State v. Garza

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-04-0343-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR1999-017624
RUBEN GARZA, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Gregory H. Martin, 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 the State of Arizona

RICHARD D. GIERLOFF Phoenix
Attorney for Ruben Garza
________________________________________________________________

H U R W I T Z, Justice

¶1 A jury convicted Ruben Garza of two counts of first

degree murder. The jury then determined that Garza should be

sentenced to life imprisonment for one murder and death for the

other.

¶2 An automatic notice of appeal was filed pursuant to

Arizona Rule of Criminal Procedure 31.2(b). This Court has
jurisdiction under Article 6, Section 5(3) of the Arizona

Constitution and A.R.S. § 13-4031 (2001).

I. FACTS AND PROCEDURAL BACKGROUND1

A.

¶3 In September 1999, Ellen Franco moved into a two-

bedroom house in Waddell occupied by Jennifer Farley and

Farley’s boyfriend, Lance Rush. Ellen had recently separated

from her husband, Larry Franco.

¶4 At approximately 10:30 p.m. on December 1, 1999,

Farley heard a knock at the door. Upon opening the door she saw

a Hispanic male who was five feet nine or ten inches tall, about

180 to 200 pounds, and had bad acne. He had a large tattoo on

his left arm. The visitor pointed at Ellen, who was by then

standing behind Farley, and said, “I am here to see her.” Ellen

identified the visitor as “Ben,” whom Farley understood to be

Ellen’s relative.2

¶5 Ellen went outside; Farley went to her bedroom and

told Rush about the visitor. Farley then heard two gunshots.

1
Except for facts relating to our independent review of the
death sentence, see A.R.S. § 13-703.04(A) (Supp. 2006), the
facts are presented in the light most favorable to sustaining
the jury’s verdict, State v. Tucker, 205 Ariz. 157, 160 n.1, 68
P.3d 110, 113 (2003).
2
Garza had severe acne in late 1999, has a large tattoo on
his left arm, and otherwise fits Farley’s description of the
visitor. Larry Franco is Garza’s uncle.

2
Rush and Farley scrambled to grab one of the guns they kept in

their bedroom, and Farley took a pistol from her nightstand. By

the time she removed the gun from its holster, the locked door

to the bedroom had somehow been opened.

¶6 Rush, who had not been able to get one of the other

firearms, motioned for Farley to stay in the room and went into

the hallway. Farley heard a gunshot almost immediately

thereafter and quickly hid in the bedroom closet. After

entering the closet, she heard several more shots.

¶7 After waiting briefly, Farley came out of the bedroom

closet. She saw Ellen lying face down in the living room in a

pool of blood. After determining that Ellen was alive, Farley

looked for Rush. She found him in the guest bedroom opposite

their bedroom. He was conscious but bleeding. Farley dialed

911, and police and paramedics arrived within minutes. Rush was

lucid and said, “Someone kicked the door and started shooting.”

¶8 Ellen never regained consciousness and died at St.

Joseph’s Hospital shortly after the shooting. Rush died at John

C. Lincoln Hospital approximately an hour after the shooting.

B.

¶9 Around 12:45 a.m. on December 2, Garza bought

bandages, gauze, and hydrogen peroxide from a drugstore in west

Phoenix. Later that morning, he was treated at Phoenix Baptist

Hospital for a gunshot wound to his left arm. The hospital

3
contacted Phoenix police. Garza told the responding officer

that he was walking down the street when an unknown assailant

drove by and shot him.

¶10 Maricopa County Sheriff’s Office (“MCSO”) detectives

questioned Garza the next morning. Garza first claimed that he

had been shot in a drive-by, but changed his story when told

that he had been identified by Farley as the visitor to the

Waddell house. He then stated that he had gone there to

persuade Ellen to reconcile with Larry. Ellen came out and

talked to him. When their conversation turned into an argument,

Garza pulled out his gun and shot her. Garza said he then

“blacked out” and was “in a daze.” He told the detectives he

did not remember seeing a man at the house, but that the woman

who had originally answered the door charged at him with a knife

and he shot at her. At some point someone shot at him; he felt

a “sting” in his arm and returned fire.

¶11 Garza was arrested and on December 2 made two phone

calls from jail to Laurel Thompson. In the first conversation,

Garza said he was “going to be here [in jail] for a couple

years” and that he “did to someone else” what the two had

discussed doing to a boyfriend who had assaulted Thompson.

¶12 In the second conversation, Thompson told Garza that

he was on every newscast. Thompson asked Garza how he got

caught; he told her, “I got shot.” Garza questioned Thompson

4
about the news coverage and their friends’ reaction to it.

Garza asked her how many victims were being reported, and she

said that he had killed two people. Garza told Thompson that he

did not remember whom he shot, and they both chuckled. When

asked whether it was self-defense, Garza said, “On one count it

was, on one count it wasn’t . . . . The guy shot me, then I shot

him.”

¶13 Garza’s car was searched on December 4. Two white

cloth gloves were found on the front seat floorboards. One

glove was stained with blood, later identified through DNA

testing as Garza’s. Under the front seat was a bloodstained

green cloth glove. DNA testing also identified that blood as

Garza’s. Garza’s blood was also found on the passenger side of

the car and in two locations in the hallway of the Waddell

house.

¶14 A box of 9 mm ammunition was found under the driver’s

seat; Garza’s fingerprints were on the box. These bullets were

the same type as those found at the murder scene. A 9 mm pistol

was found in Garza’s belongings at his apartment; testing showed

that the pistol had fired the bullets found at the murder scene.

No bullets fired by any other gun were discovered at the scene,

which suggests that Garza’s wound came from his own gun.

¶15 Farley identified Garza at trial as the intruder.

Eric Rodriguez, a longtime friend of Garza’s, testified that

5
before the murders he rejected Garza’s offer to join him in a

venture that would require that they “get a little dirty” in

order to make some money. Charles Guest, a more recent

acquaintance, testified that two or three weeks before the

murders Garza asked if he was interested in helping Garza with

some “family problems.”

C.

¶16 Garza’s primary defense at trial was that Larry had

committed the murders. He claimed that law enforcement covered

up Larry’s involvement because Larry was a police informant.

The jury found Garza guilty of two counts of first degree murder

and one count of first degree burglary, a dangerous offense.

The State alleged both felony and premeditated murder; the jury

made no findings as to the theory or theories upon which the

murder verdicts were based.

¶17 In the aggravation phase, the jury unanimously

rejected the A.R.S. § 13-703(F)(5) (Supp. 2006)3 pecuniary gain

aggravator, but unanimously found the A.R.S. § 13-703(F)(8)

multiple murders aggravator as to both murders. The jury also

made Enmund/Tison findings in the aggravation phase.4 The jury

3
Sections 13-703 and -703.01 (Supp. 2006) were amended after
Garza’s trial, but not in any respect material to this case.
This opinion therefore cites to the current versions of these
statutes.
4
“The Eighth Amendment does not allow the death penalty to

6
found that Garza had attempted to kill Ellen, was a major

participant in the burglary, and had acted with reckless

indifference for human life in her murder. The jury also found

that Garza had killed Rush, had attempted to kill Rush, had

intended to kill Rush, was a major participant in the burglary,

and had acted with reckless indifference for human life.

¶18 In the penalty phase, the jury declined to impose

death for the murder of Ellen, but authorized the death penalty

for the murder of Rush. The superior court subsequently

sentenced Garza to death for the murder of Rush and to life

without possibility of parole for the murder of Ellen.5

II. ISSUES ON APPEAL

A. Jury Selection

1. Voir dire.

¶19 Garza makes four arguments regarding voir dire: (1)

allowing the State to speak first in every voir dire session

improperly implied that the prosecutors were the authority

________________________________________
be imposed on a defendant unless he either himself kills,
attempts to kill, or intends that a killing take place . . . or
is a major participant in the crime and acts with reckless
indifference.” State v. Ellison, 213 Ariz. 116, 134 ¶ 71, 140
P.3d 899, 917 (alterations and quotation marks omitted) (citing
Enmund v. Florida, 458 U.S. 782, 797 (1982), and Tison v.
Arizona, 481 U.S. 137, 157-58 (1987)), cert. denied, 127 S. Ct.
506 (2006). The trier of fact makes Enmund/Tison findings in
the aggravation phase. A.R.S. § 13-703.01(P).
5
Garza was sentenced to twenty-one years in prison for
burglary.

7
figures in the courtroom; (2) the prosecutor’s statements

unfairly biased the jury pool; (3) questioning whether

prospective jurors could “follow the law” improperly signaled

that a capital sentence was required upon conviction; and (4)

the one-hour time limit initially imposed on defense voir dire

of each panel of twenty-four prospective jurors denied Garza due

process.

¶20 With the exception of the time limit, Garza raised no

objections at trial to the voir dire process. We therefore

review his other arguments for fundamental error. State v.

Glassel, 211 Ariz. 33, 53 ¶ 76, 116 P.3d 1193, 1213 (2005),

cert. denied, 126 S. Ct. 1576 (2006).6 To establish fundamental

error, a defendant must prove “error going to the foundation of

the case” and resultant prejudice. State v. Henderson, 210

Ariz. 561, 567 ¶¶ 19-20, 115 P.3d 601, 607 (2005) (quotation

marks omitted).

6
Garza claims that the allegedly constitutionally deficient
voir dire was structural error. Structural error, however, is
limited to error which unfairly “deprive[s] defendants of basic
protections,” and therefore is limited to such circumstances as
denial of counsel or a biased trial judge. State v. Ring, 204
Ariz. 534, 552-53 ¶¶ 45-46, 65 P.3d 915, 933-34 (2003)
(quotation marks omitted). None of Garza’s alleged voir dire
errors fall into any recognized structural error category or
“infected the entire trial process from beginning to end.” Id.
at 552-53 ¶ 46, 65 P.3d at 933-34 (internal quotation marks
omitted).

8
 a. The State speaking first.

¶21 Arizona law does not require that the defense speak

before the state in voir dire. Arizona Rule of Criminal

Procedure 18.5(d) simply allows for examination of jurors by

counsel for both sides after examination by the court.

Traditionally prosecutors speak to the panel first during voir

dire because the state has the burden of proof and presents its

case first during trial. See Ariz. R. Crim. P. 19.1(a)

(governing order of proof during trial). Garza has not

demonstrated that the superior court abused its discretion in

following this standard procedure, much less that it committed

fundamental error. See State v. Johnson, 212 Ariz. 425, 435 ¶

35, 133 P.3d 735, 745 (noting trial court’s discretion in

conducting voir dire), cert. denied, 127 S. Ct. 559 (2006);

State v. Clabourne, 142 Ariz. 335, 344, 690 P.2d 54, 63 (1984)

(same).

b. The State’s statements.

¶22 Garza’s arguments about improper statements during the

State’s voir dire are directed toward comments such as these:

Mr. Barry: At the outset I want to tell you that as
an attorney for the State I have a sworn duty to
ensure that the record shows that every juror is fair
and impartial. That’s our job, and that’s what we’re
here to do. That means that I must ensure that every
juror is going to follow the law as Judge Martin
instructs you. Now, does everybody agree to be fair?

9
¶23 Garza claims that such comments were “impermissible

prosecutorial vouching.” Prosecutorial vouching occurs “when

the prosecutor places the prestige of the government behind its

witness,” or “where the prosecutor suggests that information not

presented to the jury supports the witness’s testimony.” State

v. Dumaine, 162 Ariz. 392, 401, 783 P.2d 1184, 1193 (1989). The

comments cited by Garza do not meet this description, but rather

simply describe the role of the prosecutor in jury selection.

c. “Follow the law” questioning.

¶24 Garza’s argument that the superior court committed

fundamental error by allowing the State to pose “follow the law”

questions also is without merit. The state may properly inquire

if jurors will follow the law. See, e.g., State v. Roque, 213

Ariz. 193, 204 ¶ 17, 141 P.3d 368, 379 (2006) (discussing

importance of determining whether a prospective juror “will be

able to follow the law”).

¶25 Garza also claims that basic questions posed by the

trial court as to whether jurors could be impartial violated the

rule of Morgan v. Illinois, 504 U.S. 719 (1992). But Morgan

contains no prohibition against such questioning; rather, it

requires that, in evaluating a prospective juror’s ability to be

impartial, more detailed questioning of prospective jurors

beyond such simple questions must also be allowed. Id. at 734-

36; see also State v. Smith, ___ Ariz. ___, ___ ¶ 43, ___ P.3d

10
___, ___ (2007); Johnson, 212 Ariz. at 435 ¶ 33, 133 P.3d at

745. The voir dire here complied with Morgan; Garza was allowed

extensive oral questioning and had access to a twenty-four page

questionnaire completed by all prospective jurors.

d. One-hour time limit.

¶26 Garza objected below to the time limit for voir dire

initially imposed by the trial court; we therefore review this

claim under a harmless error standard. Henderson, 210 Ariz. at

567 ¶ 18, 115 P.3d at 607.

¶27 The venire was divided into four panels of twenty-

four, with one panel questioned at a time. The parties

initially agreed to limit questioning of each panel to one hour

per side, but after the first panel was questioned Garza

complained about the time limit. The trial court subsequently

recalled the first panel for unlimited further questioning and

imposed no time limit for the other panels. The trial court

thus cured any conceivable error arising from the initial time

limit.

2. “Death presumptive” jurors.

¶28 Although he did not object to Jurors 4, 7, and 17 at

trial, Garza claims that the superior court committed

fundamental error in failing to exclude them sua sponte. See

State v. Bible, 175 Ariz. 549, 573, 858 P.2d 1152, 1176 (1993)

(holding that review for failure to exclude a juror is for

11
fundamental error in the absence of objection). Garza claims

that each prospective juror was biased in favor of the death

penalty.

¶29 The record directly contradicts these claims. Indeed,

Garza’s trial counsel candidly admitted that he could not

challenge Juror 4 for cause because the juror indicated in

questioning that he did not believe that the death penalty was

always appropriate. Juror 7 similarly indicated he was open-

minded about whether to impose the death penalty, depending upon

the circumstances of the case. And, Juror 17 stated that his

opinion about the death penalty “depends on the facts” of a

particular case and “on the individual.”7

3. The State’s peremptory strikes.

¶30 Garza argues that the State used peremptory strikes

against three jurors because of their religious beliefs,

violating the rule of Batson v. Kentucky, 476 U.S. 79 (1986).

Under Batson: “(1) the party challenging the strikes must make a

prima facie showing of discrimination; (2) the striking party

must provide a [non-discriminatory] reason for the strike; and

7
Garza also argues that Juror 3 should not have been
excused. Defense counsel, however, agreed that this juror
should be excused for hardship; the trial court then excused the
juror. Any possible objection to the juror was therefore
waived. See State v. Tucker, ___ Ariz. ___, ___ ¶ 14, ___ P.3d
___, ___ (2007) (finding no fundamental error when juror with
qualms about death penalty was excused by agreement of counsel).

12
(3) if a [non-discriminatory] explanation is provided, the trial

court must determine whether the challenger has carried its

burden of proving purposeful . . . discrimination.” Roque, 213

Ariz. at 203 ¶ 13, 141 P.3d at 378 (quotation marks omitted).

¶31 Garza raised no Batson challenge to these three

strikes at trial.8 The State thus had no opportunity to give

neutral explanations, and Garza has waived any Batson arguments.

State v. Cruz, 175 Ariz. 395, 398, 857 P.2d 1249, 1252 (1993);

State v. Holder, 155 Ariz. 83, 85, 745 P.2d 141, 143 (1987).

4. Denial of challenges for cause.

¶32 Garza claims that nine jurors against whom he used

peremptory strikes should have been dismissed for cause. A

defendant’s use of peremptory strikes to remove prospective

jurors who should have been removed for cause is subject to

harmless error review. State v. Hickman, 205 Ariz. 192, 197 ¶

22, 68 P.3d 418, 423 (2003). Reversal is not required if a fair

and impartial jury was ultimately empanelled. Id. ¶ 23. Garza

has not demonstrated that the jury eventually empanelled here

was not impartial. Indeed, defense counsel’s failure to use his

remaining peremptory strike is evidence to the contrary.

8
Garza made a Batson challenge to the striking of another
juror. The State articulated several grounds for the strike and
the trial court denied the challenge. Garza does not contend on
appeal that this ruling was erroneous.

13
 B. Guilt Phase Issues

1. Failure to disclose allegedly exculpatory material.

¶33 Garza alleges that the State improperly withheld

evidence about Larry Franco’s history as a confidential

informant (“CI”) for MCSO and the Arizona Department of Public

Safety (“DPS”). “[T]he suppression by the prosecution of

evidence favorable to an accused upon request violates due

process where the evidence is material either to guilt or

punishment . . . .” Brady v. Maryland, 373 U.S. 83, 88 (1963).

a. MCSO records.

¶34 Garza has not demonstrated that any MCSO records were

withheld. After an MCSO deputy testified that forms concerning

Larry’s service as a CI in 1994 were not in previously disclosed

materials, Garza asked the trial court to order disclosure of

all MCSO files. The State replied that everything had already

been disclosed and suggested that the missing records may have

been purged. The trial court then ordered the State to ensure

complete disclosure. The MCSO files were never again discussed

on the record. Thus, nothing in the record indicates that

additional MCSO documents regarding Larry exist.

b. DPS records.

¶35 Larry served as a CI for DPS in undercover drug

operations in the early 1990s. Garza moved before trial for

discovery of any DPS records on Larry. The superior court

14
denied the motion. We review such discovery rulings for abuse

of discretion. Roque, 213 Ariz. at 205 ¶ 21, 141 P.3d at 380.

¶36 The superior court did not abuse its discretion here.

Larry’s relationship with DPS had ended years before the

murders, and Garza made no showing that DPS was involved in the

investigation of the murders. In any event, Garza established

through the testimony of a DPS detective that Larry was an

informant during the early 1990s.

2. Admission of the jailhouse telephone conversations.

¶37 Garza argues that one of the taped phone conversations

with Laurel Thompson was improper “character evidence.” We

review evidentiary rulings for abuse of discretion. State v.

Ellison, 213 Ariz. 116, 129 ¶ 42, 140 P.3d 899, 912, cert.

denied, 127 S. Ct. 506 (2006).

¶38 In the conversation, Thompson asked Garza what he did

to get arrested. Garza replied, “Well, remember what you wanted

me to do when that one guy beat you up? . . . Well, I did it to

somebody else.” Garza alleges that this statement was

irrelevant and improperly used to show that he had a propensity

for violence. These arguments fail.

¶39 The statement is relevant because it is probative of

Garza’s consciousness of guilt. The statement’s probative value

is not substantially outweighed by any prejudice that might have

resulted from Garza’s suggestion that Thompson had previously

15
asked him to engage in similar conduct in the past. By its own

terms, the statement implies that no previous assault occurred;

Garza merely said that Thompson had once suggested some course

of action.

¶40 Nor was the statement offered to show Garza’s bad

character or propensity for violence. The superior court

instructed the jury that “[e]vidence of other acts of the

defendant” could be considered “only as it relates to the

defendant’s intent, plan, knowledge, or identity.” See Ariz. R.

Evid. 404(b) (permitting use of prior acts evidence for such

purposes).

¶41 Garza also argues that the statement should have been

excluded because its “trustworthiness” was not independently

corroborated. The statement, however, was a party admission

under Arizona Rule of Evidence 801(d)(2)(A). Party admissions

require no external indicia of reliability. See State v.

Nordstrom, 200 Ariz. 229, 248 ¶ 55, 25 P.3d 717, 736 (2001).9

3. Jury instructions.

¶42 Garza raises three claims as to the guilt phase jury

instructions: (1) the court erred in giving the State’s

9
In contrast, statements against interest by unavailable
non-party declarants, which are governed by Rule 804(b)(3), are
admissible only if there is some external evidence of
reliability. See State v. Tankersley, 191 Ariz. 359, 370 ¶ 45,
956 P.2d 486, 497 (1998).

16
requested instruction on accomplice liability both because the

State’s theory at trial was that Garza acted alone and because

the request was untimely; (2) a “mere presence” instruction

should have been given; and (3) the standard “absence of other

participant” instruction should not have been given. We review

these rulings for abuse of discretion. Johnson, 212 Ariz. at

431 ¶ 15, 133 P.3d at 741.

¶43 Each claim fails to withstand analysis. Contrary to

Garza’s argument, the accomplice liability instruction was

proposed by the court, not the State.10 Whatever its provenance,

the instruction was appropriate. Garza’s blood was found on the

passenger side of his car, suggesting that someone else drove

the car away from the crime scene; the defense argued that this

person committed the murders.

¶44 Garza’s argument that a “mere presence” jury

instruction was denied is also not accurate. The jury was so

instructed in accordance with Revised Arizona Jury Instruction

(“RAJI”) (Criminal) 31 (Supp. 2000). Nor did the court err in

giving an “absence of other participant” instruction. See RAJI

(Criminal) 12. The charge was appropriate because Garza’s

counsel claimed that Larry was involved in the murders.

10
The State did not submit instructions in the guilt phase.
In fact, Garza proposed an accomplice liability instruction,
albeit one narrower than that given.

17
4. Reasonable doubt instruction.

¶45 Garza alleges that the court improperly instructed the

jury on reasonable doubt. The instruction, however, was

consistent with State v. Portillo, 182 Ariz. 592, 594-96, 898

P.2d 970, 972-74 (1995). We have “reaffirmed a preference for

the Portillo instruction” and rejected the invitation to revisit

Portillo. Ellison, 213 Ariz. at 133 ¶ 63, 140 P.3d at 916

(internal quotation marks omitted).

5. Enmund/Tison findings.

¶46 Garza argues that having the jury make Enmund/Tison

findings in the aggravation phase rather than the guilt phase

violates the Sixth Amendment. We have specifically rejected,

however, the argument that the Sixth Amendment requires a jury,

rather than a judge, to make such findings. State v. Ring, 204

Ariz. 534, 563-65 ¶¶ 97-101, 65 P.3d 915, 944-46 (2003). Thus,

there was no Sixth Amendment violation. Nor was there any

statutory error. Arizona law specifically requires the trier of

fact to make Enmund/Tison findings in the aggravation phase.

A.R.S. § 13-703.01(P) (Supp. 2006).11

11
Garza also argues that the jury should have been required
to make separate findings as to premeditated and/or felony
murder. As we have emphasized, this is the better practice.
State v. Smith, 160 Ariz. 507, 513, 774 P.2d 811, 817 (1989).
But the argument that separate findings are constitutionally
required was rejected in Schad v. Arizona, 501 U.S. 624, 645
(1991). We recently reaffirmed Schad’s application to Arizona’s

18
 C. Sentencing Phase Issues

1. Failure to allege specific aggravating factors in the
indictment and notice of intent to seek the death penalty.

¶47 Garza contends that the State’s failure to allege

specific aggravating factors in the indictment deprived him of

due process. Garza concedes, however, that McKaney v. Foreman

ex rel. County of Maricopa, 209 Ariz. 268, 100 P.3d 18 (2004),

forecloses this argument.

¶48 Approximately one month after the indictment, the

State filed a notice simply stating its intent “to prove one or

more of the enumerated factors contained in A.R.S. § 13-703(F).”

Garza argues that the notice violated Arizona Rule of Criminal

Procedure 15.1(i)(2), which now requires notice of specific

alleged aggravating circumstances to be provided no later than

sixty days after arraignment.

¶49 The current version of Rule 15.1, however, applies

“only to cases in which the charging document was filed on or

after December 1, 2003.” State v. Anderson, 210 Ariz. 327, 347

n.13 ¶ 79, 111 P.3d 369, 389 (2005). Garza was indicted in

December 1999 and received notice of specific aggravators in

2002, almost two years before his trial began. This complied

with the version of Rule 15.1 in effect at the time, see Ariz.

________________________________________
new jury sentencing scheme. State v. Gomez, 211 Ariz. 494, 498
n.3 ¶ 16, 123 P.3d 1131, 1135 (2005).

19
R. Crim. P. 15.1(g)(2)(a) (1999) (requiring list of alleged

aggravating factors no later than ten days after guilty

verdict), and Garza has not demonstrated prejudice from the

timing of the notice. See Anderson, 210 Ariz. at 347 ¶ 80, 111

P.3d at 389 (holding defendant not denied due process when he

received notice of aggravators one year before aggravation

phase).

a. Lack of probable cause finding for aggravators.

¶50 Garza claims that he was deprived of due process

because no finding of probable cause was made with respect to

aggravating factors. As Garza acknowledges, we have rejected

this argument. McKaney, 209 Ariz. at 272 ¶¶ 16-17, 100 P.3d at

22; see also State v. Hampton, 213 Ariz. 167, 174 ¶ 26, 140 P.3d

950, 957 (2006), cert. denied, 127 S. Ct. 972 (2007).

b. The (F)(5) aggravator.

¶51 The jury was instructed on two aggravating factors:

pecuniary gain, A.R.S. § 13-703(F)(5), and multiple homicides,

A.R.S. § 13-703(F)(8). The jury did not find the (F)(5) factor,

but Garza argues that merely submitting this aggravator to the

jury was error because there was no evidence to support it.

¶52 It is difficult to see how Garza could have suffered

any prejudice from the submission of the (F)(5) aggravator to

the jury, given the panel’s failure to find the aggravator. In

any event, the superior court did not err in denying Garza’s

20
motion under Arizona Rule of Criminal Procedure 20 to dismiss

the aggravator. A Rule 20 motion must be denied if there is

“substantial evidence” to support the alleged aggravator.

Ellison, 213 Ariz. at 134 ¶ 65, 130 P.3d at 917. To establish

the (F)(5) aggravator, “the state must prove that the murder

would not have occurred but for the defendant’s pecuniary

motive.” Ring, 204 Ariz. at 560 ¶ 75, 65 P.3d at 941. There

was evidence here of a financial motive to kill Ellen -- a

witness testified that Garza asked him to help with a “dirty

job” in return for compensation.

2. Alleged comment on Garza’s failure to testify.

¶53 Garza accuses the State of improperly commenting on

his failure to testify. Because Garza did not object below, we

review for fundamental error. State v. Decello, 113 Ariz. 255,

258, 550 P.2d 633, 636 (1976).

¶54 Garza focuses on two comments in the penalty phase

closing arguments. The first described the night in question

and the terror that must have been experienced by the victims.

In contrast, the prosecutor claimed, “Ruben Garza . . . didn’t

care. He cared only about himself. He didn’t call 911.” This

statement did not relate to Garza’s failure to testify at trial,

but rather to the events of December 1, 1999, and Garza’s

inaction on that date.

21
¶55 The second comment came during the State’s discussion

of the defense theory that Larry committed the murders:

[Y]ou’ve listened to the interview of Ruben Garza.
We’ve played that interview for you. If it was Larry
Franco, why didn’t he tell us that? In fact, he had
the opportunity to tell us that back on December 2nd,
1999, while the detectives were investigating this
case . . . . Why didn’t the defendant tell us that
back in December when at the moment of truth is so
critical, when we had the chance to further
investigate[?]

Again, this statement was aimed at Garza’s statements to the

police, not at his failure to testify at trial. See State v.

Rutledge, 205 Ariz. 7, 13 ¶ 33, 66 P.3d 50, 56 (2003)

(upholding, against Fifth Amendment attack, comments that did

not “naturally and necessarily . . . comment on the defendant’s

failure to testify”).

3. Use of 911 recordings in the penalty phase.

¶56 Garza claims that the 911 tape should not have been

admitted in the penalty phase. We review rulings admitting

evidence in that phase for abuse of discretion. State v.

McGill, 213 Ariz. 147, 156 ¶ 40, 140 P.3d 930, 939 (2006), cert.

denied, 127 S. Ct. 1914 (2007).

¶57 The 911 tape was admitted in the guilt phase without

objection. Because the penalty phase jury was the same one that

determined guilt, all evidence from the guilt phase was “deemed

admitted” in the penalty phase. A.R.S. § 13-703.01(I). In any

event, because the jury may consider the circumstances of the

22
crime in its evaluation of mitigation, see A.R.S. § 13-703(G),

the 911 tape was relevant to the issues faced by the trier of

fact in the penalty phase.

4. The penalty phase closing argument.

¶58 At the beginning of his closing, the prosecutor

argued:

You know, listening to [counsel for Garza in his
closing argument], I want to apologize at the outset,
because when he stood up here and tried to in some way
insinuate or suggest to you that the suffering of
these people over here, the suffering of the victims
is somehow comparable to Ruben Garza and the life he’s
led. That deserves an apology. I was shocked to hear
that this morning. There is no way that Ruben Garza
and the opportunities he’s had in his life is
comparable in any way to what these people have gone
through in the last five years to see that justice is
done in this case, the loss of their son, the loss of
their daughter. So we want to apologize at the
outset. I know [Garza’s counsel] really didn’t mean
to do that.

The State ended its argument on a similar note:

And in the defense’s opening he suggested that it was
unfortunate that the victims were here in the
courtroom. The families of these victims were here
because of the decisions that Ruben made. They seek
justice for the brutal murders of their son and
daughter, and this case cries out for justice and asks
that you follow the law and impose the death penalty
in this case.

Garza claims that these comments were improper, but did not

object to them below; we therefore review for fundamental error.

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

23
¶59 The arguments were not fundamental error. In his

argument, defense counsel had sought to compare the suffering of

the murder victims with that of Garza and his loved ones. The

State’s commentary was invited by this argument.

5. Victim impact statements and accompanying photos.

¶60 Garza argues that the victim impact evidence was

unduly prejudicial in two respects. The admission of victim

impact evidence is reviewed for abuse of discretion. Ellison,

213 Ariz. at 141 ¶ 115, 140 P.3d at 924; see also Hampton, 213

Ariz. at 181 ¶ 58, 140 P.3d at 964 (holding that victim impact

evidence cannot be “so unduly prejudicial that it renders the

trial fundamentally unfair” (quotation marks omitted)).12

a. Comparison to 9/11 attacks.

¶61 Ida LaMere, Ellen’s mother, discussed the family’s

feelings of loss as follows:

We know death is inevitable, disease, accidents, old
age, wars, but not like this. There really aren’t any
words to express the horror and devastation of a 4:00
a.m. phone call telling me my baby has been shot to
death along with her friend. The best I can compare
this to is what you all might have felt the day of
September 11 when the horrible, devastating attacks to
New York and Washington, D.C. happened, and always

12
Garza also argues that victim impact evidence was
improperly admitted because it did not rebut any specific fact
in mitigation. Victim impact statements, however, are generally
relevant to rebut mitigation. Hampton, 213 Ariz. at 181 ¶ 58,
140 P.3d at 964; Ellison, 213 Ariz. at 140-41 ¶ 111, 140 P.3d at
923-24.

24
 living in the fear that you just don’t know what is
going to happen any more.

¶62 This statement was not unduly prejudicial. LaMere

drew a comparison between an event universally painful for all

Americans and the pain she and her family experienced as a

result of Ellen’s murder. She did not equate Garza to the 9/11

terrorists; rather, her statement properly “focuse[d] on the

effect of the crime on the victim and the victim’s family.”

Roque, 213 Ariz. at 221 ¶ 114, 141 P.3d at 396.13

b. Photographs of the victims.

¶63 LaMere and Brenda Rush, Lance’s mother, each displayed

photographs of Ellen and Lance during their statements. We have

“recognize[d] the danger that photos of victims may be used to

generate sympathy for the victim and his or her family,” but we

have declined to categorically bar their use, relying upon the

discretion of the trial court to prevent undue prejudice.

Ellison, 213 Ariz. at 141 ¶ 115, 140 P.3d at 924. The superior

court did not abuse its discretion here. The photographs

13
Garza also claims that it was structural error to permit
the victims’ statements at the onset of the penalty phase.
Arizona Rule of Criminal Procedure 19.1(d), however, expressly
provides for victim impact statements after opening statements
and before the defense’s mitigation evidence. The State offered
to stipulate to the introduction of victim impact statements
after Garza’s presentation of mitigation evidence, but defense
counsel specifically requested that the court follow the order
of presentation specified in Rule 19.1(d).

25
depicted the lives of the murder victims and thus supported the

statutory victims’ descriptions of their losses.

6. Allocution.

¶64 Garza argues he was denied his right to allocution

under Arizona Rule of Criminal Procedure 19.1(d)(7) because the

trial court indicated it might allow the State to cross-examine

him or comment on any statements he made. When the question of

allocution first arose, the State contended that cross-

examination or comment should be permitted if allocution

statements went beyond a “plea for mercy” to “dispute evidence

presented by the State.” State v. Lord, 822 P.2d 177, 217

(Wash. 1991) (allowing cross-examination after allocution that

disputed guilt). The trial court never ruled on this point, but

did suggest that if Garza went “beyond what is contemplated in

allocution, he might be subject to cross.” Garza did not

allocute.

¶65 Because Garza declined to allocute or make a record as

to what his allocution would have been, he cannot now claim

prejudice from the trial court’s tentative comments. See

Anderson, 210 Ariz. at 350 ¶ 100, 111 P.3d at 392 (holding that

even when allocution is denied “there is no need for

resentencing unless the defendant can show that he would have

added something to the mitigating evidence already presented”

(quotation marks omitted)); see also State v. Tucker, ___ Ariz.

26
___, ___ ¶ 79, ___ P.3d ___, ___ (2007) (holding that defendant

who chose not to allocute could not object on appeal to trial

judge’s suggestion that cross-examination was possible).

7. Instruction that life is the presumptive sentence.

¶66 Garza argues that the trial court should have

instructed the jury that the presumptive sentence for Rush’s

murder was life. Once aggravating circumstances are proved,

however, neither the state nor the defendant has the burden of

proof with regard to whether the mitigation is sufficiently

substantial to call for leniency. State ex rel. Thomas v.

Granville (Baldwin), 211 Ariz. 468, 472 ¶ 17, 123 P.3d 662, 666

(2005) (noting that “neither party bears the burden” of

persuasion in the penalty phase). Rather, it is each juror’s

duty to consider the aggravation and mitigation and make a

discretionary sentencing decision. Id. ¶ 14; see also Hampton,

213 Ariz. at 180 ¶ 54, 140 P.3d at 963.14

8. Denial of a jury instruction on residual doubt.

¶67 Garza contends that the trial court abused its

discretion by denying his request for a penalty phase

instruction allowing the jury to consider as a mitigating

14
The trial court actually erred in Garza’s favor by
instructing the jury that any doubt as to the appropriate
sentence should be resolved in favor of a life sentence.
“[S]uch an instruction is improper.” Baldwin, 211 Ariz. at 474
¶ 23, 123 P.3d at 668.

27
circumstance residual doubt that he committed the murders.

There is, however, “no constitutional requirement that the

sentencing proceeding jury . . . consider[] evidence of

‘residual doubt.’” Ellison, 213 Ariz. at 136 ¶ 82, 140 P.3d at

919 (quoting Oregon v. Guzek, 126 S. Ct. 1226, 1230-32 (2006)).

Nor does Arizona law require such an instruction. See Anderson,

210 Ariz. at 348 ¶ 86, 111 P.3d at 390 (“During the . . .

penalty phase[], a jury may not revisit its initial guilty

verdict.”).

9. Denial of a third-party culpability instruction.

¶68 Garza claims that the penalty phase jury was

improperly instructed on possible third-party culpability. The

jury, however, was instructed that it could consider as a

mitigating circumstance evidence that “[t]he defendant was

legally accountable for the conduct of another as an accomplice

but his participation was relatively minor, although not so

minor as to constitute a defense to prosecution.” This

instruction tracks the language of A.R.S. § 13-703(G)(3) and

appropriately allowed the jury to consider Garza’s level of

culpability as mitigation.

10. Instructing the jury not to consider sympathy or sentiment.

¶69 The jury was instructed twice in the penalty phase not

to be swayed by sentiment, passion, prejudice, or public feeling

or opinion. Although Garza concedes that these instructions

28
were proper under both California v. Brown, 479 U.S. 538, 541-43

(1987), and Saffle v. Parks, 494 U.S. 484, 487-95 (1990), he

argues that those cases are inapposite because they were decided

prior to Arizona jury sentencing in capital cases. We have

rejected this argument. Anderson, 210 Ariz. at 349 ¶ 92, 111

P.3d at 391; State v. Carreon, 210 Ariz. 54, 70-71 ¶¶ 81-87, 107

P.3d 900, 916-17 (2005).

11. Instruction that the jury must unanimously determine that
mitigation is sufficiently substantial to call for
leniency.

¶70 Garza argues that requiring the jury to unanimously

agree that mitigation is sufficiently substantial to call for

leniency violates Mills v. Maryland, 486 U.S. 367 (1988).

“Mills . . . forbids states from imposing a requirement that the

jury find a potential mitigating factor unanimously before that

factor may be considered in the sentencing decision.” Beard v.

Banks, 542 U.S. 406, 408-09 (2004).

¶71 The instructions given here -- which are consistent

with A.R.S. §§ 13-703(C) and -703.01(H) -- complied with Mills.

In contrast to the instructions in Mills, the charge here made

clear that, although the jury must unanimously determine that

the death penalty is not appropriate, it need not unanimously

find the existence of any particular mitigator.15 See Anderson,

15
The trial court instructed the jury as follows:

29
210 Ariz. at 350 ¶ 99, 111 P.3d at 392 (upholding similar

instructions).

12. A.R.S. § 13-703 creates an unconstitutional presumption of
death.

¶72 Garza claims that A.R.S. §§ 13-703(E) and -703.01(H)

create an unconstitutional presumption of death. We have

repeatedly rejected this argument. See, e.g., Glassel, 211

Ariz. at 52 ¶ 72, 116 P.3d at 1212; Anderson, 210 Ariz. at 346 ¶

77, 111 P.3d at 388.

________________________________________
The determination of what circumstances are mitigating
and the weight to be given to any mitigation is for
each of you to resolve, individually, based upon all
the evidence presented during all phases of this
trial.

. . . .

A finding that a particular mitigating circumstance
exists need not be unanimous, that is you all need not
agree on what particular mitigation exists.

. . . .

If you unanimously find that no mitigation exists then
you must return a verdict of death. If you
unanimously find that mitigation exists, you should
weigh the mitigation in light of the aggravating
circumstances already found to exist, and if you
unanimously find that the mitigation is not
sufficiently substantial to call for a sentence of
imprisonment for life, you must return -- you must
return a verdict of death.

If you unanimously find that mitigation exists and it
is sufficiently substantial to call for a sentence of
imprisonment for life, you must return a verdict of
life.

30
 D. Constitutional Challenges to the Death Sentence

¶73 In order to preserve them for federal review, Garza

raises fourteen constitutional claims about the death penalty.

These claims, and citations to cases that Garza acknowledges

have rejected his arguments, are repeated verbatim in the

Appendix.

III. INDEPENDENT REVIEW

¶74 Garza did not argue, either in his appellate briefing

or at oral argument, that there were “mitigating circumstances

sufficiently substantial to call for leniency,” A.R.S. § 13-

703(E), and that the jury therefore should not have imposed the

death penalty for the murder of Rush once it found an

aggravating circumstance. Although we should have been aided by

argument of counsel on this point,16 A.R.S. § 13-703.04 (Supp.

2006) nevertheless mandates that we review the evidence of

aggravating and mitigating circumstances and independently

16
Death penalty counsel “at every stage of the case should
take advantage of all appropriate opportunities to argue why
death is not suitable punishment for their particular client,”
ABA Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases Guideline 10.11(L) (2003), and
should not simply rely upon this Court’s statutory duty to
review the record. See also id. 10.15.1(C) (noting duty of
defense counsel to “seek to litigate all issues . . . that are
arguably meritorious”); id. 1.1 cmt. (“Appellate counsel must be
intimately familiar with . . . the substantive state, federal,
and international law governing death penalty cases . . . .”);
State v. Morris, ___ Ariz. ___, ___ n.10 ¶ 76, ___ P.3d ___
(2007) (noting counsel’s duties under ABA Guidelines).

31
determine whether death is the appropriate penalty.17 State v.

Cromwell, 211 Ariz. 181, 191 ¶¶ 52-53, 119 P.3d 448, 458 (2005),

cert. denied, 126 S. Ct. 2291 (2006); Anderson, 210 Ariz. at 354

n.21 ¶ 119, 111 P.3d at 396.

A. Aggravation

¶75 The jury found that “[t]he defendant has been

convicted of one or more other homicides . . . that were

committed during the commission of the offense.” A.R.S. § 13-

703(F)(8). The (F)(8) aggravator requires that a first degree

murder and at least one other homicide be “temporally,

spatially, and motivationally related . . . during ‘one

continuous course of criminal conduct.’” State v. Prasertphong,

206 Ariz. 167, 170 ¶ 15, 76 P.3d 438, 441 (2003) (quoting State

v. Rogovich, 188 Ariz. 38, 45, 932 P.2d 794, 801 (1997)).

17
Because the murders were committed before August 1, 2002,
independent review is required. See A.R.S. § 13-703.04; Ariz.
Sess. Laws, 5th Spec. Sess., ch. 1, § 7(B) (2002). Our power of
independent review extends only to the death sentence imposed
for the murder of Lance Rush and not to the life sentence for
the murder of Ellen Franco. Garza does not argue that the
sentences are inconsistent, nor can we so conclude. Although
the aggravating circumstance for each murder was identical, the
jury was allowed to consider the circumstances of the crimes in
mitigation. A.R.S. § 13-703(G). The Enmund/Tison findings
indicate that the jury believed that Garza intended to kill Rush
but was not convinced beyond a reasonable doubt that he had
intended to kill Ellen. There was substantial evidence to
support such a distinction. Ellen was shot in the living room
and Garza could have easily escaped through the door to that
room from which he entered the dwelling. He nonetheless went
down the hallway to the bedroom, apparently seeking an encounter
with other residents of the house.

32
¶76 The (F)(8) aggravator was correctly found here with

respect to Rush’s murder. The second victim, Ellen, was in the

same house and was shot moments before Rush; the two murders

were indisputably temporally and spatially related. The two

homicides were also motivationally related. See State v. Dann,

206 Ariz. 371, 374 ¶ 10, 79 P.3d 58, 61 (2003) (“[I]t was

‘difficult to imagine a motive for the killings unrelated to the

murder of [the girlfriend].’”) (quoting State v. Tucker, 205

Ariz. 157, 169 ¶ 66, 68 P.3d 110, 122 (2003)).

B. Mitigation Evidence

¶77 Our review of the record suggests three possible

mitigating factors.

¶78 First, Garza was nineteen years old at the time of the

murders. Under A.R.S. § 13-703(G)(5), the defendant’s age is a

mitigating circumstance.

¶79 Second, Garza called twenty-seven friends and family

members to testify in the penalty phase as to his good character

and absence of prior criminal behavior. Most of them used some

version of the word “shocked” to describe their reaction to

finding out that Garza had been arrested for the murders.

¶80 Third, Garza presented evidence of alleged stress at

the time of the murders. His parents had recently divorced, a

baby to whom he was to be the godfather had died in infancy the

previous year, he had recently been attacked with a baseball bat

33
for intervening in a dispute between a man and his girlfriend,

and he had learned only a week before the murders that a close

friend had passed away from cancer. Garza had once attempted

suicide by cutting his wrists, he talked of suicide on another

occasion, and a suicide note was discovered after the murders.

C. Propriety of the Death Sentence

¶81 In exercising our independent review, we must take

into account both the aggravating and mitigating circumstances.

A.R.S. § 13-703.04. We start from the premise that a finding of

the (F)(8) aggravator, that the defendant has committed more

than one murder in the commission of the offense, is entitled to

“extraordinary weight.” Hampton, 213 Ariz. at 185 ¶ 90, 140

P.3d at 968. We then consider whether any proved mitigation is

“sufficiently substantial to warrant leniency.” A.R.S. § 13-

703.04(B).

¶82 Age is of diminished significance in mitigation when

the defendant is a major participant in the crime, especially

when the defendant plans the crime in advance. State v. Poyson,

198 Ariz. 70, 80-81 ¶¶ 37-39, 7 P.3d 79, 89-90 (2000); State v.

Jackson, 186 Ariz. 20, 31, 918 P.2d 1038, 1049 (1996). Garza

was a major participant in the murders; the evidence is

overwhelming that he personally killed both victims. Moreover,

at least the burglary was planned in advance. Garza obtained

ammunition, brought gloves to the crime scene, and sought help

34
from at least two potential associates. The crime was thus not

simply a case of “juvenile impulsivity,” Jackson, 186 Ariz. at

31, 918 P.2d at 1049, and we therefore do not afford Garza’s age

substantial weight in mitigation. See State v. Clabourne, 194

Ariz. 379, 386 ¶ 29, 983 P.2d 748, 755 (1999) (holding that

planning and major participation “weigh against age as a

mitigating circumstance”).

¶83 Similarly, a defendant’s prior good deeds and

character are entitled to less weight in mitigation when a crime

is planned in advance. State v. Willoughby, 181 Ariz. 530, 548-

49, 892 P.2d 1319, 1337-38 (1995). Moreover, evidence of family

support is given reduced weight in mitigation when, as here, a

murder victim was a relative of the defendant’s family. See

State v. Williams, 183 Ariz. 368, 385, 904 P.2d 437, 454 (1995).

¶84 Finally, although it appears that Garza had suffered

some personal setbacks before the murders, nothing in the record

links the stress from those events to the commission of these

crimes. See Roque, 213 Ariz. at 230-31 ¶¶ 168, 170, 141 P.3d at

405-06 (reducing death sentence to life imprisonment where

murder was committed by a defendant with mental illness

distressed by the 9/11 attacks). This lack of a causal nexus

diminishes the mitigating effect of this evidence. See Hampton,

213 Ariz. at 185 ¶ 89, 140 P.3d at 968; Johnson, 212 Ariz. at

35
440 ¶ 65, 133 P.3d at 750; Anderson, 210 Ariz. at 349-50 ¶¶ 93-

97, 111 P.3d at 391-92.

¶85 Even assuming arguendo that Garza proved his prior

good character and the existence of some difficult situations in

his life, given the aggravating circumstance of two murders, we

cannot conclude that the mitigation was sufficiently substantial

to call for leniency. We therefore affirm the death sentence

for the murder of Lance Rush.

IV. CONCLUSION

¶86 For the reasons above, we affirm Garza’s convictions

and sentences.

_______________________________________
Andrew D. Hurwitz, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
W. Scott Bales, Justice

36
 Appendix

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,
207 (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 (1994).

3. The statute unconstitutionally requires imposition of the
death penalty whenever at least one aggravating
circumstance and no mitigating circumstances exist. This
Court has rejected this challenge. State v. Bolton, 182
Ariz. 290, 310, 896 P.2d 830, 850 (1995); State v. Miles,
186 Ariz. 10, 19, 918 P.2d 1028, 1037 (1996); see also
Walton v. Arizona, 497 U.S. 639, 653 (1990).

4. The death statute is unconstitutional because it fails to
guide the sentencing jury. This Court has rejected this
claim. 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).

37
8. The statute is unconstitutional because there are no
statutory standards for weighing. This was rejected in
State v. Atwood, 171 Ariz. 576, 645 n.21, 832 P.2d 593, 662
(1992).

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), overruled on other
grounds by State v. Rodriguez, 192 Ariz. 58, 961 P.2d 1006
(1995); 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 has
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 214.

13. The Constitution requires a proportionality review of a
defendant’s death sentence. This Court rejected this
argument. See Salazar, 173 Ariz. at 411, 844 P.2d at 578;
State v. Serna, 163 Ariz. 260, 269-70, 787 P.2d at 1065-66
(1990).

14. There is no meaningful distinction between capital and non-
capital cases. This was rejected in Salazar, 173 Ariz. at
416, 844 P.2d at 578.

38