State v. Velazquez

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-04-0361-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2001-014970
JUAN VELAZQUEZ, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Jeffrey S. Cates, Judge

AFFIRMED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Capital Litigation Section
Patricia A. Nigro, Assistant Attorney General
Attorneys for State of Arizona

LAW OFFICES OF RICHARD D. GIERLOFF, P.C. Phoenix
By Richard D. Gierloff
Attorney for Juan Velazquez
________________________________________________________________

B A L E S, Justice

¶1 After convicting Juan Velazquez of seven counts of child

abuse and one count of first degree murder, a jury determined that

he should receive the death penalty for the murder. We have

jurisdiction over this mandatory appeal 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 September 2001, Juan Velazquez was living with Virginia

Venegas and her daughters, Isabella and Liana. Isabella was three

years old, Liana was twenty months old, and Venegas was pregnant with

Velazquez’s child. Velazquez and Venegas had dated for about four

months and had lived together for two months.

¶3 On the night of September 24, 2001, Velazquez severely beat

Isabella. Venegas saw Velazquez shoving Isabella against a closet

door. Venegas became upset and argued with Velazquez, who said he

would move out. Later that night, the couple reconciled.

¶4 The next morning, Velazquez assaulted Liana while Venegas

was at a job interview. Angry with the twenty-month-old girl,

Velazquez held Liana’s mouth shut to prevent her from crying,

squeezed her stomach, and then repeatedly swept her feet out from

under her, causing her to fall backwards and hit her head on the floor.

After falling several times, Liana could not get up and did not

respond to Velazquez’s voice. Velazquez placed her on the couch and

covered her with a pillow.

¶5 When Venegas returned home, Velazquez told her Liana was

asleep on the couch and that Venegas should leave her alone.

Velazquez showered and went to work. According to Velazquez, Liana

was alive and breathing when he left. A few hours later, Venegas

discovered that Liana was not breathing and called Velazquez to tell

him that she thought Liana was dead. Velazquez told Venegas not to

2
do anything until he returned.

¶6 When Velazquez arrived, Liana was in fact dead. Instead

of calling 911, Velazquez went to his mother’s house and got a cement

rock and some wire. He tied the rock to Liana’s body and had Venegas

drive him to a canal, where he dumped Liana’s body.

¶7 The next day, September 26, 2001, Venegas reported Liana

missing. When police arrived, Velazquez said that he and Venegas

had discovered only that morning that she was gone. An extensive

search for Liana ensued.

¶8 Shortly after the search began, police contacted the

girls’ father. He came to the condominium where Venegas lived and

immediately noticed that Isabella’s face was swollen and bruised.

Isabella was then examined at a hospital. She had extensive bruising,

a skull fracture, and two cephalhematomas (bruises associated with

swelling caused by bleeding under the surface bones of the skull).

Isabella told police that Velazquez had hurt both her and Liana.

¶9 Police interviewed Velazquez and Venegas, who both

initially denied any wrongdoing. Venegas was re-interviewed the next

day, September 27, 2001, and she admitted that Liana was dead and

that she had driven Velazquez to a canal where he had dumped the girl’s

body. Police then arrested Velazquez. Confronted with the

information provided by Venegas, Velazquez confessed to killing

Liana and assaulting Isabella. He also admitted that he had

previously physically abused both girls. Police divers recovered

3
Liana’s body from the canal on September 28, 2001.

¶10 The medical examiner concluded that Liana died from blunt

force trauma to her head. The autopsy revealed a “full thickness”

skull fracture, internal hemorrhaging, and swelling of the brain.

The swelling exerted pressure at the base of the skull, which impaired

respiratory and cardiac functions and eventually caused Liana’s

death. Liana also had many other blunt force injuries to her head,

face, and body. The medical examiner opined that Liana suffered at

least six separate blows before her death.

¶11 Velazquez was indicted for the felony murder of Liana,

three counts of child abuse for injuries suffered by Liana, and four

counts of child abuse for injuries suffered by Isabella. On September

2, 2004, a jury convicted Velazquez of all charges. On October 8,

2004, the same jury determined that Velazquez should receive the

death penalty for the murder after finding three aggravating factors:

Velazquez had been previously convicted of a serious offense; the

murder was especially cruel; and the victim was under the age of

fifteen. See A.R.S. § 13-703(G)(2), (6), (9) (Supp. 2001).1 Based

on the verdicts, the trial judge sentenced Velazquez to death for

1
From April 2001 through August 2002, the aggravating
circumstances were listed in sub-section (G) of A.R.S. § 13-703. See
2001 Ariz. Sess. Laws, ch. 260, § 1; 2002 Ariz. Sess. Laws, 5th Spec.
Sess., ch. 1, § 1. In 2002, following the Supreme Court’s decision
in Ring v. Arizona, 536 U.S. 584, 609 (2002), § 13-703 was amended
and the sub-section listing the aggravators was designated (F)
instead of (G). See 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1,
§ 1. We refer to the statute in effect at the time of the murder.

4
the murder and imposed sentences with a cumulative length of sixty

years for the non-capital crimes.

DISCUSSION

¶12 Velazquez raises nine issues on appeal. For the reasons

discussed below, we affirm his convictions and sentences.

A. Jury Selection Issues

1. Witherspoon v. Illinois Challenge

¶13 Velazquez challenges the trial court’s excusing six

potential jurors for cause under Witherspoon v. Illinois, 391 U.S.

510 (1968), and its progeny. We review a trial court’s decision to

strike a potential juror for cause for abuse of discretion. State

v. Ellison, 213 Ariz. 116, 137 ¶ 88, 140 P.3d 899, 920, cert. denied,

127 S. Ct. 506 (2006).

¶14 Under the Sixth and Fourteenth Amendments to the United

States Constitution, a criminal defendant is entitled to an impartial

jury. Witherspoon, 391 U.S. at 518; see also State v. Anderson

(Anderson I), 197 Ariz. 314, 318-19 ¶ 9, 4 P.3d 369, 373-74 (2000).

Potential jurors in a capital case cannot be removed for cause “simply

because they voiced general objections to the death penalty or

expressed conscientious or religious scruples against its

infliction.” Witherspoon, 391 U.S. at 522. A juror may, however,

be removed for cause if his views on the death penalty “would ‘prevent

or substantially impair the performance of his duties as a juror in

accordance with his instructions and his oath.’” Wainwright v. Witt,

5
469 U.S. 412, 424 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45

(1980)); accord Anderson I, 197 Ariz. at 318-19 ¶ 9, 4 P.3d at 373-74.

¶15 “[I]n applying this standard, reviewing courts are to

accord deference to the trial court,” Uttecht v. Brown, 127 S. Ct.

2218, 2223 (2007), because it “is in a superior position to determine

the demeanor and qualifications of a potential juror,” id. at 2231.

All of the challenged jurors (Jurors 4, 33, 37, 52, 75, and 137)

indicated during voir dire that opposition to the death penalty made

them unable to follow the law. The trial court did not abuse its

discretion in concluding that their views on the death penalty would

substantially impair the performance of their duties as jurors.

¶16 Velazquez also argues that the Supreme Court’s decision

in Blakely v. Washington, 542 U.S. 296 (2004), and this Court’s

decision in State ex rel. Thomas v. Granville (Baldwin), 211 Ariz.

468, 123 P.3d 662 (2005), narrow the grounds on which a potential

juror may be excused for cause. These decisions, however, do not

modify Witherspooon and Witt or otherwise alter the standards for

qualifying jurors in capital cases. Cf. Uttecht, 127 S. Ct. at 2224

(summarizing principles of Witherspoon and Witt).

2. Morgan v. Illinois Challenge

¶17 Velazquez next contends that his Sixth and Fourteenth

Amendment rights to a fair and impartial jury were violated because

two “death presumptive” jurors served on the jury. Velazquez did

not object at trial but argues that seating these jurors was

6
structural error requiring automatic reversal. Alternatively,

Velazquez contends that we should find fundamental error, which

affords relief only if he “establish[es] both that fundamental error

exists and that the error in his case caused him prejudice.” State

v. Henderson, 210 Ariz. 561, 567 ¶ 20, 115 P.3d 601, 607 (2005).

¶18 A defendant is entitled to “a fair trial by a panel of

impartial, indifferent jurors.” Morgan v. Illinois, 504 U.S. 719,

727 (1992) (internal quotation marks omitted). “A juror who will

automatically vote for the death penalty” without considering the

presence of mitigating circumstances does not meet this threshold

requirement of impartiality. Id. at 729. Under the due process

guarantees of the Sixth and Fourteenth Amendments, “[i]f even one

such juror is empaneled and the death sentence is imposed,” the

sentence must be reversed. Id.

¶19 Simply because a juror favors the death penalty does not,

however, necessarily preclude the juror from serving on a jury; if

the juror is “willing to put aside his opinions and base his decisions

solely upon the evidence, he may serve.” See State v. Martinez, 196

Ariz. 451, 459 ¶ 28, 999 P.2d 795, 803 (2000) (citation omitted).

This can be determined through proper voir dire. Morgan, 504 U.S.

at 729; Martinez, 196 Ariz. at 459 ¶ 28, 999 P.2d at 803.

¶20 One of the challenged jurors (Juror 62) clearly stated that

he could consider a sentence less than death under certain mitigating

circumstances. The other (Juror 139) also stated, in responding to

7
the juror questionnaire, that he would not automatically impose a

death sentence. Juror 139 did not alter his answer when the trial

court asked the jurors in voir dire if any of them thought a person

who intentionally kills another should automatically receive the

death penalty. In response to defense counsel, Juror 139 later said

that he “could not see” any circumstance in which a penalty less than

death would be appropriate if a defendant intended to commit the

murder, was glad he committed the murder, and had no defense. These

remarks did not indicate that the juror would invariably impose a

death sentence in the context of this case, and defense counsel made

no attempt to further elucidate the juror's views. The trial court

did not commit reversible error by empaneling these two jurors.

B. Aggravation Phase Issues

1. Double-counting of Victim’s Age

¶21 Velazquez next argues that the jury impermissibly

considered Liana’s age in finding both the (G)(9) victim “under

fifteen years of age” and the (G)(6) “especially cruel” aggravators.

The Court, he acknowledges, has previously held that a sentencing

judge may use a victim’s age to establish two aggravating factors,

provided that the judge does not weigh this fact “twice in balancing

aggravating and mitigating circumstances.” State v. Medina, 193

Ariz. 504, 512 ¶ 25, 975 P.2d 94, 102 (1999). Velazquez contends

that we should reexamine this precept because juries now determine

if a death sentence is appropriate and Baldwin “disavowed” the

8
“rubric” of weighing.

¶22 A jury, like a sentencing judge, may use one fact to find

multiple aggravators, so long as the fact is not weighed twice when

the jury assesses aggravation and mitigation. Cf. Brown v. Sanders,

126 S. Ct. 884, 892 (2006) (holding that jury’s consideration of

invalid sentencing factor will not render sentence unconstitutional

if jurors may “give aggravating weight to the same facts and

circumstances” in connection with other valid sentencing factors).

Velazquez is also mistaken in characterizing Baldwin as generally

rejecting the concept of “weighing” in capital sentencing. See infra

¶¶ 39-40. Finally, we conclude that the jury did not rely on Liana’s

age to find both aggravating factors.

¶23 The trial court, at Velazquez’s request, instructed the

jury: “In determining whether an aggravating circumstance exists,

you may consider only those statutory aggravating circumstances set

forth in these instructions. You may not consider the age of the

victim in any way in deciding whether the murder was committed in

an especially cruel manner.” In closing arguments, the prosecutor

noted that Liana, a twenty-month-old child, had experienced great

physical pain and mental anguish when she was murdered by the adult

in whose care she had been placed. By acknowledging that Liana was

a helpless child when arguing she had suffered pain and anguish, the

prosecutor did not improperly urge the jury to base its finding of

the (G)(6) aggravator on Liana’s age.

9
¶24 “We presume that the jurors followed the court’s

instructions” that they should not consider Liana’s age in regard

to the (G)(6) aggravator and that the lawyers’ comments were not

evidence. See State v. Newell, 212 Ariz. 389, 403 ¶ 68, 132 P.3d

833, 847, cert. denied, 127 S. Ct. 663 (2006). Velazquez has not

demonstrated that any impermissible double-counting occurred.

2. Probable Cause Finding on Aggravating Circumstances

¶25 Velazquez argues that his Sixth, Eighth, and Fourteenth

Amendment rights were violated because no probable cause finding was

made on the alleged aggravating circumstances before they were

presented to the jury. We have, however, rejected the argument that

aggravating factors must be “preliminarily considered by the grand

jury or [a] neutral arbiter and included by specific allegation as

a probable cause finding in the charging document.” McKaney v.

Foreman ex rel. County of Maricopa, 209 Ariz. 268, 270 ¶ 10, 100 P.3d

18, 20 (2004).

3. Especially Cruel

¶26 Velazquez contends that his Eighth Amendment rights were

violated because the jury’s finding of the (G)(6) “especially cruel”

aggravating circumstance was not properly channeled. We review

issues of constitutional law de novo. State v. McGill, 213 Ariz.

147, 159 ¶ 53, 140 P.3d 930, 942 (2006), cert. denied, 127 S. Ct.

1914 (2007).

¶27 To comport with the Eighth Amendment, a capital sentencing

10
system “must channel the sentencer’s discretion by ‘clear and

objective standards’ that provide ‘specific and detailed guidance,’

and that ‘make rationally reviewable the process for imposing a

sentence of death.’” Godfrey v. Georgia, 446 U.S. 420, 428 (1980)

(internal footnotes omitted). Although Arizona’s “especially

heinous, cruel or depraved” aggravator is facially vague, it can be

remedied with appropriate narrowing instructions, “whether a judge

or a jury makes the sentencing” decision. Ellison, 213 Ariz. at 138

¶ 96, 140 P.3d at 921. “Thus, the proper inquiry is whether the jury

instructions” sufficiently narrowed the “especially cruel”

aggravator in this case. Id.

¶28 During the aggravation phase of trial, the jury was

instructed as follows:

Cruelty involves the infliction of physical pain and/or
mental anguish on a victim before death. A crime is
committed in an especially cruel manner when a defendant
either intended to inflict mental anguish or physical pain
upon the victim, or reasonably foresaw that there was a
substantial likelihood that the manner in which the crime
was committed would cause the victim to experience mental
anguish and/or physical pain before death.

The victim must be conscious for at least some portion of
the time when the pain and/or anguish was inflicted.

¶29 Velazquez concedes that the definition of “cruelty”

comports with Arizona law, but claims that the instruction defining

“especially cruel manner” was not sufficiently narrow. We have,

however, sustained instructions nearly identical to those given

here. See State v. McCall, 139 Ariz. 147, 161, 677 P.2d 920, 934

11
(1983) (“The defendant must 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.”). The

instructions here provided clear and objective standards and

properly channeled the jury’s discretion.

4. Previously Convicted of a Serious Offense

¶30 Velazquez challenges the application of the (G)(2)

“previously convicted of a serious offense” aggravating circumstance

to his case. Because Velazquez did not object to the presentation

of this aggravator at trial, we review solely for fundamental error.

Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.

¶31 The factual basis for the (G)(2) aggravator was

Velazquez’s conviction on count five of the indictment, in which the

jury found him “guilty of knowing Child Abuse under circumstances

likely to cause death or serious physical injury (involving

Isabella[’s] . . . skull fracture/head injury).” The indictment

alleged that this abuse had occurred “on or between the 24th day of

September, 2001 and the 25th day of September, 2001,” while Liana’s

murder occurred on September 25, 2001.

¶32 Under the version of (G)(2) in effect when Velazquez

murdered Liana, this aggravator could not be based on convictions

for serious offenses committed contemporaneously with the capital

murder. See State v. Rutledge, 206 Ariz. 172, 178 ¶ 25, 76 P.3d 443,

449 (2003) (holding that aggravator could not apply to attempted

12
murder and armed robbery committed contemporaneously with murder).

The (G)(2) aggravator could, however, be based on convictions for

serious offenses that were committed separately from the murder, even

if the murder and serious offense convictions resulted from the same

trial. See id. at 176-77 n.4 & ¶¶ 20-21, 76 P.3d at 447-48 & n.4.

After redesignating (G)(2) as (F)(2) in 2002, the legislature in 2003

amended the statute to provide that a “serious crime” committed

contemporaneously with the murder is sufficient to establish this

aggravator. See 2003 Ariz. Sess. Laws, ch. 255, § 1; Rutledge, 206

Ariz. at 176 n.3 ¶ 17, 76 P.3d at 447 n.3.

¶33 Velazquez argues that the evidence showed that the abuse

causing Isabella’s skull fracture occurred at the same time as his

murderous assault on Liana; the 2001 version of (G)(2) therefore did

not apply; and applying the 2003 amended version of (F)(2) to him

would violate the Ex Post Facto Clause of the Federal Constitution.

He further contends that the jury’s consideration of the “invalid”

(G)(2) sentencing factor renders his death sentence unconstitutional

under Brown, 126 S. Ct. 884.

¶34 The applicable version of (G)(2) is the statute in effect

in 2001 when Velazquez committed the murder. See Rutledge, 206 Ariz.

at 176 n.3 ¶ 17, 76 P.3d at 447 n.3. Under that statute, Velazquez

was entitled to an instruction requiring the jury to find, for

purposes of the (G)(2) aggravator, that the abuse of Isabella

described in count five had occurred separately from the murder of

13
Liana. See id. at 178 ¶ 25, 76 P.3d at 449. He did not, however,

request such an instruction, and he has not established the prejudice

necessary for its omission to be fundamental error.

¶35 In his confessions, Velazquez admitted assaulting

Isabella on the night before he murdered Liana. He now argues that

his attacks on the two girls must have occurred simultaneously

because when Isabella was taken to the hospital on the morning of

September 26, her injuries indicated she had been assaulted within

the prior twenty-four hours. We disagree. The evidence regarding

Isabella’s injuries did not establish exactly when she had received

the skull fracture, but it was consistent with Velazquez’s account

of having separately assaulted Isabella before killing Liana. No

reasonable juror could have concluded that Velazquez, contrary to

his own statements, assaulted Isabella as part of the same series

of events as Liana’s murder on September 25.

¶36 Because we conclude that the (G)(2) aggravator was

properly applied to Velazquez under the 2001 version of the statute,

we reject his argument that this aggravator was based on the 2003

amended version of (F)(2) in violation of the Ex Post Facto Clause.

We similarly reject his argument that the jury’s improper

consideration of an invalid sentencing factor requires reversal of

his sentence under Brown.

14
 C. Penalty Phase Issues

1. Jury Instructions

¶37 Velazquez alleges five errors in the penalty phase jury

instructions: (1) the sentencing process was mischaracterized as

“weighing”; (2) the sentencing process was mischaracterized as

“fact-finding”; (3) the nature of the sentencing decision-making

process was never correctly described; (4) the instructions created

a presumption of death; and (5) the consideration of mitigation

evidence was improperly restricted.2 Although we generally review

de novo whether the penalty phase jury instructions correctly state

the law, Baldwin, 211 Ariz. at 471 ¶ 8, 123 P.3d at 665, absent an

objection by the defendant, we review for fundamental error, see

State v. Anderson (Anderson II), 210 Ariz. 327, 345 ¶ 72, 111 P.3d

369, 387 (2005).

¶38 With respect to the first four alleged errors, Velazquez

contends that the instructions given are inconsistent with our

subsequent opinion in Baldwin. We disagree.

¶39 Baldwin prospectively “discourage[d] the use of

instructions that inform jurors that they must find that mitigating

circumstances outweigh aggravating factors before they can impose

2
Velazquez raises a similar challenge to the instructions given
in voir dire. He claims the sentencing process was mischaracterized
as both fact-finding and weighing and that the instructions created
a presumption of death. Because his arguments regarding the voir
dire mirror the arguments made regarding the penalty phase
instructions, our analysis applies to both.

15
a sentence other than death.” 211 Ariz. at 473 ¶ 21, 123 P.3d at

667 (emphasis added). The trial court did not use such “outweighing”

language in instructing the jury here. Instead, the trial court,

over an objection by Velazquez, used the term “weigh” in instructing

the jurors that they must individually determine the existence and

weight of any mitigation and then “weigh it against [any] aggravating

circumstances . . . to determine whether the mitigation is

sufficiently substantial to call for leniency.” Contrary to

Velazquez’s argument, Baldwin does not generally prohibit trial

courts from informing jurors that they must each weigh mitigation

evidence against aggravation evidence.

¶40 Instead, Baldwin reaffirms that each juror must

individually determine the existence and significance of any

mitigating factors and whether such factors are “sufficiently

substantial” to warrant leniency. “Each juror must determine

whether, in that juror’s individual assessment, the mitigation is

of such quality or value that it warrants leniency in a particular

case.” Id. at 473 ¶ 18, 123 P.3d at 667. Although this process might

be characterized as the juror “weighing” mitigating and aggravating

factors, a juror need not determine that mitigation “outweighs”

aggravation in order to vote for leniency. See id. at 471 n.3 ¶ 12,

123 P.3d at 665 n.3. Thus, Baldwin noted that jury instructions in

future cases should avoid “outweighing” language and should clearly

explain “that a juror may not vote to impose the death penalty unless

16
he or she finds, in the juror’s individual opinion, that ‘there are

no mitigating circumstances sufficiently substantial to call for

leniency.’” Id. (quoting A.R.S. § 13-703(E)).

¶41 Velazquez also misconstrues Baldwin with regard to the

finding of mitigating circumstances. The case does not, as Velazquez

contends, assert that the finding of mitigating circumstances is not

a fact question. Baldwin makes clear that the finding of mitigating

circumstances is a fact question; it is only the decision whether

any mitigating circumstances are sufficiently substantial to warrant

leniency that is not a fact question. Id. (“[T]he determination

whether mitigation is sufficiently substantial to warrant leniency

is not a fact question . . . , but rather is a sentencing decision

to be made by each juror based upon the juror’s assessment of the

quality and significance of the mitigating evidence that the juror

has found to exist.”).

¶42 The trial court here properly instructed the jurors that

the “[d]etermination of what circumstances are mitigating and the

weight to be given to any mitigation is for each juror to resolve

individually based upon all the evidence presented during all phases

of this trial.” The trial court further instructed the jurors that

“[i]n reaching a reasoned, moral judgment about which penalty is

justified and appropriate, you must decide how compelling or

persuasive the totality of the mitigating factors are when compared

against the totality of the aggravating factors.” We reject

17
Velazquez’s argument that the instructions given here differed from

those approved in Baldwin in a way that inaccurately described the

nature of the sentencing process.

¶43 Additionally, Velazquez claims that a presumption of death

was created when the jury was instructed: “[I]f you unanimously find

that the mitigation is not sufficiently substantial to call for

leniency, you must return a verdict of death.” This instruction

comports with A.R.S. § 13-703(F) (stating that the trier of fact

“shall impose a sentence of death if the [trier of fact]

finds . . . that there are no mitigating circumstances sufficiently

substantial to call for leniency”). Instructions such as those given

here do not offend the Eighth Amendment as long as the jury is allowed

to consider all relevant mitigating evidence. State v. Tucker, ___

Ariz. ___, ___ ¶ 73, 160 P.3d 177, 196 (2007) (citing Kansas v. Marsh,

126 S. Ct. 2516, 2525-26 (2006); Blystone v. Pennsylvania, 494 U.S.

299, 306-07 (1990)).

¶44 Velazquez also contends that the jury was restricted in

considering mitigation evidence because it was instructed to

“consider any other information admitted as evidence that is relevant

in determining whether to impose a sentence less than death, so long

as it relates to an aspect of the defendant’s background, character,

propensities, record, or circumstances of the offense.” These

instructions are consistent with both Lockett v. Ohio, 438 U.S. 586,

604 (1978), and A.R.S. § 13-703(H). The jury was told that it could

18
consider factors other than those submitted by the parties as long

as they were relevant. The instructions did not improperly restrict

the jury’s consideration of mitigation evidence.

2. Prosecutorial Misconduct

¶45 Velazquez alleges three instances of prosecutorial

misconduct in the State’s penalty phase opening statement.3 We will

reverse a conviction for prosecutorial misconduct if “(1) misconduct

is indeed present; and (2) a reasonable likelihood exists that the

misconduct could have affected the jury’s verdict, thereby denying

[the] defendant a fair trial.” Anderson II, 210 Ariz. at 340 ¶ 45,

111 P.3d at 382 (citation omitted).

¶46 Velazquez first contends that the prosecutor improperly

suggested that one of the defense mental health experts, psychologist

Ricardo Weinstein, had fabricated his report and engaged in

“result-reaching.” Defense counsel did not refer to Weinstein in

his penalty phase opening statement. The prosecutor, anticipating

Weinstein would testify, told the jurors that “Dr. Weinstein’s QEEG

is interesting.” (The term QEEG or quantitative EEG refers to a

quantitative encephalogram, a type of brain wave test that is also

3
Velazquez also claims that the prosecutor committed misconduct
by asking a potential juror in voir dire if he would “be able to sift
through all the baloney and make [his] decision.” Rather than
describing mitigation evidence as baloney, as Velazquez suggests,
this comment addresses the need for jurors to sort through all of
the evidence presented to determine the factors that the juror finds
mitigating. The comment, while perhaps inartful, did not raise an
objection or constitute misconduct requiring reversal of the
convictions or sentences below.

19
called brain mapping.) The prosecutor said Weinstein had given

Velazquez “this QEEG which is the regular EKG [sic], but come[s] out

in colors. And somehow he can interpret the colors. And I don’t

know where the colors come from. When he interprets them, he can

see brain dysfunction.” The prosecutor also told the jury that

Weinstein “knew what the results of the QEEG was [sic] going to be

before he gave it,” because he “believes that all people on death

row who actually killed someone have brain dysfunction.”

¶47 Velazquez did not object to these comments, and we thus

review for fundamental error. State v. Roque, 213 Ariz. 193, 228

¶ 154, 141 P.3d 368, 403 (2006). Weinstein ultimately did not testify

at trial due to what Velazquez describes as logistical problems.

Weinstein’s report and the results of the QEEG test he administered

were not admitted into evidence.

¶48 “A prosecutor has wide latitude in presenting arguments

to the jury . . . .” State v. Morris, ___ Ariz. ___, ___ ¶ 58, 160

P.3d 203, 216 (2007). It is improper, however, “to imply unethical

conduct on the part of an expert witness” in the absence of

evidentiary support. State v. Hughes, 193 Ariz. 72, 86 ¶ 59, 969

P.2d 1184, 1198 (1998).

¶49 The prosecutor indicated that Weinstein had used a dubious

QEEG test to justify pre-determined conclusions and thereby implied

unethical conduct by the expert. These comments were improper

because the prosecutor lacked evidentiary support for her attack on

20
Weinstein’s anticipated testimony. Indeed, the prosecutor

acknowledged in her opening statement that the State had not yet

interviewed this expert and did not “really” know what he was going

to say.

¶50 Although the prosecutor’s statements were improper,

Velazquez cannot show that they caused prejudice sufficient to

constitute fundamental error. Weinstein, as noted, did not testify

and his report and test results were not admitted. After the

prosecutor’s remarks in opening statement, there were only two other

brief references to Weinstein during the penalty phase. Psychiatrist

Jack Potts, the defense’s primary mental health expert, noted in his

report, which was admitted, that he had “relied upon other experts

in the information they obtained regarding Mr. Velasquez [sic] as

well as his history,” and he listed Weinstein among five experts whose

reports he had reviewed. Potts testified that he also reviewed

Weinstein’s audio-taped interview of Velazquez, but did not comment

further on anything done by Weinstein. The State’s mental health

expert, psychologist Bradford Bayless, acknowledged on

cross-examination that he had not reviewed any completed report or

evaluation by Weinstein. The jury thus did not receive Weinstein’s

results. Moreover, the jury was instructed that the lawyer’s

comments were not evidence, and we presume that jurors follow their

instructions, Newell, 212 Ariz. at 403 ¶ 68, 132 P.3d at 847.

¶51 Velazquez also claims that the prosecutor implied “that

21
defense counsel [was] complicite [sic] in fabricating medical

mitigation evidence.” In her opening statement, the prosecutor said

that Weinstein had produced QEEG test results a month after the expert

had submitted an affidavit saying his testing equipment had

malfunctioned. After describing these events, the prosecutor

remarked, “Now, I don’t know how that could happen.” Defense counsel

objected, and the trial court instructed the jury to disregard the

statement.

¶52 Velazquez’s objection preserved for appeal his challenge

to the prosecutor’s remark. Roque, 213 Ariz. at 228 ¶ 154, 141 P.3d

at 403. Although “it is improper to impugn the integrity or honesty

of opposing counsel,” Newell, 212 Ariz. at 403 ¶ 66, 132 P.3d at 847,

it does not appear that the prosecutor’s comment was directed at the

defense attorney. Rather, it seems to be directed at Weinstein, a

fact that Velazquez appears to concede.

¶53 This comment was nonetheless improper, because it implies

unethical conduct by an expert in the absence of evidentiary support.

Hughes, 193 Ariz. at 86 ¶ 59, 969 P.2d at 1198. The jurors, however,

were promptly instructed to disregard the prosecutor’s statement

after the objection was made. The jurors were also instructed at

the beginning and close of the penalty phase that statements by the

lawyers were not evidence. Given the trial court’s corrective

actions, no reversible error occurred. See Anderson II, 210 Ariz.

at 342 ¶ 50, 111 P.3d at 384.

22
¶54 Velazquez also alleges that the prosecutor committed

misconduct by implying that Potts fabricated a diagnosis. Again,

Velazquez did not object at trial, so we review for fundamental error.

Roque, 213 Ariz. at 228 ¶ 154, 141 P.3d at 403.

¶55 The prosecutor highlighted the fact that Potts changed his

initial diagnosis of Velazquez after reviewing the report prepared

by the State’s expert. Based on these remarks, Velazquez contends

that the prosecutor here, like the prosecutor in Hughes, “improperly

argued that mental health experts in general create excuses for

criminals.”

¶56 The prosecutor’s remarks did not improperly argue that

Potts had fabricated a diagnosis. “[T]here is no constitutional

prohibition against the State arguing that the [mitigation] evidence

is not particularly relevant or that it is entitled to little weight.”

Anderson II, 210 Ariz. at 350 ¶ 97, 111 P.3d at 392. The prosecutor’s

arguments accurately discussed the inconsistencies between Potts’s

reports and testimony in an effort to show that this mitigation

evidence deserved little weight. See id.; Roque, 213 Ariz. at 229

¶ 156, 141 P.3d at 404. Therefore, the arguments did not constitute

misconduct.

¶57 When addressing prosecutorial misconduct, we look not only

to whether each alleged instance of misconduct warrants reversal on

its own, but also to whether it “contribute[s] to a finding of

persistent and pervasive misconduct.” Roque, 213 Ariz. at 228 ¶ 155,

23
141 P.3d at 403. If the cumulative effect of the conduct “so

permeate[s] the entire atmosphere of the trial with unfairness that

it denie[s the defendant] due process,” id. at 230 ¶ 165, 141 P.3d

at 405, it can warrant reversal even if the individual instances would

not do so by themselves. Even when viewed cumulatively, the instances

of misconduct that occurred here do not warrant reversal.

D. Independent Review

¶58 Because Liana’s murder occurred before August 1, 2002,

this Court independently reviews the “findings of aggravation and

mitigation and the propriety of the death sentence.” A.R.S. §

13-703.01(A) (2001); see 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch.

1, § 7.

1. Aggravating Circumstances

a. Previously Convicted of a Serious Offense

¶59 To establish the (G)(2) aggravator, the State must prove

beyond a reasonable doubt that Velazquez has been or “was previously

convicted of a serious offense, whether preparatory or completed.”

A.R.S. § 13-703(G)(2). The jury found Velazquez “guilty of knowing

Child Abuse under circumstances likely to cause death or serious

physical injury (involving Isabella[’s] . . . skull fracture/head

injury).” This crime is a “serious offense” under A.R.S. §

13-703(I)(2)(f). Moreover, this offense was established based on

Velazquez’s assault on Isabella before he killed Liana and did not

arise from the same set of events as the murder. The (G)(2) aggravator

24
was proven beyond a reasonable doubt.4

b. Especially Cruel

¶60 The (G)(6) “especially cruel” aggravator is established

if the State proves beyond a reasonable doubt that “the victim

consciously experienced physical or mental pain prior to death, and

the defendant knew or should have known that suffering would occur.”

State v. Trostle, 191 Ariz. 4, 18, 951 P.2d 869, 883 (1997) (citation

omitted).

¶61 The State proved beyond a reasonable doubt that Liana

experienced physical pain. Velazquez told police that he suffocated

Liana, squeezed her stomach, and swept her feet out from under her,

causing her to hit her head on the ground. After being tripped several

times, Liana could not to get up and did not respond to Velazquez’s

voice. Nonetheless, she was alive and still breathing.

¶62 The medical examiner’s testimony revealed that Liana had

sustained several blunt force injuries before her death, as evidenced

by extensive bruising to her head, face, and body; a bloody nose;

and abrasions to her face. She also suffered a fractured skull, which

4
Our conclusion on this point is not affected by Velazquez’s
telling Bayless in a July 2004 interview that he had knocked both
Liana and Isabella down at the same time by sweeping their feet out
from under them. The tape recording Bayless made of this interview
was provided to the prosecutor and defense counsel after the guilt
and aggravation phases of Velazquez’s trial; the recording was
admitted into evidence during the mitigation phase. Velazquez may
have assaulted Isabella both the night before and the same day he
killed Liana, but we conclude that Isabella’s skull fracture resulted
from an assault preceding the murder, consistent with Velazquez’s
confession in September 2001.

25
caused brain swelling and blood collection under her scalp and skull.

The head wounds impaired her breathing and cardiac functions,

ultimately causing her death.

¶63 In our independent review, we find that Liana was conscious

when she sustained the skull fracture that caused her death. We also

find that Liana experienced intense physical pain as she was

suffocated, squeezed, tripped, and left to die. The (G)(6)

aggravator was proven beyond a reasonable doubt.

c. Victim Under Fifteen Years of Age

¶64 To establish the (G)(9) aggravator, the State must prove

that Velazquez “was an adult at the time the offense was committed

. . . and the murdered person was under fifteen years of age.” A.R.S.

§ 13-703(G)(9). Velazquez was twenty-three years old at the time

of the crime. Liana was twenty months old. The (G)(9) aggravator

was proven beyond a reasonable doubt.

2. Mitigating Circumstances

¶65 Velazquez presented two statutory and five non-statutory

mitigating circumstances. He first alleged that his “capacity to

appreciate the wrongfulness of his conduct or to conform his conduct

to the requirements of law was significantly impaired.” See id. §

13-703(H)(1). To establish this mitigating circumstance, Velazquez

presented evidence that he has a personality disorder. Although

“personality or character disorders usually are not sufficient to

satisfy this statutory mitigator,” State v. Kayer, 194 Ariz. 423,

26
437 ¶ 49, 984 P.2d 31, 45 (1999), we nonetheless consider evidence

of a personality disorder to determine if it constitutes a

non-statutory mitigating circumstance, State v. McMurtrey, 136 Ariz.

93, 102, 664 P.2d 637, 646 (1983).

¶66 Three mental health professionals testified that

Velazquez suffers from a personality disorder. Stan Cabanski, a

psychologist who performed an evaluation of Velazquez at age

seventeen, testified that Velazquez then exhibited “trends” of

Borderline Personality Disorder (“BPD”). Cabanski explained that

he did not officially diagnose Velazquez with BPD at the time, because

a personality disorder cannot be diagnosed until age eighteen.

Bayless, a psychologist retained by the State, similarly diagnosed

Velazquez with BPD. Potts, the psychiatrist retained by the defense,

also testified, though his diagnosis was less clear. At trial, Potts

testified that Velazquez suffers from Borderline Schizophrenia, but

he also noted that Velazquez was receiving treatment for

Schizoaffective Disorder and probable BPD. In a letter dated August

17, 2004, however, Potts diagnosed Velazquez with “a Mood Disorder,

[not otherwise specified] or possibly a Schizoaffective Disorder.”

¶67 All three experts testified that Velazquez has trouble

controlling his impulses; however, Bayless’s report expressly

states: “Velazquez was fully aware of his behavior at the time of

the offense. He knew it was wrong and was aware of the potential

damage to the children. Mr. Velazquez’[s] abusive behavior was

27
neither the result of some psychotic process nor the byproduct of

neurological impairment.”

¶68 The second mitigating circumstance presented was

Velazquez’s age. This is a mitigating circumstance pursuant to

A.R.S. § 13-703(H)(5). In assessing this mitigator, we consider not

only the defendant’s chronological age, but also “his level of

intelligence, maturity, past experience, and level of participation

in the killings.” State v. Poyson, 198 Ariz. 70, 80 ¶ 37, 7 P.3d

79, 89 (2000).

¶69 Velazquez was twenty-three years old when he murdered

Liana. He was working as a home loan officer and had two daughters

of his own. He is of average intelligence, and many family members

testified that he served as a father-figure to his younger siblings.

Velazquez also has a lengthy criminal history. As a minor, Velazquez

belonged to a street gang, had several curfew violations, and

violated his juvenile probation by carrying a concealed weapon and

abusing drugs. As an adult, Velazquez was arrested nine times before

his arrest in this case. None were felony arrests; many concerned

domestic disputes with a former girlfriend.

¶70 Age is established as a mitigating factor, but we afford

it little weight given Velazquez’s criminal history, average

intelligence, maturity level, and the fact that he committed the

murder on his own. See id. at 80-81 ¶ 37, 7 P.3d at 89-90 (stating

that defendant’s age will be given little weight if “defendant has

28
a substantial criminal history or was a major participant in the

commission of the murder”).

¶71 Velazquez’s third proffered mitigating circumstance was

the physical and emotional abuse he suffered as a child. The fourth

mitigating circumstance offered was Velazquez’s dysfunctional

family. Because these two mitigating factors are related, we discuss

them together.

¶72 Velazquez was raised in a toxic environment. As a child,

he suffered physical and emotional abuse at the hands of his father

and neglect by his mother. Both parents were substance abusers, and

his mother’s family has a history of mental illness. We find that

these non-statutory mitigating circumstances were sufficiently

proven by a preponderance of the evidence.

¶73 The fifth mitigating circumstance presented was

Velazquez’s drug and alcohol abuse. Velazquez presented evidence

that his substance abuse began at a very early age. This mitigating

circumstance was proven by a preponderance of the evidence, but

Velazquez did not establish that he was under the influence of drugs

or alcohol at the time of the murder.

¶74 The last two mitigating circumstances presented were

Velazquez’s remorse and the impact the execution would have on his

family. Velazquez spoke in allocution at the end of the penalty

phase. He then expressed remorse for the murder, apologized to

Liana’s family, and accepted responsibility for his conduct. He also

29
presented evidence that his family would be negatively affected by

his execution. Both mitigating factors were established by a

preponderance of the evidence.

3. Propriety of Death Sentence

¶75 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. Glassel, 211 Ariz.

33, 55 ¶ 93, 116 P.3d 1193, 1215 (2005), cert. denied, 126 S. Ct.

1576 (2006) (citation omitted). Velazquez presented considerable

mitigation evidence at trial, demonstrating a painful history of

physical and emotional abuse, family dysfunction, substance abuse,

and mental illness. On balance, however, we do not find these

circumstances sufficiently substantial to warrant a sentence less

than death given the circumstances of the crime. We thus uphold

Velazquez’s death sentence.

E. Issues Preserved for Federal Review

¶76 To avoid preclusion, Velazquez raises fourteen additional

constitutional claims that he states have been rejected in previous

decisions by the Supreme Court or this Court. The attached Appendix

lists the claims raised by Velazquez and the decisions he identifies

as rejecting them.

30
 CONCLUSION

¶77 For the foregoing reasons, we affirm Velazquez’s

convictions and sentences.

_______________________________________
W. Scott Bales, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

31
 APPENDIX

Velazquez raises the following claims to preserve them for

federal review:

1. The death penalty is per se cruel and unusual punishment. Both
the United States Supreme Court and this Court have rejected this
argument. Gregg v. Georgia, 428 U.S. 153, 186-87 (1976); State v.
Salazar, 173 Ariz.399, 411, 844 P.2d 566, 578 (1992); State v.
Gillies, 135 Ariz. 500, 507, 662 P.2d 1007, 1014 (1983).

2. Execution by lethal injection is cruel and unusual punishment.
This Court has previously determined lethal injection to be
constitutional. 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 circumstances and no
mitigating circumstances exist. This Court has rejected this
challenge. Walton v. Arizona, 497 U.S. 639, 648 (1990), overruled
on other grounds by Ring v. Arizona, 536 U.S. 584, 609 (2002); State
v. Miles, 186 Ariz. 10, 19, 918 P.2d 1028, 1037 (1996); State v.
Bolton, 182 Ariz. 290, 310, 896 P.2d 830, 850 (1995).

4. The death statute is unconstitutional because it fails to guide
the sentencing jury. This Court has rejected this. State v.
Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31 (1991).

5. Arizona’s death statute unconstitutionally requires defendants
to prove that their lives should be spared. This Court rejected this
claim in State v. Fulminate, 161 Ariz. 237, 258, 778 P.2d 602, 623
(1988).

6. The statute unconstitutionally fails to require either
cumulative consideration of multiple mitigating factors or that the
jury make specific findings as to each mitigating factor. This Court
has rejected this claim. State v. Gulbrandson, 184 Ariz. 46, 69,
906 P.2d 579, 602 (1995); State v. Ramirez, 178 Ariz. 116, 131, 871
P.2d 237, 252 (1994); State v. Fierro, 166 Ariz. 539, 551, 804 P.2d
72, 84 (1990).

7. Arizona’s statutory scheme for considering mitigating evidence
is unconstitutional because it limits full consideration of that
evidence. This Court has rejected that contention. See State v.
Mata, 125 Ariz. 233, 242, 609 P.2d 48, 57 (1980).

32
8. The statute is unconstitutional because there are no statutory
standards for weighing. This was rejected in State v. Atwood, 171
Ariz. 576, 645-46 n.21(4), 832 P.2d 593, 662-63 n.21(4) (1992),
overruled on other grounds by State v. Nordstrom, 200 Ariz. 229, 25
P.3d 717 (2001).

9. Arizona’s death statute insufficiently channels the sentencer’s
discretion in imposing the death sentence. This Court has rejected
this. State v. West, 176 Ariz. 432, 454, 862 P.2d 192, 214 (1993);
Greenway, 170 Ariz. at 164, 823 P.2d at 31.

10. Arizona’s death statute is unconstitutionally defective because
it fails to require the state to prove that death is appropriate.
This court rejected this argument in Gulbrandson, 184 Ariz. at 72,
906 P.2d at 605.

11. The prosecutor’s discretion to seek the death penalty
unconstitutionally lacks standards. This Court rejected a similar
claim in Salazar, 173 Ariz. at 411, 844 P.2d at 578.

12. Death sentences in Arizona have been applied arbitrarily and
irrationally and in a discriminatory manner against impoverished
males whose victims have been Caucasian. This Court rejected the
argument that the death penalty has been applied in a discriminatory
manner in West, 176 Ariz. at 455, 862 P.2d at 215.

13. The Constitution requires a proportionality review of a
defendant’s death sentence. This Court rejected this argument. See
Salazar, 173 Ariz. at 416, 844 P.2d at 583; State v. Serna, 163 Ariz.
260, 269-70, 787 P.2d 1056, 1065-66 (1990).

14. There is no meaningful distinction between capital and
non-capital cases. This was rejected in Salazar, 173 Ariz. at 411,
844 P.2d at 578.

33