SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-03-0355-AP
Appellee/Cross-Appellant, )
) Maricopa County
v. ) Superior Court
) No. CR 2001-095385
FRANK SILVA ROQUE, )
)
Appellant/Cross-Appellee. ) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Mark F. Aceto, Judge
CONVICTIONS AFFIRMED; SENTENCE REDUCED
________________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Capital Litigation Section
Vincent L. Rabago, Assistant Attorney General Tucson
Attorneys for the State of Arizona
JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Stephen R. Collins, Deputy Public Defender
Anna M. Unterberger, Deputy Public Defender
Attorneys for Frank Silva Roque
________________________________________________________________
B E R C H, Vice Chief Justice
¶1 In September 2003, a jury found Appellant Frank Silva
Roque guilty of first degree murder, attempted first degree
murder, reckless endangerment, and three counts of drive-by
shooting. He was sentenced to death for the murder. This court
has jurisdiction of this capital appeal under Article 6, Section
5(3) of the Arizona Constitution, and Arizona Revised Statutes
(“A.R.S.”) section 13-4031 (2001).
I. FACTS AND PROCEDURAL BACKGROUND
¶2 Frank Roque was at work at Boeing on September 11,
2001, when he heard the news of the terrorist attacks in New
York, Pennsylvania, and Washington, D.C. When Roque returned
home that afternoon, he cried uncontrollably and babbled
incoherently as he watched the news coverage of the attacks.
Roque also cried and carried on that evening when he phoned his
brother, Howard.
¶3 Although Roque normally never missed work, he stayed
home on September 12. When a colleague from Boeing called Roque
that evening or the next, Roque told him that he wanted to shoot
some “rag heads,” referring to people Roque perceived to be of
Arab descent.
¶4 On the morning of September 15, Roque drank
approximately three twenty-five-ounce cans of beer. Early that
afternoon, Roque drove his truck to a Chevron gas station in
Mesa. The owner of the gas station, Balbir Singh Sodhi, a Sikh
of Indian descent who wore a turban, was standing outside
talking to landscape worker Louis Ledesma, who was down on his
knees. Roque fired five or six shots through the open window of
his truck, killing Sodhi. He then sped off.
¶5 Roque next drove to a home that he had previously
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owned and had sold to the Sahaks, an Afghan couple. From the
driver’s side of his truck, he fired at least three shots at the
house. Although family members were home, nobody was injured.
Then Roque drove to a Mobil gas station, where he fired seven
shots through the convenience store window at store clerk Anwar
Khalil, a man of Lebanese descent. Five bullets struck below
the store counter and two bullets struck above it, but Khalil
was not hit. Roque sped off in his truck. That afternoon,
Roque was seen in several area bars, where he reportedly paced,
cried, talked gibberish, and ranted at the televisions.
¶6 The police investigation of the shootings soon led to
Roque, and he was arrested at his home on the evening of
September 15. When the police arrived, Roque immediately put
his hands in the air and said, “I’m a patriot and American. I’m
American. I’m a damn American.” As they drove to the police
station in the patrol car, Roque yelled at the arresting
officers, “How can you arrest me and let the terrorists run
wild?” Roque added, “I wish that my punishment would be sending
me to Afghanistan with a lot of [expletive] weapons.”
¶7 Roque was brought to trial for the first degree murder
of Balbir Sodhi, attempted first degree murder of Anwar Khalil,
reckless endangerment of Louis Ledesma, and drive-by shootings
at the Chevron station, the Mobil station, and the Sahak
residence. The State filed a notice of intent to seek the death
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penalty, asserting two aggravating circumstances: Roque “was
previously convicted of a serious offense,” A.R.S. § 13-
703(F)(2) (Supp. 2003), and, in committing the murder, Roque
“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).
¶8 The State’s theory of the case was that the shootings
were intentional acts of racism. Roque did not deny the
shootings, but pursued an insanity defense. Six experts — three
psychiatrists and three psychologists — testified at trial
regarding Roque’s mental health.
¶9 The same jury sat for the guilt proceeding and the
sentencing proceeding. The jury found Roque guilty of all
charges and rendered a verdict of death for the murder. The
court imposed aggravated sentences of 12 years each for the
attempted first degree murder and drive-by shooting convictions
and 1.25 years for the reckless endangerment conviction.1
1
The sentences for the convictions arising from the shooting
at the Chevron station — first degree murder (death), drive-by
shooting (12 years), and reckless endangerment (1.25 years) —
run concurrently with one another. The sentences for the
convictions arising from the shooting at the Mobil station —
attempted first degree murder (12 years) and drive-by shooting
(12 years) — run concurrently with each other but consecutively
to the other sentences. The sentence for the drive-by shooting
at the Sahak residence (12 years) runs consecutively to the
other sentences. Roque has not challenged the structure of the
sentencing.
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II. DISCUSSION
¶10 Roque raises thirty issues on appeal and identifies
ten additional issues to avoid preclusion. The State raises one
issue on cross appeal.
A. Jury Selection
1. Peremptory Strike of Veniremember
¶11 During jury selection, the trial court denied Roque’s
challenge to the State’s peremptory strike of Juror 97, an
African American veniremember. In Batson v. Kentucky, the
Supreme Court held that excluding a potential juror on the basis
of race violates the Equal Protection Clause of the Fourteenth
Amendment. 476 U.S. 79, 89 (1986).
¶12 We review a trial court’s decision regarding the
State’s motives for a peremptory strike for clear error. State
v. Murray, 184 Ariz. 9, 24, 906 P.2d 542, 557 (1995). “We give
great deference to the trial court’s ruling, based, as it is,
largely upon an assessment of the prosecutor’s credibility.”
State v. Cañez, 202 Ariz. 133, 147, ¶ 28, 42 P.3d 564, 578
(2002).
¶13 A Batson challenge proceeds in three steps: “(1) the
party challenging the strikes must make a prima facie showing of
discrimination; (2) the striking party must provide a race-
neutral reason for the strike; and (3) if a race-neutral
explanation is provided, the trial court must determine whether
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the challenger has carried its burden of proving purposeful
racial discrimination.” Id. at 146, ¶ 22, 42 P.3d at 577
(citing Purkett v. Elem, 514 U.S. 765, 767 (1995)).
¶14 The trial court found that Roque made a prima facie
case of discrimination, satisfying the first step. To satisfy
the second, the prosecutor offered three race-neutral reasons
for the strike: (1) Juror 97 had a brother in prison; (2) he
had some personal problems with police officers that he
attributed to racial motivation; and (3) he expressed his belief
that the death penalty is imposed more frequently on members of
minority groups. Roque offered nothing further to support his
challenge. The trial court ruled that the State’s peremptory
strike was not racially motivated and did not constitute
purposeful discrimination.
¶15 Because the Defendant bears the burden to prove
purposeful discrimination, this court will not reverse the trial
court’s determination unless the reasons provided by the State
are clearly pretextual. No such pretext is evident in this
record. The veniremember’s statements provide valid reasons for
the prosecutor to question this potential juror’s impartiality.
Antipathy toward the police alone may constitute a valid reason
to strike jurors when the State’s case relies on police
testimony. Moreover, the prosecutor did not strike all African
American jurors from the panel. Although not dispositive, “the
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fact that the state accepted other [minority] jurors on the
venire is indicative of a nondiscriminatory motive.” State v.
Eagle, 196 Ariz. 27, 30, ¶ 12, 992 P.2d 1122, 1125 (App. 1998),
aff’d, 196 Ariz. 188, 994 P.2d 395 (2000). Roque did not prove
purposeful racial discrimination. Accordingly, the trial court
did not clearly err in allowing the strike of Juror 97.
2. Excusing Veniremembers Who Objected to the Death
Penalty
¶16 Roque contests the exclusions for cause of
Veniremembers 9, 49, and 88, who expressed doubt that they could
impose the death penalty. We review a trial court’s decision to
strike potential jurors for cause for an abuse of discretion,
State v. Glassel, 211 Ariz. 33, 47, ¶ 46, 116 P.3d 1193, 1207
(2005), deferring to the trial judge’s superior opportunity to
observe the jurors’ demeanor and credibility, see Wainwright v.
Witt, 469 U.S. 412, 428 (1985).
¶17 In a capital case, the judge may exclude for cause
those jurors who would never vote for the death penalty, but not
those who have “conscientious or religious scruples against the
infliction of the death penalty” that they could set aside.
Witherspoon v. Illinois, 391 U.S. 510, 515 & n.9 (1968). To
serve as a basis for exclusion, the juror’s views must “prevent
or substantially impair the performance of his duties as a
juror.” Wainwright, 469 U.S. at 424 (quoting Adams v. Texas,
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448 U.S. 38, 45 (1980)); see also State v. Anderson (Anderson
I), 197 Ariz. 314, 318-19, ¶ 9, 4 P.3d 369, 373-74 (2000). The
State need not prove a juror’s opposition to the death penalty
with “unmistakable clarity,” Wainwright, 469 U.S. at 424, but
follow-up questions should be asked if written responses do not
show that the juror will be able to follow the law, Anderson I,
197 Ariz. at 319, ¶ 10, 4 P.3d at 374.
¶18 Based on a juror’s comments and demeanor, a judge may
excuse even a juror who promises to apply the law. In Glassel,
for example, “juror 16” called the death penalty “barbaric” and
said he was “absolutely” against it on a written questionnaire,
but then promised to apply the law during voir dire questioning.
211 Ariz. at 48, ¶ 49, 116 P.3d at 1208. This court upheld the
exclusion for cause of that juror. Id. ¶ 50. “[E]ven assuming
that juror 16 was sincere about being able to apply the law, the
judge could have reasonably determined that the juror’s views
would substantially impair his ability to deliberate
impartially.” Id.
¶19 Here, the three excused potential jurors expressed
ambivalence about their ability to impose the death penalty.
All said they could probably follow the law but were not sure if
they could enter a verdict of death. Juror 49 replied “yes”
when asked, “It sounds like you believe the death penalty is
okay, but you are not sure that you could vote for it; is that
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true?” The prosecutor asked Juror 9 if it was possible,
“despite the evidence and the law, . . . because of how it makes
you feel, how it impacts you, that you couldn’t [impose the
death penalty]?” She responded, “There is a possibility,
certainly.” The court asked Juror 88, “Are you sure you can
. . . decide this case based on the law without the influence of
your personal opinions about the death penalty?” She responded,
“I would like to think that I could but I also [have] never been
put in that position to have to make that choice.” In each
case, the judge concluded that the juror might be unable to vote
to impose a death sentence based on his assessment of the
jurors’ responses.
¶20 As Wainwright recognizes, it is sometimes impossible
to ask enough questions to make a potential juror’s feelings
clearly known, and the judge witnessing the questioning may
maintain a lingering impression of bias. 469 U.S. at 424-25.
Wainwright approved the exclusion of a juror who was “afraid”
her beliefs might affect her ability to impose the death
penalty. Id. at 416, 435. In light of each juror’s hesitation
to promise to disregard personal feelings about the death
penalty, we conclude that the judge did not abuse his discretion
in excluding these three jurors for cause.
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B. Evidentiary Rulings During the Guilt Proceeding
1. Non-disclosure of Expert Testimony
¶21 Roque claims that the trial court erred in not
precluding Dr. Ben-Porath, an expert for the State, from
testifying regarding Roque’s mental illness because that
testimony had not been properly disclosed to the defense under
Rule 15.1(a)(3) of the Arizona Rules of Criminal Procedure. The
scope of disclosure required under Rule 15.1(a)(3) is a question
of law that we review de novo, see State v. Moody, 208 Ariz.
424, 445, ¶ 62, 94 P.3d 1119, 1140 (2004), while we review the
judge’s assessment of the adequacy of disclosure for an abuse of
discretion, State v. Piper, 113 Ariz. 390, 392, 555 P.2d 636,
638 (1976). We also review for abuse of discretion the trial
judge’s imposition of a sanction for non-disclosure. State v.
Armstrong, 208 Ariz. 345, 353-54, ¶ 40, 93 P.3d 1061, 1069-70
(2004).
a. Background
¶22 Because Roque did not dispute committing the crimes
for which he was charged, the only question during the guilt
proceeding was whether he was legally insane at the time he
committed them. The defense called a psychologist, Dr. Barry,
and a psychiatrist, Dr. Rosengard, who testified that Roque was
legally insane at the time of the shootings. The State
countered with Dr. Scialli, a psychiatrist who testified that
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Roque was not legally insane at the time of the shootings.
¶23 As part of his assessment of Roque’s mental condition,
Dr. Barry conducted five diagnostic tests, including the Miller
Forensic Assessment of Symptoms Test (M-FAST), a tool for
determining whether a subject is malingering, and the Minnesota
Multiphasic Personality Inventory 2 (MMPI-2), a tool for
assessing mental illness. The MMPI-2 requires the subject to
respond to 567 true-or-false statements by filling in a bubble
on an answer sheet. Because other diagnostic tests had revealed
that Roque had poor visual motor function, Dr. Barry
administered the MMPI-2 to Roque by reading the statements aloud
and recording Roque’s answers for him.
¶24 Several months before trial, the State informed the
defense that it intended to call a nationally known MMPI-2
expert, Dr. Ben-Porath, to testify that oral administration of
the MMPI-2 invalidates the results. In an interview, the
defense asked Dr. Ben-Porath how it might rehabilitate the MMPI-
2 results acquired from Dr. Barry’s oral testing of Roque. Dr.
Ben-Porath recommended letting at least six months pass before
re-administering the MMPI-2 to Roque to avoid a possible
“practice effect.”2
2
The other psychologists who testified at trial disagreed
that any “practice effect” arises from re-administering the
MMPI-2 because of the length of the test — 567 questions — and
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¶25 The defense hired Dr. Toma to re-administer the MMPI-2
to Roque. The re-test occurred three and one-half months after
the first administration of the MMPI-2 and two days after voir
dire began. Dr. Toma provided the new results to Dr. Barry, who
scored and incorporated them in his assessment of Roque. The
defense also notified the State of Dr. Toma’s testing and
disclosed the results.
¶26 At trial, the defense called Drs. Rosengard and Barry
to testify regarding Roque’s mental condition at the time of the
crimes. Before the defense rested, the State called Dr. Ben-
Porath out of order in rebuttal. The State had disclosed to the
defense only that Dr. Ben-Porath would testify regarding the
validity of the administrations of the MMPI-2. However, on the
stand, Dr. Ben-Porath began to interpret the results of Roque’s
MMPI-2 tests. The defense immediately objected that the
doctor’s testimony fell outside the scope of disclosure,
pointing out that the State had neither disclosed any written
report from Dr. Ben-Porath nor outlined his opinion. Citing
Arizona Rule of Criminal Procedure 15.1(a)(3), the defense
asserted that the State was obligated to disclose “an overview”
of the expert’s testimony, including an “outline” of his opinion
or a “written report.”
the fact that it does not test knowledge, but rather tests
reaction to certain statements.
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¶27 The judge concluded that the State would have had to
disclose any written report generated by Dr. Ben-Porath, but did
not have to create an overview of his testimony. The judge
therefore found no disclosure violation, but nonetheless
proposed giving the defense the remainder of the afternoon,
commencing at approximately 3:15 p.m., to interview Dr. Ben-
Porath. The defense attorney declined, saying that he could not
effectively challenge Dr. Ben-Porath’s expanded testimony on
such short notice. The judge ruled that Dr. Ben-Porath could
continue to testify, and the doctor proceeded to analyze Roque’s
MMPI-2 results in detail.
¶28 Dr. Ben-Porath then began to analyze the results of
the M-FAST that Dr. Barry had administered to Roque. The
defense again objected, this time because Dr. Ben-Porath was
testifying regarding a diagnostic tool other than the MMPI-2.
The judge overruled the objection. Dr. Ben-Porath proceeded to
opine on the critical questions of whether the MMPI-2 results
indicated that Roque had mental disorders and whether the M-FAST
results indicated malingering.
¶29 The prosecutors conceded below that they had not
revealed to the defense that Dr. Ben-Porath would testify to
anything other than the proper administration of the MMPI-2.
Recognizing that their failure to disclose the scope of Dr. Ben-
Porath’s testimony might create an appellate issue, the lead
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prosecutor said, “I don’t suppose an appellate court cares
whether I’m sorry about something but I think we had . . . a
miscommunication.” The prosecutor then said he would not object
if the defense had to hire another expert to rebut Dr. Ben-
Porath’s testimony because of the “miscommunication.”
b. The Scope of Disclosure Required under Rule
15.1(a)(3)
¶30 Arizona Rule of Criminal Procedure 15.1(a)(3)3
addresses the scope of disclosure of expert testimony in
criminal cases. It requires the State to provide or make
available to the defendant
[t]he names and addresses of experts who have
personally examined a defendant or any evidence in the
particular case, together with the results of physical
examinations and of scientific tests, experiments or
comparisons, including all written reports or
statements made by them in connection with the
particular case.
Ariz. R. Crim. P. 15.1(a)(3). Arizona Rule of Criminal
Procedure 15.6 makes the duty to disclose a continuing
obligation.
¶31 The trial court’s interpretation of Rule 15.1(a)(3) as
requiring the production only of a “written report or statement”
derives from the rule’s participial phrase, “including all
3
After Roque’s trial was completed, Rule 15.1(a) was revised
and Rule 15.1(a)(3) was renumbered as Rule 15.1(b)(4), effective
December 1, 2003. This opinion cites the version applicable to
Roque’s trial.
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written reports or statements made by [experts] in connection
with the particular case.” But the “including” language does
not limit disclosure of the “results of physical examinations
and of scientific tests, experiments or comparisons” to “written
reports or statements.” Typically, the word “including” is “not
one of all-embracing definition, but connotes simply an
illustrative application of the general principle.” Bernhart v.
Indus. Comm’n, 200 Ariz. 410, 413, ¶ 12, 26 P.3d 1181, 1184
(App. 2001) (quoting Fed. Land Bank of St. Paul v. Bismarck
Lumber Co., 314 U.S. 95, 100 (1941)).
¶32 The purpose of Rule 15.1(a)(3) is “to give full
notification of each side’s case-in-chief so as to avoid
unnecessary delay and surprise at trial.” Armstrong, 208 Ariz.
at 353, ¶ 38, 93 P.3d at 1069 (quoting State v. Dodds, 112 Ariz.
100, 102, 537 P.2d 970, 972 (1975)). The rule was “designed to
give the defendant an opportunity to check the validity of the
conclusions of an expert witness and to call such expert as his
own witness or to have the evidence examined by his own
independent expert witness.” State v. Spain, 27 Ariz. App. 752,
755, 558 P.2d 947, 950 (1976).
¶33 The Supreme Court has described the policy underlying
the discovery rules as facilitating the search for truth and
preventing surprise:
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[I]n the absence of a strong showing of state
interests to the contrary, discovery must be a two-way
street. The State may not insist that trials be run
as a “search for truth” so far as defense witnesses
are concerned, while maintaining “poker game” secrecy
for its own witnesses. It is fundamentally unfair to
require a defendant to divulge the details of his own
case while at the same time subjecting him to the
hazard of surprise concerning refutation of the very
pieces of evidence which he disclosed to the State.
Wardius v. Oregon, 412 U.S. 470, 475-76 (1973) (footnote
omitted). Arizona’s policy serves similar goals:
However so it may appear at times, a criminal trial is
not a contest of wits and tactics between the
prosecution and defense counsel. “We believe justice
dictates that the defendant be entitled to the benefit
of any reasonable opportunity to prepare his defense
and to prove his innocence.”
State ex rel. Helm v. Superior Court (Deddens), 90 Ariz. 133,
139, 367 P.2d 6, 10 (1961) (quoting State ex rel. Mahoney v.
Superior Court (Stevens), 78 Ariz. 74, 79, 275 P.2d 887, 890
(1954)).
¶34 Few Arizona cases have touched on the scope of
disclosure required under Rule 15.1(a)(3). By contrast, a
number of cases have addressed the scope of disclosure required
under other rules. See, e.g., State v. Williams, 183 Ariz. 368,
379, 904 P.2d 437, 448 (1995) (“Rule 15.1(a)(1) requires the
state to disclose the names of all [non-expert] witnesses
together with their relevant written or recorded statements,”
but does “not require the state to explain how it ‘intends’ to
use each of its witnesses.”); Englert v. Carondelet Health
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Network, 199 Ariz. 21, 25, ¶¶ 6-7, 13 P.3d 763, 767 (App. 2000)
(Rule 26.1 of the Arizona Rules of Civil Procedure requires a
party to disclose “a ‘fair description’ of each witness’s
expected testimony, and ‘the substance of the facts and
opinions’ of each expert’s expected testimony,” but not a
“detailed ‘scripting’ of expected testimony.”). But the other
rules do not include the language contained in Rule 15.1(a)(3)
requiring disclosure of “results of physical examinations and of
scientific tests, experiments or comparisons,” and these cases
are therefore of limited value in interpreting Rule 15.1(a)(3).4
¶35 Nor do the two published Arizona opinions analyzing
Rule 15.1(a)(3) control this case. In State v. Ramirez, this
court considered whether surprise, unwritten testimony by the
state’s expert as to the defendant’s mental illness violated
Rule 15.1(a)(3). 116 Ariz. 259, 267, 569 P.2d 201, 209 (1977).
But in that case, unlike this one, the state had not known that
4
Arizona Rule of Civil Procedure 26.1(a)(6) is broader than
Criminal Rule 15.1(a)(3). Rule 26.1(a)(6) requires disclosure
of “the subject matter on which the expert is expected to
testify, the substance of the facts and opinions to which the
expert is expected to testify,” and “a summary of the grounds
for each opinion.” The federal counterpart to Rule 15.1(a)(3)
is also broader than Arizona’s rule, requiring the government to
submit “to the defendant a written summary of any testimony that
the government intends to use . . . as evidence at trial on the
issue of the defendant’s mental condition. The summary provided
under this subparagraph must describe the witness’s opinions,
the bases and reasons for those opinions, and the witness’s
qualifications.” Fed. R. Crim. P. 16(a)(1)(G).
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its expert had made an assessment, so the relevant results were
not within the prosecutor’s “possession or control” as required
by the then-current version of Rule 15.1(a)(3).5 Id. at 268, 569
P.2d at 210.
¶36 In Spain, the court of appeals considered whether an
undisclosed in-court voice identification by the victim violated
Rule 15.1(a)(3). 27 Ariz. App. at 755, 558 P.2d at 950. The
court ultimately found no disclosure violation because Rule
15.1(a)(3) applies only to “expert testimony” and “clearly
pertains only to examinations, tests, experiments and
comparisons which have already been completed.” Id. Roque’s
case indisputably involves expert testimony.
¶37 No Arizona opinion pertaining to Rule 15.1(a)(3)
addresses a case in which the state knew that its expert had an
opinion on an issue to which he intended to testify, yet failed
to disclose it. Nor have we faced a situation in which a party
affirmatively represented that its expert would testify only
regarding the methodology of one test (MMPI-2), and then had the
expert interpret the results not only of that test, but also of
5
After Roque’s trial was completed, the Rules were revised
to make clear that the prosecutor’s obligations to disclose are
not limited to information within “the prosecutor’s possession
or control,” but also encompass information within the control
of certain other people, including “[a]ny other person who has
participated in the investigation or evaluation of the case and
who [is] under the prosecutor’s direction or control.” Ariz. R.
Crim. P. 15.1(f).
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another test (M-FAST) about which no disclosure was made.
Finally, we have never faced a case under Rule 15.1(a)(3) in
which an expert made no notes or reports whatsoever in an area
this complex, involving the interpretations of two tests
consisting of more than 1100 responses and the results of a
third assessment test. Courts in other states, however, have
addressed whether “results of physical examinations and of
scientific tests, experiments or comparisons” must be disclosed
even if unwritten.
¶38 The Kentucky Supreme Court considered whether a
defendant was entitled to disclosure of the Commonwealth’s
expert’s conclusion that traces of blood found on the
defendant’s hands and arms were traceable to the victim.
Barnett v. Commonwealth, 763 S.W.2d 119, 123 (Ky. 1988). The
expert did not include this opinion in his report, which had
been given to the defense. Id. After considering the Kentucky
analog to Arizona Rule 15.1(a)(3), which required disclosure of
“results or reports of physical or mental examinations, and of
scientific tests or experiments made in connection with the
particular case,” that court held it to be reversible error that
the expert’s report did not contain this “significant piece of
information, the expert’s opinion as to what the physical
findings indicated.” Id.
¶39 An Ohio court of appeals similarly concluded that, in
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combination with other errors, failure to disclose an important
expert opinion by not including it in the expert’s report
constituted reversible error. State v. Karl, 757 N.E.2d 30, 34-
35, 40 (Ohio Ct. App. 2001). Ohio’s version of Arizona Rule
15.1(a)(3) requires the state to “disclose the results or
reports of scientific tests made in connection with the case
that are known or by due diligence may become known to the
prosecutor.” Id. at 35 (citing Rule 16(B)(1)(d) of the Ohio
Rules of Criminal Procedure). On a question of forgery, the
state’s expert had concluded that the defendant’s handwriting
matched a signature in question, but had not included that
finding in the report provided to the defendant. Id. The court
found it “apparent that the prosecutor knew” of the expert’s
opinion from his questioning on direct examination. Id. The
failure to disclose this important finding violated the intent
of the disclosure rule and prejudiced the defendant by
potentially eliminating any reasonable doubt in the minds of the
jurors without giving the defense the opportunity to call its
own witness to rebut the evidence. Id.
¶40 Consistent with this case law, we hold that Rule
15.1(a)(3) applies even if an expert has not written down the
“results of physical examinations and of scientific tests,
experiments or comparisons,” as long as such results are known
to the state. Such a reading of Rule 15.1(a)(3) serves to avoid
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surprise and delay at trial, Armstrong, 208 Ariz. at 353, ¶ 38,
93 P.3d at 1069, and to allow a party time to check the
conclusions of the opposing party’s expert and call an expert in
rebuttal, if necessary, Spain, 27 Ariz. App. at 755, 558 P.2d at
950. We therefore conclude, under these facts, that the trial
court erred in ruling that Rule 15.1(a)(3) requires that only a
“written report or statement” need be disclosed.
c. The Adequacy of the State’s Disclosure
¶41 Dr. Ben-Porath’s testimony far exceeded a discussion
of the validity of an oral administration of the MMPI-2 followed
three months later by a paper administration of the test. Dr.
Ben-Porath analyzed several of Roque’s scores from both test
administrations, such as those indicating bizarre mentation.
Indeed, Dr. Ben-Porath testified to the ultimate question in
dispute, opining that Roque’s MMPI-2 scores did not indicate
that Roque had any of several mental conditions about which the
prosecutor questioned him. On this critical issue, Dr. Ben-
Porath was the only expert to find no evidence of mental
illness. Dr. Ben-Porath also testified that Roque’s M-FAST
score indicated malingering, and he offered a general
psychological opinion in response to a juror’s question.
¶42 Dr. Ben-Porath’s testimony clearly revealed that he
had completed his analysis before taking the stand. For
example, with regard to Dr. Barry’s interpretation of Roque’s M-
- 21 -
FAST score, Dr. Ben-Porath testified as follows:
Well, clearly, [Roque] didn’t reach the threshold for
declaring he’s malingering because you needed to get a
score of five, of six, excuse me. The part that I
found significant was when I read Dr. Barry’s
interpretation of that score he said the score of five
indicates [Roque] wasn’t malingering. That is not
true. It’s still a very high score.
Discussing Roque’s bizarre mentation scores on the MMPI-2, Dr.
Ben-Porath acknowledged that he had reviewed Dr. Toma’s report
to reach his own conclusions about Roque’s mental condition.
¶43 The questioning by the State also makes clear that the
prosecutor knew of Dr. Ben-Porath’s scientific conclusions
before the doctor took the stand, satisfying the requirement in
the then-applicable version of Rule 15.1(a)(3) that the
information be “within the prosecutor’s possession or control.”
In considering the defense’s disclosure objection, the court
said to the prosecutor, “So you want to talk about, number one,
there [are] differences [between the two MMPI-2 tests], and
number two, Dr. Barry’s interpretation is wrong and the real
interpretation or the accurate interpretation should be this.”
The prosecutor replied, “Right. So [for] example, Dr. Barry
said that this shows signs of schizotypal personality
[disorder]. The test itself will show that that’s not the case.
So it’s the interpretation — it’s what the test is actually
saying.” It was also clear in the line of questioning
throughout the direct examination that the prosecutor already
- 22 -
knew the conclusions to which Dr. Ben-Porath would testify. The
State therefore should have disclosed that information to the
defense under Rule 15.1(a)(3).
¶44 The State argues that the defense should have
anticipated that Dr. Ben-Porath “would testify regarding what
the defense expert relied on, as well as the defense expert’s
evaluation.” But the record does not bear this out. The State
had engaged Dr. Ben-Porath, an expert in the administration of
the MMPI-2, to support its contention that the oral
administration of the MMPI-2 invalidated the results, and it had
disclosed only that information to the defense. That disclosure
was not sufficient to put the defense on notice that Dr. Ben-
Porath had interpreted Roque’s scores on the MMPI-2 and M-FAST
tests and assessed Roque’s mental health.
¶45 Moreover, the State had retained another expert, Dr.
Scialli, to assess Roque’s mental health and had disclosed to
the defense his report opining that Roque was not legally insane
at the time he committed the crimes. The defense should
therefore not have been expected to infer that Dr. Ben-Porath
also would testify regarding the ultimate issue.
¶46 Nor would the defense necessarily have expected Dr.
Ben-Porath to testify on the ultimate issue of Roque’s mental
health based solely on tests previously administered to Roque by
others. All other experts who testified stressed the importance
- 23 -
of personally interviewing the subject and reviewing collateral
information in addition to analyzing test results before
assessing a subject’s mental health. Dr. Ben-Porath had neither
interviewed Roque nor examined any collateral information.
¶47 We also find unconvincing the State’s explanation that
it failed to disclose Dr. Ben-Porath’s findings because it “did
not learn that a second test had been administered (by Dr. Toma)
until trial began.” In his interview by the defense more than a
month before trial, which the prosecutor attended, Dr. Ben-
Porath had recommended that a second MMPI-2 test be administered
to Roque to remedy the problems with the first administration.
Dr. Ben-Porath advised the defense to wait as long as possible
to re-administer the test to ameliorate any practice effect. In
light of its own expert’s advice, the State should not have been
surprised that the defense delayed as long as possible before
having the MMPI-2 re-administered to Roque.
¶48 Nor did the re-administration of the MMPI-2 test cause
the expansion of Dr. Ben-Porath’s testimony. The State’s
intention to have Dr. Ben-Porath testify on his conclusions
regarding Roque’s M-FAST and first set of MMPI-2 results, for
example, could have been disclosed to the defense when the State
hired Dr. Ben-Porath, because the State already possessed those
results at that time. But the State disclosed only that it
intended for Dr. Ben-Porath to testify regarding the proper
- 24 -
procedure for administering the MMPI-2. The State’s failure to
fully and fairly disclose to the defense the results of Dr. Ben-
Porath’s assessment of Roque’s mental health, the critical issue
in this capital case, violated Rule 15.1(a)(3).
d. The Proposed Sanction
¶49 In this case, although the trial court did not find a
disclosure violation, it nonetheless sought to avoid any
prejudice from the nondisclosure. When the defense objected to
Dr. Ben-Porath’s expanded testimony, the judge proposed that the
court break for the day at 3:15 p.m. to allow the defense to
interview Dr. Ben-Porath. The defense declined to do so.
¶50 Arizona Rule of Criminal Procedure 15.7 provides
several sanctions that the trial court may impose for non-
compliance with the rules of discovery, including “granting a
continuance” or “[p]recluding a party from calling a witness,
offering evidence, or raising a defense not disclosed.” In
selecting the appropriate sanction, the trial court
should seek to apply sanctions that affect the
evidence at trial and the merits of the case as little
as possible since the Rules of Criminal Procedure are
designed to implement, not to impede, the fair and
speedy determination of cases. Prohibiting the
calling of a witness should be invoked only in those
cases where other less stringent sanctions are not
applicable to effect the ends of justice. The court
should also consider how vital the precluded witness
is to the proponent’s case, whether the opposing party
will be surprised and prejudiced by the witness’
testimony, whether the discovery violation was
- 25 -
motivated by bad faith or willfulness, and any other
relevant circumstances.
State v. Fisher, 141 Ariz. 227, 246, 686 P.2d 750, 769 (1984)
(citations omitted). Even though the superior court found no
violation of the Rule here, had it done so, the short
continuance offered by the trial judge was an appropriate
initial approach to resolving the issue.
¶51 If a discovery dispute arises, the parties must make
good faith efforts to resolve it. When the trial court imposes
a sanction, a party may not simply decline it in the hope that
the court will substitute a more stringent sanction. Because
precluding the testimony of a witness should ordinarily not be
the trial court’s sanction of first resort, see id., we cannot
say that the trial court acted unreasonably here in initially
proposing a short continuance. The defense should have accepted
the opportunity to interview Dr. Ben-Porath to determine whether
the defense required additional time or witnesses to adequately
prepare its rebuttal. If more time was then needed, the defense
could have requested an appropriate continuance or suggested
another approach. Because the defense categorically rejected
the trial court’s initial attempt to resolve the dispute,
however, we cannot now fully assess the prejudice the defense
may ultimately have suffered. See Paragon Bldg. Corp. v.
Bankers Trust Co., 116 Ariz. 87, 89, 567 P.2d 1216, 1218 (App.
- 26 -
1977). We therefore cannot conclude that the trial court abused
its discretion in failing to grant further relief.
¶52 By failing to disclose the scope of Dr. Ben-Porath’s
testimony, the State engaged in improper conduct. See State v.
Tucker, 157 Ariz. 433, 441, 759 P.2d 579, 587 (1988) (observing
that, without reversal, counsel may consider admonition only a
“verbal spanking”). But because the trial court imposed an
appropriate initial sanction that the defense refused to accept,
we cannot conclude that the trial court’s failure to preclude
Dr. Ben-Porath’s testimony constitutes reversible error.6
2. Admission of Prior Conviction Evidence
¶53 Dr. Scialli, a State expert, testified that in
assessing Roque’s mental health, he considered Roque’s 1983
attempted robbery conviction. Citing Arizona Rule of Evidence
403, Roque asserts that the judge erred in allowing evidence of
the conviction because its prejudicial effect substantially
outweighed its probative value. We review this evidentiary
ruling for an abuse of discretion. See State v. Aguilar, 209
Ariz. 40, 49, ¶ 29, 97 P.3d 865, 874 (2004).
¶54 Generally, evidence of other wrongs may not be used
“to show that a defendant is a bad person or has a propensity
6
We do consider the State’s failure to disclose the extent
of Dr. Ben-Porath’s testimony in assessing whether cumulative
prosecutorial misconduct warrants reversal in this case. See
infra ¶¶ 162-65.
- 27 -
for committing crimes.” State v. Amarillas, 141 Ariz. 620, 622,
688 P.2d 628, 630 (1984) (citation omitted); see also Ariz. R.
Evid. 404(b). “When insanity is at issue, [however,] evidence
of prior bad acts is admissible if relevant, Ariz. R. Evid. 402,
and if the probative value of the evidence is not substantially
outweighed by unfair prejudice, Ariz. R. Evid. 403.” State v.
Vickers, 159 Ariz. 532, 540, 768 P.2d 1177, 1185 (1989).
¶55 In State v. Amarillas, for example, we found the prior
bad acts of a defendant who asserted an insanity defense
relevant to prove lack of mental illness. 141 Ariz. at 622-23,
688 P.2d at 630-31. Amarillas argued that his crimes resulted
from paranoid delusions; the state countered that the crimes
were alcohol-induced. Id. Because Amarillas had committed
other crimes while intoxicated, evidence of those crimes
suggested that alcohol, rather than paranoid delusions, likely
induced the criminal acts. Id. We concluded that evidence of
the prior bad acts was relevant and there was no error in
admitting it. Id. Similarly, in Vickers we concluded that
evidence of prior bad acts was not outweighed by unfair
prejudice, and the trial court therefore did not abuse its
discretion in admitting that evidence. 159 Ariz. at 540, 768
P.2d at 1185 (no abuse of discretion in admitting prior bad acts
to show that the defendant’s crimes were not “random [or]
senseless” on account of temporal lobe epilepsy, but rather were
- 28 -
deliberate).
¶56 Here, however, the judge permitted an expert to
testify regarding his reliance on the conviction in assessing
Roque’s mental health. Roque does not contest that evidence of
his previous conviction is the type of evidence reasonably
relied upon by experts in making mental health assessments.
Under the Rules of Evidence, therefore, the evidence may be
disclosed as forming the basis of an opinion without regard to
its independent admissibility. See Ariz. R. Evid. 703. Roque
claims, however, that the mention of the conviction was so
unduly prejudicial that it outweighed the probative value of the
evidence.
¶57 We agree that Roque’s 1983 attempted robbery
conviction had only minimal probative value in showing a lack of
mental illness because the State did not produce evidence that
the attempted robbery was alcohol-induced or that it was
motivated by racism, which were its theories at trial. Nor did
Dr. Scialli’s testimony demonstrate the relevance of the 1983
conviction to his assessment of Roque’s mental health. See Ex
parte Vaughn, 869 So. 2d 1090, 1097, 1099 (Ala. 2002) (finding
probative value of prior bad acts substantially outweighed by
prejudice where state “presented nothing to indicate that the
prior acts committed by [defendant] were relevant to his mental
state during the shooting that occurred . . . many years
- 29 -
later”).
¶58 But if the probative value of the conviction was
minimal, so was any prejudicial effect. The jury heard of the
conviction from at least two other experts, Dr. Potts and Dr.
Rosengard, who testified that because of the age of the
conviction and lack of violence involved, it did not affect
their assessments of Roque’s mental health. Moreover, Roque
admitted doing the acts that constituted the crimes for which he
was charged in this trial, so the jury did not rely on the prior
conviction to conclude that Roque may have acted in conformity
with it in committing the present crimes. Finally, we note that
the trial judge offered to give a limiting instruction advising
the jurors to consider the conviction only as information relied
upon by the expert, but Roque declined the offer.
¶59 We conclude in these circumstances that any
prejudicial effect of the conviction does not substantially
outweigh its minimal probative value. The judge therefore did
not abuse his discretion in allowing evidence of the conviction.
3. Exclusion of Testimony as Hearsay
¶60 Roque’s sister Sylvia testified regarding their
mother’s mental illness. On cross-examination, the prosecutor
asked Sylvia if her mother had ever physically hurt her. Sylvia
replied, “I was told that she once tried to push me into traffic
by my grandmother.” The prosecutor objected on hearsay grounds,
- 30 -
and the judge sustained the objection. The judge then said,
“That testimony is stricken from the record. It’s inadmissible
under the rules of evidence as not being reliable. Please
disregard it.”
¶61 Roque asserts that Sylvia’s statement was material
because it showed that a family member’s mental illness had led
to violence. Roque further asserts that the judge erroneously
struck Sylvia’s statement as hearsay because it had the
“circumstantial guarantees of trustworthiness” required for
admission under Rule 803(24) of the Arizona Rules of Evidence.
Roque also argues that the judge erred by telling the jury that
the statement was “not reliable” because the judge thereby
implied that Sylvia’s testimony generally lacked reliability.
a. Rule 803(24)
¶62 Because Roque did not mention Rule 803(24) at trial in
response to the prosecutor’s hearsay objection, we review
Roque’s “circumstantial guarantee” argument only for fundamental
error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115
P.3d 601, 607 (2005) (fundamental error standard applies if no
objection made at trial). “To obtain relief under the
fundamental error standard of review, [Roque] must first prove
error.” Id. at 568, ¶ 23, 115 P.3d at 608.
¶63 Rule 803(24) of the Arizona Rules of Evidence is an
exception to the hearsay rule that allows the admission of
- 31 -
evidence that possesses “equivalent circumstantial guarantees of
trustworthiness” to evidence admissible pursuant to the other
hearsay exceptions. The offered statement must be “evidence of
a material fact” that is “more probative on the point for which
it is offered than any other evidence which the proponent can
procure through reasonable efforts,” and its admission must
serve the “interests of justice.” Ariz. R. Evid. 803(24). A
judge must consider the “spirit rather than the letter” of Rule
803(24), and “look at each case individually [to] determine the
reliability of the particular evidence.” State v. Robles, 135
Ariz. 92, 95, 659 P.2d 645, 648 (1983). Factors the judge
should consider include the “presence of oath or cross-
examination,” the “ability of a declarant to perceive clearly,”
the “amount of time between event and declaration,” any
“corroboration,” the “self-incriminatory nature of the
declaration,” whether the “declaration was unambiguous and
explicit [or] contrary to [the declarant’s] pecuniary
interests,” and whether there are “multiple levels of hearsay”
involved. Id. (citing cases).
¶64 The judge did not err here in precluding Sylvia’s
statement. The statement allegedly made by Sylvia’s grandmother
was not made under oath or subject to cross-examination, and
nothing in the record indicates that she made the statement near
the time of the event in question. Nor is any other indicator
- 32 -
of reliability present. While Roque may be correct that a
grandmother is unlikely to lie to her granddaughter about an
attempt to hurt her, we cannot know whether Sylvia’s grandmother
ever made the statement, let alone whether Sylvia offered it
truthfully or accurately. The trial judge did not err in
concluding that the statement does not exhibit the reliability
necessary to qualify as an exception to the hearsay rule.
b. Explaining the Legal Reasoning to the Jury
¶65 Roque did not object when the judge explained to the
jury that he struck Sylvia’s hearsay statement “as not being
reliable,” so we review the comment only for fundamental error.
See Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. Error
is fundamental if it “go[es] to the foundation of the case,
. . . takes from the defendant a right essential to
[defendant’s] defense, and [is] of such magnitude that the
defendant could not possibly have received a fair trial.” Id.
(quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982
(1984)). We reverse only if the error actually prejudiced the
defendant. Id. ¶ 20.
¶66 Historically, judges were permitted to comment on the
general weight of evidence to assist the jury in reaching its
verdicts. 9 WIGMORE ON EVIDENCE § 2551 (1981). In Arizona,
however, the constitution prohibits judges from commenting on
the evidence. Ariz. Const. art. 6, § 27. To violate this
- 33 -
prohibition, “the court must express an opinion as to what the
evidence proves” or “interfere with the jury’s independent
evaluation of that evidence.” State v. Rodriguez, 192 Ariz. 58,
63, ¶ 29, 961 P.2d 1006, 1011 (1998) (citations omitted).
¶67 Roque asserts that the judge’s comment on the
reliability of Sylvia’s statement was “implied vouching” and
suggests that “there is a reasonable likelihood that at least
one of the jurors considered this implied vouching in deciding
if other parts of Sylvia’s testimony were true.” This, Roque
maintains, constitutes judicial interference with the jury’s
independent evaluation of the evidence.
¶68 We agree that the judge should not imply that a
witness’s testimony is unreliable. State v. Philpot, 66 N.W.
730, 732 (Iowa 1896) (noting that “it is a matter of common
knowledge that jurors hang tenaciously upon remarks made by the
court during the progress of the trial”). But while the trial
judge would have been better advised simply to sustain the
motion to strike without explaining his reasoning, we do not
believe that his comments can be taken as relating to anything
but the stricken testimony. Moreover, were we to assume that
the judge’s explanation regarding one statement was a comment
regarding the reliability of Sylvia’s testimony generally, any
error would not be fundamental, as Sylvia’s other statements did
little to establish that Roque was mentally ill at the time of
- 34 -
the commission of his crimes. The judge’s explanation therefore
was not of such magnitude that Roque could not have received a
fair trial.
4. Right to Confront Source of Testimonial Statements
¶69 During the videotaped interrogation of Roque after the
shootings, the police detectives told Roque that his wife, Dawn,
had made statements to them incriminating Roque. Dawn refused
to testify at trial. Roque asserts that the admission of the
videos at trial violated the Sixth Amendment’s Confrontation
Clause as interpreted in Crawford v. Washington, 541 U.S. 36
(2004), because the detectives used Dawn’s statements in
questioning Roque and Roque had no opportunity to cross-examine
Dawn.
¶70 The trial court’s admission of the videos did not
violate the Confrontation Clause. Crawford establishes that the
Sixth Amendment right to confront witnesses attaches to
testimonial witness statements made to a government officer to
establish some fact. See 541 U.S. at 68. In this case,
however, there was no evidence presented that Dawn actually made
the statements that the detectives used in questioning Roque.
The detectives’ report of what Dawn said was not being offered
at trial for the truth of the matters allegedly asserted by Dawn
and therefore did not constitute hearsay. Instead, the
detectives were using an interrogation technique to elicit a
- 35 -
confession from Roque. The judge instructed the jury, in
watching the interrogation videos, not to consider the
detectives’ statements for their truth. Because the statements
allegedly made by Dawn were never introduced for their truth,
they were not testimonial hearsay statements barred by the
Confrontation Clause. See id. at 59 n.9. The admission of the
videotaped statements therefore did not violate Roque’s rights
under the Confrontation Clause.
C. Jury Instructions in the Guilt Proceeding
1. Adequacy of Guilty Except Insane Instructions
¶71 At trial, Roque claimed that before the shootings, he
heard God’s voice instructing him to “kill the devils.” Roque
now argues that the jury should have been instructed to consider
whether his belief that he was commanded by God to kill negated
any understanding that his acts were “wrongful” under Arizona’s
insanity statute, A.R.S. § 13-502 (2001). Specifically, Roque
argues that the jury should have been instructed that (1) the
statutory definition of insanity encompasses both moral
wrongfulness and legal wrongfulness; (2) the definition of
insanity includes the first prong of the M’Naghten test — that
the defendant has no knowledge of the nature and quality of the
act; and (3) mental illness may negate the element of mens rea.
The judge actually instructed the jury, pursuant to statutory
terms, that a “person is guilty except insane if at the time of
- 36 -
the commission of the criminal act, the person was afflicted
with a mental disease or defect of such severity that the person
did not know the criminal act was wrong.”
¶72 The insanity instruction given in Roque’s trial, which
reflected the language of A.R.S. § 13-502, consists of a portion
of the M’Naghten test for insanity. See Clark v. Arizona, ___
U.S. ___, ___, 126 S. Ct. 2709, 2718 (2006). The complete
M’Naghten test states that a person is not responsible for
criminal conduct by reason of insanity if, at the time of the
conduct, (1) the person was suffering from a mental disease or
defect so as not to know the nature and quality of the act, or
(2) the person did not know that what he was doing was wrong.
Id. at 2719; see also State v. Mott, 187 Ariz. 536, 541, 931
P.2d 1046, 1051 (1997). Arizona’s definition encompasses only
the second prong. Clark, 126 S. Ct. at 2718; see also A.R.S. §
13-502(A). In Clark, the Supreme Court held that Arizona’s
definition of insanity does not deny a defendant due process.
126 S. Ct. at 2724. The Court also concluded that due process
does not require that a jury determine whether mental illness
negates mens rea. Id. at 2737; see also Mott, 187 Ariz. at 541,
931 P.2d at 1051. Accordingly, in this case, the trial court
did not err in instructing the jury regarding a guilty except
insane verdict.
- 37 -
2. Definition of “Clear and Convincing”
¶73 The trial court instructed the jury that, for a
verdict of guilty except insane, it must find that Roque proved
by clear and convincing evidence that he was legally insane at
the time of the commission of the crimes. See A.R.S. § 13-
502(C). The court defined “clear and convincing” as “highly
probable,” and added that “[t]his is a lesser standard of proof
than beyond a reasonable doubt.” By contrast, the court defined
“[p]roof beyond a reasonable doubt” as “proof that leaves you
firmly convinced of the defendant’s guilt.”
¶74 Roque asserts that the trial court erred in defining
“clear and convincing” because the “highly probable” instruction
with respect to clear and convincing evidence is
indistinguishable from the “firmly convinced” instruction given
with respect to proof beyond a reasonable doubt. Roque did not
object at trial, so we review only for fundamental error. See
Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607.
¶75 This court has adopted the definition of “clear and
convincing” that requires the jury to “be persuaded that the
truth of the contention is ‘highly probable.’” In re Neville,
147 Ariz. 106, 111, 708 P.2d 1297, 1302 (1985) (quoting MCCORMICK
ON EVIDENCE § 340(b) (2d ed. 1972)). Moreover, we have
repeatedly stated that jury instructions must be considered as a
whole. E.g., State v. Schrock, 149 Ariz. 433, 440, 719 P.2d
- 38 -
1049, 1056 (1986). In this case, the jury instructions complied
with precedent in defining clear and convincing as “highly
probable.” The judge also instructed that the clear and
convincing standard is lower than the beyond a reasonable doubt
standard of proof, thereby establishing the relative positions
of the standards.
¶76 Roque cites State v. Renforth, 155 Ariz. 385, 746 P.2d
1315 (App. 1987), for the proposition that erroneous jury
instructions constitute fundamental error. But Renforth stated
that the proper definition of “clear and convincing” is “highly
probable,” precisely as it was defined here, and found problems
only with the use of the terms “unambiguous” and “certain” in
the jury instructions. Id. at 388, 746 P.3d at 1318. This
court and others have cited Renforth with approval. See United
States v. Owens, 854 F.2d 432, 436 n.8 (11th Cir. 1988); State
v. King, 158 Ariz. 419, 422-23, 763 P.2d 239, 242-43 (1988).
Because the instruction at issue used the approved term “highly
probable” and correctly advised the jury that clear and
convincing is a lower standard than proof beyond a reasonable
doubt, there was no error in these jury instructions.
3. Constitutionality of Burden of Persuasion for Insanity
¶77 Roque claims that placing the burden on a defendant to
prove insanity by clear and convincing evidence, as required by
A.R.S. § 13-502(C), violates due process. We considered and
- 39 -
rejected this claim in State v. Moorman, 154 Ariz. 578, 586, 744
P.2d 679, 687 (1987). In that case, we observed that the
Supreme Court has upheld imposing on a defendant “the burden of
proving insanity beyond a reasonable doubt.” Id. (citing Leland
v. Oregon, 343 U.S. 790, 798 (1952)). If the requirement of
proof beyond a reasonable doubt is not unconstitutionally high,
neither is the requirement that a defendant prove insanity by
clear and convincing evidence.
D. Aggravation Phase Issues
1. State’s Cross-Appeal: Dismissal of (F)(2) Aggravating
Factor
¶78 Just before trial, the State filed an amended notice
of aggravating circumstances listing a 1983 California
conviction for attempted robbery as a qualifying prior serious
offense under A.R.S. § 13-703(F)(2). Concluding that the
California conviction did not qualify as a serious offense under
Arizona law, the judge granted a defense motion in limine.
After trial, the State filed a cross-appeal asserting that the
trial court erred in dismissing the (F)(2) aggravating factor.
See A.R.S. § 13-4032(3) (2001).
¶79 We elect to decide the cross-appeal because it
“presents a question of statutory interpretation of general
applicability in death penalty cases that we believe needs to be
resolved.” State v. Romanosky, 162 Ariz. 217, 227, 782 P.2d
- 40 -
693, 703 (1989). Its resolution also bears on our independent
review under A.R.S. § 13-703.04 (Supp. 2003). We review this
question of law de novo. Moody, 208 Ariz. at 445, ¶ 62, 94 P.3d
at 1140.
¶80 Section 13-703(F)(2) provides that “[t]he trier of
fact shall consider,” as an aggravating factor in a capital
case, that “[t]he defendant was previously convicted of a
serious offense, whether preparatory or completed.” Robbery
qualifies as a serious offense when committed outside Arizona if
the act would have constituted the offense of robbery if it had
been committed in Arizona. A.R.S. § 13-703(H)(8).7
a. Statutory Comparison of Attempted Robbery
¶81 When considering an offense committed in another
state, “[t]he statutory definition of the prior crime, and not
its specific factual basis, dictates whether an aggravating
circumstance exists under A.R.S. § 13-703(F)(2).” State v.
Henry, 176 Ariz. 569, 587, 863 P.2d 861, 879 (1993).8 To protect
“a criminal defendant’s due process rights,” a court “may not
consider other evidence[] or bring in witnesses” to establish
7
Section 13-703(H) was renumbered as § 13-703(I) in 2005.
8
The case law cited here addresses the predecessor to the
version of A.R.S. § 13-703(F)(2) applicable in this case, which
read: “The defendant was previously convicted of a felony in
the United States involving the use or threat of violence on
another person.” The rationale in those cases applies to both
versions of the statute.
- 41 -
the offense. State v. Schaaf, 169 Ariz. 323, 333-34, 819 P.2d
909, 919-20 (1991). We “will not ‘allow what is, in effect, a
second trial on defendant’s prior conviction to establish the
existence of an A.R.S. § 13-703(F)(2) aggravating
circumstance.’” Id. at 334, 819 P.2d at 920 (quoting State v.
Gillies, 135 Ariz. 500, 511, 662 P.2d 1007, 1018 (1983)).
¶82 The question is therefore whether, based on the
statutory provisions, Roque’s attempted robbery in California
would have constituted an attempted robbery if it had been
committed in Arizona. In Arizona,
[a] person commits robbery if in the course of taking
any property of another from his person or immediate
presence and against his will, such person threatens
or uses force against any person with intent either to
coerce surrender of property or to prevent resistance
to such person taking or retaining property.
A.R.S. § 13-1902(A) (2001). “‘Threat’ means a verbal or
physical menace of imminent physical injury to a person.”
A.R.S. § 13-1901(4) (2001). “‘Force’ means any physical act
directed against a person as a means of gaining control of
property.” A.R.S. § 13-1901(1).
¶83 In California, “[r]obbery is the felonious taking of
personal property in the possession of another, from his person
or immediate presence, and against his will, accomplished by
means of force or fear.” Cal. Penal Code § 211 (West, Westlaw
through 2006). “Fear” is defined as:
- 42 -
1. The fear of an unlawful injury to the person or
property of the person robbed, or of any relative
of his or member of his family; or,
2. The fear of an immediate and unlawful injury to
the person or property of anyone in the company
of the person robbed at the time of the robbery.
Cal. Penal Code § 212 (West, Westlaw through 2006) (emphases
added).
¶84 A comparison of these robbery statutes makes it
evident that one may attempt a robbery in California by acts
that do not constitute an attempted robbery if committed in
Arizona. A robbery in Arizona requires either a threat — a
menace of imminent injury to a person — or force — a physical
act directed against a person. A.R.S. §§ 13-1902(A) & -1901(1),
(4). By contrast, one may attempt robbery in California by
creating a fear of injury to the property of the person robbed
or anyone in his company. Cal. Penal Code §§ 211-12. Thus, on
the face of the statutes, one who attempts to take property from
a victim by means of fear of injury to the victim’s property may
be convicted of attempted robbery in California, but not in
Arizona.
¶85 In addition, the imminent nature of a threat of
physical injury to the victim contained in the Arizona robbery
statute is missing from the California statute. Compare A.R.S.
§ 13-1901(4) with Cal. Penal Code § 212. In Arizona, a verbal
threat includes only a “menace of imminent physical injury.”
- 43 -
A.R.S. § 13-1901(4). Thus, if one attempts a robbery by saying,
“Give me your money or I’ll shoot you next year,” one may again
be convicted of attempted robbery under California’s statutory
language, but not under Arizona’s.
¶86 Accordingly, the California and Arizona robbery
statutes are not coterminous. The trial judge therefore did not
err in concluding that acts constituting attempted robbery under
California law do not necessarily constitute an attempted
robbery under Arizona law. The California attempted robbery
does not qualify as a “serious offense” aggravating factor under
(F)(2).
b. Consideration of the 1983 Complaint
¶87 In contravention of the rule established in Henry, 176
Ariz. at 587, 863 P.2d at 879, and Schaaf, 169 Ariz. at 333-34,
819 P.2d at 919-20, the State asks us to look beyond the
language of the statutes to the Complaint filed in the 1983
attempted robbery conviction. In a deviation from the statutory
language defining robbery, the Complaint alleges that Roque
attempted to take personal property by means of “force and fear”
instead of “force or fear.” Because force was included in that
allegation, the State argues, Roque’s conviction qualifies as
attempted robbery in Arizona. The State therefore asks that we
find the existence of the (F)(2) aggravating factor here.
¶88 The State cites State v. Thompson, for the proposition
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that a sentencing court may rely on facts set forth in the
information of a prior offense committed outside Arizona to find
that the prior offense would constitute a felony in Arizona for
purposes of sentence enhancement, if the information is
incorporated by reference in the judgment of conviction. 186
Ariz. 529, 532-33, 924 P.2d 1048, 1051-52 (App. 1996). In
Thompson, however, the court used the charge contained in the
information only to narrow the foreign conviction to a
particular subsection of the statute that served as the basis of
the foreign conviction. Id. at 532, 924 P.2d at 1051. In this
case, the State asks us to infer from the Complaint the factual
nature of the prior conviction. We decline to do so. Because
the acts constituting attempted robbery under California law do
not necessarily constitute an attempted robbery under Arizona
law, the trial court did not err in dismissing the (F)(2)
aggravating factor based on Roque’s 1983 attempted robbery
conviction.
2. Validity of (F)(3) Aggravating Factor
¶89 Roque argues that applying the A.R.S. § 13-703(F)(3)
aggravating factor — knowingly creating a grave risk of death to
Louis Ledesma while shooting Balbir Sodhi — renders him eligible
for death when those of greater culpability would not be death
eligible. Thus, he claims, the factor does not serve to
appropriately narrow the class of persons eligible for the death
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penalty, rendering it capricious and arbitrary. This claim
raises a matter of statutory interpretation and constitutional
law, which we review de novo. State v. Christian, 205 Ariz. 64,
66, ¶ 6, 66 P.3d 1241, 1243 (2003) (interpreting statutory
provision); Moody, 208 Ariz. at 445, ¶ 62, 94 P.3d at 1140
(interpreting constitutional provision).
¶90 Roque bases his claim on our cases holding that the
(F)(3) factor does not apply when the defendant creates a risk
to an intended victim of the crime. State v. Fierro, 166 Ariz.
539, 550, 804 P.2d 72, 83 (1990); State v. Tison, 129 Ariz. 526,
542, 633 P.2d 335, 351 (1981). While an additional homicide may
trigger the A.R.S. § 13-703(F)(8) aggravating factor (multiple
homicides), a crime against an intended victim not resulting in
death (attempted murder or assault, for example) does not
trigger any aggravating factor.9 See State v. Gretzler, 135
Ariz. 42, 57 & n.2, 659 P.2d 1, 16 & n.2 (1983) (confirming that
crimes occurring in the same series of events do not trigger
(F)(2), the prior serious offense aggravator). Thus, despite
the fact that our criminal statutes generally penalize
intentional acts more harshly than unintentional ones, Roque
faces the death penalty precisely because he did not intend to
9
Of course, that crime might warrant an additional sentence
upon a conviction for attempted murder (or another offense), but
the crime could not be used as an aggravating factor to render
the defendant eligible for the death penalty.
- 46 -
harm Ledesma. This, Roque claims, violates the fundamental
“precept of justice that punishment for crime should be
graduated and proportioned to the offense.” Roper v. Simmons,
543 U.S. 551, 560 (2005) (quoting Weems v. United States, 217
U.S. 349, 367 (1910)); accord Atkins v. Virginia, 536 U.S. 304,
311 (2002). Roque contends that our statutes do not “permit the
sentencer to make a principled distinction between those who
deserve the death penalty and those who do not.” Lewis v.
Jeffers, 497 U.S. 764, 776 (1990) (collecting cases).
¶91 We disagree with Roque’s assertion that the (F)(3)
aggravating factor does not rationally distinguish between a
defendant who deserves the death penalty and one who does not.
This court recently confirmed that the (F)(3) factor 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. State v. Johnson, 212 Ariz. 425, 438, ¶ 52, 133 P.2d
735, 748 (2006) (citing State v. Wood, 180 Ariz. 53, 69, 881
P.2d 1158, 1174 (1994)). The fact that the legislature has not
also established an aggravating factor based on endangerment to
an intended victim does not render the (F)(3) factor arbitrary
or capricious. The (F)(3) factor still requires a defendant to
have put a third party at grave risk of death in the commission
of a murder, and, by distinguishing that act from murders in
- 47 -
which no third parties are endangered, the (F)(3) factor
adequately narrows the class of defendants eligible for the
death penalty.
¶92 Moreover, the jury instructions clarified the meaning
of the (F)(3) factor. The instructions given in Roque’s case
not only tracked the statutory language, but also informed the
jury that the “mere presence of Ledesma near Mr. Sodhi during
the shooting” was not enough to support the (F)(3) factor.
These instructions substantially reflected instructions
requested by Roque. With appropriate instructions such as those
given here, the (F)(3) factor adequately channels the jurors’
discretion to impose the death penalty. Accordingly, we
conclude that the (F)(3) aggravating factor is not
unconstitutionally capricious or arbitrary.10
3. Sufficiency of Evidence of (F)(3) Aggravating Factor
¶93 Roque next claims that the State failed to prove the
(F)(3) aggravating factor beyond a reasonable doubt. In
reviewing a sufficiency of the evidence claim, this court
reviews the record to determine whether substantial evidence
supports the jury’s finding, viewing the facts in the light most
10
To the extent that Roque’s argument can be construed as
raising a proportionality argument, we note that the Fourteenth
Amendment requires only appropriate narrowing of the class of
offenders eligible for the death penalty. Lewis, 497 U.S. at
776. It does not require proportionality.
- 48 -
favorable to sustaining the jury verdict. State v. Roseberry,
210 Ariz. 360, 368-69, ¶ 45, 111 P.3d 402, 410-11 (2005).
Substantial evidence is “such proof that ‘reasonable persons
could accept as adequate and sufficient to support a conclusion
of defendant’s guilt beyond a reasonable doubt.’” Id. at 369,
111 P.3d at 411 (quoting State v. Mathers, 165 Ariz. 64, 67, 796
P.2d 866, 869 (1990)).
¶94 The “grave risk of death” aggravating factor requires
proof that a person who was not the intended victim was within
the zone of danger created by the defendant’s criminal acts.
Fierro, 166 Ariz. at 550, 804 P.2d at 83. The “inquiry is
whether, during the course of the killing, the defendant
knowingly engaged in conduct that created a real and substantial
likelihood that a specific third person might suffer fatal
injury.” Wood, 180 Ariz. at 69, 881 P.2d at 1174. For example,
we have upheld the (F)(3) aggravating factor when the defendant
shot a gun in a crowded area, State v. McMurtrey, 151 Ariz. 105,
108, 726 P.2d 202, 205 (1986), or when another person was in the
line of fire, Fierro, 166 Ariz. at 550, 804 P.2d at 83.
Threatening others with a gun during the altercation that
ultimately caused the murder victim’s death may also trigger the
aggravating factor. Wood, 180 Ariz. at 69-70, 881 P.2d at 1174-
75; State v. Nash, 143 Ariz. 392, 405, 694 P.2d 222, 235 (1985).
¶95 On the other hand, a focused assault on a particular
- 49 -
target may not trigger the (F)(3) aggravating factor, even if
others are nearby. In State v. Smith, for example, the
defendant shot a convenience store clerk to get the money in the
cash register. 146 Ariz. 491, 502, 707 P.2d 289, 300 (1985).
Although other customers were in the store, we concluded that
the prosecution failed to prove the (F)(3) factor because the
shooting of the clerk “was not random and indiscriminate, but
purposeful.” Id. The situation thus differed from those in
McMurtrey and Fierro, in which the defendants’ actions “only
fortuitously failed to cause another person’s death.” Id.
¶96 Although Roque’s acts could be argued to be a targeted
assault like that in Smith, substantial evidence supports the
jury’s conclusion that Ledesma was within the zone of danger and
could have been killed during the assault on Sodhi. Roque fired
five or six shots toward Sodhi and Ledesma from a distance of
approximately twenty feet. Ledesma was not in the direct line
of fire, but reported being within two feet of Sodhi and hearing
bullets whizzing over his shoulders. Had Roque not been an
accurate shot, Ledesma could have been hit or killed. Because
substantial evidence supports the jury’s finding of the (F)(3)
aggravating factor, we affirm that verdict.
4. Use of Facts for Both (F)(3) Aggravating Factor and
Reckless Endangerment Charge
¶97 For shooting Sodhi while Ledesma knelt near him, the
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jury convicted Roque of endangering Ledesma. See A.R.S. § 13-
1201 (2001). Roque now claims that the “same act or
transaction” served as a basis for both the conviction of
endangerment and the establishment of the (F)(3) aggravating
factor. Roque maintains that this constitutes impermissible
“double counting.” See State v. Rutledge, 206 Ariz. 172, 178,
¶ 25, 76 P.3d 443, 449 (2003). We review de novo this question
of statutory interpretation. Christian, 205 Ariz. at 66, ¶ 6,
66 P.3d at 1243.
¶98 The language of the pre-2003 version of the (F)(2)
“prior serious offense” aggravating factor applicable to Roque’s
case precludes us from considering a conviction arising out of
the same series of events as the murder to be a previous
conviction.11 Rutledge, 206 Ariz. at 178, ¶ 25, 76 P.3d at 449.
But Rutledge does not speak to the use of facts underlying a
simultaneous conviction for other aggravating factors, such as
(F)(3) or (F)(8). Roque’s position that Rutledge creates a
blanket rule against the use of simultaneous convictions or
underlying facts is rebutted by the plain language of the (F)(8)
aggravating factor, which expressly permits consideration of
11
In 2003, after Roque committed his crimes, the legislature
revised (F)(2) to add the following: “Convictions for serious
offenses committed on the same occasion as the homicide, or not
committed on the same occasion but consolidated for trial with
the homicide, shall be treated as a serious offense under this
paragraph.” 2003 Ariz. Sess. Laws, ch. 255, § 1.
- 51 -
homicides “committed during the commission of the offense” to
render a defendant eligible for the death penalty. Likewise,
nothing in the language of the (F)(3) aggravating factor
indicates the legislature’s intent to prohibit the use of facts
underlying an endangerment conviction arising from the same
series of events as the murder to help establish the “grave risk
of death to another person.”
¶99 Furthermore, the (F)(3) aggravating factor requires
proof of more than just the endangerment conviction. While
endangerment requires a mental state of recklessness and the
creation of a risk of physical injury, A.R.S. § 13-1201, the
(F)(3) factor requires a mental state of knowing and the
creation of a grave risk of death. Thus the crime of
endangerment by itself does not satisfy the (F)(3) aggravating
factor. Roque’s “double counting” claim therefore fails.
5. Norm of First Degree Murders
¶100 Roque claims that this murder was not so beyond the
norm of first degree murders as to deserve the death penalty,
and he asks this court to overturn his death sentence because
his crime is no worse than the crimes of other defendants who
have received life sentences. Although this court did at one
time engage in proportionality reviews, we no longer do so.
State v. Salazar, 173 Ariz. 399, 417, 844 P.2d 566, 584 (1992).
We instead independently review the aggravating and mitigating
- 52 -
factors to assess the propriety of the death sentence. A.R.S.
§ 13-703.04; see infra ¶¶ 166-70.
6. Lack of Aggravating Factors in Indictment
¶101 Roque contends that the State’s failure to allege the
aggravating factors specified in A.R.S. § 13-703(F) in the
indictment constitutes fundamental error. We considered and
rejected this argument in McKaney v. Foreman ex rel. County of
Maricopa, 209 Ariz. 268, 100 P.3d 18 (2004).
7. Refusal to Replace Juror who had been Approached by
the Media
¶102 Roque claims that the trial judge abused his
discretion in not replacing a juror with an alternate after a
movie producer handed the juror a business card. We review for
abuse of discretion, see Glassel, 211 Ariz. at 47, ¶ 46, 116
P.3d at 1207, deferring to the trial judge’s superior
opportunity to assess the juror’s demeanor and credibility, see
Wainwright, 469 U.S. at 428-29; accord Glassel, 211 Ariz. at 48,
¶ 50, 116 P.3d at 1208.
¶103 “In a criminal case, any private communication,
contact or tampering[,] directly or indirectly, with a juror
during a trial about the matter pending before the jury is, for
obvious reasons, deemed presumptively prejudicial.” State v.
Miller, 178 Ariz. 555, 558-59, 875 P.2d 788, 791-92 (1994)
(quoting Remmer v. United States, 347 U.S. 227, 229 (1954)).
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But the “presumption is rebuttable, and the burden rests with
the government to show that the third party communication did
not taint the verdict.” Id. at 559, 875 P.2d at 792.
¶104 In this case, while the movie producer’s contact with
the juror was presumptively prejudicial, the judge properly
heard testimony from the producer and the juror to determine
whether the juror could still render a fair and impartial
decision. The hearing revealed that, when the producer handed
the business card to the juror, the juror simply put it in his
pocket. He said nothing to the producer and was unsure of the
producer’s profession. The juror stated unequivocally that the
producer’s contact would not affect his ability to fairly and
impartially decide the case. The judge concluded that the State
had met its burden of overcoming the presumption of prejudice.
On this record, we cannot conclude that the judge abused his
discretion in allowing the juror to remain on the panel.
E. Evidentiary Rulings during the Penalty Phase
1. Relevance of State’s Rebuttal Evidence
¶105 Roque disputes the admission of four pieces of
evidence during the penalty phase of his trial: (1) the 1983
attempted robbery conviction; (2) the conviction for the
attempted murder of Anwar Khalil; (3) a history of domestic
violence; and (4) a history of racism. We “give deference to
the trial court’s decision as to the relevance of evidence
- 54 -
offered pursuant to section 13-703.C” in the penalty phase.
State v. McGill, ___ Ariz. ___, ___, ¶ 40, ___ P.3d ___, ___
(2006).
¶106 In the penalty phase, the defendant has the burden to
prove the existence of mitigating circumstances by a
preponderance of the evidence, and the state may rebut the
defendant’s mitigating evidence. A.R.S. § 13-703(C), (D).
“[T]he prosecution or the defendant may present any information
that is relevant to any of the mitigating circumstances . . .
regardless of its admissibility under the rules governing
admission of evidence at criminal trials.” A.R.S. § 13-703(C).
In addition, “the state may present any evidence that
demonstrates that the defendant should not be shown leniency.”
A.R.S. § 13-703.01(G) (Supp. 2003).
¶107 Roque contends that the judge erred in admitting much
of the State’s rebuttal evidence because it was irrelevant,
unfairly prejudicial, or hearsay. But A.R.S. § 13-703(C)
provides that rebuttal evidence is admissible if relevant,
without regard to its admissibility under the rules of evidence.
Within constitutional limits, the sole inquiry is therefore
whether the evidence the State offered was relevant to rebut
Roque’s mitigating evidence. Relevance for this purpose is
defined as “evidence tending to prove or disprove the matter at
issue,” a standard virtually identical to that employed in Rule
- 55 -
401 of the Arizona Rules of Evidence. See McGill, ___ Ariz. at
___, ¶ 40, ___ P.3d at ___ (quoting MERRIAM-WEBSTER’S COLLEGIATE
DICTIONARY 1051 (11th ed. 2003)).
a. 1983 Attempted Robbery Conviction
¶108 The defense called only one witness, Dr. Jack Potts,
to offer mitigating evidence in the penalty phase. On direct
examination, Dr. Potts said, “[Roque’s] lack of prior
violence . . . like the shootings, clearly argues against this
occurring again.” On cross-examination, the prosecutor asked
Dr. Potts if he was aware of Roque’s 1983 attempted robbery
conviction. The judge overruled the defense’s relevance
objection.
¶109 Roque’s prior conviction was relevant to rebut Dr.
Potts’ assertion that Roque did not have a history of violence
and did not pose a threat. The threshold for relevance is a low
one, and the evidence did tend to prove a matter at issue. See
id. The judge therefore did not err in allowing the jury to
hear that evidence.
b. Conviction for Attempted Murder of Khalil
¶110 Roque also argues that the judge improperly authorized
the jury to consider the attempted murder of Khalil as rebuttal
to the mitigating evidence. But A.R.S. § 13-703.01(G) provides
that the state may introduce any evidence demonstrating that a
defendant should not be shown leniency. We have held that the
- 56 -
jury’s assessment of mitigation “must be made in light of the
facts of each case.” State ex rel. Thomas v. Granville, 211
Ariz. 468, 472, ¶ 17, 123 P.3d 662, 666 (2005). Roque’s attempt
to murder Khalil was a fact of the case relevant to the jury’s
assessment of whether Roque should be shown leniency. The trial
court did not err in permitting the jury to consider this fact
of the case.
c. History of Racism
¶111 In cross-examining Dr. Potts, the prosecutor asked him
whether, instead of mental illness, Roque’s alleged racism could
explain his crimes. Roque now argues that this was irrelevant
to the mitigating evidence. But Roque’s alleged racist behavior
was relevant to rebut Dr. Potts’ assertion that Roque suffered
from a mental illness that caused him to commit the crimes.
Testimony regarding Roque’s alleged mental illness was the
thrust of the mitigating evidence offered by the defense.
Because the testimony regarding racism was relevant to rebut
asserted mitigation evidence, the judge did not err in allowing
that testimony.
d. History of Domestic Violence
¶112 Roque also challenges the admission of evidence that
he committed acts of domestic violence. A history of domestic
violence was relevant to rebut Dr. Potts’ assertion that Roque
did not have a history of violence and thus did not pose a
- 57 -
threat to the public. See State v. Lavers, 168 Ariz. 376, 395,
814 P.2d 333, 352 (1991). The judge therefore did not err in
allowing the jury to hear that evidence.
2. Admissibility of Victim Impact Statements
¶113 Roque contends that the victim impact statements were
irrelevant and inadmissible under Blakely v. Washington, 542
U.S. 296 (2004), Crawford, 541 U.S. at 36, and the Arizona
Constitution. Because he did not object on any of these grounds
at trial, however, we review only for fundamental error. See
Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607.
¶114 Victim impact evidence that focuses on the effect of
the crime on the victim and the victim’s family is relevant and
admissible in the penalty phase of a capital trial to show the
harm caused by the defendant’s conduct. State v. Roscoe, 184
Ariz. 484, 502, 910 P.2d 635, 653 (1996). Its admission does
not violate the Eighth Amendment. Lynn v. Reinstein, 205 Ariz.
186, 191, ¶ 16, 68 P.2d 412, 417 (2003) (citing Payne v.
Tennessee, 501 U.S. 808, 827 (1991)). Because the victims here
testified regarding the impact of Mr. Sodhi’s death on their
families, Roque’s relevance argument fails.
¶115 His other arguments are equally unavailing. Because
the victim impact statements neither were aggravating factors
nor acted to increase Roque’s sentence, his Blakely claim fails.
Crawford is also inapposite. Because the victims made their
- 58 -
statements in court and stood subject to cross-examination, no
confrontation issues arose. See Crawford, 541 U.S. at 68.
¶116 Finally, Roque asks this court to diverge from Payne
and our precedents to find the use of victim impact statements
fundamentally unfair in the imposition of the death penalty and
therefore violative of the Arizona Constitution. But as the
Supreme Court observed in Payne, “[v]ictim impact evidence is
simply another form or method of informing the sentencing
authority about the specific harm caused by the crime in
question, evidence of a general type long considered by
sentencing authorities.” 501 U.S. at 825. Roque provides no
compelling argument for us to stray from our prior course. We
therefore decline to do so.
3. Exclusion of Mitigating Evidence
¶117 Roque argues that the judge improperly excluded a
portion of a letter from his sister, Sylvia, who was unable to
testify during the penalty phase of the trial. Because Roque
raised this argument at trial, we review the judge’s evidentiary
ruling for an abuse of discretion. See Aguilar, 209 Ariz. at
49, ¶ 29, 97 P.3d at 874. To warrant reversal, any error must
also have prejudiced Roque. Salazar, 173 Ariz. at 405, 844 P.2d
at 572.
¶118 Roque first contends that the trial judge abused his
discretion in excluding a statement in Sylvia’s letter that the
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“tragedy was not fueled by hate.” This statement, he argues,
was relevant because it implied that mental illness, not racism,
caused Roque’s crimes. Even assuming arguendo that the judge
abused his discretion in excluding this statement, Roque
suffered no prejudice. The admitted portion of Sylvia’s letter
explained Roque’s mental illness. Because the redacted
statement reiterated a point already made in the admitted
portion, any error in excluding the statement was harmless.
¶119 Roque also contends that the trial judge improperly
excluded the section of Sylvia’s letter addressing the suffering
of Roque’s family. We have held that a sister’s testimony
expressing concern for the defendant’s family’s well-being is
“altogether unrelated to defendant, to his character, or to the
circumstance of the offense” and is therefore not relevant
mitigating evidence. Williams, 183 Ariz. at 385, 904 P.2d at
454. Accordingly, the judge did not abuse his discretion in
excluding Sylvia’s statements about the suffering of Roque’s
family.
¶120 To the extent that Sylvia’s letter asked the jury to
impose a “compassionate” sentence, that portion of the letter
was also properly excluded. We have held that “[v]ictims’
recommendations to the jury regarding the appropriate sentence a
capital defendant should receive are not constitutionally
relevant.” Lynn, 205 Ariz. at 191, ¶ 17, 68 P.3d at 417. If
- 60 -
such recommendations from the victim and victim’s family are not
relevant, neither are they from the defendant’s family.
4. Exclusion of Expert’s Statement
¶121 During the State’s cross-examination of Dr. Potts, the
following exchange took place:
[State]: And you’re saying that [psychiatry] is a
science as opposed to an art?
[Potts]: It’s both. Just like all medicine should
be, it’s both.
[State]: And you can be wrong, correct?
[Potts]: Of course, I can be wrong.
[State]: And you might be wrong in this case?
[Potts]: And I might have been wrong on the insanity
issue, too . . . .
In response to the State’s motion, the court struck the final
statement as non-responsive. Roque now challenges that ruling.
Because he did not challenge the court’s ruling at trial,
however, we review only for fundamental error. See Henderson,
210 Ariz. at 567, ¶ 19, 115 P.3d at 607.
¶122 Because the prosecutor asked Dr. Potts whether he
might be wrong “in this case,” as opposed to “in the penalty
phase of the trial,” the answer was in fact responsive to the
question asked, though perhaps not to the question intended.
But it matters little whether the judge’s ruling was correct
because, for two reasons, Roque cannot establish that any error
was fundamental. First, Dr. Potts’ statement addressed whether
he might have erred in concluding that Roque was not legally
insane at the time of the offense, which was not at issue in the
- 61 -
penalty phase of the trial. The defense had the opportunity to
offer all of Dr. Potts’ testimony regarding his assessment of
Roque’s mental illness as mitigating evidence, which was at
issue in the penalty phase, and the jury had heard such evidence
in the guilt phase of the case. Second, the judge’s striking of
this one statement, even if error, did not go to the foundation
of the case. We therefore conclude that any error was not
fundamental.
F. State’s Arguments during the Penalty Phase
1. Mitigating Evidence as an “Excuse” for Conduct
¶123 Citing Brown v. Payton (Brown II), 544 U.S. 133
(2005), and Tennard v. Dretke, 542 U.S. 274 (2004), Roque
contends that the following comments made by the prosecutor
improperly narrowed the jury’s consideration of mitigating
evidence:
Ask yourselves if [Roque’s] low IQ affected his life.
Did his low IQ cause this murder? No.
Does [Roque’s family history of mental illness] excuse
his conduct? Is that why he killed Mr. Sodhi, because
of his mother’s illness? Of course not.
The judge overruled the defense objection to these statements on
the ground that the legal standard for consideration of
mitigating evidence would be explained to the jury in the final
jury instructions. We review for abuse of discretion. See
Aguilar, 209 Ariz. at 49, ¶ 29, 97 P.3d at 874.
- 62 -
¶124 The Supreme Court has held it improper to require that
evidence of a defendant’s low IQ score bear a nexus to the crime
or show a “uniquely severe permanent handicap with which the
defendant was burdened through no fault of his own” to be
considered in mitigation. Tennard, 542 U.S. at 283, 289.
Instead, the Court said that mitigating evidence should be
evaluated in the “most expansive terms.” Id. at 284. In
Tennard, the prosecutor had argued that the defendant’s low IQ
score was irrelevant to the mitigation because the defendant’s
low intelligence did not cause him to commit the crime. See id.
at 278. The Court concluded that, in light of the prosecutor’s
statements, the jury instructions given had been insufficient to
direct the jury to consider and give effect to all relevant
mitigating evidence, including the defendant’s low IQ. See id.
at 288-89.
¶125 In Brown II, the Supreme Court considered whether a
prosecutor’s argument misled the jury to believe that it could
not consider the defendant’s mitigating evidence. 544 U.S. at
135-36. The prosecutor told the jurors that the defendant had
not actually produced any mitigating evidence and that, in any
event, they should not consider any mitigation that concerned
post-crime conduct by the defendant. Id. at 144. The jury
instruction given in Brown II, however, directed jurors to
consider “[a]ny other circumstance which extenuates the gravity
- 63 -
of the crime even though it is not a legal excuse for the
crime.” Id. at 137 (quoting Cal. Penal Code § 190.3 (1988)).
The instructions directed the jury, in evaluating mitigation, to
consider all of the evidence presented “during any part of the
trial in this case.” Id. While the Court recognized that the
trial judge could have done more to advise the jury of the law,
it concluded that “[t]he jury was not left without any judicial
direction,” id. at 146, and that the jury was adequately
instructed as to mitigation, id. at 147.
¶126 Likewise, the instructions in Roque’s trial properly
instructed the jury to consider in mitigation “anything offered
by the defense or the State before or during this phase of the
trial.” Roque takes issue with the prosecutor’s arguments that
mitigation should “excuse” the crime, contending that these
arguments violated Tennard by requiring a nexus between
mitigating evidence and the crime. But the jury instructions
served to cure any such implication by directing the jury to
consider “anything” as mitigation and by specifically
enumerating twelve mitigating factors, including low IQ and a
family history of mental illness. As in Brown II, the
instructions adequately informed the jurors that they were to
consider any mitigating circumstance about Roque that might
warrant the imposition of a sentence less than death. The trial
judge therefore did not abuse his discretion in allowing the
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prosecutor’s arguments here.
2. Use of the Phrase “Under the Guise of Our Flag and
Patriotism”
¶127 Roque asserts that the following statement by the
prosecutor impermissibly encouraged the jury to impose death
based on passion and patriotism:
But what this country does with regard to the
decisions that this country makes, the decisions that
the criminal justice system makes, with respect to the
kind of crimes that this defendant committed, under
the guise of our flag and patriotism, will — speaks
volumes about us.
Because Roque did not object to those statements at trial, we
review only for fundamental error. See Henderson, 210 Ariz. at
567, ¶ 19, 115 P.3d at 607.
¶128 In evaluating the propriety of a prosecutor’s
argument, this court analyzes whether the remarks called to the
jurors’ attention matters that they should not consider, and
whether, “under the circumstances of the particular case, [the
remarks] probably influenced” the jurors. Sullivan v. State, 47
Ariz. 224, 238, 55 P.2d 312, 317 (1936); see also State v.
Hansen, 156 Ariz. 291, 297, 751 P.2d 951, 957 (1988).
¶129 Roque committed his crimes in response to the
terrorist attacks of September 11, 2001, and he targeted people
he thought to be of Arab descent. When arrested, Roque
immediately stated, “I’m a patriot and American. I’m American.
I’m a damn American.” In this respect, the prosecutor’s
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comments simply referred to the circumstances of Roque’s crimes
and responded to a theme the defense introduced.
¶130 In State v. Hansen, we observed that “the trial court
is in a better position to judge whether the prosecutor is
unduly sarcastic, his tone of voice[] [and] facial expressions,
and [to ascertain] their effect on the jury, if any.” 156 Ariz.
at 297, 751 P.2d at 957. Because Roque’s counsel did not
object, the trial judge had no opportunity to determine whether
the prosecutor’s comment constituted error and, if so, whether
the error was prejudicial. Nor did the judge have the
opportunity to redress any error by instructions to the jury.
Moreover, the jurors had already heard evidence that Roque’s
crimes were motivated by patriotism and committed in reaction to
terrorist attacks on American soil. Under a fundamental error
analysis, the prosecutor’s comment was not of such magnitude
that it deprived the defendant of a fair trial. See Henderson,
210 Ariz. at 567, ¶ 19, 115 P.3d at 607 (defining fundamental
error).
3. Comparison of Defendant and Victim
¶131 Roque asserts that the following comments by the
prosecutor improperly compared the value of Roque’s life to that
of the murder victim:
Defendant worked numerous years in the American
aircraft industry. That’s true. That’s true. Balbir
Singh Sodhi worked a number of years in this country
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driving a cab [and] working behind the counter of a
store. The defendant is married. Balbir Singh Sodhi
was married.
Because Roque moved for a mistrial, we review for an abuse of
discretion, recognizing that “[t]he trial court is in the best
position to determine whether an attorney’s remarks require a
mistrial.” Hansen, 156 Ariz. at 297, 751 P.2d at 957. We also
recognize that the declaration of a mistrial is the most
dramatic remedy for a trial error and should be granted only if
the interests of justice will be thwarted otherwise. Moody, 208
Ariz. at 456, ¶ 126, 94 P.3d at 1151 (citation omitted).
¶132 When the Supreme Court removed the bar to admission of
victims’ statements, the point was not to permit “a jury to find
that defendants whose victims were assets to their communities
are more deserving of punishment than those whose victims are
perceived to be less worthy,” Payne, 501 U.S. at 823, or to
permit a comparison of the lives of the victim and the
defendant. A statement from a victim “is not offered to
encourage comparative judgments of this kind . . . [but] is
designed to show instead each victim’s ‘uniqueness as an
individual human being.’” Id. at 823. Because the jury may
consider victims’ statements in making its sentencing decision,
the prosecutor may discuss them in his closing argument. See
State v. Prince, 204 Ariz. 156, 161, ¶ 23, 61 P.3d 450, 455
(2003).
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¶133 We need not decide whether a prosecutor’s statement
comparing the value of the life of the defendant with that of
the victim is proper because in this case the prosecutor stopped
before making a value argument. He summarized evidence that
both Roque and Sodhi worked and were married. This was a
comparison of the two, but not a valuation of the two. The
prosecutor did not continue the comparison after the defense
objected, and the judge properly and immediately instructed the
jury on the law. Because the prosecutor’s comments did not call
the jury’s attention to a matter it could not consider, there
was no error.
G. Jury Instructions in the Penalty Phase
1. Influence of “Sympathy or Prejudice”
¶134 Roque contends that the instruction to the jurors that
they “should not be influenced by sympathy or prejudice,” in
combination with the prosecutor’s arguments, impermissibly
limited the jury’s consideration of mitigating evidence.
Because Roque did not object at trial, we review only for
fundamental error. See Henderson, 210 Ariz. at 567, ¶ 19, 115
P.3d at 607.
¶135 We approved the “sympathy” instruction in State v.
Carreon, explaining that it promotes “reliability and
nonarbitrariness by requiring that the jury consider and give
effect to the defendant’s mitigating evidence in the form of a
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‘reasoned moral response’ rather than an emotional one.” 210
Ariz. 54, 71, ¶ 86, 107 P.3d 900, 917 (2005) (quoting Saffle v.
Parks, 494 U.S. 484, 493 (1990)). The trial court thus did not
err in its jury instruction on the proper role of sympathy.
2. “Significant” Impairment and “Substantial” Duress as
Mitigating Evidence
¶136 Roque submitted to the trial court a list of
mitigating circumstances to be included in the jury
instructions, one of which was a reference to A.R.S. § 13-
703(G)(1), and the court gave an instruction tracking the
language of that statute. The instruction provided, as a
mitigating circumstance for the jury to consider, that “[t]he
defendant’s capacity to 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.” Jury Instruction (emphasis added)
(quoting A.R.S. § 13-703(G)(1)). Roque also requested by
reference an instruction that was based upon the language of
A.R.S. § 13-703(G)(2), and that instruction was given. That
instruction allowed the jurors to consider as a mitigating
circumstance, that “the defendant was under unusual and
substantial duress, although not such as to constitute a defense
to prosecution.” Jury Instruction (emphasis added) (quoting
A.R.S. § 13-703(G)(2)).
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¶137 Roque now asserts that the jury instructions failed to
direct the jury to consider the non-statutory mitigating
evidence of “simple” (as opposed to significant) impairment and
“simple” (as opposed to substantial) duress. But Roque
requested the instructions given, and therefore “invited any
error and waived his right to challenge the instruction[s] on
appeal.” Roseberry, 210 Ariz. at 369, ¶ 53, 111 P.3d at 411.
Moreover, the jury was properly instructed to consider all non-
statutory mitigating evidence.
3. Lack of Burdens of Proof
¶138 Citing Ring v. Arizona (Ring II), 536 U.S. 584 (2002),
Roque contends that the court erred in failing to instruct the
jury regarding the burden of proof for weighing mitigation and
aggravation. Roque further asserts that failing to instruct the
jury on a burden of proof regarding the State’s rebuttal to
mitigation facilitated the State’s impermissible “end run”
around Ring II’s requirement that the jury find aggravating
factors beyond a reasonable doubt, because the State’s rebuttal
to mitigation acted, in effect, to aggravate Roque’s sentence.
Roque asks us to determine whether the jury instructions
correctly stated the law, a question we review de novo.
Glassel, 211 Ariz. at 53, ¶ 74, 116 P.3d at 1213.
¶139 Under Arizona’s capital sentencing statutes, neither
party bears a burden of proof as to weighing aggravation and
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mitigation in the penalty phase of a capital trial. Granville,
211 Ariz. at 472, ¶ 17, 123 P.3d at 666. “[W]hether mitigation
is sufficiently substantial to warrant leniency is not a fact
question to be decided based on the weight of the evidence, but
rather is a sentencing decision to be made by each juror based
upon the juror’s assessment of the quality and significance of
the mitigating evidence that the juror has found to exist.” Id.
at 473, ¶ 21, 123 P.3d at 667. In Roque’s case, the trial judge
properly refrained from assigning a burden of proof to the
“juror’s assessment of the quality and significance of the
mitigating evidence.” Id.
¶140 Moreover, the jury instructions did not provide the
State an “end run” around the Ring II requirement that it prove
aggravating factors to a jury beyond a reasonable doubt. The
State had already proven the (F)(3) aggravating factor to the
jury beyond a reasonable doubt in the aggravation phase of the
trial, which made Roque “death eligible.” See id. at 472, ¶ 17,
123 P.3d at 666. In the penalty phase of the trial, the State
was permitted to present any relevant information to rebut the
mitigating evidence presented by the defendant to help the
jurors assess the quality of the mitigating evidence in deciding
whether to impose the death penalty. A.R.S. § 13-703(C).
Therefore, the jury instructions in Roque’s case correctly
stated the law regarding the State’s rebuttal of Roque’s
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mitigating evidence. There was no error.
4. Lack of Special Verdict Forms for Mitigation Findings
¶141 Roque asserts that this court cannot conduct a
meaningful review of aggravating and mitigating factors under
A.R.S. § 13-703.04 unless the jury uses special verdict forms
indicating which mitigating factors the jurors found. We
considered and rejected this argument in Roseberry, 210 Ariz. at
373, ¶ 74 & n.12, 111 P.3d at 415 & n.12.
H. Other Penalty Phase Issues
1. Seeking the Death Penalty Based on the Race, Ethnic
Background, or Religion of the Victim
¶142 Roque’s murder victim, Balbir Sodhi, was a Sikh of
Indian descent, and the State consulted with representatives of
the Indian government in deciding whether to seek the death
penalty in Roque’s case. Roque now asserts that the State’s
decision to seek the death penalty against him based on the
race, ethnic background, and religion of the victim violates the
Eighth and Fourteenth Amendments. We review this matter of
constitutional law de novo. Moody, 208 Ariz. at 445, ¶ 62, 94
P.3d at 1140.
¶143 In McCleskey v. Kemp, the Supreme Court explained
that, to make a claim under the Equal Protection Clause of the
Fourteenth Amendment, the defendant must show purposeful
discrimination that had a discriminatory effect on him in his
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particular case. 481 U.S. 279, 292 (1987) (citations omitted).
Moreover, the Court observed, because the criminal justice
system functions best if prosecutors have “wide discretion” in
deciding whether to seek the death penalty, a defendant must
show “exceptionally clear proof” of discrimination for the Court
to infer discriminatory purpose. Id. at 296-97. Any legitimate
explanation for a state’s decision to seek the death penalty
precludes a finding of a Fourteenth Amendment violation. Id. at
297. The Court further explained that, to avoid arbitrary and
capricious sentencing in violation of the Eighth Amendment, a
state must narrow the class of murderers subject to capital
punishment to allow the sentencer to make a principled
distinction between those who deserve the death penalty and
those who do not, id. at 303, and must not “limit the
sentencer’s consideration of any relevant circumstance that
could cause it to decline to impose the penalty,” id. at 306.
¶144 In Arizona, the state may seek the death penalty if it
can prove beyond a reasonable doubt that a defendant committed
first degree murder and can also prove the existence of at least
one aggravating factor. A.R.S. § 13-703. The State met those
statutory requirements in this case. Roque cites no case in
which a defendant similarly situated was not made subject to the
death penalty, and he makes no effective argument that a state
may not consider the views of the government of a foreign
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country with respect to the murder of someone born there.
Because the State has wide discretion in deciding whether to
seek a death sentence and had a legitimate reason to seek the
penalty in this case, the State did not violate the Eighth
Amendment or the Fourteenth Amendment by consulting with the
Indian government.
2. Seeking the Death Penalty for the Mentally Retarded
¶145 Before trial, Roque had the opportunity to attempt to
prove that mental retardation should bar the imposition of death
as a penalty in his case, but he declined to submit to the
required testing. See A.R.S. § 13-703.02 (Supp. 2002)
(providing pretrial procedure for establishing mental
retardation). At trial, a defense expert testified that Roque’s
full-scale IQ is 80, with individual intelligence indices
ranging from 71 to 95. Roque now claims that he is mentally
retarded and thus not subject to execution. See Atkins, 536
U.S. at 321. Because he failed to raise this claim below, we
review for fundamental error. See Henderson, 210 Ariz. at 567,
¶ 19, 115 P.3d at 607.
¶146 Execution of the mentally retarded constitutes cruel
and unusual punishment and thus is prohibited. Atkins, 536 U.S.
at 321. Rather than defining precisely what mental retardation
means, the Supreme Court “le[ft] to the State[s] the task of
developing appropriate ways to enforce the constitutional
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restriction.” Id. at 317. Arizona has prohibited execution of
the mentally retarded since before Atkins, using a procedure
detailed in A.R.S. § 13-703.02. See State v. Grell (Grell II),
212 Ariz. 516, 520, ¶ 15 & n.5, 135 P.3d 696, 700 & n.5 (2006).
¶147 Under the statutory procedure, the court appoints a
prescreening psychological expert to determine a defendant’s IQ.
A.R.S. § 13-703.02(A).12 If that test returns a full-scale IQ
result of 75 or below, the court appoints additional experts to
test the defendant again. A.R.S. § 13-703.02(C). If any of
those full-scale IQ test results are 70 or below, the court must
hold a hearing on the issue of mental retardation. A.R.S. § 13-
703.02(F). To establish mental retardation, the defendant must
then prove that he also has adaptive deficits and that onset of
the condition occurred before age 18. A.R.S. § 13-703.02(I)(2).
¶148 Roque admits that he has a full-scale IQ of 80, but
asks us to look to his “processing speed index” of 71. Given
the test’s five point margin of error, he argues, this score
could be below 70. Roque therefore argues that he cannot be
executed.
¶149 This analysis is flawed for two reasons. First, in
leaving the definition of mental retardation to the states, the
12
In 2002, after Roque began this process, the legislature
modified A.R.S. § 13-703.02 by adding a new subsection (A) and
redesignating sections A to J as B to K. 2002 Ariz. Sess. Laws,
5th Spec. Sess., ch. 1.
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Supreme Court did not require that execution be prohibited for
all who could score below a certain number on an IQ test or a
portion of such a test. Rather, the prohibition depends on the
state’s definition of mental retardation. See Grell II, 212
Ariz. at 525, ¶ 37, 135 P.3d at 705 (citing Atkins, 536 U.S. at
317). Applying accepted medical definitions, the Arizona
statute makes IQ one of three prongs in the definition of mental
retardation. A.R.S. § 13-703.02(I)(2). A low IQ score,
standing alone, does not automatically mean the defendant has
mental retardation or that he cannot be executed.
¶150 Second, Roque misinterprets the statute. The statute
does not refer to individual IQ sub-tests or indices, but rather
employs a single “intelligence quotient” as an initial measure
of “significantly subaverage general intellectual functioning.”
A.R.S. § 13-703.02(A), (I)(2). This number refers to the full-
scale IQ, which for Roque is 80. In addition, the statute
accounts for margin of error by requiring multiple tests. If
the defendant achieves a full-scale score of 70 or below on any
one of the tests, then the court proceeds to a hearing. Even
were we to consider the six sub-test numbers presented in the
defense expert’s testimony, not one of them is 70 or below, and
all but the processing speed index are above 75. Roque has
presented no evidence indicating that he has mental retardation
as defined under Arizona law, and thus the court did not err,
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much less commit fundamental error, in not finding Roque to have
mental retardation.
I. Alleged Prosecutorial Misconduct
¶151 Roque asserts that twenty-eight incidents of
prosecutorial misconduct occurring throughout the guilt and
sentencing proceedings denied him a fair trial. We have
addressed fifteen of the alleged incidents elsewhere in this
opinion, and, of those, only the State’s failure to disclose the
scope of Dr. Ben-Porath’s testimony warrants inclusion here.
Roque also alleges thirteen additional incidents, which we now
address.
¶152 In State v. Hughes, reviewing a case we called a
“masterpiece of misconduct,” we held that the cumulative effect
of seven incidents of prosecutorial misconduct denied the
defendant a fair trial. 193 Ariz. 72, 83, 88, ¶¶ 50 & 74, 969
P.2d 1184, 1195, 1200 (1998). Hughes set forth the test for
reversal based on prosecutorial misconduct as follows:
[A] defendant must demonstrate that the prosecutor’s
misconduct so infected the trial with unfairness as to
make the resulting conviction a denial of due process.
Reversal on the basis of prosecutorial misconduct
requires that the conduct be so pronounced and
persistent that it permeates the entire atmosphere of
the trial. To determine whether prosecutorial
misconduct permeates the entire atmosphere of the
trial, the court necessarily has to recognize the
cumulative effect of the misconduct.
Id. at 79, ¶ 26, 969 P.2d at 1191 (citations and quotations
- 77 -
omitted). “Prosecutorial misconduct is harmless error if we can
find beyond a reasonable doubt that it did not contribute to or
affect the verdict.” Id. at 80, ¶ 32, 969 P.2d at 1192.
¶153 This court is “not eager to reverse a conviction on
grounds of prosecutorial misconduct as a method to deter . . .
future conduct,” id. (citation omitted), but we “emphasize that
the responsibilities of a prosecutor go beyond the duty to
convict defendants,” id. ¶ 33. The prosecutor has a duty as a
“minister of justice” to “see that defendants receive a fair
trial.” Id. (citing Ariz. R. Sup. Ct. 42, ER 3.8).
¶154 The first step in evaluating Roque’s prosecutorial
misconduct claim is to review each alleged incident to determine
if error occurred. For each alleged incident, our standard of
review depends on whether Roque objected at trial. If he
objected, the issue was preserved. Id. at 85, ¶ 58, 969 P.2d at
1197. If he failed to object, we review only for fundamental
error. Id.
¶155 But even if there was no error or an error was
harmless and so by itself does not warrant reversal, an incident
may nonetheless contribute to a finding of persistent and
pervasive misconduct, id. at 79, ¶ 25, 969 P.2d at 1191, if the
cumulative effect of the incidents shows that the prosecutor
intentionally engaged in improper conduct and “did so with
indifference, if not a specific intent, to prejudice the
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defendant,” id. at 80, ¶ 31, 969 P.2d at 1192. After reviewing
each incident for error, we must assess whether the incident
should count toward Roque’s prosecutorial misconduct claim.
Once the incidents contributing to a finding of misconduct are
identified, we must evaluate their cumulative effect on the
trial.
¶156 We address only those allegations of misconduct that
merit extended discussion. See State v. Anderson (Anderson II),
210 Ariz. 327, 341, ¶ 48, 111 P.3d 369, 383 (2005). Eleven of
Roque’s thirteen additional allegations of misconduct do not
merit such discussion; they concern either properly admitted
evidence, questions with a sufficient basis, accurate
statements, or reasonable arguments from the facts. See id.
Those eleven allegations of misconduct are listed in an appendix
to this opinion. We discuss the remaining allegations of
misconduct below.
1. Prosecutor’s Testimony on Validity of Tests
¶157 The second chair prosecutor cross-examined Dr. Barry,
a defense expert. At one point, she said, “Now, when I talked
to you, when you came to our interview, [defense counsel] had
already told you that I thought that the [MMPI-2] test was
invalid, correct?” The court overruled the defense objection to
the prosecutor stating “what she believes is the result of this
test.” We review the court’s ruling for abuse of discretion.
- 79 -
Aguilar, 209 Ariz. at 49, ¶ 29, 97 P.3d at 874.
¶158 This question improperly injected the prosecutor’s
opinion of the validity of a psychiatric test. Even if the
prosecutor believed that the MMPI-2 had been invalidly
administered, she could not testify as such. See In re Zawada,
208 Ariz. 232, 239-40, ¶¶ 26-27, 92 P.3d 862, 869-70 (2004).
The judge therefore should have sustained the objection to this
question.
¶159 Any error, however, was harmless. It was uncontested
that the State had questioned the first administration of the
MMPI-2. While the prosecutor should not have offered her
opinion on the matter, the question, by itself, simply
established the context for the re-administration of the MMPI-2.
Thus, this question did not contribute to or affect the verdict.
We nonetheless consider it as an incident that may contribute to
an overall finding of cumulative prosecutorial misconduct.
2. Harassment of Witness
¶160 The second chair prosecutor also aggressively cross-
examined Dr. Toma, another defense expert. In reference to Dr.
Toma’s education, the prosecutor asked if his school “was
started by a bunch of teachers offering classes to the people in
New York on things like acupuncture and that sort of thing.”
The record provides no basis for such a disparaging remark. She
also attempted to ridicule the doctor’s publications and other
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qualifications. Roque did not object to the prosecutor’s
questioning of Dr. Toma at trial, so we review only for
fundamental error. Hughes, 193 Ariz. at 85, ¶ 58, 969 P.2d at
1197.
¶161 With respect to the prosecutor’s questioning of an
expert, we cautioned that “a prosecutor cannot attack the expert
with non-evidence, using irrelevant, insulting cross-examination
and baseless argument designed to mislead the jury and undermine
the very purpose of [Rule 11 of the Arizona Rules of Criminal
Procedure].” Zawada, 208 Ariz. at 237, ¶ 14, 92 P.3d at 867
(citing Ariz. R. Sup. Ct. 42, ER 3.4(c)). In her cross-
examination, the second chair prosecutor appeared to
intentionally raise baseless challenges to Dr. Toma’s
qualifications. While questioning an expert’s qualifications is
proper to assist the jury in assessing the expert’s credibility,
State v. Hummert, 188 Ariz. 119, 126, 933 P.2d 1187, 1194
(1997), Ethical Rule 3.4(e) requires that the questioning have
some factual basis. In this case, the bases of many of the
prosecutor’s questions were, at best, unclear and, at worst,
non-existent. We conclude, however, that the impact of the
prosecutor’s questioning was not of such magnitude that it
denied Roque a fair trial. Dr. Toma handled the questions
effectively, thereby reducing any prejudicial impact. The
prosecutor’s questioning of Dr. Toma nonetheless constitutes an
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incident of misconduct that, while not individually reversible,
contributes to our analysis of cumulative prosecutorial
misconduct.
3. Non-Disclosure of Expert Testimony
¶162 We have previously addressed the prosecutors’ failure
to disclose to the defense the scope of Dr. Ben-Porath’s
testimony on the critical issue of Roque’s mental condition.
See supra ¶¶ 21-52. We must also assess whether the State’s
failure constitutes an incident of misconduct.
¶163 The prosecutors had an obligation to disclose, which
they did not fulfill. Although the trial court found that the
prosecution did not intend to mislead the defense, the
prosecutors conceded that they knew they had not disclosed the
extent of Dr. Ben-Porath’s testimony. Because the prosecutors
should have known that their failure to disclose was improper
and was likely to prejudice the defendant, we consider the
failure to disclose in our analysis of cumulative prosecutorial
misconduct.
4. Cumulative Effect
¶164 Three incidents contribute to our overall assessment
of cumulative prosecutorial misconduct. The prosecutors
testified as to the validity of tests, asked a defense expert
harassing and unfounded questions, and failed to disclose the
extent of the State expert’s testimony on the central issue in
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this capital case. Even though none of these incidents by
itself warrants reversal, we look to the cumulative effect of
the incidents. Hughes, 193 Ariz. at 79, ¶ 25, 969 P.2d at 1191.
¶165 Under the Hughes test, we cannot say that the
cumulative effect of the misconduct here so permeated the entire
atmosphere of the trial with unfairness that it denied Roque due
process. See id. ¶ 26. We recognize in particular that the
prosecutors’ failure to disclose the scope of Dr. Ben-Porath’s
testimony was improper and potentially prejudicial, but the
defense did not make a good faith effort to resolve that
discovery dispute. As a result, we cannot now assess the
prejudice the defendant may ultimately have suffered. The
cumulative effect of the incidents of misconduct in this case
thus does not warrant reversal. See id. at 80, ¶ 32, 969 P.2d
at 1192.
J. Independent Review
¶166 Because Roque’s crimes were committed before August 1,
2002, we independently review the aggravating circumstances and
the mitigating evidence in this case and assess the propriety of
imposing the death sentence. See A.R.S. § 13-703.04(A); 2002
Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 7(B). In our
assessment, “we 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
- 83 -
(1998).
¶167 Based on our independent review of the record, we
conclude that the (F)(3) aggravating factor was proven beyond a
reasonable doubt. We also conclude that the (F)(2) aggravating
factor based on Roque’s 1983 attempted robbery conviction was
properly dismissed by the trial court and that the State failed
to prove beyond a reasonable doubt the (F)(2) aggravating factor
based on Roque’s conviction for the attempted murder of Khalil.
¶168 As mitigation, A.R.S. § 13-703(G)(1) instructs us to
consider whether Roque’s “capacity to 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.” On that
issue, the evidence shows that Roque’s mother was a
schizophrenic, leaving Roque predisposed to mental health
problems. All four mental health experts who testified at trial
regarding Roque’s mental condition on the days after September
11, 2001, agreed that his mental condition impaired his capacity
to conform to the law, but varied in their opinions of how
significant that impairment was.13 The defense experts concluded
that Roque was legally insane at the time of the commission of
13
For reasons discussed in this opinion, we give little
weight to Dr. Ben-Porath’s assessment of Roque’s mental health.
In addition, while Dr. Toma also testified, he never gave an
assessment of Roque’s mental condition.
- 84 -
his crimes. The court-appointed expert concluded that Roque
suffered from either a psychotic disorder or an acute stress
disorder that significantly impaired his capacity to conform to
the law at the time of the commission of his crimes. Even the
State’s expert concluded that Roque suffered from an “adjustment
disorder with depressed mood” that caused an emotional and
behavioral reaction to the events of September 11, 2001. We
give this mitigating evidence substantial weight. See State v.
Trostle, 191 Ariz. 4, 21, 951 P.2d 869, 886 (1997) (in setting
aside death sentence, giving serious consideration to
defendant’s mental illness because of its impact on defendant’s
capacity to conform to the law); State v. Doss, 116 Ariz. 156,
163, 568 P.2d 1054, 1061 (1977) (finding defendant’s mental
condition a “substantial factor in causing the death of the
victim” and therefore setting aside sentence of death).
¶169 From the non-statutory mitigating evidence presented
in this case, we also consider Roque’s low IQ as mitigation.
Roque’s IQ was measured at 80. While Roque’s IQ is not, by
itself, low enough for him to be considered to have mental
retardation, his overall score is below average. Although
mitigating evidence need not bear a nexus to the crime, Tennard,
542 U.S. at 289, the relationship between mitigating evidence
and the murder may affect the weight given to the mitigating
evidence, see Anderson II, 210 Ariz. at 357, ¶ 136, 111 P.3d at
- 85 -
399. We consider the mitigating evidence of Roque’s low IQ and
its likely impact on Roque’s ability to seek help or reason his
way out of committing the crimes.
¶170 The substantial mitigating evidence balanced against a
single (F)(3) aggravating factor causes us to question whether a
sentence of death is warranted in this case. See State v.
Rockwell, 161 Ariz. 5, 16, 775 P.2d 1069, 1080 (1989). We
recognize the serious nature of Roque’s crime; the murder of
Sodhi was part of a shooting spree that targeted victims based
on their assumed ethnicity. As we have noted in the past,
“[o]ur task in evaluating and weighing the proffered mitigation
is difficult at best. There is no scale upon which to measure
what is or is not ‘sufficiently substantial.’” Trostle, 191
Ariz. at 23, 951 P.2d at 888. But taken as a whole, the
mitigating evidence here raises a substantial question whether
death is an appropriate sentence. See id. When “there is a
doubt whether the death sentence should be imposed, we will
resolve that doubt in favor of a life sentence.” State v.
Valencia, 132 Ariz. 248, 250, 645 P.2d 239, 241 (1982). We have
such a doubt in this case, and therefore conclude that the death
penalty should not be imposed. Because of the serious nature of
Roque’s crimes, however, we conclude that he should be
imprisoned for the rest of his natural life and never be
released. See A.R.S. §§ 13-703(A), -703.04(B).
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III. CONCLUSION
¶171 Defendant’s convictions and non-capital sentences are
affirmed. His sentence of death is reduced to natural life
imprisonment without possibility of release.14
_______________________________________
Rebecca White Berch, Vice Chief Justice
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Andrew D. Hurwitz, Justice
_______________________________________
W. Scott Bales, Justice
_______________________________________
Daniel A. Barker, Judge*
*Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable Daniel A. Barker, Judge of the Arizona Court of
Appeals, Division One, was designated to sit in this matter.
14
Because we vacate Roque’s death sentence, the ten claims he
raised regarding the constitutionality of the death penalty are
moot.
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Appendix
The eleven allegations of prosecutorial misconduct that do not
merit extended discussion are as follows:
1. The prosecutor’s statement that “there is no
evidence of the defendant saying anything about
voices, except in a report from the Sheriff’s
Department that somebody wrote” was a reasonable
statement of the evidence, unlike the statements in
Hughes. See 193 Ariz. at 85-86, ¶¶ 59-60, 969 P.2d
at 1197-98.
2. The prosecutor’s statement that “some of the
psychiatrists and psychologists . . . are asking you
to try to excuse [Roque’s] conduct to some extent,
because of the impact that a terrorist attack had on
him when that’s exactly what he did” was a
reasonable summary of expert testimony, unlike the
summary in Hughes. See id. ¶¶ 59-61.
3. The prosecutor’s request that “you make your
decision based solely on the facts, the facts of
what occurred and not a distorted version of them as
provided by the defendant in his interviews” was not
calculated to direct the jurors’ attention to
Roque’s exercise of his Fifth Amendment privilege
not to testify, unlike the situation in Hughes. See
id. at 87, ¶¶ 64-66, 969 P.2d at 1199.
4. The prosecutor’s questions, “And you’re saying that
[psychiatry] is a science as opposed to an art?
. . . And you can be wrong, correct? . . . And you
might be wrong in this case?” were proper questions
regarding the reliability of psychiatric
assessments, unlike the questions in Hughes. See
id. at 84-85, ¶ 55, 969 P.2d at 1196-97.
5. The prosecutor’s question that, “in fact, you worked
with defense counsel, Mr. Stein, on a case” was a
proper question regarding the expert’s possible bias
or motive. See State v. Bailey, 132 Ariz. 472, 478,
647 P.2d 170, 176 (1982).
6. The prosecutor’s statement, “what I would say if I
was a juror, I would discount [Dr. Rosengard’s]
opinion,” while inartful and arguably improper, did
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not clearly insert the prestige of the government
into the jury’s credibility assessment, unlike the
statement in State v. Hill, 109 Ariz. 93, 95, 505
P.2d 553, 555 (1973). Furthermore, Roque did not
object to the statement, so the trial court had no
opportunity to correct any possible improper
implication.
7. The prosecutor’s use of the phrase “so-called
medical experts” was invited by the defense through
its use of the same phrase. See State v. Logan, 200
Ariz. 564, 565-66, ¶ 9, 30 P.3d 631, 632-33 (2001).
While the use of this phrase by both parties was
unprofessional, it did not rise to the level of the
prosecutor’s comments in Hughes. See 193 Ariz. at
86, ¶ 61, 969 P.2d at 1198.
8. Comments by the prosecutor associating Roque with
the 9/11 terrorists were invited, were prompted by
defense counsel’s arguments, and were pertinent to
the circumstances of Roque’s crimes. See Trostle,
191 Ariz. at 16, 951 P.2d at 881.
9. The prosecutor’s statements, “[Y]ou weren’t asked to
consider [the 1983 attempted robbery conviction] and
determine whether it was an aggravating factor.
There are legal reasons for that that don’t matter.
The point is, it’s evidence you can consider [in the
penalty phase].” were not an improper reference to
inadmissible evidence, unlike the reference in State
v. Leon, 190 Ariz. 159, 161-62, 945 P.2d 1290, 1292-
93 (1997).
10. The prosecutor’s question in the penalty phase, “So
you’re aware of the attempted robbery incident in
which [Roque] was involved in 1983, correct?” was
not an attempt to introduce inadmissible evidence to
rebut the defendant’s mitigating evidence. See
A.R.S. § 13-703(C).
11. The prosecutor’s introduction of Sodhi’s autopsy
photos was proper. See State v. Chapple, 135 Ariz.
281, 288, 660 P.2d 1208, 1215 (1983).
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