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