SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-05-0162-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR1999-015293
EUGENE ROBERT TUCKER, )
)
Appellant. )
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Jeffrey A. Hotham, Judge
AFFIRMED
________________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Jeffrey A. Zick, Assistant Attorney General
Capital Litigation Section
Attorneys for the State of Arizona
JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Christopher V. Johns, Deputy Public Defender
Karen Noble, Deputy Public Defender
Attorneys for Eugene Robert Tucker
________________________________________________________________
B A L E S, Justice
¶1 This automatic appeal is from a jury’s determination
that Eugene Robert Tucker should receive death sentences for
three murders. We have jurisdiction pursuant to Article 6,
Section 5(3), of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) section 13-4031 (2001).
I. Factual and Procedural Background1
¶2 On July 15, 1999, ten days after he turned eighteen,
Tucker entered an apartment occupied by Ann Marie Merchant, a
woman with whom he had a prior sexual relationship. Also living
at the apartment were Ann Marie’s brother, Roscoe Merchant;
Roscoe’s girlfriend, Cindy Richards; and Cindy’s infant son,
Anothy. Tucker bound, gagged, strangled, beat, sexually
assaulted, and shot Ann Marie. He shot and killed Cindy and
Roscoe as they slept in their bed; he left the infant alive in a
crib in the same room.
¶3 In 2000, Tucker was tried and convicted of sexual
assault, kidnapping, burglary, and three counts of first degree
murder for the deaths of Ann Marie, Roscoe, and Cindy. The
trial judge sentenced Tucker to twenty-five years to life for
sexual assault, twenty-one years for kidnapping, twenty-one
years for burglary, and death for each of the murders.
¶4 In 2003, the Court affirmed the convictions and
sentences for the non-capital offenses and affirmed the murder
convictions. State v. Tucker (Tucker I), 205 Ariz. 157, 170 ¶
69, 68 P.3d 110, 123 (2003). Pursuant to State v. Ring (Ring
III), 204 Ariz. 534, 555 ¶ 53, 65 P.3d 915, 936 (2003), the
1
On appeal, the Court views the facts in the “light most
favorable to sustaining the verdict.” State v. Tucker (Tucker
I), 205 Ariz. 157, 160 n.1, 68 P.3d 110, 113 n.1 (2003). A more
complete account of the crimes and the first trial appears in
Tucker I. Id. at 160-61 ¶¶ 1-18, 68 P.3d at 113-14.
2
Court considered whether it was harmless error for the trial
court, rather than a jury, to have found the aggravating factors
and to have determined that death sentences were appropriate.
Tucker I, 205 Ariz. at 167 ¶ 54, 68 P.3d at 120. The Court
concluded that the findings of the A.R.S. § 13-703(F)(6) (Supp.
1999) aggravator based on cruelty for the death of Ann Marie and
the § 13-703(F)(8) multiple murders aggravator for each victim
constituted harmless error. Tucker I, 205 Ariz. at 169 ¶¶ 62,
66, 68 P.3d at 122. Resentencing was required, however, because
the Court concluded that a reasonable jury could reach different
conclusions than had the trial court with regard to the § 13-
703(F)(6) aggravator for Roscoe and Cindy, which was based on a
witness-elimination theory; the § 13-703(F)(3) aggravator, which
was based on a theory that Tucker had placed the infant in
“grave risk of death” by leaving him in the apartment after
killing all the adult occupants; and the significance of the
mitigating circumstances. Id. at 169-70 ¶ 68, 68 P.3d at 122-
23.
¶5 On remand, a newly impaneled jury sentenced Tucker to
death for each of the murders after finding four aggravating
circumstances for each victim: (1) conviction of another
offense eligible for life imprisonment or death; (2) grave risk
of death to another person; (3) especially heinous, cruel, or
depraved; and (4) conviction of one or more other homicides
3
during the commission of the offense.
II. Aggravation Phase Issues
A. Right to Testify
¶6 Tucker contends that the trial judge interfered with
his right to testify at the aggravation phase and failed to
secure a knowing, voluntary, and intelligent waiver of that
right. He also argues that the judge’s comments prevented the
jury from considering mitigation evidence. Because Tucker did
not object at trial, we review for fundamental error. State v.
Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005).
¶7 Tucker testified during the first trial and denied
committing the murders. See Tucker I, 205 Ariz. at 161 ¶¶ 16-
17, 68 P.3d at 114. During the resentencing aggravation phase,
Tucker’s counsel told the trial judge that he and Tucker had
discussed, in “very precise and in-depth conversations,” whether
Tucker would testify. Counsel opined that Tucker was “very
clear” about his right. He confirmed that if Tucker decided to
testify, Tucker would do so in the penalty phase.
¶8 The trial judge advised Tucker that he had a
constitutional right to testify and that he should consider his
lawyer’s advice when making his decision. He also cautioned
that if Tucker chose to testify, the State could cross-examine
him about information that may not present him in a positive
light and introduce witnesses to rebut his testimony. The trial
4
judge told Tucker that, in his opinion, such rebuttal evidence
would make Tucker “look very bad” and reveal to the jury
information that his lawyer did not want disclosed.
¶9 During the penalty phase, the trial judge again
advised Tucker of his right to testify and asked if his comments
had coerced or impaired Tucker’s decision. In response, Tucker
stated: “Not at all, Your Honor. I choose to remain silent. .
. . With all due respect to you and to your court, Your Honor,
it has nothing to do with you.”
¶10 The record confirms that Tucker understood and
voluntarily relinquished his right to testify. The trial
judge’s comments simply informed Tucker of the consequences of
testifying. Moreover, Tucker cannot complain that the judge’s
comments prevented the jury from hearing mitigation evidence
during the aggravation phase. Such evidence is not proper at
this phase of a capital sentencing proceeding. See State v.
Anderson (Anderson II), 210 Ariz. 327, 348 ¶ 86, 111 P.3d 369,
390 (2005) (“The only issue at the aggravation phase is whether
any aggravating circumstances have been proved . . . .”).
B. Juror Challenge
¶11 Tucker contends that the trial judge improperly
dismissed prospective Juror 147 off the record and excluded this
juror based on her general opposition to the death penalty. We
review Tucker’s claim for fundamental error because Tucker did
5
not object to the juror’s dismissal. State v. Roseberry, 210
Ariz. 360, 366 ¶ 26, 111 P.3d 402, 408 (2005), cert. denied, 126
S. Ct. 444 (2005).
¶12 Juror 147 was not improperly dismissed. Arizona Rule
of Criminal Procedure 18.5(f) requires challenges for cause to
“be of record,” but that rule was not violated here. Nor does
the record suggest that Juror 147 was excused because of her
opposition to the death penalty.
¶13 During voir dire, Juror 147 described herself as an
eighty-one year old cancer survivor and “walking miracle” who
tired easily and who often “unknowingly” passed out. When asked
about her health, she gave a rambling answer and then
volunteered, “I have qualms about the death penalty, and yet I
don’t because, you know, the Lord said that if you use the sword
you perish by the sword.” The trial judge noted that the
question concerned her health and asked if there was any health
reason she could not sit as a juror. She replied, “No. I think
that I can. I am going to go ahead with it, yes.” Neither the
prosecutor nor Tucker’s counsel questioned Juror 147 further.
¶14 When the trial judge later reviewed the list of
prospective jurors with counsel, there was an off-the-record
discussion of Juror 147, and the judge then stated, on the
record, that Juror 147 was being excused “by agreement of
counsel.” Rule 18.5(f) did not require the trial judge to make
6
a further record regarding the dismissal of this juror. Given
that the record reflects that Juror 147 was dismissed by
agreement of counsel, Tucker has not shown that she was excused
because of her opposition to the death penalty or that her
dismissal otherwise involved fundamental error.
C. Stipulation
¶15 Tucker argues that the trial judge failed to properly
instruct the jury regarding the parties’ stipulation to Tucker’s
conviction of an offense for which a life sentence was imposable
and improperly commented on the evidence. This stipulation
provided the factual basis for the A.R.S. § 13-703(F)(1)
aggravator. Because Tucker did not object to any aspect of the
stipulation, we review for fundamental error. Henderson, 210
Ariz. at 567 ¶ 19, 115 P.3d at 607.
¶16 During the aggravation phase, the trial judge read
several stipulations to the jury, including one concerning
Tucker’s previous conviction. Before reading the stipulations,
the judge instructed the jurors that the stipulations were facts
agreed upon by the parties. He also told the jurors that they
could consider these facts, but that the individual stipulations
were not exhibits. The disputed stipulation stated: “On
September 15, 2000, the defendant Eugene Robert Tucker was found
guilty by a jury and convicted of the sexual assault of Ann
Marie [Merchant]. . . . Under Arizona law, a sentence of life
7
imprisonment was imposable for this offense.” After discussing
whether the stipulation or the guilt-phase verdicts should be
admitted as an exhibit, the judge told counsel that he would not
admit the stipulation as an exhibit.
¶17 The trial judge properly instructed the jury on the
significance of the stipulation. Moreover, the final
aggravation phase instructions told the jurors that, for the
(F)(1) aggravator, they had to find beyond a reasonable doubt
that Tucker had been convicted of an offense for which a
sentence of life imprisonment was imposable. Thus, the trial
judge did not improperly instruct the jury to find the (F)(1)
aggravator as a matter of law. The trial judge also did not
improperly comment on the evidence by clarifying whether the
stipulation should be admitted or whether the guilt-phase
verdicts should be read to the jury. There was no error
regarding the stipulation, much less fundamental error.
D. Grave Risk of Death
1. Validity
¶18 Tucker argues that the (F)(3) aggravator is arbitrary
and capricious because it renders him death eligible even though
he is less culpable than a defendant who intended to harm a
third party victim but is not death eligible. He therefore
contends that this aggravator does not appropriately narrow the
class of persons eligible for death. We review this issue de
8
novo. State v. Roque, 213 Ariz. 193, 217 ¶ 89, 141 P.3d 368,
392 (2006).
¶19 We rejected a similar claim in Roque. There we noted
that the (F)(3) aggravator adequately distinguishes between
those defendants who deserve the death penalty and those who do
not because it “applies only if the defendant knowingly engaged
in conduct that created a real and substantial risk of death to
another person who, while not an intended target, was also not
an unaffected bystander.” Id. at 218 ¶ 91, 141 P.3d at 393.
The Roque jury instructions clarified the meaning of the (F)(3)
aggravator by noting, in addition to the statutory language,
that a third party’s “mere presence” is not sufficient. Id. ¶
92.
¶20 Consistent with Roque and the statutory language, the
trial judge instructed the jury that the (F)(3) aggravator
requires proof that, “[i]n the commission of this offense, the
defendant knowingly created a grave risk of death to another
person or persons in addition to the person murdered during the
commission of this offense.” Without objection by Tucker, the
judge further clarified that the aggravator required the State
to prove that the “third person was so close in proximity that
there was a real and substantial likelihood that the third
person might suffer fatal injuries[,] . . . the Defendant was
aware of the risk to the third person[,] and . . . the Defendant
9
did not intend to kill the third person.” Although the
instructions did not include a statement that the “mere
presence” of the third person is insufficient (a statement given
in Roque), the instructions did not permit the jury to find the
(F)(3) factor based on a person’s presence as an unaffected
bystander. The instructions therefore sufficiently narrowed the
class of defendants eligible for death based on the (F)(3)
aggravator.
2. Sufficiency of the Evidence
¶21 Tucker contends that there was insufficient evidence
for the jury to find beyond a reasonable doubt that (1) the
murderous act created a grave risk of death to Anothy; (2) he
knowingly created such a risk; and (3) there was a “real and
substantial likelihood” that the infant would be killed. We
agree that the evidence was not sufficient because the infant
was not in the zone of danger during Tucker’s murderous acts,
but we conclude that any error in submitting this aggravator to
the jury was harmless.
¶22 At the close of the aggravation phase, Tucker asked
the court to enter judgment that the State had not proved the
(F)(3) aggravator. See Ariz. R. Crim. P. 20(a). The State
conceded that the shots fired at Roscoe and Cindy did not
themselves put Anothy at risk. Instead, the State argued that
Tucker created a grave risk of death to Anothy because he knew
10
the infant was in the room and that he had killed Anothy’s
caretakers. The trial judge denied the Rule 20 motion.
¶23 The jury found the (F)(3) aggravator for each of the
victims. After the penalty phase verdict, the trial judge gave
the jury a special interrogatory to determine if it would still
impose death without the (F)(3) aggravator. The jury affirmed
each of the death sentences.
¶24 In addition to the requirements discussed in ¶¶ 19-20
supra, the (F)(3) aggravator requires the state to prove beyond
a reasonable doubt that the “person who was not the intended
victim was within the zone of danger created by the defendant’s”
murderous act. Roque, 213 Ariz. at 218 ¶ 94, 141 P.3d at 393
(emphasis added). In State v. Carreon, we clarified that the
bystander must be subjected to the grave risk of death as a
direct result of the defendant’s “murderous act.” 210 Ariz. 54,
67 ¶ 63, 107 P.3d 900, 913 (2005) (emphasis added), cert.
denied, 126 S. Ct. 122 (2005). There we found that the two
children, who were not in the same room when the victim was
killed, were not in the zone of danger. Id. ¶ 64. As in
Carreon, Anothy was not in the same room as Ann Marie when she
was killed, and there was no evidence that Anothy was otherwise
in the zone of danger during Tucker’s murderous acts upon Ann
Marie.
¶25 Although Anothy’s crib was within five or six feet of
11
Roscoe and Cindy’s bed when they were killed, Tucker fired away
from Anothy’s crib when he shot Roscoe and Cindy. Anothy’s mere
presence in the room did not put him in the zone of danger
because Tucker’s murderous acts upon Roscoe and Cindy were aimed
in the opposite direction.
¶26 Thus, the evidence was not sufficient to establish the
(F)(3) aggravator for any of the murders, and we need not
determine whether there was sufficient evidence of Tucker’s
mental state or a “real and substantial likelihood” that Anothy
would be killed. Nonetheless, the error is harmless because the
jury in the special interrogatory affirmed the death sentences
without the (F)(3) aggravator. See Henderson, 210 Ariz. at 567
¶ 18, 115 P.3d at 607 (stating that harmless error requires “the
state to prove beyond a reasonable doubt that the error did not
contribute to or affect the verdict or sentence”).
E. Heinous, Cruel, or Depraved
1. Validity
¶27 Tucker contends that the jury instructions on the
(F)(6) aggravator were vague, incapable of principled
application, and, as applied, arbitrary and capricious. Tucker
objected on this basis during the aggravation phase. We review
de novo whether jury instructions adequately state the law.
State v. Johnson, 212 Ariz. 425, 431 ¶ 15, 133 P.3d 735, 741
(2006), cert. denied, 127 S. Ct. 559 (2006).
12
¶28 The (F)(6) aggravator is facially vague but may be
remedied with appropriate narrowing instructions, whether a
judge or a jury makes the sentencing determination. State v.
Ellison, 213 Ariz. 116, 138 ¶ 96, 140 P.3d 899, 921 (2006),
cert. denied, 127 S. Ct. 506 (2006). We therefore must
determine whether the instructions sufficiently narrowed the
terms “especially heinous, cruel or depraved.” Id.
a. Especially Cruel
¶29 Tucker argues that the “especially cruel” instruction
was deficient because it did not require “conclusive evidence”
that the victim was conscious or experienced “significant
uncertainty” about her ultimate fate. He argues that it should
have stated that “murder is especially cruel when there has been
the infliction of pain and suffering in an especially wanton and
insensitive or vindictive manner.” We have, however, approved
instructions without such language.
¶30 The trial judge gave the following instruction on the
“especially cruel” prong:
Concerning this aggravating circumstance, all
first-degree murders are to some extent heinous, cruel
or depraved. However, this aggravating circumstance
cannot be found to exist unless the murder is
especially heinous, cruel or depraved, that is, where
the circumstances of the murder raise it above the
norm of other first-degree murders. “Especially”
means beyond the norm, standing above or apart from
others.
13
The terms “cruel”, [“]heinous”, or “depraved” are
to be considered separately, but proof of any one of
these factors is sufficient to establish this
aggravating circumstance.
Cruelty involves the infliction of physical pain
and/or mental anguish on a victim before death. A
crime is committed in an especially cruel manner when
a Defendant either intended or knew that the manner in
which the crime is committed would cause the victim to
experience physical pain and/or mental anguish before
death. The victim must be conscious for at least some
portion of the time when the pain and/or anguish was
inflicted.
¶31 We have approved “especially cruel” narrowing
instructions that required the jury to find that the victim was
conscious during the mental anguish or physical pain and also
that the defendant knew or should have known that the victim
would suffer. E.g., Ellison, 213 Ariz. at 139 ¶¶ 98-99, 140
P.3d at 922; State v. Cromwell, 211 Ariz. 181, 189 ¶ 42, 119
P.3d 448, 456 (2005), cert. denied, 126 S. Ct. 2291 (2006);
Anderson II, 210 Ariz. at 352 n.19 ¶ 111, 111 P.3d at 394 n.19.
Tucker’s instructions contained these essential narrowing
factors.
¶32 Although the court’s instruction in Anderson II
required “conclusive evidence” of consciousness, 210 Ariz. at
352 n.19 ¶ 111, 111 P.3d at 394 n.19, we have approved
instructions on the meaning of cruelty that referenced a general
consciousness requirement, see Ellison, 213 Ariz. at 138-39 ¶¶
97-98, 140 P.3d at 921-22; Cromwell, 211 Ariz. at 189 ¶ 42, 119
14
P.3d at 456. We have also approved instructions that referenced
“mental and physical anguish suffered by the victim,” and did
not require the victim’s pain and suffering to be especially
wanton and insensitive or vindictive. Cromwell, 211 Ariz. at
189 ¶ 42, 119 P.3d at 456.
¶33 Finally, a victim’s significant uncertainty about his
or her ultimate fate is one way in which the mental anguish
aspect of the “especially cruel” prong can be fulfilled. State
v. Poyson, 198 Ariz. 70, 78 ¶ 25, 7 P.3d 79, 87 (2000). Yet,
our narrowing instructions require only that “the victim
consciously experience[] physical or mental pain . . . and the
defendant knew or should have known that” the victim would
suffer. Anderson II, 210 Ariz. at 352 n.18 ¶ 109, 111 P.3d at
394 n.18 (quoting State v. Trostle, 191 Ariz. 4, 18, 951 P.2d
869, 883 (1997)). Tucker’s instructions contained these
essential narrowing factors and did not suffer from vagueness.
b. Especially Heinous or Depraved
¶34 Tucker argues that the instructions failed to define
gratuitous violence as violence “clearly beyond that necessary”
to kill and to state that the heinous or depraved aggravator
cannot be based solely on a finding of witness elimination. We
reject these arguments.
¶35 The State focused on the gratuitous violence of Ann
Marie’s murder and the witness elimination aspect of Roscoe’s
15
and Cindy’s murders. In addition to the general instructions on
the (F)(6) aggravator, supra ¶ 30, the trial judge provided the
following instruction:
The terms “heinous” and “depraved” focus upon a
Defendant’s state of mind at the time of the offense,
as reflected by his words and acts. A murder is
especially heinous if it is hatefully or shockingly
evil; grossly bad. A murder is especially depraved if
it is marked by debasement, corruption, or perversion.
In order to find heinousness or depravity, you must
find that the Defendant had such a mental state as
exhibited by engaging in at least one of the following
actions:
1. Infliction of gratuitous violence on the
victim;
2. Killing to eliminate a witness of another
crime[.]
In this context, “gratuitous violence” refers to
violence committed upon the victim beyond that
necessary to kill.
To assist you in determining whether the murder
is heinous or depraved, you may consider whether:
1. The murder was senseless; or
2. Helplessness of the victim.
All murders are “senseless” because of their
brutality and finality. Yet not all are senseless as
the term is used to distinguish those first-degree
murders that warrant a death sentence from those that
do not. Rather, a “senseless” murder is one that is
unnecessary to achieve the Defendant’s criminal
purpose[.]
“Helplessness” is proven when the victim is unable
to resist.
Neither “senselessness” nor “helplessness”, [sic]
standing alone, are sufficient to prove that this
murder was heinous or depraved.
16
¶36 The gratuitous violence instruction was consistent
with our case law because it defined the term as violence beyond
that necessary to kill. E.g., State v. Antoin Jones (Antoin
Jones II), 205 Ariz. 445, 449 ¶ 16, 72 P.3d 1264, 1268 (2003).
Contrary to Tucker’s argument, we have defined the term without
the word “clearly.” E.g., State v. Sansing, 206 Ariz. 232, 237
¶ 18, 77 P.3d 30, 35 (2003).
¶37 The witness elimination instruction was also
consistent with our case law because, while witness elimination
alone is typically not sufficient to satisfy the heinous or
depraved aggravator, “when a capital defendant eliminates the
witness to a crime other than the murder to prevent that witness
from testifying,” witness elimination may, by itself, “justify a
finding of heinousness or depravity.” Johnson, 212 Ariz. at 439
¶ 58, 133 P.3d at 749. Here, the State argued only that Roscoe
and Cindy were killed to eliminate them as “witnesses of another
crime.”
2. Sufficiency of the Evidence
¶38 Tucker argues that the evidence was not sufficient to
prove beyond a reasonable doubt that Roscoe’s and Cindy’s
murders involved witness elimination. We agree because there
was no evidence that Roscoe or Cindy witnessed the attack upon
Ann Marie.
¶39 The Court considers six factors when determining
17
whether a defendant’s acts are especially heinous or depraved:
(1) relishing, (2) gratuitous violence, (3) mutilation, (4)
senselessness of the crime, (5) helplessness of the victim, and
(6) witness elimination. State v. Ross, 180 Ariz. 598, 605, 886
P.2d 1354, 1361 (1994). Witness elimination is a factor if (1)
“the murder victim is a witness to some other crime, and is
killed to prevent that person from testifying about the other
crime”; (2) the defendant states that the motive for the murder
is witness elimination; or (3) “extraordinary circumstances of
the crime show, beyond a reasonable doubt, that witness
elimination is a motive.” Johnson, 212 Ariz. at 439 ¶ 57, 133
P.3d at 749 (quoting Ross, 188 Ariz. at 606, 886 P.2d at 1362).
The first category of witness elimination, the only type alleged
here by the State, is sufficient on its own to satisfy the
heinous or depraved prong. Id. ¶ 58. The second and third
types of witness elimination require an additional factor, such
as senselessness or helplessness, to support a heinous or
depraved finding. See id. ¶ 59.
¶40 We have not sustained the first type of witness
elimination when there is no evidence that the victim witnessed
another crime. For instance, in State v. Danny Jones, the
defendant attacked three victims at a residence, one in the
garage and two inside the residence. 185 Ariz. 471, 477, 917
P.2d 200, 206 (1996). We concluded that the case did “not fall
18
within the first category [of witness elimination] because there
[was] no clear evidence of the sequence of the homicides.” Id.
at 488, 917 P.2d at 217. That is, we could not “determine
conclusively” whether one victim inside the home witnessed the
attack upon the other victim inside the home. Id.
¶41 Likewise, there was no evidence that either Roscoe or
Cindy witnessed any part of the attack upon Ann Marie. Indeed,
they were asleep when they were shot. Thus, there was not
sufficient evidence to establish witness elimination for
Roscoe’s and Cindy’s murders, and, as in Danny Jones, we leave
open the question of whether the first category of witness
elimination may be established when the “other crime . . . was
committed before the murder at issue but . . . occurred during
the same time period as the murder at issue, such as in a case
involving multiple homicides,” id. (internal quotations
omitted).
F. Double Jeopardy
¶42 Tucker contends that it violates double jeopardy for
him to have been retried on the (F)(3) aggravator for all three
victims and the (F)(6) aggravator for Roscoe’s and Cindy’s
murders because in Tucker I the Court held that the evidence was
insufficient for these aggravators. Tucker mischaracterizes our
decision in Tucker I.
¶43 The Double Jeopardy Clause prevents a defendant from
19
being tried twice for the same offense. U.S. Const. amend. V;
Ariz. Const. art. 2, § 10. In Ring III, we rejected the
argument that resentencing a defendant under the amended capital
sentencing scheme violates double jeopardy. 204 Ariz. at 547-48
¶ 25, 65 P.3d at 928-29. A defendant originally sentenced to
death may be resentenced to death on remand, even if the
evidence underlying the original aggravating circumstance was
insufficient. Id. at 550 ¶ 36, 65 P.3d at 931.
¶44 In Tucker I we held that reasonable jurors could have
reached a different conclusion than had the trial court with
regard to the existence of the (F)(3) aggravator for each victim
and the (F)(6) aggravator for Roscoe’s and Cindy’s murders. 205
Ariz. at 169-70 ¶ 68, 68 P.3d at 122-23. We did not hold that
insufficient evidence had been offered to support findings of
these aggravators. Id.
G. Photographs
¶45 Tucker contends that the trial judge committed
reversible error when he allowed the State, over Tucker’s
objection, to admit a montage of forty-four photographs
discovered on Tucker’s bedroom wall. The photographs depicted
corpses and autopsies of deceased celebrities and historical
figures. Some of the photographs also contained written
descriptions of the images.
¶46 We review a trial court’s ruling on the admissibility
20
of evidence for an abuse of discretion. State v. McGill, 213
Ariz. 147, 154 ¶ 30, 140 P.3d 930, 937 (2006), cert. denied, 127
S. Ct. 1914 (2007). At trial, Tucker argued only that the
photographs were irrelevant and did not object to the admission
of any particular photograph. He now contends that they were
inflammatory and prejudicial and argues that the written
descriptions in certain photographs were inadmissible hearsay.
Because Tucker did not raise these objections below, however, we
review only for fundamental error. Henderson, 210 Ariz. at 567
¶ 19, 115 P.3d at 607.
¶47 Pursuant to A.R.S. § 13-703(B) (Supp. 2004), the rules
of evidence apply to the aggravation phase. Under Arizona Rule
of Evidence 401, evidence is relevant if it has “any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.” Photographs may be relevant
to aid the jury in resolving an issue of the case. State v.
Antoin Jones (Antoin Jones I), 203 Ariz. 1, 10 ¶ 31, 49 P.3d
273, 282 (2002).
¶48 Here, the State argued that the photographs were
relevant to show the cruelty of Ann Marie’s murder because some
of them depicted “people who have bondage, handcuffs, and . . .
[a] duct tape mask” and therefore they indicated that Tucker
knew that the manner in which he killed Ann Marie would cause
21
her to suffer. The photographs, however, primarily depicted
gunshot wounds, none of which particularly resembled Ann Marie’s
injuries; only one photograph contained a bound victim; and the
commentary describing some of the images stated that the victims
died instantaneously. Nonetheless, the photographs had some
minimal relevance to the cruelty prong.
¶49 The State also argued that the photographs were
relevant to prove the gratuitous violence of Ann Marie’s murder
because some depicted victims that were bound or gagged.
Possession of photographs depicting gruesome, violent images of
death may indicate that Tucker had some knowledge about the
force required to kill Ann Marie. Although the photographs were
seized more than one month after the murders and were not dated,
the jury could have inferred that Tucker had displayed the
photographs on his wall at the time of the murders.
¶50 Contrary to Tucker’s argument, the written
descriptions on the photographs did not constitute hearsay
because the photographs and their commentary were not introduced
to prove the truth of their contents, but rather to show what
Tucker displayed on his bedroom wall. See Ariz. R. Evid. 801
(defining hearsay as “a statement . . . offered in evidence to
prove the truth of the matter asserted”).
¶51 Given the low threshold for relevance and Tucker’s
failure to object to the prejudicial nature of the photographs,
22
the judge did not abuse his discretion. In any event, any error
in admitting the photographs was harmless because even without
the photographs there was overwhelming evidence that Ann Marie’s
murder was “especially cruel,” see infra ¶¶ 100-03. Cf. State
v. Spreitz, 190 Ariz. 129, 142, 945 P.2d 1260, 1273 (1997)
(stating that court need not remand if abuse of discretion in
admitting photograph was harmless).
H. Expert Testimony
¶52 Tucker contends that the trial judge admitted hearsay
when he permitted the State’s testifying materials expert to
reveal the content of a non-testifying expert’s statements. He
also argues that this admission violates the Confrontation
Clause under Crawford v. Washington, 541 U.S. 36 (2004). We
reject these arguments because a testifying expert witness may,
for the limited purpose of showing the basis of his or her
opinion, reveal the substance of a non-testifying expert’s
statements. Such statements do not violate the Confrontation
Clause because they are not admissible for their truth.
1. Facts
¶53 The State’s materials expert, John Knell, testified
that the duct tape used to gag Ann Marie was consistent with a
roll of duct tape discovered at Tucker’s home and a duct tape
sheath found on a knife in Tucker’s bedroom. During cross-
examination, Tucker’s counsel questioned Knell with the evident
23
goal of showing that many duct tape rolls are distributed.
Tucker’s counsel asked Knell whether he had “any idea how many
rolls go out a year.” Knell responded that he had “an idea”
because he had talked to representatives from Sure Tape, the
brand name visible on the roll of duct tape recovered from
Tucker’s home. Tucker’s counsel moved to strike Knell’s answer
based on hearsay, but the motion was overruled. Knell then
provided information about Sure Tape’s distribution, but
conceded that he was not an expert in duct tape distribution or
manufacturing.
¶54 On redirect, the State’s questions targeted whether
the tape was destined for retail or industrial use. Tucker’s
father worked as a school maintenance worker, and, presumably,
the State was trying to link the duct tape found on Ann Marie to
the Tucker family. The State elicited that Knell had “reason to
believe” that the duct tape found at Tucker’s home was not
purchased at a retail store. Tucker’s counsel objected to
foundation. Outside the presence of the jury, Knell said that
he had talked with Sure Tape employees and that this “type of
research and direct contact with the actual company” was
typically performed by other analysts in the field when making
comparisons and exclusions and otherwise forming opinions.
¶55 As part of his research, Knell spoke to Karl
McFarland, a duct tape expert at Sure Tape’s headquarters in
24
North Carolina, and two customer sales representatives at Sure
Tape’s Phoenix distribution warehouse. Knell’s opinion that the
duct tape found at Tucker’s home was industrial was based on his
conversation with McFarland, his own research, and his
composition analysis. Knell acknowledged that without speaking
to the Sure Tape employees, he would not have been able to reach
this conclusion.
¶56 During argument on the objection, Tucker also raised
hearsay and confrontation arguments and stated that Knell could
not testify about retail or industrial distribution because he
lacked personal knowledge. The trial judge recognized that
Tucker’s counsel had “opened the door on distribution,” and
overruled Tucker’s objection. He permitted Tucker to further
cross-examine Knell “on that point to show the flakey nature of
the information.”
¶57 When redirect resumed with the jury present, Knell
testified that McFarland told him that the tape labeled Sure
Tape was destined for industrial use, that such tape differed in
its composition from Manco tape distributed to retail stores,
and that the physical characteristics of the tape found in
Tucker’s home were consistent with a certain type of industrial
Sure Tape. Tucker’s counsel declined to further cross-examine
Knell and did not request a limiting instruction regarding the
basis of Knell’s opinion.
25
2. Admissibility of the Statements
a. Rule 703
¶58 We review a trial court’s admission of evidence for an
abuse of discretion. Ellison, 213 Ariz. at 129 ¶ 42, 140 P.3d
at 912. Under Arizona Rule of Evidence 703, “[t]he facts or
data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known to
the expert at or before the hearing.” If the facts or data are
“of a type reasonably relied upon by experts in the particular
field in forming opinions or inferences upon the subject, the
facts or data need not be admissible in evidence.” Id. An
expert may, therefore, disclose otherwise inadmissible evidence,
including the substance of a non-testifying expert’s opinion, if
such evidence forms the basis of the expert’s opinion and is
reasonably relied upon by experts in the field. See State v.
Lundstrom, 161 Ariz. 141, 145-47, 776 P.2d 1067, 1071-73 (1989).
Once disclosed, however, the facts or data relied upon are
admissible for the limited purpose of showing the basis of the
expert’s opinion. Id. at 146, 776 P.2d at 1072.
¶59 It is evident that Knell relied, in part, on
McFarland’s information. Based on our case law and Knell’s
testimony that other experts in the field would have researched
and directly contacted the company, it was not an abuse of
discretion for the judge to conclude that such information is
26
reasonably relied upon by other experts in the field. See
Joseph M. Livermore et al., Arizona Practice: Law of Evidence §
703, at 294 (4th ed. 2000) (stating that Arizona courts “have
permitted physicians to rely on the patient’s medical history,
an appraiser to rely on an official schedule of average
reproduction costs of billboards, and a researcher to rely on
the social science data he gathered”) (footnotes omitted).
¶60 Because an expert witness may testify about the
substance of a non-testifying expert’s opinion or factual
information gleaned from other sources, it was permissible for
Knell to reveal the substance of McFarland’s statements.
Lundstrom, 161 Ariz. at 145-47, 776 P.2d at 1071-73. By doing
so, McFarland did not reveal hearsay because the information was
offered, not for its truth, but for the limited purpose of
showing the basis of Knell’s opinion. Contrary to Tucker’s
argument, Knell was not a “mere conduit” for McFarland’s
statements because McFarland’s information, though integral,
constituted only part of the information upon which Knell relied
in forming his opinion. See id. at 148, 776 P.2d at 1074
(discussing improper “mere conduit” testimony).
b. Confrontation Clause
¶61 We review de novo evidentiary rulings that implicate
the Confrontation Clause. See Ellison, 213 Ariz. at 129 ¶ 42,
140 P.3d at 912. A defendant has a right to confront hearsay
27
introduced to establish an aggravating circumstance. McGill,
213 Ariz. at 159 ¶ 51, 140 P.3d at 942; State v. Greenway, 170
Ariz. 155, 161 n.1, 823 P.2d 22, 28 n.1 (1991). Yet, testimony
that is not admitted to prove its truth is not hearsay and does
not violate the Confrontation Clause. Crawford, 541 U.S. at 59
n.9 (stating that the Confrontation Clause “does not bar the use
of testimonial statements for purposes other than establishing
the truth of the matter asserted”); Roque, 213 Ariz. at 214 ¶
70, 141 P.3d at 389 (same).
¶62 Because the facts underlying an expert’s opinion are
admissible only to show the basis of that opinion and not to
prove their truth, an expert does not admit hearsay or violate
the Confrontation Clause by revealing the substance of a non-
testifying expert’s opinion. State v. Rogovich, 188 Ariz. 38,
42, 932 P.2d 794, 798 (1997) (stating that defendant has right
to confront testifying expert witness, but not individuals
“whose findings or research merely form the basis for the
witness’s testimony”); 4 Weinstein’s Federal Evidence § 703.06
(Joseph M. McLaughlin ed., 2d ed. 2006) (noting that “courts
have generally held that the Confrontation Clause is satisfied
if the expert witness is available for cross-examination” and
“is not violated by an expert’s reliance on out-of-court
sources”). Thus, Tucker had a right to confront Knell, the
testifying expert, but he did not have a right to confront
28
McFarland, the non-testifying expert, because Knell’s statements
about his conversation with McFarland were admissible only to
show the basis of Knell’s opinion.
II. Penalty Phase Issues
A. Jury Instructions
¶63 Tucker contends the jury instructions were
inconsistent with our opinion in State ex rel. Thomas v.
Granville (Baldwin), 211 Ariz. 468, 473 ¶ 21, 123 P.3d 662, 667
(2005). The instructions, he argues: (1) incorrectly assigned
him the burden of proving that the mitigation evidence was
sufficiently substantial to call for leniency, and (2)
incorrectly adopted a “presumption of death” by directing the
jurors to impose a death sentence if no juror found mitigation
sufficiently substantial to warrant leniency. Tucker did not
object to these instructions below, and we conclude there was no
fundamental error.
¶64 A sentencing juror must be allowed to consider and
give independent effect to any mitigating evidence that is
relevant to the decision to impose the death penalty. Kansas v.
Marsh, 126 S. Ct. 2516, 2523 (2006). This constitutional
requirement of individualized sentencing was met here. At the
close of the penalty phase, the jurors were properly instructed
that mitigating circumstances were any factors “relevant in
determining whether to impose a sentence of less than death” and
29
that they should consider any circumstances presented by Tucker
and the State as well as other information admitted as evidence.
Finally, the jurors were instructed that, based upon all the
evidence presented in the aggravation and penalty phases, they
must individually decide whether there was mitigation, the
weight to be given to the mitigation, and whether the mitigation
was sufficiently substantial to call for leniency.
1. The Baldwin Error
¶65 The trial court also instructed the jurors that “the
defendant has the burden to prove that the mitigation evidence
is sufficiently substantial to call for leniency.” This
instruction, as the State concedes, conflicts with Baldwin’s
holding that “A.R.S. § 13-703(E) does not impose an affirmative
duty on the defendant to prove that mitigation is sufficiently
substantial to call for leniency.” 211 Ariz. at 472 ¶ 12, 123
P.3d at 666. Tucker contends that this error is structural or,
at the very least, fundamental.
¶66 A structural error is one that “affect[s] the entire
conduct of the trial from beginning to end, and thus taint[s]
the framework within which the trial proceeds.” Henderson, 210
Ariz. at 565 ¶ 12, 115 P.3d at 605 (quoting State v. Anderson
(Anderson I), 197 Ariz. 314, 323 ¶ 22, 4 P.3d 369, 378 (2000)
(internal quotations omitted)). It “deprive[s] defendants of
basic protections without which a criminal trial cannot reliably
30
serve its function as a vehicle for guilt or innocence.” Id.
(quoting Ring III, 204 Ariz. at 552 ¶ 45, 65 P.3d at 933
(internal quotations omitted)); see also State v. Glassel, 211
Ariz. 33, 53 ¶ 74, 116 P.3d 1193, 1213 (2005) (noting in dicta
that instruction that improperly reduces state’s burden of proof
in penalty phase of capital trial is structural error), cert.
denied, 126 S. Ct. 1576 (2006). We have recognized structural
error in only a few instances. See Ring III, 204 Ariz. at 552-
53 ¶ 46, 65 P.3d at 933-34 (noting structural error when trial
judge biased; defendant denied counsel, access to counsel, self-
representation, and public trial; reasonable doubt instructions
defective; and jurors excluded because of race or views on death
penalty).
¶67 In assessing the nature of the Baldwin error, we find
relevant the recent decision of the Supreme Court in Marsh.
There, the Supreme Court stated that as long as the “method of
allocating the burdens of proof does not lessen the State’s
burden to prove every element of the offense charged” or
aggravating circumstances alleged, the state may place on the
defendant “the burden of proving mitigating circumstances
sufficiently substantial to call for leniency.” 126 S. Ct. at
2523 (quoting Walton v. Arizona, 497 U.S. 639, 650 (1990),
overruled on other grounds by Ring v. Arizona (Ring II), 536
U.S. 584, 609 (2002)).
31
¶68 The Baldwin error now challenged by Tucker was
therefore not of constitutional magnitude, but instead misstated
the statutory requirements of A.R.S. § 13-703(E). We do not
find the error structural because it did not reduce the State’s
burden of proof or preclude the jurors from considering relevant
mitigation evidence during the penalty phase. Instead, the
instruction indicated that Tucker had a burden with respect to
an issue (the propriety of a death sentence) on which Baldwin
stated that neither party bears a burden, but that the Supreme
Court held could be placed on the defendant.
¶69 We also reject Tucker’s argument that the error is
fundamental. Although assigning such a burden to Tucker was
inconsistent with A.R.S. § 13-703(E), this case does not qualify
as one of the “rare cases” in which the error goes to the
foundation of the case or the defendant was denied his right to
a fair trial or a right essential to his defense. See Henderson,
210 Ariz. at 567 ¶ 19, 115 P.3d at 607.
2. The Four-Points Instruction
¶70 Tucker argues that the trial court’s “four-points”
instruction impermissibly created a presumption of death. The
instruction stated:
You can reach a verdict in any of the following ways:
1. If no jurors find the defendant proved any
mitigation by a preponderance of the evidence, you
must return a verdict of death.
32
2. If some jurors find the defendant proved
mitigation, the jurors who found mitigation must weigh
the mitigation they found against the aggravating
factors already found. The jurors who found
mitigation may disagree about what mitigation exists.
If all the jurors who found mitigation find the
mitigation is not sufficiently substantial to call for
leniency and all the remaining jurors continue to find
no mitigation exists, you must return a verdict of
death.
3. If all jurors find mitigation exists, all must
weigh the mitigation they found against the
aggravating factors already found. The jurors may
disagree about what mitigation exists. If all the
jurors find the mitigation is not sufficiently
substantial to call for leniency, you must return a
verdict of death.
4. If all jurors find mitigation exists and all find
the mitigation they found is sufficiently substantial
to call for leniency, you must return a verdict of
life imprisonment.
¶71 The first paragraph of the four-points instruction,
Tucker contends, is flawed because it told the jurors that they
must impose death if no juror found Tucker had proved any
mitigation, while Baldwin recognized that the jurors may return
a verdict of life in prison even if the defendant presents no
mitigation evidence. 211 Ariz. at 471 ¶ 12, 123 P.3d at 665.
He also argues that the first, second, and third paragraphs of
the four-points instruction are incorrect because Baldwin allows
jurors to vote not to impose death even in the absence of any
mitigation. These arguments misapprehend Baldwin.
¶72 Under our statutory scheme, the defendant bears the
33
burden of proving the existence of mitigating circumstances, see
A.R.S. § 13-703(C), but the jurors are not restricted to only
facts presented by the defendant in finding mitigation. This
point is reflected in Baldwin’s statement that a juror could
consider mitigating circumstances “proved by the defendant or
present in the record.” 211 Ariz. at 473 ¶ 18, 123 P.3d at 667.
Consistent with Baldwin, the jurors were instructed that they
should consider “any . . . information admitted as evidence that
is relevant in determining whether to impose a sentence less
than death so long as it relates to an aspect of the Defendant’s
character , [sic] propensities, or record and any of the
circumstances of the offense.” Thus, the jurors were allowed to
consider all relevant evidence, and not merely evidence
presented by Tucker, in determining if any mitigating
circumstances existed.
¶73 The four-points instruction also did not create an
impermissible “presumption” of death by instructing the jurors
to impose a death sentence if none of them found mitigation
sufficiently substantial to warrant leniency. Section 13-703(E)
provides that the trier of fact, having found one or more
aggravating factors, “shall impose a sentence of death if the
trier of fact . . . determines that there are no mitigating
circumstances sufficiently substantial to call for leniency.”
Such a directive does not violate the Eighth Amendment so long
34
as jurors are allowed to consider any mitigating evidence. See
Marsh, 126 S. Ct. at 2525-26; Blystone v. Pennsylvania, 494 U.S.
299, 306-07 (1990).
¶74 Baldwin noted that § 13-703(E) allows a juror to vote
to impose death only if he or she concludes that there is no
mitigation sufficiently substantial to warrant leniency. 211
Ariz. at 473 ¶ 21, 123 P.3d at 667. This does not imply,
however, that a juror may vote for leniency even if he or she
finds there is no mitigation or no mitigation sufficiently
substantial to warrant a sentence of less than death. Under our
sentencing scheme, a juror must vote against death if he or she
individually determines there are any mitigating circumstances
sufficiently substantial to warrant leniency; conversely, given
the findings of one or more aggravators, a juror must vote to
impose a sentence of death if he or she determines there is no
mitigation at all or none sufficiently substantial to warrant a
sentence of less than death.
¶75 Finally, we reject Tucker’s contention that the four-
points instruction confusingly directed the jurors to weigh
mitigating and aggravating factors. Baldwin discouraged the use
of instructions informing jurors that they must find that
mitigating circumstances "outweigh" aggravating circumstances
before they can impose a sentence other than death. Id. Such
an instruction was not used here, although the four-points
35
instruction did direct the jury to "weigh" mitigating and
aggravating circumstances. The language used here did not
constitute fundamental error.
¶76 We reaffirm our statement in Baldwin that jury
instructions prospectively should avoid “outweighing” language
and should clearly explain “that a juror may not vote to impose
the death penalty unless he or she finds, in the juror’s
individual opinion, that ‘there are no mitigating circumstances
sufficiently substantial to call for leniency.’” Id. (quoting
A.R.S. § 13-703(E)).
B. Allocution
¶77 Tucker contends that he could not knowingly,
voluntarily, or intelligently waive his right of allocution
because it was ambiguously defined by the trial judge. Because
Tucker did not object below, we review for fundamental error.
Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.
¶78 During the penalty phase, the judge informed Tucker
that he was uncertain whether or not Tucker could be cross-
examined during allocution. Tucker’s counsel told Tucker that
he could be cross-examined. Tucker declined to allocute.
¶79 In Anderson II, we held that even if a defendant is
denied the right to allocute at sentencing, “there is no need
for resentencing unless the defendant can show that he would
have added something to the mitigating evidence already
36
presented.” 210 Ariz. at 350 ¶ 100, 111 P.3d at 392 (internal
quotations and citations omitted). Tucker concedes that he
cannot show what he would have added to the mitigation evidence
already presented, even had his right of allocution been more
effectively described. Although Tucker’s counsel speculates
that Tucker could have maintained his innocence or made
statements supporting residual doubt, Tucker does not have an
Eighth Amendment right to introduce such evidence at the penalty
phase. See Oregon v. Guzek, 126 S. Ct. 1226, 1232 (2006)
(stating that defendant does not have constitutional right to
present evidence of residual doubt during sentencing). Thus,
Tucker’s claim fails under Anderson II, regardless of whether he
could have been cross-examined during allocution.
C. Jury Admonition
¶80 Tucker argues that the trial judge did not follow the
proper procedural safeguards when he failed to determine on the
record whether an alternate juror had followed the admonition
before the penalty phase deliberations and to instruct the jury
to begin deliberations anew. Tucker did not object at trial
and, therefore, we review for fundamental error. Henderson, 210
Ariz. at 567 ¶ 19, 115 P.3d at 607.
¶81 Juror 15 was designated an alternate juror at the
close of the aggravation phase. When the jury retired to
deliberate during the aggravation phase, the alternate jurors
37
were told that they would not participate, but that they should
continue to follow the admonition until they were discharged.
Before the penalty phase began, the judge excused a sick juror
and instructed the returning alternate jurors to continue to
observe the admonition. At the close of the penalty phase,
Juror 15 was selected to deliberate.
¶82 The trial judge complied with Arizona Rule of Criminal
Procedure 18.5(i) when he instructed Juror 15 to follow the
admonition before excusing Juror 15 for the aggravation phase
deliberations and renewed the admonition when Juror 15 rejoined
the panel for the penalty phase. Indeed, Rule 18.5(i) requires
the trial judge to instruct an alternate juror not selected for
deliberation in either the aggravation or penalty phase to
observe the admonition until discharged. The rule does not,
however, prescribe any additional procedure that must be
followed when an alternate juror is substituted between the
aggravation and penalty phases.
¶83 The trial judge was not required to instruct the jury
to begin deliberations anew because such an instruction is
required only where a substitution is made after deliberations
have begun. Ariz. R. Crim. P. 18.5(i); see Roseberry, 210 Ariz.
at 372-73 ¶ 71, 111 P.3d at 414-15 (concluding that judge’s
failure to instruct jury to begin deliberations anew was not
error because the juror was substituted before penalty phase
38
deliberations).
D. Mitigation Verdict Form
¶84 Tucker argues that the trial judge’s failure to
provide the jury a mitigation verdict form prevents this Court
from conducting a meaningful review. We rejected this claim in
Roque, 213 Ariz. at 226 ¶ 141, 141 P.3d at 401. See also
Roseberry, 210 Ariz. at 373 n.12 & ¶ 74, 111 P.3d at 415 & n.12.
E. Prosecutorial Misconduct
¶85 Tucker contends that the prosecutor committed
misconduct during the penalty phase closing arguments by stating
that Tucker’s crimes would “go down in history as some of the
worst.” We disagree.
¶86 Before the penalty phase closing arguments, the trial
judge instructed the jurors that the lawyers’ statements during
closing arguments were neither law nor evidence. During the
arguments, the prosecutor discussed Tucker’s lack of a criminal
record as a mitigating circumstance and stated that “every
criminal has a first conviction. And the severity of this
defendant’s first conviction, the severity of the crimes for
which he has been convicted or found guilty beyond a reasonable
doubt of will go down in history as some of the worst.” Tucker
promptly objected, but the judge overruled the objection and
again instructed the jurors that the lawyers’ comments during
closing arguments were not law or evidence.
39
¶87 The following day, Tucker moved for a mistrial,
arguing that the statement improperly interjected the
prosecutor’s opinion and was irrelevant and prejudicial. The
trial judge denied the motion.
¶88 This Court will reverse a conviction based on
prosecutorial misconduct when there is misconduct by the
prosecutor and “a reasonable likelihood . . . that the
misconduct could have affected the jury’s verdict, thereby
denying [the] defendant a fair trial.” Anderson II, 210 Ariz.
at 340 ¶ 45, 111 P.3d at 382 (internal quotations and citations
omitted). Because the trial court is in the best position to
determine whether an attorney’s remarks require a mistrial, we
will not disturb its judgment absent an abuse of discretion.
State v. Robert Jones, 197 Ariz. 290, 305 ¶ 37, 4 P.3d 345, 360
(2000). The same principles apply to review of a trial court’s
denial of a mistrial in a capital sentencing proceeding. See
Roque, 213 Ariz. at 228 ¶ 152, 141 P.3d at 403.
¶89 Read in context, the prosecutor’s statement was a
comment on the weight the jurors should give the criminal
history mitigating circumstance, rather than an improper
personal comment on Tucker’s criminal history. In any event,
the statement was not unduly prejudicial and did not contribute
to the jury’s verdict because the trial judge advised the jury
both before and after the closing arguments that the comments
40
made during the closing were not law or evidence. See State v.
Newell, 212 Ariz. 389, 403 ¶ 68, 132 P.3d 833, 847 (2006)
(stating that the trial judge properly instructed the jury that
statements during closing arguments were not evidence), cert.
denied, 127 S. Ct. 663 (2006). We presume that jurors follow
the judge’s instructions. Id. Moreover, Tucker challenges the
propriety of only a single statement, and there was substantial
evidence supporting the aggravating circumstances and minimal
mitigating evidence. See infra ¶¶ 97-119. Thus, the challenged
statement does not warrant a reversal of the jury’s verdicts.
F. Victim Impact Statements
¶90 Tucker contends that the admission of victim impact
statements violates Blakely v. Washington, 542 U.S. 296 (2004),
and Crawford, 541 U.S. 36, and that one of the statements here
was unduly prejudicial.
¶91 During the penalty phase, five victims made
statements. Three of the victims read their own statements in
court, while third parties read the written statements of two of
the victims. Because Tucker did not object to the alleged
errors at trial, we review for fundamental error. Henderson,
210 Ariz. at 567 ¶ 19, 115 P.3d at 607.
¶92 Evidence about the victim and the effect of the crime
on the victim’s family is admissible during the penalty phase as
rebuttal to the defendant’s mitigation evidence. A.R.S. § 13-
41
703.01(R) (Supp. 2004); see Roque, 213 Ariz. at 221 ¶ 114, 141
P.3d at 396; Ellison, 213 Ariz. at 140 ¶ 111, 140 P.3d at 923.
The evidence may not, however, be so unduly prejudicial that it
renders the trial fundamentally unfair. Payne v. Tennessee, 501
U.S. 808, 825 (1991).
¶93 In Roque, we rejected the claim that the admission of
victim impact statements violates Blakely because the statements
have the “effect” of an aggravating circumstance. 213 Ariz. at
221-22 ¶ 115, 141 P.3d at 396-97.
¶94 Tucker’s Crawford claim also fails. “[T]he
Confrontation Clause does not apply to rebuttal testimony at a
sentencing hearing because (1) the penalty phase is not a
criminal prosecution, (2) historical practices support the use
of out-of-court statements in sentencing, and (3) the sentencing
body requires complete information to make its determination.”
McGill, 213 Ariz. at 159 ¶ 52, 140 P.3d at 942; see id. at 158
¶¶ 47, 49, 140 P.3d at 941 (stating that a criminal defendant
does not have a right to confront witness at the penalty phase
under either the Arizona or Federal Constitution).
¶95 Finally, the victim impact statement challenged as
unduly prejudicial stated: “I know that Eugene probably honed
in on my sister’s insecurities to have his way with her.” The
statement, which addressed Ann Marie’s insecurity, was not
unduly prejudicial under Payne.
42
III. Independent Review
¶96 Because Tucker committed his crimes before August 1,
2002, and was later resentenced, this Court must independently
review the aggravating and mitigating circumstances and the
propriety of the death sentences. A.R.S. § 13-703.04(A) (Supp.
2004); 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 7(B).
A. Aggravating Circumstances
¶97 The State identified four aggravating circumstances
for each of the three victims. As noted supra ¶¶ 26 and 41, the
(F)(3) aggravator for each victim and the (F)(6) aggravator for
Roscoe’s and Cindy’s murders were not proven beyond a reasonable
doubt.
1. Prior Conviction Subject to a Life Sentence
¶98 To establish the (F)(1) aggravator, the state must
prove beyond a reasonable doubt that “[t]he defendant has been
convicted of another offense in the United States for which
under Arizona law a sentence of life imprisonment or death was
imposable.” A.R.S. § 13-703(F)(1). As long as the prior
conviction is entered before the sentencing hearing, the
conviction may support the (F)(1) aggravator even if it is
committed before, contemporaneous with, or after the capital
homicide. State v. Moody, 208 Ariz. 424, 470 ¶ 215, 94 P.3d
1119, 1165 (2004); State v. Gretzler, 135 Ariz. 42, 57 n.2, 659
P.2d 1, 16 n.2 (1983).
43
¶99 Tucker was found guilty of sexual assault pursuant to
A.R.S. § 13-1406 (Supp. 1999) and sentenced to twenty-five years
to life imprisonment. We affirmed this conviction and sentence
in Tucker I. 205 Ariz. at 159 ¶ 1, 170 ¶ 69, 68 P.3d at 112,
123. Thus, the (F)(1) aggravator was proven beyond a reasonable
doubt.
2. Especially Heinous, Cruel, or Depraved
¶100 The “especially cruel” prong of the (F)(6) aggravator
focuses on the victim’s state of mind. Danny Jones, 185 Ariz.
at 487, 917 P.2d at 216. To establish this prong, the state
must prove beyond a reasonable doubt that the defendant knew or
should have known that the victim would experience mental
anguish or physical pain and that the victim was conscious
during some part of the violence. Ellison, 213 Ariz. at 141-42
¶ 119, 140 P.3d at 924-25; Trostle, 191 Ariz. at 18, 951 P.2d at
883.
¶101 Ann Marie was discovered partially clothed and face
down with her hands behind her back on her bedroom floor. She
was lying in a pool of blood. There was evidence of a struggle
in the bedroom, as well as blood spatter and cast-off on the
walls. Ann Marie had been bound around the wrists, most likely
with handcuffs, and she had been gagged with duct tape. Ann
Marie also had ligature marks consistent with a phone cord
around her neck. The medical examiner opined that the ligature
44
was likely used to control Ann Marie’s consciousness.
¶102 Testimony established that Ann Marie suffered trauma
caused by a blunt object to the back of the head, resulting in
at least four separate and deep lacerations. She also sustained
“painful” bruises and abrasions on the exterior and interior of
her vagina and rectum. Ann Marie was alive when these injuries
were inflicted, but the medical examiner could not definitively
state whether she was conscious. Ann Marie was fatally shot at
close range in the jaw and behind the left ear. One of the
bullets lacerated her brain stem. After she was shot, Ann Marie
was rolled into the position in which she was discovered.
¶103 In our independent review we find that Ann Marie was
conscious when she was bound and strangled. See Ellison, 213
Ariz. at 142 ¶ 121, 140 P.3d at 925 (finding victim conscious
when bound in order to prevent struggle). We also find that Ann
Marie’s injuries indicate that she suffered extreme physical
pain when she was bludgeoned, sexually assaulted, and strangled.
Accordingly, the State established beyond a reasonable doubt
that Ann Marie’s murder was “especially cruel,” and we need not
also determine whether her murder is “especially heinous or
depraved.” McGill, 213 Ariz. at 155 n.1 ¶ 32, 140 P.3d at 938
n.1 (recognizing that the (F)(6) aggravator is disjunctive).
3. Multiple Murders
¶104 To establish the (F)(8) multiple murders aggravator,
45
the state must prove beyond a reasonable doubt that “[t]he
defendant has been convicted of one or more other homicides, as
defined in [A.R.S.] § 13-1101 [Supp. 1999], which were committed
during the commission of the offense.” A.R.S. § 13-703(F)(8)
(Supp. 1999). “[T]he homicides must be temporally, spatially,
and motivationally related, taking place during ‘one continuous
course of criminal conduct.’” State v. Prasertphong, 206 Ariz.
167, 170 ¶ 15, 76 P.3d 438, 441 (2003) (quoting Rogovich, 188
Ariz. at 45, 932 P.2d at 801); see also Anderson II, 210 Ariz.
at 351-52 ¶ 108, 111 P.3d at 393-94 (finding spatial requirement
satisfied when three victims killed on same property); State v.
Dann, 206 Ariz. 371, 373 ¶ 9, 79 P.3d 58, 60 (2003) (finding
temporal requirement satisfied when there was a “short,
uninterrupted span of time in which” victims were killed and
motivational requirement satisfied when defendant went to a
residence to kill one victim and killed two additional victims
merely because they were present or witnesses). If proven, the
(F)(8) aggravator applies to each of the homicides. State v.
Djerf, 191 Ariz. 583, 597 ¶ 57, 959 P.2d 1274, 1288 (1998).
¶105 The record demonstrates that all three murders
occurred on the same day and in the same apartment. And, as we
recognized in Tucker I, “it is difficult to imagine a motive for
the killings [of Roscoe and Cindy] unrelated to the murder of
AnnMarie [sic].” 205 Ariz. at 169 ¶ 66, 68 P.3d at 122.
46
Accordingly, the State proved the (F)(8) aggravator beyond a
reasonable doubt.
B. Mitigating Circumstances
¶106 The defendant has the burden to prove mitigating
circumstances by a preponderance of the evidence. A.R.S. § 13-
703(C); Baldwin, 211 Ariz. at 472 ¶ 14, 123 P.3d at 666. Any
relevant mitigation evidence that supports a sentence less than
death is admissible. Ellison, 213 Ariz. at 144 ¶ 132, 140 P.3d
at 927. While there need not be a causal nexus between the
mitigation evidence and the crime, id., such a relationship may
impact “the quality and strength of the mitigation evidence,”
Newell, 212 Ariz. at 405 ¶ 82, 132 P.3d at 849.
¶107 Tucker proffered five mitigating circumstances: (1)
age; (2) no prior criminal record; (3) good behavior while in
prison; (4) good family and interpersonal relationships; and (5)
a narcissistic personality disorder.
¶108 The defendant’s age is a statutory mitigating
circumstance, A.R.S. § 13-703(G)(5), which may be “substantial
and relevant,” Poyson, 198 Ariz. at 80 ¶ 37, 7 P.3d at 89. In
considering the defendant’s chronological age, we also examine
the defendant’s “level of intelligence, maturity, past
experience, and level of participation in the killings.” Id.
¶109 Tucker’s father, Tucker Sr., testified that Tucker was
born on July 5, 1981. Tucker therefore turned eighteen years
47
old just ten days before the murders, yet Tucker’s counsel did
not stress this fact.
¶110 Tucker Sr. insisted that his son did not have a
learning disability, but Dr. Thomas Gaughn, a defense
psychiatrist, stated that Tucker had a learning disability and
received special education services in school. There was no
significant testimony about Tucker’s level of maturity, other
than the fact that he lived at home, took law enforcement
courses, and desired to join the military after school.
Although there was minimal additional evidence, Tucker’s
chronological age is sufficient to establish this mitigating
circumstance by a preponderance of the evidence.
¶111 With respect to the second proffered circumstance,
this Court has found that a defendant’s lack of a prior criminal
record may be a mitigating circumstance. See State v. Davolt,
207 Ariz. 191, 216 ¶ 113, 84 P.3d 456, 481 (2004); Prasertphong,
206 Ariz. at 171 ¶ 20, 76 P.3d at 442. Tucker established that
he had no prior criminal record by a preponderance of the
evidence.
¶112 For the third mitigating circumstance, Tucker’s good
behavior while in prison, Tucker Sr. testified that his son was
adapting and behaving well in prison. Dr. Gaughn confirmed that
Tucker had “an absence of problems” while in prison.
¶113 Because all prisoners are expected to behave and adapt
48
to prison life, we typically do not give much weight to a
defendant’s good behavior while in prison. E.g., State v.
Harrod, 200 Ariz. 309, 319 ¶ 53, 26 P.3d 492, 502 (2001)
(stating that trial court need not give this circumstance much
weight because all prisoners are expected to behave), rev’d on
other grounds, 536 U.S. 953 (2002); State v. White, 194 Ariz.
344, 355 ¶ 47, 982 P.2d 819, 830 (1999) (recognizing that
defendant’s good behavior in prison may be mitigating). We
therefore afford this mitigating circumstance minimal weight.
¶114 On the fourth mitigating circumstance, Tucker’s good
relationships with family and friends, Tucker Sr. testified that
his son had friends in grade and middle school and was a
“normal” child. He said that his son had to change high schools
after being “jumped” by a gang, but insisted that Tucker’s
grades improved and he made friends after changing schools.
Tucker Sr. further stated that Tucker had “excellent”
interactions with his family and Tucker’s sisters had visited
him in prison.
¶115 The State countered by introducing evidence that
Tucker got into fights during elementary school and once injured
another student with a pencil sharpener or eraser.
Additionally, Tucker Sr. acknowledged that he “had very little
contact with” his son in the years preceding his arrest and had
to place dead bolt locks on the interior doors of the family’s
49
home after his children accused each other of stealing.
¶116 A defendant’s relationship with his or her family and
friends may be a mitigating circumstance, yet the Court has
often found that this circumstance should be given little
weight. E.g., State v. Cañez, 202 Ariz. 133, 164 ¶ 120, 42 P.3d
564, 595 (2002); State v. Carriger, 143 Ariz. 142, 162, 692 P.2d
991, 1011 (1984). Thus, in light of the conflicting testimony,
we afford this circumstance minimal significance.
¶117 With respect to the final mitigating circumstance, Dr.
Gaughn testified that Tucker suffers from a narcissistic
personality disorder. According to Dr. Gaughn, individuals with
this disorder tend to inflate their abilities, become easily
emotional, and have difficulty interacting with others and
adapting to their surroundings. They may also have “unrealistic
belief[s]” about their own accomplishments and “unreasonable
expectation[s]” of favorable treatment. Dr. Gaughn did not
believe that Tucker had an anti-social personality disorder and
opined that a narcissistic personality disorder may be treatable
in certain cases. On cross-examination, he speculated that
Tucker could have had an intensely negative emotional reaction
to Ann Marie’s rejection, consistent with a narcissistic
personality disorder.
¶118 Under A.R.S. § 13-703(G)(1), it is a statutory
mitigating circumstance if “[t]he defendant’s capacity to
50
appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of law was significantly impaired,
but not so impaired as to constitute a defense to prosecution.”
Personality or character disorders, however, typically do not
satisfy this mitigator, State v. Kayer, 194 Ariz. 423, 437 ¶ 49,
984 P.2d 31, 45 (1999), and the absence of a causal connection
between the disorder and the crime diminishes the weight that
this Court affords such disorders, see Roque, 213 Ariz. at 231 ¶
169, 141 P.3d at 406 (recognizing that defendant need not
establish causal connection between mental capacity and crime,
but court may consider such connection in evaluating mitigation
evidence). Although there was testimony that Tucker may have
had an intensely negative emotional reaction to Ann Marie’s
rejection consistent with a narcissistic personality disorder,
such testimony did not establish a causal connection. Moreover,
Dr. Gaughn did not state that Tucker’s disorder impaired his
ability to appreciate the wrongfulness of his conduct or to
conform it to the law at the time of the murders. Thus,
Tucker’s disorder does not rise to the level of a statutory
mitigating circumstance, and we give it little weight as a non-
statutory mitigating circumstance.
¶119 In sum, the most compelling mitigating circumstances
were Tucker’s age and lack of a prior criminal record.
51
C. Propriety of the Death Sentences
¶120 Although we have set aside the (F)(3) aggravator for
all three murders and the (F)(6) aggravator for Roscoe’s and
Cindy’s murders, we will independently review the propriety of
Tucker’s death sentences to determine whether the mitigation is
sufficiently substantial to call for leniency. See A.R.S. § 13-
703.04(B). In doing so, we will “consider the quality and the
strength, not simply the number, of aggravating and mitigating
factors.” State v. Greene, 192 Ariz. 431, 443 ¶ 60, 967 P.2d
106, 118 (1998). We conclude that Tucker’s mitigation evidence
is not sufficiently substantial to warrant leniency in light of
the three aggravators that remain for Ann Marie’s murder and the
two aggravators that remain for Roscoe’s and Cindy’s murders.
Thus, we uphold Tucker’s three death sentences.
IV. Arguments Preserved for Federal Review
¶121 Tucker raises eleven other constitutional challenges
to preserve for federal review. These arguments are set forth
in the Appendix.
V. Conclusion
¶122 For the reasons stated above, we affirm each of
Tucker’s three death sentences.
_______________________________________
W. Scott Bales, Justice
52
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Jon W. Thompson, Judge2
2
Pursuant to Article 6, Section 3, of the Arizona
Constitution, the Honorable Jon W. Thompson, Judge of the
Arizona Court of Appeals, Division One, was designated to sit in
this matter.
53
APPENDIX
Tucker raises the following claims to preserve them for
federal review:
(1) The death penalty is an irreversible denial of human
rights and violates the Eighth Amendment and international
law. The Court found it unnecessary to consider whether the
death penalty violates international law in State v.
Richmond, 136 Ariz. 312, 322, 666 P.2d 57, 67 (1983), and
rejected the argument that the death penalty violates the
Eighth Amendment in State v. Towery, 186 Ariz. 168, 190, 920
P.2d 290, 312 (1996).
(2) The indictment violated the Fifth, Sixth, Eighth, and
Fourteenth Amendments because it failed to allege the
aggravating factors. The Court rejected this argument in
McKaney v. Foreman ex rel. County of Maricopa, 209 Ariz. 268,
271 ¶¶ 13, 15, 100 P.3d 18, 21 (2004).
(3) Tucker’s sentences constitute an impermissible violation
of the Ex Post Facto application of the law offending the
Eighth and Fourteenth Amendments. This Court rejected this
argument in Ellison, 213 Ariz. at 146 app. A, 140 P.3d at
929.
(4) Arizona’s death penalty statute is unconstitutional under
all circumstances because it is cruel and unusual. This
Court and the United States Supreme Court have rejected this
argument. Gregg v. Georgia, 428 U.S. 153, 186-87 (1976);
State v. Salazar, 173 Ariz. 399, 411, 844 P.2d 566, 578
(1992).
(5) The death penalty is arbitrarily and irrationally imposed
in Arizona in violation of the Eighth and Fourteenth
Amendments and Article 2, Sections 1, 4, and 15, of the
Arizona Constitution. The Court rejected this argument in
State v. Beaty, 158 Ariz. 232, 247, 762 P.2d 519, 534 (1988).
(6) The prosecutor’s discretion to seek the death penalty has
no standards and thereby violates the Eighth and Fourteenth
Amendments and Article 2, Sections 1, 4, and 15, of the
Arizona Constitution. The Court rejected this argument in
Cromwell, 211 Ariz. at 192 ¶ 58, 119 P.3d at 459.
54
(7) The death penalty discriminates against the poor, young,
and male. The Court rejected this argument in State v.
Stokley, 182 Ariz. 505, 516, 898 P.2d 454, 465 (1995).
(8) The absence of proportionality review denies capital
defendants rights guaranteed by the Fifth, Eighth, and
Fourteenth Amendments and Article 2, Section 15, of the
Arizona Constitution. The Court has rejected this argument.
State v. Gulbrandson, 184 Ariz. 46, 73, 906 P.2d 579, 606
(1995) (citing Salazar, 173 Ariz. at 416, 844 P.2d at 583).
(9) A.R.S. § 13-703.01 is unconstitutional because it does
not require that aggravators are found beyond a reasonable
doubt to outweigh the mitigators. The Court has rejected
this argument. White, 194 Ariz. at 355-56 ¶ 49, 982 P.2d at
830-31.
(10) Execution by lethal injection is cruel and unusual
punishment. The Court rejected this claim in State v.
Hinchey, 181 Ariz. 307, 315, 890 P.2d 602, 610 (1995).
(11) The failure to instruct on residual doubt violates due
process. The United States Supreme Court rejected this claim
in Guzek, 126 S. Ct. at 1232.
55