State v. Ellison

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-04-0073-AP
Appellee, )
) Mohave County
v. ) Superior Court
) No. CR-99-0187
CHARLES DAVID ELLISON, )
)
Appellant. )
)
)
__________________________________) O P I N I O N

Appeal from the Superior Court in Mohave County
The Honorable Robert R. Moon, Judge

AFFIRMED

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

DAVID GOLDBERG Flagstaff
Attorney for Charles David Ellison

B A L E S, Justice

¶1 On January 18, 2002, Charles David Ellison (“Ellison”)

was convicted after a jury trial in Mohave County Superior Court

of two counts of first degree murder and one count of first

degree burglary. In February 2004, after sentencing proceedings

before a separate jury, the superior court sentenced him to

death for each murder. The trial judge also sentenced him to a
concurrent sentence of twelve-and-one-half years for the

burglary conviction. This is a mandatory appeal under Arizona

Rule of Criminal Procedure 31.2(b). This court has jurisdiction

under Article 6, Section 5(3), of the Arizona Constitution and

Arizona Revised Statutes (“A.R.S.”) section 13-4031 (1999).

I. Factual and procedural background1

¶2 On the morning of February 26, 1999, police went to

the home of Joseph and Lillian Boucher after their daughter,

Vivian Brown, could not contact her parents. When no one

answered the door, police entered the home through the kitchen,

where they noticed a telephone with its line cut and cord

missing and a knife block with a missing knife.

¶3 Police discovered the body of Joseph Boucher on a bed

in a bedroom. He had defensive wounds and minor cuts and

scrapes on his wrists and arms indicating he had been bound. In

another bedroom, police found Lillian Boucher’s body on the

floor. She had bruises on her face and body, consistent with an

altercation, and a small amount of blood around her nose.

According to the medical examiner, Mr. Boucher had been

asphyxiated by smothering. Mrs. Boucher had been asphyxiated by

smothering or a combination of smothering and strangulation.

1
We view the facts in the light most favorable to sustaining the
jury’s verdicts. State v. Tucker, 205 Ariz. 157, 160 n.1, 68
P.3d 110, 113 n.1 (2003).

2
Missing from the house were a .22 caliber handgun, a pellet gun,

Mr. Boucher’s wedding ring and watch, and Mrs. Boucher’s diamond

wedding ring, anniversary ring, watch, earrings, and crucifix.

¶4 On February 26, 1999, Brad Howe contacted police with

information that he had obtained from Richard Finch about the

murders. Finch worked for Howe and his father as a “lot boy” at

their auto dealership in Lake Havasu City and also lived at

Howe’s house. According to Howe, Finch was “simple” and,

because he could not manage his own finances, Howe and his

father gave Finch money only as he needed it.

¶5 Howe did not see Finch on the night of February 24;

however, they went drinking at several bars the next night.

Howe offered to pay as usual, but Finch surprised him by

offering to buy drinks and displaying $250 to $300. Howe told

police that Finch was drinking heavily and acting as if

something was on his mind. Howe repeatedly asked Finch what was

distracting him. Finch became “very upset” and admitted he had

been involved in “some bad things.” The two then left the bar

and, on the way home, Finch told Howe more details.

¶6 Once at home, Finch, upset and crying, retrieved a bag

and showed Howe the contents. Howe, not wanting the items in

his house, took the bag and hid it in the desert in the early

morning hours of February 26. He later led police to the bag,

which contained several items stolen from the Bouchers’ home.

3
¶7 The same day, police officers went to Howe’s house and

arrested Finch, who had packed his belongings as if planning to

leave. After being advised of his Miranda rights, Finch agreed

to speak with police. In a taped interview, Finch confessed his

involvement in the murders. He also identified his companion as

“Slinger,” a nickname used by Ellison. Two days later, Finch

helped police find the missing kitchen knife in a field behind

the Bouchers’ house.

¶8 On March 1, 1999, after unsuccessfully searching for

Ellison at the house of his girlfriend, Cathie Webster-Hauver,

Kingman detectives Steven Auld and Lyman Watson learned that

Ellison had been arrested in Lake Havasu. After informing

Ellison of his Miranda rights, the detectives interviewed him at

the Lake Havasu police station just before 9:00 a.m. Ellison

told the detectives he had met Finch two or three weeks earlier

at Darby’s, a Lake Havasu bar. The two men met again at Darby’s

on February 24, 1999, where Ellison agreed to do “a job” with

Finch in Kingman. Ellison said that he intended only to commit

a burglary, not to kill anyone. Ellison also denied killing

either victim.

¶9 That same night, Ellison and Finch drove Ellison’s van

to Kingman, where they stopped at the Sundowner’s Bar.

According to the bartender, Jeannette Avila, Ellison entered the

bar first, ordered and paid for beers, talked to her at length,

4
and led the way when the two men left the bar. Finch, in

contrast, never spoke to Avila; he simply sat without removing

his sunglasses. Avila later identified Ellison in a

photographic line-up, but was unable to identify Finch.

¶10 Ellison said they next drove to a nearby movie theater

and parked the van. Finch led the way to the Bouchers’ house

and entered first. Once inside, Ellison and Finch ordered Mrs.

Boucher from the living room and into Mr. Boucher’s bedroom.

Ellison admitted binding the victims with the phone cords and

masking tape, but claimed to have done so only at Finch’s

direction. Ellison said Finch then pointed a gun at him and

ordered him to kill Mr. Boucher. By his account, Ellison held a

pillow over Mr. Boucher’s face for a period of time, possibly

only a few seconds, while Finch strangled Mrs. Boucher. Ellison

said he removed the pillow when Mr. Boucher stopped struggling,

but claimed he thought Mr. Boucher was still alive because his

chest was moving up and down. Ellison said he told Finch he

would have to finish off Mr. Boucher. Ellison also said that

after Finch strangled Mrs. Boucher, Finch moved her body to

another bedroom.

¶11 Ellison claimed that it was Finch’s idea to “hit” the

house and that he did not know how Finch had picked the

Bouchers’ home. Ellison admitted he was somewhat familiar with

the area because his parents lived nearby. Additionally, at

5
trial, Brown identified Ellison as having worked on her parents’

home in October 1997 and at a nearby house the next year.

According to Howe, Finch did not possess a gun or a vehicle and

had never gone to Kingman before February 24, 1999.

¶12 The police acknowledged at trial that no physical

evidence proved who actually killed either victim. None of the

approximately 170 fingerprints found in the house matched

Ellison or Finch. Police found a latex glove in the Bouchers’

yard. Ellison later admitted he had supplied the latex gloves

that he and Finch wore during the burglary and murders. None of

the Bouchers’ property was found on Ellison, in his van, or at

his girlfriend’s home. Ellison, however, was not arrested until

five days after the murders. Ellison admitted removing jewelry

from Mrs. Boucher’s body, but said he did so only at Finch’s

direction. He also admitted using twenty dollars stolen from

the Bouchers to buy gas for his van.

¶13 The detectives attempted to record their initial

interview with Ellison but failed to do so.2 Detective Watson

re-interviewed Ellison at 10:06 a.m. In this nine-minute

recorded interview, Detective Watson tried to summarize the main

2
Ellison has not raised any issue regarding the detectives’
failure to successfully record his initial interview.

6
points of the first interview. This tape was played for the

guilt proceeding jury.

¶14 On March 4, 1999, Ellison and Finch were indicted for

the murders and first degree burglary. The State sought the

death penalty for each defendant. Judge Robert R. Moon severed

their trials. In September 2000, a jury convicted Finch on the

murder and burglary charges. In March 2001, Judge Moon

sentenced Finch to natural life imprisonment, finding, among

other things, mitigating factors due to Finch’s having acted

under duress from Ellison and later cooperating with police in

the investigation.

¶15 Ellison was tried in January 2002. With Judge Moon

presiding, the jury convicted Ellison on the murder and burglary

charges, specifically finding him guilty of both premeditated

and felony murder of the Bouchers and that he had either killed,

intended to kill, or acted with reckless indifference.

¶16 Before Ellison was sentenced, the United States

Supreme Court decided Ring v. Arizona (Ring II), 536 U.S. 584

(2002). The legislature then amended Arizona’s statutes to

provide for jury findings of aggravating and mitigating

circumstances and jury sentencing. A.R.S. § 13-703.01 (Supp.

2003). A newly impaneled jury heard Ellison’s sentencing

proceeding in January and February, 2004. This jury determined

that death was the appropriate sentence for each murder, after

7
finding six aggravators: 1) previous serious felony conviction;

2) pecuniary gain; 3) especially cruel; 4) murder committed

while on parole; 5) multiple homicides; and 6) victims more than

seventy years old.

II. Issues relating to the convictions

A. Ellison’s confession

1. Facts

¶17 Ellison moved before trial to suppress his statements

to the police, arguing that they were involuntary and obtained

in violation of Miranda v. Arizona, 384 U.S. 436 (1966). At a

voluntariness hearing, Detective Watson testified that, after he

gave Miranda warnings and Ellison agreed to talk, the detectives

began by telling Ellison information they had about his

activities in Kingman on February 24; Ellison did not respond.

Detective Auld said that “he did not believe [Ellison] was a bad

guy.” Detective Watson said that they did not believe Ellison

meant for anyone to die.

¶18 According to both detectives, Ellison sat back and

said: “Die? I don’t know what you’re talking about,” and “I

think I might want a lawyer.” (Emphasis added.) They then

stopped their questioning and told him that they could not talk

with him until he was clear whether he wanted an attorney. The

detectives said they attempted to get a clear answer from

Ellison. During this questioning, they also told him that they

8
had “a mountain of physical evidence and only one side of the

story” from Finch.

¶19 After a while, Detective Auld said: “Okay. That’s it,

then,” and left. He testified that he left because he was

unsure whether Ellison wanted an attorney. According to

Detective Watson, who stayed in the room, Ellison still had not

given a clear answer. At this point, Ellison asked what he was

being charged with. Detective Watson responded, “two counts of

first degree murder.” Ellison appeared upset and asked: “Can’t

we just forget about the lawyer thing?” Detective Watson

replied: “No. If I’m not going to lie to you, I’m not going to

lie to a judge. We can’t just forget about the lawyer thing.”

He told Ellison he “need[ed] to be very clear.” Ellison said,

“I will talk to you” and told Detective Watson that he did not

want an attorney. Detective Watson called Detective Auld back

into the room and Ellison told Auld the same thing.

¶20 Ellison talked to the detectives and, just before

returning to his jail cell, offered to testify against Finch.

According to Detective Watson, testifying against Finch was

Ellison’s idea. Detective Watson told Ellison he would relay

his offer to the county attorney. Watson, however, denied

making any promises of leniency or reduced charges.

9
¶21 During the subsequent taped interview, a transcript of

which was admitted at the voluntariness hearing, Detective

Watson asked Ellison:

I advised you of your rights before we talked right?
During the interview you said you wanted an attorney
then you said no I will talk to you. You made it real
clear to Steve and I that you would talk to us is that
correct? That’s a yes if you’re nodding your head[.]

Ellison replied: “Yeah.”

Also in the taped interview, Detective Watson told Ellison:

Remember the deal, I’m not lying to you, I’m not going
to bullshit you. That’s what got this whole thing
started. . . . The reason I’ve come back down here is
I want to make sure it’s clear and there’s no
mistakes. And when I talk to the county attorney and
you said you’d testify, I want to have what you were
saying real clear about the fact that this was Richard
[Finch]’s idea.

(Emphasis added.) Detective Watson testified that the “deal”

did not refer to leniency. He stated that “deal” referred to

statements he made in the first interview about not lying or

playing games. Additionally, as best he could recall, he

referred to the county attorney only to explain why he was

taping a second interview.

¶22 Ellison also testified at the voluntariness hearing

with a very different account of events. According to Ellison,

after the detectives informed him of his Miranda rights and

asked about the killings, he “freaked out” and said, “I want a

lawyer.” (Emphasis added.) He said, despite this request, the

10
detectives switched between asking him if he wanted a lawyer and

asking him questions about the crime until Detective Auld got

mad and left. At this point, Ellison believed the interview was

over because he had asked for an attorney. He said Detective

Watson then told him that, if he testified against Finch, they

would get the county attorney to reduce his charges to burglary.

¶23 Ellison testified that he would not have talked to the

police without their promises of leniency. He said that he did

not make any specific statements about reduced charges or

leniency during the taped interview because he “thought it was

clear what was going on.” Ellison denied that testifying

against Finch was his idea.

¶24 Judge Moon found that the officers complied with

Miranda and denied the motion to suppress. The judge found the

detectives to be more credible than Ellison, and determined that

Ellison made an equivocal request for an attorney, which the

detectives properly attempted to clarify. Finally, he found the

police did not promise leniency and that Ellison did not rely on

any promises in making his statements.

2. Right to counsel

¶25 A trial court’s decision to admit a defendant’s

statement is reviewed for an abuse of discretion, State v.

Jones, 203 Ariz. 1, 5 ¶ 8, 49 P.3d 273, 277 (2002), based on the

evidence presented at the suppression hearing, State v. Hyde,

11
186 Ariz. 252, 265, 921 P.2d 655, 668 (1996). The evidence is

viewed in the light most favorable to upholding the trial

court’s ruling. Hyde, 186 Ariz. at 265, 921 P.2d at 668.

¶26 Under the Fifth and Fourteenth Amendments, a suspect

has a right against self-incrimination, which includes the right

to counsel during a custodial interrogation. Miranda, 384 U.S.

at 478-79. If a suspect requests counsel, “the interrogation

must cease until an attorney is present.” Id. at 474. However,

“law enforcement officers may continue questioning until and

unless the suspect clearly requests an attorney.” Davis v.

United States, 512 U.S. 452, 461 (1994) (emphasis added). Not

every reference to an attorney must be construed by police as an

invocation of the suspect’s right to counsel. “[I]f a suspect

makes a reference to an attorney that is ambiguous or equivocal

in that a reasonable officer in light of the circumstances would

have understood only that the suspect might be invoking the

right to counsel, . . . precedents do not require the cessation

of questioning.” Id. at 459.

¶27 The only evidence regarding Ellison’s reference to a

lawyer is the conflicting testimony of Ellison and the

detectives. Judge Moon, who was able to assess the witnesses

during the voluntariness hearing, determined that the officers’

account was more credible. Considering the evidence in the

light most favorable to upholding Judge Moon’s ruling, Hyde, 186

12
Ariz. at 265, 921 P.2d at 668, we assume Ellison said: “I think

I might want an attorney.”

¶28 In Davis, the Court held that a suspect’s statements,

“[m]aybe I should talk to a lawyer” and “I think I want a lawyer

before I say anything else,” were equivocal requests for

counsel. 512 U.S. at 455. The equivocal statements did not

articulate the request clearly enough for a reasonable police

officer to understand. Thus, the police were not required to

stop questioning. Id. at 461-62; accord State v. Eastlack, 180

Ariz. 243, 250-51, 883 P.2d 999, 1006-07 (1994) (finding the

statement “I think I better talk to a lawyer first” was an

equivocal request for an attorney).

¶29 Like the statements at issue in Davis and Eastlack,

Ellison’s statement, “I think I might want an attorney,” was an

equivocal request for counsel. Thus, the detectives were not

required to stop questioning him.3 Ellison argues that, even if

3
Although police officers are not required to stop questioning
when the defendant makes an equivocal request for counsel, “it
will often be good police practice for the interviewing officers
to clarify whether or not he actually wants an attorney.”
Davis, 512 U.S. at 461. As Justice O’Connor noted in Davis,
such a practice not only protects the rights of the suspect, but
will also “minimize the chance of a confession being suppressed
due to subsequent judicial second-guessing as to the meaning of
the suspect’s statement regarding counsel.” Id.; see also State
v. Newell, 212 Ariz. 389, 408 ¶ 33, 132 P.3d 833, 842 (2006)
(noting that it was “entirely appropriate” to first clarify
whether a suspect was requesting counsel and then to proceed
with questioning after learning that he was not).

13
his statement was equivocal, the detectives could not question

him except to clarify his request for counsel. Ellison,

however, fails to recognize that Davis and Eastlack expressly

determined that, if a defendant makes an ambiguous statement,

police are not constitutionally required either to clarify the

statement or to stop their questioning. Ellison’s ambiguous

statements do not meet the “threshold standard of clarity . . .

[which] invoke[s] the right to counsel.” Eastlack, 180 Ariz. at

250, 883 P.2d at 1006 (citing Davis, 512 U.S. at 454-56). The

police’s “subsequent questioning [of Ellison] was thus proper.”

Id.

3. Voluntariness

¶30 To be admissible, a statement must be voluntary, not

obtained by coercion or improper inducement. Haynes v.

Washington, 373 U.S. 503, 513-14 (1963). “Promises of benefits

or leniency, whether direct or implied, even if only slight in

value, are impermissibly coercive.” State v. Lopez, 174 Ariz.

131, 138, 847 P.2d 1078, 1085 (1992). This is a separate

inquiry from the right to counsel under Miranda.

_______________
We also again observe that videotaping “the entire
interrogation process” is both good police practice and a
profound aid to courts assessing Miranda claims. Newell, 212
Ariz. at 408 n.9, 132 P.3d at 842 n.9 (quoting Jones, 203 Ariz.
at 7 ¶ 18, 49 P.3d at 279).

14
¶31 In Arizona, a suspect’s statement is presumptively

involuntary. State v. Amaya-Ruiz, 166 Ariz. 152, 164, 800 P.2d

1260, 1272 (1990). However, “[a] prima facie case for admission

of a confession is made when the officer testifies that the

confession was obtained without threat, coercion or promises of

immunity or a lesser penalty.” State v. Jerousek, 121 Ariz.

420, 424, 590 P.2d 1366, 1370 (1979). Here, the detectives

testified that they never asked Ellison to testify against Finch

and never suggested any charges would be dropped if he

testified; nor did they threaten or otherwise intimidate him.

¶32 The trial court generally is responsible for resolving

conflicts of testimony and this court will defer to those

findings absent an abuse of discretion. State v. Lacy, 187

Ariz. 340, 347, 929 P.2d 1288, 1295 (1996) (citing Jerousek, 121

Ariz. at 424, 590 P.2d at 1370). Ellison argues his confession

was involuntary because it was induced by promises of leniency.

Ellison’s arguments presume the truth of his version of events,

despite contrary testimony by the detectives.

¶33 Judge Moon, however, concluded that Detective Watson’s

testimony was more credible and determined the evidence did not

show any express or implied promises of leniency. Moreover, it

does not appear that Ellison’s will was overborne by any

promises of leniency. See State v. Tapia, 159 Ariz. 284, 287-

88, 767 P.2d 5, 8-9 (1988). Although he agreed to talk with the

15
detectives, he maintained that Finch was the ringleader and that

he acted only under duress. Ellison also admitted being

familiar with, and understanding, his Miranda rights. There is

no basis here to conclude that Judge Moon abused his discretion

in determining that Ellison’s statements were voluntary.

B. Trial judge’s bias or prejudice

¶34 During a pre-trial status hearing, after reading

newspaper accounts of statements made by Judge Moon during

Finch’s sentencing, Ellison’s counsel asked if Judge Moon was

biased. Judge Moon stated that he had made findings specific to

the evidence at Finch’s trial, not due to any bias against

Ellison, but invited counsel to file a motion under Arizona Rule

of Criminal Procedure 10.1.4 Defense counsel failed to make such

a motion.

¶35 The constitutional right to a fair trial includes the

right to a fair and impartial judge. State v. Mincey, 141 Ariz.

4
Evidence was produced at Finch’s trial, including Finch’s
statements to police, that was not admitted in Ellison’s trial.
According to Finch, it was Ellison’s idea to burglarize the
Bouchers’ home. Finch claimed he only intended to commit a
burglary, not to kill anyone, and that he killed Mrs. Boucher
only to avoid being killed himself. Finch presented evidence of
his duress as a statutory mitigator, A.R.S. § 13-703(G)(2),
which the trial judge determined Finch had proven by a
preponderance of the evidence. The judge also found mitigating
evidence in the fact that Finch was unusually susceptible to the
influence of others and had cooperated with police during the
investigation.

16
425, 442, 687 P.2d 1180, 1197 (1984). Under Rule 10.1(a), a

defendant is entitled to a new judge “if a fair and impartial

hearing or trial cannot be had by reason of the interest or

prejudice of the assigned judge.” To exercise this right, the

defendant must request the change of judge within ten days of

discovering the grounds for cause. Ariz. R. Crim. P. 10.1(b).

¶36 Ellison’s failure to file a Rule 10.1 motion is itself

a basis to reject his argument that the judge was improperly

biased. The rule specifically provides that an untimely removal

motion may be denied regardless of its merits. See id.; accord

Mincey, 141 Ariz. at 443, 687 P.2d at 1198. In any event,

Ellison has not identified facts showing that Judge Moon was

required to remove himself from the case.

¶37 “Judges are presumed to be impartial, and the party

moving for change of judge must prove a judge’s bias or

prejudice by a preponderance of the evidence.” State v. Smith,

203 Ariz. 75, 79 ¶ 13, 50 P.3d 825, 829 (2002) (finding capital

murder defendant, who failed to provide evidence of actual bias,

did not meet his burden of proof under Rule 10.1). Otherwise,

Rule 10.1 “procedures would be rendered meaningless and

effectively circumvented if permission to question a judge’s

partiality rested not on concrete facts and specific allegations

but on mere speculation, suspicion, apprehension, or

17
imagination.” State v. Rossi, 154 Ariz. 245, 248, 741 P.2d

1223, 1226 (1987).5

¶38 “[T]here is no per se disqualification of a sentencing

trial judge who presides over a codefendant’s trial.” State v.

Greenway, 170 Ariz. 155, 162, 823 P.2d 22, 29 (1991). There

also is no bias or prejudice inherent in presiding over a

defendant’s subsequent proceeding, even though the judge has

heard unfavorable remarks about the defendant in prior

proceedings, particularly when the judge states he will keep an

open mind. State v. Thompson, 150 Ariz. 554, 557-58, 724 P.2d

1223, 1226-27 (App. 1986). “[O]pinions formed by the judge on

the basis of facts introduced or events occurring in the course

of the current proceedings, or of prior proceedings, do not

constitute a basis for a bias or partiality motion unless they

display a deep-seated favoritism or antagonism that would make

5
Independent of Rule 10.1, under the Judicial Code of Conduct, a
judge ethically must avoid impropriety and the appearance of
impropriety. Ariz. R. Sup. Ct. 81, Canon 2(A), cmt. A judge
must disqualify himself if his “impartiality might reasonably be
questioned” for reasons such as “personal knowledge of disputed
evidentiary facts” or “personal bias or prejudice.” Id. Canon
3(E)(1)(a). Ellison has not, however, relied on the Code of
Judicial Conduct in arguing for Judge Moon’s disqualification.
Still, we note that, as a matter of ethics, a judge presiding
over a codefendant’s trial does not automatically raise a
reasonable question of impartiality. State v. Thompson, 150
Ariz. 554, 556-57, 724 P.2d 1223, 1225-26 (App. 1986) (citing
Canon 3). Here, Judge Moon’s statements do not suggest that his
impartiality could reasonably be questioned as an ethical
matter.

18
fair judgment impossible.” Liteky v. United States, 510 U.S.

540, 555 (1994); accord State v. Henry, 189 Ariz. 542, 546, 944

P.2d 57, 61 (1997).

¶39 Ellison argues that the sentencing of Finch reflects

that Judge Moon was biased against Ellison. Judge Moon,

however, emphasized that his decisions in Finch’s case were

based on the evidence presented at that trial. He also promised

to make his decisions in Ellison’s case based solely on the

evidence produced during Ellison’s trial. Judge Moon’s

statements accord with Greenway, Thompson, and Liteky.

¶40 Ellison also argues that Judge Moon made several

evidentiary rulings against him. However, “judicial rulings

alone almost never constitute a valid basis for a bias or

partiality motion,” Liteky, 510 U.S. at 555, without showing

“[]either an extrajudicial source of bias []or any deep-seated

favoritism,” State v. Schackart, 190 Ariz. 238, 257, 947 P.2d

315, 334 (1997). As explained in this opinion, infra ¶¶ 43-59,

Judge Moon did not err in any of the challenged evidentiary

rulings. Additionally, he ruled in Ellison’s favor to exclude

several hearsay statements. Ellison has failed to show bias or

prejudice that would require Judge Moon’s disqualification under

Rule 10.1.

19
 C. Selection of a death qualified jury

¶41 Ellison argues that his guilt proceeding jury was

unconstitutionally relieved of the gravity of its decision

because potential jurors were told, in a questionnaire and

instructions, they would have no role in determining punishment

and should not consider the likely punishment. Under Caldwell

v. Mississippi, “it is constitutionally impermissible to rest a

death sentence on a determination made by a sentencer who has

been led to believe that the responsibility for determining the

appropriateness of the defendant’s death rests elsewhere.” 472

U.S. 320, 328-29 (1985). Ellison’s argument fails, however,

because, when his jury was selected, juries were not responsible

for deciding whether a death sentence is appropriate. State v.

Anderson (Anderson II), 210 Ariz. 327, 337 ¶ 23, 111 P.3d 369,

378 (2005) (rejecting identical argument).

D. Evidentiary issues

¶42 Ellison challenges various evidentiary rulings by the

trial court. Such rulings generally are reviewed for an abuse

of discretion. See State v. Tucker, 205 Ariz. 157, 165 ¶ 41, 68

P.3d 110, 118 (2003). Evidentiary rulings that implicate the

Confrontation Clause, however, are reviewed de novo. Lilly v.

Virginia, 527 U.S. 116, 137 (1999).

20
 1. Admissibility of Finch’s statements to Brad Howe

¶43 Before trial, Ellison asked the trial court to rule on

the admissibility of certain statements Finch made to Howe after

the murders. At an evidentiary hearing, Howe testified that

Finch and he went barhopping the night after the murders.6 While

at Red’s Bar, Finch said that he (Finch) had killed two people

the night before. Howe promptly removed Finch from the bar and

drove home.

¶44 On the way home, Finch told Howe that he had gone with

“Slinger” (Ellison) to rob some people. According to Howe,

Finch said that he thought he was going to watch Ellison’s back.

Ellison drove the two in his van. Finch did not know the name

of the town to which Ellison drove them. Finch told Howe that

Ellison represented himself as an Aryan Brotherhood “enforcer.”

According to Howe, Finch believed they were going to threaten or

scare somebody, not to kill anyone. Finch said that Ellison,

unable to kill Mr. Boucher, ordered him to do so. When Finch

refused, Ellison pointed a gun at him and threatened him. Finch

told Howe that he was “scared to death of Slinger.” He also

told Howe that he was looking into the victims’ eyes when they

died.

6
Howe did not testify at trial about the statements at issue and
the jury did not otherwise hear this information.

21
¶45 Defense counsel moved to introduce Finch’s statements

at Red’s Bar as statements against interest, Ariz. R. Evid.

804(b)(3), and to exclude Finch’s statements made to Howe after

they had left Red’s Bar. The trial judge ruled that Finch’s

statements at Red’s Bar were admissible as statements against

interest. The judge also ruled that, while the State could not

call Howe to the stand to specifically elicit testimony about

the statements that Finch made on the way home, it could cross-

examine Howe with those statements for impeachment purposes,

absent a prejudice issue under Arizona Rule of Evidence 403. In

light of these rulings, defense counsel did not elicit testimony

from Howe regarding any of Finch’s specific statements made

either at Red’s Bar or on the way home.7 Ellison now argues the

trial court should have ruled Finch’s other statements

inadmissible, even for impeachment purposes, under the

Confrontation Clause.8

7
Ellison did not seek to admit any of these statements during
his sentencing proceeding.
8
Because Judge Moon limited admissibility of Finch’s statements
to Howe after they left Red’s Bar to impeachment purposes,
defense counsel’s choice not to elicit any testimony regarding
Finch’s statements at Red’s Bar effectively barred the State
from introducing Finch’s statements made on the way home. There
is an argument that defense counsel, by choosing not to question
Howe regarding Finch’s statements, waived any Confrontation
Clause challenge to Judge Moon’s ruling. Cf. State v. Smyers,
207 Ariz. 314, 316-18 ¶¶ 5-15, 86 P.3d 370, 372-74 (2004)
(holding, based on long-standing case law, that defendant who
did not testify at trial waived any challenge to a pretrial

22
¶46 This court, however, recently ruled that, when a

defendant seeks to admit portions of his accomplice’s recorded

statements, the trial judge may, under Arizona Rule of Evidence

106, admit the remaining statements if necessary to avoid

confusing the jury. In that event, the Confrontation Clause is

not even implicated. State v. Prasertphong (Prasertphong II),

210 Ariz. 496, 499-500 ¶¶ 13-17, 114 P.3d 828, 831-32 (2005)

(citing State v. Soto-Fong, 187 Ariz. 186, 194, 928 P.2d 610,

618 (1996) (determining that “once [Soto-Fong] made the tactical

decision to introduce some of [the informant’s] testimony about

[the conversation with the two alleged accomplices], he could

not simultaneously preclude the state from introducing other

evidence of that same conversation”) (alterations in original)).

¶47 Prasertphong II demonstrates that if Ellison had

introduced Finch’s statements to Howe while at Red’s Bar, he

could not then claim a Confrontation Clause violation if the

prosecution introduced Finch’s other statements made during

their continued conversation on the way home from the bar.

_______________
ruling allowing use of prior felony convictions for impeachment
purposes); State v. Conner, 163 Ariz. 97, 102-03, 786 P.2d 948,
953-54 (1990) (holding that defendant who did not testify at
trial waived any challenge to a pretrial ruling on the
admissibility of his statements to police for impeachment
purposes). However, because we determine that the Confrontation
Clause is not implicated at all, we do not address the waiver
argument and its underlying policy considerations.

23
Judge Moon thus did not err in ruling that if Ellison offered

part of Finch’s hearsay statements, the State could question

Howe with the remainder of the conversation.9

2. Admissibility of Finch’s statements to Daymond Hill

¶48 Ellison sought to introduce Finch’s statements to

Daymond Hill, a fellow inmate, as statements against interest.10

In support, defense counsel offered a transcript of their

interview with Hill. In that interview, Hill stated Finch told

him “that they did a couple of burglaries.” (Emphasis added.)

Hill responded, “Just a couple of burglaries? Well, that ain’t

too bad, you know.” According to Hill, Finch then added that

“he [Finch] killed some people.” (Emphasis added.) According

to Hill, Finch “was really nervous at the time.” Hill verified

that Finch used the singular regarding the murders and that

_______________
9
Although Arizona Rule of Evidence 106, by its terms, applies
only to writings and recorded statements, the Prasertphong II
rationale is equally applicable to oral statements. The main
concern in Prasertphong II was the inequity of allowing a
defendant to admit the beneficial part of a statement while
using the Confrontation Clause to prevent the State from
offering the remainder of the statement in order to avoid
misleading the jury. 210 Ariz. at 502 ¶ 24, 114 P.3d at 834
(“[T]he rule of completeness . . . extinguishes confrontation
claims essentially on equitable grounds.”) (internal quotation
marks omitted).
10
Ellison sought to introduce Hill’s statements only during his
guilt proceeding. He did not seek to introduce the statements
during his sentencing proceeding.

24
Finch said “he [Finch] strangled them or choked them or

something.” (Emphasis added.)

¶49 Judge Moon concluded that even if a jury believed

Hill’s testimony, the statements, while inculpating Finch, did

not exculpate Ellison. Thus, the statements were not relevant

to Ellison’s involvement in the crimes. Additionally, a

defendant seeking to use his accomplice’s statements against

interest as exculpating evidence must also provide

particularized guarantees of trustworthiness. Ariz. R. Evid.

804(b)(3); accord Prasertphong II, 210 Ariz. at 497 n.2, 114

P.3d at 829 n.2. Judge Moon found no such trustworthiness in

Finch’s statements to Hill. He noted that Finch made the

statements while he was in administrative segregation at the

jail, housed with “the baddest of the bad.” Judge Moon noted

that Finch had said he feared retaliation and he may have simply

bragged about the murders to protect himself.

¶50 Ellison now argues that the minimal threshold for

relevance is met because Finch’s statements to Hill make it more

likely that Finch chose to kill the victims himself, rather than

that Ellison masterminded the robberies and murders. The

statements do make it somewhat more likely that Finch physically

killed both victims, which is not inconsistent with either

Finch’s or Ellison’s version of the murders. The statements may

25
be marginally relevant to support Ellison’s claim that Finch, as

the ringleader, forced Ellison to participate in the murders.

¶51 This, however, does not mean that the statements are

relevant to Ellison’s guilt. Duress is not a defense for

“offenses involving homicide,” which include premeditated murder

and felony murder. A.R.S. § 13-412(C) (2001). Thus, any error

in excluding evidence of duress at the guilt proceeding for a

murder trial is harmless. State v. Encinas, 132 Ariz. 493, 496,

647 P.2d 624, 627 (1982) (noting that duress is not a defense to

crimes involving homicide, whether premeditated murder or felony

murder, or serious bodily injury). We hold that Judge Moon did

not err in excluding Finch’s hearsay statements to Hill or,

alternatively, that any error was harmless.

3. Cross-examination of Vivian Brown

¶52 At trial, Brown testified that she saw Ellison working

two houses away from her parents’ house during the monsoon

season of 1998. The prosecutor asked if it would have been in

July or August. She replied, “I would say.” On cross-

examination, defense counsel sought to impeach Brown by

questioning her about Ellison’s Arizona Department of

Corrections (“ADOC”) record, which showed he was in prison from

May 1998 through January 1999. Judge Moon ruled that the ADOC

record was hearsay that defense counsel could not use in cross-

examining Brown. He invited defense counsel to seek to

26
introduce the record itself as evidence, but counsel did not do

so. A trial court’s ruling regarding the scope of cross-

examination is reviewed for an abuse of discretion. State v.

McElyea, 130 Ariz. 185, 187, 635 P.2d 170, 172 (1981).

¶53 Ellison now argues that, under Arizona Rule of

Evidence 608(b), Judge Moon should have allowed him to cross-

examine Brown regarding the ADOC records. Rule 608(b) allows

inquiring into specific instances of a witness’s conduct for

impeachment purposes. The ADOC records, however, did not deal

with Brown’s conduct. Nor did Brown have any knowledge about

the records. Thus, the records do not meet Rule 608’s

requirements. Additionally, the records are hearsay, Ariz. R.

Evid. 801, and not admissible unless they fall under some

hearsay exception, Ariz. R. Evid. 802. Defense counsel failed

to offer the ADOC records into evidence under a hearsay

exception. Judge Moon did not abuse his discretion in ruling

that the ADOC records could not be used during Brown’s cross-

examination absent their admission into evidence.

4. Finch’s visible reactions when discussing Ellison

¶54 At trial, Judge Moon sustained a defense objection and

ruled that Detective Watson could not speculate whether Finch’s

body language and actions during interrogation were intended to

convey fear of Ellison. Judge Moon did, however, allow the

State to establish that Finch’s actions and body language were

27
visibly very different when Finch spoke about Ellison.

Detective Watson then testified that when Finch discussed

Ellison, his hands shook, his voice broke, and his eyes welled

up as if about to cry. Defense counsel did not object to this

testimony, and we therefore review only for fundamental error.

¶55 Ellison now argues that Detective Watson’s testimony

was inadmissible hearsay that violated the Confrontation Clause

because, when Finch made these “statements,” he was the sole

suspect. Finch, Ellison contends, sought to express his alleged

fear of Ellison through nonverbal conduct because Finch claimed

to have acted under duress.

¶56 Nonverbal conduct is hearsay if it is intended to be

an assertion. Ariz. R. Evid. 801; see also, e.g., State v.

Satterfield, 340 S.E.2d 52, 54 (N.C. 1986) (showing police a

kitchen drawer where the knives were kept in response to

questioning); State v. Townsend, 467 S.E.2d 138, 141 (S.C. Ct.

App. 1995) (pointing out the DUI driver in response to police

questioning). Here the nonverbal conduct by Finch was not in

response to police questioning about his feelings regarding

Ellison. Moreover, Ellison does not offer any other specific

evidence or circumstances indicating Finch intended his conduct

to assert his fear of Ellison. See, e.g., Markgraf v. State, 12

P.3d 197, 199 (Alaska Ct. App. 2000) (concluding facial

expressions, nervousness, repeatedly looking over shoulder and

28
low voice not hearsay); State v. Thomas, 533 A.2d 553, 557

(Conn. 1987) (“Nonassertive conduct such as running to hide, or

shaking and trembling, is not hearsay.”); Layman v. State, 652

So. 2d 373, 375 (Fla. 1995) (determining testimony regarding

victim’s crying and fear were “observations of physical

demeanor” was not hearsay). Mere speculation as to Finch’s

intent, without independent evidence, is not enough. Finch’s

change in behavior does not appear intended as an assertion.

The trial judge did not commit fundamental error in allowing the

detective’s testimony about Finch’s behavior.

5. Handgun found at the home of Ellison’s girlfriend

¶57 Police executed a search warrant at the home of Cathie

Webster-Hauver. In the search, Detective Auld discovered a .22

caliber handgun in a car parked in the garage. Webster-Hauver

told police that Ellison possessed the gun at some point.

Additionally, Webster-Hauver’s daughter told police that Ellison

had been at their house after February 24. The State’s latent

print examiner later matched Ellison’s fingerprint to one of

eight fingerprints on the gun; however, she could not tell how

long his fingerprint had been on the gun. Finch’s fingerprints

were not found on the gun. At trial, defense counsel objected

on relevancy grounds to evidence regarding this gun. Having

lost that motion, counsel renewed the objection in a motion for

a new trial.

29
¶58 The trial court did not abuse its discretion in

admitting the evidence about the gun found in the car at the

house of Ellison’s girlfriend. This evidence establishes that

Ellison possessed a gun before and after the crime, and combined

with other evidence that Finch did not possess a gun, makes less

likely Ellison’s story that he participated only because Finch

threatened him with a gun.

6. Cumulative error doctrine

¶59 Ellison argues the severity and finality of the death

penalty warrant application of the cumulative error doctrine.

As Ellison recognizes, however, this court usually does not

subscribe to the cumulative error doctrine, State v. Dickens,

187 Ariz. 1, 21, 926 P.2d 468, 488 (1996), and, in any event,

none of the above claims independently prove prejudicial error.11

E. Mistrial based on testimony regarding Ellison’s gun

¶60 At trial, Detective Auld testified that police

searched Webster-Hauver’s house, in part, to find “the gun that

was described [to police] by Mr. Finch.” Defense counsel chose

not to object immediately to avoid emphasizing the statement

before the jury. Later, defense counsel suggested that the

court strike the statement. The prosecution, surprised by the

11
This court does recognize the cumulative error doctrine in the
context of prosecutorial misconduct. State v. Hughes, 193 Ariz.
72, 78-79 ¶ 25, 969 P.2d 1184, 1190-91 (1998).

30
testimony, offered not to use Detective Auld’s statement in

closing. Judge Moon, while recognizing a potential

Confrontation Clause problem, observed that the instructions

could prevent any improper inferences by the jury. The parties

ultimately agreed that the statement would not be stricken so as

not to draw attention to it. Defense counsel did not request

any specific jury instructions. Ellison now argues that Judge

Moon’s failure to sua sponte order a mistrial or to provide a

specific limiting instruction was extremely prejudicial.

¶61 A defendant generally waives his objection to

testimony if he fails either to ask that it be stricken, with

limiting instructions given, or to request a mistrial. State v.

Holmes, 110 Ariz. 494, 496, 520 P.2d 1118, 1120 (1974). Absent

fundamental error, a defendant cannot complain if the court

fails to sua sponte give limiting instructions, State v. Finch,

202 Ariz. 410, 415 ¶ 19, 46 P.3d 421, 426 (2002), or to sua

sponte order a mistrial, State v. Laird, 186 Ariz. 203, 207, 920

P.2d 769, 773 (1996).

¶62 Here, there was no fundamental error. Detective

Auld’s reference was brief and the State did not use this

statement in closing. Additionally, the jurors did not hear any

specific evidence or argument regarding Finch’s duress claim and

likely were not even aware that Finch claimed Ellison pointed a

gun at him. As the State points out, the jury might have

31
thought that Auld’s reference concerned one of the guns taken

from the Bouchers’ house.

F. Reasonable doubt instruction

¶63 Ellison, relying on State v. Perez, 976 P.2d 427, 442

(Haw. Ct. App. 1998), rev’d in part, 976 P.2d 379 (Haw. 1999),

argues that the reasonable doubt instruction’s use of the phrase

“firmly convinced” improperly reduced the State’s burden of

proof to “clear and convincing.” The reasonable doubt

instruction, however, comports with State v. Portillo, 182 Ariz.

592, 594-96, 898 P.2d 970, 972-74 (1995). This court has

expressly declined to follow the Perez decision on this point,

State v. Van Adams, 194 Ariz. 408, 417-18 ¶¶ 29-30, 984 P.2d 16,

25-26 (1999), and has recently reaffirmed a “preference” for the

Portillo instruction, State v. Dann, 205 Ariz. 557, 575-76 ¶ 74,

74 P.3d 231, 249-50 (2003).

G. Motion for judgment of acquittal

¶64 Ellison argues the trial judge erred in denying his

motion for acquittal because the State failed to present

evidence that he specifically intended to aid or assist Finch in

committing premeditated murder.

¶65 A conviction will be reversed for insufficient

evidence only if it is not supported by substantial evidence.

State v. Henry, 205 Ariz. 229, 232 ¶ 11, 68 P.3d 455, 458 (App.

2003). “Substantial evidence is more than a mere scintilla and

32
is such proof that reasonable persons could accept as adequate

and sufficient to support a conclusion of defendant’s guilt

beyond a reasonable doubt.” State v. Mathers, 165 Ariz. 64, 67,

796 P.2d 866, 869 (1990) (internal citation and quotation marks

omitted).

¶66 A person commits premeditated murder if “[i]ntending

or knowing that the person’s conduct will cause death, such

person causes the death of another with premeditation.” A.R.S.

§ 13-1105(A)(1) (1999). To establish premeditation, “the state

must prove that the defendant acted with either the intent or

knowledge that he would kill his victim and that such intent or

knowledge preceded the killing by a length of time permitting

reflection.” State v. Murray, 184 Ariz. 9, 32, 906 P.2d 542,

565 (1995).

¶67 A defendant may be liable as an accomplice under

A.R.S. § 13-303(A)(3) “only for those offenses the defendant

intended to aid or aided another in planning or committing.”

State v. Phillips, 202 Ariz. 427, 436 ¶ 37, 46 P.3d 1048, 1057

(2002) (finding that accomplice in robbery was not an accomplice

to murder because he did not intend to aid or assist in the

murder).

¶68 In general, duress is not a defense to any offense

involving homicide. A.R.S. § 13-412(C). As Ellison

acknowledges, duress is not a defense to murder physically

33
committed by the defendant. Thus, if Ellison had actually

killed both victims, he could not avoid a premeditated murder

conviction simply because he acted under duress. Ellison,

however, argues that, under Phillips, duress should be a defense

to accomplice liability, because a person acting under duress

does not have the specific intent to aid or assist a

premeditated murder. Ellison confuses the distinct concepts of

motive and intent.

¶69 Just as we have refused to recognize duress as a

defense to felony murder even when the defendant did not

physically kill the victim, Encinas, 132 Ariz. at 496, 647 P.2d

at 627, we now decline to recognize duress as a defense to

accomplice liability for murder. Phillips does not require a

contrary rule. The focus, rather, is on whether the facts show

Ellison’s specific intent to aid or assist Finch in the murders

apart from his intent to assist Finch in committing burglary.

If a defendant has the specific intent to assist in murder, even

though his sole motivation is duress, Phillips is satisfied.

¶70 A reasonable fact-finder could have inferred that

Ellison intentionally aided or assisted Finch in killing the

Bouchers, or even killed Mr. Boucher himself. The evidence

indicated that Ellison knew the victims, planned the night-time

invasion of their home, and did not attempt to conceal his

identity from them. Ellison supplied the gloves he and Finch

34
used in committing the crimes and led Finch to the scene. As

the State notes, the manner in which Ellison and Finch killed

the Bouchers also shows premeditation. They bound them, making

them helpless to stop the robbery, but still suffocated them.

The medical examiner testified that suffocation takes several

minutes to complete. The medical examiner also testified that

the victims had defensive wounds on their bodies. Ellison’s

argument under Phillips fails.

III. Sentencing issues

A. Enmund/Tison findings

¶71 The Eighth Amendment does not allow the death penalty

to be imposed on a defendant unless he either “himself kill[s],

attempt[s] to kill, or intend[s] that a killing take place or

that lethal force will be employed,” Enmund v. Florida, 458 U.S.

782, 797 (1982), or is a major participant in the crime and acts

with reckless indifference, Tison v. Arizona, 481 U.S. 137, 157-

58 (1987).

¶72 Before the guilt proceeding, Judge Moon granted

Ellison’s request for the jury to make specific findings on the

Enmund/Tison factors.12 The jury ultimately found Ellison guilty

12
The current statute requires the jury to make this
determination, see A.R.S. § 13-703.01(P) (Supp. 2005), even
though a jury determination is not constitutionally required,
Ring v. Arizona (Ring III), 204 Ariz. 534, 563-65 ¶¶ 97-101, 65
P.3d 915, 944-46 (2003).

35
of both premeditated and felony murder. It further found that

Ellison “either killed, intended to kill, or acted with reckless

indifference towards the life or death” of both Lillian and

Joseph Boucher.

¶73 Ellison now argues the evidence showed that Finch

actually killed both victims. Citing Lacy, 187 Ariz. at 352,

929 P.2d at 1300, Ellison also argues that the State did not

prove that he acted with reckless indifference. The defendant

in Lacy, however, was not present when the actual killer bound

and gagged the victim; he only witnessed the killing afterwards.

Id. at 351-52, 929 P.2d at 1299-300. Ellison, on the other

hand, was not merely present during the burglary and subsequent

murders. He directly participated in binding the victims and

holding a pillow over Mr. Boucher’s face. A reasonable

factfinder could conclude that Ellison acted at least with

reckless indifference to the victims’ lives.13

B. Post-Ring sentencing issues

¶74 Ellison raises several issues unique to death penalty

cases that began before the Ring II decision and concluded after

the legislature amended Arizona’s statutes to provide for jury

findings of aggravating and mitigating circumstances and jury

13
Enmund/Tison findings are not aggravators, Ring III, 204 Ariz.
at 564-65 ¶¶ 99-101, 65 P.3d at 945-46, and, consequently, are
not subject to our independent review.

36
sentencing. See 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1,

§§ 3, 7(B). As detailed below, this court’s recent decisions,

particularly Anderson II, 210 Ariz. at 327, 111 P.3d at 369,

have considered and rejected several identical arguments.

1. Standard of review under A.R.S. § 13-703.05

¶75 Ellison now concedes that A.R.S. § 13-703.05 (Supp.

2005) does not apply to his case. Rather, under A.R.S. § 13-

703.04, this court will independently review whether a death

sentence is warranted in cases where the crime occurred before

the effective date of § 13-703.05. State v. Carreon, 210 Ariz.

54, 65 ¶ 50 n.11, 107 P.3d 900, 911 n.11 (2005).

2. Failure to indict Ellison for a capital crime

¶76 Ellison argues that the aggravating factors listed in

A.R.S. § 13-703 increase his potential punishment and, thus,

must be included in the indictment. This argument was most

recently rejected in Anderson II, 210 Ariz. at 346 ¶ 78, 111

P.3d at 388.14

14
Ellison recognizes that this court has determined that the
indictment clause of Article 2, Section 30, of the Arizona
Constitution does not require aggravators to be specified in the
indictment. McKaney v. Foreman, 209 Ariz. 268, 271-72 ¶¶ 16-17,
100 P.3d 18, 21-22 (2004). He raises this argument under the
Fifth Amendment to the United States Constitution “to avoid
preclusion to argue in federal court that the due process clause
of the Fourteenth Amendment should incorporate the indictment
clause of the Fifth Amendment.”

37
 3. Absence of pretrial notice of aggravating factors

¶77 The State gave notice of its intent to seek the death

penalty on April 1, 1999. Ellison later requested pre-trial

notice of the aggravating circumstances. Under the then-

existing Rule 15.1(g)(2) of the Arizona Rules of Criminal

Procedure, however, such notice was required only after

conviction. The State gave formal notice of six aggravators on

January 29, 2002, just ten days after the guilty verdicts and,

ultimately, more than two years before the sentencing

proceeding, allowing Ellison sufficient time to prepare his

defense. See Anderson II, 210 Ariz. at 347 ¶ 80, 111 P.3d at

389 (noting defendant had actual notice more than a year before

aggravation phase). Moreover, even before the State formally

noticed the aggravators, Ellison had notice of those on which

the State would ultimately rely, inasmuch as they were

referenced in the State’s arguments at the bail hearing and in

Ellison’s own pretrial motion to declare A.R.S. § 13-703

unconstitutional.

¶78 Ellison argues that the aggravator notice rule in

effect at the time of his trial violates the Sixth, Eighth, and

Fourteenth Amendments of the United States Constitution because,

under Ring II, aggravators are treated as elements for notice

and due process purposes. He also argues that a new sentencing

jury cannot be impaneled because A.R.S. § 13-703.01(E) requires

38
the trier of fact to determine aggravators “based on the

evidence that was presented at the trial or at the aggravation

phase.” (Emphasis added.) Finally, Ellison argues that the

failure to give pre-trial notice created a risk the death

penalty will be imposed in an arbitrary and capricious manner,

violating the Eighth Amendment’s heightened reliability

requirement. All of these arguments were rejected in Anderson

II, 210 Ariz. at 347 ¶¶ 79-80 & 82, 111 P.3d at 389.

¶79 Moreover, Ellison has not shown any prejudice from the

timing of the State’s formal notice. State v. Cropper, 205

Ariz. 181, 184 ¶¶ 14-15, 68 P.3d 407, 410 (2003). Ellison

argues that he was “lulled into not defending against evidence

that would constitute proof of the aggravating factors” during

the guilt proceeding because, under the old sentencing statute,

the burden of proof at sentencing was on the State and, during

sentencing, he would be able to defend against evidence

introduced during the guilt proceeding. Under the amended

version of A.R.S. § 13-703.01(E), however, the trier of fact

determines aggravators based on “the evidence that was presented

at the trial or at the aggravation phase.” (Emphasis added.)

¶80 Ellison fails to note that, under A.R.S. § 13-703(D),

evidence admitted at the guilt proceeding is deemed admitted at

a sentencing proceeding only if the trier of fact is the same in

both the guilt and sentencing proceedings. Here, however, a new

39
jury sentenced Ellison. In the sentencing proceeding, the State

had the burden of proof and was required to reintroduce evidence

from the guilt proceeding, and Ellison could defend against such

evidence. Ellison’s incentives to defend against evidence

during the guilt proceeding were not altered by the fact that a

second jury, rather than Judge Moon, determined that the death

sentence should be imposed.15 Cf. Anderson II, 210 Ariz. at 347

¶ 80, 111 P.3d at 389. If anything, Ellison benefited from the

second jury, which heard less aggravating evidence than did the

guilt proceeding jury.

4. Separate juries for guilt and aggravation/penalty phases

¶81 Ellison argues that applying A.R.S. § 13-703.01 was

unconstitutional because he was sentenced before a jury that did

not hear the guilt proceeding of his trial and he was not

afforded a right to an individualized sentencing determination

under the Eighth Amendment. Anderson II, however, rejected

these challenges. 210 Ariz. at 347-48 ¶¶ 81-86, 111 P.3d at

389-90.

15
Ellison claims his counsel could not effectively defend
against evidence at the guilt proceeding without notice of the
aggravators. While specific ineffective assistance of counsel
claims cannot be raised on direct appeal, State v. Spreitz, 202
Ariz. 1, 3 ¶ 9, 39 P.3d 525, 527 (2002), Ellison is arguing that
defense attorneys categorically cannot effectively defend if
aggravators are not identified before trial, and we reject this
argument.

40
¶82 Ellison cannot complain that evidence relevant to

sentencing was presented at the guilt proceeding. As in

Anderson II, nothing prevented him from introducing evidence

from the guilt proceeding at his sentencing proceeding. Id. ¶¶

83-84. Moreover, there is no constitutional requirement that

the sentencing proceeding jury revisit the prior guilty verdict

by considering evidence of “residual doubt.” See Oregon v.

Guzek, 126 S. Ct. 1226, 1230-32 (2006) (acknowledging precedent

has not established such a right).

¶83 Ellison also argues that the statute violates the

Eighth Amendment by allowing the guilt proceeding jury to shift

responsibility to the sentencing jury. This argument was

rejected in Anderson II, 210 Ariz. at 337 ¶¶ 21-23, 111 P.3d at

379.

5. Double jeopardy claim

¶84 Ellison argues that sentencing is a trial for double

jeopardy purposes. He further argues that, when he was found

guilty in January 2002, he could not have been sentenced to

death because the then-existing death penalty statute was later

held unconstitutional. Thus, applying the new death penalty

statute impermissibly increased his potential punishment. These

arguments were rejected by Anderson II, 210 Ariz. at 348 ¶ 87,

111 P.3d at 390 (noting that a defendant who had not been

sentenced to death when Ring II was decided was, for all

41
relevant purposes, situated identically to the Ring III

defendants), and Ring v. Arizona (Ring III), 204 Ariz. 534, 550

¶ 39, 65 P.3d 915, 931 (2003).

6. Due process retroactivity claim

¶85 Ellison argues that sentencing him under a statute

enacted after he was convicted violated his due process rights

because defense counsel had prepared for sentencing by the trial

judge, not a jury. Anderson II rejected a similar argument.

210 Ariz. at 346 ¶ 75, 111 P.3d at 388.

C. Selection of the aggravation/penalty jury

¶86 The jury questionnaire’s only death qualification

question asked whether the possibility of the death penalty

would “prevent or substantially impair” the juror’s ability to

fairly decide Ellison’s sentence. Ellison, relying on

Wainwright v. Witt, 469 U.S. 412, 424-25 (1985), and State v.

Anderson (Anderson I), 197 Ariz. 314, 318-24 ¶¶ 5-24, 4 P.3d

369, 373-79 (2000), argues that this question is not the

“searching inquiry” required by case law.

¶87 Ellison, however, mischaracterizes the jury selection

process in his case. In addition to the juror questionnaire,

the potential jurors were subjected to extensive oral voir dire.

The voir dire distinguishes this case from Anderson I, in which

the trial judge refused to conduct oral voir dire and dismissed

42
jurors for cause based on generalized answers in the written

jury questionnaire. 197 Ariz. at 319 ¶ 10, 4 P.3d at 374.

¶88 Ellison also objects specifically to the striking of

potential jurors 17 and 19. Rulings on motions to strike

prospective jurors are reviewed for an abuse of discretion.

State v. Glassel, 211 Ariz. 33, 45 ¶ 36, 116 P.3d 1193, 1205

(2005). A death sentence cannot be upheld if the jury was

selected by striking for cause those who “voiced general

objections to the death penalty or expressed conscientious or

religious scruples against its infliction.” Witherspoon v.

Illinois, 391 U.S. 510, 522 (1968).

¶89 A judge, however, may strike for cause a potential

juror whose views regarding the death penalty “would prevent or

substantially impair the performance of his duties as a juror.”

Wainwright, 469 U.S. at 424 (internal quotation omitted). Such

views need not be proven with “unmistakable clarity.” Id.

(internal quotation omitted); accord Anderson I, 197 Ariz. at

318-19 ¶ 9, 4 P.3d at 373-74. Rather, even if a juror is

sincere in his promises to uphold the law, a judge may still

reasonably find a juror’s equivocation “about whether he would

take his personal biases in the jury room” sufficient to

substantially impair his duties as a juror, allowing a strike

for cause. Glassel, 211 Ariz. at 48 ¶¶ 49-50, 116 P.3d at 1208;

accord State v. Montaño, 204 Ariz. 413, 422-23 ¶¶ 38-40, 65 P.3d

43
61, 70-71 (2003) (finding strike for cause proper where juror

indicated much reservation and conflict about the death

penalty).

¶90 Here, the prosecution moved to strike juror 19 for

cause after she said, “if it come[s] to the point could I be for

the death penalty, I don’t know if I could do that. I might say

no, I can’t do that.” She stated it was possible that, even if

the jury found multiple aggravating factors and no mitigating

factors, she would not vote for the death penalty or would find

it hard to do so. In fact, it would be more possible for her to

ignore the law, and vote in favor of life over death, than to

follow the law. She quantified “more possible” as sixty

percent. She also said, “it would still be really hard to vote

for the death penalty, even if it’s all right there in front of

my nose.” In granting the motion to strike, Judge Moon remarked

that juror 19 went “beyond being against the death

penalty, . . . [by] saying she’s just not sure she can follow

the law.”

¶91 Juror 19, like the potential juror in Montaño,

expressed reservations and conflict about the death penalty.

She could not definitely say whether her beliefs would cause her

to ignore the law. Like the potential juror in Glassel, juror

19 gave statements indicating her beliefs could substantially

impair her ability as a juror, even though she also promised to

44
uphold her oath. The trial judge did not abuse his discretion

in allowing the prosecution to strike juror 19 for cause.16

D. Imputing aggravators to Ellison based on Finch’s conduct

¶92 Ellison argues that the instruction on accomplice

liability impermissibly allowed the jury to impute Finch’s

conduct to Ellison for purposes of the statutory aggravators and

that the evidence was insufficient to prove the pecuniary gain,

especially cruel, and multiple murders aggravators under A.R.S.

§ 13-703(F)(5)-(6), (8). Because this court independently

reviews whether the aggravators were proven beyond a reasonable

doubt, Ellison’s sufficiency of the evidence arguments are

addressed infra, ¶¶ 117-30.

¶93 Under Phillips, a defendant cannot be held liable as

an accomplice for crimes that he did not specifically intend to

promote or facilitate. 202 Ariz. at 436 ¶¶ 38-41, 46 P.3d at

1057. Judge Moon gave the following accomplice liability

instruction:

An accomplice is a person who, with intent to
promote or facilitate the commission of an offense,
aids, counsels, agrees to aid, or attempts to aid
another person in planning or committing the offense.

(Emphasis added.)

16
Ellison also appeals Judge Moon’s denial of his motion to
strike potential juror 17 for cause. Juror 17 did not
ultimately sit on the jury; thus, any error is harmless.
Glassel, 211 Ariz. at 50 ¶ 57, 116 P.3d at 1210.

45
¶94 This instruction properly required the jury to find

Ellison had the specific intent to promote or facilitate the

offense that he actually aided, counseled, agreed to aid, or

attempted to aid. Additionally, Judge Moon’s instructions for

the especially cruel and pecuniary gain aggravators properly

focused on Ellison’s personal intent and motivation. They did

not tell the jury to impute Finch’s intent to Ellison.

¶95 Regarding the multiple murders aggravator, A.R.S. §

13-703(F)(8) requires only that the defendant be convicted of

“one or more other homicides . . . which were committed during

the commission of the offense.” Here, Ellison was convicted of

both premeditated murder and felony murder for each victim.

“The [premeditated and felony murder] convictions satisfy the

element of intent for the murders.” State v. Prasertphong

(Prasertphong I), 206 Ariz. 167, 171 ¶ 18, 76 P.3d 438, 442

(2003), vacated on other grounds, 541 U.S. 1039 (2004).

E. Especially cruel instruction

¶96 In Walton v. Arizona, the United States Supreme Court

held that Arizona’s “especially heinous, cruel or depraved”

aggravating factor was unconstitutionally vague on its face.

497 U.S. 639, 654 (1990), overruled in part by Ring III, 536

U.S. at 586-87; see also Anderson II, 210 Ariz. at 352 ¶ 109,

111 P.3d at 394. A facially unconstitutional aggravator,

however, may be remedied by narrowing instructions. Walton, 497

46
U.S. at 653-54; Anderson II, 210 Ariz. at 352 ¶ 109, 111 P.3d at

394. This is true whether a judge or a jury makes the

sentencing determination. See Anderson II, 210 Ariz. at 352-53

¶ 111, 111 P.3d at 394-95 (relying on the narrowing instructions

as giving substance to the “especially heinous, cruel or

depraved” aggravator when a jury made the sentencing decision).

Thus, the proper inquiry is whether the jury instructions

adequately narrowed “especially cruel.”

¶97 Here, Judge Moon gave the following “especially cruel”

aggravator instruction:

In order to find that the especially cruel
aggravating circumstance is present as to either
murder, you must find that the State has proven beyond
a reasonable doubt that the murder was especially
cruel due to the infliction of either extreme physical
pain or extreme mental anguish upon that victim.

Judge Moon also defined “extreme mental anguish” and “extreme

physical pain” for the sentencing jury.17

¶98 This court has previously upheld the “especially

cruel” aggravator when narrowing instructions “focuse[d] on the

victim’s state of mind.” Anderson II, 210 Ariz. at 352-53 ¶ 111

n.19, 111 P.3d at 394 n.19. The Anderson II instructions, while

not identical to those here, are quite similar. For example,

17
Because we find the State did not prove “extreme physical
pain,” infra, ¶ 121 n.9, we do not address the jury instructions
concerning this aspect of the “especially cruel” aggravator.

47
Anderson II and this case both require proof that the defendant

knew or should have known he placed the victim in physical pain

or mental anguish. See id. Both also require that the victim

be conscious during the physical violence or mental anguish.

See id.

¶99 For mental suffering, the Anderson II instructions

require that the victim “experienced significant uncertainty as

to his or her ultimate fate.” Id. This case’s instructions

require that the victim “experienced extreme fear or extreme

anxiety by being made aware that he or she was going to die.”

If anything, being aware that you are going to die is more

restrictive than having significant uncertainty about your fate.

We find the “especially cruel” narrowing instructions allowed

the sentencing jury to constitutionally apply the aggravator.

F. Unconstitutional presumption of death

¶100 Ellison argues that Arizona’s death penalty statute

creates an unconstitutional presumption of death and

impermissibly shifts to him the burden of proving that

mitigation is sufficiently substantial to call for leniency.

This court has rejected these arguments. State ex rel. Thomas

v. Granville, 211 Ariz. 468, 471-72 ¶¶ 12-13, 123 P.3d 662, 665-

66 (2005).

48
 G. Requirement of jury unanimity for leniency

¶101 Pursuant to A.R.S. § 13-703.01(H), the trial judge

instructed the sentencing jurors that they were required to

unanimously determine whether the death sentence should be

imposed. Additional jury instructions made clear that the jury

did not have to unanimously find the existence of a mitigating

circumstance before a juror could individually consider it in

sentencing. Unanimity was required only in regard to the

ultimate sentencing decision.

¶102 Ellison now argues that the instructions violate McKoy

v. North Carolina, 494 U.S. 433 (1990), and Mills v. Maryland,

486 U.S. 367 (1988). We disagree. These decisions do not

prohibit states from requiring a unanimous vote in order to

impose a life sentence. Rather, these cases hold that, because

jurors must be allowed to consider any relevant mitigation

evidence in making their sentencing decision, sentencing

statutes cannot require the jurors to unanimously find the

existence of any individual mitigating circumstance before the

mitigator can be considered. McKoy, 494 U.S. at 439-40; Mills,

486 U.S. at 379-80. A juror’s individual decision regarding the

existence and weight of a particular mitigating circumstance is

different from the jury’s ultimate sentencing decision. The

instructions here were proper under Mills and McKoy. See

Anderson II, 210 Ariz. at 350 ¶¶ 98-99, 111 P.3d at 392.

49
 H. Disparate sentences as mitigation

¶103 At sentencing, Ellison’s defense counsel elicited

testimony that Finch received a life sentence. The State later

asked to present evidence regarding the particular mitigating

circumstances found in Finch’s case. Defense counsel objected,

based on the Confrontation Clause, to any evidence other than

the facts that Finch was not on parole and did not have any

prior serious felonies. Defense counsel also refused to

stipulate to admission of the special verdict from Finch’s

sentencing. Judge Moon was concerned that revealing the entire

special verdict might inappropriately sway the jury, given he

was the same judge who sentenced Finch, or otherwise prejudice

the parties.

¶104 After much discussion, the parties finally concurred

that Judge Moon should instruct the jury that Finch received a

life sentence, that “circumstances proven in the Finch case were

different,” and that “[t]here is no way to explain all of the

differences to [them] under our legal system.” Ellison now

claims that, by limiting the evidence regarding Finch’s

sentence, the trial judge effectively prohibited the jury from

considering the disparate sentences.

¶105 “A disparity in sentences between codefendants and/or

accomplices can be a mitigating circumstance if no reasonable

explanation exists for the disparity.” State v. Kayer, 194

50
Ariz. 423, 439 ¶ 57, 984 P.2d 31, 47 (1999). Only the

unexplained disparity is significant. Dickens, 187 Ariz. at 26,

926 P.2d at 493. Additionally, if there is a finding of an

especially cruel, heinous or depraved aggravator, “even

unexplained disparity has little significance.” State v.

Schurz, 176 Ariz. 46, 57, 859 P.2d 156, 167 (1993).

¶106 It is not entirely clear which facts of Finch’s

sentence Ellison is now arguing should have been admitted. If

he is arguing the entire special verdict should have been

admitted, he waived this argument by refusing to stipulate to

admission of the special verdict. Having invited any error in

that regard, Ellison cannot now benefit from it on appeal. See

State v. Roseberry, 210 Ariz. 360, 369 ¶ 53, 111 P.3d 402, 411

(2005) (finding defendant waived argument by inviting error at

trial).

¶107 If he is arguing only that certain facts should have

been admitted, such as Finch’s guilty verdicts and the trial

judge’s determination that the State failed to prove pecuniary

gain, fairness also dictates against admitting only portions of

Finch’s special verdict.18 A disparity in sentences is

18
Ellison is also incorrect in arguing that the special verdict
from Finch’s sentencing shows Finch actually killed both
victims. The special verdict specifically states that Finch
“did not anticipate the murders and did not intentionally assist
in the murder of Mr. Boucher. . . . [T]he murder of Mr. Boucher

51
constitutionally relevant only if it is unexplained. Thus, if

particular facts about Finch’s sentence were admitted, all of

the differences between the aggravators and mitigators of each

case should be admitted to avoid misleading the jury.

¶108 Here, there was no unexplained disparity. In Finch’s

case, Judge Moon determined that Ellison, as the ringleader,

forced Finch to kill Mrs. Boucher. Judge Moon determined that

Finch acted under duress and was not motivated by pecuniary

gain. See Schurz, 176 Ariz. at 57, 859 P.2d at 167 (finding

sentences not disparate when the jury found defendant guilty of

premeditated murder and rejected argument that co-defendant

actually set the victim on fire). Additionally, Finch, unlike

Ellison, was not on parole and had no serious felonies in his

criminal background. See Henry, 189 Ariz. at 551, 944 P.2d at

66 (stating two defendants’ “distinct criminal backgrounds were

sufficient to justify the disparity in penalties”). Thus, Judge

Moon did not abuse his discretion in limiting the evidence so as

to accommodate Ellison’s disparate sentences argument while

avoiding undue prejudice to either side.

_______________
legally involved [Finch] only because he was an accomplice to
the predicate felony offense [of burglary].” (Emphasis added.)

52
 I. Victim impact statement

¶109 Ellison moved to prohibit the State from introducing

Vivian Brown’s victim impact statement as irrelevant to

aggravation, highly prejudicial, and too emotional in the

context of jury sentencing. Judge Moon precluded the State from

using the statement during its case-in-chief but allowed it as

rebuttal of the defense’s mitigation evidence. Judge Moon also

told Brown that she could not make a sentencing recommendation.

¶110 At the penalty phase, Brown showed the jury several

family photos while she talked about her parents, their family,

and the impact of their deaths. Over the defense’s objection,

the trial judge admitted one in-life photo of the victims and

allowed the jury to take it in to the jury room. Brown also

talked about her parents’ murders, stating, “They could hear. I

know they could still hear.”

¶111 Under A.R.S. § 13-703.01(R), “the victim may present

information about the murdered person and the impact of the

murder on the victim and other family members and may submit a

victim impact statement in any format to the trier of fact.”

These statements are relevant to the issue of the harm caused by

the defendant. Thus, they do not violate the Eighth Amendment.

Lynn v. Reinstein, 205 Ariz. 186, 191 ¶ 17, 68 P.3d 412, 417

(2003) (relying on Payne v. Tennessee, 501 U.S. 808, 827

53
(1991)). A victim may not, however, recommend a particular

sentence. Id. ¶¶ 16-17.

¶112 Ellison now argues that A.R.S. § 13-703.01(R) violates

the Eighth and Fourteenth Amendments by infusing irrelevant

emotion into the sentencer’s consideration of mitigation

evidence. He relies on Payne to argue that the Supreme Court

recognizes that such statements have only minimal relevance in

showing that “‘the victim is an individual whose death

represents a unique loss to society and in particular to his

family.’” 501 U.S. at 825 (quoting Booth v. Maryland, 482 U.S.

496, 517 (1987) (White, J., dissenting)).

¶113 Ellison misapprehends the holding in Payne. The

language he relies on is the Court’s explanation of its earlier

decision in Booth that victim impact statements were not

relevant because they “do not in general reflect on the

defendant’s ‘blameworthiness.’” See Payne, 501 U.S. at 819.

The Court granted review in Payne, in part, to re-examine its

holding in Booth. Payne concluded that Booth was wrong on this

point, id. at 825, and “removed the per se bar to the admission

of victims’ statements regarding the effect of a crime upon

their lives” so long as the statements were relevant to the

issue of sentencing. Lynn, 205 Ariz. at 191 ¶ 16, 68 P.3d at

417.

54
¶114 The trial judge here properly instructed Brown not to

make a sentencing recommendation. The judge also offered

defense counsel the option of having Brown sworn in and cross-

examined. Defense counsel declined this offer. Finally, the

trial judge instructed the jurors that they could consider

Brown’s statements only to understand the victims as unique

individuals; they could not consider her statements as

establishing an aggravating circumstance or as providing a

sentencing recommendation. Thus, Ellison’s argument fails on

this point.

¶115 We recognize the danger that photos of the victims may

“be used to generate sympathy for the victim and his or her

family.” State v. Doerr, 193 Ariz. 56, 64 ¶ 32, 969 P.2d 1168,

1176 (1998). We have refused, however, to adopt a per se rule

barring all in-life photos in capital murder cases. Id.

Rather, “[i]t is for the trial court in each instance to

exercise sound discretion in balancing probative value against

the risk of unfair prejudice.” Id.; accord Anderson II, 210

Ariz. at 339 ¶ 39, 111 P.3d at 381 (discussing post-death

photos). Here, the trial judge did not abuse his discretion in

allowing the jurors to take into their deliberations one in-life

photo, which was “benign” as compared to the victims’ post-death

photos. See Doerr, 193 Ariz. at 64 ¶ 33, 969 P.2d at 1176;

accord Anderson II, 210 Ariz. at 340 ¶¶ 41-42, 111 P.3d at 382.

55
 J. Independent review

¶116 This court must independently review the aggravating

and mitigating circumstances found during sentencing and the

propriety of the death sentence. A.R.S. § 13-703.04; accord

Roseberry, 210 Ariz. at 373 ¶ 77, 111 P.3d at 415.

1. Aggravating circumstances

a. Especially cruel aggravator

¶117 Ellison argues the State presented no conclusive

evidence that the victims were conscious and suffered mental

anguish during the suffocations. See A.R.S. § 13-703(F)(6).

¶118 The State did not provide medical testimony regarding

whether the victims were conscious during the attacks.

Detective Watson, however, testified that Ellison told police

that Finch initially ordered the victims into Mr. Boucher’s room

where Ellison then bound the victims. Ellison also admitted

that he held the pillow over Mr. Boucher’s face for a period of

time while Finch strangled Mrs. Boucher, causing her to defecate

on herself.

¶119 In order to show a murder was especially cruel, the

State must prove beyond a reasonable doubt that the victim

suffered either physical pain or mental distress. State v.

McCall, 139 Ariz. 147, 161, 677 P.2d 920, 934 (1983). “The

defendant must intend that the victim suffer or reasonably

foresee that there is a substantial likelihood that the victim

56
will suffer as a consequence of the defendant’s acts.” Id.

This court “examine[s] the entire murder transaction and not

simply the final act that killed the victim.” State v. Lavers,

168 Ariz. 376, 393, 814 P.2d 333, 350 (1991).

¶120 Mental anguish can support an especially cruel

finding. Mental anguish is established if the victim

“experienced significant uncertainty as to her ultimate fate,”

Van Adams, 194 Ariz. at 421 ¶ 44, 984 P.2d at 29 (internal

citation and quotation marks omitted), or if the victim was

aware of a loved one’s suffering, State v. Ramirez, 178 Ariz.

116, 129, 871 P.2d 237, 250 (1994). In McCall, we determined

that victims who were bound by armed assailants were uncertain

as to their fates. 139 Ariz. at 161, 677 P.2d at 934. The

victims in McCall also suffered mental cruelty because they were

forced to listen as their loved ones were shot one at a time.

Id.

¶121 In our independent review, we find that the evidence

here establishes that the victims were conscious when they were

bound, see State v. Bible, 175 Ariz. 549, 604-05, 858 P.2d 1152,

1207-08 (1993) (noting that “[t]he fact that her hands were

bound indicates that she was conscious and tied-up to prevent

struggling”), and aware of each other’s suffering. The evidence

also establishes that the Bouchers were uncertain as to their

ultimate fate after being attacked and bound by two men in their

57
own house at night, and they then heard one ordering the other

to kill Mr. Boucher. See State v. Libberton, 141 Ariz. 132,

139-40, 685 P.2d 1284, 1291-92 (1984) (finding especially cruel

aggravator was proven, in part, because victim heard assailants

discussing his imminent killing). The State proved the

especially cruel aggravator based on extreme mental anguish

beyond a reasonable doubt.19

b. Pecuniary gain aggravator

¶122 Ellison argues that, although he admitted going to the

Bouchers’ home to commit a burglary, the State did not present

evidence that his participation in the murders was motivated by

19
The State also argues the evidence shows physical cruelty,
because of both the victims’ physical injuries and the inherent
nature of being suffocated or strangled. This court, however,
has been “unwilling to say that all stranglings are per se
cruel.” Schackart, 190 Ariz. at 248, 947 P.2d at 325.
Additionally, the State provided the sentencing jury no specific
evidence that the Bouchers consciously suffered any extreme
physical pain. “Where the evidence is inconclusive as to
whether a victim was conscious during the infliction of violence
to his person, the sentencing court cannot find that cruelty
existed.” State v. Gillies, 135 Ariz. 500, 513, 662 P.2d 1007,
1020 (1983).
Further, we will not, as the State argues, consider the
medical examiner’s testimony presented at only the guilt
proceeding. When the sentencing jury is not the same as the
guilt proceeding jury, we believe it inappropriate to consider
evidence that the sentencing jury did not hear. Cf. A.R.S. §
13-703.04(C) (allowing for remand “if the trial court
erroneously excluded evidence or if the appellate record does
not adequately reflect the evidence presented”). Based on the
lack of evidence, we find the State failed to prove extreme
physical pain beyond a reasonable doubt.

58
pecuniary gain. See A.R.S. § 13-703(F)(5). Ellison also argues

that the jury could not impute motive based solely on the fact

that he took jewelry from Mrs. Boucher’s body and received

twenty dollars of the Bouchers’ money.

¶123 In State v. Sansing, we clarified the pecuniary gain

aggravator:

[A]n unexpected or accidental death that occurs during
the course of or flight from a robbery, but which was
not committed in furtherance of pecuniary gain, does
not provide sufficient basis for an F.5 finding.
Similarly, the sole fact that a defendant takes items
or money from the victim does not establish pecuniary
gain as a motive for the murder. Even a conviction
for robbery, during which a murder occurs, does not
necessarily prove pecuniary gain as motivation for the
murder.

200 Ariz. 347, 354 ¶ 15, 26 P.3d 1118, 1125 (2001) (internal

citations omitted), vacated on other grounds, 536 U.S. 954

(2002).

¶124 The State must show a “connection between the murder

and motive through direct or strong circumstantial evidence.”

State v. Armstrong, 208 Ariz. 360, 363 ¶ 7, 93 P.3d 1076, 1079

(2004) (quoting Ring III, 204 Ariz. at 560 ¶ 76, 65 P.3d at

941). To this point, the Sansing opinion distinguishes between

cases in which “one of the defendant’s motives in committing the

murder was to facilitate the taking of or ability to retain

59
items of pecuniary value” and cases of “robberies gone bad.”

200 Ariz. at 354 ¶ 16, 26 P.3d at 1125.20

¶125 The record demonstrates that Ellison’s motive for the

murders was to facilitate the burglary. Ellison admits going to

the Bouchers’ home with the intent to commit a burglary.

Evidence showed that Ellison was familiar with both the area and

the Bouchers. He and Finch wore gloves while inside the

Bouchers’ home but did not attempt to disguise their identities.

Although Ellison argued he did not intend to kill anyone and

that Finch forced him to participate in the murders at gunpoint,

the State presented contrary evidence. We find this evidence

establishes that Ellison planned the burglary and, in order to

escape and avoid identification, killed the Bouchers. See id.

at 355 ¶ 21, 26 P.3d at 1126 (“We have also found that a murder

committed to facilitate escape and/or hinder detection by police

furthers the pecuniary interest of the criminal.”); see also

Greenway, 170 Ariz. at 165, 823 P.2d at 32 (“Defendant also took

no precautions to cover his face before he entered the

house. . . . The specific purpose of the murders was to

facilitate defendant’s escape and hinder detection, thereby

furthering his pecuniary goal.”).

20
The jury instructions on the pecuniary gain factor
appropriately mirrored the clarifications made in the Sansing
opinion.

60
¶126 Ellison also argues that the evidence the victims were

bound actually supports the conclusion that the burglary was

complete before the victims were killed. Thus, there was a

different motive for the murders. This argument is not

persuasive. Ellison admitted to police that Finch and he took

property from the Bouchers’ bodies and residence after they were

killed. Moreover, if Ellison was motivated to kill the Bouchers

in order to avoid identification, it does not matter whether the

burglary or the murders occurred first.

¶127 Finally, Ellison argues that, even if pecuniary gain

is found, the robbery cannot support an aggravator because it

already supported the felony murder conviction and double-

counting would violate the Eighth Amendment. He also argues

that the pecuniary gain aggravator does not “genuinely narrow

the class of persons eligible for the death penalty.” Zant v.

Stephens, 462 U.S. 862, 877 (1983). These arguments were

squarely rejected in Greenway, 170 Ariz. at 163-64, 823 P.2d at

30-31.

c. Multiple murders aggravator

¶128 Aggravating circumstances include the fact that “[t]he

defendant has been convicted of one or more other

homicides . . . which were committed during the commission of

the offense.” A.R.S. § 13-703(F)(8). It is not enough for the

jury to convict the defendant of multiple homicides. Ring III,

61
204 Ariz. at 560 ¶ 80, 65 P.3d at 941. The homicides must also

have a “temporal, spatial, and motivational relationship[]” such

that they “were a part of a continuous course of criminal

conduct.” Lavers, 168 Ariz. at 393-94, 814 P.2d at 350-51

(internal citations omitted).

¶129 The multiple murders aggravator applies so long as the

defendant was found criminally liable, even if he himself did

not physically commit the murders. See Prasertphong I, 206

Ariz. at 171 ¶ 18, 76 P.3d at 442 (aggravator proven based on

defendant’s felony murder convictions because murders were

“temporally, spatially, and motivationally related”).

¶130 Ellison was convicted of both felony murder and

premeditated murder in the deaths of each victim. The guilt

proceeding jury also made Enmund/Tison findings regarding the

murders. The Bouchers, a married couple residing together, were

both killed in the same room at approximately the same time.

According to Ellison, he and Finch went to the Bouchers’ home to

commit a burglary. He does not claim the two victims were

killed for different reasons. Based on this evidence, the

murders had a “temporal, spatial, and motivational

relationship[].” Lavers, 168 Ariz. at 393, 814 P.2d at 350.

The State proved the multiple murders aggravator beyond a

reasonable doubt, regardless of whether Ellison physically

committed the murders, as “the jury verdicts established that

62
[Ellison] possessed the same motivation for killing the victims

as did [Finch].” Prasertphong I, 206 Ariz. at 171 ¶ 18, 76 P.3d

at 442.

d. Other aggravators

¶131 The three other aggravators were also proven beyond a

reasonable doubt: prior conviction for a serious felony, A.R.S.

§ 13-703(F)(2), commission of murder while on parole, A.R.S. §

13-703(F)(7), and murder of victim age seventy or older by

defendant age eighteen or older, A.R.S. § 13-703(F)(9).

Ellison’s prison records showed his prior conviction for armed

robbery, a statutorily defined serious felony, A.R.S. § 13-

703(H)(1)(h) (1999), his parole status, and the fact that he was

older than eighteen when he committed the offenses. Brown’s

testimony established that her parents were each older than

seventy when they were murdered.

2. Mitigating circumstances

¶132 A defendant is not required to show a nexus between

the crime and the mitigation evidence before such evidence can

be considered. State v. Newell, 212 Ariz. 389, 405 ¶ 82, 132

P.3d 833, 849 (2006). Rather, the only burden is to meet the

low threshold of relevancy to the issue of providing “a basis

for a sentence less than death.” Tennard v. Dretke, 542 U.S.

274, 284-87 (2004) (internal citation and quotation marks

omitted); accord Anderson II, 210 Ariz. at 349 ¶ 93, 111 P.3d at

63
391 (citing Tennard). The relationship between the mitigation

evidence and the crime, however, can affect the weight given to

such evidence. See Newell, 212 Ariz. at 405 ¶ 82, 132 P.3d at

849.

¶133 Ellison claimed five mitigating circumstances. The

first alleged mitigator was the absence of love and guidance

during childhood. One of Ellison’s brothers testified regarding

physical abuse by their parents and described Ellison as the

family scapegoat due to his club feet. Russell Reardon, a

friend of Ellison’s, testified that Ellison told him that he was

sexually abused by another brother. That brother later verified

the abuse to Reardon.

¶134 Two juvenile corrections officers also testified that,

while Ellison was at their respective facilities, Ellison’s

mother was cold and uninvolved, Ellison was often in the middle

of his parents’ fights, and his siblings never visited him. One

corrections officer also testified that he saw bruises and cuts

on Ellison. Ellison told the corrections officer that his

parents had abused him. While at one facility, Ellison learned

his family had moved to Oregon right before he underwent surgery

for his foot deformity. Ellison’s brother and one corrections

officer, however, testified that his father was much more

involved and caring.

¶135 Dr. Lanyon, a mitigation expert, also testified that

64
Ellison was constantly ridiculed by schoolmates due to his small

size and foot deformities. The family moved quite a bit,

resulting in new ridicule with each move. Ellison dropped out

of school by the ninth grade. According to Dr. Tucker, a

forensic psychiatrist, Ellison likely had Attention Deficit

Disorder.

¶136 Although defense counsel argued that Ellison’s

childhood experiences left him less equipped to make good moral

decisions, counsel acknowledged that he was not arguing Ellison

was actually incapable of telling right from wrong. His

childhood troubles deserve little value as a mitigator for the

murders he committed at age thirty-three. Cf. Anderson II, 210

Ariz. at 357 ¶ 136, 111 P.3d at 399 (finding the defendant’s

evidence of sexual abuse, low IQ, frequent moves between

schools, and follower-type personality “do[es] not in any way

explain his decision, decades later at age forty-eight, to kill

three innocent people to steal a pickup” as defendant was not

mentally retarded and was able to tell right from wrong in

making his own decisions).

¶137 The second alleged mitigator was Ellison’s drug

addiction. Ellison’s brother testified that another brother

gave Ellison alcohol and drugs when he was about fourteen.

Reardon testified he gave Ellison money for cocaine and alcohol

in 1992 and 1993. He said drugs made Ellison quiet and

65
withdrawn, not violent, and that Ellison did not know how to

control his drug use.

¶138 The defense did not present evidence that Ellison was

on drugs when he committed the burglary and murders. In fact,

Ellison said he had been clean for a month at the time of the

crimes. Dr. Tucker did testify that drug abuse can change a

person’s brain chemistry, causing paranoia, dementia, and

impulsive behavior, and can affect a person’s physical health.

Dr. Tucker further testified that, for a person having

experienced Ellison’s upbringing, history of physical and sexual

abuse, physical deformity, and extended drug and alcohol abuse,

the damage would carry on into adulthood and potentially destroy

the individual.

¶139 This testimony makes it more likely that Ellison did

suffer some mental or emotional damage due to a combination of

his upbringing, physical and sexual abuse, physical deformity,

and drug and alcohol use. Ellison, however, has not provided

any specific evidence that his brain chemistry was actually

altered by his past alcohol and drug abuse so as to cause or

contribute to his participation in the murders. See id. This

mitigator is not of such a quality or value as to warrant

leniency.

¶140 The third alleged mitigator was the absence of genuine

violence in his prior convictions. Defense counsel argued

66
Ellison’s prior conviction for stealing money from a store at

knifepoint was not violent. In fact, Ellison invited the store

clerk to a birthday party before he left the store. Ellison

also told his friend, Russell Reardon, that he was only cleaning

his fingernails with the knife. Reardon, however, testified

that Ellison probably did pull a knife on the clerk. Dr. Lanyon

opined that Ellison had sought attention rather than the money.

The State also questioned Dr. Lanyon regarding another occasion

when Ellison, while drunk, yelled a racial slur and fired a gun,

hitting someone with a ricochet bullet. Dr. Lanyon had no

knowledge of that incident.

¶141 There is little mitigation in the fact that Ellison

claims he did not intend to harm a clerk whom he held at

knifepoint. Likewise, there is little mitigation in the

argument that his reckless discharge of a gun was not really

violent because it injured another person only by a ricochet

bullet rather than by a direct, intentional shot.

¶142 The fourth alleged mitigator was that Ellison’s family

members care about him and do not want him to die. At the

sentencing proceeding, Ken Ellison testified that, while he knew

what his brother had done, he was still there to testify for

him. The love of a defendant’s family is mitigating evidence.

State v. Carriger, 143 Ariz. 142, 162, 692 P.2d 991, 1011

(1984). This mitigator, however, is de minimis compared to the

67
Bouchers’ murders and the six proven aggravators. See id.

(“However, the love between Carriger and his family has not

stopped Carriger from what amounts to a lifetime of crime, and

we must consider this too.”).

¶143 The fifth alleged mitigator was Ellison’s diminished

capacity to appreciate the wrongfulness of his conduct. Defense

counsel argued in closing that Ellison’s childhood environment,

coupled with his drug and alcohol abuse, diminished his ability

to tell right from wrong. Defense counsel, however, offered no

actual evidence of this diminishment. Ellison did not meet his

burden of proving this mitigating circumstance.

¶144 We uphold Ellison’s death penalty for each murder.

Six aggravators were proven and the mitigation evidence is not

sufficiently substantial to warrant leniency.

IV. Other arguments preserved for federal review

¶145 Ellison, recognizing that this court has previously

rejected them, raises fifteen other constitutional challenges in

order to preserve them for federal review. Those arguments are

listed in Appendix A, along with the cases that Ellison states

have rejected the arguments.

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 V. Conclusion

¶146 For the above reasons, we affirm Ellison’s convictions

and sentences.

_________________________________
W. Scott Bales, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

69
 APPENDIX A

Ellison raises the following claims to preserve them for

federal review.

(1) The death penalty is per se cruel and unusual punishment.

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

Salazar, 173 Ariz. 399, 411, 844 P.2d 566, 578 (1992);

Gillies, 135 Ariz. at 507, 662 P.2d at 1014.

(2) Execution by lethal injection is cruel and unusual

punishment. State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d

602, 610 (1995).

(3) The statute unconstitutionally requires imposition of the

death penalty whenever at least one aggravating circumstance

and no mitigating circumstances exist. Walton, 497 U.S. at

648; State v. Miles, 186 Ariz. 10, 19, 918 P.2d 1028, 1037

(1996).

(4) The death penalty is unconstitutional because it fails to

guide the sentencing jury. Greenway, 170 Ariz. at 164, 823

P.2d at 31.

(5) Arizona’s death statute unconstitutionally requires

defendants to prove that their lives should be spared. State

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

(6) The statute unconstitutionally fails to require either

cumulative consideration of multiple mitigating factors or

that the jury make specific findings as to each mitigating

70
factor. State v. Ramirez, 178 Ariz. 116, 131, 871 P.2d 237,

252 (1994); State v. Fierro, 166 Ariz. 539, 551, 804 P.2d 72,

84 (1990).

(7) Arizona’s statutory scheme for considering mitigating

evidence is unconstitutional because it limits full

consideration of that evidence. State v. Mata, 125 Ariz. 233,

242, 609 P.2d 48, 57 (1980).

(8) The statute is unconstitutional because there are no

statutory standards for weighing. State v. Atwood, 171 Ariz.

576, 645-46 n.21, 832 P.2d 593, 662-63 n.21 (1992), abrogated

in part by State v. Nordstrom, 200 Ariz. 229, 25 P.3d 717

(2001).

(9) Arizona’s death statute insufficiently channels the

sentencer’s discretion in imposing death sentences. State v.

West, 176 Ariz. 432, 454, 862 P.2d 192, 214 (1993), overruled

in part by State v. Rodriguez, 192 Ariz. 58, 961 P.2d 1006

(1998); Greenway, 170 Ariz. at 164, 823 P.2d at 31.

(10) Arizona’s death statute is unconstitutionally defective

because it fails to require the State to prove that death is

appropriate. State v. Gulbrandson, 184 Ariz. 46, 72, 906 P.2d

579, 605 (1995).

(11) The prosecutor’s discretion to seek the death penalty

unconstitutionally lacks standards. Salazar, 173 Ariz. at

411, 844 P.2d at 578.

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 (12) Death sentences in Arizona have been applied arbitrarily,

irrationally, and in a discriminatory manner against

impoverished males whose victims have been Caucasian. West,

176 Ariz. at 455, 862 P.2d at 215.

(13) The Constitution requires a proportionality review of a

defendant’s death sentence. Salazar, 173 Ariz. at 416, 844

P.2d at 583; State v. Serna, 163 Ariz. 260, 269-70, 787 P.2d

1056, 1065-66 (1990).

(14) There is no meaningful distinction between capital and

non-capital cases. Salazar, 173 Ariz. at 411, 844 P.2d at

566.

(15) Applying a death statute enacted after the Supreme

Court’s decision in Ring v. Arizona violates the ex post facto

clauses of the federal and state constitutions and A.R.S. § 1-

244. Ring III, 204 Ariz. at 545-47 ¶¶ 15-24, 65 P.3d at 926-

28.21

21
Ellison seeks to distinguish his case from the Ring III
decision because he was convicted prior to Ring II and was
sentenced for the first time by a jury under the new statute
after enactment of the new legislation. Anderson II, decided
after Ellison filed his briefs, rejects this ex post facto
argument in a procedural posture identical to Ellison’s case.
210 Ariz. at 346 ¶ 74, 111 P.3d at 388 (citing Carreon, 210
Ariz. at 60-61 ¶¶ 17-22, 107 P.3d at 906-07, and Ring III, 204
Ariz. at 545-51 ¶¶ 15-42, 65 P.3d at 926-32, for support).

72