State v. Davolt

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Supreme Court
) No. CR-00-0508-AP
Appellee,)
) Mohave County
v. ) Superior Court
) No. CR-98-1243
JAMES EDWARD DAVOLT, II )
)
Appellant.) O P I N I O N
)

Appeal from the Superior Court in Mohave County

The Honorable Steven F. Conn, Judge

CONVICTIONS AFFIRMED; REMANDED WITH INSTRUCTIONS
TO CONSIDER DEATH PENALTY ELIGIBILITY ON CAPITAL
OFFENSES AND TO RESENTENCE ON NON-CAPITAL OFFENSES

Janet Napolitano, Former Arizona Attorney General Phoenix
Terry Goddard, Arizona Attorney General
by Kent E. Cattani, Chief Counsel
Capital Litigation Section
and James P. Beene, Assistant Attorney General
Attorneys for Appellee

Julie S. Hall Tucson
Arizona Capital Representation Project Tucson
by Jennifer Bedier
Attorneys for Appellant

J O N E S, Chief Justice

¶1 James Edward Davolt II was convicted April 20, 2000 of
two counts of first degree murder -- the first for the killing of

N.Z. predicated on the felony murder rule, and the second for the

killing of E.Z., predicated on both felony murder and

premeditation. Davolt was also convicted of one count of first

degree burglary, one count of theft of property valued at $1,000 or

more, one count of arson of an occupied structure, and one count of

theft of means of transportation. Following a sentencing hearing,

the trial judge sentenced Davolt to death for each of the murder

counts and to consecutive sentences of twenty-one years for the

burglary, two years for the theft, ten years for the arson of an

occupied structure, and seven years for the theft of means of

transportation. The direct appeal came to this court pursuant to

Arizona Rule of Criminal Procedure 31.2(b). We have jurisdiction

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

Arizona Revised Statutes (A.R.S.) sections 13-4031 and -4033

(2001). For the following reasons we affirm Davolt’s convictions

but remand Davolt’s death sentences to determine whether Davolt, a

juvenile, possessed the maturity and moral responsibility at the

time of the offenses sufficient to make him eligible for the death

penalty. Also, because the record does not demonstrate that the

trial court considered Davolt’s age as a mitigating factor as to

the sentences for the non-capital counts, we remand for

resentencing on those counts.

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 FACTS1

1. The Crime Scene

¶2 Early Thanksgiving morning, November 26, 1998, a paper

delivery man noticed water streaming out from under the garage door

and down the driveway of a house on Pueblo Drive in Lake Havasu,

Arizona. Thinking perhaps the water heater had burst, he contacted

police to do a welfare check. On arrival, the police discovered

the house had sustained a fire. An interior inspection revealed

the charred bodies of an elderly man and woman, respectively N.Z.

and E.Z., lying on the kitchen floor. Burnt file folders were

found on top of the bodies, a red metal gas can was between them,

and an oscillating fan was at their feet. A melted candle was in

front of the fan. Water was leaking from under the sink and had

flooded the house.

¶3 Police found three .22 caliber shell casings in the

living room and kitchen area of the house, as well as spots of

blood in the dining room and kitchen, and in the backyard near the

hose. They also found a ceramic bowl filled with partially smoked

Marlboro cigarettes on a table near an easy chair in the living

room. A wine box sat on the same table. E.Z.’s walker was facing

away from the kitchen counter. The phone in the dining area was

off the hook and had red duct tape on it. The victims’ dog was

1
We view the facts in the light most favorable to
sustaining the verdict. State v. Gallegos, 178 Ariz. 1, 9, 870
P.2d 1097, 1105 (1994).

-3-
found alive, locked inside the master bathroom.

¶4 In the garage, police discovered a bloody roofing hatchet

and a fresh strike mark on the door between the kitchen and the

garage. A significant quantity of blood was splattered around the

inside perimeter of the garage. Some of the blood was smeared in

a linear pattern as if someone had tried to clean it up with a mop.

An empty camping fuel can was found on the washing machine,

alongside N.Z.’s bloody glasses. The victims’ automobile was

missing.

2. The Bank Withdrawal

¶5 After learning of the deaths of their customers, Bank One

officials notified police that a withdrawal had been made from the

victims’ bank account Tuesday, November 24, 1998. Further

investigation revealed that a $1,500 check, made payable to James

Davolt and signed by E.Z., had been cashed on the account at 10:46

a.m. that day. Davolt gave his thumb print and driver’s license to

the bank teller in order to cash the check. At trial, the bank

teller positively identified Davolt as the person who had cashed

the check that morning.

¶6 Bank records indicated that three unsuccessful ATM

withdrawal attempts had been made on the victims’ account earlier

that morning. Bank security pictures from the drive-up ATM machine

showed Davolt, driving the victims’ car, attempting to make a

withdrawal from their account at 9:55 a.m. The picture clearly

-4-
showed a short person riding in the passenger seat of the vehicle.

A different picture showed Davolt attempting to make a withdrawal

from the victims’ account at the walk-up ATM a few minutes later.

An hour later, at 10:46 a.m., a bank security camera captured

Davolt, inside the bank, cashing the $1,500 check. He was wearing

a Green Bay Packers shirt and cap.

¶7 Davolt’s mother viewed the videotape, but told police she

could not identify her son. She informed officers that Davolt did

not own a Green Bay Packers’ shirt. However, N.Z. was an “extreme”

Packers fan.

3. Sightings of Davolt, N.Z., and E.Z.

¶8 Davolt was sixteen years old and an eleventh grader at

Lake Havasu High School. He was reported missing as of Monday

afternoon, November 23, 1998, when he failed to return home from

school. Although he left home as usual that Monday morning on his

bicycle with a book bag, he never arrived at school.

¶9 A workman testified that he had seen Davolt riding a

green mountain bike with a book bag on his back on Pueblo Drive

around 9:00 a.m. that morning. He recalled that N.Z. had been

walking his dog and Davolt had introduced himself to N.Z. The

workman overheard N.Z. ask Davolt where he lived and Davolt pointed

to the intersection with Sweetgrass Road. The workman saw Davolt

speak with N.Z., ride up and down Pueblo Drive on his bike, lie on

an air mattress under some power lines for a short time, then go

-5-
back to speak to N.Z. again. One of the conversations occurred in

N.Z.’s garage. At another point, Davolt played with N.Z.’s dog for

about forty-five minutes.

4. The California Arrest

¶10 On Friday, November 27, 1998, Lake Havasu detectives

matched Davolt’s fingerprints with those found at the crime scene

on the ceramic bowl used as an ashtray, the gas can in the garage,

and a mop handle. An arrest warrant was issued for Davolt in

connection with the homicides and the missing vehicle.

¶11 At about 10:30 p.m. Sunday, November 29, 1998, in

Beaumont, California, a local police officer spotted an oddly

parked vehicle in the vacant parking lot of a nursery store. A

plate check revealed that the vehicle had been reported stolen and

that an arrest warrant had issued for a James Davolt in connection

with a theft and two homicides. While the officer was

investigating, a young man walked up and stated he was the owner of

the car. The young man identified himself as James Davolt. The

officer placed Davolt under arrest and handcuffed him.

¶12 A pat down produced a key with the number “101" that

looked like a motel room key. The officer immediately questioned

Davolt about the key, asking whether it was to a hotel room, and,

if so, which hotel. Davolt responded that the key was to a room at

the Windsor Motel in Beaumont, California.

¶13 Davolt was first advised of his Miranda rights at

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approximately 1:00 a.m. Monday, November 30, 1998, when he was

booked into custody at the police station in Beaumont. He invoked

both his right to counsel and his right to remain silent. He was

then placed in a holding cell until police officers from Lake

Havasu, Arizona, arrived at approximately 5:30 a.m. These officers

also advised Davolt of his Miranda rights. Once again he invoked

his right to remain silent and asked to speak with a public

defender. Police officers then promised Davolt that anything he

said could not be used against him and proceeded to question Davolt

about the homicides for approximately forty-five minutes, during

which time Davolt made several inculpatory statements.

¶14 Within minutes of obtaining Davolt’s inculpatory

statements, officers again approached Davolt and requested that he

sign a written consent to search the motel room. Davolt signed the

consent form, and police relied on it to enter the room later that

morning, at which time they seized the following items: a toy

remote control vehicle; a Green Bay Packers shirt, jacket and cap;

red duct tape; a black duffel bag containing clothing belonging to

N.Z.; cut-off jean shorts stained with Davolt’s blood; a crossword

puzzle book and files belonging to E.Z. and N.Z.; and two

medallions, each with numbers written on the reverse side.

¶15 The vehicle was identified as belonging to the victims.

The passenger compartment contained Davolt’s school books, food

wrappers, packs of Marlboro cigarettes, the book, Masters of

-7-
Deceit, by J. Edgar Hoover, and a lunch ticket from Lake Havasu

High School. A bank card and insurance documents belonging to E.Z.

and N.Z. were found in the glove compartment, and a partially

dismantled mountain bike was found in the trunk.

5. The Forensic Investigation

¶16 The forensic investigation revealed that the blood in the

garage, kitchen, dining room, and backyard belonged to N.Z. A

flame accelerant, such as camping fuel or lighter fluid, was

detected on the clothing samples taken from the victims. The fire

had originated between the victims’ bodies and reached a

temperature of at least 300 degrees. The fire and heat caused a

leak in the reverse osmosis system under the sink, and water from

the sink area had flooded the house. The arson investigator

testified the fire had eventually extinguished itself due to a lack

of oxygen.

¶17 The autopsy results established that N.Z. had sustained

three lacerations to the head: one on the front part of the left

scalp, one to the top of the head, and one to the midline back of

the head. The wounds were caused by a sharp-edged instrument and

were consistent with the shape of the bloody hatchet found in the

garage. These wounds were not immediately fatal. N.Z. also

sustained three gunshot wounds to his chest from .22 caliber shot

pellets. Similarly, these wounds were not immediately fatal. All

three shots were fired from the same firearm.

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¶18 The autopsy results established that E.Z. sustained a

blow to the back of her head and had been strangled manually. It

would have taken several minutes for her to lose consciousness and

several more minutes to die. Skin missing from both E.Z.’s wrists

was consistent with abrasions from adhesive tape. Both victims

died before the fire began because no trace of smoke or soot was

found in the trachea of either victim. Medical experts testified

that E.Z. died sometime between Tuesday and Wednesday evening and

that N.Z. predeceased her by twenty-four to forty-eight hours.

¶19 Davolt’s right palm print was positively identified on

the mop handle found in the kitchen of the victims’ home. Davolt’s

fingerprints were positively identified on the camping fuel can

found in the garage and on the wine box and ceramic bowl found in

the living room. In addition, Davolt’s DNA, matching at all

fourteen loci tested, was found on the 10 to 15 partially smoked

Marlboro cigarettes in the ceramic bowl.

6. Last sightings of N.Z. and E.Z.

¶20 A neighbor reported last seeing N.Z. on Monday or

possibly Tuesday, around noon. E.Z.’s son testified that he spoke

on the phone with his mother on Tuesday. He recalled that she had

responded with one-word answers, which was unusual. The mail

carrier recalled that water had been running down the driveway when

she delivered the mail on Wednesday around 11:15 a.m. Although

N.Z. usually greeted her, she did not see him that day. She thought

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perhaps N.Z. was washing his car inside the garage with the door

closed. Three unopened newspapers were in the driveway when police

arrived at the residence Thanksgiving morning.

DISCUSSION

I. PRETRIAL ISSUES

A. Motion to Suppress

1. The Interrogation and Room Search

¶21 Davolt claims the trial court erroneously denied his

motion to suppress evidence seized during a search of his room at

the Windsor Motel in Beaumont. We review for abuse of discretion

the trial court’s factual findings on a motion to suppress, State

v. Peters, 189 Ariz. 216, 218, 941 P.2d 228, 230 (1997), but review

de novo the trial court’s ultimate legal determination that the

search complied with the requirements of the Fourth Amendment to

the United States Constitution, see State v. Valle, 196 Ariz. 324,

326, ¶ 6, 996 P.2d 125, 127 (App. 2000).

¶22 The trial court found that one Fourth Amendment and two

Fifth Amendment violations occurred during Davolt’s arrest and

initial detention. We agree. But we disagree with the trial

court’s legal conclusion that each of the three violations was

curable under the doctrine of inevitable discovery.

¶23 The Fourth Amendment provides: “the right of the people

to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated.” U.S.

-10-
Const. amend. IV. The provision applies to action by state

officers under the Due Process Clause of the Fourteenth Amendment.

Mapp v. Ohio, 367 U.S. 643, 655 (1961). Hotel guests are entitled

to full constitutional protection against unreasonable searches and

seizures. Stoner v. California, 376 U.S. 483, 490 (1964); Eng Fung

Jem v. United States, 281 F.2d 803, 805 (9th Cir. 1960) (the

transience of a defendant’s stay in a temporary residence does not

dilute the constitutional protection afforded).

¶24 Article 2, section 8 of the Arizona Constitution, as

well, protects the right to privacy in temporary residences. See

State v. Gissendaner, 177 Ariz. 81, 84, 865 P.2d 125, 128 (App.

1993) (overnight guest has an expectation of privacy under the

state and federal constitutions). To be lawful, the search of the

motel room must have been based on a valid warrant, exigent

circumstances, or valid consent. State v. Castaneda, 150 Ariz.

382, 389, 724 P.2d 1, 8 (1986). Our examination of the record

reveals not one of them was present in this case.

¶25 Police learned of the location of Davolt’s motel as a

consequence of improper custodial interrogation, in violation of

Fifth Amendment requirements under Miranda v. Arizona, 384 U.S.

436, 444 (1966). After arresting Davolt and placing him in

handcuffs, with no Miranda warning, the arresting officer

questioned Davolt about the key found in his pocket. This

interrogation took place after the arrest, while Davolt was in

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custody, but prior to the Miranda warning, a clear violation of the

requirements of Miranda and the Fifth Amendment. Id.

¶26 A second Fifth Amendment violation occurred at the police

station immediately after Davolt invoked his Miranda rights a

second time at approximately 5:55 a.m. on Monday, November 30. In

this instance, officers from Lake Havasu, Arizona, questioned

Davolt about the murders for about forty-five minutes, during which

time Davolt made several inculpatory statements. Once an accused

asserts his right to counsel, the interrogation must cease until

counsel is present or until the accused validly waives his request.

Id. at 473-74; State v. Eastlack, 180 Ariz. 243, 250, 883 P.2d

999, 1006 (1994). A valid waiver of the right to counsel cannot be

established by showing only that the defendant responded to further

police-initiated custodial interrogation, even if he has been

advised of his rights. Edwards v. Arizona, 451 U.S. 477, 487

(1981).

¶27 Also, this interrogation violated Davolt’s rights because

his statements to police were involuntary (a point conceded by the

State at trial). After Davolt invoked Miranda, police expressly

promised Davolt that anything he said could not be used against

him. A confession “obtained by any direct or implied promises,

however slight,” is involuntary. Hutto v. Ross, 429 U.S. 28, 30

(1976); see also State v. Amaya-Ruiz, 166 Ariz. 152, 165, 800 P.2d

1260, 1273 (1990).

-12-
¶28 In addition, a Fourth Amendment violation occurred when

police searched the motel room solely on the strength of a consent

that had been tainted by the earlier interrogation violation under

the Fifth Amendment. Within minutes of obtaining Davolt’s

involuntary inculpatory statements, officers approached Davolt

requesting that he sign a written consent to search the room.

Davolt then signed the form and police officers obtained the items

of physical evidence in the motel search later that morning.

¶29 A search conducted without a warrant, based on probable

cause, is nonetheless per se unreasonable, subject only to a few

specifically established exceptions. Katz v. United States, 389

U.S. 347, 357 (1967). One of these is valid consent. Id. To be

valid, consent must be voluntary. Schneckloth v. Bustamonte, 412

U.S. 218, 249 (1973). Voluntariness is a question of fact to be

determined from the totality of the circumstances. Id. at 248-49.

However, evidence obtained based on voluntary consent must still be

suppressed if “the unconstitutional conduct was not sufficiently

attenuated from the subsequent seizure to avoid exclusion of the

evidence.” United States v. Taheri, 648 F.2d 598, 601 (9th Cir.

1981) (citing Brown v. Illinois, 422 U.S. 590, 602 (1975)); see

also United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1299

(9th Cir. 1988) (consent that meets the threshold voluntariness

determination for Fifth Amendment purposes was not valid under the

Fourth Amendment where consent was given almost immediately after

-13-
illegal arrest).

¶30 To determine whether there was sufficient attenuation

between the illegal police conduct and the defendant’s consent, we

examine 1) whether Miranda warnings were administered; 2) the

temporal proximity between the initial illegality and the

defendant’s consent; 3) whether there were intervening

circumstances; and 4) the purpose and flagrancy of the official

conduct. Brown, 422 U.S. at 602.

¶31 As discussed, Davolt was advised of his Miranda rights on

two occasions before he signed the consent form. He invoked his

Fifth Amendment right to counsel and right to remain silent both

times. The temporal proximity between the custodial interrogation

and his consent was less than one hour. This time period alone is

insufficient to break the causal chain. See United States v.

Perez-Esparza, 609 F.2d 1284, 1290 (9th Cir. 1980) (consent to

search given within three hours after illegal detention was

invalid).

¶32 Furthermore, there were no intervening events to break

the chain between improper interrogation and consent, such as a

subsequent release from custody, an appearance before a magistrate,

discussions with a lawyer, or a subsequent conviction on unrelated

charges. See DeSales v. Woo, 860 F. Supp. 1436, 1444 (N.D. Cal.

1994). After invoking his right to counsel, Davolt’s interrogation

continued for approximately forty-five minutes. Police then placed

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Davolt in a cell, where, less than fifteen minutes later, officers

approached him with the consent form to sign.

¶33 Finally, we note that the police misconduct was extreme.

During the period of Davolt’s arrest and initial interrogation,

police twice violated Miranda, violated the Fifth Amendment by

obtaining Davolt’s involuntary statements and then, within a matter

of minutes, approached Davolt requiring that he sign the written

consent form on which they later relied to search the motel room.

On these facts, we conclude that Davolt’s consent was severely

tainted by the prior Fifth Amendment violations and could not

provide sufficient basis for police to search the room. See State

v. King, 140 Ariz. 602, 604, 684 P.2d 174, 176 (1984) (consent to

search obtained after Edwards violation could not serve to

legitimize a warrantless search).

¶34 Thus, the search was presumptively illegal because it was

conducted without a warrant, without exigent circumstances, and

without valid consent. As such, the search violated the Fourth

Amendment of the United States Constitution and Article 2, section

8 of the Arizona Constitution, and the evidence obtained should

therefore have been suppressed as fruit of the poisonous tree. See

Schneckloth, 412 U.S. at 233 (search of home without a warrant or

consent is unreasonable unless exigent circumstances exist); State

v. Bolt, 142 Ariz. 260, 265, 689 P.2d 519, 524 (1984) (evidence

seized as a result of a warrantless entry into a defendant’s home

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without the excuse of exigent circumstances is per se unlawful

under the Arizona Constitution and should have been suppressed).

2. The Inevitable Discovery Doctrine

¶35 Illegally obtained physical evidence may be admitted if

the State can demonstrate by a preponderance of the evidence that

such evidence inevitably would have been discovered by lawful

means. Nix v. Williams, 467 U.S. 431, 444 (1984); State v. Lamb,

116 Ariz. 134, 138, 568 P.2d 1032, 1036 (1977). The trial court

found that the State proved by a preponderance of the evidence that

the location of Davolt’s motel room inevitably would have been

discovered without the initial illegal custodial interrogation. We

agree. Davolt was arrested near the motel, there were only four

motels in Beaumont, and the key had the room number “101” on it.

¶36 We disagree, however, with the trial court’s further

conclusion that the inevitable discovery doctrine cures the

additional Fourth and Fifth Amendment violations. The doctrine

requires the State to prove, by a preponderance, that absent the

initial illegality, the evidence would nonetheless have been

discovered by lawful means. Nix, 467 U.S. at 444 (emphasis added).

Even assuming the police inevitably would have discovered the

location of the motel room, no information was adduced that the

evidence discovered in the room might ever have been obtained

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lawfully.2 No effort was made to obtain a search warrant, and we

must reject the notion that the State relied on Davolt’s tainted

consent in good faith. The constitutional violations in this case

are clear.

¶37 Arizona has adopted the broad view of the inevitable

discovery rule. Under that view, the State is not required to

demonstrate that police initiated lawful means to acquire evidence

prior to its seizure. See State v. Paxton, 186 Ariz. 580, 586, 925

P.2d 721, 727 (App. 1996). However, we distinguish the instant

case from a situation in which we assume the police would have

complied with subsequent constitutional requirements after an

initial illegality. Here, there is hard evidence they did not.

The State cannot claim inevitable discovery and thereupon be

excused from all constitutional requirements. Such a claim amounts

to the unacceptable assertion that police would have done it right

had they not done it wrong. The deterrence rationale of the

exclusionary rule is especially important in this case in which

constitutional violations occurred on three separate occasions,

2
We note that the means by which the motel room evidence
was obtained in this case cannot be characterized as lawful, even
under a narrow interpretation of that term, because the means by
which police actually discovered the evidence violated Davolt’s
personal rights. Cf. United States v. Scott, 270 F.3d 30, 45 (1st
Cir. 2001) (“a means by which challenged evidence would inevitably
have been discovered that itself violates the law is not, by that
violation alone, unlawful as to a defendant if those means did not
violate that defendant’s personal rights”).

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that is, the two interrogations and the motel entry and search.3

¶38 Prior opinions of this court dealing with the inevitable

discovery doctrine support today’s ruling. In each case, we have

consistently allowed the introduction of evidence that inevitably

would have been lawfully discovered, absent initial illegality.

See Castaneda, 150 Ariz. at 388, 724 P.2d at 7 (although defendant

was coerced into telling police where the body was, the evidence

was admissible because the body inevitably would have been

discovered as soon as it became light); Lamb, 116 Ariz. at 138, 568

P.2d at 1036 (evidence obtained during an illegal pat down search

was admissible because defendant would have been arrested on

independent grounds and the evidence would inevitably have been

discovered during a lawful search incident to that arrest). But we

have never applied the inevitable discovery doctrine to cure

multiple constitutional violations and decline to do so here.

3. Harmless Error

¶39 We assess a trial court’s erroneous denial of a motion to

3
On appeal, Davolt argued that the inevitable discovery
doctrine cannot be applied to cure the taint of evidence illegally
seized from his motel room based on State v. Ault, 150 Ariz. 459,
466, 724 P.2d 545, 552 (1986). In Ault, we held the inevitable
discovery doctrine will not cure the taint of evidence obtained in
the illegal search of a person’s home based on the heightened
protection afforded a home by Article 2, section 8 of the Arizona
Constitution. Because we find that the State failed to demonstrate
by a preponderance of the evidence that inevitably it would have
obtained the motel room evidence by lawful means, we need not reach
the question whether a motel room would receive the same degree of
protection accorded a home by the Arizona Constitution.

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suppress for harmless error. Castenada, 150 Ariz. at 387, 724 P.2d

at 6. Error is harmless if the reviewing court can say beyond a

reasonable doubt that the error did not contribute to the verdict.

Chapman v. California, 386 U.S. 18, 24 (1967); State v. Ashelman,

137 Ariz. 460, 466, 671 P.2d 901, 907 (1983).

¶40 Probative evidence obtained from the motel room was

largely cumulative. Some items were without significant probative

value, for example, the Marlboro cigarettes,4 Davolt’s Mohave

County Library Card, and a remote control toy car. Incriminating

items included a crossword puzzle book that belonged to the

victims; a roll of red duct tape that appeared to match duct tape

found on the telephone cord at the victims’ residence; two

medallions with numbers on the reverse sides that matched telephone

numbers dialed from the victims’ residence at approximately 3:00

a.m. Wednesday, November 25, 1998; a Green Bay Packers’ shirt and

jacket; and clothing belonging to N.Z.

¶41 The significance of these items, however, is diminished

by other evidence. Davolt had been reported missing on the Monday

before the victims were discovered, after he failed to appear at

school. A workman had seen him talking to N.Z. on Pueblo Drive

that Monday morning between 9:00 and 11:00 a.m. On Tuesday

4
Although Marlboro cigarettes were found in an ashtray in
the victims’ living room, DNA evidence directly linked Davolt to
those partially smoked cigarettes.

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morning, Bank One security cameras captured Davolt attempting to

withdraw money from the victims’ bank account from the drive-up and

walk-up ATM machines. An hour later, Bank One security cameras

captured Davolt inside the bank cashing a $1,500 check written by

E.Z. He was wearing a Green Bay Packers shirt. Davolt’s mother

informed police that her son did not own any Packers attire, but

E.Z.’s son testified that N.Z. was an “extreme” Packers fan. The

thumbprint given the bank teller to cash the check positively

identified Davolt as the person who cashed the check.

¶42 On Wednesday, the mail carrier saw water running out of

the garage just before noon, suggesting that the fire had already

occurred. N.Z. and E.Z. were discovered dead in their kitchen

Thursday morning, victims of a violent double homicide. The house

had been set on fire and Davolt’s fingerprints were found on the

camp fuel can in the garage, the mop handle with a square sponge

head that matched the outline of mop strokes in the blood on the

floor of the garage, the wine box found on a table in the living

room, and the ceramic bowl used as a makeshift ashtray found in the

living room. Davolt’s DNA was found on 10 to 15 Marlboro

cigarettes inside the makeshift ashtray in the victims’ home.

¶43 On Sunday, Davolt was found in possession of the victims’

vehicle in California. The vehicle contained Marlboro cigarettes,

a bank card and insurance papers belonging to the victims, and

Davolt’s disassembled green mountain bike. Medical experts agreed

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that E.Z. died between Tuesday and Wednesday night and that N.Z.

predeceased E.Z. by at least twenty-four to forty-eight hours.

Although the properly admitted evidence was circumstantial, its

probative weight was substantial, easily sufficient to justify the

verdicts of the jury. Thus, even without evidence that should have

been excluded, the verdicts would not have been different. Upon

review of the entire record, we conclude, as a matter of law, that

the introduction of the illegally seized motel room evidence was

harmless beyond a reasonable doubt.

B. Change of Venue

¶44 Davolt argues the trial court erred by denying his motion

for change of venue. We review the denial of all such motions for

abuse of discretion and resulting prejudice to the defendant.

State v. Salazar, 173 Ariz. 399, 406, 844 P.2d 566, 573 (1992).

¶45 A criminal defendant is entitled to a change of venue if

there is a probability the dissemination of prejudicial information

will deprive the defendant of a fair and impartial trial. Ariz. R.

Crim. P. 10.3(b). We determine whether “under the totality of the

circumstances the publicity attendant to defendant’s trial was so

pervasive that it caused the proceeding to be fundamentally

unfair.” State v. Atwood, 171 Ariz. 576, 630, 832 P.2d 593, 647

(1992) (citing Murphy v. Florida, 421 U.S. 794, 799 (1975)),

overruled on other grounds by State v. Nordstrom, 200 Ariz. 229,

241 ¶ 25, 25 P.3d 717, 729 (2000). Prejudice may be presumed or

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actual. State v. Blakley, 204 Ariz. 429, ___ ¶¶ 14-16, 65 P.3d 77,

82 (2003).

1. Presumed Prejudice

¶46 Prejudice may be presumed if the publicity “was so

extensive or outrageous that it permeated the proceeding or created

a ‘carnival-like atmosphere.’” Atwood, 171 Ariz. at 631, 832 P.2d

at 648. The adverse publicity must be so extensively pervasive

and prejudicial that “the court cannot give credibility to the

jurors’ attestations, during voir dire, that they could decide

fairly.” Nordstrom, 200 Ariz. at 239, ¶ 15, 25 P.3d at 727. This

is a high standard and it is rarely met. We have refused to

presume prejudice when the publicity was “primarily factual and

non-inflammatory or if the publicity did not occur close in time to

the trial.” Id. (citing State v. Jones, 197 Ariz. 290, 307 ¶ 44,

4 P.3d 345, 362 (2001); State v. Bible, 175 Ariz. 549, 563-64, 858

P.2d 1152, 1166-67 (1993); State v. Bedford, 157 Ariz. 37, 39, 754

P.2d 1141, 1143 (1988)); see also Blakley, 204 Ariz. at ___, ¶ 15,

65 P.3d at 82.

¶47 Our review indicates that media coverage of the trial was

not particularly pervasive, inflammatory, or prejudicial. Davolt

produced twenty newspaper articles and thirteen radio reports that

were published or broadcast about the case in Lake Havasu, Kingman,

and Mohave Valley, Arizona, during the period from November 1998

through December 1999. The majority of these news accounts were

-22-
generated at the time of the crime and were factual in nature.

¶48 The only potentially troublesome coverage included one

newspaper article that mentioned Davolt had previously run away

from home, and two radio reports and a newspaper article that

mentioned a possible connection between Davolt and another double

homicide in California. However, these accounts expressly stated

any connection to the California murders was unproven and tenuous.

Moreover, they were published in December 1998, more than fifteen

months before the trial. Accordingly, we cannot presume prejudice

from this record because news coverage of the crimes did not reach

a point at which it might have significantly affected the fairness

of the proceedings or the atmosphere surrounding the trial.

2. Actual Prejudice

¶49 In the absence of presumed prejudice, the defendant must

demonstrate that the pretrial publicity was actually prejudicial

and likely deprived him of a fair trial. State v. Chaney, 141

Ariz. 295, 302, 686 P.2d 1265, 1272 (1984). To establish actual

prejudice, the defendant must show that “the jurors have formed

preconceived notions concerning the defendant’s guilt and that they

cannot leave those notions aside.” Id.

¶50 Davolt first claims actual prejudice is established

because nine of the fourteen empaneled jurors, including two

alternates, had some prior knowledge of the case. We disagree.

Prior knowledge of the case alone is insufficient to disqualify a

-23-
juror. See State v. Smith, 123 Ariz. 231, 236, 599 P.2d 187, 192

(1979) (citing Murphy, 421 U.S. 794). The critical inquiry is the

“effect of publicity on a juror’s objectivity.” State v. LaGrand,

153 Ariz. 21, 34, 734 P.2d 563, 576 (1987). The record indicates

that the trial court struck all prospective jurors who stated they

had formed preconceived notions about the case or did not believe

they could be fair and impartial. Furthermore, all members of the

final jury pool affirmed they could be fair and impartial.

¶51 We also reject Davolt’s claim that the voir dire

examination was inadequate to discern actual prejudice of the

prospective jurors. The trial court questioned each prospective

juror about his or her exposure to pretrial publicity, including

the extent of knowledge, the point at which this knowledge was

obtained, the source, and finally, whether the prospective juror

could be fair and impartial. All prospective jurors who indicated

they could not be fair and impartial were struck for cause by the

trial court. The trial court then conducted private, individual

questioning of each prospective juror who had been exposed to

pretrial publicity and ascertained the extent of each prospective

juror’s knowledge of the case. The prospective jurors’ answers

revealed that most had little more, if any, than a vague

recollection of the primary facts of the crime. Counsel for both

sides were present and were given the opportunity to ask questions.

Finally, the court again queried whether the prospective jurors

-24-
would find it difficult to be fair and impartial. All prospective

jurors who stated they could not be fair or impartial were excused.

Only those who stated affirmatively they could be fair and

impartial remained. This procedure was adequate to discern bias or

prejudice on the part of prospective jurors. On the record before

us, we conclude the trial court did not abuse its discretion in

denying the motion for a change of venue.

II. TRIAL ISSUES

A. Refusal to Submit Jury Questionnaire

¶52 Davolt claims the trial court erred in denying his

request to submit a questionnaire to the jury. We disagree. A

trial court’s decision concerning voir dire will not be overturned

absent a clear abuse of the judge’s discretion. Chaney, 141 Ariz.

at 304, 686 P.2d at 1274. Rule 18.5 of the Arizona Rules of

Criminal Procedure requires a thorough examination of potential

jurors and allows parties reasonable time to conduct further oral

examination upon request. While the rule allows the use of written

jury questionnaires, it does not require it. See State v. Cañez,

202 Ariz. 133, 148, ¶ 37, 42 P.3d 564, 579 (2002). Furthermore, we

note that the trial judge did not restrict counsel from asking

questions and afforded counsel ample opportunity individually to

question any prospective juror. We find no abuse of discretion.

The voir dire examination was adequate to assure Davolt’s right to

a fair and impartial jury.

-25-
B. Juror Misconduct

¶53 Davolt alleges three incidents of juror misconduct.

First, he alleges that defense counsel notified the trial court

that he had overheard a male juror state he spent the lunch break

reading the newspaper. Second, he claims defense counsel informed

the court the next day that he had seen juror number 14 “carrying

around a newspaper that morning.” Third, he alleges the court

clerk informed the court that she had seen a male juror carrying a

Las Vegas newspaper during the trial.

¶54 Further, Davolt argues that the trial court erred by not

investigating these incidents and this failure violated various

rights, including the right to an impartial jury, to confrontation

of witnesses, to due process, and to freedom from cruel and unusual

punishment, any of which could require a new trial. We disagree

for the following reasons.

¶55 Davolt first claims the trial court failed in its

affirmative duty to investigate the alleged incidents of juror

misconduct, citing Silverthorne v. United States, 400 F.2d 627, 643

(9th Cir. 1968). Davolt’s reliance on Silverthorne is misplaced.

In Silverthorne, the trial court was aware that several prejudicial

articles about the defendant’s case had appeared in local

newspapers during the trial. Id. at 644. The Ninth Circuit held

this fact, in combination with allegations that jurors had been

reading newspapers during the trial, was sufficient to trigger the

-26-
trial court’s duty to investigate the matter further. Id. The

court noted: “Jurors are not presumed to separate the truth from

the falsity in newspaper articles concerning the trial in which

they sit as judges of fact.” Id. at 643 (emphasis added).

¶56 We review a trial court’s decision to investigate

allegations of juror misconduct for abuse of discretion. State v.

Miller, 178 Ariz. 555, 556, 875 P.2d 788, 789 (1994). A trial

court’s duty to investigate alleged incidents of juror misconduct

arises only if there is an allegation that the newspaper articles

related to a material fact or law at issue in the case. United

States v. Caro-Quintero, 769 F. Supp. 1564, 1575 (C.D. Cal. 1991)

(“[T]he mere fact that local newspapers were in the jury room does

not amount to extraneous influences on the jury . . . ; [the

newspapers] cannot even be characterized as extrinsic evidence.”);

see also United States v. Thompson, 908 F.2d 648, 652 (10th Cir.

1990) (the trial court had a duty to investigate alleged incidents

of juror misconduct where there was evidence that prejudicial

articles had appeared in the local newspaper and the jury was not

sequestered, even though no specific allegations were made that

jurors had been reading the paper).

¶57 The record before us is devoid of any allegation or

evidence that any of the newspapers allegedly read or carried by

jurors contained articles concerning the trial, or that articles

about the trial had been published in any of the local newspapers.

-27-
For this reason, Davolt’s bare allegations of juror misconduct are

insufficient to trigger the trial court’s duty to investigate the

matter further. We find no violation of the duty to investigate.

¶58 Similarly, these allegations are insufficient to trigger

the need for a new trial. Juror misconduct warrants a new trial

only if “the defense shows actual prejudice or if prejudice may be

fairly presumed from the facts.” Miller, 178 Ariz. at 558, 875

P.2d at 794 (citing State v. Vasquez, 130 Ariz. 103, 105, 634 P.2d

391, 393 (1981)). In a criminal case, prejudice may be presumed

from “any private communication, contact or tampering directly or

indirectly, with a juror during a trial about the matter pending

before the jury.” Remmer v. United States, 347 U.S. 227, 229

(1954). “Once the defendant shows that the jury has received and

considered extrinsic evidence, prejudice must be presumed and a new

trial granted unless the prosecutor proves beyond a reasonable

doubt that the extrinsic evidence did not taint the verdict.”

State v. Hall, 204 Ariz. 442, ___, ¶ 16, 65 P.3d 90, 95 (2003)

(citing Miller, 178 Ariz. at 558-60, 875 P.2d at 791-93).

¶59 As discussed, there was no allegation that newspapers

contained even a remote statement concerning issues pending before

the jury. Prejudice cannot be presumed without the requisite

showing that the jury received and considered extrinsic evidence on

the issues. Moreover, Davolt has shown no actual prejudice. He is

-28-
not entitled to a new trial because there is no evidence indicating

juror misconduct.

C. Admission of Photographs and Videotape

¶60 Davolt contends the trial court erred in admitting

photographs of the crime scene and autopsies as well as a video of

the crime scene. The admission of evidence is within the trial

court’s discretion and will not be disturbed absent an abuse of

discretion. State v. Gulbrandson, 184 Ariz. 46, 60, 906 P.2d 579,

593 (1995). We assess the admissibility of photographs under a

three-part test, examining 1) relevance, 2) tendency to incite or

inflame, and 3) the probative value versus the potential to cause

unfair prejudice. State v. Spreitz, 190 Ariz. 129, 141, 945 P.2d

1260, 1272 (1997).

¶61 Davolt contends that the crime scene photos and videotape

and the autopsy photos were not relevant because the identity and

extent of the victims’ injuries was uncontested. We do not agree.

The State has the burden of proving every element of first degree

murder. State v. Bocharski, 200 Ariz. 50, 55-56, ¶ 22, 22 P.3d 43,

48-49 (2001). Evidence that has “any tendency to make the

existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be

without the evidence” is relevant. Ariz. R. Evid. 401. The fact

and cause of death are always relevant in a murder case. State v.

Harding, 141 Ariz. 492, 499, 687 P.2d 1247, 1254 (1984).

-29-
¶62 The autopsy photos depicted close-up images of the

victims’ decomposed bodies and N.Z.’s head with the scalp pulled

back to reveal the skull. The State claims these photos were

offered to show the differing degree of decomposition between the

two bodies and to show that N.Z. survived following the blunt force

wounds to his head. We agree that although these photos display

extreme violence, they were relevant to the time and manner of the

victims’ deaths and therefore probative of disputed facts of

consequence in the case. We cannot say that the trial court abused

its discretion in permitting their introduction.

¶63 However, we find that the trial court abused its

discretion in admitting crime scene photographs and videotape. The

probative value of relevant evidence is minimal when the defendant

does not contest a fact that is of consequence. Bocharski, 200

Ariz. at 56, ¶ 23, 22 P.3d at 49. In such a circumstance,

“gruesome photographs may have ‘little use or purpose except to

inflame,’ and their prejudicial effect can be significant.” Id.

(quoting State v. Chapple, 135 Ariz. 281, 288, 660 P.2d 1208, 1215

(1983)). Davolt did not contest the identity of the victims or the

fact that the murders occurred. Accordingly, photographs and

videotape of the crime scene were of minimal probative value, and

they were highly inflammatory. They depicted the scene of the

victims’ charred bodies in the kitchen. Several of the photos were

wholly cumulative and were not offered to complement additional

-30-
testimony. We believe the minimal probative value of these visuals

was substantially outweighed by the risk of undue prejudice and

that the trial court abused its discretion in admitting them.

¶64 We assess the erroneous admission of evidence for

harmless error. State v. Fulminante, 161 Ariz. 237, 245, 778 P.2d

602, 610 (1988). Error is harmless if we can conclude, beyond a

reasonable doubt, that the error did not contribute to or affect

the jury’s verdict. Bible, 175 Ariz. at 588, 858 P.2d at 1191. As

discussed, evidence, properly admitted, connecting Davolt to these

crimes was overwhelming. We therefore conclude beyond a reasonable

doubt that the erroneously admitted crime scene photographs and

videotape did not contribute to the verdict. Nevertheless, we

caution prosecutors once again to refrain from jeopardizing

criminal convictions by introducing inflammatory material. See

Bocharski, 200 Ariz. at 56, ¶ 25, 22 P.3d at 49. Davolt’s trial is

preserved from reversible error solely by the strength of the

remaining evidence against him. In this particular case, the error

was harmless.

D. Preclusion of Evidence

¶65 Davolt contends that the trial court erred by precluding

testimony about Detective Harry’s incompetence in recording coerced

inculpatory statements Davolt made while in custody in California.

He asserts that the preclusion of this testimony “gutted his

defense” because it was probative of police sloppiness -- his

-31-
primary defense.

¶66 As noted, we review the trial court’s exclusion of

evidence for an abuse of discretion. State v. Macumber, 119 Ariz.

516, 521, 582 P.2d 162, 167 (1978). The trial court reasoned that

testimony concerning Detective Harry’s improper recording and

subsequent erasure of a portion of a tape recording of Davolt’s

coerced inculpatory statements that were suppressed was not

relevant to issues in dispute. We agree and thus find no abuse of

discretion.

E. DNA Evidence

¶67 Davolt claims the trial court erroneously denied his

motion in limine and admitted DNA evidence at trial. The motion in

limine, filed just days before trial, was based on the assertion

that the DNA evidence could not be admitted because random match

statistics are not generally accepted under Frye v. United States,

293 F. 1013 (D.C. Cir. 1923). We disagree and find no error in the

denial of the motion.

¶68 When scientific evidence has been found to meet the Frye

standard, a Frye inquiry is necessary “only when the opposing party

makes a timely request for such an inquiry supported by authorities

indicating there may not be general scientific acceptance of the

technique.” State v. Harris, 152 Ariz. 150, 152, 730 P.2d 859, 861

(App. 1986). We have held that DNA evidence based on the product

rule method of calculating the probability of a match is acceptable

-32-
when the database satisfies Frye requirements. State v. Hummert,

188 Ariz. 119, 123, 933 P.2d 1187, 1191 (1997); see also State v.

Marshall, 193 Ariz. 547, 551, 975 P.2d 137, 141 (App. 1998).

Davolt’s motion was not supported by credible authority that

product rule evidence is generally unacceptable. The motion was

thus properly denied on the merits. We also note the motion was

submitted too late to meet reasonable timeliness standards. See

Ariz. R. Crim. P. 16.1(b) (all motions to be submitted at least

twenty days before trial).

F. Expert Testimony

¶69 Davolt contends that the trial court erroneously admitted

testimony of several witnesses not properly qualified to testify as

experts. We review the trial court’s admission of expert testimony

for an abuse of discretion. State v. Hyde, 186 Ariz. 252, 276, 921

P.2d 655, 679 (1996). We find no error.

¶70 Rule 702 of the Arizona Rules of Evidence provides: “If

scientific, technical, or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact

in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the form

of an opinion or otherwise.” The test of whether a person is an

expert is whether a jury can receive help on a particular subject

from the witness. Bliss v. Treece, 134 Ariz. 516, 518-19, 658 P.2d

169, 172-73 (1983). The degree of qualification goes to the weight

-33-
given the testimony, not its admissibility. State v. Mosley, 119

Ariz. 393, 400, 581 P.2d 238, 245 (1978).

1. Colleen Proffitt

¶71 Davolt first argues that the State’s expert, Colleen

Proffitt, was not qualified to testify as an expert in DNA analysis

and therefore the trial court erred in admitting her testimony that

the chance the saliva found on cigarette remains in the house did

not belong to Davolt was one in 280 quadrillion for the Caucasian

population. The argument is flawed.

¶72 Proffitt has been involved with DNA testing since 1986

and has extensive training and experience in the field. She

testified that DNA testing requires the use of population databases

to calculate random match statistics and that she regularly

accessed population databases as a DNA analyst. Her testimony was

based on random match statistical evidence, which this court has

found to be admissible. Johnson, 186 Ariz. at 335, 922 P.2d at

300. Proffitt was clearly more qualified and had more knowledge in

the specific area of DNA than an ordinary juror, and her testimony

assisted the jury in its consideration of the evidence. The trial

court did not abuse its discretion in admitting her testimony.

2. Detective Harry

¶73 Davolt contends Detective Harry was not qualified to

testify as an expert in blood splatter analysis and therefore the

trial court erred in allowing his testimony about blood splatter

-34-
found on the floor of the garage.

¶74 Detective Harry testified that “there appeared to be

spots of blood around the perimeter -- inside the perimeter of the

garage, and it was in such a fashion as to suggest that somebody

had walked around something there. Presumably, walked around a car

in the garage.”

¶75 Detective Harry’s training in blood splatter analysis

consisted of attending classes on crime scene management, a class

on homicide investigation, and watching two training videos on

blood splatter analysis as part of his advanced officer training at

the Lake Havasu Police Department. While this training is not

extensive, it is significantly more extensive than the average

person has received and is sufficient to allow the testimony to be

heard by the jury.

¶76 Davolt claims further that the trial court erroneously

admitted testimony by Detective Harry that N.Z. was killed before

E.Z. However, Davolt’s citations to the record do not demonstrate

that Detective Harry testified to that effect. Therefore, we

reject this claim.

3. John Hoang

¶77 Davolt argues that John Hoang was not qualified to

testify as an expert on ignitable liquids and that the trial court

erred by admitting his testimony that clothing samples obtained

from the victims at the crime scene showed a residue consistent

-35-
with the light petroleum distillate class of ignitable liquids,

which includes lighter fluid and camp fuel. We disagree.

¶78 Hoang’s qualifications include a Bachelor of Science

degree in forensic science with a minor in chemistry from

California State University at Sacramento, two years of work as a

criminalist with the Arizona Department of Public Safety analyzing

ignitable liquids, training from experienced criminalists in the

field of ignitable liquids, work on more than fifty cases, analysis

of more than 100 ignitable liquid samples, and a forty-hour class

taught by the FBI on the laboratory analysis of fire debris. We

find this to be sufficient training. A person can be qualified as

an expert based on his or her training or experience. See Ariz. R.

Evid. 702. The trial court did not abuse its discretion in

admitting Hoang’s testimony.

4. Allison Sedowski

¶79 Finally, Davolt argues that Allison Sedowski was not

qualified to testify concerning blood sample analysis because she

had been to only one prior crime scene. We find this assertion

unsupported by the record. Sedowski is a blood analyst, not a

collector of blood evidence. There is no indication that Sedowski

was involved in the collection of blood at the scene.

Furthermore, our review of the record indicates that Sedowski was

fully qualified to testify concerning the results of her blood

sample analysis.

-36-
¶80 At the time of the trial, Sedowski had been employed as

a serologist in the DNA unit of the Arizona Department of Public

Safety Crime Lab for one and one-half years. She received a

Bachelor’s degree in chemistry from Northern Arizona University and

had taken post-graduate classes in genetics and population

statistics. She had performed blood analysis tests thousands of

times and had worked on more than 100 cases. The trial court did

not err in admitting her testimony.

G. Third-Party Defense

¶81 Davolt contends the trial court erred by precluding the

admission of evidence the crimes were committed by a third party.

Once again, we disagree.

¶82 Third-party evidence depends on relevance and the effect

the evidence has on the defendant’s culpability. State v. Gibson,

202 Ariz. 321, 324, ¶ 16, 44 P.3d 1001, 1004 (2002). Third-party

evidence is relevant if it “tend[s] to create a reasonable doubt as

to the defendant’s guilt.” Id.

¶83 Davolt’s proffered evidence of third-party culpability

was that N.Z. was unpopular. The trial court found this assertion

“not relevant under any circumstance.” This finding complies with

the standard we announced in Gibson. Furthermore, we note the

trial court did not preclude Davolt from arguing generally that

some unknown person committed the murders. The trial court did not

abuse its discretion in precluding this evidence.

-37-
H. Trial Security Measures

¶84 Davolt asserts that the presence of uniformed jail

personnel and the requirement that he wear a leg brace during the

trial deprived him of a fair trial. Matters of courtroom security

are left to the discretion of the trial court. See State v. Boag,

104 Ariz. 362, 366, 453 P.2d 508, 512 (1969) (“[A]bsent

incontrovertible evidence of hurt, the trial court should be

permitted to use such means to secure the named ends.”) (citations

omitted). We will uphold a trial court’s decision concerning trial

security measures when the decision is supported by the record.

State v. McKinney, 185 Ariz. 567, 576, 917 P.2d 1214, 1223 (1996).

¶85 The trial court specifically noted that Davolt had

attempted to escape from the Mohave County jail while awaiting

trial. In view of the trial court’s well founded security concern

and the absence of evidence of specific prejudice to Davolt, we

cannot say the trial court abused its discretion.

I. Motion for Judgment of Acquittal

¶86 Davolt argues the that trial court erred in denying his

Rule 20 motion for a judgment of acquittal because no adequate

evidence supported felony murder or premeditation. Davolt is

clearly wrong.

¶87 A judgment of acquittal shall be entered if no

substantial evidence supports the conviction. See Ariz. R. Crim.

-38-
P. 20. Substantial evidence is that which reasonable persons could

accept as sufficient to support a guilty verdict beyond a

reasonable doubt. Id. “If reasonable [persons] may fairly differ

as to whether certain evidence establishes a fact in issue, then

such evidence must be considered as substantial.” State v.

Rodriguez, 186 Ariz. 240, 245, 921 P.2d 643, 648 (1996). In

determining the sufficiency of the evidence, we view the evidence

in the light most favorable to sustaining the verdict, and we

resolve all inferences against the defendant. State v. Spears, 184

Ariz. 277, 290, 908 P.2d 1062, 1075 (1996).

¶88 Substantial evidence was presented to support the theory

of felony murder based on the predicate offense of burglary. Here

the evidence clearly established either the offense of unlawful

entry or remaining unlawfully with the intent to commit theft.

Evidence was also clear that in the course of committing the

prohibited entry and in furtherance of committing the burglary he

murdered the two victims.

¶89 On Thursday morning, N.Z. and E.Z. were discovered dead

in their kitchen, the victims of a violent double homicide. Their

house had sustained a fire and their car was missing. Wednesday

just before noon, the mail carrier noted water running from under

the garage door and down the driveway, indicating the fire had

already occurred. Tuesday morning, Bank One video cameras captured

Davolt, wearing Green Bay Packers attire, attempting to withdraw

-39-
money from the victims’ bank account at several different ATM

machines and, inside the bank, cashing a $1,500 check, written by

E.Z. Monday morning, a workman saw Davolt speaking with N.Z. on

Pueblo Drive several times over a two hour period. The man

overheard N.Z. ask Davolt where he lived, suggesting they had not

known each other previously. DNA and fingerprint evidence placed

Davolt inside the victims’ home. Davolt had been reported missing

since the Monday before the victims’ bodies were discovered dead,

after he failed to show up for school. The following Sunday,

Davolt was found in California, in possession of the victims’ car

and various items that were in the car. The trial court did not

err in denying Davolt’s Rule 20 motion on the felony murder charge

based on burglary.

¶90 In addition, substantial evidence supported the State’s

premeditation theory. The State proved that N.Z. had been attacked

with a hatchet, probably in the garage. Medical experts agreed

that N.Z. survived the initial attack but was subsequently shot

three times resulting in his death, probably inside the home.

Medical experts further agreed that E.Z. was strangled with bare

hands and that it would have taken several minutes for her to die,

and that N.Z. predeceased E.Z. by a significant period. Clearly,

there is sufficient evidence to support a premeditation verdict in

either killing. The trial court did not err in denying the motion

for a judgment of acquittal.

-40-
J. Failure to Instruct on Second Degree Murder

¶91 Davolt argues the trial court abused its discretion by

refusing to instruct the jury on second degree murder. In Beck v.

Alabama, the Supreme Court held

where the evidence unquestionably establishes that the
defendant is guilty of a serious, violent offense -- but
leaves some doubt with respect to an element that would
justify conviction on a capital offense -- the failure to
give the jury the “third option” of convicting on a
lesser included offense would seem inevitably to enhance
the risk of an unwarranted conviction.

447 U.S. 625, 637 (1980). However, Beck does not require a trial

court to instruct on a lesser included offense that is unsupported

by the evidence. See Schad v. Arizona, 501 U.S. 624, 648 (1991);

State v. Landrigan, 176 Ariz. 1, 6, 859 P.2d 111, 116 (1993).

¶92 First, there is no lesser included offense to felony

murder. State v. Arias, 131 Ariz. 441, 443-44, 641 P.2d 1285,

1287-88 (1982). Second, there is little or no evidence in this

record to support a second degree murder charge. The defense

theory of the case was that Davolt did not commit the murders. The

circumstances of these murders provide a clear signal that

premeditation played a key role. The trial court did not err in

refusing to instruct on second degree murder.

K. Coercion of the First Degree Murder Verdict

¶93 Davolt argues that the trial court coerced the jury’s

first degree murder verdicts because the court sent the jury back

on three separate occasions to make changes to the verdict forms

-41-
after the jury first returned with its verdict. Again, we

disagree.

¶94 Jury coercion exists when “the trial court’s actions or

remarks, viewed in the totality of the circumstances, displaced the

independent judgment of the jurors,” State v. McCrimmon, 187 Ariz.

169, 172, 927 P.2d 1298, 1301 (1996) (quoting State v. McCutcheon,

150 Ariz. 317, 319-20, 723 P.2d 666, 668-69 (1986)), or when the

trial judge encourages a deadlocked jury to reach a verdict,

McCutcheon, 150 Ariz. at 320, 723 P.2d at 669.

¶95 Our review of the record indicates no suggestion of jury

coercion. When questioned by the judge, the jury foreperson

indicated on two occasions that the verdict forms completed by the

jury did not reflect the jury’s verdict because the jurors had not

understood how to fill out the forms. However, when the jury

returned its final verdict, the court polled each juror

individually, and each affirmed this was his or her verdict. There

is no evidence that the court’s independent judgment displaced the

judgment of the jurors. Nor is there any evidence the jury was

ever deadlocked. Davolt’s claim of jury coercion is without merit.

III. ISSUES WAIVED

¶96 Davolt has raised several issues that were not raised in

-42-
the trial court.5 None presents an issue of fundamental error.

Fundamental error is “error of such dimension that it cannot be

said it is possible for a defendant to have a fair trial.” State

v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991). We have

carefully reviewed these issues and conclude the arguments are

either 1) without factual support, 2) present no error, or 3)

constitute matters in which the error, even if it occurred, was

harmless. As none presents an issue of fundamental error, we do

not discuss any of them further. See State v. Bolton, 182 Ariz.

290, 297-98, 896 P.2d 830, 837-38 (1995).

IV. SENTENCING ISSUES

A. Automatic Filing Statute

¶97 Finally, we address Davolt’s claim that the tandem death

penalties imposed in this case under the procedure mandated by

Arizona’s Automatic Filing Statute, A.R.S. § 13-501 (2001), violate

the Eighth Amendment’s prohibition against cruel and unusual

punishment. The statute provides:

The county attorney shall bring a criminal prosecution
against a juvenile in the same manner as an adult if the
juvenile is fifteen, sixteen or seventeen years of age
and is accused of any of the following offenses: 1) First
degree murder in violation of § 13-1105 . . . .

A.R.S. § 13-501(A)(1) (emphasis added).

5
The issues include adequacy of voir dire, propriety of
reasonable doubt instruction, alleged instances of prosecutorial
misconduct, and admissibility of testimony regarding fire,
fingerprint, and other evidence.

-43-
¶98 Under Arizona law, first degree murder is a class 1

felony that is punishable by death or life imprisonment. See

A.R.S. § 13-1105(C). Arizona’s capital sentencing statute requires

that the death sentence shall be imposed if one or more aggravating

circumstances are found and there are no mitigating circumstances

sufficiently substantial to call for leniency. See A.R.S. § 13-703

(Supp. 2002).6 Thus, as a consequence of Arizona’s Automatic

Filing Statute, a sixteen- or seventeen-year-old juvenile charged

with first degree murder is automatically tried as an adult for the

offense of first degree murder which could be punishable by death

if the state determines, in its discretion, to seek the death

penalty.7

¶99 Davolt argues the death penalties imposed in this case

6
At the time of Davolt’s trial, Arizona’s capital
sentencing statute required that a judge determine the existence of
aggravating and mitigating factors and decide whether the
mitigating factors were sufficiently substantial to call for
leniency. See former A.R.S. § 13-703 (2000). The Supreme Court
subsequently held that statute unconstitutional in Ring v. Arizona,
536 U.S. 584, 609 (2002) (Ring II). The decision resulted in
Arizona’s new sentencing statute, A.R.S. § 13-703 (Supp. 2002).
Irrespective of the Ring issue, we note that neither the former nor
the current statute would alter the impact on Davolt, i.e., a
juvenile defendant charged with first degree murder under either
version would nevertheless be automatically subject to trial as an
adult for capital murder.
7
Although fifteen-year-old juveniles who commit first
degree murder must be charged as adults under Arizona’s automatic
filing statute, A.R.S. § 13-501(A)(1), they are ineligible to
receive the death penalty because of the Supreme Court’s holding in
Thompson v. Oklahoma, 487 U.S. 815 (1988), that it would offend the
Eighth Amendment to impose such a sentence on a fifteen-year-old.

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pursuant to the procedure set forth in § 13-501 violate the Eighth

Amendment’s prohibition against cruel and unusual punishment

because the statute fails to provide for individualized

consideration of a juvenile defendant’s maturity and moral

responsibility before subjecting the juvenile to trial as an adult

for capital murder.8 We review the validity of a statute de novo

and construe it, whenever possible, to uphold its

constitutionality. In re Leon G., 204 Ariz. 15, 19, ¶ 9, 59 P.3d

779, 783 (2002).

¶100 In 1996, the voters of Arizona passed Proposition 102,

the Juvenile Justice Initiative, which amended our state

constitution to provide the legislature, or the people by

referendum, with the authority to enact substantive and procedural

laws regarding all proceedings and matters affecting juveniles.

See Ariz. Const. art. 4, § 22. The amendment mandates that certain

8
Davolt is the first juvenile defendant to make an Eighth
Amendment challenge to A.R.S. § 13-501 in this court. Although we
have previously upheld the imposition of the death penalty against
defendants who were sixteen and seventeen years old at the time
their crimes were committed, no such case involved the filing of a
capital murder charge against a juvenile defendant in adult court
under the automatic filing statute. See State v. Jackson, 186
Ariz. 20, 24, 918 P.2d 1038, 1042 (1996); State v. Laird, 186
Ariz. 203, 207, 920 P.2d 769, 773 (1996); State v. Soto-Fong, 187
Ariz. 186, 191, 928 P.2d 610, 615 (1996). The trials in each of
these cases occurred before Proposition 102 was adopted and Article
4, section 22 of the Arizona Constitution was enacted. See infra ¶
100. The defendants in each of the cited cases received a transfer
hearing in which the juvenile court made an individualized
assessment of whether the defendants should stand trial as adults.

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juveniles aged 15 or older be automatically prosecuted as adults

and be subject to the same laws as adults, except as provided by

statutory exception. Id. The stated intent of Proposition 102 was

to make possible more effective and more severe responses to

juvenile crime. See In re Cameron T., 190 Ariz. 456, 459, 949 P.2d

545, 548 (App. 1997). The effect of the amendment was to divest

the juvenile courts of jurisdiction over certain juvenile

offenders, including those charged with murder. Id. at 461, 949

P.2d at 550. In 1997, the Arizona legislature enacted A.R.S. § 13-

501 to implement the provisions of Article 4, section 22 of the

Arizona Constitution.

¶101 The State is clearly vested with the authority to define

crimes, fix punishments, and establish procedure for criminal

trials. Payne v. Tennessee, 501 U.S. 808, 824 (1991). However,

state laws, including state constitutional provisions, are subject

to the overriding authority of the United States Constitution,

which imposes special limitations when a state imposes the death

penalty for a crime. Id.

¶102 The Eighth Amendment prohibits punishments that are cruel

and unusual. U.S. Const. amend. VIII. In death penalty

jurisprudence, the amendment prohibits punishment that is excessive

-- that is, disproportionate to the crime. Atkins v. Virginia, 536

U.S. 304, 311 (2002). There is a threshold below which the death

penalty cannot be imposed. Payne, 501 U.S. at 824. A societal

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consensus that the death penalty is disproportionate to a

particular offense prevents a state from imposing the death penalty

for that offense. Id.; see also Atkins, 536 U.S. at 316 (holding

the Eighth Amendment poses a constitutional bar to the execution of

mentally retarded persons). In the absence of such consensus, the

“proportionality analysis requires that we compare the ‘gravity of

the offense,’ understood to include not only the injury caused, but

also the defendant’s culpability, with the harshness of the

penalty.” Stanford v. Kentucky, 492 U.S. 361, 393 (1989)

(plurality) (citing Solem v. Helm, 463 U.S. 277, 292 (1983)).

¶103 The assessment of a defendant’s culpability is

especially important in the context of the imposition of the death

penalty on juveniles. The Supreme Court has recognized that

juvenile offenders have lower levels of maturity and culpability

than adults. Eddings v. Oklahoma, 455 U.S. 104, 116 (1982) (even

a normal 16-year-old lacks the maturity of an adult); Thompson v.

Oklahoma, 487 U.S. 815, 834 (1988) (“adolescents as a class are

less mature and responsible than adults”).

¶104 Nevertheless, in Stanford v. Kentucky, the Supreme Court

held that the Eighth Amendment’s prohibition against cruel and

unusual punishment did not erect a per se bar to the execution of

juveniles at age sixteen or seventeen years at the time of their

crimes primarily because no national consensus then existed against

the execution of such defendants. 492 U.S. at 380. In upholding

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death sentences imposed under the Missouri and Kentucky juvenile

death penalty statutes, the Court emphasized that these states

provided the individualized consideration that is constitutionally

required in the “realm of capital punishment.” Id. at 375 (citing

Lockett v. Ohio, 438 U.S. 586, 605 (1978) (individualized

consideration is a constitutional requirement in imposing the death

sentence)).

¶105 The Court reasoned that the constitutionality of the

imposition of the death penalty on a juvenile depends not on

general state laws defining ages of legal disability, but on

individualized consideration applied to the circumstances of each

juvenile defendant. See Stanford, 492 U.S. at 375. The Court

noted that the statutory schemes at issue in Stanford satisfied the

constitutional mandate for individualized consideration because

1) both schemes specifically designated age as a statutory

mitigating factor and 2) both required a juvenile transfer hearing

that provided for a consideration of that individual’s maturity and

moral responsibility as a pre-condition to transfer for trial as an

adult. Id. at 375-76.9

9
The Kentucky statute required the court to determine that
transfer to adult court would be in the best interest of the child
and the community and consider the following factors: seriousness
of the offense, maturity of the child, any prior record, prospects
for adequate protection of the public, and the likelihood of
reasonable rehabilitation. Stanford, 492 U.S. at 377 n.6. The
Missouri statute required the court to consider the seriousness of
the offense, whether it was part of a repetitive pattern of

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¶106 The State cites Thomas v. Virginia, 419 S.E.2d 606 (Va.

1992), to support its argument that Stanford’s individualized

consideration requirement is satisfied by Arizona’s recognition of

age as a statutory mitigating factor that is entitled to great

weight. See A.R.S. § 13-703(G)(5).

¶107 But even if Thomas supports the State’s argument, we

simply disagree. The focus of a mitigation hearing is on leniency,

a concept fundamentally different from the assessment of whether a

juvenile defendant has the requisite moral responsibility and

culpability to be held accountable to the same degree as an adult.

We therefore conclude that, in the context of our capital

sentencing scheme, the consideration of a juvenile defendant’s age

as a statutory mitigating factor, standing alone, is insufficient

to provide the individualized consideration required by the

Stanford decision.

¶108 Because no assessment of Davolt’s maturity was made

before trial, we cannot determine whether he possessed the

requisite responsibility and culpability to be constitutionally

eligible for the death penalty. The lack of such assessment,

however, does not necessarily require the death sentence to be

offenses, the record and history of the child, including experience
with the juvenile justice system or other courts, the
sophistication and maturity of the child determined from his home
and environmental situation, emotional condition and pattern of
living, and potential to benefit from rehabilitation. Id.

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vacated. The trial court, on remand, should make every effort to

determine, if possible, the extent of Davolt’s maturity and moral

responsibility at the time he committed the murders. Although

conducting such analysis at the present time may be difficult in

light of the several years that have passed since the crimes were

committed, see Drope v. Missouri, 420 U.S. 162, 183 (1975), the

passage of time is not necessarily fatal to the effectiveness of

such a hearing, see, e.g., United States v. Makris, 483 F.2d 1082,

1092 (5th Cir. 1973); Boltz v. Oklahoma, 806 P.2d 1117, 1121-22

(Okla. Crim. App. 1991).

¶109 If the trial court finds it cannot engage in an

appropriate determination of the issue, or if the court concludes

that when Davolt committed the offenses, he did not possess the

necessary moral responsibility and culpability to be

constitutionally eligible for the death penalty, then Davolt’s

death sentences must be vacated, and the trial court must impose

sentences of life or natural life. If, however, the court

concludes that, at the time of the offenses, Davolt indeed was a

person sufficiently mature to possess requisite moral

responsibility and culpability, then Davolt’s death sentences

cannot be said to violate the Eighth Amendment. If the trial court

finds Davolt’s death sentences constitutional, then it shall

transfer the case to this court for further action pertaining to

sentencing issues under Ring v. Arizona, 536 U.S. 584 (2002) (Ring

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II).

¶110 In sum, because we find that the consideration of age

alone as a statutory mitigating factor is insufficient in the

context of our capital sentencing scheme to provide juvenile

defendants with the individualized consideration mandated by the

Eighth Amendment, we hold that the State may not seek the death

penalty against a juvenile pursuant to Arizona’s Automatic Filing

Statute, A.R.S. § 13-501, without an individual assessment of the

juvenile’s maturity and moral responsibility at the time of the

offense. We emphasize that we do not preclude the State from

seeking the death penalty against juvenile defendants, but require

that it do so in conformity with the U.S. Constitution.

Accordingly, we remand this case to the trial court for proceedings

consistent with this opinion.

B. Ring II Error

¶111 Because we cannot say at this time whether Davolt’s death

sentences violate the Eighth Amendment, our consideration of

sentencing issues under Ring II must await the decision of the

trial court on remand. Only in the event the court finds Davolt

eligible for the death penalty will we consider the effect of Ring

II on the capital sentences heretofore imposed.

C. Sentencing on Non-Capital Counts

¶112 Davolt alleges the trial court erred by failing to

consider age as a proven mitigator when determining sentencing on

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the non-capital counts. In addition, Davolt argues the trial court

erroneously failed to allow credit for time served on the non-

capital sentences. Sentencing determinations are reviewed for

abuse of discretion. State v. Patton, 120 Ariz. 386, 388, 586 P.2d

635, 637 (1978).

¶113 Arizona law requires that the trial court “consider the

age of the defendant” as a statutory mitigating circumstance when

determining sentences imposed for non-capital offenses. A.R.S. §

13-702(D). Our review of the record indicates that the only

statutory mitigating circumstance found by the trial court with

respect to the non-capital counts was Davolt’s lack of a

significant criminal record. The trial court erred by refusing to

consider Davolt’s age as a statutory mitigating circumstance when

determining sentences on the non-capital counts. We therefore

vacate the sentences imposed on all non-capital counts and remand

those counts to the trial court for resentencing. In addition, we

note that Arizona law requires that Davolt be given credit for time

served against any term of imprisonment imposed. See A.R.S. § 13-

709(B).

CONCLUSION

¶114 We affirm Davolt’s convictions in each instance, but

remand to the trial court to determine whether, at the time of the

offense, Davolt possessed moral responsibility and culpability

sufficient to render him eligible for the death penalty.

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¶115 In addition, we vacate the sentences imposed on Davolt’s

non-capital convictions by reason of the trial court’s failure to

consider age as a statutory mitigating factor. The non-capital

counts are remanded for resentencing consistent with today’s

opinion and in accordance with Arizona’s statutory sentencing

scheme.

___________________________________
Charles E. Jones, Chief Justice
CONCURRING:

____________________________________
Ruth V. McGregor, Vice Chief Justice

____________________________________
Rebecca White Berch, Justice

____________________________________
Michael D. Ryan, Justice

____________________________________
M. Jan Florez, Judge

NOTE: Justice Andrew D. Hurwitz recused himself in this
matter and M. Jan Florez, a Judge of the Arizona Court
of Appeals, Division Two, sat in his stead, pursuant to
Article 6, § 3 of the Arizona Constitution.

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