SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-03-0420-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR 01-01604
RUBEN MYRAN JOHNSON, )
)
Appellant. )
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Thomas W. O’Toole, Judge
AFFIRMED
________________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Capital Litigation Section
Robert J. Gorman, Jr. Tucson
Assistant Attorney General
Attorneys for the State of Arizona
KERRIE M. DROBAN Scottsdale
Attorney for Ruben Myran Johnson
________________________________________________________________
M c G R E G O R, Chief Justice
¶1 A grand jury indicted Ruben Myran Johnson for first
degree murder, assisting a criminal syndicate or criminal street
gang, burglary in the first degree, and armed robbery. On
November 28, 2001, a jury found Johnson guilty of all four
counts. At the conclusion of the aggravation phase of the
sentencing proceeding, a different jury found three aggravating
factors proved beyond a reasonable doubt: (1) Johnson was
previously convicted of a serious offense, Ariz. Rev. Stat.
(A.R.S.) § 13-703.F.2 (2001); (2) Johnson knowingly created a
grave risk of death to another person in addition to the person
murdered, A.R.S. § 13-702.F.3; and (3) Johnson committed the
offense in an especially heinous and depraved manner, A.R.S. §
1
13-703.F.6. In the penalty phase, that same jury determined
that Johnson should receive the death sentence for the charge of
first degree murder. The trial court sentenced him to death for
the murder and to consecutive, aggravated terms on the non-
capital charges. The clerk filed an automatic notice of appeal
from the judgment and sentence pursuant to Rule 31.2.b of the
Arizona Rules of Criminal Procedure. This Court has
jurisdiction pursuant to Article 6, Section 5.3 of the Arizona
Constitution, and sections 13-4031 and -4033.A of the Arizona
Revised Statutes.
I.
¶2 On November 7, 2000, Ruben Johnson and Jarvis Ross,
both members of the Lindo Park Crips Gang (the LPC), committed a
robbery at the Affordable Massage business in Phoenix. They
1
Because Johnson’s trial occurred before Ring v. Arizona,
536 U.S. 584 (2002), was decided, the jury for the guilt
proceeding was not required to find the presence or absence of
aggravating factors. After finding Johnson guilty on all four
counts, the jury was dismissed. Between Johnson’s conviction on
November 28, 2001, and January 8, 2003, Johnson’s sentencing
hearing was continued six times. Following a stay and yet
2
committed the robbery at the behest of Johnson’s friend, Cheryl
Newberry. Newberry drove Johnson and Ross to the Affordable
Massage location. Johnson and Ross then entered the massage
parlor through a back door and confronted Stephanie Smith and
Russell Biondo. Johnson and Ross stole Biondo’s wallet and
pager and Smith’s cell phone and left the massage parlor
separately. Johnson escaped, but police officers captured Ross
after a short chase. Smith and Biondo both identified Ross as
one of the robbers.
¶3 Soon after the robbery, Johnson learned from his
friend Phyllis Hansen, a clerk at the Maryvale Justice Court,
that Ross’s preliminary hearing was scheduled for November 15,
2000, and that the victims were going to testify at the
preliminary hearing. Newberry later testified that Johnson and
two other men came to her home in an SUV and made her reveal the
location of Stephanie Smith’s residence.
¶4 Johnson and Quindell Carter, a fellow gang member,
arrived at Smith’s home shortly after one o’clock on the morning
of November 15, 2000. Smith was in a bedroom reading a story to
her four-year-old son, Jordan. Leonard Justice and Mike Solo
were also at her home visiting. Solo heard a dog barking behind
the house and went into the backyard to investigate. When he
_____________________
another continuance, Johnson’s sentencing proceeding commenced
on November 12, 2003.
3
got outside, a black male put a gun to Solo’s head, threatened
to kill him, and asked who else was in the house. The gunman
first pushed Solo into the house through the back sliding glass
door and then told him to leave the house. Solo hurried to his
car and drove away. Leonard Justice looked out the back window
of the house, saw what was happening, and called 9-1-1 on his
cell phone. He then went into Jordan’s bedroom and handed Smith
the phone so she could give the dispatcher the address. After
handing the phone back to Justice, Smith left the bedroom.
Justice followed her, and they both saw Johnson come through the
arcadia door. Justice then ran into the bathroom, while Smith
ran into Jordan’s bedroom. Johnson walked into Jordan’s bedroom
and shot Smith in the head, killing her. Arriving officers
apprehended Quindell Carter after a short chase, but Johnson
evaded the officers.
¶5 Two days later, Johnson visited Phyllis Hansen at her
home. Hansen testified that Johnson showed her a newspaper
article about the murder and told her that he was the unnamed
suspect mentioned in the story. Hansen also testified that
Johnson stated he killed Smith because Smith was going to
testify against “his cuz or one of his homies.” Hansen later
went to the police and turned over papers Johnson had left at
her home. One of those papers had Johnson’s fingerprint on it
4
and contained Russell Biondo’s name and date of birth written in
Johnson’s handwriting.
¶6 Johnson raises multiple issues on appeal. We address
each of these issues below.
II.
A.
¶7 The first issue Johnson raises involves the trial
court’s failure to sever Count 2, assisting a criminal
syndicate,2 from the remaining counts. Two or more offenses may
be joined if they:
(1) Are of the same or similar character; or
(2) Are based on the same conduct or are otherwise
connected together in their commission; or
(3) Are alleged to have been a part of a common
scheme or plan.
Ariz. R. Crim. P. 13.3.a.
¶8 Before trial, Johnson unsuccessfully moved to sever
Count 2. The trial court ruled that because “the defendant
noticed several alternative defenses including mistaken identity
. . . the evidence in regard to gang activity [was not only]
material in regard to Count 2 but also relevant in regard to
identity and motive in regard to the remaining counts.” Johnson
now argues that Count 2 was joined only because it was of “the
2
A person commits the offense of “assisting a criminal
syndicate by committing any felony offense, whether completed or
preparatory, with the intent to promote or further the criminal
5
same or similar character” as the other charges and thus he
could sever it as a matter of right.
¶9 A defendant is entitled to sever offenses joined only
by virtue of being of the same or similar character as a matter
of right, “unless evidence of the other offense or offenses
would be admissible under applicable rules of evidence” if tried
separately. Ariz. R. Crim. P. 13.4.b. Denial of a motion to
sever under Rule 13.4.b constitutes reversible error “if the
evidence of other crimes would not have been admitted at trial”
for another evidentiary purpose. State v. Aguilar, 209 Ariz.
40, 51 ¶ 38, 97 P.3d 865, 876 (2004) (quoting State v. Ives, 187
Ariz. 102, 106, 927 P.2d 762, 766 (1996)).
¶10 Count 2 does not fall within Rule 13.4.b. Assisting a
criminal street gang is not of the same or similar character as
first degree murder, burglary in the first degree, or armed
robbery. See State v. Mauro, 149 Ariz. 24, 28, 716 P.2d 393,
397 (1986) (noting that homicide and child abuse counts were
joined under Rule 13.3.a pursuant to the “same conduct”
provision and not the “same or similar character” provision),
rev’d on other grounds, 481 U.S. 520 (1987).
¶11 Moreover, as the trial court noted, evidence material
to Count 2 could have been admitted to establish motive and
_____________________
objectives of a criminal syndicate.” Ariz. Rev. Stat. (A.R.S.)
§ 13-2308.C.
6
identity in the armed robbery, murder, and burglary charges.
Prejudice from a failure to sever is unlikely “[i]f the evidence
of one crime would have been admissible in a separate trial for
the others.” State v. Stuard, 176 Ariz. 589, 596, 863 P.2d 881,
888 (1993). In addition, if “testimony is probative on the
crucial issue of identification[,] any slight prejudicial
element is clearly outweighed by [the] probative value.” United
States v. Buck, 548 F.2d 871, 876 (9th Cir. 1977).
¶12 We agree that evidence material to Count 2 was
admissible to establish motive and identity for Johnson’s other
crimes.3 The murder of Stephanie Smith resulted from Johnson’s
desire to eliminate a witness to an armed robbery with which
Jarvis Ross, Johnson’s “cuz” or “homeboy,” was being charged.
The State presented ample evidence to establish that the
motivation behind the armed robbery and the murder of Stephanie
Smith was to further the criminal objectives of the LPC.4 For
3
Likewise, as noted by the trial court, evidence relating to
the other counts was admissible to prove Count 2:
The specific language of Count 2 [alleging that the
defendant assisted a criminal street gang by
committing first degree murder and/or armed robbery]
. . . necessarily includes proof of Counts 1, 3, and
4. So if Count 2 was severed, it would require for
all practical purposes, a duplicative trial presumably
with identical or nearly identical evidence.
4
Johnson also argues that because the State had ample
testimony and evidence to tie the crimes together merely by
establishing that Johnson’s motive to kill Smith was to protect
7
example, the three individuals involved in the murder and
robbery were all members of or affiliated with the LPC; as an
original gangster (O.G.), Johnson had an obligation to “bring
up,” or look after, younger gang members such as Jarvis Ross;
Damon Ross, another LPC O.G., went with Johnson to locate
Smith’s house; and Johnson told Phyllis Hansen that he killed
Smith to keep her from testifying against his “cuz,” or fellow
gang member, referring to Jarvis Ross. The evidence of gang
involvement provided a motive for Johnson to kill Smith, who had
no connection with Johnson other than her role as a witness
against his fellow gang member. The State provided evidence
that these acts were consistent with the LPC’s typical criminal
activity of pursuing pecuniary gain and intimidating witnesses.
The evidence of Johnson’s gang involvement helped to establish
his identity and motive for committing the other charged crimes.
_____________________
his friend, Jarvis Ross, the State did not need to show they
were fellow gang members. See State v. Williams, 183 Ariz. 368,
376, 904 P.2d 437, 445 (1995) (noting possible alternative
explanations for why a defendant might shoot someone rather than
to conceal a crime would go to the weight of the evidence and
not to its admissibility). Although there could have been non-
gang-related motivations for Johnson to shoot Stephanie Smith
(e.g., to protect a friend), the trial court correctly noted
that the State is not obligated to limit its case by presenting
evidence of lesser import.
8
¶13 In addition, the trial judge took several steps to
reduce any prejudice that could have resulted from joinder.5
First, prior to opening statements, the court cautioned the
State against misusing the gang evidence and instructed it to
avoid presenting evidence of any gang motivation until later in
the case, when its relevance became clear. Second, the court
instructed the jury to consider each offense separately and
advised that each must be proven beyond a reasonable doubt.
“[A] defendant is not prejudiced by a denial of severance where
the jury is instructed to consider each offense separately and
advised that each must be proven beyond a reasonable doubt.”
State v. Prince, 204 Ariz. 156, 160 ¶ 17, 61 P.3d 450, 454
(2003) (citing holding in State v. Atwood, 171 Ariz. 576, 613,
832 P.2d 593, 630 (1992)).
¶14 Under the circumstances of this case, we conclude that
the trial court did not abuse its discretion in refusing to
sever Count 2.
5
Although it is unclear from the record whether the court
determined Count 2 was properly joined pursuant to Rule
13.3.a(2) or a(3), the joinder of the counts is most consistent
with 13.3.a(2), which applies to two or more offenses that are
“based on the same conduct” or “otherwise connected together in
their commission.” Ariz. R. Crim. P. 13.3.a(2); see also State
v. Prion, 203 Ariz. 157, 162 ¶ 32, 52 P.3d 189, 194 (2002)
(defining “otherwise connected together in their commission” as
situation in which “evidence of the two crimes [i]s so
intertwined and related that much the same evidence [i]s
relevant to and would prove both, and the crimes themselves
arose out of a series of connected acts”).
9
B.
¶15 Johnson also asserts that the F.3 and F.6 aggravators
are facially vague and that the trial court’s jury instruction
defining these factors provided jurors with insufficient
guidance and failed to appropriately channel the jury’s
discretion. We review de novo whether instructions to the jury
properly state the law. State v. Orendain, 188 Ariz. 54, 56,
932 P.2d 1325, 1327 (1997). We review a trial court’s denial of
a requested jury instruction for an abuse of discretion. State
v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995).
1.
¶16 Johnson argues that the trial court’s jury instruction
on the F.3 aggravator, which applies when a defendant “knowingly
created a grave risk of death to another person or persons in
addition to the person murdered during the commission of the
offense,” A.R.S. § 13-703.F.3, is unconstitutionally vague.
Johnson also contends that the phrase “zone of danger,” which
was used in the F.3 instruction, is inherently vague.
¶17 This Court has previously rejected Johnson’s argument,
concluding that because an F.3 aggravating circumstance may be
found only when others are “physically present in the zone of
danger” and may not be found when others are simply in another
room, or are intended victims, “[t]he aggravating circumstance
is sufficiently precise to avoid its arbitrary application.”
10
State v. McMurtrey, 151 Ariz. 105, 108, 726 P.2d 202, 205
(1986).
¶18 Even if the F.3 aggravator were vague, under Walton v.
Arizona, 497 U.S. 639, 652-53 (1990), overruled in part on other
grounds by Ring v. Arizona, 536 U.S. 584 (2002), a court can
remedy vagueness by giving instructions that clarify its
meaning. The trial court did so in this case: the court’s
instructions to the jury tracked the language of A.R.S. § 13-
703.F.3 and correctly stated that the standard of inquiry for
the F.3 aggravator is whether, during the course of the killing,
“the defendant knowingly engaged in conduct that created a real
and substantial likelihood that a specific third person might
suffer fatal injury.” State v. Wood, 180 Ariz. 53, 69, 881 P.2d
1158, 1174 (1994). The trial court also instructed jurors that
the “mere presence of bystanders” is insufficient to support the
finding of an F.3 aggravator, id., and that actual intent to
kill the bystander precludes an F.3 finding, see State v. Tison,
129 Ariz. 526, 542, 633 P.2d 335, 351 (1981). Moreover, the
instruction given to explain the F.3 aggravator substantially
reflected Johnson’s requested jury instruction. We find no
error and conclude that the trial court’s instruction on the F.3
aggravator provided sufficient guidance to channel the jury’s
discretion.
11
2.
¶19 Johnson next argues that the trial court’s jury
instruction on the F.6 aggravator was unconstitutionally vague
because it failed to distinguish for jurors which murders should
be considered especially heinous, cruel, or depraved. Johnson
contends that the term “especially” in section 13-703.F.6
essentially requires some kind of comparison between death-
eligible murder cases and the “norm.” Because Arizona law
prohibits proportionality review, Johnson claims that the F.6
language fails to provide jurors adequate context for deciding
whether certain aggravating circumstances warrant the death
penalty.
¶20 This Court squarely rejected proportionality review in
State v. Salazar, 173 Ariz. 399, 417, 844 P.2d 566, 584 (1992),
which adopted Justice Moeller’s concurrence in State v.
Greenway, 170 Ariz. 155, 173, 823 P.2d 22, 38 (1991). In
Greenway, Justice Moeller agreed with the majority holding that
“[t]he trial court’s consideration of other similarly situated
defendants is irrelevant to this defendant’s ‘character or
record,’ and does not show any of the circumstances surrounding
this defendant’s ‘offense’ that would call for a sentence less
than death.” Id. at 173, 823 P.2d at 40 (Moeller, J.,
concurring) (quoting majority opinion) (alteration in original).
12
Justice Moeller also noted that allowing such a proportionality
review would create a “slippery slope”:
If meaningful proportionality reviews are to be
conducted with the parties’ participation, it seems
obvious that the courts in such cases will soon be
litigating not one murder case, but scores or, indeed,
hundreds of murder cases in every potential capital
case. One may also reasonably predict that when a
defendant under a death sentence at last exhausts his
other remedies and nears an execution date, he will
seek an updated proportionality review to include
capital cases which have accrued during the years
since his own death sentence was imposed. . . . [I]f
carried to its logical conclusion, [proportionality
review] will inevitably result in all death penalty
cases becoming so bogged down that it will be
virtually impossible to conclude any of them.
Id. (Moeller, J., concurring). The reasoning of Salazar applies
equally regardless whether a defendant asks a trial judge or a
jury to conduct a proportionality review. Accordingly, we
reject Johnson’s argument.
¶21 Johnson also argues that the trial court’s jury
instructions on the F.6 aggravator were unconstitutionally vague
and deprived him of a fair sentencing. In State v. Anderson,
this Court recently rejected the argument that the language of
the F.6 aggravator, which requires that a crime be “especially
cruel, heinous, or depraved,” is unconstitutionally vague. 210
Ariz. 327, 352-53 ¶¶ 109-11, 111 P.3d 369, 394-95 (2005). We
held, “Our ‘narrowing construction[s]’” have given “‘substance’
to the facially vague aggravator, and the sentencing judge was
presumed to apply those constructions because trial judges ‘know
13
the law and . . . apply it in making their decisions.’” Id. at
352 ¶ 109, 111 P.3d at 394 (quoting Walton, 497 U.S. at 653-54)
(alterations in original).6
¶22 The trial judge in this action provided an appropriate
narrowing construction when he instructed the jury about the
meanings of “heinous” and “depraved.”7 The trial court’s
detailed definitions for “heinous” and “depraved” followed prior
case law and provided sufficient guidance to the jury to correct
any potential vagueness. See, e.g., State v. Murdaugh, 209
Ariz. 19, 31 ¶ 57, 97 P.3d 844, 856 (2004) (defining heinous and
depraved); State v. Greene, 192 Ariz. 431, 440 ¶ 34, 967 P.2d
106, 115 (1998) (defining relishing); State v. Ross, 180 Ariz.
598, 606, 886 P.2d 1354, 1362 (1994) (defining witness
elimination); State v. Gretzler, 135 Ariz. 42, 52-53, 659 P.2d
6
This Court also rejected Anderson’s challenge that the
decision in Walton would not save a facially vague F.6
aggravator when a jury, as opposed to a judge, performs the
initial fact-finding function because the jury instructions
given were “adequate to provide a narrowed construction of the
facially vague statutory terms.” State v. Anderson, 210 Ariz.
327, 353 ¶¶ 112-14, 111 P.3d 369, 395 (2005).
7
Because the jury did not unanimously find especial cruelty
and therefore could not have relied on this aggravator in
imposing death, we need not address Johnson’s arguments related
to the cruelty instruction. See State v. Rodriguez, 192 Ariz.
58, 63 ¶ 27, 961 P.2d 1006, 1011 (1998) (stating court will not
reverse a conviction if it can conclude beyond a reasonable
doubt that an error did not influence the verdict).
14
1, 11-12 (1983) (discussing relishing, senselessness, and
helplessness).
¶23 Johnson also contends that the trial court’s
instruction as to “relishing,” one of the mental states that
allows a jury to find an action is heinous or depraved, referred
to the defendant’s state of mind only “at the time of the
offense,” rather than to his state of mind “near the time of the
offense.” We have upheld instructions stating that relishing
can be shown either “at the time” of the offense or “at or near”
the time of the offense and find no error.8 See, e.g., Greene,
192 Ariz. at 440-41 ¶ 39, 967 P.2d at 115-16 (“[P]ost-murder
statements suggesting indifference, callousness, or a lack of
remorse constitute ‘relishing,’ only when they indicate, beyond
a reasonable doubt, that the killer savored or enjoyed the
murder at or near the time of the murder.”); Gretzler, 135 Ariz.
at 51, 659 P.2d at 10 (“[H]einous and depraved involve a
killer’s vile state of mind at the time of the murder.”).9
8
In fact, the trial court’s instruction, which referred to
Johnson’s state of mind “at the time of the offense,” actually
favored him because the State relied on evidence of Johnson’s
actions and statements shortly after, not at, the time of the
murder to establish relishing. Adopting Johnson’s suggested
instruction actually would have increased, not decreased, the
likelihood that a reasonable jury would find that he relished
the murder.
9
While we conclude that the instructions given were
sufficient to guide and channel the jury’s discretion, we
commend the instructions given in Anderson, 210 Ariz. at 352-53
15
C.
¶24 Johnson filed a motion in limine to preclude gang-
related evidence in the aggravation phase and the penalty phase.
He argues that the gang evidence is prejudicial and irrelevant
and that A.R.S. § 13-703.F, which defines aggravating
circumstances, does not provide for the admission of evidence
about or reference to gangs. The trial court denied his motion,
stating that “as it relates to witness elimination as the motive
for the murder, . . . gang membership is probative at the
aggravation phase [to establish heinousness or depravity] and
[its] probative value outweighs any prejudicial effect.”
¶25 The rules of evidence govern the admissibility of
information relevant to any of the aggravating circumstances set
forth in A.R.S. § 13-703.F. A.R.S. § 13-703.B (Supp. 2005). We
_____________________
¶ 111 n.19, 111 P.3d at 394-95 n.19, on “relishing.” In
Anderson, the judge instructed the jury as follows:
In order to relish a murder the defendant must show by
his words or actions that he savored the murder.
These words or actions must show debasement or
perversion, and not merely that the defendant has a
vile state of mind or callous attitude.
Statements suggesting indifference, as well as
those reflecting the calculated plan to kill,
satisfaction over the apparent success of the plan,
extreme callousness, lack of remorse, or bragging
after the murder are not enough unless there is
evidence that the defendant actually relished the act
of murder at or near the time of the killing.
Id.
16
will not disturb the trial court’s evidentiary rulings absent an
abuse of discretion. State v. Jones, 197 Ariz. 290, 308 ¶ 47, 4
P.3d 345, 363 (2000). “[E]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in
order to show action in conformity therewith.” Ariz. R. Evid.
404(b). Such evidence, however, may be admissible to show
“proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Id.
¶26 Other jurisdictions have held that evidence of gang
affiliation is allowed under circumstances similar to those of
this case. For instance, in People v. Champion, the prosecution
offered substantial evidence that the Raymond Avenue Crips were
involved in a triple murder. 891 P.2d 93, 116 (Cal. 1995),
abrogation on other grounds recognized by People v. Combs, 101
P.3d 1007, 1033 (Cal. 2004). In Champion, the California
Supreme Court concluded that evidence “that defendants were
members of the same gang formed a significant evidentiary link
in the chain of proof tying them to the crimes in [the] case.”
Id. As was true in Champion, evidence that Johnson was a member
of the same gang as his co-conspirators fortified the testimony
of the witnesses identifying witness elimination as his motive
for killing Stephanie Smith. See also State v. Ross, 127 P.3d
249, 255 (Kan. 2006) (stating that gang affiliation evidence is
admissible “to establish a motive for an otherwise inexplicable
17
act”); State v. Ferguson, 581 N.W.2d 824, 834-35 (Minn. 1998)
(concluding that trial court did not abuse its discretion in
admitting photographs and testimony on gang graffiti; although
the pictures “may have been highly prejudicial, the evidence was
also highly probative of [defendant’s] alleged motive to kill”).
¶27 The court of appeals reached a similar conclusion in
State v. Romero, 178 Ariz. 45, 870 P.2d 1141 (App. 1993). In
Romero, evidence that the defendant was a Hollywood Gang member,
that the attack occurred in rival gang territory, and that at
least some of the victims were present or former rival gang
members, was sufficient for the jury to find “a motive for what
otherwise would have been a random and unprovoked attack.” Id.
at 52, 870 P.2d at 1148. Similarly, an abundance of evidence
linked Johnson, his crimes, and his affiliation with the Lindo
Park Crips. Most notably, evidence that demonstrated Johnson’s
motive to murder Stephanie Smith included the facts that the
crimes involved other affiliated gang members, that Johnson
asked Phyllis Hansen whether any charges had been filed against
Ross, and that Johnson told Phyllis Hansen that “[Smith] was
going to testify against his cuz . . . and if there was no
testimony from her that there would be no case against [Ross].”
¶28 We also reject Johnson’s argument that the gang
evidence was unduly prejudicial. Although evidence that a
criminal defendant is a member of a gang could have a “‘highly
18
inflammatory impact’” on a jury, Champion, 891 P.2d at 116
(quoting People v. Cox, 809 P.2d 351, 373 (Cal. 1991)), the
trial court carefully scrutinized the evidence in this case and
reasonably concluded that its probative value was not
substantially outweighed by its prejudicial effect. Because the
evidence of gang affiliation was particularly probative on the
issue of motive, the trial court did not abuse its discretion in
permitting its introduction in the aggravation phase.
D.
¶29 During jury selection for the sentencing proceeding,
Johnson asked the court to strike the entire panel for cause,
based on the trial court’s failure to permit him to voir dire
the jurors to ask whether they regarded specific factors, such
as substance abuse, difficult childhood, and psychological
problems, as mitigating factors.10 Johnson cites Eddings v.
Oklahoma, 455 U.S. 104 (1982), for the proposition that a
“capital sentencer must give effect to all relevant mitigating
evidence.” Additionally, Johnson argues that Morgan v.
10
Johnson argues that Juror No. 116, who initially stated
that he viewed alcoholism as an aggravating circumstance,
provided a perfect demonstration of why he should have been
allowed to voir dire jurors on specific mitigating
circumstances. Juror No. 116, however, was not selected for the
aggravation and penalty phase jury panel, and any error
involving voir dire of this particular juror therefore is
harmless. State v. Glassel, 211 Ariz. 33, ___ ¶ 41, 116 P.3d
1193, 1206 (2005) (finding that any error in voir dire of
19
Illinois, 504 U.S. 719 (1992), implies that general fairness and
“follow the law” questions alone are insufficient to ensure
against a death-biased jury. Based on these contentions,
Johnson argues he did not receive a fair trial by impartial
jurors. This Court reviews a trial court’s rulings involving
the voir dire of prospective jurors for abuse of discretion,
State v. Trostle, 191 Ariz. 4, 12, 951 P.2d 869, 877 (1997).
¶30 In State v. Glassel, 211 Ariz. 33, ____ ¶¶ 42-44, 116
P.3d 1193, 1207 (2005), this Court recently rejected arguments
similar to those raised by Johnson. Glassel argued that the
trial court abused its discretion by refusing to allow him to
ask prospective jurors open-ended questions about what type of
mitigating evidence would be important to them in deciding
whether to impose the death penalty. Id. at ___ ¶ 42, 116 P.3d
at 1207. He contended that such questions were “necessary to
determine which prospective jurors, in violation of Morgan,
would automatically impose the death sentence despite the
jurors’ assurance that they could be fair and impartial.” Id.
at ___ ¶ 43, 116 P.3d at 1207. Finding no abuse of discretion,
we rejected his arguments, noting that Glassel cited no
authority to support his contention and that the trial court
_____________________
specific jurors was harmless when those jurors did not take part
in deliberations).
20
“did permit Glassel to ask open-ended questions on several
occasions.” Id. at ___ ¶ 44, 116 P.3d at 1207 (emphasis added).
¶31 Johnson also has cited no authority that requires a
court to allow a defendant to voir dire potential jurors about
specific mitigating circumstances. Extant authority unanimously
rejects this argument. See, e.g., Sellers v. Ward, 135 F.3d
1333, 1341-42 (10th Cir. 1998) (rejecting argument that a
defendant can inquire whether jurors would find specific facts
mitigating); Woodall v. Kentucky, 63 S.W.3d 104, 116 (Ky. 2001)
(finding no abuse of discretion when trial judge prohibited
questions about specific mitigating factors such as low I.Q. to
prevent defendant from “oblig[ing] jurors to commit themselves
by either accepting a specific mitigator or rejecting it before
any evidence was heard”); Burch v. State, 696 A.2d 443, 464 (Md.
1997) (“A defendant has no right to question prospective jurors,
under the guise of searching for disqualifying bias, to see who
might be receptive to any of the myriad of potential mitigating
factors he or she may choose to present.”); Holland v. State,
705 So. 2d 307, 338-39 (Miss. 1997) (refusing defendant’s
request to ask jurors whether alcohol consumption would be
regarded as a mitigating factor was not abuse of discretion);
State v. Wilson, 659 N.E.2d 292, 301 (Ohio 1996) (stating
“Morgan does not require judges to allow individual voir dire on
separate mitigating factors” because “jurors cannot be asked to
21
weigh specific factors until they have heard all the evidence
and been fully instructed on the applicable law”); Cannon v.
State, 961 P.2d 838, 845 (Okla. Crim. App. 1998) (finding no
abuse of discretion in trial judge’s refusal to permit voir dire
inquiry into jurors’ views on particular mitigating factors);
State v. Hill, 501 S.E.2d 122, 127 (S.C. 1998) (stating Morgan
held the defendant was entitled to know “if jurors would
consider general mitigating evidence . . . [not] that the
defendant was entitled to know if a juror would consider
specific mitigating evidence”) (emphasis added); Raby v. State,
970 S.W.2d 1, 3 (Tex. Crim. App. 1998) (“A trial court does not
abuse its discretion by refusing to allow a defendant to ask
venire members questions based on facts peculiar to the case on
trial (e.g. questions about particular mitigating evidence).”).
¶32 Johnson’s argument misconstrues the holding in
Eddings. In Eddings, the Court held that no mitigating evidence
may be statutorily precluded from consideration by a trier of
fact. 455 U.S. at 113-14. Nowhere in the opinion does the
Court suggest that voir dire about specific mitigating
circumstances is required. In fact, allowing such a procedure
could encourage jurors to limit their evaluation of mitigation
evidence to only those factors enumerated rather than to make a
broader inquiry into all the evidence presented. Such a result
would be contrary to the policy behind Eddings, which permits
22
consideration of any relevant mitigating evidence. See id. at
117.
¶33 Nor does Morgan support Johnson’s argument. In
Morgan, the Supreme Court held that “defendants have a right to
know whether a potential juror will automatically impose the
death penalty once guilt is found, regardless of the law,” and
therefore, “defendants are entitled to address this issue during
voir dire.” Jones, 197 Ariz. at 303 ¶ 27, 4 P.3d at 358
(construing Morgan). As we noted in Glassel, however, “‘[t]he
Constitution . . . does not dictate a catechism for voir dire,’”
211 Ariz. at ____ ¶ 37, 116 P.3d at 1205-06 (quoting Morgan, 504
U.S. at 729) (alteration in original), and “trial courts have
‘great latitude in deciding what questions should be asked on
voir dire.’” Id. at ____ ¶ 37, 116 P.3d at 1206 (quoting Mu’Min
v. Virginia, 500 U.S. 415, 424 (1991)). Although Morgan
indicates that voir dire must go beyond simple questions of
“[w]ill you follow the law that I give you?” and “[d]o you have
any prefixed ideas about this case at all?”, 504 U.S. at 735
n.9, it does not suggest that courts should permit inquiries
into specific mitigating circumstances.
¶34 Here, the trial court clearly complied with Morgan
requirements. Before the aggravation phase, the trial court
required each potential juror to fill out a 23-page juror
questionnaire that fully addressed Morgan issues. The trial
23
court also conducted individual voir dire of every prospective
juror whose responses raised impartiality concerns. Jurors not
rehabilitated following individual voir dire were dismissed for
cause.
¶35 We conclude that the trial court did not abuse its
discretion in refusing to allow detailed questioning about
specific mitigating factors during voir dire.
E.
¶36 Johnson next contends that the trial court erred by
permitting the State to introduce a four-minute video clip of
Detective Tom Kulesa’s January 2001 interrogation of Johnson
during the rebuttal testimony of Dr. Gina Lang, the State’s
mental health expert. Johnson argues that playing the audio
portion of the tape was unduly prejudicial because the tape
contained profanity and references to Johnson’s unrelated
criminal conduct. He contends that the visual images
themselves, without the audio, would have been sufficient for
jurors to evaluate the credibility of Dr. Lang’s diagnosis.
Finally, he argues that the error in admitting the tape was not
harmless because the trial court failed to instruct jurors to
limit their consideration of the tape to a proper purpose.
¶37 “Evidentiary rulings are subject to the trial court’s
determination and will not be disturbed, absent an abuse of
discretion.” Jones, 197 Ariz. at 308 ¶ 47, 4 P.3d at 363.
24
“Facts or data underlying [a] testifying expert’s opinion are
admissible for the limited purpose of showing the basis of that
opinion, [but] not to prove the truth of the matter asserted.”
State v. Rogovich, 188 Ariz. 38, 42, 932 P.2d 794, 798 (1997).
Dr. Lang testified that, in addition to reports, records, and
her own examination of Johnson, she relied on the tape-recording
of Detective Kulesa’s interrogation of Johnson to diagnose him
with a “personality disorder that includes antisocial borderline
and histrionic traits.”
¶38 The videotape was helpful to jurors in several ways.
It demonstrated for the jurors Johnson’s histrionic traits, one
of the factors that Dr. Lang relied upon in her analysis. In
addition to corroborating her diagnosis, the tape served to
rebut defense expert Dr. Carlos Jones’s testimony that Johnson
was not faking his symptoms. See A.R.S. § 13-703.D (Supp. 2005)
(permitting the prosecution and defendant to rebut any
information received at the aggravation or penalty phase of the
sentencing proceeding). Although some of the statements made in
the interrogation do not reflect positively on Johnson, the
trial court did not abuse its discretion in concluding that any
potential prejudice from the tape did not outweigh its probative
value in helping the jury understand Dr. Lang’s diagnosis.
25
¶39 Also, contrary to Johnson’s contention, the trial
court specifically limited the jury’s use of the videotape to a
proper purpose. The trial court instructed the jury that
this video is merely offered to help you understand
this doctor’s opinion . . . as to defendant’s various
psychological characteristics. Language in the tape,
which you see as Detective Kulesa is talking to the
defendant, is not offered for the substance; it is
merely offered as part of his, the defendant’s
behavior, which the Doctor, I believe, says is of
histrionic nature. With that understanding, that’s
the only purpose [for which] this videotape is being
admitted.
¶40 Because the videotape assisted jurors in determining
the credibility and accuracy of Dr. Lang’s diagnosis and the
trial court properly instructed the jury as to the limited
purpose of the videotape, we find no abuse of discretion.
F.
¶41 Johnson also argues that his Eighth and Fourteenth
Amendment rights were violated because the trial court failed to
specifically instruct jurors to consider evidence of family
dysfunction, substance abuse, and personality disorder as
mitigation in the penalty phase jury instructions. Because of
this failure to instruct, Johnson contends, a reasonable
probability remains that the jury did not consider principal
mitigating evidence.
¶42 During the aggravation phase of a capital trial, “the
Eighth Amendment requires that a capital sentencing jury’s
26
discretion be guided and channeled by requiring examination of
specific factors that argue in favor of or against imposition of
the death penalty in order to eliminate arbitrariness and
capriciousness.” Buchanan v. Angelone, 522 U.S. 269, 274 (1998)
(quoting Buchanan v. Angelone, 103 F.3d 344, 347 (4th Cir.
1996)) (internal quotations omitted). “In contrast, in the
[penalty] phase, [the Supreme Court has] emphasized the need for
a broad inquiry into all relevant mitigating evidence to allow
an individualized determination.” Id. at 276. The standard for
reviewing jury instructions used during the penalty phase of the
capital sentencing proceeding is “‘whether there is a reasonable
likelihood that the jury has applied the challenged instruction
in a way that prevents the consideration of constitutionally
relevant [mitigating] evidence.’” Id. (quoting Boyde v.
California, 494 U.S. 370, 380 (1990)).
¶43 A significant danger could result if we were to adopt
Johnson’s approach and direct or permit trial courts to give
potentially confining mitigation instructions during the penalty
phase of a capital trial. The consistent concern in the penalty
phase is “that restrictions on the jury’s sentencing
determination not preclude the jury from being able to give
effect to mitigating evidence.” Id. “[The Supreme Court’s]
decisions suggest that complete jury discretion is
constitutionally permissible.” Id. (citing Tuilaepa v.
27
California, 512 U.S. 967, 978-79 (1994), as “noting that at the
[penalty] phase, the state is not confined to submitting
specific propositional questions to the jury and may indeed
allow the jury unbridled discretion”); see also Zant v.
Stephens, 462 U.S. 862, 875 (1983) (finding that a scheme
permitting jurors unbridled discretion in determining whether to
impose the death penalty after eligibility for the death penalty
is determined is not unconstitutional).
¶44 The Supreme Court has rejected the argument that
judges should instruct capital juries on specific mitigating
factors. Buchanan, 522 U.S. at 270 (holding that the Eighth
Amendment does not require “that a capital jury be instructed on
the concept of mitigating evidence generally, or on particular
statutory mitigating factors”). Buchanan involved a jury
instruction that advised jurors, “[I]f you believe from all the
evidence that the death penalty is not justified, then you shall
fix the punishment of the Defendant at life imprisonment.” Id.
at 272-73 & n.1. This instruction survived a constitutional
challenge because it “did not foreclose the jury’s consideration
of any mitigating evidence.” Id. at 277.
¶45 The instructions given by the trial court clearly
satisfy the Buchanan test. The court instructed the jurors that
“mitigating circumstances may be any factors presented by the
defendant or the State that are relevant in determining whether
28
to impose a sentence of less than the death penalty” and that
they could consider “any aspect of the defendant’s background,
character, or propensity or record, and any of the circumstances
of the offense that might justify a penalty less severe than
death.” (Emphasis added.) Cf. Blystone v. Pennsylvania, 494
U.S. 299, 308 (1990) (rejecting argument that trial judge’s list
of statutory mitigating factors impermissibly precluded
consideration of other possible mitigation because trial judge
instructed jurors that they were “entitled to consider ‘any
other mitigating matter concerning the character or record of
the defendant, or the circumstances of his offense’”).
¶46 The jury had ample opportunity to consider all the
evidence related to mitigation. Johnson presented witnesses and
evidence to establish possible mitigating factors over a three-
day period. Given the focus Johnson placed on the mitigating
factors and the time allotted to present and argue the evidence,
we see no reasonable likelihood that the jury found itself
foreclosed from considering potentially mitigating evidence of
family dysfunction and substance abuse. See Buchanan, 522 U.S.
at 278 (stating that it is “unlikely that reasonable jurors
would believe that the court’s instructions transformed four
days of defense testimony on the defendant’s background and
character into a virtual charade”) (citation and internal
quotation omitted).
29
¶47 Accepting Johnson’s argument that a trial court should
be required to provide a list of specific mitigating factors to
the jury “would be inharmonious with the Supreme Court’s
admonitions that the sentencer be free to consider any relevant
mitigating factor.” Tucker v. Zant, 724 F.2d 882, 892 (11th
Cir. 1984) (emphasis added); see also Eddings, 455 U.S. at 112.
The sort of specificity Johnson requests “would doubtless bring
complaints from other petitioners that the trial court had
unduly narrowed the focus of the jury’s consideration.”11
Tucker, 724 F.2d at 892. The trial court did not abuse its
discretion in refusing to instruct the jury on specific
mitigating factors.
III.
¶48 Because Johnson’s crime occurred before August 1,
2002, we independently review the jury’s “findings of
aggravation and mitigation and the propriety of the death
sentence.” A.R.S. § 13-703.04.A; see also 2002 Ariz. Sess.
Laws, 5th Spec. Sess., ch. 1, § 7.B. “[W]e consider the quality
and strength, not simply the number, of aggravating and
mitigating factors.” Greene, 192 Ariz. at 443 ¶ 60, 967 P.2d at
118.
11
We also note that even though the trial court did not
specifically instruct the jury on family dysfunction and
substance abuse, during final arguments, Johnson’s counsel
30
A.
¶49 In this case, the jury found three aggravators: (1)
prior conviction for the serious offense of armed robbery; (2)
grave risk of death to a third party; and (3) that the murder
was especially heinous and depraved. A.R.S. § 13-703.F.2, F.3,
F.6.
1.
¶50 A defendant is eligible for the death penalty if he
was “previously convicted of a serious offense, whether
preparatory or completed.” A.R.S. § 13-703.F.2. A serious
offense includes armed robbery. A.R.S. § 13-703.I(8) (Supp.
2005). Johnson did not dispute his prior conviction for the
serious offense of armed robbery.
2.
¶51 Under section 13-703.F.3, an aggravating circumstance
exists if “[i]n the commission of the offense the defendant
knowingly created a grave risk of death to another person or
persons in addition to the person murdered during the commission
of the offense.” The question in this case was whether Johnson
created a grave risk of danger to Jordan, the victim’s young
son. Factors relevant to our analysis include: (1) the third
person’s proximity to the victim (whether the third person was
_____________________
argued the presence of specific mitigating circumstances not
elaborated by the final penalty phase jury instructions.
31
in the “zone of danger”), see Wood, 180 Ariz. at 69, 881 P.2d at
1174; (2) whether the defendant’s actions were during “the
murderous act itself,” see State v. McCall, 139 Ariz. 147, 160,
677 P.2d 920, 933 (1983); (3) whether the defendant intended to
kill the third party, see Tison, 129 Ariz. at 542, 633 P.2d at
351; and (4) whether the defendant engaged in sufficiently risky
behavior toward the third person, see State v. Jeffers, 135
Ariz. 404, 428-29, 661 P.2d 1105, 1129-30 (1983). “No single
factor is dispositive of this circumstance. Our inquiry is
whether, during the course of the killing, the defendant
knowingly engaged in conduct that created a real and substantial
likelihood that a specific third person might suffer fatal
injury.” Wood, 180 Ariz. at 69, 881 P.2d at 1174.
¶52 Substantial evidence supports the F.3 aggravator. It
is clear that any potential risk to Jordan took place during
“the murderous act itself” because Jordan was in the same room
as Smith at the time she was shot. It is also evident that
Johnson did not intend to kill Jordan. His motive was to kill
Smith because she was a witness to another crime. Moreover,
upon entering Smith’s property, he said, “We’re here for the
bitch,” indicating his intention to kill Smith. The exact
proximity of Jordan to his mother, however, is unclear. The
“mere presence of bystanders” is insufficient to show this
32
aggravator, but the F.3 aggravator is not limited to cases in
which the third party was directly in the line of fire. Id.
¶53 Even if Jordan was not in his mother’s arms at the
time of the shooting, clearly he was in the zone of danger.
Jordan and his mother were in a small bedroom, measuring 10 feet
by 10 feet, and he was in close enough proximity when she was
shot to have her blood splatter on his cheek and shirt. See
State v. Gonzales, 181 Ariz. 502, 514, 892 P.2d 838, 850 (1995)
(finding that wife confined to 10 feet by 10 feet courtyard with
the defendant as he stabbed her husband was in grave risk of
death; she attempted to rescue her husband by jumping on the
defendant’s back as he was stabbing her husband); State v.
Fierro, 166 Ariz. 539, 550, 804 P.2d 72, 83 (1990) (finding
victim’s girlfriend was in zone of danger when defendant fired
several shots at victim, striking him once and narrowly missing
his girlfriend whom the defendant knew was seated nearby). The
evidence establishes a “grave risk of death to others.”
3.
¶54 Because the F.6 aggravator is considered in the
disjunctive, we evaluate the terms cruel, heinous, and depraved
separately. Gretzler, 135 Ariz. at 51, 659 P.2d at 10. The
jury did not find the aggravating factor of especial cruelty but
did find the murder both heinous and depraved.
33
¶55 Heinousness and depravity go to a defendant’s mental
state as reflected in his words and actions at or near the time
of the offense. State v. Martinez-Villareal, 145 Ariz. 441,
451, 702 P.2d 670, 680 (1985). Heinousness is generally defined
as “hatefully or shockingly evil: grossly bad.” State v. Knapp,
114 Ariz. 531, 543, 562 P.2d 704, 716 (1977) (citing Webster’s
Third New International Dictionary). Depravity is generally
defined as “marked by debasement, corruption, perversion or
deterioration.” Id.
¶56 Gretzler, 135 Ariz. at 52, 659 P.2d at 11, and Ross,
180 Ariz. at 606, 886 P.2d at 1362, set forth six factors to be
considered in determining whether a defendant’s state of mind
was especially heinous or depraved. One of these factors is
witness elimination as a motive for the murder. Ross, 180 Ariz.
at 606, 886 P.2d at 1362.
¶57 The State can establish witness elimination as a
motive by showing: (1) “[that] the murder victim is a witness
to some other crime, and is killed to prevent that person from
testifying about the other crime”; (2) “a statement by the
defendant that witness elimination is a motive for the murder”;
or (3) that “extraordinary circumstances of the crime show,
beyond a reasonable doubt, that witness elimination is a
motive.” Id. State v. King held that witness elimination, by
itself, is not sufficient to raise a murder “above the norm” and
34
cannot support a finding of heinousness or depravity. 180 Ariz.
268, 286-87, 883 P.2d 1024, 1042-43 (1994).
¶58 King involved the elimination of a witness who was
also a victim of the same crime rather than the elimination of a
witness to some other crime. Id. at 270, 883 P.2d at 1026
(store clerk and security guard killed during robbery). As
Justice Moeller’s concurrence in King correctly noted, however,
under some circumstances witness elimination itself can support
a finding of heinousness or depravity. Id. at 290, 883 P.2d at
1046 (Moeller, V.C.J., concurring). For example, “such a case
might be the murder of a government witness arranged by gangs or
organized crime under circumstances not falling within the
aggravating pecuniary value provisions of § 13-703(F)(4) or
(5).” Id. (Moeller, V.C.J., concurring). We agree that, under
the circumstances underlying the King decision, witness
elimination did not establish heinousness or depravity. We
hold, however, that the broad statement in King does not apply
when a capital defendant eliminates the witness to a crime other
than the murder to prevent that witness from testifying. In
such a situation, witness elimination, by itself, will justify a
finding of heinousness or depravity.
¶59 “Ending the life of a human being so that that person
cannot testify against the defendant indicates a complete lack
of understanding of the value of a human life.” State v. Smith,
35
141 Ariz. 510, 512, 687 P.2d 1265, 1267 (1984); see also State
v. Correll, 148 Ariz. 468, 481, 715 P.2d 721, 734 (1986) (noting
“depravity is indicated” where witness elimination occurs).
“Killings committed with this cold-blooded logic in mind are
especially depraved,” Smith, 141 Ariz. at 512, 687 P.2d at 1267,
and “separate the crime from the ‘norm’ of first-degree
murders,” Gretzler, 135 Ariz. at 53, 659 P.2d at 12.
Accordingly, we are persuaded that witness elimination can
itself be sufficient to find heinousness or depravity when a
witness to some other crime is eliminated to prevent that
witness from testifying.
¶60 In so holding, we do not transform witness elimination
into a “per se aggravating factor” as discussed in King, 180
Ariz. at 285-86, 883 P.2d at 1041-42. Instead, we uphold Ross’s
distinction between the elimination of the victim of the capital
crime, which “would be present in every murder” and the
elimination of a witness to another crime, 180 Ariz. at 606, 886
P.2d at 1362, which is a separate and serious act.
¶61 In this case, strong and uncontroverted evidence
supports witness elimination as a motive for the murder of
Stephanie Smith. First, Smith was a witness to “some other
crime,” the robbery at Affordable Massage on November 7, 2000.
Second, the State presented evidence that Johnson made
statements to Phyllis Hansen admitting that his motive for
36
killing Smith was to eliminate her as a witness. Indeed, on
appeal, Johnson does not contest that the evidence established
witness elimination as the motive for killing Smith.
¶62 Given the strength of the evidence establishing
witness elimination as Johnson’s motive for killing Smith, this
factor, by itself, establishes the F.6 aggravator.12
B.
¶63 Johnson alleges a myriad of statutory and nonstatutory
mitigating circumstances including brain damage, chronic
substance abuse, borderline and antisocial personality disorder,
dysfunctional family background, love of his family, and
disparity of treatment of his co-defendant.
¶64 Although Johnson presented some evidence of frontal
brain dysfunction and some level of memory and executive
function impairment through Dr. Carlos Jones’s testimony, both
the State’s and Johnson’s psychological experts agreed that
Johnson’s cognitive functions are intact. In fact, Johnson’s
own expert, Dr. Jones, admitted that “there’s not real
impairment there” and that Johnson appears to fall within the
average range of cognitive ability.
12
The State also presented evidence of relishing and
helplessness, but because we hold that witness elimination can
itself be sufficient to find heinousness or depravity when a
witness to a crime other than the murder is eliminated to
prevent that witness from testifying, we need not address the
remaining factors.
37
¶65 Most of the other mitigating circumstances alleged by
Johnson involve some type of mental or psychological impairment.
“[T]he weight to be given [to] mental impairment should be
proportional to a defendant’s ability to conform or appreciate
the wrongfulness of his conduct.” Trostle, 191 Ariz. at 21, 951
P.2d at 886. “We do not require that a [causal] nexus between
the mitigating factors and the crime be established before we
consider the mitigation evidence. But the failure to establish
such a causal connection may be considered in assessing the
quality and strength of the mitigation evidence.” State v.
Newell, ___ Ariz. ___, ___ ¶ 82, ___ P.3d ___, ___ (2006). In
this case, both the State’s and Johnson’s experts indicated that
Johnson knew right from wrong and could not establish a causal
nexus between the mitigating factors and Johnson’s crime.
Accordingly, we afford Johnson’s evidence of personality
disorders, difficult childhood, and substance abuse only minimal
value.
¶66 The remaining mitigation evidence, based on the love
of his family and the allegation of discrepancy in sentencing,
also is of minimal weight. “[H]is family’s love has not stopped
him from what amounts to a lifetime of crime.” King, 180 Ariz.
at 289, 883 P.2d at 1045. Moreover, the disparity between the
punishment given to Quindell Carter and that given this
38
defendant is explained by Johnson’s larger role in the murder of
Stephanie Smith.
¶67 Balancing the de minimis mitigation against the three
established aggravating factors, we conclude that the mitigating
circumstances are not sufficiently substantial to call for
leniency.
IV.
¶68 For purposes of federal review, Johnson raises a
number of challenges to the constitutionality of Arizona’s death
penalty scheme. He concedes that this Court has previously
rejected these arguments. Although Johnson failed to offer any
argument to support these challenges, we will briefly address
each issue.
¶69 First, Johnson contends that A.R.S. § 13-703 is
unconstitutional because it permits jurors unfettered discretion
to impose a death sentence without adequate guidelines to weigh
and consider appropriate factors and fails to provide a
principled means to distinguish between those defendants
deserving of death and those who do not. We rejected this
argument in State v. Carreon, 210 Ariz. 54, 75-76 ¶ 117, 107
P.3d 900, 921-22 (2005).
¶70 Second, Johnson contends that Arizona’s requirement
that mitigating circumstances be proved by a preponderance of
the evidence improperly precludes jurors from considering
39
mitigating facts. We rejected a similar argument in State v.
Medina, 193 Ariz. 504, 515 ¶ 43, 975 P.2d 94, 105 (1999)
(stating “it is not unconstitutional to require the defense to
establish mitigating circumstances by a preponderance of the
evidence”).
¶71 Third, he argues that Arizona’s death penalty scheme
violates the Fifth, Eighth, and Fourteenth Amendments by
shifting the burden of proof and requiring that a capital
defendant convince jurors that his life should be spared. We
rejected this argument in State v. Fulminante, 161 Ariz. 237,
258, 778 P.2d 602, 623 (1988), and Carreon, 210 Ariz. at 76 ¶
122, 107 P.3d at 922 (restating holding in Fulminante).
¶72 Fourth, he contends that death-biased language in the
proceedings prejudiced jurors in favor of the death penalty. No
case in Arizona or in any other jurisdiction has specifically
addressed this issue. In raising this argument, Johnson asserts
that use of the words “aggravation phase” connotes to jurors
that “aggravation” necessarily exists and invades the province
of the jury since it is jurors who must determine whether the
State has proven aggravation beyond a reasonable doubt. He also
contends that the word “death” was “peppered liberally”
throughout the aggravation and penalty phase instructions and
evidences a strong and unconstitutional bias in favor of the
death penalty. We note, however, that Johnson’s own requested
40
jury instructions used the terms “aggravation phase” and “death”
at least ten times, respectively. Moreover, the trial court’s
jury instructions during the aggravation phase, taken as whole,
clearly indicated to jurors that the purpose of the proceeding
was to determine whether the State had established any
aggravating factors and that the mere allegation of aggravating
factors against Johnson was not evidence against him. No
reasonable juror would have interpreted these instructions and
the use of the words “aggravation phase” as requiring a finding
of aggravation. Nonetheless, because Johnson failed to develop
this argument, we regard it as waived. Bolton, 182 Ariz. at
298, 896 P.2d at 838.
¶73 Fifth, Johnson argues that the lack of guidance in the
jury’s verdict form impedes reviewability because there is no
indication which mitigating factors jurors found to exist. We
rejected this argument in State v. Roseberry, 210 Ariz. 360, 373
n.12, 111 P.3d 402, 415 n.12 (2005).
¶74 Sixth, Johnson argues that the introduction of victim
impact evidence shifts the burden of proof to the defendant. We
rejected a similar argument in Carreon, 210 Ariz. at 72 ¶¶ 90-
92, 107 P.3d at 918 (rejecting defendant’s argument that victim
impact statements admitted after the introduction of his
mitigation evidence unduly prejudiced the jury).
41
¶75 Finally, Johnson contends that the failure of Arizona
courts to permit jurors to conduct proportionality review denies
him due process of law. We rejected an identical claim in State
v. Harrod, 200 Ariz. 309, 320 ¶ 65, 26 P.3d 492, 503 (2001), and
Carreon, 210 Ariz. at 75 ¶ 115, 107 P.3d at 921.
V.
¶76 For the foregoing reasons, we affirm Johnson’s
convictions and sentences, including the capital sentence.
____________________________________
Ruth V. McGregor, Chief Justice
CONCURRING:
_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
_______________________________________
W. Scott Bales, Justice
42