous man in a potentially
violent situation.
43
¶92 Boggs did aid in the apprehension of Hargrave, but his
motives for doing so are unclear. As the State points out,
Boggs may have provided the police with this information for his
own benefit. Indeed, because Boggs then blamed the robbery and
murders completely on Hargrave, it was in his best interest for
the police to capture Hargrave. Boggs’ cooperation with the
police to aid in Hargrave’s apprehension is entitled to minimal
weight. See State v. Doerr, 193 Ariz. 56, 70 ¶ 67, 969 P.2d
1168, 1182 (1998) (giving little weight, if any, to cooperation
as a mitigating circumstance if defendant is “motivated by self-
interest”).
C.
¶93 After evaluating each aggravating and mitigating
factor, we independently review the propriety of the death
sentence. A.R.S. § 13-703.04.A. In our independent reweighing
of the evidence, we consider the “quality and the strength, not
simply the number, of aggravating and mitigating factors.”
State v. Greene, 192 Ariz. 431, 443 ¶ 60, 967 P.2d 106, 118
(1998). Because the State proved three aggravating factors, of
which the multiple murders aggravating factor receives
“extraordinary weight,” Hampton, 213 Ariz. at 185 ¶ 90, 140 P.3d
at 968, we must determine whether Boggs’ mitigating evidence is
“sufficiently substantial to warrant leniency,” A.R.S. § 13-
703.04.B.
44
¶94 Boggs’ mitigation evidence involves primarily his
difficult upbringing and poor mental health. In our reweighing,
we consider a difficult childhood and poor mental health as
mitigating factors, whether or not they are causally related to
the murder. The existence or lack of a causal link, however,
aids us in “assessing the quality and strength of the mitigation
evidence.” State v. Johnson, 212 Ariz. 425, 440 ¶ 65, 133 P.3d
735, 750 (2006) (citation omitted). As we recently noted, lack
of a causal nexus between a difficult personal life and the
murders lessens the effect of this mitigation. State v. Garza,
216 Ariz. 56, 73 ¶ 84, 163 P.3d 1006, 1023 (2007).
Additionally, we weigh mental health mitigation in proportion to
“a defendant’s ability to conform or appreciate the wrongfulness
of his conduct.” Johnson, 212 Ariz. at 440 ¶ 65, 133 P.3d at
750 (quoting State v. Trostle, 191 Ariz. 4, 21, 951 P.2d 869,
886 (1997)).
¶95 In this case, no expert testified that Boggs did not
know right from wrong, and none could establish his mental state
at the time of the crime. Without a causal link between the
murders and his troubled childhood or mental health issues,
these mitigating circumstances are entitled to less weight. See
id. Weighed against three aggravating factors, including one
for multiple homicides, the mitigating evidence is not
sufficiently substantial to call for leniency.
45
IV.
¶96 For purposes of federal review, Boggs raises the
following challenges to the constitutionality of Arizona’s death
penalty scheme. He concedes that we have previously rejected
these arguments.
¶97 (1) The fact-finder in capital cases must be able to
consider all relevant mitigating evidence in deciding whether to
give the death penalty. See Woodson v. North Carolina, 428 U.S.
280, 304 (1976). The trial court’s failure to allow the jury to
consider and give effect to all mitigating evidence in this case
by limiting its consideration to that proven by a preponderance
of the evidence is unconstitutional under the Eighth and
Fourteenth Amendments. We rejected this argument in McGill, 213
Ariz. at 161 ¶ 59, 140 P.3d at 944.
¶98 (2) The State’s failure to allege an element of a
charged offense in the grand jury indictment — the aggravating
factors that made the defendant death eligible — is a
fundamental defect that renders the indictment constitutionally
defective under the Fifth, Sixth, Eighth, and Fourteenth
Amendments and Article 2, Sections 1, 4, 13, 15, 23, and 24 of
the Arizona Constitution. See United States v. Chesney, 10 F.3d
641, 643 (9th Cir. 1993); see also Apprendi v. New Jersey, 530
U.S. 466 (2000). We rejected this argument in McKaney v.
46
Foreman ex rel. County of Maricopa, 209 Ariz. 268, 273 ¶ 23, 100
P.3d 18, 23 (2004).
¶99 (3) Both the United States and the Arizona
Constitutions prohibit ex post facto laws. U.S. Const. Art. 1,
§ 10, cl. 1; Ariz. Const. art. 2, § 25. Application of the new
death penalty law to defendant constitutes an impermissible ex
post facto application of a new law. We rejected this argument
in State v. Ring, 204 Ariz. 534, 547 ¶¶ 23-24, 65 P.3d 915, 928
(2003).
¶100 (4) The F.6 aggravating factor of “especially cruel,
heinous, or depraved” is unconstitutionally vague and overbroad
because the jury does not have enough experience or guidance to
determine when the aggravator is met. The finding of this
aggravator by a jury violates the Eighth and Fourteenth
Amendments because it does not sufficiently place limits on the
discretion of the sentencing body, the jury, which has no
“narrowing construction[s]” to draw from and give “substance” to
the otherwise facially vague law. See Walton v. Arizona, 497
U.S. 639, 652-54 (1990), overruled on other grounds by Ring v.
Arizona, 536 U.S. 584 (2002); Godfrey v. Georgia, 446 U.S. 420,
428-29 (1980). We rejected this argument in State v. Cromwell,
211 Ariz. 181, 188-90 ¶¶ 39-45, 119 P.3d 448, 455-57 (2005).
¶101 (5) By allowing victim impact evidence at the penalty
phase of the trial, the trial court violated defendant’s
47
constitutional rights under the Fifth, Sixth, Eighth and
Fourteenth Amendments and Article 2, Sections 1, 4, 13, 15, 23,
and 24 of the Arizona Constitution. We rejected challenges to
the use of victim impact evidence in Lynn v. Reinstein, 205
Ariz. 186, 191 ¶ 16, 68 P.3d 412, 417 (2003).
¶102 (6) The trial court improperly omitted from the
penalty phase jury instructions words to the effect that they
may consider mercy or sympathy in deciding the value to assign
the mitigation evidence, instead telling them to assign whatever
value the jury deemed appropriate. The court also instructed
the jury that they “must not be influenced by mere sympathy or
by prejudice in determining these facts.” These instructions
limited the mitigation the jury could consider in violation of
the Fifth, Sixth, Eighth and Fourteenth Amendments and Article
2, Sections 1, 4, 15, 23, and 24 of the Arizona Constitution.
We rejected this argument in State v. Carreon, 210 Ariz. 54, 70-
71 ¶¶ 81-87, 107 P.3d 900, 916-917 (2005).
¶103 (7) The death penalty is cruel and unusual under any
circumstances and violates the Eighth and Fourteenth Amendments,
and Article 2, Section 15 of the Arizona Constitution. We
rejected this argument in State v. Harrod, 200 Ariz. 309, 320 ¶
59, 26 P.3d 492, 503 (2001), vacated on other grounds, 536 U.S.
953 (2002).
48
¶104 (8) The death penalty is irrational and arbitrarily
imposed; it serves no purpose that is not adequately addressed
by life in prison, in violation of the defendant’s right to due
process under the Fourteenth Amendment to the United States
Constitution and Article 2, Sections 1 and 4 of the Arizona
Constitution. We rejected these arguments in State v. Beaty,
158 Ariz. 232, 247, 762 P.2d 519, 534 (1988).
¶105 (9) The prosecutor’s discretion to seek the death
penalty lacks standards and therefore violates the Eighth and
Fourteenth Amendments, and Article 2, Sections 1, 4, and 15 of
the Arizona Constitution. We rejected this argument in State v.
Sansing, 200 Ariz. 347, 361 ¶ 46, 26 P.3d 1118, 1132 (2001),
vacated on other grounds, 536 U.S. 954 (2002).
¶106 (10) Arizona’s death penalty is applied so as to
discriminate against poor, young, and male defendants in
violation of Article 2, Sections 1, 4, and 13 of the Arizona
Constitution. We rejected this argument in Sansing, 200 Ariz.
at 361 ¶ 46, 26 P.3d at 1132.
¶107 (11) Proportionality review serves to identify which
cases are above the “norm” of first-degree murder, thus
narrowing the class of defendants who are eligible for the death
penalty. The absence of proportionality review of death
sentences by Arizona courts denies capital defendants due
process of law and equal protection and amounts to cruel and
49
unusual punishment in violation of the Fifth, Eighth, and
Fourteenth Amendments, and Article 2, Section 15 of the Arizona
Constitution. We rejected this argument in Harrod, 200 Ariz. at
320 ¶ 65, 26 P.3d at 503.
¶108 (12) Arizona’s capital sentencing scheme is
unconstitutional because it does not require the state to prove
the death penalty is appropriate or require the jury to find
beyond a reasonable doubt that the aggravating circumstances
outweigh the accumulated mitigating circumstances. Instead,
Arizona’s death penalty statute requires defendants to prove
their lives should be spared, in violation of the Fifth, Eighth,
and Fourteenth Amendments, and Article 2, Section 15 of the
Arizona Constitution. We rejected this argument in Pandeli, 200
Ariz. at 382 ¶ 92, 26 P.3d at 1153.
¶109 (13) Arizona’s death penalty scheme does not
sufficiently channel the sentencing jury’s discretion.
Aggravating circumstances should narrow the class of persons
eligible for the death penalty and reasonably justify the
imposition of a harsher penalty. Section 13-703.01 is
unconstitutional because it provides no objective standards to
guide the jury in weighing the aggravating and mitigating
circumstances. The broad scope of Arizona’s aggravating factors
encompasses nearly anyone involved in a murder, in violation of
the Eighth and Fourteenth Amendments, and Article 2, Section 15
50
of the Arizona Constitution. We rejected this argument in
Pandeli, 200 Ariz. at 382 ¶ 90, 26 P.3d at 1153.
¶110 (14) Execution by lethal injection is cruel and
unusual punishment in violation of the Eighth and Fourteenth
Amendments, and Article 2, Section 15 of the Arizona
Constitution. We rejected this argument in Van Adams, 194 Ariz.
at 422 ¶ 55, 984 P.2d at 30.
¶111 (15) Arizona’s death penalty unconstitutionally
requires imposition of the death penalty whenever at least one
aggravating circumstance and no mitigating circumstances exist,
in violation of the Eighth and Fourteenth Amendments, and
Article 2, Section 15 of the Arizona Constitution. Arizona’s
death penalty law cannot constitutionally presume that death is
the appropriate default sentence. We rejected this argument in
State v. Miles, 186 Ariz. 10, 19, 918 P.2d 1028, 1037 (1996).
V.
¶112 For the foregoing reasons, we affirm Boggs’
convictions and sentences.
_______________________________________
Ruth V. McGregor, Chief Justice
CONCURRING:
_______________________________________
Rebecca White Berch, Vice Chief Justice
51
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
_______________________________________
W. Scott Bales, Justice
52