State v. Morris

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-05-0267-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2003-011506
CORY DEONN MORRIS, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Douglas L. Rayes, 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

SUSAN M. SHERWIN, MARICOPA COUNTY LEGAL ADVOCATE Phoenix
By Consuelo M. Ohanesian, Deputy Legal Advocate
Attorneys for Cory Deonn Morris
________________________________________________________________

M c G R E G O R, Chief Justice

¶1 On July 19, 2005, a jury determined that Cory Morris

should be sentenced to death for the murders of Barbara Codman,

Shanteria Davis, Jade Velasquez, Sharon Noah, and Julie

Castillo. Appeal to this Court is automatic. Ariz. R. Crim. P.

31.2.b. We have jurisdiction pursuant to Article 6, Section 5,

Clause 3 of the Arizona Constitution and Arizona Revised
Statutes (A.R.S.) section 13-4031 (2001).

I.

A.

¶2 Morris lived in a camper in the backyard of his aunt

and uncle’s house in Phoenix and worked at a bar approximately

three nights a week. In April 2003, Morris’s boss noticed for

the first time that Morris had a body odor problem. Morris’s

aunt and uncle also noticed that Morris had a body odor problem

that had become progressively worse since he began living with

them six months earlier.

¶3 On April 12, 2003, when Morris’s uncle went to the

camper to find Morris, he smelled a “rotten odor” in the

backyard and saw flies inside the window of the camper. As he

opened the door and stepped inside, he saw flies and maggots

“boiling on the floor.” He discovered the decomposed body of

Julie Castillo under a blanket.

¶4 On the same day, police officers questioned Morris

about the body in his camper, as well as four other bodies that

had been found nearby. During this interview, Morris admitted

to knowing the five victims and provided two versions of each

victim’s death. In the first version, he claimed that each

victim died of a drug overdose while he was away from the

camper. After discussing all five victims, the detective

conducting the interview told Morris that he did not believe

2
him. Morris then stated that each victim asked him to choke her

during sex and that each accidentally died as a result of this

conduct. Morris also claimed that he used a condom during sex

with the victims. We discuss each victim in turn.

1.

¶5 On September 11, 2002, police discovered Barbara

Codman’s naked, decomposed body in an alley between East

McKinley and East Pierce Streets and west of 9th Street. The

alley is located just north of Morris’s residence. Police found

drag marks from the sidewalk crossing the alley into the alley

itself. Codman’s body exhibited skin slippage 1 on her inner

thighs and breast, and her head and neck were more decomposed

than the rest of her body.

¶6 Morris said that he met Codman while walking at night

and, for twenty dollars, she agreed to come to his camper and

have sex with him. Morris first said that he went outside after

he and Codman had sex and, when he returned, Codman was sitting

naked on the bed using drugs. Morris told her to leave after

she finished, and then he stepped outside. When he went back

into the camper, Codman was sitting on the bed panting, and she

1
Skin slippage occurs when, in the postmortem phase,
bacteria destroy connections between the skin and the underlying
tissue so that, with pressure and movement, the skin begins to
detach and slip off the body.

3
soon collapsed. Morris dragged Codman out of the camper on a

sleeping bag.

¶7 In his second version of events, Morris stated that

Codman asked him to choke her with a necktie during sex. He did

so, and she collapsed and never regained consciousness.

¶8 Morris kept some of Codman’s belongings, including her

overalls, panties, and purse. Analysts found Codman’s DNA on

some of the items. When Morris was arrested, he was carrying

Codman’s social security card, driver’s license, and check card

in his wallet.

¶9 Because of the extensive decomposition of Codman’s

head and neck, Dr. John Hu, who performed her autopsy, was

unable to conduct a detailed investigation for trauma in that

region. Hu originally determined that the cause of death was

combined toxicity of morphine and cocaine and listed the manner

of death as undetermined because the circumstances surrounding

Codman’s death were suspicious. After the police gave Hu a

transcript of Morris’s statements, he determined that “the cause

of death is most likely asphyxia due to ligature strangulation”

because the autopsy results were not inconsistent with such a

determination.

2.

¶10 On October 10, 2002, police found Shanteria Davis’s

naked, decomposed body in the same alley in which Codman’s body

4
had been discovered. Davis had skin slippage on her back,

buttocks, and the backs of her legs. Police found drag marks in

the alley.

¶11 In his first version of events, Morris stated that,

for five dollars, Davis agreed to come back to his camper and

have sex with him. After they had sex, Morris left Davis alone

in the camper for about an hour because she wanted to use drugs.

When Morris returned, Davis was unconscious but breathing.

Morris covered her and left for his friend’s house. When he

returned the next morning, Davis was dead. That night, he

dragged her into the alley.

¶12 In his second version of events, Morris stated that

Davis asked him to wrap her hair extensions around her neck

while they were having sex. Davis died as a result of this

conduct.

¶13 Police found hair extensions in Morris’s camper. DNA

under Davis’s fingernails matched Morris’s DNA. DNA analysis on

panties found in Morris’s camper could not exclude Davis as a

source of the DNA.

¶14 Because of the extent of decomposition, Dr. Kevin

Horn, who performed Davis’s autopsy, could not determine whether

Davis suffered any trauma. Based on the lack of visible trauma

and the presence of cocaine and cocaine breakdown products in

her spleen, Horn determined that the cause of death was cocaine

5
intoxication. After reviewing a transcript of Morris’s

statements to the police, Horn stated that nothing in his

autopsy was inconsistent with strangulation.

3.

¶15 On February 27, 2003, police discovered the clothed

body of Jade Velasquez on the west side of 9th Street, just

outside the gate leading to the backyard where Morris’s camper

was located. Velasquez had ligature marks on the front and

sides of her neck and bruising under her left eye. Police noted

“some disturbance” in the ground near the gate to the backyard,

which was consistent with removing the gate from its hinge and

then replacing it. Police also noted grass scuff marks on the

sidewalk, indicating that the body had been dragged. A

detective spoke with Morris’s aunt during the investigation of

Velasquez’s death.

¶16 Morris first stated that Velasquez, a friend, agreed

to come to his camper for sex. He claimed that Velasquez was

drunk when she arrived at the camper and passed out before

having sex with him. According to Morris, he realized that

Velasquez was dead when she did not wake up the next morning.

He left for the day and moved her body to the street that night.

¶17 In his second version of events, Morris stated that

Velasquez asked him to use his hands to choke her while they

were having sex. Morris did so, and Velasquez passed out and

6
never regained consciousness. Morris put Velasquez’s clothes

back on her before he dragged her to the street because he knew

her and did not want to leave her in the street unclothed.

¶18 DNA from semen on a vaginal swab taken from

Velasquez’s body matched Morris’s DNA profile. Dr. Vladimir

Shvarts, who performed Velasquez’s autopsy, found petechial

hemorrhages in her left eye and focal hemorrhagic areas inside

her neck and determined that the cause of death was

strangulation. Velasquez’s blood tested positive for alcohol,

cocaine metabolites, and benzodiazepines, but the combination of

drugs was not sufficient to cause death.

4.

¶19 On March 29, 2003, police found Sharon Noah’s naked

body on the west side of 9th Street, approximately fifteen to

twenty feet from the location at which Velasquez’s body was

discovered. There were ligature marks on Noah’s neck and skin

slippage on her inner thighs, breasts, and hips. Some maggots

were present on her body, and her hand and foot were mummified.

Some of Noah’s artificial fingernails were broken.

¶20 Morris first stated that he met Noah, who had the

mental age of a ten- or eleven-year-old, while out walking, and

the two then went back to his camper and had sex. Afterwards,

Morris left because Noah wanted to use drugs. Noah was dead

when he returned. Morris then put a belt around Noah’s neck and

7
pulled her body onto his sleeping bag. He dragged her body

outside that night. He threw away most of her clothes but kept

her shoes.

¶21 In his second version of events, Morris said that Noah

suggested that he use the nylon strap attached to Morris’s gym

bag to choke her during sex. Morris did so, but when Noah’s

eyes closed, he stopped and noticed that she was no longer

breathing. Morris left the strap on Noah’s neck until he

dragged her outside.

¶22 DNA on panties found in Morris’s camper matched both

Morris’s and Noah’s DNA profiles, and Morris’s DNA profile

matched DNA on a vaginal swab taken from Noah. Police also

found broken fingernails in Morris’s camper.

¶23 Noah’s autopsy indicated that she died of ligature

strangulation resulting in asphyxia. Toxicology reports showed

that Noah had used cocaine before her death and that although

she had GHB, which is often used in date rapes, in her system,

drug overdose was not the cause of death. When asked how he

would explain the extensive skin slippage on Noah’s thighs, the

medical examiner posited that some item may have contacted her

thighs postmortem.

5.

¶24 The body discovered in Morris’s camper on April 12,

2003, was that of Julie Castillo. The badly decomposed body was

8
face down and her buttocks were near the camper’s fold-down bed.

There was a necktie around her neck.

¶25 Morris first stated that he brought Castillo back to

his camper because it was cold and she needed a place to spend

the night. Morris left the camper after Castillo asked if she

could smoke crack, and when he returned, Castillo was

unconscious on the floor. He took her clothes off because she

had urinated on herself. The next day, he went to work, and

when he returned, he realized that Castillo was dead. Morris

stayed in the camper that night. When the detective conducting

the interview asked whether Morris engaged in any sexual

activity while Castillo’s body was in the camper, Morris stated

that he ejaculated in his sleep but was facing away from

Castillo’s body at the time. Morris originally said that he

never had sex with Castillo.

¶26 In his second version of events, Morris stated that

Castillo asked him to choke her with a necktie during sex.

Morris did so, and Castillo collapsed and never regained

consciousness. Morris kept Castillo’s body in his camper for

approximately five days before it was discovered. He claimed

that he had not been in the camper during the three days before

the body’s discovery.

¶27 Dr. Horn, who performed Castillo’s autopsy, determined

that Castillo had been dead “between three and seven” days at

9
the time the body was found. Based on information from the

detectives, Horn determined that the cause of death was

“probable ligature strangulation.” Because of the extensive

decomposition, there was no visible evidence of trauma.

Castillo had a blood alcohol content of 0.12, and also had

traces of cocaine in her system. Additionally, seven defects

measuring up to three-eighths of an inch radiated around

Castillo’s anus. Horn could not determine whether the defects

resulted from trauma or normal decomposition.

B.

¶28 A grand jury indicted Morris for five counts of first

degree murder. During the guilt phase of the trial, the

prosecution played videotapes of Morris’s descriptions of each

woman’s death. Morris did not present a defense, but his

counsel moved for acquittal on all counts pursuant to Arizona

Rule of Criminal Procedure 20.a. The judge denied the motion.

The jury then found Morris guilty on all five counts.

¶29 At the close of the aggravation phase of the trial,

the jury unanimously found that Morris had been convicted of

prior serious offenses, A.R.S. § 13-703.F.2 (Supp. 2004), based

on the five convictions from the guilt phase of the trial, and

that he committed all five murders in both an “especially cruel”

and “especially heinous or depraved” manner, id. § 13-703.F.6.

With respect to the especially cruel prong, Dr. Keen testified

10
that strangulation victims are conscious for at least a short

period and experience pain before they lose consciousness. With

respect to the heinous and depraved prong, the prosecutor argued

that Morris kept the bodies after they began to decompose

because he enjoyed the odor of decomposition. He also argued

that Morris had sexual intercourse with all of the corpses

except for Davis’s. The prosecutor focused on the selective

skin slippage on the bodies and the presence of semen on some of

the victims despite Morris’s insistence that he used condoms

during sex.

¶30 In the penalty phase, Morris’s mitigation evidence

focused on the responsibilities placed on him at a young age;

his problems with his appearance and hygiene, particularly his

problems with body odor; his desire to improve himself; and his

good work record. 2

¶31 The jury determined that Morris’s mitigation evidence

was not sufficiently substantial to call for leniency and that

death was the appropriate sentence for each of the five murders.

See A.R.S. § 13-703.01.G, .H (Supp. 2004). 3

2
Prior to trial, Morris declined to participate in IQ
testing or psychological evaluation.
3
The trial judge also found that Morris had violated the
terms of probation imposed after a 2002 theft conviction. He
revoked Morris’s probation and imposed a presumptive sentence of
one year for theft.

11
 II.

¶32 Morris raises four issues on appeal. We first address

his claim that the State presented insufficient evidence of the

corpus delicti for the deaths of Codman and Davis. Next, we

consider his claim that prescreening prospective jurors to

determine which ones could serve for the length of the trial

violated his right to be present at all stages of the criminal

proceeding against him. We then address Morris’s argument that

the prosecutor engaged in misconduct. Finally, we evaluate the

claim that the trial court abused its discretion in admitting

excessively gruesome photographs.

A.

¶33 Morris contends that the trial court erred in

admitting his statements concerning the deaths of Codman and

Davis because the State did not establish the corpus delicti for

those murders. We review a ruling on the sufficiency of the

evidence of corpus delicti for abuse of discretion. State v.

Gerlaugh, 134 Ariz. 164, 169-70, 654 P.2d 800, 805-06 (1982);

see also State v. Gillies, 135 Ariz. 500, 505-06, 662 P.2d 1007,

1012-13 (1983).

¶34 The corpus delicti doctrine ensures that a defendant’s

conviction is not based upon an uncorroborated confession or

incriminating statement. State v. Hall, 204 Ariz. 442, 453 ¶

43, 65 P.3d 90, 101 (2003) (citing Smith v. United States, 348

12
U.S. 147, 152 (1954)). Therefore, the State must show that the

“alleged injury to the victim . . . was caused by criminal

conduct rather than by suicide or accident.” Id. “[O]nly a

reasonable inference of the corpus delicti need exist” before

incriminating statements may be considered, and circumstantial

evidence can support such an inference. Id. (quoting Gillies,

135 Ariz. at 506, 662 P.2d at 1013). Furthermore, the State

need not present evidence supporting the inference of corpus

delicti before it submits the defendant’s statements “[a]s long

as the State ultimately submits adequate proof of the corpus

delicti before it rests.” Id. (quoting State v. Jones ex rel.

County of Maricopa, 198 Ariz. 18, 23 ¶ 14, 6 P.3d 323, 328 (App.

2000)). The corpus delicti doctrine does not require the State

to prove the cause of death. State v. Atwood, 171 Ariz. 576,

598-99, 832 P.2d 593, 615-16 (1992), disapproved on other

grounds by State v. Nordstrom, 200 Ariz. 229, 241 ¶ 25, 25 P.3d

717, 729 (2001).

¶35 Here, sufficient evidence independent of Morris’s

incriminating statements establishes corpus delicti for the

deaths of both Codman and Davis. Both died under suspicious

circumstances and were discovered naked in the same alley. Drag

marks near both bodies indicated that they had been moved. DNA

on panties and overalls found in Morris’s camper matched

Codman’s DNA, DNA on panties found in the camper matched Davis’s

13
DNA, and Davis had Morris’s DNA under her fingernails. Hair

extensions similar to Davis’s were found in the camper. Morris

was carrying Codman’s driver’s license, social security card,

and check card when he was arrested.

¶36 Morris argues that, despite the other evidence that

these two deaths resulted from criminal conduct, the State

cannot establish corpus delicti because the medical examiners

believed that both deaths resulted from drug overdoses before

police gave them transcripts of Morris’s statements. The State,

however, need not prove cause of death to establish corpus

delicti. See id. Instead, the State need only present evidence

sufficient to raise a “reasonable inference” that the death

resulted from criminal activity. Hall, 204 Ariz. at 453 ¶ 43,

65 P.3d at 101 (quoting Gillies, 135 Ariz. at 506, 662 P.2d at

1013). Given the evidence here, the State met its burden even

if we disregard the medical examiners’ testimony. 4 Therefore,

the trial court did not abuse its discretion in admitting

4
Although Morris argues that State v. Nieves, 207 Ariz. 438,
87 P.3d 851 (App. 2004), controls the resolution of this issue,
we disagree. In Nieves, the medical examiner based his
conclusion about cause of death solely on the defendant’s
statements. Id. at 441 ¶¶ 14-15, 87 P.3d at 854. Because there
was no evidence of criminal activity other than the medical
examiner’s testimony, the court held that the State failed to
establish the corpus delicti. Id. at 444 ¶¶ 28-29, 87 P.3d at
857. Here, conversely, evidence independent of the medical
examiners’ testimony supports criminal activity in the deaths of
both Codman and Davis.

14
Morris’s statements as to the deaths of Codman and Davis.

B.

¶37 We next consider whether Morris’s absence during the

jury commissioner’s prescreening of prospective jurors to

determine whether they could serve on a lengthy trial violated

his right to be present at all stages of the criminal

proceeding. Because the trial was expected to last six to eight

weeks, the judge ordered the jury commissioner to poll the

jurors to identify those who claimed that they could not serve

for such a long trial. The jury commissioner gave those jurors

one-page questionnaires on which they could state the reasons

for their inability to serve. The lawyers then reviewed the

questionnaires for potentially invalid excuses and submitted

those questionnaires to the judge for further review.

¶38 After reviewing the questionnaires, the judge

determined that approximately twenty prospective jurors had

provided questionable excuses. When he asked the jury

commissioner to send those twenty individuals to the courtroom

for further questioning, the jury commissioner informed him that

only four of the twenty were available. The jury commissioner

had released the remaining sixteen to other panels.

¶39 Defense counsel admitted that he could not identify

any group excluded from service or show that the jury did not

represent a cross-section of the community, but objected to the

15
prescreening procedure because it left only “volunteers” as

prospective jurors. The trial judge rejected this challenge.

¶40 Although a “defendant in a criminal case is entitled

to a fair and impartial jury for the trial of his case, . . . he

is not entitled to be tried by any particular jury.” Atwood,

171 Ariz. at 624, 832 P.2d at 641 (quoting State v. Arnett, 119

Ariz. 38, 50, 579 P.2d 542, 554 (1978)). To make a prima facie

showing that a jury does not represent a fair cross-section of

the community, a defendant must show each of the following:

(1) that the group alleged to be excluded is a
“distinctive” group in the community; (2) that the
representation of this group in venires from which
juries are selected is not fair and reasonable in
relation to the number of such persons in the
community; and (3) that this underrepresentation is
due to systematic exclusion of the group in the jury-
selection process.

Duren v. Missouri, 439 U.S. 357, 364 (1979).

¶41 Morris has neither identified a distinctive group that

was excluded from his jury panel nor claimed that the jury he

received was not fair and impartial. Therefore, he has failed

to satisfy even the first prong of Duren. See State v. Wooten,

193 Ariz. 357, 361-62 ¶¶ 20-24, 972 P.2d 993, 997-98 (App. 1998)

(rejecting claims that a jury commissioner’s prescreen of

prospective jurors for length of the trial excluded poor and

minority jurors because the defendant failed to satisfy any of

the Duren prongs).

16
¶42 Moreover, jury commissioners have broad discretion to

excuse jurors from service:

If a person’s answers to a questionnaire indicate that
the person is unqualified for jury service or, in the
opinion of the judge or jury commissioner, state
grounds sufficient to be excused from jury service,
the person’s name shall not be included on the
qualified juror list and the person shall be notified
that he is excused from jury service.

A.R.S. § 21-315.A (Supp. 2006) (emphasis added); see also

Wooten, 193 Ariz. at 362-63 ¶¶ 25-26, 972 P.2d at 998-99

(rejecting defendant’s claim that jury commissioner’s

prescreening of prospective jurors violated his due process

rights based in part on the jury commissioner’s broad statutory

power to excuse jurors from service). Because the jury

commissioner decided to excuse prospective jurors solely on the

basis of their ability to serve on a lengthy trial, a neutral

criterion, he properly exercised his discretion. See State v.

Murray, 184 Ariz. 9, 23-24, 906 P.2d 542, 556-57 (1995) (noting

that “[g]ranting excuses based on the application of neutral

criteria to prospective jurors’ individual situations” is a

proper exercise of the jury commissioner’s discretion (quoting

State v. Sanderson, 182 Ariz. 534, 539, 898 P.2d 483, 488 (App.

1995))).

¶43 Even if Morris could show that certain prospective

jurors were wrongly excused, we would not reverse his

convictions unless he could also show actual prejudice, i.e.,

17
that the jurors who actually served were not fair and impartial.

State v. Webb, 101 Ariz. 307, 309, 419 P.2d 91, 93 (1966); State

v. Fendler, 127 Ariz. 464, 470-71, 622 P.2d 23, 29-30 (App.

1980) (extending “actual prejudice” doctrine to excusals by jury

commissioner). Because Morris is unable to demonstrate any

actual prejudice resulting from the jury commissioner’s

prescreening of prospective jurors, his challenge fails.

¶44 Morris argues that his exclusion from the prescreening

process violates his right to be present at all stages of the

proceeding against him. We have previously held that exclusion

from the entire jury selection process is structural error, but

in so holding we noted that exclusion from a “minor portion” of

jury selection proceedings may be harmless error. State v.

Garcia-Contreras, 191 Ariz. 144, 148 ¶ 17, 953 P.2d 536, 540

(1998) (quoting State v. Ayers, 133 Ariz. 570, 571, 653 P.2d 27,

28 (App. 1982)). “An error is harmless if it appears ‘beyond a

reasonable doubt that the error . . . did not contribute to the

verdict obtained.’” State v. Dann, 205 Ariz. 557, 565 ¶ 18, 74

P.3d 231, 239 (2003) (quoting Chapman v. California, 386 U.S.

18, 24 (1967)).

¶45 Here, Morris attended all aspects of jury selection

except the prescreening process, which focused solely on the

length of the trial and did not involve questioning the jurors

about the facts or legal issues of the case. Thus, even

18
assuming that he was entitled to attend the prescreening

process, an issue we do not reach, any error is harmless because

no basis exists on which we could conclude that Morris’s

exclusion from that process affected the verdict.

C.

¶46 Morris next identifies five instances of alleged

prosecutorial misconduct. “To prevail on a claim of

prosecutorial misconduct, a defendant must demonstrate that the

prosecutor's misconduct ‘so infected the trial with unfairness

as to make the resulting conviction a denial of due process.’”

State v. Hughes, 193 Ariz. 72, 79 ¶ 26, 969 P.2d 1184, 1191

(1998) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643

(1974)). The misconduct must be “so pronounced and persistent

that it permeates the entire atmosphere of the trial.” Id.

(quoting Atwood, 171 Ariz. at 611, 832 P.2d at 628).

Prosecutorial misconduct constitutes reversible error only if

(1) misconduct exists and (2) “a reasonable likelihood exists

that the misconduct could have affected the jury’s verdict,

thereby denying defendant a fair trial.” State v. Anderson

(Anderson II), 210 Ariz. 327, 340 ¶ 45, 111 P.3d 369, 382

(quoting Atwood, 171 Ariz. at 606, 832 P.2d at 623), cert.

denied, 126 S. Ct. 193 (2005).

¶47 We evaluate each instance of alleged misconduct, and

the standard of review depends upon whether Morris objected. If

19
he objected, then the issue is preserved for review under the

standard articulated in Anderson II. Id. at 340-41 ¶ 45, 111

P.3d at 382-83. If Morris did not object, then we review only

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

154, 141 P.3d 368, 403 (2006). We also address the cumulative

effect of misconduct:

[E]ven if there [is] no error or an error [is]
harmless and so by itself does not warrant reversal,
an incident may nonetheless contribute to a finding of
persistent and pervasive misconduct if the cumulative
effect of the incidents shows that the prosecutor
intentionally engaged in improper conduct and “did so
with indifference, if not a specific intent, to
prejudice the defendant.”

Id. at ¶ 155 (citation omitted) (quoting Hughes, 193 Ariz. at 80

¶ 31, 969 P.2d at 1192).

1.

¶48 Morris argues that the prosecutor improperly

influenced the medical examiners investigating the deaths of

Codman and Davis by providing them copies of the statements

Morris made to the police. Dr. Hu, who performed Codman’s

autopsy, and Dr. Horn, who performed Davis’s autopsy, originally

determined that the cause of death for each woman was drug

overdose. After police provided them transcripts of Morris’s

statements regarding the deaths, the medical examiners testified

that they found nothing inconsistent with asphyxiation due to

strangulation as the cause of death for both women. Morris did

20
not object at trial, so we review for fundamental error. Id. at

¶ 154.

¶49 Arizona statutes permit medical examiners to receive

information about the circumstances surrounding a suspicious

death. Arizona Revised Statutes section 11-593.B (2001)

requires a peace officer to report the results of “an

investigation of the facts and circumstances surrounding [a

suspicious] death” to the county medical examiner. Moreover,

the medical examiner is statutorily required to “[m]ake

inquiries regarding the cause and manner of death.” A.R.S. §

11-594.A.4 (2001); see also id. § 11-594.A.2. The prosecutor

did not, therefore, engage in misconduct by giving transcripts

of Morris’s statements to the medical examiners. Moreover, the

record does not suggest that Morris’s statements improperly

influenced either of the medical examiners. Both testified

simply that they found nothing inconsistent with those

statements in their respective autopsies of Codman and Davis,

and they acknowledged that, without the statements, they would

have believed that drug intoxication caused the deaths.

Therefore, this incident does not constitute prosecutorial

misconduct.

2.

¶50 In the aggravation phase, the prosecutor argued that

Morris murdered the victims in order to have sexual intercourse

21
with their corpses. Morris claims that this argument had no

basis in fact. Morris failed to object to the argument at

trial, so we review for fundamental error. Roque, 213 Ariz. at

228 ¶ 154, 141 P.3d at 403.

¶51 Prosecutors have “wide latitude” in presenting their

arguments to the jury. State v. Jones, 197 Ariz. 290, 305 ¶ 37,

4 P.3d 345, 360 (2000). The prosecutor is permitted to argue

“all reasonable inferences from the evidence,” but cannot “make

insinuations that are not supported by the evidence.” Hughes,

193 Ariz. at 85 ¶ 59, 969 P.2d at 1197. In evaluating the

propriety of a prosecutor’s arguments, we consider “whether the

remarks called to the jurors’ attention matters that they should

not consider, and whether, ‘under the circumstances of the

particular case, [the remarks] probably influenced’ the jurors.”

Roque, 213 Ariz. at 224 ¶ 128, 141 P.3d at 399 (alteration in

original) (quoting Sullivan v. State, 47 Ariz. 224, 238, 55 P.2d

312, 317 (1936)).

¶52 While the evidence in this case does not compel the

conclusion that Morris engaged in intercourse with the corpses

of the victims, the record includes sufficient evidence to

permit the prosecutor to make such an argument. 5 The prosecutor

5
At trial, the State did not argue that Morris engaged in
intercourse with Davis’s body and made it clear to the jury that
it did not have sufficient evidence to support such an
inference.

22
relied in part on skin slippage on selective parts of the

victims’ bodies as evidence that Morris engaged in intercourse

with the corpses. Selective skin slippage existed on Codman’s

inner thighs and breast and on Noah’s inner thighs. The medical

examiners testified that skin slippage can result from friction

and the general decomposition process.

¶53 The prosecutor also relied on the skin defects on

Castillo’s anus, although the medical examiner was unable to

determine whether those defects were caused by trauma or

decomposition. In his statement to police, Morris also

mentioned that he either masturbated or ejaculated in his sleep

after Castillo died but while she was still in his camper.

Castillo’s buttocks were level with Morris’s bed.

¶54 Additionally, the prosecutor relied on DNA evidence

showing Morris’s semen was present in Velasquez’s and Noah’s

vaginas, even though Morris insisted that he wore a condom

during sex with the women before their deaths. Thus, the

proposition that Morris had intercourse with the corpses of

Codman, Velasquez, Noah, and Castillo is a “reasonable

inference” to be drawn from the evidence in the record, and the

prosecutor did not act improperly in making this argument.

¶55 Furthermore, the judge instructed the jury that the

lawyers’ arguments were not evidence to be considered in

reaching its conclusions. See State v. Newell, 212 Ariz. 389,

23
403 ¶¶ 67-68, 132 P.3d 833, 847 (holding that jury instructions

stating that closing arguments are not evidence negated improper

comments of prosecutor), cert. denied, 127 S. Ct. 663 (2006);

Anderson II, 210 Ariz. at 342 ¶ 50, 111 P.3d at 384 (holding

that jury instructions that the lawyer’s statements are not

evidence cured the prosecutor’s misstatement of the law).

Jurors are presumed to follow the judge’s instructions. Newell,

212 Ariz. at 403 ¶ 68, 132 P.3d at 847. Therefore, we presume

that the jurors reached their own conclusions regarding the

strength of the evidence. Even if the prosecutor’s comments

were improper, the judge’s instructions negated their effect.

¶56 Finally, the prosecutor’s arguments were directed only

toward establishing the “heinous or depraved” prong of the F.6

aggravator. Because the jury determined that each murder was

committed in an especially cruel manner and because a finding of

cruelty alone is sufficient to establish the F.6 aggravator, see

infra ¶¶ 61, 79-80, the prosecutor’s arguments were, at worst,

harmless error.

3.

¶57 Morris also argues that, during rebuttal to defense

counsel’s closing argument in the aggravation phase, the

prosecutor invited jurors to put themselves in the place of the

victims and singled out specific jurors based on appearance and

gender. The prosecutor made the challenged comments while

24
responding to defense counsel’s argument that the jurors could

not determine whether the victims suffered because they were

intoxicated when they were killed. Defense counsel did not

object to these statements, so we review for fundamental error.

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

¶58 A prosecutor has wide latitude in presenting arguments

to the jury, including commenting on the “vicious and inhuman

nature of the defendant’s acts,” but cannot make arguments that

appeal to the fears or passions of the jury. State v. Comer,

165 Ariz. 413, 426, 799 P.2d 333, 346 (1990). Although the

State argues that the prosecutor simply asked the jurors to

apply common sense to the factual situation before them, the

prosecutor’s remarks did far more than make that request.

Instead, the prosecutor singled out particular jurors and

addressed them personally, 6 playing on their sympathy for the

6
For example, the prosecutor asked:

[W]hich one of you wants to volunteer? I want a show
of hands on this one. Which one of you ladies—and we
don’t need guys on this one, because he didn’t take
guys. He only took women.
Which one of you want [sic] to volunteer to come
sit here and have the defendant sit himself on your
chest and say, Oh, that didn’t hurt? Because the
defense attorney is saying throw common sense out of
[the] window. Which one? I challenge anybody to say,
That is something I want to do.
And anyway, and on top of that, while he’s
sitting on my chest, which one of you, since the one
lower left-hand side has the longer hair of the
jurors, maybe she wants to have him grab her hair

25
victims and fears of the defendant. Such remarks constitute

misconduct.

¶59 Because Morris did not object, however, we must

determine whether this misconduct constitutes fundamental error.

Morris bears the burden of persuasion and must “establish 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). Fundamental error is “error going

to the foundation of the case, error that takes from the

defendant a right essential to his defense, and error of such

magnitude that the defendant could not possibly have received a

fair trial.” Id. at ¶ 19 (quoting State v. Hunter, 142 Ariz.

88, 90, 688 P.2d 980, 982 (1984)).

¶60 The prosecutor’s comments here do not constitute

fundamental error. Morris has not shown that this isolated

while he’s sitting on her chest . . . to grab it and
pull it around her neck.
You think that’s not going to hurt? You think
one of you guys is going to volunteer for that? You
can’t leave your common sense aside. [Defense
counsel] wants you to because he makes these arguments
and says, well, we don’t know what is in their heads.
We don’t know what is in Juror Number 1’s head. Can
you tell me you don’t think it’s not going to hurt
when he sits on you?
Hey, Juror Number 1 or Juror Number 14, whatever
it is, what if we put Winnie the Pooh tie around your
neck? Are you going to enjoy that? Are you going to
like it? Going to feel real good when you can’t
breathe?

26
incident of impropriety denied him a fair trial or deprived him

of a right essential to his defense.

¶61 Additionally, Morris cannot establish prejudice. The

prosecutor’s argument was directed toward proof of cruelty. To

prove that a murder was “especially cruel” under A.R.S. § 13-

703.F.6, the State must show that the victim was conscious and

suffered physical pain or mental anguish during at least some

portion of the crime and that the defendant knew or should have

known that the victim would suffer. State v. Trostle, 191 Ariz.

4, 18, 951 P.2d 869, 883 (1997). Here, independent of the

prosecutor’s improper argument, the State presented overwhelming

evidence of cruelty. The medical examiner testified that all of

the victims would have experienced pain for some period before

losing consciousness. Moreover, the evidence suggests that at

least three of the victims struggled with Morris before losing

consciousness: Morris’s DNA was under Davis’s fingernails,

Noah’s fingernails were broken, and the side of Velasquez’s face

was bruised. Morris has not met his burden of showing that the

argument caused prejudice.

4.

¶62 Morris next argues that the prosecutor committed

misconduct during the guilt phase when he introduced Castillo’s

jacket solely to inflame the jury. The prosecutor admitted his

misconduct, Morris argues, when he told the jury during his

27
closing argument that he had offered the jacket for the jury’s

“smelling pleasure.” 7 Defense counsel did not object during the

prosecution’s statement, but did discuss the comment during his

closing argument, noting that the odor on the jacket resulted in

part from storing the jacket in a bag for a long period.

Because defense counsel did not object to the prosecutor’s

comments, we review for fundamental error. Roque, 213 Ariz. at

228 ¶ 154, 141 P.3d at 403.

¶63 The prosecutor originally introduced the jacket to

show that it belonged to Castillo. During the testimony of a

police officer who investigated the scene of Castillo’s death,

the prosecutor introduced a booking photograph of Castillo

wearing the jacket and then asked the officer to remove the

jacket from its plastic bag and hold it up. The prosecutor

quickly asked the detective to return the jacket to the bag.

7
The prosecutor stated:

But one of the things that is interesting about
[Castillo] is that the smell is absolutely putrid,
absolutely one of the worst things that you will ever
probably experience. And you got a minimal exposure
to it when the jacket was opened up for your, if you
will, smelling pleasure, for lack of a better word.
And what ended up happening—you could tell it was
a very strong odor about it. So with regard to Julie
Castillo, one of the things that happened to her is
that she was wearing that jacket, and the reason that
we pulled it out to show it to you, because the
sleeves were inside out, and what that means is that
he killed her.

28
There was no misconduct in introducing the jacket into evidence.

¶64 At worst, the offhand “smelling pleasure” comment was

inappropriate. It does not, however, rise to the level of

fundamental error because this single remark did not deprive

Morris of a fair trial. Moreover, overwhelming evidence

established that the strong odor associated with the jacket

resulted from its close proximity to Castillo’s badly decomposed

body. Given this evidence, Morris cannot establish that the

prosecutor’s comment resulted in prejudice.

5.

¶65 Finally, Morris notes that on June 15, 2005, during

the guilt phase of the trial, the prosecutor kept on his table,

in view of the jury, an excluded photograph showing a maggot

infestation. During a bench conference with the judge on

another matter, defense counsel objected and the court ordered

the prosecutor to move the photograph from the jury’s view. The

prosecutor did so. Because of the objection, Morris preserved

this incident of alleged prosecutorial misconduct. Id.

¶66 Nothing in the record indicates that any juror

actually saw the challenged photograph. Defense counsel did not

ask the trial judge to determine whether any jurors had seen the

photograph or to instruct the jurors to disregard it. The

prosecutor complied with the judge’s order to remove the

photograph from view, and nothing indicates that he

29
intentionally left it on his desk or that he repeated this

conduct at any other point in the trial. Given these

circumstances, this incident does not constitute misconduct

requiring reversal.

6.

¶67 We finally consider whether “persistent and pervasive”

misconduct occurred and whether the “cumulative effect of the

incidents shows that the prosecutor intentionally engaged in

improper conduct and ‘did so with indifference, if not a

specific intent, to prejudice the defendant.’” Id. at ¶ 155

(quoting Hughes, 193 Ariz. at 80 ¶ 31, 969 P.2d at 1192).

Because Morris has described only one incident of misconduct, we

cannot conclude that the prosecutor engaged in “persistent and

pervasive” misconduct. Moreover, given the overwhelming

evidence of Morris’s guilt and of the cruelty of the murders,

the challenged remarks by the prosecutor did not prejudice

Morris.

D.

¶68 Morris also claims that the trial judge abused his

discretion by allowing the State to introduce excessively

gruesome photographs of the bodies throughout the trial. Morris

argues that the photographs had no evidentiary value because

they did not show the cause of death or the identity of the

victims.

30
¶69 We review a trial judge’s decision to admit

photographs for abuse of discretion. State v. Hampton, 213

Ariz. 167, 173 ¶ 17, 140 P.3d 950, 956 (2006), cert. denied, 127

S. Ct. 972 (2007). We look to three factors to determine

whether the trial judge erred in admitting the photographs: “the

photograph’s relevance, its tendency to inflame the jury, and

its probative value compared to its potential to cause unfair

prejudice.” Id.

¶70 Photographs of a victim’s body are always relevant

because “the fact and cause of death are always relevant in a

murder prosecution.” State v. Spreitz, 190 Ariz. 129, 142, 945

P.2d 1260, 1273 (1997) (quoting State v. Chapple, 135 Ariz. 281,

288, 660 P.2d 1208, 1215 (1983)). Additionally, photographs of

a victim’s body may be introduced

to prove the corpus delicti, to identify the victim,
to show the nature and location of the fatal injury,
to help determine the degree or atrociousness of the
crime, to corroborate state witnesses, to illustrate
or explain testimony, and to corroborate the state’s
theory of how and why the homicide was committed.

Chapple, 135 Ariz. at 288, 660 P.2d at 1215. If, however, the

photographs have “no tendency to prove or disprove any question

which is actually contested, they have little use or purpose

except to inflame and would usually not be admissible.” Id.

Gruesome or inflammatory photographs may be admitted, but if

they are “admitted for the sole purpose of inflaming the jury,

31
[the Court] will reverse on appeal.” Gerlaugh, 134 Ariz. at

169, 654 P.2d at 805.

¶71 None of the photographs to which Morris specifically

objects on appeal, all of which are of Noah’s body, are

gruesome. 8 Four show Noah’s hands or feet and one shows her nude

body from a distance. All of the photographs provide

information about the time and manner of death or otherwise

corroborate the State’s case. See Anderson II, 210 Ariz. at 340

¶ 41, 111 P.3d at 382 (holding that photographs showing

extensive decomposition, including skin slippage, bloating, and

discoloration were relevant to “corroborate the State’s theory

of the case”). Moreover, the trial judge carefully analyzed

each photograph for purposes of Arizona Rule of Evidence 403 9 and

determined that any prejudicial effect did not substantially

outweigh the probative value. On this record, we cannot

conclude that the trial judge abused his discretion in admitting

8
Morris also argues that some photographs that were marked
as exhibits but not admitted at trial are gruesome. Morris
cannot establish prejudice from exhibits never admitted into
evidence.
9
Arizona Rule of Evidence 403 states:

Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of
cumulative evidence.

32
the photographs.

III.

¶72 If a jury imposes the death penalty for murders

committed before August 1, 2002, this Court independently

reviews the jury’s findings of aggravating and mitigating

circumstances and the propriety of the death sentence. A.R.S. §

13-703.04 (Supp. 2006); 2002 Ariz. Sess. Laws 2092, 2099, 5th

Spec. Sess., ch. 1, § 7.B (noting that A.R.S. § 13-703.04

applies to offenses committed before August 1, 2002). For

capital offenses committed on or after August 1, 2002, however,

the Court no longer conducts independent review. See 2002 Ariz.

Sess. Laws 2092, 2099, 5th Spec. Sess., ch. 1, § 7.C (noting

that A.R.S. § 13-703.05 is effective on August 1, 2002 and

applies to offenses committed on or after that date). Instead,

A.R.S. § 13-703.05 (Supp. 2006), which the legislature adopted

as part of a larger bill addressing the constitutional defects

of Arizona’s capital sentencing scheme in light of Ring v.

Arizona, 536 U.S. 584 (2002), governs our review of these cases.

See 2002 Ariz. Sess. Laws 2092, 2099, 5th Spec. Sess., ch. 1, §

9.A.1. Because Morris committed all five murders after August

1, 2002, we follow the standard of review set out in section 13-

703.05.

33
 A.

¶73 Section 13-703.05 states:

A. The supreme court shall review all death
sentences to determine whether the trier of fact
abused its discretion in finding aggravating
circumstances and imposing a sentence of death.

B. If the supreme court determines that an error
occurred in the sentencing proceedings, the
supreme court shall determine whether the error
was harmless beyond a reasonable doubt. If the
supreme court cannot determine whether the error
was harmless beyond a reasonable doubt, the
supreme court shall remand the case for a new
sentencing proceeding.

¶74 This is the first case in which we consider our role

under section 13-703.05. The primary goal of statutory

interpretation is to effect the intent of the legislature.

State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993).

If the language of a statute is plain and unambiguous, we look

no further. Id.

¶75 Other than his claim of persistent and pervasive

prosecutorial misconduct, Morris raises no challenges to the

aggravation or penalty phases of his trial. We must therefore

initially determine whether the statute requires us to review

the sentencing portion of the trial even when a defendant fails

to raise issues related to those matters.

¶76 The statute provides that this Court “shall review all

death sentences” under the abuse of discretion standard. A.R.S.

§ 13-703.05.A (emphasis added). Because the statute contains

34
mandatory language, we conclude that we are required to

determine whether the jury abused its discretion, even though

Morris failed to challenge the jury’s decision with regard to

either the aggravating factors or the imposition of the death

sentences. 10 See, e.g., Ins. Co. of N. Am. v. Superior Court,

166 Ariz. 82, 85, 800 P.2d 585, 588 (1990) (noting that “shall”

is presumably mandatory).

B.

¶77 Because we conclude that the statute mandates our

review, we first consider whether the jury abused its discretion

in finding the aggravating circumstances. Under this standard

of review, we uphold a decision if there is “any reasonable

evidence in the record to sustain it.” State v. Veatch, 132

Ariz. 394, 396, 646 P.2d 279, 281 (1982). Here, the jury found

that the State proved two aggravators beyond a reasonable doubt:

Morris committed prior serious offenses, A.R.S. § 13-703.F.2,

and Morris committed each of the murders in an especially

heinous, cruel or depraved manner, id. § 13-703.F.6.

¶78 The jury did not abuse its discretion in finding the

10
Our conclusion that section 13-703.05 requires us to review
the sentence regardless of Morris’s failure to raise arguments
against it should not be understood to relieve death penalty
counsel of the duty to raise all meritorious arguments against a
death sentence. See ABA Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty Cases Guideline
10.11.L (2003) (“Counsel at every stage of the case should take

35
F.2 aggravator. The State properly used the multiple murder

convictions from the guilt phase as prior serious offenses. See

id. § 13-703.F.2 (“Convictions for serious offenses . . . not

committed on the same occasion but consolidated for trial with

the homicide . . . shall be treated as a serious offense under

this paragraph.”). Certainly, reasonable evidence supports the

jury’s decision that the State proved the F.2 aggravator.

¶79 We likewise conclude that the jury did not abuse its

discretion in finding that the State proved the F.6 aggravator

beyond a reasonable doubt. The jury made separate findings that

the State had proved (1) cruelty and (2) heinousness or

depravity. As noted earlier, the State establishes especial

cruelty by showing that a victim was conscious and suffered

physical pain or mental anguish before death and that the

defendant knew or should have known that the victim would

suffer. Trostle, 191 Ariz. at 18, 951 P.2d at 883. With

respect to the cruelty prong, the State presented expert

evidence that strangulation victims remain conscious and

experience pain for at least some period of time. Additionally,

the State presented evidence that Davis, Velasquez, and Noah

struggled with Morris. Therefore, the evidence in the record

supports the jury’s finding of cruelty in each of the five

advantage of all appropriate opportunities to argue why death is
not suitable punishment for their particular client.”).

36
murders.

¶80 A finding of cruelty alone is sufficient to establish

the F.6 aggravator. We therefore need not address whether the

jury abused its discretion in finding that the murders were also

heinous or depraved. Cf. Newell, 212 Ariz. at 405-06 ¶¶ 84-85,

132 P.3d at 849-50 (noting, during independent review, that a

finding of cruelty alone establishes the F.6 aggravator).

C.

¶81 The statute also directs us to consider whether the

jury abused its discretion when it imposed a sentence of death

for each of the murders. Although Morris presented mitigation

evidence, the jury necessarily determined that it was not

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

703.E (noting that the trier of fact imposes a death sentence if

it finds at least one aggravating circumstance and determines

that the mitigating circumstances are not “sufficiently

substantial to call for leniency”). The decision to impose the

death penalty once the jury finds aggravating factors is a

matter for each individual juror to consider. See id. § 13-

703.C (stating that “[e]ach juror may consider any mitigating

circumstance found by that juror in determining the appropriate

penalty”). Therefore, we will not reverse the jury’s decision

so long as any reasonable jury could have concluded that the

mitigation established by the defendant was not sufficiently

37
substantial to call for leniency.

¶82 Here, Morris presented mitigation evidence relating to

long-standing problems with his appearance and hygiene, the

responsibilities placed on him at a young age, his desire to

improve himself, and his good work record. Given the nature and

strength of the aggravating factors for each murder, a

reasonable jury could have determined that this mitigation

evidence was not sufficiently substantial to call for leniency.

Therefore, we cannot say that the jury abused its discretion in

imposing death sentences for each of the murders.

IV.

¶83 For purposes of federal review, Morris raises the

following fourteen challenges to the constitutionality of

Arizona’s death penalty scheme. He concedes that this Court has

previously rejected these arguments.

¶84 (1) The fact-finder in capital cases must be able to

consider all relevant mitigating evidence in deciding whether to

give the death penalty. See Woodson v. North Carolina, 428 U.S.

280, 304 (1976). The trial court’s failure to allow the jury to

consider and give effect to all mitigating evidence in this case

by limiting its consideration to that proven by a preponderance

of the evidence is unconstitutional under the Eighth and

Fourteenth Amendments. We rejected this argument in State v.

McGill, 213 Ariz. 147, 161 ¶ 59, 140 P.3d 930, 944 (2006), cert.

38
denied, 127 S. Ct. 1914 (2007). See also State v. Medina, 193

Ariz. 504, 514-15 ¶ 43, 975 P.2d 94, 104-05 (1999).

¶85 (2) The State’s failure to allege an element of the

charged offense in the grand jury indictment—the aggravating

factors that made Morris death eligible—is a fundamental defect

that renders the indictment constitutionally defective because

it violates the Fifth, Sixth, Eighth, and Fourteenth Amendments

and Article 2, Sections 1, 4, 13, 15, 23, and 24 of the Arizona

Constitution. We rejected this argument in McKaney v. Foreman

ex rel. County of Maricopa, 209 Ariz. 268, 273 ¶ 23, 100 P.3d

18, 23 (2004).

¶86 (3) The F.6 “especially heinous, cruel or depraved”

aggravating factor is unconstitutionally vague and overbroad

because the jury does not have enough experience or guidance to

determine when the aggravator is met. The finding of this

aggravator by a jury violates the Eighth and Fourteenth

Amendments because it does not sufficiently place limits on the

discretion of the sentencing body, the jury, which has no

“narrowing constructions” to draw from and give “substance” to

the otherwise facially vague law. We rejected this argument in

State v. Cromwell, 211 Ariz. 181, 188-90 ¶¶ 38-45, 119 P.3d 448,

455-57 (2005), cert. denied, 126 S. Ct. 2291 (2006), and

Anderson II, 210 Ariz. at 353 ¶ 114, 111 P.3d at 395.

39
¶87 (4) By allowing victim impact evidence at the penalty

phase of the trial, the trial court violated Morris’s

constitutional rights under the Fifth, Sixth, Eighth and

Fourteenth Amendments and Article 2, Sections 1, 4, 13, 15, 23,

and 24 of the Arizona Constitution. We rejected challenges to

the use of victim impact evidence in Lynn v. Reinstein, 205

Ariz. 186, 191 ¶¶ 16-17, 68 P.3d 412, 417 (2003).

¶88 (5) The trial court improperly omitted from the

penalty phase jury instructions language to the effect that the

jury may consider mercy or sympathy in deciding the value to

assign the mitigation evidence, instead telling the jury to

assign whatever value it deemed appropriate. The court also

instructed the jury that they “must not be influenced by mere

sympathy or by prejudice in determining these facts.” These

instructions limited the mitigation the jury could consider in

violation of the Fifth, Sixth, Eighth and Fourteenth Amendments

and Article 2, Sections 1, 4, 15, 23, and 24 of the Arizona

Constitution. We rejected this argument in State v. Carreon,

210 Ariz. 54, 70-71 ¶¶ 81-87, 107 P.3d 900, 916-17, cert.

denied, 126 S. Ct. 122 (2005).

¶89 (6) The death penalty is cruel and unusual under any

circumstances and violates the Eighth and Fourteenth Amendments,

and Article 2, Section 15 of the Arizona Constitution. This

Court and the United States Supreme Court have rejected this

40
argument. Gregg v. Georgia, 428 U.S. 153, 186-87 (1976); State

v. Harrod, 200 Ariz. 309, 320 ¶ 59, 26 P.3d 492, 503 (2001),

vacated on other grounds, 536 U.S. 953 (2002) (mem.).

¶90 (7) The death penalty is irrational and arbitrarily

imposed; it serves no purpose that is not adequately addressed

by life in prison, in violation of the defendant’s right to due

process under the Fourteenth Amendment to the United States

Constitution and Article 2, Sections 1 and 4 of the Arizona

Constitution. We rejected these arguments in State v. Smith,

203 Ariz. 75, 82 ¶¶ 35-36, 50 P.3d 825, 832 (2002), and State v.

Beaty, 158 Ariz. 232, 247, 762 P.2d 519, 534 (1988).

¶91 (8) The prosecutor’s discretion to seek the death

penalty has no standards and therefore violates the Eighth and

Fourteenth Amendments, and Article 2, Sections 1, 4, and 15 of

the Arizona Constitution. We rejected this argument in State v.

Sansing, 200 Ariz. 347, 361 ¶ 46, 26 P.3d 1118, 1132 (2001),

vacated on other grounds, 536 U.S. 954 (2002) (mem.). See also

State v. Finch, 202 Ariz. 410, 419 ¶ 50, 46 P.3d 421, 430

(2002).

¶92 (9) Arizona’s death penalty is applied so as to

discriminate against poor, young, and male defendants in

violation of Article 2, Sections 1, 4, and 13 of the Arizona

Constitution. We rejected this argument in Sansing, 200 Ariz.

41
at 361 ¶ 46, 26 P.3d at 1132. See also State v. Stokley, 182

Ariz. 505, 516, 898 P.2d 454, 465 (1995).

¶93 (10) Proportionality review serves to identify which

cases are above the “norm” of first degree murder, thus

narrowing the class of defendants who are eligible for the death

penalty. The absence of proportionality review of death

sentences by Arizona courts denies capital defendants due

process of law and equal protection and amounts to cruel and

unusual punishment in violation of the Fifth, Eighth, and

Fourteenth Amendments, and Article 2, Section 15 of the Arizona

Constitution. We rejected this argument in State v.

Gulbrandson, 184 Ariz. 46, 73, 906 P.2d 579, 606 (1995). See

also State v. Salazar, 173 Ariz. 399, 417, 844 P.2d 566, 584

(1992).

¶94 (11) Arizona’s capital sentencing scheme is

unconstitutional because it does not require the State to prove

the death penalty is appropriate or require the jury to find

beyond a reasonable doubt that the aggravating circumstances

outweigh the accumulated mitigating circumstances. Instead,

Arizona’s death penalty statute requires defendants to prove

their lives should be spared, in violation of the Fifth, Eighth,

and Fourteenth Amendments, and Article 2, Section 15 of the

Arizona Constitution. We rejected this argument in State v.

42
Fulminante, 161 Ariz. 237, 258, 778 P.2d 602, 623 (1988). See

also Carreon, 210 Ariz. at 76 ¶ 122, 107 P.3d at 922.

¶95 (12) Arizona’s death penalty scheme does not

sufficiently channel the sentencing jury’s discretion.

Aggravating circumstances should narrow the class of persons

eligible for the death penalty and reasonably justify the

imposition of a harsher penalty. Arizona Revised Statutes

section 13-703.01 is unconstitutional because it provides no

objective standards to guide the jury in weighing the

aggravating and mitigating circumstances. The broad scope of

Arizona’s aggravating factors encompasses nearly anyone involved

in a murder, in violation of the Eighth and Fourteenth

Amendments, and Article 2, Section 15 of the Arizona

Constitution. We rejected this argument in State v. Pandeli,

200 Ariz. 365, 382 ¶ 90, 26 P.3d 1136, 1153 (2001), vacated on

other grounds, 536 U.S. 953 (2002) (mem.). See also State v.

Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31 (1991).

¶96 (13) Execution by lethal injection is cruel and

unusual punishment in violation of the Eighth and Fourteenth

Amendments, and Article 2, Section 15 of the Arizona

Constitution. We rejected this argument in State v. Van Adams,

194 Ariz. 408, 422 ¶ 55, 984 P.2d 16, 30 (1999), and State v.

Hinchey, 181 Ariz. 307, 315, 890 P.2d 602, 610 (1995).

43
¶97 (14) Arizona’s death penalty scheme unconstitutionally

requires imposition of the death penalty whenever at least one

aggravating circumstance and no mitigating circumstances exist,

in violation of the Eighth and Fourteenth Amendments, and

Article 2, Section 15 of the Arizona Constitution. Arizona’s

death penalty law cannot constitutionally presume that death is

the appropriate default sentence. We rejected this argument in

State v. Miles, 186 Ariz. 10, 19, 918 P.2d 1028, 1037 (1996).

V.

¶98 For the foregoing reasons, we affirm Morris’s

convictions and sentences.

_______________________________________
Ruth V. McGregor, Chief Justice

CONCURRING:

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

44