State v. Murdaugh

SUPREME COURT OF ARIZONA
en banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-01-0421-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR1995-006472
MICHAEL JOE MURDAUGH, )
)
Appellant. ) O P I N I O N
)
__________________________________)

Appeal from the Superior Court in Maricopa County
No. CR1995-006472
The Honorable Sherry Hutt, Judge

AFFIRMED
________________________________________________________________

Janet A. Napolitano, Former Attorney General Phoenix
Terry Goddard, Attorney General
By: Kent E. Cattani, Chief Counsel
Capital Litigation Section
and Dawn M. Northup, Assistant Attorney General
Attorneys for Appellee

Michael S. Reeves Phoenix
and
Michael G. Tafoya Phoenix
Attorneys for Appellant
________________________________________________________________

R Y A N, Justice

¶1 Michael Joe Murdaugh entered into a plea agreement

which resulted in convictions for the kidnapping, robbery, and

first degree murder of David Reynolds. The trial judge

sentenced Murdaugh to death for the first degree murder. Appeal

to this court is automatic and direct when the court imposes a
sentence of death. Ariz. Rev. Stat. (“A.R.S.”) § 13-703.04

(Supp. 2003); Ariz. R. Crim. P. 26.15, 31.2(b). The court has

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

Constitution, Arizona Revised Statutes section 13-4031 (2001),

and Arizona Rule of Criminal Procedure 31.2(b).

I.

¶2 On June 26, 1995, Murdaugh’s girlfriend, Rebecca

Rohrs, met the victim, David Reynolds, at a gas station.1 Rohrs

told Reynolds that she was looking for a job and Reynolds

indicated he might be able to help her. Rohrs gave Reynolds a

copy of her resumé and the two exchanged phone numbers. At some

point in the conversation, Reynolds offered to pay Rohrs for

oral sex. Rohrs declined his offer and went home.

¶3 When Rohrs arrived at the home she shared with

Murdaugh, she told him what happened at the gas station.

Murdaugh decided to teach Reynolds a lesson and instructed Rohrs

to contact Reynolds and invite him to the house.

¶4 Rohrs paged Reynolds and invited him to “party” with

her and her friend, Betty Gross. Reynolds returned the page and

while Rohrs was talking to him, Murdaugh stood nearby and told

1
We view the evidence in a light most favorable to
sustaining the verdicts. State v. Gallegos, 178 Ariz. 1, 9, 870
P.2d 1097, 1105 (1994) (citing State v. Atwood, 171 Ariz. 576,
596, 832 P.2d 593, 613 (1992), disapproved on other grounds by
State v. Nordstrom, 200 Ariz. 229, 241, ¶ 25, 25 P.3d 717, 729
(2001)).

- 2 -
her what to say. After the call, Murdaugh and his friend, Jesse

Dezarn, left to buy methamphetamine. They instructed Rohrs and

Gross to page them as soon as Reynolds arrived. Murdaugh also

told them to make sure Reynolds did not leave before he and

Dezarn returned.

¶5 Approximately fifteen minutes after Reynolds arrived

at the house, Murdaugh and Dezarn stormed in brandishing

firearms. Murdaugh began shouting at Reynolds demanding to know

why he thought that he could treat Rohrs “like a whore.”

Murdaugh continued to yell at Reynolds while Gross and Rohrs

left the house to take anything of value out of Reynolds’

plumbing van. Reynolds remained in the house with Dezarn and

Murdaugh, both of whom continued to waive firearms. Murdaugh

ordered Reynolds to empty his pockets onto the coffee table.

Reynolds had about $200 in cash. At some point in the evening

Murdaugh took the money.

¶6 Murdaugh came out onto the porch, while Rohrs and

Gross were unloading the plumbing van, and reprimanded them for

not wearing gloves. He told them that they had left

fingerprints on everything and asked, “Do you know what I am

going to have to do now?” Murdaugh instructed Gross and Rohrs

to wipe the equipment clean of fingerprints and to place

everything back in Reynolds’ van. Reynolds likely heard the

entire exchange.

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¶7 While Rohrs and Gross were unloading the van, Murdaugh

asked Rohrs to bring him a baseball bat. Rohrs brought the bat

into the house and Murdaugh asked her if she would like to take

a swing at Reynolds’ head. Rohrs declined. Murdaugh also told

Gross to take a swing at Reynolds, but she too refused.

¶8 At about 11:30 p.m., after Rohrs, Murdaugh, Dezarn,

and Gross ate dinner, Murdaugh led Reynolds to his detached,

three bay garage. Dezarn, still armed with a firearm, walked

behind Reynolds. Inside the garage, Murdaugh ordered Reynolds

into the trunk of his Buick so that he could “figure things

out.” Throughout the night, Murdaugh, Dezarn, Gross, and Rohrs

returned to the garage to take methamphetamine.

¶9 In the early morning hours of the next day, Dezarn and

Murdaugh agreed that they needed to get rid of Reynolds’ van.

They decided to “ditch” it near Whitman Cemetery. Murdaugh led

the way in his vehicle while Dezarn followed in Reynolds’ van.

They abandoned the van on Cemetery Road and began driving back

to Murdaugh’s house. On the way, they stopped for gas in

Whitman and ran into an acquaintance named Ron Jesse. They

asked Jesse for drugs, and all three returned to Murdaugh’s

house. From there, Dezarn and Jesse left to get more

methamphetamine with the money Murdaugh took from Reynolds.

¶10 After Dezarn and Jesse returned with the drugs, they

and Murdaugh locked themselves in the garage to “shoot up.”

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While in the garage, Murdaugh told Jesse what happened to Rohrs

at the gas station and that he had Reynolds locked in the trunk.

¶11 At about 8:30 a.m., Murdaugh opened the door to the

garage and allowed Gross and Rohrs to join him, Dezarn, and

Jesse to take more drugs. Murdaugh opened the trunk to show

Jesse that Reynolds was there and Reynolds said that he needed

to go to the bathroom. Murdaugh let Reynolds out of the trunk

and took him to the corner of the garage to urinate. When

Reynolds’ back was turned, Murdaugh struck him in the head with

a nylon meat tenderizer. After Reynolds fell to the floor,

Murdaugh picked up a metal jack hammer spike and continued to

hit Reynolds in the face and head. At some point, either before

or during the attack, Murdaugh placed a green nylon bag over

Reynolds’ head. The attack caused three major crushing blows to

Reynolds’ skull resulting in his death.

¶12 After the murder, Murdaugh left Reynolds lying face

down in the garage with the bag tied over his head. He

instructed Gross and Rohrs to sprinkle horse manure over

Reynolds’ body and on the blood surrounding his body. The body

was left in this condition for the remainder of the day.

¶13 At some point after the murder Jesse attempted to

leave Murdaugh’s home. Jesse, however, was unable to leave the

property because of a locked gate. While he was waiting for

Murdaugh to unlock the gate, Murdaugh approached Jesse and

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threatened him. Murdaugh said that if Jesse told anyone about

what happened in the garage, he would “kill [Jesse] last and

peel the skin off his children.” After Murdaugh threatened

Jesse, he opened the gate and allowed him to leave.

¶14 Around the time of the murder, Murdaugh realized that

he and Dezarn had left items in Reynolds’ van that would reveal

that the van belonged to Reynolds. Murdaugh told Dezarn and

Rohrs to retrieve the items from the van. Dezarn ultimately

retrieved Reynolds’ pagers, wallet, and identification papers

and returned to Murdaugh’s house with Rohrs.

¶15 Later that evening, Murdaugh and Dezarn loaded

Reynolds’ body into the front right compartment of Murdaugh’s

horse trailer. Murdaugh told Rohrs to clean up the blood in the

garage. Murdaugh then packed to go camping and left with his

horses and his dog some time after midnight.

¶16 Once at his campsite, Murdaugh dismembered Reynolds’

body in an effort to thwart attempts to identify it. He first

cut off Reynolds’ head and hands. He then removed the finger

pads from the hands and pulled all Reynolds’ teeth. He threw

the teeth and finger pads out the window of his truck as he

drove along a forest service road leading to the site where he

buried the body. He placed the head and hands in one shallow

grave, and the torso in another. Murdaugh then returned to his

campsite. From his campsite, Murdaugh placed several calls from

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Reynolds’ cell phone to Rohrs, both at home and to her pager.

¶17 The police, who had been notified by Reynolds’ family

of his disappearance, obtained copies of Reynolds’ cell phone

records. They discovered that on June 26, Reynolds had made

several calls to his company and his girlfriend, and that he had

also called Rohrs five times. Officers contacted Rohrs on June

28, and she told them that she had Reynolds’ business card and

that she was willing to come to the Sheriff’s Office to look at

a photograph of Reynolds. Rohrs never went to the Sheriff’s

Office to make the identification. On June 29, the police

discovered that Reynolds’ cell phone had been used to make four

additional calls to Rohrs on June 28.

¶18 Also on June 29, police located Reynolds’ van on

Cemetery Road. They found Reynolds’ work boots in the van and

discovered that his cell phone was missing. They obtained

information from Reynolds’ cell phone carrier that the most

recent calls from Reynolds’ cell phone were originating from the

Flagstaff area. That same day, the police were contacted by a

resident of Whitman, Arizona, who told them that a murder had

taken place in Murdaugh’s garage behind his house. This

individual provided information that led the police to contact

Jodi Sheeler, who also had information about the murder. That

afternoon, the police interviewed Ron Jesse, who told them that

he had witnessed Reynolds’ murder.

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¶19 Meanwhile, when Murdaugh called Rohrs, she told him

that the police were tracking the calls he made with Reynolds’

cell phone. Murdaugh left his campsite and called Rohrs from a

pay phone. She told him that she had been contacted by the

police but that she had not told them anything about Reynolds.

Murdaugh broke Reynolds’ cell phone into pieces and disposed of

it, along with Reynolds’ wallet and papers, near Reynolds’ body.

Back at the campsite, Murdaugh was cleaning one of his horse’s

hooves when his knife slipped and severely cut his leg. Because

he was unable to stop the bleeding, Murdaugh went to nearby

Yavapai Regional Medical Center for treatment.

¶20 On June 30, 1995, the police obtained a search warrant

for Murdaugh’s home and garage. During the search of the

garage, they found the scene as Murdaugh had left it: there

were blood stains on the floor covered with scattered horse

manure.

¶21 In the meantime, the Maricopa County Sheriff’s Office

sent out a teletype notifying other law enforcement agencies

that they were looking for Murdaugh. The Yavapai County

Sheriff’s Office called the investigators and notified them that

Murdaugh was in the emergency room at Yavapai Regional Medical

Center. Investigators asked the Yavapai authorities to impound

Murdaugh’s vehicle and immediately headed to the medical center

to contact Murdaugh.

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¶22 When Detective Griffiths of the Maricopa County

Sheriff’s Office arrived at Yavapai Regional Medical Center, he

spoke with hospital personnel and confirmed that Murdaugh had

not been given any pain medication. He then met with Murdaugh

at approximately 8:55 p.m. on June 30, and read him the Miranda2

warnings. Murdaugh agreed to answer questions and then asked

whether his garage had been cleaned. When told that the garage

had not been cleaned, Murdaugh said, “Then you have enough to do

me in.” He then described Reynolds’ murder. In addition, he

provided Detective Griffiths with a detailed map and directions

to his campsite. He also told Detective Griffiths where to find

Reynolds’ body and personal effects. With the use of trackers,

the police were able to locate the campsite and Reynolds’ body

without referring to Murdaugh’s map. Reynolds’ body was found

by the police on July 1, 1995.

¶23 Because Reynolds’ murder bore similarities to the

murder of Douglas Eggert that had occurred earlier in 1995,

detectives asked Murdaugh if he had done anything like the

Reynolds’ murder before. Murdaugh admitted that he had also

killed Eggert by beating him to death with a meat tenderizer and

throwing the body into a canal.

II.

¶24 In July 1995, the Maricopa County Grand Jury indicted

2
See Miranda v. Arizona, 384 U.S. 436 (1966).

- 9 -
Murdaugh for the following crimes: Count 1, first degree murder

of David Reynolds or, in the alternative, felony murder; Count

2, kidnapping of Reynolds; Count 3, aggravated robbery of

Reynolds; and Count 4, aggravated assault of Ron Jesse.

¶25 Later the next year, the Maricopa County Grand Jury

indicted Murdaugh for the following crimes: Count 1, kidnapping

of Douglas Eggert, and Count 2, first degree murder of Eggert.

¶26 On January 10, 2000, Murdaugh pled guilty to the

kidnapping, robbery, and first degree murder of Reynolds. On

that same day, he pled guilty to the kidnapping and first degree

murder of Eggert. In the latter case, the State and Murdaugh

agreed that Murdaugh would receive a life sentence for the

murder of Eggert. Murdaugh also acknowledged that his guilty

plea to the Eggert murder constituted a conviction for purposes

of A.R.S. § 13-703(F)(1) or (F)(2) (Supp. 1995) and would be

used as an aggravating factor in the Reynolds case.

¶27 At sentencing, the trial court found that the State

proved the following two aggravating circumstances with respect

to the Reynolds murder: 1) Murdaugh had been convicted of

another offense for which a sentence of life imprisonment or

death was imposable, see id. § 13-703(F)(1); and 2) Murdaugh

committed the murder in an especially heinous, cruel, or

depraved manner, see id. § 13-703(F)(6) (Supp. 1995). The trial

court then found the following eight non-statutory mitigating

- 10 -
circumstances: 1) impairment from the use of crystal

methamphetamine at the time of the offense; 2) impairment from

chronic drug use; 3) personality disorder; 4) paranoid thoughts;

5) impact of the combination of drug use, personality disorder,

and paranoid thoughts on mental abilities; 6) cooperation with

law enforcement; 7) lack of prior criminal convictions; and

8) desire to spare his family and the victim’s family from

trial. The court determined that these mitigating circumstances

were not sufficiently substantial to outweigh the aggravating

circumstances. Therefore, the court sentenced Murdaugh to death

for the first degree murder of Reynolds. The court also

sentenced Murdaugh to twenty-one years for the kidnapping of

Reynolds and fifteen years for the robbery of Reynolds.

III.

¶28 Murdaugh raises two issues on appeal: 1) his plea was

not knowingly made because “he was not informed that he had a

Sixth Amendment right to have a jury determine his sentence;” 2)

a jury could determine that the mitigating circumstances in this

case are sufficiently substantial to call for leniency.

¶29 In addition, Murdaugh’s counsel raised two issues at

oral argument that were raised neither in the trial court nor in

Murdaugh’s brief to this court. Because these issues were

raised for the first time at oral argument, they are waived

absent fundamental error. See State v. Bolton, 182 Ariz. 290,

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297, 896 P.2d 830, 837 (1995) (“On appeal we will consider a

matter not raised below only if it is a matter of fundamental

error.”); State v. Schaaf, 169 Ariz. 323, 327, 819 P.2d 909, 913

(1991) (finding that because a defendant failed to raise in the

trial court either federal or state constitutional claims that

his right to speedy trial was violated, the defendant’s claims

were waived absent fundamental error). An error is fundamental

only if it is “of such dimensions that it cannot be said it is

possible for a defendant to have had a fair trial.” State v.

King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988) (citations

omitted). We first address the new issues that Murdaugh raised

at oral argument.

A.

¶30 Murdaugh initially argued that the delay in this case

constitutes cruel and unusual punishment in violation of the

Eighth Amendment of the United States Constitution. In Lackey

v. Texas, the United States Supreme Court declined to review an

analogous claim, namely, that execution of a defendant after he

spent many years on death row would constitute cruel and unusual

punishment. 514 U.S. 1045, 1045 (1995). With the Court’s

denial of certiorari, Justice Stevens filed a memorandum noting

his belief that this issue should be explored further. Id. As

a result, many defendants have raised these so-called “Lackey

claims.” Lackey claims, however, have found little support in

- 12 -
the courts that have addressed them. E.g., McKenzie v. Day, 57

F.3d 1461, 1466-67 (9th Cir. 1995) (finding that delay in

carrying out executions benefits inmates, allowing them to

extend their lives and perhaps obtain commutations, reversals,

or exoneration); State v. Schackart, 190 Ariz. 238, 259, 947

P.2d 315, 336 (1997) (rejecting defendant’s claim that prolonged

incarceration before execution constitutes cruel and unusual

punishment).

¶31 Murdaugh presented no authority that the delay in his

case, which mostly occurred before sentencing, violates the

Eighth Amendment. Moreover, the record shows that Murdaugh did

not object to the delay, and in fact stipulated to every

continuance of his case. See Schackart, 190 Ariz. at 259, 947

P.2d at 336 (noting that the delays in the defendant’s case were

caused by a variety of circumstances beyond the State’s control,

including numerous requests for continuances by the defendant).

B.

¶32 Murdaugh next argued that he was incompetent to enter

a guilty plea. For the following reasons, we do not agree.

¶33 The acceptance of a guilty plea waives the

constitutionally protected rights to a jury trial and to

confront one’s accusers and the privilege against self-

incrimination. Boykin v. Alabama, 395 U.S. 238, 243 (1969).

Accordingly, the trial court must determine whether the plea was

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entered voluntarily, knowingly, and intelligently and whether

the defendant was competent to enter a plea agreement. Ariz. R.

Crim. P. 17.3; Boykin, 395 U.S. at 243; State v. Djerf, 191

Ariz. 583, 594, ¶ 35, 959 P.2d 1274, 1285 (1998). The court

must also determine whether a sufficient factual basis exists to

support the plea. Ariz. R. Crim. P. 17.3. A trial court’s

determination that a defendant is competent to plead guilty will

be reviewed for abuse of discretion. Djerf, 191 Ariz. at 594, ¶

35, 959 P.2d at 1285 (citing State v. Brewer, 170 Ariz. 486,

495, 826 P.2d 783, 792 (1992)). On review, this court looks for

“reasonable evidence” to support the competency determination.

Id. “Thus, [the court considers] the facts in a light most

favorable to sustaining the trial court’s finding.” State v.

Bishop, 162 Ariz. 103, 104, 781 P.2d 581, 582 (1989) (citing

State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307

(1983)).

¶34 In this case, the trial judge found that Murdaugh was

competent to plead guilty and that there was a sufficient

factual basis to support the plea. The judge questioned

Murdaugh directly about his agreement with the State, and

Murdaugh responded that he understood both the nature and the

consequences of his plea. He also told the judge that he was

not under the influence of alcohol at the time of the plea and

that the drugs he was taking to control anxiety and back pain

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did not impair his ability to understand the plea proceedings.

In addition, Murdaugh stated that his attorney had gone over all

the terms of the plea agreement with him and that he fully

understood the implications of the plea.

¶35 The trial judge did not inquire further into whether

Murdaugh was mentally competent to enter the plea agreement. A

year before the plea proceedings, however, Drs. Sindelar and

Scialli had evaluated Murdaugh’s competency to stand trial.

Relying on the reports prepared by these doctors, the court had

found Murdaugh competent to stand trial. Dr. Potts re-evaluated

Murdaugh approximately four months before he entered into his

plea agreements. Murdaugh’s counsel informed the court that Dr.

Potts did not recommend any further competency evaluation. From

this we can infer that Dr. Potts found Murdaugh competent to

understand the proceedings and assist in his defense. Finally,

neither Murdaugh nor his trial counsel raised any claim, either

during the change of plea or during the sentencing hearing, that

Murdaugh may have been incompetent to plead guilty.

¶36 Viewing this evidence in the light most favorable to

sustaining the trial court’s decision, reasonable evidence

supports the trial court’s finding that Murdaugh was competent

to enter a plea of guilty and that he entered the plea

knowingly, intelligently, and voluntarily.

¶37 Accordingly, we conclude that neither the delay in

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Murdaugh’s proceedings nor his claim of incompetency to plead

guilty rises to the level of fundamental error. Therefore, we

deem both claims to be waived. Bolton, 182 Ariz. 297, 896 P.2d

837.

¶38 We now address the specific issues Murdaugh raised in

his brief. We begin with Murdaugh’s claim that his guilty plea

was not knowingly made because he was not told that “he had a

Sixth Amendment right to have a jury determine his sentence.”

C.

¶39 In 2002, the United States Supreme Court held that

Arizona’s sentencing scheme, which mandated that a judge decide

whether any aggravating factors existed to support the

imposition of the death penalty, violated a defendant’s Sixth

Amendment right to trial by jury. Ring v. Arizona, 536 U.S.

584, 609 (2002) (“Ring II”). In Ring II, the Supreme Court held

that “[c]apital defendants, no less than noncapital defendants .

. . are entitled to a jury determination of any fact on which

the legislature conditions an increase in their maximum

punishment.” Id. at 589.3

¶40 Relying by analogy on Coleman v. McCormick, 874 F.2d

1280 (9th Cir. 1989) (“Coleman II”), Murdaugh argues that his

3
In response to the Ring II decision, the Arizona
legislature amended the capital sentencing scheme so that
sentencing factors in capital cases are now tried before juries.
See 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 1.

- 16 -
tactical decision to plead guilty may have been different had he

known of his right to be sentenced by a jury. He therefore

contends that his guilty plea must be set aside. Murdaugh’s

argument on this point fails for three reasons.

¶41 First, at the time Murdaugh entered into his plea

agreement, there was no Sixth Amendment right to sentencing by

jury. See Ring II, 536 U.S. at 589. But even if there had been

such a right, a jury would have considered the same evidence as

did the trial judge in deciding whether to impose the death

penalty. Consequently, Murdaugh is unable to show how the

subsequent decision by the Supreme Court in Ring II affected his

tactical decision to plead guilty to first degree murder.

¶42 Second, we find Coleman inapposite. In Coleman, the

defendant was sentenced to death under Montana’s mandatory death

penalty statute, which provided that upon conviction for certain

enumerated crimes the judge must impose a sentence of death.

Coleman II, 874 F.2d at 1282 & n.1. On direct appeal, the

Montana Supreme Court declared this statute unconstitutional and

vacated Coleman’s death sentence. State v. Coleman, 579 P.2d

732, 741-42 (Mont. 1978) (“Coleman I”). On remand, Coleman was

again sentenced to death, but under Montana’s revised death

penalty statutes. Coleman II, 874 F.2d at 1285. The revised

sentencing statutes provided that upon conviction, the trial

judge would conduct a separate sentencing hearing at which the

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judge would determine whether any aggravating and mitigating

circumstances existed. Id. If the judge found at least one of

the enumerated aggravating factors and found that “there [were]

no mitigating circumstances sufficiently substantial to call for

leniency,” the judge would be required to impose a sentence of

death. Id. (quoting Mont. Code Ann. § 95-2206.10 (1977)

(current version at Mont. Code Ann. § 46-18-305 (2003))).

¶43 Because the mandatory death penalty scheme was in

place when Coleman was tried, the Ninth Circuit Court of Appeals

reasoned that Coleman’s tactical decisions at trial were aimed

solely at gaining an acquittal, “without even a hint that

evidence in the record would be considered as either mitigating

or aggravating factors.” Id. at 1289. Had Coleman known the

trial judge could later consider evidence presented at trial to

determine his sentence, he may have made different tactical

decisions. Id. The court therefore found that “[t]his due

process violation had a pervasive effect on the composition of

the trial record.” Id.

¶44 No such due process violation occurred here. Ring II

impacted only the identity of the trier of fact at sentencing,

not the process itself. In addition, at the sentencing hearing,

Murdaugh had ample opportunity to present evidence relevant to

the sentencing determination. Thus, the change brought about by

Ring II could not have had any significant impact on Murdaugh’s

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tactical decision to plead guilty. It therefore does not follow

that Murdaugh’s guilty plea must be vacated.

¶45 Third, the fact that there was a change in the law

subsequent to Murdaugh’s guilty plea does not necessarily render

his plea involuntary. In Brady v. United States, 397 U.S. 742

(1970), the Supreme Court rejected a similar claim made in a

habeas proceeding. At the time the defendant in Brady pled

guilty to kidnapping, he faced a maximum penalty of death. Id.

at 744. In his petition for writ of habeas corpus, Brady

alleged that his plea was involuntary because the death penalty

provision of the statute operated to coerce his plea.4 Id.

Brady also alleged that his counsel exerted impermissible

pressure on him, that he was induced by representations with

respect to a reduction of sentence and clemency, and that the

trial judge had not fully complied with Rule 11 of the Federal

Rules of Criminal Procedure. Id. The district court denied

Brady’s petition, finding that “[Brady’s] counsel did not put

impermissible pressure on [Brady] to plead guilty and no

representations were made with respect to a reduced sentence or

clemency.” Id. at 745. The court also found that Brady decided

to plead guilty when he learned his co-defendant had pled guilty

and “not by reason of the statute or because of any acts of the

4
By pleading guilty, Brady avoided a potential death
sentence. Brady, 397 U.S at 743.

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trial judge.” Id. (internal quotations omitted). The Tenth

Circuit Court of Appeals affirmed the denial of Brady’s

petition, finding that the district court’s findings were

supported by substantial evidence and concluding that Brady’s

“plea was voluntarily and knowingly made.” Id.

¶46 Brady filed a petition for certiorari with the Supreme

Court, claiming that because of the Court’s decision in United

States v. Jackson, 390 U.S. 570 (1968), the court of appeals

“was in error.” Brady, 397 U.S. at 745. In Jackson, the Court

held that the death penalty provision of 18 U.S.C. § 1201(a) —

the statute applicable to the charge against Brady — imposed an

impermissible burden on a defendant’s constitutional right to a

jury trial and was therefore unconstitutional. 390 U.S. at 581-

83. Notwithstanding the unconstitutionality of 18 U.S.C. §

1201(a), the Court in Brady rejected Brady’s argument that the

statute operated to coerce his plea, noting instead that his

guilty plea was likely triggered by the confession of his co-

defendant. Brady, 397 U.S. at 749. The Court then stated that

“even if we assume that Brady would not have pleaded guilty

except for the death penalty provision of § 1201(a), this

assumption merely identifies the penalty provision as a ‘but

for’ cause of his plea . . . [but] does not necessarily prove

that the plea was coerced and invalid as an involuntary act.”

Id. at 750. After considering other factors relevant to the

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voluntariness of Brady’s plea — representation by counsel,

understanding of the charges against him, and competency to

plead guilty — the Court held that there is “no requirement in

the Constitution that a defendant must be permitted [to withdraw

his guilty plea] . . . simply because it later develops . . .

that the maximum penalty then assumed applicable has been held

inapplicable in subsequent judicial decisions.” Id. at 757.

¶47 Similarly, nothing in this record indicates that

Murdaugh’s decision to plead guilty was influenced by whether a

judge or a jury would decide if he deserved to be sentenced to

death. Cf. id. (“[A] voluntary plea of guilty intelligently

made in the light of the then applicable law does not become

vulnerable because later judicial decisions indicate that the

plea rested on a faulty premise.”). Thus, Murdaugh’s claim here

is meritless.

¶48 We therefore turn to Murdaugh’s second issue: whether

his death sentence must be vacated and his case remanded for

resentencing in light of Ring II.

D.

¶49 In State v. Ring, 204 Ariz. 534, 552, 555, ¶¶ 44, 53,

65 P.3d 915, 933, 936 (2003) (“Ring III”), this court concluded

that it would examine capital sentences imposed under Arizona’s

superseded sentencing scheme for harmless error. Murdaugh first

urges this court to reconsider Ring III and find that Ring II

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error is fundamental and requires automatic reversal of his

judge-imposed death sentence. See State v. Phillips, 205 Ariz.

145, 149, ¶ 16, 67 P.3d 1228, 1232 (2003) (Jones, C.J.,

dissenting) (“Where a judge, not a jury, determines all

questions pertaining to sentencing, I believe a violation of the

Sixth Amendment to the Constitution of the United States has

occurred.”); Ring III, 204 Ariz. at 565, ¶ 105, 65 P.3d at 946

(Feldman, J., dissenting) (“[T]he denial of a jury in the

sentencing phase is a defect in the fundamental mechanism of the

trial and is therefore structural error.”). Murdaugh argues

that because a right to an impartial jury is a fundamental

right, a denial of jury sentencing is structural error.

¶50 This court has repeatedly rejected similar arguments

and held that Ring II error is procedural error subject to

harmless error analysis. E.g., State v. Dann, 206 Ariz. 371,

373, ¶ 5, 79 P.3d 58, 60 (2003); State v. Montaño, 206 Ariz.

296, 297, ¶ 3, 77 P.3d 1246, 1247 (2003); State v. Sansing, 206

Ariz. 232, 235, ¶ 5, 77 P.3d 30, 33 (2003), cert. denied, 124 S.

Ct. 2906 (2004); Ring III, 204 Ariz. at 552, 555, ¶¶ 44, 53, 65

P.3d at 933, 936; State v. Towery, 204 Ariz. 386, 390-91, ¶¶ 12-

13, 64 P.3d 828, 832-33 (2003); accord Schriro v. Summerlin, 124

S. Ct. 2519, 2523 (2004) (finding that the right to jury

sentencing is a procedural, not substantive, right). We thus

review Murdaugh’s sentencing for harmless error.

- 22 -
¶51 When “a defendant stipulates, confesses or admits to

facts sufficient to establish an aggravating circumstance, [the

court] will regard that factor as established.” Ring III, 204

Ariz. at 563, ¶ 93, 65 P.3d at 944. On the other hand, “when a

defendant simply fails to challenge an aggravating circumstance

at the penalty phase, the state retains the burden of proving

the aggravator’s existence beyond a reasonable doubt.” Id. at ¶

94. The harmless error inquiry, therefore, focuses on whether

the state has met its burden. Id. If the court concludes that

the state has not met its burden, the case must be remanded for

resentencing. Id.

1.

¶52 At the sentencing hearing, Murdaugh did not challenge

the State’s evidence relating to the following two aggravating

circumstances: 1) Murdaugh had been convicted of another

offense for which a sentence of life imprisonment or death was

imposable, see A.R.S. § 13-703(F)(1); and 2) Murdaugh committed

the murder in an especially heinous, cruel, or depraved manner,

see id. § 13-703(F)(6). And on appeal, he does not contest the

trial court’s findings relating to these circumstances.

Instead, he contends that “[t]his Court cannot conclude, beyond

a reasonable doubt, that no jury would determine that the

mitigating circumstances (and the others that could have been

found) were sufficiently substantial to call for leniency.”

- 23 -
Because Murdaugh fails to challenge any of the aggravating

circumstances, we focus our inquiry on whether the State met its

burden of proving the two aggravating factors beyond a

reasonable doubt. Ring III, 204 Ariz. at 563, ¶ 94, 65 P.3d at

944.

a.

¶53 Under Arizona law, there are two aggravating

circumstances for prior criminal convictions, A.R.S. § 13-

703(F)(1) and (F)(2). Section 13-703(F)(1) applies when “[t]he

defendant has been convicted of another offense in the United

States for which under Arizona law a sentence of life

imprisonment or death was imposable.” Section 13-703(F)(2)

applies when “[t]he defendant has been or was previously

convicted of a serious offense, whether preparatory or

completed.” In Murdaugh’s case, the trial judge found that the

State proved the (F)(1) aggravator beyond a reasonable doubt.

¶54 Both the (F)(1) and (F)(2) factors fall outside the

Ring II rule because they involve a legal determination that may

be made by a judge, rather than a factual determination required

to be made by a jury. Ring III, 204 Ariz. at 558, ¶ 64, 65 P.3d

at 939; see Almendarez-Torres v. United States, 523 U.S. 224,

226-27 (1998) (finding that a judge can consider prior

convictions to enhance a penalty beyond that authorized by the

facts established by the jury’s verdict). Therefore, this court

- 24 -
will not reverse the trial judge’s finding of the (F)(1)

aggravator unless there is no reasonable basis for the ruling.

See Phillips, 205 Ariz. at 147, ¶ 5, 67 P.3d at 1230 (noting

that “[i]n Ring III, we held ‘that the Sixth Amendment does not

require a jury to determine prior convictions under sections 13-

703[(F)(1)] and [(F)(2)]’” (quoting Ring III, 204 Ariz. at 556-

57, ¶ 55, 65 P.3d at 936-37)).

¶55 On the same day Murdaugh pled guilty to the first

degree murder and kidnapping of Reynolds, he also pled guilty to

the first degree murder and kidnapping of Eggert. And, as

mentioned above, Murdaugh acknowledged that his conviction for

the Eggert murder would be used as an aggravating factor in the

Reynolds case under either A.R.S. § 13-703(F)(1) or (F)(2).

Consequently, a reasonable basis exists for the trial court’s

finding that Murdaugh had a prior conviction for an offense in

which a sentence of life or death could be imposed. Therefore,

no Ring II error occurred with respect to the (F)(1) aggravator.

b.

¶56 The trial court also found that the murder was

committed in an especially heinous, cruel, or depraved manner.

See A.R.S. § 13-703(F)(6) (providing that the (F)(6) aggravator

is established if the court finds that the murder was committed

in either an especially heinous, cruel, or depraved manner).

Under Ring II, determination of the existence of the (F)(6)

- 25 -
aggravator by a judge constitutes reversible error unless this

court determines beyond a reasonable doubt that such error is

harmless. State v. Jones, 205 Ariz. 445, 448, ¶ 10, 72 P.3d

1264, 1267 (2003) (citing Ring III, 204 Ariz. at 552-55, ¶¶ 44-

53, 65 P.3d at 933-36). “To determine if it was harmless error

for a trial judge, instead of a jury, to find an F(6)

aggravator, we must find beyond a reasonable doubt that no

reasonable jury could have come to a different conclusion than

[did] the trial judge.” Id. (citing State v. Tucker, 205 Ariz.

157, 167, ¶ 55, 68 P.3d 110, 120 (2003)).

¶57 To establish the existence of the (F)(6) aggravator,

the state need prove only one of the heinous, cruel, or depraved

elements. State v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10

(1983). “Especially cruel” refers to the mental anguish or

physical pain suffered by the victim before death. Sansing, 206

Ariz. at 235, ¶ 6, 77 P.3d at 33 (citing State v. Trostle, 191

Ariz. 4, 18, 951 P.2d 869, 883 (1997)); Djerf, 191 Ariz. at 595,

¶ 45, 959 P.2d at 1286. “Heinousness or depravity” refers to

the “mental state and attitude of the perpetrator as reflected

in his words and actions.” Sansing, 206 Ariz. at 235, ¶ 6, 77

P.3d at 33 (quoting State v. Clark, 126 Ariz. 428, 436, 616 P.2d

888, 896 (1980)).

¶58 Because the overwhelming and uncontested evidence

establishes beyond a reasonable doubt that Reynolds’ murder was

- 26 -
committed in an especially heinous and depraved manner, we need

only address those elements. See Gretzler, 135 Ariz. at 51, 659

P.2d at 10.

¶59 The term “heinous or depraved” is used to describe the

defendant’s state of mind. Sansing, 206 Ariz. at 237, ¶ 17, 77

P.3d at 35 (citing State v. Ceja, 126 Ariz. 35, 39, 612 P.2d

491, 495 (1980)). The court looks to a defendant’s words and

actions at or near the time of the offense to determine a

defendant’s state of mind. State v. Martinez-Villareal, 145

Ariz. 441, 451, 702 P.2d 670, 680 (1985). The term heinous has

been defined by this court as “hatefully or shockingly evil:

grossly bad.” State v. Knapp, 114 Ariz. 531, 543, 562 P.2d 704,

716 (1977) (quoting Webster’s Third New International

Dictionary). Depraved means “marked by debasement, corruption,

perversion or deterioration.” Id. (quoting Webster’s Third New

International Dictionary). To determine whether an act is

especially heinous or depraved, the court must consider the

following five factors: 1) whether the defendant relished the

murder; 2) whether the defendant inflicted gratuitous violence

on the victim; 3) whether the defendant needlessly mutilated the

victim; 4) the senselessness of the crime; and 5) the

helplessness of the victim. Sansing, 206 Ariz. at 237, ¶ 17, 77

P.3d at 35 (citing Gretzler, 135 Ariz. at 52, 659 P.2d at 11).

Not all of these factors must be present in order to find that a

- 27 -
killing was especially heinous or depraved. State v. Medrano,

173 Ariz. 393, 397-98, 844 P.2d 560, 564-65 (1992).

¶60 The trial court found that the State established

beyond a reasonable doubt that Murdaugh relished the murder, he

mutilated the victim, the murder was senseless, and the victim

was helpless.

¶61 The first factor, that a defendant relishes the

murder, “refers to the defendant’s actions or words that show

debasement or perversion.” State v. Roscoe, 184 Ariz. 484, 500,

910 P.2d 635, 651 (1996). To establish relishing, we usually

“require that the defendant say or do something, other than the

commission of the crime itself, to show he savored the murder.”

Id.; accord State v. Doerr, 193 Ariz. 56, 67-68, ¶ 54, 969 P.2d

1168, 1179-80 (1998) (finding that defendant relished murder

after defendant bragged to his cellmate about playing with the

victim’s blood); State v. Detrick, 188 Ariz. 57, 68, 932 P.2d

1328, 1339 (1997) (finding that defendant relished murder and

demonstrated an “abhorrent lack of regard for human life” based

on defendant’s statement to his co-defendant, “It’s dead, but

it’s warm. Do you want a shot at it?”); State v. Jackson, 186

Ariz. 20, 30, 918 P.2d 1038, 1048 (1996) (describing how

defendant sang a rap song both immediately after killing his

victim and then after showing a picture of the victim’s children

to his co-defendant); see Clark, 126 Ariz. at 437, 616 P.2d at

- 28 -
897 (finding depravity when defendant kept a souvenir of his

crime).

¶62 The trial court found that the “circumstances and

manner of killing” indicate that Murdaugh relished the murder of

Reynolds. The court concluded that Murdaugh reveled in the idea

of meting out his own justice and enjoyed the spectacle it

created in front of his friends. The court also found that

Murdaugh’s decision to place Reynolds in the trunk and keep him

captive overnight indicated that Murdaugh enjoyed the emotional

toll that waiting had on Reynolds. We conclude, however, that

the record does not contain sufficient evidence that Murdaugh

said or did anything, beyond the commission of the crime itself,

that manifests that he savored the murder. Consequently,

whether Murdaugh relished the murder was not proven beyond a

reasonable doubt.

¶63 Next, the trial court found that Murdaugh needlessly

mutilated Reynolds’ body. “Mutilation is an act distinct from

the killing itself that includes the purposeful severing of body

parts.” Doerr, 193 Ariz. at 68, ¶ 55, 969 P.2d at 1180.

Mutilation after death reflects a “mental state that is ‘marked

by debasement.’” State v. Vickers, 129 Ariz. 506, 515, 633 P.2d

315, 324 (1981). And, “[mutilation] alone supports the finding

of heinousness or depravity.” State v. Spencer, 176 Ariz. 36,

44, 859 P.2d 146, 154 (1993).

- 29 -
¶64 In this case, Murdaugh admitted in his confession to

Detective Griffiths that he cut off Reynolds’ head and hands,

removed Reynolds’ finger pads from his hands, and pulled all the

teeth from his head to prevent identification of his body. In

addition, Murdaugh told Detective Griffiths that he threw the

teeth and finger pads out the window of his truck and buried

Reynolds’ head and hands in one shallow grave, and his torso in

another. Indeed, when Reynolds’ body was discovered by the

Yavapai County Sheriff’s Office, Reynolds’ head and hands had

been removed from his body; his body was buried in one location

and his head and hands in another. We conclude beyond a

reasonable doubt that Murdaugh’s extensive and needless

mutilation of his victim demonstrates depravity. See State v.

Pandeli, 204 Ariz. 569, 572, ¶ 8, 65 P.3d 950, 953 (2003)

(finding that “[p]ost-mortem mutilation indicates a mental state

that is marked by debasement” (internal quotations omitted));

State v. James, 141 Ariz. 141, 147, 685 P.2d 1293, 1299 (1984)

(finding that “[t]he mode of disposing of the body itself

demonstrates a certain callousness and depravity and disregard

for the victim’s family who might never have learned of the fate

of [the victim]” (internal quotations omitted)).

¶65 The trial court also found that the murder was

senseless. “A murder is senseless when it is unnecessary for

- 30 -
the defendant to achieve his objective.” State v. Prince, 206

Ariz. 24, 27, ¶ 10, 75 P.3d 114, 117 (2003) (quoting State v.

Hyde, 186 Ariz. 252, 281, 921 P.2d 655, 684 (1996)). When

Murdaugh directed Rohrs to get Reynolds to the house, his

original intention was allegedly to teach Reynolds a lesson by

breaking his jaw. As noted by the trial court, this could have

been accomplished with one blow to Reynolds’ head. Murdering

Reynolds was not necessary to achieve Murdaugh’s stated goal of

teaching Reynolds a lesson. We thus conclude beyond a

reasonable doubt that the killing was senseless.

¶66 Finally, the trial judge found that Reynolds was

helpless. When Murdaugh and Dezarn entered the house, they were

both armed. Reynolds was unarmed and outnumbered. He sat on

the couch as Murdaugh yelled at him and watched as Murdaugh went

through his personal belongings. Reynolds was unable to resist

when Murdaugh and Dezarn marched him from the house to the

garage — he was flanked on either side by an armed captor.

Because the uncontroverted evidence established that Reynolds

was helpless and did what he was told by his armed captors,

Reynolds unquestionably was a helpless victim.

¶67 Senselessness and helplessness do not by themselves

establish that the crime was heinous or depraved unless the

state establishes additional circumstances that separate the

crime from the “norm” of first degree murders. Gretzler, 135

- 31 -
Ariz. at 52-53, 659 P.2d at 11-12. In this case, not only did

the State prove that the crime was senseless and that the victim

was helpless, it also proved with uncontested evidence that the

victim’s body was mutilated. As noted above, mutilation by

itself will establish the elements of heinousness or depravity.

Spencer, 176 Ariz. at 44, 859 P.2d at 154. Consequently, we

find beyond a reasonable doubt that the State established the

(F)(6) aggravator and that no rational jury would have found

differently.

¶68 Because the F(1) aggravating circumstance falls

outside the Ring II rule, and the Ring II error with respect to

F(6) circumstance was harmless beyond a reasonable doubt,

Murdaugh’s death penalty must stand unless a rational jury

“would determine that the mitigating circumstances were

sufficiently substantial to call for leniency.” Ring III, 204

Ariz. at 565, ¶ 104, 65 P.3d at 945. We therefore shift our

focus to whether reversible error occurred with respect to the

mitigating circumstances. Dann, 206 Ariz. at 374, ¶ 12, 79 P.3d

at 61.

2.

¶69 Murdaugh objected to the introduction of any

mitigation on his behalf. Nevertheless, Murdaugh’s trial

attorney filed a sentencing memorandum, explaining that he was

ethically bound to argue for life and against death. The trial

- 32 -
court also reasoned that it must consider mitigation and that

the State, as an officer of the court, could be compelled to

present such mitigation. As a result, the court placed the

burden on the State and ordered it to present mitigating

evidence.5

a.

¶70 In Arizona, although either the state or the defendant

may present evidence of mitigation, it is the defendant who

bears the burden of proving mitigating circumstances by a

preponderance of the evidence. A.R.S. § 13-703(C) (Supp. 1995).

A defendant may waive the presentation of mitigation if he is

legally competent to do so. See State v. Kayer, 194 Ariz. 423,

436-37, ¶¶ 44-47, 984 P.2d 31, 44-45 (1999) (finding that a

competent defendant may refuse to cooperate with the court-

appointed mitigation specialist (citing Blystone v.

Pennsylvania, 494 U.S. 299, 306 & n.4 (1990) (finding that no

constitutional violation occurred when a defendant was allowed

to waive all mitigation evidence after repeated warnings from

the judge and advice from counsel))); State v. Van Adams, 194

Ariz. 408, 422, ¶ 51, 984 P.2d 16, 30 (1999) (upholding death

sentence of defendant who waived mitigation, instructed his

5
Neither party raised the issue of whether the trial court
erred by ordering the State to assume this burden.
Consequently, we will not address the propriety of the trial
court’s order.

- 33 -
counsel not to present mitigating evidence, and instructed his

family not to cooperate with his counsel’s efforts to

investigate his background for purposes of presenting

mitigation); State v. Roscoe, 184 Ariz. at 498, 910 P.2d at 649

(upholding trial court’s grant of defendant’s pro se motion to

exclude certain portions of competency evaluation and noting

that defendant was competent to seek such exclusion without

counsel). For this court to deem a decision to waive mitigation

competent, the decision must be made voluntarily, knowingly, and

intelligently. See Djerf, 191 Ariz. at 591, ¶ 21, 594, ¶ 35,

959 P.2d at 1282, 1285 (holding that the waiver of a

constitutionally protected right must be made voluntarily,

knowingly, and intelligently).

¶71 The trial court found that Murdaugh’s decision to

waive the presentation of mitigating evidence was voluntary,

knowing, and intelligent. The court also found that Murdaugh

was competent to waive mitigation. Murdaugh does not contest

either of these findings. Consequently, we are left to decide

whether “no reasonable jury could find that the mitigation

evidence adduced during the penalty phase is ‘sufficiently

substantial to call for leniency.’” Ring III, 204 Ariz. at 563,

¶ 93, 65 P.3d at 944 (quoting A.R.S. § 13-703(E) (Supp. 2003)).

b.

- 34 -
¶72 In his sentencing memorandum, Murdaugh’s attorney

raised one mitigating factor — that Murdaugh’s ability to

appreciate the wrongfulness of his conduct was impaired by

methamphetamine use, but not so impaired as to constitute a

defense to the crime. See A.R.S. § 13-703(G)(1) (Supp. 1995).

Counsel also argued generally that the trial court was bound to

consider all factors presented in mitigation, regardless of

whether they constituted statutory mitigation.

¶73 The trial court noted that some evidence supported a

finding of the statutory mitigating factor under A.R.S. § 13-

703(G)(1), but found that this factor had not been proven by a

preponderance of the evidence.6 Section (G)(1) provides that if

“[t]he defendant’s capacity to appreciate the wrongfulness of

his conduct or to conform his conduct to the requirements of law

was significantly impaired, but not so impaired as to constitute

a defense to prosecution,” the court shall consider the

diminished capacity as a mitigating circumstance. “Drug

impairment can be a statutory mitigating circumstance if ‘[t]he

defendant’s capacity to appreciate the wrongfulness of his

conduct or to conform his conduct to the requirements of [the]

law was significantly impaired, but not so impaired as to

6
We note that no reasonable jury could find the existence of
the other statutory mitigating factors under A.R.S. § 13-
703(G)(2) (substantial duress), (G)(3) (minor participant),
(G)(4) (lack of forseeability), or (G)(5) (defendant’s age).

- 35 -
constitute a defense to prosecution.’” Sansing, 206 Ariz. at

239, ¶ 26, 77 P.3d at 37 (first alteration and emphasis in

original) (quoting A.R.S. § 13-703(G)(1)).

¶74 Generally, drug ingestion or intoxication are

insufficient to establish the (G)(1) mitigating circumstance.

Id. (citing State v. Jones, 188 Ariz. 388, 400, 937 P.2d 310,

322 (1997); State v. Jordan, 126 Ariz. 283, 290, 614 P.2d 825,

832 (1980)). Instead, the defendant must establish a causal

nexus between the drug use and the offense, typically through

the presentation of an expert witness. Id. (citing State v.

Medina, 193 Ariz. 504, 516, ¶ 50, 975 P.2d 94, 106 (1999); State

v. Ramirez, 178 Ariz. 116, 131, 871 P.2d 237, 252 (1994); State

v. Stevens, 158 Ariz. 595, 599, 764 P.2d 724, 728 (1988); State

v. Graham, 135 Ariz. 209, 213, 660 P.2d 460, 464 (1983);

Gretzler, 135 Ariz. at 57-58, 659 P.2d at 16-17). But “a

defendant’s claim of alcohol or drug impairment fails when there

is evidence that the defendant took steps to avoid prosecution

shortly after the murder, or when it appears that intoxication

did not overwhelm the defendant’s ability to control his

physical behavior.” Id. (quoting State v. Rienhardt, 190 Ariz.

579, 591-92, 951 P.2d 454, 466-67 (1997)).

¶75 Here, the trial court observed that Murdaugh evinced

various paranoid thoughts. The major feature of that paranoia

- 36 -
was the belief that the government had placed a tracking device

in his head. The court concluded that when viewed in light of

Murdaugh’s long history of methamphetamine use, such paranoid

delusions were likely secondary to Murdaugh’s chronic drug use.

In addition, Dr. Gina Lang, whom the State called during the

sentencing hearing, testified that Murdaugh suffered from a

personality disorder and that his methamphetamine use may have

amplified the antisocial tendencies of this disorder.

¶76 On the other hand, the court stated that Murdaugh’s

paranoid delusion about a perceived threat from the government

was not the impetus for his kidnapping and murder of Reynolds.

Moreover, “[t]he industry and thought, manifested over an

extended period of time, which went into the murder of David

Reynolds belies a finding that [Murdaugh] was significantly

impaired.” The court found that this clarity of thought was

further demonstrated by the actions Murdaugh took after he

injured himself while cleaning his horse’s hooves. Murdaugh had

the presence of mind to seek treatment at the nearest hospital

for the injury to his leg. Consequently, the court concluded

that the record did not establish by a preponderance of the

evidence that Murdaugh’s capacity to appreciate the wrongfulness

of his conduct or to conform his conduct to the requirements of

the law was significantly impaired.

¶77 Further, uncontroverted evidence in the record reveals

- 37 -
that Murdaugh took steps to avoid detection. First, during the

kidnapping, he attempted to remove all fingerprints from

Reynolds’ van and to dispose of the van. Second, after the

murder, he ordered Rohrs to clean up the blood in his garage.

Third, he took Reynolds’ body into the forest where he

dismembered it in an effort to keep authorities from identifying

the body. Fourth, when he discovered that the authorities were

tracking the calls he made from Reynolds’ cell phone, Murdaugh

destroyed the phone and disposed of the pieces.

¶78 Finally, because Murdaugh elected to waive mitigation,

he did not present any expert testimony to establish that his

ability to control his behavior or appreciate the wrongfulness

of his conduct was significantly impaired. As a result, he

failed to establish a causal connection between his

methamphetamine use and his actions. See State v. Nordstrom,

206 Ariz. 242, 248, ¶¶ 26-27, 77 P.3d 40, 46 (2003) (recognizing

that although the evidence of a causal connection presented by

Nordstrom was not compelling, because he presented expert

testimony, this court could not conclude beyond a reasonable

doubt that a jury would not have weighed the evidence

differently than did the trial judge (citing Sansing, 206 Ariz.

at 239, ¶ 26, 77 P.3d at 37 (“Typically, in those cases in which

a defendant established statutory impairment, the defendant

presented an expert witness.”))).

- 38 -
¶79 Because of the complete lack of evidence of a causal

connection between Murdaugh’s drug use and the murder, we

conclude beyond a reasonable doubt that no rational jury would

have found that Murdaugh established the (G)(1) mitigating

circumstance. This conclusion is bolstered by the undisputed

evidence that Murdaugh made numerous efforts to avoid detection.

We next examine the additional non-statutory mitigating

circumstances found by the trial court.

c.

¶80 A trial court is not limited to the consideration of

only statutory mitigating circumstances, but instead must

consider all relevant evidence offered in mitigation. A.R.S. §

13-703(G). As mentioned above, see ¶ 27, the trial court did

find eight non-statutory mitigating circumstances. The trial

court did not give these factors much weight and determined that

the mitigating circumstances were not sufficiently substantial

to outweigh the aggravating circumstances. Therefore, we must

determine whether a jury could have weighed these mitigating

factors differently than did the trial judge. Ring III, 204

Ariz. at 563, ¶ 93, 65 P.3d at 944.

¶81 The trial court first found that the evidence

proffered in support of the (G)(1) mitigating circumstance also

supported a finding of the following non-statutory mitigating

circumstances: 1) impairment from the use of crystal

- 39 -
methamphetamine at the time of the offense; 2) impairment from

chronic drug use; 3) personality disorder; 4) paranoid thoughts;

and 5) potential impact of all four on Murdaugh’s mental

abilities. Nonetheless, the court accorded these factors little

weight.

¶82 The reports prepared by Drs. Sindelar, Potts, and

Scialli do reveal that Murdaugh experienced certain paranoid

thoughts and delusions that were likely exacerbated by his

history of chronic methamphetamine use. But because no mental

health professional found a causal nexus between these

conditions and the murders, see ¶¶ 73, 77-78, we find beyond a

reasonable doubt that no rational jury would have weighed these

factors any differently than did the trial judge.

¶83 Second, the trial court found evidence of the

following additional non-statutory mitigation: cooperation with

law enforcement; lack of prior criminal convictions; and desire

to spare his family and victim’s family from trial. We examine

each of these findings in turn.

¶84 The trial court concluded that Murdaugh’s cooperation

with law enforcement was a mitigating circumstance, but the

court did not give that circumstance much weight. Murdaugh did

agree to voluntarily answer questions when he was approached by

Detective Griffiths at the hospital. Before he answered any

questions, however, Murdaugh first asked whether his garage had

- 40 -
been cleaned. Detective Griffiths responded that it had not

been cleaned, to which Murdaugh replied that they “had enough to

do [him] in.” Murdaugh then described the events surrounding

Reynolds’ murder. Murdaugh also provided Detective Griffiths

with a detailed map and directions to his campsite and to where

he buried Reynolds’ body and personal effects. From this

sequence of events, it is clear that Murdaugh’s cooperation came

only after he learned that Rohrs had not cleaned up the garage.

We therefore conclude that no reasonable jury would have given

Murdaugh’s cooperation more weight than did the trial court.

¶85 The trial court next found that Murdaugh’s lack of

prior criminal history was a mitigating circumstance, but the

court did not place much weight on this factor. Similarly, in

light of the nature and strength of the aggravating factors, we

find that a jury hearing such evidence would not place more than

minimal weight on this mitigating circumstance.

¶86 The trial court also found that Murdaugh’s desire to

spare his family and the victim’s family from the pain of a

trial was a mitigating circumstance. Murdaugh admitted his

guilt and told Dr. Potts that he did not wish to put his family

through the pain of a trial. The trial court gave “this factor

little weight.” We agree with the trial court and conclude

beyond a reasonable doubt that a rational jury would have placed

minimal weight on this circumstance.

- 41 -
 d.

¶87 In addition to the findings of the trial court,

Murdaugh asserts that a jury could find other mitigating

circumstances that might impact its determination of whether the

mitigating circumstances are sufficiently substantial to call

for leniency. See Prince, 206 Ariz. at 28, ¶ 14, 75 P.3d at

118. Specifically, Murdaugh argues that a jury could find the

following additional mitigating circumstances: Murdaugh offered

Reynolds food; Murdaugh offered to give Reynolds a pillow while

he was in the trunk of the car; Murdaugh opened the trunk lid

when Reynolds complained that he was claustrophobic; and

Murdaugh initiated the kidnapping scheme out his “perceived need

to protect” Rohrs. The record, however, provides little support

for these proffered mitigating circumstances.

¶88 First, the record contains only one vague suggestion

that Murdaugh offered Reynolds food. Gross testified that

Dezarn and Murdaugh ate their dinner in the living room but did

not offer Reynolds any food. Although Rohrs initially testified

that no one offered Reynolds food, she later stated that she

vaguely recalled that Murdaugh offered Reynolds a sandwich.

Dezarn, on the other hand, testified that he and Murdaugh did

not eat until after they placed Reynolds in the trunk of the car

in the garage. Because there is so little evidence on this

point, we find it inconceivable that a jury would accord this

- 42 -
evidence much weight, particularly in light of the aggravating

circumstances.

¶89 Second, no evidence in the record supports Murdaugh’s

claim that he offered Reynolds a pillow. Third, the record

provides little support for the claim that Murdaugh opened the

trunk to alleviate Reynolds’ claustrophobia. Dezarn testified

that when Reynolds complained that he was claustrophobic,

Murdaugh opened the trunk, but only for ten to fifteen minutes.7

Although a jury could find that Murdaugh in fact opened the

trunk for fifteen minutes, in view of the nine hours Reynolds

spent locked in the trunk, we conclude that no reasonable jury

would accord the evidence more than minimal weight.

¶90 Fourth, Murdaugh’s claim that he needed to protect

Rohrs is refuted by the record. Although the record reflects

that Murdaugh’s initial goal was to teach Reynolds a lesson for

offending Rohrs, as the night progressed, Murdaugh’s actions

went far beyond that stated goal. As explained by the trial

court, it was not necessary for Murdaugh to kill Reynolds to

accomplish his goal. No reasonable jury would find that

Murdaugh’s professed goal of protecting Rohrs mitigated his

ultimate actions.

7
Other witnesses testified that when Reynolds knocked on the
trunk, he was told to be quiet and was left in the trunk with
the lid closed.

- 43 -
 e.

¶91 The unchallenged evidence in this case leaves no

question that Murdaugh murdered Reynolds in an especially

heinous and depraved manner and that he had a prior conviction

for which he received a life sentence. The circumstances of

this murder, coupled with Murdaugh’s mutilation of Reynolds’

body, “clearly sets [this murder] apart from the norm of first

degree murders.” Sansing, 206 Ariz. at 241, ¶ 38, 77 P.3d at

39. Moreover, the mitigating evidence is so minimal that we

conclude beyond a reasonable doubt that a jury would not have

weighed the evidence of mitigation differently than did the

trial judge. Thus, we hold that any Ring II error was harmless.

IV.

¶92 For the foregoing reasons, we affirm Murdaugh’s

convictions and death sentence.

__________________________________
Michael D. Ryan, Justice

CONCURRING:

_________________________________________
Charles E. Jones, Chief Justice

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_________________________________________
Ruth V. McGregor, Vice Chief Justice

_________________________________________
Philip G. Espinosa, Judge*

B E R C H, Justice, concurring in part and dissenting in part

¶93 I concur in that portion of the opinion affirming

Murdaugh’s convictions. Op. ¶¶ 28-47. I part ways with my

colleagues, however, on the issue of sentencing.

¶94 In Ring v. Arizona, 536 U.S. 584, 589 (2002) (Ring

II), the Supreme Court held that, in capital sentencing

proceedings, “any fact on which the legislature conditions an

increase” in punishment must be tried by a jury. The import of

the case is that juries must decide fact questions that bear on

sentencing unless, beyond a reasonable doubt, the questions

cannot reasonably be resolved other than as the trial judge

resolved them. State v. Ring, 204 Ariz. 534, 560, ¶ 79, 65 P.3d

915, 941 (2003) (Ring III) (requiring proof beyond a reasonable

doubt); State v. Pandeli, 204 Ariz. 569, 572, ¶ 9, 65 P.3d 950,

953 (2003); see also Blakely v. Washington, 124 S. Ct. 2531

(2004).

¶95 On review of Ring’s sentence on remand in that case,

this court held that the imposition of aggravating factors was

subject to review for harmless error. Ring III, 204 Ariz. at

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555, ¶ 53, 65 P.3d at 936. We have conducted harmless error

reviews even in those cases in which the defendant has pled

guilty and hence arguably agreed to be sentenced by the court.

See, e.g., State v. Sansing, 206 Ariz. 232, 234-35, ¶¶ 1-3, 77

P.3d 30, 32-33 (2003); A.R.S. § 13-703.01(A) (Supp. 1995)

(requiring independent review of trial court’s findings of

aggravating and mitigating circumstances). We do so to ensure

that the state has carried its burden of proving the existence

of the aggravating factors beyond a reasonable doubt. Ring III,

204 Ariz. at 563, ¶ 94, 65 P.3d at 944.

¶96 In amending Arizona’s sentencing statute to comport

with the Ring II mandate, the legislature extended the

requirement of jury findings to cover all sentencing factors —

that is, to include mitigating circumstances as well as

aggravating circumstances. See 2002 Ariz. Sess. Laws, 5th Spec.

Sess., ch. 1, § 1 (codified at A.R.S. § 13-703). The fair

import of these authorities is that questions of fact that bear

on sentencing must be decided by the jury.

¶97 Soon after the passage of Arizona’s new sentencing

statute, this court applied the new provisions, remanding for

resentencing a case involving aggravating factors very similar

to the ones at issue in this case. Pandeli, 204 Ariz. at 572,

¶¶ 10-11, 65 P.3d at 953. In Pandeli, after affirming the

(F)(2) factor and finding the evidence of the mutilation

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component of the (F)(6) factor “overwhelming and essentially

uncontroverted,”8 we nonetheless concluded that a jury’s

“different finding of mitigating circumstances could affect the

determination whether the mitigating circumstances are

‘sufficiently substantial to call for leniency.’” Id. ¶ 10. We

therefore reversed and remanded that case for resentencing. The

same result should occur in Murdaugh’s case.

¶98 Murdaugh pled guilty and stipulated to certain facts

that we may accept as established for purposes of the guilt

phase of this case. See Sansing, 206 Ariz. at 234, 235, ¶¶ 1,

8, 77 P.3d at 32, 33. Nonetheless, we must analyze whether the

State has met its burden of proving the aggravating factors so

conclusively that no reasonable jury could have decided them

other than as the trial judge did. Ring III, 204 Ariz. at 563,

¶ 93, 65 P.3d at 944. We cannot merely decide that we would

have ruled as the trial judge did or that the evidence supports

the trial judge’s determinations; instead we must be satisfied

that no reasonable jury could decide the matter otherwise. See

id. I do not have that level of comfort with the judicial fact-

finding in this case.

¶99 I agree with my colleagues that the State has

established that Murdaugh committed an offense for which a

8
The defendant cut off the victim’s nipples. Pandeli, 204
Ariz. at 572, ¶ 9, 65 P.3d at 953.

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sentence of life imprisonment or death was imposable. See Op.

¶ 54; A.R.S. § 13-703(F)(1). I have concerns, however, with

respect to the § 13-703(F)(6) “heinous, cruel or depraved”

aggravating factor.

¶100 As the majority opinion correctly notes, see Op. ¶¶

58-59, the heinous and depraved elements of this aggravating

factor turn on the defendant’s mental state, as it might be

evidenced by the “Gretzler” factors.9 State v. Gretzler, 135

Ariz. 42, 52, 659 P.2d 1, 11 (1983). In a case with similar

facts on this issue, we concluded that given the defendant’s

history of paranoia and personality disorder, a jury might

decide that the defendant’s mental state precluded him from

forming the required intent. State v. Moody, ___ Ariz. ___,

___, ¶ 231, 94 P.3d 1119, 1168 (2004). The same situation

appertains in this case. There was substantial evidence that

Murdaugh was a mental mess. Indeed, the trial judge found that

Murdaugh was a chronic drug abuser who was specifically impaired

by crystal meth at the time of the murder. Op. ¶ 27. The judge

also found as mitigating factors that Murdaugh suffered from a

personality disorder and paranoid thoughts that affected his

mental abilities. Id. A jury might find these circumstances

9
Because the majority finds the “heinous or depraved”
elements unequivocally established, the opinion does not analyze
the “cruelty” element. Op. ¶¶ 57-59. For that reason, this
dissent will not address that element.

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more important than the judge did in deciding the (F)(6) issue.

We cannot know. This possibility alone requires that the

sentencing in this case be remanded to a jury.

¶101 Although the trial court found the element of

“relishing” the murder, this court concluded that the State

failed to prove that factor beyond a reasonable doubt. Op.

¶ 61. I agree.

¶102 A reasonable jury might also conclude that the State

has not proved beyond a reasonable doubt that the manner of

killing, a blow or blows to the victim’s head, was sufficiently

out of the norm of first degree murders to warrant a finding of

heinousness. If it could reasonably do so, we would defer to

that finding. A jury should be given the opportunity to decide

the question.

¶103 The mutilation of the victim’s body is the clearest of

the Gretzler factors and the one on which the majority relies to

establish heinousness or depravity.10 Op. ¶¶ 62-63. While

Murdaugh clearly did mutilate the victim’s body, his reason for

doing so was not to debase or insult the victim, but rather to

avoid detection. That being the case, the jury might conclude

that it was not “needless.” Op. ¶ 64. But even if the jury did

10
As the opinion correctly notes, a finding of mutilation
will by itself support a finding of heinousness or depravity.
Op. ¶ 62 (citing State v. Spencer, 176 Ariz. 36, 44, 859 P.2d
146, 154 (1993)).

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find the mutilation factor, as it likely will, it might weigh

that factor differently than the trial judge did.

¶104 The court concludes, beyond a reasonable doubt, that

the murder was “senseless.” Op. ¶ 64 (citing State v. Hyde, 186

Ariz. 252, 281, 921 P.2d 655, 684 (1996)). While I agree that

most jurors probably would also find the murder senseless, I

cannot say that this court would necessarily reverse the verdict

of a jury that found this murder not to have been more senseless

than other first degree murders. This is a fact question that a

jury should decide.

¶105 Fact questions also exist regarding the “helplessness”

consideration. While again I would certainly affirm a jury

verdict that finds the victim to have been helpless, I cannot

say beyond a reasonable doubt that a jury would be unreasonable

in finding the victim not to have been especially helpless — or

so helpless as to separate him from the “norm” of murder

victims.

¶106 These are the kinds of fact-based determinations that

the Supreme Court and our legislature have said jurors should

make. Although the jurors will probably decide the issues as

the trial judge in this case did, we cannot know that they would

do so, and the Defendant has the right to try to persuade them

to do otherwise. The jurors may weigh more heavily Murdaugh’s

mental state or find the murder not to be so much above the norm

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of first degree murders in terms of heinousness or depravity

that it warrants imposition of the death penalty.

¶107 Let me stress that this court would certainly affirm

the verdict of any jury that found these aggravating factors to

exist and decided the case precisely as the trial judge did.

But that is not the standard for deciding whether to affirm the

findings of aggravating circumstances by a trial judge. The

question before us is whether, if a jury found that the murder

was not especially cruel, heinous or depraved, we would conclude

that no reasonable jury could have so found. See Pandeli, 204

Ariz. at 572, ¶ 9, 65 P.3d at 953. I do not think we would.

¶108 But even if I could agree with respect to the judge’s

determination of the facts relating to the aggravating factors,

I cannot do so with respect to the mitigating factors. The

opinion acknowledges that “some evidence supported a finding of

the statutory mitigating factor [of drug impairment] under

A.R.S. § 13-703(G)(1),” but notes that the trial judge “found

that the factor had not been proven by a preponderance of the

evidence.” Op. ¶ 73. Under Ring II and Arizona’s new

implementing statute, it was not the province of the trial judge

to make that determination. A jury might have found otherwise.

The Defendant has the right to present the facts bearing on

sentencing to a jury. See A.R.S. § 13-703(C) (jurors need not

unanimously agree that mitigating factors have been proved by a

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preponderance of the evidence).

¶109 Moreover, a jury must be given the opportunity to

consider and weigh the other mitigating factors. The trial

judge found eight non-statutory mitigating factors. See Op.

¶ 80. Who can say that a jury would not have found more? Or

fewer? Nor can I confidently say, beyond a reasonable doubt,

that the jurors would have weighed the mitigating factors the

way the trial judge did. I cannot know whether the jurors would

weigh as lightly as the trial judge did Murdaugh’s impairment

from drug use at the time of the murder, his diminished mental

abilities, his cooperation, his remorse, or his desire to spare

his family and the victim’s family. They might well; but they

would not be unreasonable if they gave greater weight to such

factors.

¶110 As we did in Pandeli, I would also conclude here that

reasonable jurors might find other mitigating factors to exist

or might weigh the aggravating and mitigating factors

differently than the trial judge did. 204 Ariz. at 572, ¶ 10,

65 P.3d at 953.

¶111 In short, I would affirm Murdaugh’s convictions and

allow the trial judge’s legal finding of the (F)(1) aggravator

to stand. But I would find that the error in judge-sentencing

was not harmless, and would therefore reverse the sentencing and

remand to allow a jury to find those factors that would increase

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the penalty to death and those that might tilt the scales in

favor of leniency, and to weigh those factors in the critical

life and death balance. I think such a result is required by

Ring II, Ring III, Blakely, and A.R.S. § 13-703.01.

__________________________________
Rebecca White Berch, Justice

* The Honorable Andrew D. Hurwitz recused himself. Pursuant to
Article 6, Section 3, of the Arizona Constitution, the Honorable
Philip G. Espinosa, Chief Judge of the Arizona Court of Appeals,
Division Two, was designated to sit for Justice Hurwitz.

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