State v. McGill

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-04-0405-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2003-005315
LEROY DEAN McGILL, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Frank T. Galati, Judge

AFFIRMED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Capital Litigation Section
Jim D. Nielsen, Assistant Attorney General
Attorneys for the State of Arizona

SUSAN M. SHERWIN, MARICOPA COUNTY LEGAL ADVOCATE Phoenix
By Thomas J. Dennis, Deputy Legal Advocate
Attorneys for Leroy Dean McGill
________________________________________________________________

M c G R E G O R, Chief Justice

¶1 On November 10, 2004, a jury sentenced Leroy McGill to

death for the murder of Charles Perez. Pursuant to Arizona Rule

of Criminal Procedure 31.2(b), McGill’s appeal to this Court is

automatic. This Court has jurisdiction pursuant to Article 6,

Section 5.3 of the Arizona Constitution, and section 13-4031

(2001) of the Arizona Revised Statutes.
 I.

A.

¶2 In July 2002, thirty-nine–year-old Leroy McGill was

living in Sophia Barnhart’s house. His girlfriend, Jonna

“Angel” Hardesty, also lived there, as did Justin Johnson and

Barnhart’s oldest son, Dean. Jack Yates had a small one-bedroom

apartment in a duplex within walking distance of Barnhart’s

home. Hardesty’s brother, Jeff Uhl, sometimes stayed in Yates’

apartment. Eddie and Kim Keith, along with their two daughters,

also stayed with Yates, as did Charles Perez and his girlfriend,

Nova Banta. Yates had his own bedroom, and the others slept in

a common room that also served as kitchen and living room.

¶3 Perez and Banta had recently accused McGill and

Hardesty of stealing a shotgun from the Yates apartment. This

accusation exacerbated an already contentious relationship

between Banta and Hardesty.

¶4 On July 12, 2002, McGill, Hardesty, Barnhart, and

Johnson spent the evening at Barnhart’s house smoking marijuana

purchased from Perez. At approximately 3:30 a.m. on July 13,

McGill went to Yates’ apartment. Uhl and Eddie Keith came out

of the apartment to talk with McGill. McGill told Keith to get

his wife and children out of the apartment because he “was going

to teach [Perez] and [Yates] a lesson, that nobody gets away

with talking about [McGill and Hardesty].” In response to

2
Keith’s pleading, McGill agreed to spare Yates, but said it was

too late for Perez. McGill also told Keith that he “was the

only one who knew about it and that if anybody said anything

about it, that [McGill] would know who said it,” then remarked

that Keith “had pretty little girls.” Keith and his family fled

the apartment.

¶5 Uhl admitted McGill into the apartment shortly

thereafter. Perez and Banta were sitting next to each other on

a couch that was next to the front door. Yates was also inside

and either lying down on another couch or in his bedroom. Banta

testified that McGill “turned around and looked at me and

[Perez] and said [Perez] shouldn’t talk behind other people’s

backs, and he poured the gasoline on us and quickly lit a match

and threw it at us.” McGill had added pieces of a styrofoam cup

to the gasoline to create a napalm-like substance that would

stick to his victims and cause them more pain. Perez and Banta,

both engulfed in flames, ran out of the apartment.

¶6 Yates and Uhl also escaped the apartment, which had

caught on fire. Yates put out the flames on Banta using a

blanket. Mary Near, the occupant of the other apartment in the

duplex, awoke to the smell of smoke, quickly dressed, and ran

from her apartment, which was also on fire. When firefighters

arrived, the apartment was fully engulfed in flames.

¶7 At the hospital, Perez, screaming in pain, pleaded,

3
“Help me, help me. Get the pain away.” Burns covered eighty

percent of Perez’s body and caused his death on July 14, 2002.

Banta was also conscious and in extreme pain; third degree burns

covered approximately three-quarters of her body. At the

hospital, Banta identified McGill as the person who set her on

fire.

¶8 Meanwhile, at Barnhart’s house, Hardesty told Johnson

that McGill had just called and asked “if it smelled like

burning flesh.” Referring to Johnson, McGill asked Hardesty or

Barnhart, “Is he going to talk?” Johnson testified that

someone, either McGill, Hardesty, or Barnhart, threatened him

with harm if he reported anything about the murder.

B.

¶9 A grand jury indicted McGill for the first degree

premeditated murder of Charles Perez, the attempted first degree

murder of Nova Banta, two counts of arson, and the endangerment

of Jack Yates, Jeffrey Uhl, and Mary Near.

¶10 As a prosecution witness, Nova Banta identified Leroy

McGill as the man who attacked her. She also showed the jury

the injuries she sustained from the fire. Dr. Phillip Keen

testified to the nature and extent of Perez’s injuries. During

his testimony, he discussed photographs of Perez’s corpse, once

before the jury saw the photographs, and then again as the State

displayed them. The defense put on only one witness, Sophia

4
Barnhart, who claimed that McGill was not involved with the

fire. After deliberating less than an hour, the jury returned a

guilty verdict on all counts.

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

the jury unanimously found that McGill had been convicted of

prior serious offenses, Ariz. Rev. Stat. (A.R.S.) § 13-703.F.2

(2001); that he knowingly created a grave risk of death to

persons other than the victim, A.R.S. § 13-703.F.3; and that he

committed the offense in both an “especially cruel” and an

“especially heinous or depraved” manner, A.R.S. § 13-703.F.6.

¶12 In the penalty phase, McGill put on evidence that he

had an abusive childhood; that he was psychologically immature

and, as a result, his girlfriend had greater than normal

influence over him; that he suffered from some degree of mental

impairment; that he performed well in institutional settings;

and that his family cares about him. The State put on rebuttal

evidence, including evidence that while awaiting trial McGill

attempted to have a potential witness against him killed. The

prosecution also read into the record a letter from Perez’s

sister, which expressed the sorrow Perez’s family experienced as

a result of his death. The jury found that McGill’s mitigation

evidence was not sufficiently substantial to call for leniency

and, therefore, determined that death was the appropriate

sentence. See A.R.S. § 13-703.01.H (Supp. 2005).

5
 II.

¶13 McGill raises issues concerning each phase of his

trial. We first address his assertion that the trial court

abused its discretion in dismissing one of the jurors for cause.

Next, we consider issues related to the assertion that McGill

endangered Uhl, Yates, and Near by starting a fire in their

building. We also address issues related to the State’s

allegation that McGill murdered Perez in an especially heinous,

cruel, or depraved manner, see A.R.S. § 13-703.F.6. Finally, we

consider issues arising from the penalty phase and independently

determine whether the mitigation is sufficiently substantial to

merit leniency. A.R.S. §§ 13-703.E, -703.04 (Supp. 2005).

A.

¶14 McGill contends that the trial court abused its

discretion in dismissing Juror 58 for cause. “[T]he State may

exclude from capital sentencing juries that ‘class’ of veniremen

whose views would prevent or substantially impair the

performance of their duties in accordance with their

instructions or their oaths.” Wainwright v. Witt, 469 U.S. 412,

424 n.5 (1985). This Court reviews a decision to excuse a juror

for cause for abuse of discretion. State v. Medina, 193 Ariz.

504, 511 ¶ 18, 975 P.2d 94, 101 (1999).

¶15 Juror 58 stated that, if called upon to impose the

death penalty, she would have to choose between being sanctioned

6
by the government or punished by God. She said that she could

follow the law, but only because “you guys would come after me.

I would—if it was the law, I would, but I’d still have like the

fear of God on my shoulders.” When asked explicitly, “Do you

think that your ability to do the things that you’re supposed to

do as a juror—do you think that ability would be impaired,”

Juror 58 said, “Yes.” The trial court did not abuse its

discretion in determining that Juror 58’s beliefs would

“substantially impair the performance of [her] duties,”

Wainwright, 469 U.S. at 424 n.5.

B.

¶16 We consider three issues related to the State’s

allegation that McGill placed Uhl, Yates, and Near in danger by

starting a fire in their building. McGill asserts that the

trial court erred in denying his motion to dismiss the three

counts of endangerment. He also argues that convicting him of

endangerment under A.R.S. § 13-1201.A (2001) and then using the

same conduct to establish his eligibility for the death penalty

under A.R.S. § 13-703.F.3 violates the Double Jeopardy Clause of

the Fifth Amendment, U.S. Const. amend. V. We also

independently determine whether, in killing Perez, McGill

“knowingly created a grave risk of death to another person or

persons in addition to the person murdered during the commission

of the offense,” A.R.S. § 13-703.F.3.

7
 1.

¶17 McGill argues that the State presented insufficient

evidence to support the three endangerment convictions. “A

person commits endangerment by recklessly endangering another

person with a substantial risk of imminent death or physical

injury.” A.R.S. § 13-1201.A. The statute requires the State to

show that McGill was “aware of and consciously disregard[ed] a

substantial and unjustifiable risk that” his actions would place

another person in substantial risk. A.R.S. § 13-105.9(c) (2002)

(defining recklessly). When reviewing for sufficiency of the

evidence, we determine whether, viewing the evidence in the

light most favorable to the prosecution, a rational trier of

fact could have convicted the defendant of the crime in

question. State v. Montaño, 204 Ariz. 413, 423 ¶ 43, 65 P.3d

61, 71 (2003).

¶18 The facts presented permitted the jury to convict

McGill of endangerment of Uhl and Yates. McGill knew that Uhl

and Yates were in the apartment before he threw gasoline on

Banta and Perez. He told Detective Thomas Kulesa that he saw

Yates go into the bedroom shortly before the fire, and Uhl

answered the door to let McGill into the apartment. Also, in

warning the Keiths to leave the apartment, McGill demonstrated

that he knew his actions would create a danger for those inside.

Thus, sufficient evidence permitted a rational trier of fact to

8
convict McGill of endangerment with regard to Uhl and Yates.

¶19 McGill asserts that the trial judge should have

dismissed the endangerment count involving Near because McGill

did not know that anyone lived in the other apartment. Even

assuming the truth of that statement, a reasonable jury could

find that, in starting a fire in such a small building, McGill

was “aware of and consciously disregard[ed] a substantial and

unjustifiable risk,” A.R.S. § 13-105.9(c), that the other

apartment would be occupied and that his actions would create a

“substantial risk of imminent death or physical injury” for its

occupant, A.R.S. § 13-1201.A. Thus, sufficient evidence

permitted a rational trier of fact to convict McGill of

endangerment with regard to Near.

2.

¶20 McGill next argues that the State punished him twice

for the same offense and thus violated his protection against

double jeopardy. According to McGill, he was punished once for

putting Uhl and Yates in danger when he was sentenced to two

years of incarceration for each of the endangerment counts under

A.R.S. § 13-1201.A and again when he was sentenced to death,

based in part on the zone of danger aggravator under A.R.S. §

13-703.F.3.

¶21 The Double Jeopardy Clause, U.S. Const. amend. V,

protects defendants against both multiple prosecutions and

9
multiple punishments for the same offense. Witte v. United

States, 515 U.S. 389, 391 (1995). This Court determines de novo

whether the State violated a defendant’s right against double

jeopardy. State v. Moody, 208 Ariz. 424, 437 ¶ 18, 94 P.3d

1119, 1132 (2004). Because violation of the Double Jeopardy

Clause would be fundamental error, we consider the issue even

though McGill raised it for the first time on appeal. See State

v. Bible, 175 Ariz. 549, 572, 858 P.2d 1152, 1175 (1993).

¶22 As a preliminary matter, we must decide whether to

compare the elements of the endangerment offense with only the

F.3 aggravator or with capital murder as a whole. The United

States Supreme Court has held that “Arizona’s enumerated

aggravating factors operate as ‘the functional equivalent of an

element of a greater offense.’” Ring v. Arizona, 536 U.S. 584,

609 (2002) (quoting Apprendi v. New Jersey, 530 U.S. 466, 494

n.19 (2000)). Thus, because we regard the F.3 aggravator as an

element of capital murder, and not as a separate offense, we

will compare the elements of endangerment to the elements of

capital murder to determine whether they are the same offense.

See also Sattazahn v. Pennsylvania, 537 U.S. 101, 108–09 (2003)

(holding that aggravating factors are not independent offenses

for purposes of double jeopardy analysis).

¶23 “[W]here the two offenses for which the defendant is

punished or tried cannot survive the ‘same-elements’ test, the

10
double jeopardy bar applies.” United States v. Dixon, 509 U.S.

688, 696 (1993). In applying the same-elements test, we compare

the elements required by statute to establish each offense. Id.

at 697. If “each offense contains an element not contained in

the other,” then they are two separate offenses. Id. at 696.

¶24 To satisfy the statutory elements of endangerment, a

person must “recklessly endanger[] another person with a

substantial risk of imminent death or physical injury.” A.R.S.

§ 13-1201.A (emphasis added). First degree murder requires that

a person knowingly cause the death of another with

premeditation. A.R.S. § 13-1105.A (2001 & Supp. 2005). When

the State proves at least one aggravator defined in A.R.S. § 13-

703.F, murder is punishable by death. A.R.S. § 13-703.01.D.

¶25 A person guilty of endangerment has not necessarily

satisfied any element of capital murder because one may be

guilty of endangerment by recklessly creating a substantial risk

of physical injury; to satisfy the functional equivalent of an

element of capital murder, the F.3 aggravator, a person must

knowingly create a grave risk of death. Likewise, a person

guilty of capital murder has not necessarily satisfied the

elements of endangerment because one may be guilty of capital

murder if one of the aggravators other than F.3 applies. See,

e.g., A.R.S. § 13-703.F.2 (defendant “was previously convicted

of a serious offense”); -703.F.5 (committing the murder “as

11
consideration for the receipt, or in expectation of the receipt,

of anything of pecuniary value”); -703.F.6. (committing the

murder in “an especially heinous, cruel or depraved manner”).

Thus, under the same-elements test, McGill may be punished both

for endangering Uhl and Yates and for murdering Perez without

violating the Double Jeopardy Clause.

3.

¶26 We independently determine whether the State

established the F.3 aggravator. A.R.S. § 13-703.04; State v.

Roseberry, 210 Ariz. 360, 373 ¶ 77, 111 P.3d 402, 415 (2005).

Section 13-703.F.3 directs the trier of fact to consider it an

aggravating circumstance if “[i]n the commission of the 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 the offense.” The grave risk of death must be the

result of the murderous act and the person at risk must be a

person other than an intended victim. See, e.g., State v.

Carreon, 210 Ariz. 54, 67 ¶ 63, 107 P.3d 900, 913 (2005)

(collecting recent cases). Because the statute requires that

McGill knowingly created the risk, the State must show that

McGill was aware that bystanders were present and “believe[d]

that his . . . conduct” would create a grave risk of death to

those bystanders. A.R.S. § 13-105.9(b) (defining knowingly);

see State v. Wood, 180 Ariz. 53, 69, 881 P.2d 1158, 1174 (1994).

12
¶27 The trial court correctly granted McGill’s motion to

dismiss the aggravator as it related to Mary Near because McGill

did not know that the attached apartment was occupied. Indeed,

the prosecutor conceded, “I don’t have any evidence that he knew

that Mary Near was there.”

¶28 McGill did know that Uhl was in the apartment because

the two men had just finished a conversation with Eddie Keith

before McGill entered the apartment. During that conversation,

McGill agreed to spare Yates, which indicates he knew Yates was

in the apartment. Also, McGill told Detective Kulesa that just

before the fire, he saw Yates go into the bedroom. McGill

apparently did not intend to harm either Uhl or Yates. Thus,

the only questions remaining are whether McGill should have

known that he would create a risk of grave harm to the two men

and whether he did create such a risk.

¶29 McGill set two people on fire using gasoline in a very

small apartment. He used enough gasoline to cause the entire

structure to quickly become engulfed in flames. On the other

hand, both of these adult men easily escaped the burning

apartment. Yates was awake behind a closed door, and Uhl had

just let McGill into the apartment and was aware of McGill’s

plan based on his conversation with him moments earlier. The

law does not require, however, that McGill’s actions be the most

risky imaginable. McGill “[wa]s aware or believe[d],” A.R.S. §

13
13-105.9(b), that setting the structure on fire “created a grave

risk of death,” A.R.S. § 13-703.F.3, for Uhl and Yates. The

State proved this aggravator beyond a reasonable doubt.

C.

1.

¶30 We next review issues related to the State’s

allegation that McGill murdered Perez in an especially heinous,

cruel, or depraved manner, see A.R.S. § 13-703.F.6. McGill

argues that the trial court abused its discretion by admitting

photographs of Perez’s body into evidence. In assessing the

admissibility of photographs, courts consider the photographs’

relevance, the likelihood that the photographs will incite the

jurors’ passions, and the photographs’ probative value compared

to their prejudicial impact. State v. Davolt, 207 Ariz. 191,

208 ¶ 60, 84 P.3d 456, 473 (2004). This Court reviews a trial

court’s rulings on the admissibility of evidence for abuse of

discretion. Id.

¶31 During the guilt phase, in what the trial court

described as “an overabundance of caution,” it did not admit a

picture of Perez’s face, but did admit photographs of Perez’s

hand, his full body, his back, and his leg. During the

aggravation phase, the court admitted the picture of Perez’s

face as well. In each photograph, the body is discolored and

swollen. The prosecution’s medical expert, Dr. Keen, explained

14
to the jury that the surgical incisions visible in the

photographs resulted from medical procedures to relieve swelling

caused by the burns. The judge described the pictures as

“certainly unpleasant” but not “gruesome.”

¶32 McGill does not argue that the pictures are

irrelevant, and the likelihood that they would incite the

passions of the jury is slight because the photographs are not

gruesome. Therefore, we focus on whether the photographs’

prejudicial impact substantially outweighs their probative

value. Davolt, 207 Ariz. at 209 ¶ 63, 84 P.3d at 474. We agree

with McGill that the probative value of these photographs is

reduced because he did not contest the manner of death or the

suffering associated with being burned alive, the facts the

State established with the photographs. See id. at 208-09 ¶¶

62–63, 84 P.3d at 473-74 (“The probative value of relevant

evidence is minimal when the defendant does not contest a fact

that is of consequence.”). On the other hand, the trial judge

could justifiably conclude that their prejudicial impact on the

jury also was minimal. The prosecution needed to provide the

jury with descriptions of the manner in which the victim was

killed and the pain the victim suffered because the State had

the burden of proving each element of the murder and that the

murder was especially cruel. See id. at 208 ¶ 61, 84 P.3d at

473. We consider it unlikely that the pictures added much to

15
any sense of shock the jurors experienced from hearing the

injuries described. See State v. Harding, 141 Ariz. 492, 499,

687 P.2d 1247, 1254 (1984) (holding that permitting photographs

of “little probative value” was not reversible error because

they were also not “unfairly prejudicial”). The trial court did

not abuse its discretion, during either the guilt or aggravation

phase, in admitting the photographs.1

2.

¶33 This Court independently determines whether the State

has proven that McGill murdered Perez in an especially cruel

manner. “Cruelty exists if the victim consciously experienced

physical or mental pain prior to death, and the defendant knew

or should have known that suffering would occur.” State v.

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

omitted).

¶34 Setting a conscious person on fire necessarily causes

the victim tremendous suffering. See State v. Schurz, 176 Ariz.

1
McGill also asserted that (1) the trial court erred in
separating the F.6 aggravator into only two factors, “cruel” and
“heinous/depraved,” on the verdict form, thus preventing the
jury from separately indicating its findings as to heinousness
and depravity and (2) the trial court erred by instructing the
jury on helplessness because the evidence in this case did not
support such a finding. We need not consider either argument,
however, because in this case the jurors unanimously found the
murder to be cruel, which alone satisfies the F.6 aggravator,
see State v. Clark, 126 Ariz. 428, 436, 616 P.2d 888, 896 (1980)
(“The statutory expression is in the disjunctive, so either all
or one could constitute an aggravating circumstance.”).

16
46, 56, 859 P.2d 156, 166 (1993). In addition, McGill enhanced

Perez’s suffering by concocting a napalm-like mixture of

gasoline and styrofoam intended to stick to his victims and make

it more difficult for rescuers to put out the fire. The State

proved beyond a reasonable doubt that McGill’s murder of Perez

was especially cruel and therefore established the F.6

aggravator. See State v. Towery, 186 Ariz. 168, 187, 920 P.2d

290, 309 (1996) (holding that a finding of cruelty establishes

the F.6 aggravator even without reaching heinousness or

depravity).

3.

¶35 In addition to the two aggravators discussed above,

the State alleged that McGill was eligible for the death penalty

because he was “previously convicted of a serious offense,”

A.R.S. § 13-703.F.2. The State alleged that McGill had been

convicted of two counts of armed robbery in 1986. Robbery is a

serious offense, A.R.S. § 13-703.H.8, and the defense did not

challenge the fact of the convictions. The State proved this

aggravator beyond a reasonable doubt.

D.

¶36 McGill makes two arguments related to the penalty

phase. He asserts that the trial court erred in admitting

certain testimonial hearsay during the penalty phase and that

the Constitution forbids requiring a defendant to prove

17
mitigating evidence by a preponderance of the evidence.

1.

¶37 McGill claims that the trial court improperly allowed

testimony, which McGill had no opportunity to cross-examine, to

be admitted as rebuttal to his mitigation evidence. He bases

his argument on three alternative theories: the testimony is

improper rebuttal; allowing the testimony violates the

Confrontation Clause, U.S. Const. amend. VI; and allowing the

testimony violates his rights under the Due Process Clause, U.S.

Const. amend. XIV.

¶38 In June 2003, the State deposed Floyd Lipps, who told

the prosecutor that he met McGill while they were both

incarcerated at the Madison Street jail. Defense counsel was

not present during this deposition, and Lipps was not subject to

cross-examination. Lipps claimed that McGill asked him to kill

Uhl because McGill believed that the State could convict him

only if Uhl testified. In October 2004, the prosecution

scheduled a second deposition that defense counsel attended.

Unfortunately, Lipps, who was hospitalized at the time, was

either too sick or too uncooperative to permit an effective

examination. Lipps died before the trial. During the guilt

phase of the trial, the prosecution did not introduce the

statement Lipps provided in June 2003. During the penalty

phase, however, Detective Stephen Lewis testified, over McGill’s

18
objection, about Lipps’s statements made during the 2003

deposition. Detective Lewis also testified that Lipps gave the

State a note during the first interview. The note, on which the

State found McGill’s fingerprints, contained a description of

Uhl. The prosecution also argued that the handwriting on the

note matched the handwriting on a letter McGill wrote to his

niece.

¶39 In December 2002, Detective Kulesa interviewed Uhl as

a part of the investigation into Perez’s murder. Because Uhl

died before the trial, Kulesa related his conversation with Uhl

to the jury. Uhl identified McGill as the person who set Banta

and Perez on fire and provided many of the details that would

later be corroborated by the testimony of Keith, Johnson, and

Banta. Kulesa also gave the jury a physical description of Uhl

that included reference to a tear drop tattoo under his right

eye and the fact that his right eye was deformed. This

description matches the description on the note Lipps provided

to Detective Lewis. McGill’s counsel objected to Kulesa’s

testimony “based on the Sixth Amendment”; the trial court

overruled her objection.

a.

¶40 We first decide whether the trial court erred in

admitting the statements of Lipps and Uhl as relevant rebuttal

evidence. Under A.R.S. § 13-703.C (Supp. 2005),

19
 [a]t the penalty phase of the sentencing proceeding
that is held pursuant to § 13-703.01, the prosecution
or the defendant may present any information that is
relevant to any of the mitigating circumstances
included in subsection G of this section, regardless
of its admissibility under the rules governing
admission of evidence at criminal trials.

(Emphasis added.) Because the statute expressly states that the

rules of evidence do not govern questions of admissibility at

the penalty phase,2 the relevancy requirement of A.R.S. § 13-

703.C, rather than the rules of evidence, determines whether

evidence is admissible at the penalty phase. That statutory

directive requires that we examine our customary standard for

reviewing evidentiary issues decided by a trial court. When a

trial court’s ruling depends upon its interpretation of a

statute, we generally review that ruling de novo. State v.

Gomez, 212 Ariz. 55, ___ ¶ 3, 127 P.3d 873, 874 (2006). We

review a trial court’s evidentiary rulings, however, for abuse

of discretion. Davolt, 207 Ariz. at 208 ¶ 60, 84 P.3d at 473.

For two reasons, we conclude that we will give deference to a

trial judge’s determination of whether rebuttal evidence offered

during the penalty phase is “relevant” within the meaning of the

statute. First, although the relevance requirement derives from

the statute, and explicitly is not governed by “admissibility

2
In contrast, A.R.S. § 13-703.B (Supp. 2005) expressly
provides that the rules of evidence applicable to criminal
trials govern the admissibility of evidence at the aggravation
phase of the sentencing hearing.

20
under the rules governing admission of evidence at criminal

trials,” A.R.S. § 17-703.C, the judge’s analysis in determining

relevance involves fundamentally the same considerations as does

a relevancy determination under Arizona Rule of Evidence 401 or

403. In addition, in interpreting a statute, courts apply the

ordinary meaning of the statute’s terms. A.R.S. § 1-213 (2002);

State v. Raffaele, 113 Ariz. 259, 262, 550 P.2d 1060, 1063

(1976). The ordinary meaning of relevant, “affording evidence

tending to prove or disprove the matter at issue or under

discussion,” Merriam-Webster’s Collegiate Dictionary 1051 (11th

ed. 2003), is very similar to Rule 401’s definition of relevant

evidence as “evidence having 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.” For these reasons, we will give deference to the

trial court’s decision as to the relevance of evidence offered

pursuant to section 13-703.C.

¶41 The State argued that Floyd Lipps’s initial deposition

was relevant to two components of McGill’s mitigation case. The

trial judge agreed, explaining that the testimony “directly

rebuts what was presented to the jury about both [Hardesty]’s

alleged influence over the defendant and, secondly, the fact

that he does well when incarcerated.”

¶42 McGill had presented extensive mitigation testimony

21
from his friends and family regarding Hardesty’s wickedness and

her control over him. For example, one family friend testified,

“I don’t know how to describe it, but I seen it in her eyes the

day I met her, that she’s a person that tries to take control of

your mind, your soul and your being.”

¶43 McGill also attempted to show the jury that he would

do well while incarcerated. As a boy, McGill stayed in two

children’s homes. His mitigation specialist testified that

McGill’s school attendance and behavior improved while in these

homes. The defense psychologist said, “[McGill] just blossomed

under those sort of circumstances, but that’s the only place I

can find that ever happened, he ever had that kind of

environment.” The mitigation specialist also discussed McGill’s

time in prison for armed robbery, reading from an evaluation

that stated that McGill worked well in prison and required

little supervision.

¶44 Lipps’s testimony was relevant to both theories of

mitigation. Contracting while incarcerated to have a potential

witness against him killed suggests that McGill would not be a

model prisoner. The testimony also illustrates that McGill is

capable of attempting to harm others, even when he is away from

Hardesty. Lipps’s testimony is, therefore, “information that is

relevant to any of the mitigating circumstances,” A.R.S. § 13-

703.C. Information gathered from Detective Kulesa’s questioning

22
of Uhl is also relevant in that it not only corroborates the

statement Lipps gave to the prosecution and the testimony of

Banta but also explains why McGill would want to have Uhl

killed. The trial court did not err in applying the relevancy

requirement of A.R.S. § 13-703.C to the statements of Lipps and

Uhl.

b.

¶45 McGill also asserts that the Sixth Amendment’s

Confrontation Clause, as interpreted in Crawford v. Washington,

541 U.S. 36 (2004), prohibits the use of the statements of Lipps

and Uhl to rebut mitigation offered during the penalty phase.3

This Court reviews alleged constitutional violations de novo.

State v. Glassel, 211 Ariz. 33, 50 ¶ 59, 116 P.3d 1193, 1210

(2005).

¶46 The Sixth Amendment guarantees that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be

3
The protections of the Confrontation Clause apply only to
testimonial evidence. In Crawford v. Washington, the Court
explained that testimonial statements include, among others,
“extrajudicial statements contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony, or
confessions.” 541 U.S. 36, 51–52 (2004) (internal quotation
marks omitted). See also Davis v. Washington, 126 S.Ct. 2266,
2274-75 (2006) (holding that statements “are testimonial when
the circumstances objectively indicate that . . . the primary
purpose of the interrogation is to establish or prove past
events potentially relevant to later criminal prosecution”)
(footnote omitted). For the purpose of our analysis, we assume
that the statements made by Lipps and Uhl are testimonial.

23
confronted with the witnesses against him.” Just as “[t]he

Constitution’s text does not alone resolve” to what extent

statements not subject to cross-examination may be admitted

during trial, Crawford, 541 U.S. at 42, the Constitution’s text

does not alone resolve whether the right to confront adverse

witnesses extends to sentencing hearings.

¶47 To decide that question, we look first to Williams v.

New York, the only case in which the United States Supreme Court

directly addressed a defendant’s right to confront witnesses

during sentencing. 337 U.S. 241 (1949).4 The Court held that

the right does not apply to sentencing proceedings. Id. at 251-

52.

¶48 The trial judge sentenced Williams to death based, in

part, on testimonial information contained in a presentence

report. Id. at 242–43. Williams asserted that because the

information was “supplied by witnesses with whom [he] had not

been confronted and as to whom he had no opportunity for cross-

examination or rebuttal,” the process was unconstitutional. Id.

at 243 (citing People v. Williams, 83 N.E.2d 698 (N.Y. 1949)).

Applying an historical analysis similar to that employed later

4
The Court decided Williams based on the Fourteenth
Amendment’s Due Process Clause because the Sixth Amendment’s
Confrontation Clause was not applied to the states until 1965 by
Pointer v. Texas, 380 U.S. 400, 403 (1965).

24
by the Court in Crawford,5 the Williams Court relied on

historical practices to evaluate Williams’ claim. The Court

noted that “[o]ut-of-court affidavits have been used frequently”

during sentencing and that

both before and since the American colonies became a
nation, courts in this country and in England
practiced a policy under which a sentencing judge
could exercise a wide discretion in the sources and
types of evidence used to assist him in determining
the kind and extent of punishment to be imposed within
limits fixed by law.

Id. at 246. This practice ensured “that a sentencing judge

[would] not be denied an opportunity to obtain pertinent

information by a requirement of rigid adherence to restrictive

rules of evidence properly applicable to the trial.” Id. at

247. In accord with its historical review and analysis, the

Williams Court concluded that the right to confront adverse

witnesses has never applied to sentencing.6 In the more than

5
In Crawford, the Court explained that it must “turn to the
historical background of the [Confrontation] Clause to
understand its meaning.” 541 U.S. at 43.
6
At the turn of the last century, the South Carolina Supreme
Court traced the common usage of affidavits in sentencing to the
English courts, writing:

Certainly there is no ground for saying that [using
affidavits in sentencing] would deny to the defendant
the constitutional right to be confronted by witnesses
against him and to have the privilege of cross-
examining them, for the reason that the verdict of the
jury is not affected. Thus, in this case, the
defendant would remain guilty of manslaughter in spite
of the affidavits that were submitted to the presiding

25
fifty years since it decided Williams, the Supreme Court has

never suggested otherwise.

¶49 Arizona also has long held that use of hearsay

evidence at the penalty phase of a trial does not violate the

Confrontation Clause. In State v. Ortiz, this Court addressed

the admissibility of evidence used to rebut the defendant’s

mitigation evidence. 131 Ariz. 195, 208–09, 639 P.2d 1020,

1033–34 (1981), overruled on other grounds by State v. Gretzler,

135 Ariz. 42, 57 n.2, 659 P.2d 1, 16 n.2 (1983). Ortiz had been

convicted of conspiracy and, during the sentencing hearing, the

State presented the testimony Ortiz’s wife had given during her

earlier conspiracy trial to rebut Ortiz’s assertion that he was

a good father and husband. Id. at 208, 639 P.2d at 1033. The

transcript of her sentencing hearing included descriptions of

Ortiz beating her and threatening her with a gun. Id. Because

she did not testify at Ortiz’s hearing, he asserted that

“admission of this testimony violated his confrontation clause

rights under the Sixth and Fourteenth Amendments to the United

States Constitution.” Id.

¶50 In Ortiz, we began our analysis by “observing that by

its terms, the confrontation clause applies only to ‘trials’ and

judge.

State v. Reeder, 60 S.E. 434, 435 (S.C. 1908).

26
not to sentencing hearings,” id. at 209, 639 P.2d at 1034,

which, consistent with Williams, indicates that the right of

confrontation does not apply to sentencing. Although we

acknowledged that State v. Hanley, 108 Ariz. 144, 493 P.2d 1201

(1972), held that, at sentencing, a defendant has a “right to

produce mitigating evidence through cross-examination,” we

concluded that a defendant has no right to an “opportunity to

rebut rebuttal evidence through cross-examination.” 131 Ariz.

at 209, 639 P.2d at 1034.

¶51 In State v. Greenway, we distinguished between hearsay

used to establish an aggravating factor, to which the

Confrontation Clause applies, and hearsay used to rebut

mitigation, to which the Confrontation Clause does not apply.

170 Ariz. 155, 161 n.1, 823 P.2d 22, 28 n.1 (1991). In that

case, we allowed the statement of a codefendant to be used to

rebut Greenway’s assertion that he was non-violent and had a

diminished mental capacity. Id. at 161, 823 P.2d at 28; see

also State v. Nash, 143 Ariz. 392, 401–02, 694 P.2d 222, 231–32

(1985) (allowing the State to submit reports from psychologists

the defense could not cross-examine for the purpose of rebutting

his mitigation evidence).

¶52 Thus, Arizona has long held that the Confrontation

Clause does not apply to rebuttal testimony at a sentencing

hearing because (1) the penalty phase is not a criminal

27
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.7 We

will overturn long-standing precedent only for a compelling

reason, State v. Hickman, 205 Ariz. 192, 200 ¶ 37, 68 P.3d 418,

426 (2003), and McGill has not presented a compelling reason to

do so here. Applying the long line of decisions, from Williams

to Greenway, we conclude that the trial court did not violate

the Confrontation Clause in admitting the statements of Lipps

7
Other state and federal courts have reached the same
conclusion. See, e.g., United States v. Littlesun, 444 F.3d
1196, 1200 (9th Cir. 2006) (holding that Crawford does not
overrule Williams); United States v. Luciano, 414 F.3d 174, 179
(1st Cir. 2005) (holding that “nothing in Blakely or Booker
necessitates a change in the majority view that there is no
Sixth Amendment right to confront witnesses during the
sentencing phase”); Szabo v. Walls, 313 F.3d 392, 398 (7th Cir.
2002) (holding that the Confrontation Clause “applies through
the finding of guilt, but not to sentencing, even when that
sentence is the death penalty”); Holland v. State, 705 So. 2d
307, 328 (Miss. 1997) (holding that a defendant has “no
Confrontation Clause guarantees at sentencing”); State v. Rust,
388 N.W.2d 483, 494 (Neb. 1986) (same); State v. Reid, 164
S.W.3d 286, 318-19 (Tenn. 2005) (holding that neither the Due
Process Clause nor the Confrontation Clause requires Tennessee
to apply the rules of evidence at sentencing). But see, e.g.,
Rodriguez v. State, 753 So. 2d 29, 43 (Fla. 2000) (“We start
with the uncontroverted proposition that the Sixth Amendment
right of confrontation applies to all three phases of the
capital trial.”); Ball v. State, 699 A.2d 1170, 1190 (Md. 1997)
(holding the Confrontation Clause “extends to the sentencing
phase of a capital trial and applies to [live,] victim impact
witnesses as well as factual witnesses”) (quoting Grandison v.
Shade, 670 A.2d 398, 413 (Md. 1995)); Commonwealth v. Green, 581
A.2d 544, 564 (Pa. 1990) (vacating death sentence and remanding
for resentencing because defendant could not cross-examine
state’s rebuttal witness during mitigation).

28
and Uhl to rebut McGill’s mitigation evidence.

c.

¶53 McGill also claims that the trial court violated his

right to due process by allowing the State to rebut his

mitigation evidence with testimonial hearsay. This Court

reviews alleged constitutional violations de novo. Glassel, 211

Ariz. at 50 ¶ 59, 116 P.3d at 1210.

¶54 In Skipper v. South Carolina, the Court noted that due

process requires “that a defendant not be sentenced to death ‘on

the basis of information which he had no opportunity to deny or

explain.’” 476 U.S. 1, 5 n.1 (1986) (quoting Gardner v.

Florida, 430 U.S. 349, 362 (1977)). In compliance with that

principle, this Court has allowed testimonial hearsay to rebut

mitigation when the “defendant knew about the statements and had

an opportunity to either explain or deny them.” Greenway, 170

Ariz. at 161, 823 P.2d at 28.

¶55 In Gardner v. Florida, the sentencing judge used a

“presentence investigation report contain[ing] a confidential

portion which was not disclosed to defense counsel.” 430 U.S. at

353. The Supreme Court explained that sentencing a defendant to

death without disclosing all of the information used in making

that decision denied the defendant due process because “[t]he

risk that some of the information accepted in confidence may be

erroneous, or may be misinterpreted, by the investigator or by

29
the sentencing judge, is manifest.” Id. at 359. The State

argued that it could lose confidential sources if forced to

reveal the information they provided to the defendant, but the

Court found that “the interest in reliability plainly outweighs

the State’s interest in preserving the availability of

comparable information in other cases.” Id. Thus, the

defendant must be given an opportunity to test the State’s

allegations for reliability.

¶56 The requirement that a defendant be given an

opportunity to explain or deny testimonial hearsay necessarily

encompasses a requirement that the evidence bear some indicia of

reliability. A defendant cannot explain or deny fanciful

statements or hearsay several times removed, and a jury must

consider reliable information in making the difficult decision

of whether to impose capital punishment. To give substance to

the protection afforded by the Due Process Clause, several

courts have made explicit a requirement that the evidence bear

“minimal indicia of reliability” to be admitted during

sentencing. See Kuenzel v. State, 577 So. 2d 474, 528 (Ala.

Crim. App. 1990) (“While hearsay evidence may be considered in

sentencing, due process requires both that the defendant be

given an opportunity to refute it and that it bear minimal

indicia of reliability . . . .” (quoting United States v.

30
Giltner, 889 F.2d 1004, 1007 (11th Cir. 1989)).8 We agree that,

in addition to the requirements explicitly stated in Greenway,

hearsay testimony must have sufficient indicia of reliability to

be responsible evidence. See Williams v. Oklahoma, 358 U.S.

576, 584 (1959) (holding that a court may “consider responsible

unsworn or ‘out-of-court’ information relative to the

circumstances of the crime and to the convicted person’s life

and characteristics” without running afoul of due process)

(emphasis added). We conclude that the State’s rebuttal

evidence met these requirements.

¶57 McGill does not argue that he lacked notice of and an

opportunity to respond to the contents of Lipps’s and Uhl’s

statements. The question then is whether these statements were

accompanied by sufficient indicia of reliability.

¶58 Other evidence corroborated Uhl’s statement, thereby

8
See also People v. Hall, 743 N.E.2d 521, 548 (Ill. 2000)
(holding that hearsay is admissible at sentencing “as long as
the evidence satisfies the relevancy and reliability
requirement”); State v. Pierce, 138 S.W.3d 820, 825 (Tenn. 2004)
(noting that Tennessee statute allows “reliable hearsay” to be
used at sentencing); Peden v. State, 129 P.3d 869, 872 (Wyo.
2006) (“[S]entencing must ensure that the information the
sentencing court relies upon is reliable and accurate . . . .”
(quoting Kenyon v. State, 96 P.3d 1016, 1021 (Wyo.
2004)(internal quotation marks omitted)). Section 6.A.1.3(a) of
the Federal Sentencing Guidelines (2003) also requires a showing
of reliability, stating that “the court may consider relevant
information without regard to its admissibility under the rules
of evidence applicable at trial, provided that the information
has sufficient indicia of reliability to support its probable
accuracy.” (Emphasis added.)

31
providing indicia of reliability. The testimony of Banta,

Johnson, and Keith corroborated the information Uhl provided

Detective Kulesa. Sufficient indicia of reliability also

supported Lipps’s statement. The note that Lipps produced

contained McGill’s fingerprints and handwriting; Uhl, the target

of the murder for hire, indeed could have been a witness against

McGill; Uhl’s physical appearance matched the description on the

note; and Lipps did have an opportunity to receive the note from

McGill. All these facts corroborate the account that Lipps

gave. We conclude, therefore, that admitting Lipps’s and Uhl’s

statements did not offend McGill’s right to due process.

2.

¶59 McGill also asserts that it is unconstitutional to

require that he prove mitigation evidence by a preponderance of

the evidence. This Court has held on several occasions that

requiring a defendant to prove mitigating circumstances by a

preponderance of the evidence does not violate the federal

Constitution. See, e.g., Medina, 193 Ariz. at 514-15 ¶ 43, 975

P.2d at 104-05. The trial court did not err in requiring that

McGill prove his mitigating circumstances by a preponderance of

the evidence.

E.

¶60 This Court “independently determines ‘if the

mitigation is sufficiently substantial to warrant leniency in

32
light of existing aggravation.’” Roseberry, 210 Ariz. at 373 ¶

77, 111 P.3d at 415 (quoting State v. Greene, 192 Ariz. 431,

443-44 ¶ 60, 967 P.2d 106, 118-19 (1998)); A.R.S. § 13-703.04.

¶61 The trial court instructed the jury on the following

non-exclusive list of mitigating factors: (1) the Defendant

suffered from an abusive childhood; (2) the Defendant was

psychologically immature; and (3) the Defendant was mentally

impaired. In addition to these factors, McGill presented

evidence that he would do well in an institutional setting and

that his family would suffer if he is put to death.

¶62 McGill suffered from an abusive and neglectful

childhood. His mother first sent him to an institution for

troubled children when he was only eight years old, visited him

infrequently, told a school official that thirteen-year-old

McGill “has no interests or talents,” and banished McGill from

her home when he was sixteen years old. His stepfather beat him

and his brothers. McGill proved by a preponderance of the

evidence the existence of a troubled childhood.

¶63 He argues that his troubled childhood interfered with

his ability to develop a sense of right and wrong and that the

cruel and senseless murder of Charles Perez manifested that

deficiency. Although McGill’s mother was neglectful and his

stepfather was abusive, even the defense psychologist recognized

that McGill was given an opportunity to thrive while at the

33
homes for troubled children. McGill was able to maintain a

healthy relationship with his siblings. He had opportunities to

reform his life. Moreover, the impact of McGill’s upbringing on

his choices has become attenuated during the two decades between

his reaching adulthood and committing this murder. For these

reasons, McGill’s neglectful and abusive childhood provides only

slight mitigation for this crime.

¶64 During her closing argument at the penalty phase,

McGill’s attorney reminded the jury that “[t]he evidence

suggests that [Hardesty] is very, very much in control of this

relationship with [McGill] and evidence suggests that [McGill]

will do anything, absolutely anything to keep [Hardesty] happy.”

McGill did not, however, provide any evidence that Hardesty

specifically urged him to murder Perez. Proving that McGill

desired to impress his girlfriend, even if that desire was

extreme and exceeded that found in a psychologically healthy

person, does not itself demonstrate that Hardesty’s influence

caused this murder. The lack of “a causal connection may be

considered in assessing the quality and strength of the

mitigation evidence.” State v. Newell, 212 Ariz. 389, ___ ¶ 82,

132 P.3d 833, 849 (2006). Moreover, McGill did not explain why,

when in jail and outside the influence of Hardesty, he

nonetheless attempted to have Uhl killed. Although McGill

demonstrated that Hardesty influenced him, the preponderance of

34
the evidence does not suggest that her influence was so strong

as to explain his conduct.

¶65 McGill is neither mentally retarded nor insane. His

overall IQ is 92, which is at the low end of the average range.

The defense expert noted that McGill “has chronic and

significant psychological difficulties,” but could not identify

any mental disorder from which McGill suffers. The defense did

not prove mental impairment by a preponderance of the evidence.

¶66 Much of McGill’s evidence during the mitigation phase

focused on his improved performance while in institutions.

Evidence that a defendant will be a “model prisoner” provides

non-statutory mitigation. State v. White, 194 Ariz. 344, 355 ¶

47, 982 P.2d 819, 830 (1999). As a child, McGill’s grades and

behavior improved while under intense supervision. Likewise,

while in prison for robbery, McGill did not have any serious

discipline problems. In light of the State’s evidence that

McGill attempted to have a potential witness against him

murdered, however, the evidence provides little support for the

claim that McGill would be a model prisoner.

¶67 The testimony of McGill’s sister and brothers

demonstrated that McGill’s family will be hurt by his execution.

The existence of family ties is a mitigating factor. State v.

Carriger, 143 Ariz. 142, 162, 692 P.2d 991, 1011 (1984). The

defense proved this mitigation by a preponderance of the

35
evidence.

¶68 Although McGill’s mitigation is not insignificant, it

does little to offset the considerable aggravation established

by the State. On balance, the mitigation is not sufficiently

substantial to call for leniency.

III.

¶69 For purposes of federal review, McGill raises fourteen

challenges to the constitutionality of Arizona’s death penalty

scheme. He concedes that this Court has previously rejected

these arguments.

¶70 (1) McGill claims that the State’s failure to allege

an element of a charged offense, the aggravating factors that

made the Defendant death eligible, is a fundamental defect that

renders the indictment constitutionally defective. We rejected

this argument in McKaney v. Foreman, 209 Ariz. 268, 271 ¶ 13,

100 P.3d 18, 21 (2004).

¶71 (2) He asserts that the application of the new death

penalty statute passed in response to Ring v. Arizona, 536 U.S.

584 (2002), violates a defendant’s right against ex post facto

application of new laws. We rejected this argument in State v.

Ring, 204 Ariz. 534, 547 ¶ 23, 65 P.3d 915, 928 (2003).

¶72 (3) He claims that the F.6 aggravator is

unconstitutionally vague and overbroad because the jury does not

have enough experience or guidance to determine when it is met.

36
The Court rejected this argument in State v. Cromwell, 211 Ariz.

181, 188-90 ¶¶ 38–45, 119 P.3d 448, 455–57 (2005).

¶73 (4) According to McGill, introducing victim impact

evidence at the penalty phase of the trial is improper because a

defendant does not receive prior notice of the information and

is denied the right to cross-examine the evidence. The Court

rejected challenges to the use of victim impact evidence in Lynn

v. Reinstein, 205 Ariz. 186, 191 ¶ 16, 68 P.3d 412, 417 (2003).

¶74 (5) McGill claims that the jury instruction told

jurors to assign whatever value they deemed appropriate to

mitigation but instructed them not to be influenced by mere

sympathy, thus limiting the mitigation the jury could consider.

The Court rejected this argument in Carreon, 210 Ariz. at 70–71

¶¶ 81–87, 107 P.3d at 916–17.

¶75 (6) He asserts that the death penalty is cruel and

unusual under any circumstances. The Supreme Court rejected

this argument in Gregg v. Georgia, 428 U.S. 153, 187 (1976).

¶76 (7) He claims that the death penalty is irrational and

arbitrarily imposed because it serves no purpose that is not

adequately addressed by life in prison. The Court rejected this

argument in State v. Smith, 203 Ariz. 75, 82 ¶ 36, 50 P.3d 825,

832 (2002).

¶77 (8) McGill argues that the prosecutor’s discretion to

seek the death penalty has no standards and therefore violates

37
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.

¶78 (9) He claims that Arizona’s death penalty

discriminates 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 State v. Stokley,

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

¶79 (10) McGill asserts that the absence of

proportionality review denies defendants due process of law. We

rejected that argument in State v. Gulbrandson, 284 Ariz. 46,

73, 960 P.2d 579, 606 (1995).

¶80 (11) He claims that Arizona’s death penalty scheme

violates the Fifth, Eighth, and Fourteenth Amendments by shifting

the burden of proof and requiring that a capital defendant

convince jurors his life should be spared. This Court rejected

this argument in Carreon, 210 Ariz. at 76 ¶ 122, 107 P.3d at

922.

¶81 (12) He asserts that the death penalty is

unconstitutional because it permits jurors unfettered discretion

to impose a death sentence without adequate guidelines to weigh

and consider appropriate factors and fails to provide a

principled means to distinguish between those defendants who

deserve death and those who do not. This Court rejected this

38
argument in State v. Johnson, 212 Ariz. 425, ___ ¶ 69, 133 P.3d

735, 750 (2006).

¶82 (13) McGill claims that execution by lethal injection

is cruel and unusual punishment. We rejected this argument in

State v. Van Adams, 194 Ariz. 408, 422 ¶ 55, 984 P.2d 16, 30

(1999).

¶83 (14) According to McGill, Arizona’s death penalty

unconstitutionally requires the death penalty whenever at least

one aggravating circumstance and no mitigating circumstances

exist. The Court rejected this argument in State v. Miles, 186

Ariz. 10, 19, 918 P.2d 1028, 1037 (1996).

IV.

¶84 For the foregoing reasons, we affirm McGill’s

convictions and sentences, including the capital sentence.

_______________________________________
Ruth V. McGregor, Chief Justice

CONCURRING:

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
W. Scott Bales, Justice

39
H U R W I T Z, Justice, concurring in part and dissenting in
part

¶85 I concur in the Court’s opinion insofar as it affirms

McGill’s convictions and the jury’s findings of statutory

aggravating circumstances. I respectfully part company with the

majority, however, with respect to its rejection of McGill’s

Confrontation Clause claims. See Op. ¶¶ 45-52. I believe that

the Confrontation Clause of the Sixth Amendment applies to the

penalty phase of a capital sentencing proceeding9 and that

testimonial hearsay cannot be used to impose a death sentence.

I.

A.

¶86 The Sixth Amendment to the United States Constitution

provides that “[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses

against him.” The Supreme Court has made plain that the

Confrontation Clause prohibits “admission of testimonial

9
Arizona law provides that when a defendant is convicted of
first degree murder and the State seeks the death penalty,
sentencing proceedings begin with an “aggravation phase”
(sometimes referred to in case law as the “eligibility phase”)
in which the trier of fact determines whether any alleged
aggravating circumstance listed in Arizona Revised Statutes
(“A.R.S.”) § 13-703(F) (Supp. 2005) has been proved. A.R.S. §
13-703.01(C) (Supp. 2005). If the trier of fact finds one or
more aggravating circumstances, the sentencing proceedings move
on to a “penalty phase” (sometimes referred to in case law as
the “selection phase”) in which the issue is whether the death
penalty should be imposed. A.R.S. § 13-703.01(D).

40
statements of a witness who did not appear at trial unless he

was unavailable to testify, and the defendant had had a prior

opportunity for cross-examination.” Crawford v. Washington, 541

U.S. 36, 53-54 (2004); see also Davis v. Washington, 126 S. Ct.

2266, 2273 (2006) (quoting Crawford).

¶87 The majority assumes that the deposition of Floyd

Lipps and the police interview of Jeff Uhl were “testimonial.”

Op. ¶ 45 n.3. That assumption is clearly warranted. Both Lipps

and Uhl were questioned by agents of the state for the express

purpose of obtaining evidence to be used against McGill during

the penalty phase of a capital trial. Crawford teaches that

“the principal evil at which the Confrontation Clause was

directed” was the “use of ex parte examinations as evidence

against the accused.” 541 U.S. at 50; see also id. at 52

(“Statements taken by police officers in the course of

interrogations are . . . testimonial.”); accord Davis, 126 S.

Ct. at 2276 (holding that the product of “interrogations solely

directed at establishing the facts of a past crime, in order to

identify (or provide evidence to convict) . . . is

testimonial”).

¶88 Because the challenged statements were testimonial and

McGill had no opportunity to cross-examine either witness, the

Confrontation Clause applies on its face if the statements were

introduced in a “criminal prosecution.” The issue before us,

41
therefore, is whether the penalty phase of a capital sentencing

proceeding is part of a criminal prosecution.10

B.

¶89 As a matter of pure logic and textualism, it is

difficult to characterize the penalty phase as anything other

than part of a criminal prosecution. The proceeding is, of

course, designed to determine what criminal penalty will be

imposed on one convicted of first degree murder. Under A.R.S. §

13-703.01, the penalty phase is structured much in the same

manner as the rest of a criminal trial – each side presents

evidence, examines the witnesses, makes summations, and the jury

is eventually left to make the ultimate determination – whether

any mitigation is sufficiently substantial to call for leniency

in light of the aggravation previously found. The majority

quite correctly concludes that the aggravation phase of a

capital case is part of a criminal prosecution for Confrontation

Clause purposes. Op. ¶ 51. Because both the aggravation and

penalty phases are parts of a single capital “sentencing

proceeding” under Arizona law, see A.R.S. § 13-703.01(A), (C),

10
Our state constitution provides that “[i]n criminal
prosecutions, the accused shall have the right . . . to meet the
witnesses against him face to face.” Ariz. Const. art. 2, § 24.
McGill does not argue that this guarantee is different than the
Sixth Amendment Confrontation Clause. I therefore assume
arguendo that the two are congruent. See State v. Vincent, 159
Ariz. 418, 432-33, 768 P.2d 150, 164-65 (1989).

42
(D), it is difficult to understand why one phase would be part

of a criminal prosecution while the other would not.

¶90 The textual argument is buttressed by the Supreme

Court’s prior interpretations of the Sixth Amendment. The Sixth

Amendment sets forth a list of rights guaranteed “[i]n all

criminal prosecutions,” including the right to counsel. The

Supreme Court has held that the right to counsel is applicable

to sentencing proceedings. Mempa v. Rhay, 389 U.S. 128, 137

(1967). Because the Sixth Amendment does not contain separate

definitions of “criminal prosecutions” with respect to its

various guarantees, it would therefore seem to logically follow

that the Confrontation Clause also applies to sentencing

proceedings.

¶91 But in Sixth Amendment jurisprudence, as Crawford

warns, textualism - or even logic - is often a trap for the

unwary. See 541 U.S. at 42-43. For example, the Supreme Court

has held that the right to counsel applies to preliminary

hearings. White v. Maryland, 373 U.S. 59, 60 (1963). Yet,

hearsay is traditionally admissible in preliminary hearings.

Costello v. United States, 350 U.S. 359, 363-64 (1956). It is

therefore difficult to conclude that the term “criminal

prosecutions” has the same meaning for all rights guaranteed by

the Sixth Amendment.

43
¶92 As one commentator has aptly noted, the Supreme

Court’s Sixth Amendment jurisprudence is “best described as

fragmentary.” John G. Douglass, Confronting Death: Sixth

Amendment Rights at Capital Sentencing, 105 Colum. L. Rev. 1967,

1969 (2005). I therefore do not rely simply on the language of

the Sixth Amendment in concluding that the Confrontation Clause

applies to the penalty phase of a capital trial, and instead

turn, as does the majority, to the case law in interpreting that

language.

C.

¶93 The majority relies upon Williams v. New York, 337

U.S. 241 (1949), in concluding that capital sentencing

proceedings are excluded from the term “criminal prosecution”

for Confrontation Clause purposes. But, as the majority

acknowledges, Op. ¶ 47 n.4, Williams was not a Confrontation

Clause case. Indeed, under the Supreme Court’s jurisprudence in

1949 it could not have been; the Court did not hold the

Confrontation Clause applicable to the States until sixteen

years later, in Pointer v. Texas, 380 U.S. 400, 403 (1965).

Williams is simply a case setting forth the minimum requirements

of Fourteenth Amendment due process with respect to the use of

hearsay testimony. As the majority correctly notes in its due

process discussion (which I join), the Due Process Clause is

44
satisfied when hearsay is reliable and the defendant is given

notice and an opportunity to rebut the evidence. Op. ¶ 56.

¶94 As Crawford now makes clear, however, the

Confrontation Clause requires more. Due process requires

minimal substantive reliability, but the Confrontation Clause

requires “procedural” reliability - reliability obtained “by

testing in the crucible of cross-examination.” Crawford, 541

U.S. at 61. It is not sufficient for Confrontation Clause

purposes that “testimonial hearsay” be objectively reliable; it

must also be subject to cross-examination.

¶95 Williams does not resolve the issue of whether the

Confrontation Clause applies to the penalty phase of capital

trials. Nor does any other Supreme Court decision. I therefore

regard the question as open. A number of federal courts agree.

See United States v. Higgs, 353 F.3d 281, 324 (4th Cir. 2003)

(noting that it “remains unclear whether the Confrontation

Clause applies” in capital sentencing proceedings); Proffitt v.

Wainright, 685 F.2d 1227, 1253 (11th Cir. 1982) (“Whether the

right to cross-examine adverse witnesses extends to capital

sentencing proceedings has not been specifically addressed by

the Supreme Court.”); United States v. Jordan, 357 F. Supp. 2d

889, 901 (E.D. Va. 2005) (stating that “it appears that no court

has specifically addressed this issue” since Crawford). Indeed,

several state courts have directly held that the Confrontation

45
Clause applies at capital sentencing. See, e.g., Rodriguez v.

State, 753 So. 2d 29, 44 (Fla. 2000) (holding that the admission

of hearsay statements “in the penalty phase violated the

Confrontation Clause”); Ball v. State, 699 A.2d 1170, 1190 (Md.

1997) (holding that the right of confrontation “extends to the

sentencing phase of a capital trial and applies to live, victim

impact witnesses as well as factual witnesses”) (alteration and

quotation omitted); Russeau v. State, 171 S.W.3d 871, 880-81

(Tex. Crim. App. 2005) (finding the Confrontation Clause

applicable to capital sentencing), cert. denied, 126 S. Ct. 2982

(2006). Whatever the merit of these decisions (a topic I

address below) they surely undercut the contention that the

issue was definitively resolved in Williams.

D.

¶96 Nor do I believe that our prior cases provide

conclusive guidance. Our jurisprudence on the topic has been,

to put it charitably, somewhat inconsistent. In State v.

Hanley, a non-capital case, this Court concluded that the right

of cross-examination applied at sentencing. 108 Ariz. 144, 148,

493 P.2d 1201, 1205 (1972). One year later, however, in another

non-capital case, this Court held, without citation to Hanley,

that after guilt had been established, the Due Process Clause

did not require a sentencing judge to allow confrontation and

46
cross-examination. State v. Thomas, 110 Ariz. 106, 109, 515

P.2d 851, 854 (1973).

¶97 In State v. Ortiz, a capital case, this Court stated

that “the confrontation clause applies only to ‘trials’ and not

to sentencing hearings.” 131 Ariz. 195, 209, 639 P.2d 1020,

1034 (1981), overruled on other grounds by State v. Gretzler,

135 Ariz. 42, 57 n.2, 659 P.2d 1, 16 n.2 (1983). But four years

later, in another capital case, we stated that Sixth Amendment

confrontation “rights extend to the sentencing phase of a trial”

but are not “as strong at the sentencing phase as at trial.”

State v. Nash, 143 Ariz. 392, 401, 694 P.2d 222, 231 (1985).

Then, State v. Greenway, another capital case, held that there

is no right to confrontation during sentencing when testimony is

admitted to rebut mitigating evidence (as opposed to

establishing aggravating factors). 170 Ariz. 155, 161 n.1, 823

P.2d 22, 28 n.1 (1991).

¶98 Even assuming that Ortiz and Greenway were correctly

decided in 1983 and 1991, they do not resolve the issue before

us today. Both cases were decided against the backdrop of Ohio

v. Roberts, 448 U.S. 56 (1980). Roberts held that the

Confrontation Clause did not bar admission of an unavailable

witness’s statements that either fell within a “firmly rooted

hearsay exception” or otherwise bore “adequate ‘indicia of

reliability.’” Id. at 66. Crawford, however, abrogated the

47
Roberts rule, providing that when hearsay is “testimonial,”

reliability can only be shown through an opportunity for cross-

examination. 541 U.S. at 61-62. More importantly for present

purposes, Crawford also clarified the historical understanding

of the scope of the Confrontation Clause. Thus, our prior

opinions must be reexamined in light of Crawford.

E.

¶99 Crawford makes clear that the extent of the

Confrontation Clause is to be determined not by reference to

modern rules of evidence, but rather by the expectation of the

Framers at the time the Sixth Amendment was adopted in 1791.

Id. at 43 (“We must therefore turn to the historical background

of the Clause to understand its meaning.”). Thus, the ultimate

issue is whether the Framers would have expected that

“testimonial” hearsay could be used by a jury to determine

whether a murder defendant should live or die.

¶100 The history of capital sentencing is most instructive

on this point. “[I]n 1791, the States uniformly followed the

common-law practice of making death the exclusive and mandatory

sentence for certain specified offenses,” including murder.

Woodson v. North Carolina, 428 U.S. 280, 289 (1976). The jury’s

verdict of guilt for murder thus automatically resulted in a

death sentence in 1791. Because “[t]here was no distinction

between trial rights and sentencing rights . . . in both purpose

48
and effect, the trial was the sentencing.” Douglass, supra, at

1973.

¶101 At the time the Sixth Amendment was adopted, juries

were well aware of the mandatory nature of death sentences.

“Almost from the outset jurors reacted unfavorably to the

harshness of mandatory death sentences.” Woodson, 428 U.S. at

289. When unwilling to put a defendant to death, jurors would

often either acquit the defendant outright or convict of a

lesser crime. Id. at 290 (noting the “not infrequent refusal of

juries to convict murderers rather than subject them to

automatic death sentences”); see also William Blackstone, 4

Commentaries 238-39 (1966) (explaining “pious perjury,” under

which juries would return verdicts resulting in acquittal or

conviction of a lesser crime when unwilling to sentence a

defendant to death); John H. Langbein, The English Criminal

Trial Jury on the Eve of the French Revolution, in The Trial

Jury in England, France, Germany 1700-1900 37 (Antonio Padoa

Schioppa ed. 1987) (same).

¶102 Thus, the only evidence relied upon by juries in 1791

in determining whether a defendant should receive the death

sentence was the evidence presented at trial on the issue of

guilt or innocence – evidence plainly covered by the

Confrontation Clause. The Framers could therefore have had no

expectation that “testimonial” hearsay could have played any

49
part in the decision about whether a defendant should live or

die. Consequently, Crawford teaches that the Confrontation

Clause bars the use of such hearsay in the selection phase of

modern capital penalty proceedings.

¶103 To be sure, much has changed in capital litigation

since 1791. Dissatisfaction with automatic death sentences led

a number of states in the nineteenth century to “abandon

mandatory death sentences in favor of discretionary death

penalty statutes.” Woodson, 428 U.S. at 291. Such systems,

which had become widespread by the twentieth century, permit the

jury (or a sentencing judge) “to respond to mitigating factors

by withholding the death penalty.” Id. Thus, by the time

Williams was decided, it was accurate to say that in capital

cases, a sentencing judge had long exercised “wide discretion in

the sources and types of evidence used to assist him in

determining the kind and extent of punishment to be imposed

within limits fixed by law.” Williams, 337 U.S. at 246.

¶104 But this was not the case at the time the Sixth

Amendment was adopted. Whatever the virtues of modern capital

sentencing, in 1791 the decision about whether a defendant

should live or die was made solely on the basis of the evidence

introduced during the trial on guilt or innocence. Because it

has always been clear that the trial on guilt or innocence is a

“criminal prosecution,” subject to the guarantees of the

50
Confrontation Clause, “testimonial” hearsay could have played no

role in the sentencing calculus in 1791. Even though capital

sentencing procedures have today changed, Crawford teaches that

the Sixth Amendment requires that “testimonial” hearsay has no

place in the capital sentencing decision.11

II.

¶105 In my view, the Confrontation Clause precludes the use

of testimonial hearsay by the State in the penalty phase of a

capital sentencing proceeding.12 The Lipps deposition and the

Uhl interview should not have been admitted during the penalty

11
This case does not require us to decide whether the
Confrontation Clause applies to non-capital sentencing
proceedings. While it is clear that “testimonial” hearsay
played no role in capital sentencing proceedings in 1791, the
historical record as to non-capital proceedings is less clear.
See Apprendi v. New Jersey, 530 U.S. 466, 480 n.7 (2000) (noting
that at the time of our founding, judicial discretion was
prominent in sentencing of lesser and misdemeanor crimes);
Williams, 337 U.S. at 246 (noting the wide discretion that
sentencing judges had in colonial times with regard to the type
of evidence that could be considered in cases in which the
sentence was not automatically mandated by a guilty verdict).
12
By its terms, the Confrontation Clause does not apply to
evidence submitted by the defendant. Thus, my reading of the
Clause does not conflict with the Supreme Court’s command that
the Eighth Amendment requires that the defendant be able to
present a broad scope of mitigation evidence. See Lockett v.
Ohio, 438 U.S. 586, 604 (1978) (“[T]he Eighth and Fourteenth
Amendments require that the sentencer, in all but the rarest
kind of capital case, not be precluded from considering, as a
mitigating factor, any aspect of a defendant’s character or
record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death.”)
(footnote omitted).

51
phase of this case.13 I would therefore remand for a new penalty

phase proceeding.

__________________________________
Andrew D. Hurwitz, Justice

13
The jury might very well have returned a death verdict even
in the absence of the Lipps deposition and the Uhl interview,
given the strong aggravation and the relatively minimal
mitigating evidence. Because of the nature of the testimonial
hearsay at issue (which accused McGill of plotting the death of
Uhl), however, I cannot conclude beyond a reasonable doubt (nor
does the majority suggest) that any Confrontation Clause error
here was harmless. See Chapman v. California, 386 U.S. 18, 23
(1967) (holding that before constitutional error can be found
harmless, “the court must be able to declare a belief that it
was harmless beyond a reasonable doubt”).

52