State v. Phillips

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-99-0296-AP
Appellee, )
) Pima County
v. ) Superior Court
) No. CR-61452
KEITH ROYAL PHILLIPS, )
)
Appellant. ) O P I N I O N
)
)
___________________________________)

Appeal from the Superior Court of Pima County
Honorable Bernard P. Velasco, Judge
REVERSED IN PART; AFFIRMED IN PART

_________________________________________________________________

Janet Napolitano, Attorney General Phoenix
By Kent E. Cattani, Chief Counsel
Capital Litigation Section
and Jack Roberts, Assistant Attorney General
Attorneys for the State of Arizona

Pima County Public Defender Tucson
By Nancy F. Jones, Deputy Public Defender
Rebecca A. McLean, Deputy Public Defender
and John F. Palumbo, Deputy Public Defender
Attorneys for Phillips

_________________________________________________________________
M c G R E G O R, Vice Chief Justice

¶1 The State charged Keith Phillips with fifty-six counts of

armed robbery, kidnaping, aggravated assault, and attempted first

degree murder for three robberies that occurred in Tucson on April

12, 24, and 28 of 1998, and with one count of first degree murder

for the death of Kevin Hendricks that occurred during the third

robbery. The trial court consolidated all three incidents for a
dual jury trial with Phillips’ co-defendant, Marcus Finch.

Phillips’ jury convicted him of first degree felony and

premeditated murder, as well as most of the non-homicide counts.

Following a sentencing hearing, Judge Bernard P. Velasco sentenced

Phillips to death on December 6, 1999. Appeal to this court is

automatic and direct when the court imposes a sentence of death.

Arizona Revised Statutes (A.R.S.) § 13-703.01 (2001). We exercise

jurisdiction pursuant to Article 6, Section 5.3 of the Arizona

Constitution, A.R.S. section 13-4031 and Arizona Rule of Criminal

Procedure 31.2(b).

I.

A.

¶2 At 1:15 a.m. on April 12, 1998, Demien Purdy and his

friend Mike sat in their car in the parking lot of Famous Sam’s on

Silverbell and Grant in Tucson. They saw a gold Chrysler LeBaron

convertible driving around the parking lot. The LeBaron stopped

for a few moments, left the lot, then returned. Purdy and Mike

left the parking lot, but when they returned about ten minutes

later, they noticed the LeBaron parked with its lights turned off.

¶3 Around 1:30 a.m. that same day, Marcus Finch and a man

with a bandana covering his nose and mouth entered the Famous Sam’s

on Silverbell and Grant. Witnesses later stated that the man with

the bandana was Hispanic or white while his accomplice was black.

The black man, Finch, carried a sawed-off rifle and the other man

2
carried a handgun. The robbers ordered the employees into the

cooler. When waitress Shelly Raab saw Finch, she dropped to her

knees about one arm’s length away from him. Finch pointed the

sawed-off rifle at her chest, said, “Get in the cooler, bitch,” and

shot her in the chest. Next, Finch grabbed Raab by the hair and

dragged her to the cooler.

¶4 The robbers held office manager Beverly Rochon at

gunpoint and told her to lead them to the money. The man wearing

a bandana put his gun to Rochon’s head and told her she had ten

seconds to give him the money or he would put a hole in her head.

Rochon gave him all the money she could find and went back into the

cooler. The armed men left shortly thereafter.

¶5 Shelly Raab survived, but the bullet fragmented her

liver, lung, and stomach, and caused her to lose her spleen, a

kidney, and part of her pancreas. Raab’s injuries have left her

with a permanent limp and frequent numbness in her legs.

B.

¶6 At 10:30 p.m. on April 23, 1998, a man came into the

Firelight Lounge on Wetmore in Tucson and asked what time the bar

closed. Jaimi Ramirez Gilson, the bartender, told him she closed

at 1:00 a.m. Ms. Gilson later identified the man as Phillips. Two

hours later, Finch walked into the bar and asked for a Killian’s

Red beer. When Ms. Gilson stepped into the cooler to get the beer,

the same man who had asked for the closing time earlier that night

3
walked through the front door with what appeared to be a sawed-off

rifle and shouted, “Everybody on the fucking floor or I’m going to

blow your brains out.” Ms. Gilson tried to hide behind the bar but

Finch, who had a handgun, grabbed her by the hair, dragged her to

the cash register and told her to open it. After taking the money,

Finch dragged her to the men’s restroom and threw her inside.

¶7 Meanwhile, the robber identified as Phillips took money

from the customers and herded them into the women’s restroom when

he learned there was no cooler large enough to hold them. As

patron Bill Gilson entered the women’s restroom, Phillips shot him

once in the shoulder and once in the back. Gilson fell into the

restroom, where other patrons assisted him. The robbers left the

bar and the police arrived shortly thereafter.

¶8 Bill Gilson survived, but one of the bullets collapsed

his right lung. In addition, he lost his spleen and part of his

liver and remained in a coma for three weeks.

C.

¶9 Near midnight on April 28, 1998, Finch walked into the

Famous Sam’s located at Cardinal and Valencia in Tucson and asked

Margaret Damron, the bartender, how much a Killian’s Red beer cost.

When she answered, he told her he was going back to his car to get

some change. When Finch returned, he sat down at the bar and

ordered a beer. A few minutes later, a man subsequently identified

as Phillips walked through the front door with a sawed-off rifle

4
and opened fire at the backs of customers seated at the bar.

Phillips shot Ricardo Herrera in both arms and Mario Rodriguez in

one arm. Finch, armed with a handgun, suddenly emerged from a

restroom and told one patron, “Get down or I’ll fucking shoot you.”

Finch then saw two customers, Preston Juan and Kevin Hendricks,

fleeing out the back door. Finch followed them outside and shot

Hendricks in the back twice.

¶10 During this commotion, Damron and a customer, Sandra

Sellards, ran into the office and locked the door. Sellards took

the telephone and hid under a desk while she called 911. The man

identified as Phillips broke into the office, smashed the phone and

pointed his gun at Damron’s head. As Damron gave Phillips the

restaurant’s money, Phillips noticed a video monitor and told her,

“Give me the tape, bitch, I’m going to fucking kill you.” Although

the video camera wasn’t working, Damron gave him the tape and

begged him to leave. Damron emerged from the office thirty seconds

after the robbers left.

¶11 Shortly after midnight on April 28, 1998, Pima County

Sheriff’s Deputy Jeff Englander received a dispatch stating that

shots had been fired at the Famous Sam’s on Cardinal and Valencia.

When he arrived at the restaurant’s parking lot, he saw a gold

Chrysler LeBaron speeding out of the lot. Englander pursued the

LeBaron until it finally pulled over and stopped. Englander

ordered two men out of the car and took them into custody.

5
Englander identified the car’s occupants as Keith Phillips and

Marcus Finch. Inside the car, Englander found money, an empty gun

holster on the driver’s side where Finch had been sitting, and a

sawed-off rifle on the passenger side where Phillips had been

seated. Deputy Thomas Adduci, who searched the LeBaron pursuant to

a search warrant, found a .38 caliber handgun with a live round in

the chamber and three more in the magazine as well as .22 caliber

ammunition.

¶12 Some time after Deputy Englander took Finch and Phillips

into custody, dispatch informed him that a mall security guard had

found a body in the back parking lot of Famous Sam’s. The parties

stipulated it was the body of Kevin Hendricks. Hendricks died of

two gunshot wounds. One bullet entered the right side of

Hendricks’ back, punctured his right lung, and exited below his

collarbone. The other entered the upper part of the left side of

his back and lodged in his left lung.

D.

¶13 At trial, witnesses from all three incidents identified

Phillips as one of the two men who committed the robberies.

Furthermore, the police investigation revealed that Phillips owned

the sawed-off rifle used in all three robberies.

¶14 Phillips claimed misidentification as his sole defense.

He sought to establish this defense through discrepancies in the

victims’ descriptions of the white or Hispanic robber and of the

6
LeBaron; the absence of his fingerprints at the three locations;

and some victims’ failure to identify him from a photographic

lineup.

¶15 Phillips’ jury convicted him of several counts of

attempted murder, aggravated assault with a deadly weapon,

aggravated assault with serious physical injury, kidnaping, armed

robbery, and one count of first degree. The jurors’ answer to a

special interrogatory indicated they unanimously found both felony

and premeditated murder. Following a sentencing hearing, the trial

court found the State proved beyond a reasonable doubt the

existence of statutory aggravating factors under A.R.S. sections

13-703.F.5 (expectation of pecuniary gain) and 13-703.F.2 (prior

conviction of a serious offense).1 After finding only one proved

mitigating factor, the court concluded that either of the two

aggravating circumstances was sufficient in itself to outweigh the

mitigation.

II.

A.

¶16 Phillips argues that the counts from the three robberies

should have been severed under State v. Ives, 187 Ariz. 102, 927

P.2d 762 (1996), because the offenses occurred at different

locations and on different days, the gunmen in the first robbery

1
Ariz. Rev. Stat. (A.R.S.) section 13-703 has been revised
so that the F.5 and F.2 aggravating factors are now located at
sections 13-703.G.5 and 13-703.G.2.

7
concealed their faces while the gunmen in the two subsequent

robberies did not, and only the robbers in the third robbery killed

someone.

¶17 We have held that even if a trial court errs in denying

a defendant’s motion to sever, the error is harmless “[i]f the

evidence could have been introduced at separate trials (under Rule

404(b), Ariz. R. Evid.).” Id. at 109, 927 P.2d at 769. Rule

404(b) states that “evidence of other crimes, wrongs, or acts

is . . . admissible for . . . purposes, such as proof of . . .

identity.” Arizona Rules of Evidence (Ariz. R. Evid.) 404(b).

¶18 Here, Phillips’ sole defense was misidentification. If

Phillips had been tried for each robbery in a separate trial, the

State could have introduced evidence of the other robberies under

Rule 404(b) for the purpose of proving Phillips’ identity. Thus,

the trial court’s denial of Phillips’ motion to sever, even if

erroneous, constitutes harmless error.

B.

¶19 After conducting a Dessureault2 hearing, the trial court

admitted the photographic lineup from which witnesses identified

Phillips. Phillips argues the lineup was unnecessarily suggestive

and, therefore, the trial court erred in not excluding the out-of-

court and in-court identifications. We review the trial court’s

2
See State v. Dessureault, 104 Ariz. 380, 453 P.2d 951
(1969).

8
decision under a clear abuse of discretion standard. State v.

Atwood, 171 Ariz. 576, 603, 832 P.2d 593, 620 (1992).

¶20 Because “[l]ineups need not and usually cannot be ideally

constituted . . . the law only requires that they depict

individuals who basically resemble one another such that the

suspect’s photograph does not stand out.” State v. Alvarez, 145

Ariz. 370, 373, 701 P.2d 1178, 1181 (1985)(citations omitted). For

example, a photographic lineup may contain differences in lighting

between the defendant’s photograph and other photographs. State v.

Gonzales, 181 Ariz. 502, 509, 892 P.2d 838, 845 (1995).

¶21 Phillips’ photographic lineup contains photographs of six

men with light skin who appear white or Hispanic. Phillips’

photograph, in the sixth position, is taken from a slightly greater

distance than the other photographs. As a result, Phillips’ head

appears somewhat smaller than the heads of the other individuals.

The difference between Phillips’ photograph and the other

photographs is slight. Additionally, all of the photographs are

taken from slightly different distances.

¶22 Because the difference between Phillips’ photograph and

the other photographs does not make Phillips stand out, the trial

court did not abuse its discretion in denying the motion to

suppress. Because the photographic lineup was not unduly

suggestive, the issue whether out-of-court identifications tainted

in-court identifications becomes moot. See Dessureault, 104 Ariz.

9
at 384, 453 P.2d at 955.

C.

¶23 The trial court excused three potential jurors, Ms. C,

Ms. B, and Ms. M, after they expressed their views on the death

penalty and their ability to serve. Phillips alleges the trial

court excluded the jurors in violation of his right to a fair trial

and an impartial jury.

¶24 A trial judge “must excuse any potential jurors who

cannot provide assurance that their death penalty views will not

affect their ability to decide issues of guilt.” State v. Kayer,

194 Ariz. 423, 432 ¶ 27, 984 P.2d 31, 40 ¶ 27 (1999). Here, Ms. B

and Ms. M expressly stated their views on the death penalty would

affect their verdict. Ms. C suggested she might decide issues of

guilt independently of her views on the death penalty, but she

could not assure the court of this until she spoke with her pastor.

She could not even tell the court whether she could serve if her

pastor told her to make her own decision. Because these jurors did

not assure the court their views would not affect their ability to

decide facts in accordance with the law, the trial court did not

err.

D.

¶25 Phillips argues the trial court should have admitted

evidence that another individual, Michael Locklin, committed the

first robbery.

10
¶26 The proffered third-party culpability evidence in this

case allegedly showed that Locklin, an African-American man,

confessed to committing the first Famous Sam’s robbery. Phillips

sought to introduce evidence that Locklin had a prior history of

robbery and criminal behavior, carried a gun, and that witnesses

identified Locklin with a white man at the Famous Sam’s on

Silverbell the night before the first robbery. In addition,

Phillips wanted to offer evidence that police searched Locklin’s

apartment after the first robbery and found an empty .38 caliber

handgun box.

¶27 The trial court relied on State v. Fulminante, 161 Ariz.

237, 778 P.2d 602 (1988), to exclude Phillips’ evidence of third-

party culpability. In a recent decision, we clarified Fulminante’s

test for the admission of third-party culpability evidence. See

State v. Gibson, 2002 WL 819107 (Ariz. May 1, 2002). There, we

held that “[t]he appropriate analysis [for determining

admissibility of evidence of third-party culpability] is found in

Rules 401, 402, and 403, Arizona Rules of Evidence.” Id. at *2 ¶

12. Thus, “[i]nitially, the court must determine if the proffered

evidence is relevant.” Id. at *2 ¶ 13. In Gibson, we explained

that “[t]he proper focus in determining relevancy is the effect the

evidence has upon the defendant’s culpability. To be relevant, the

evidence need only tend to create a reasonable doubt as to the

defendant’s guilt.” Id. at *3 ¶ 16.

11
¶28 The evidence Phillips offered was not relevant because

even if Phillips could have connected Locklin to the first robbery,

evidence that Locklin was the African-American man who committed

that crime would not exculpate Phillips, who could have been the

white or Hispanic man involved in the robbery. In addition,

evidence that Locklin committed the first robbery would not

exculpate Phillips for the second and third robberies. Because

Phillips’ proffered evidence did not have a tendency to create a

reasonable doubt as to Phillips’ guilt, the evidence was not

relevant. Thus, the trial court properly excluded Phillips’ third-

party culpability evidence. See State v. Ring, 200 Ariz. 267, 276

¶ 32, 25 P.3d 1139, 1148 ¶ 32 (2001) (a trial court’s exclusion of

third-party culpability evidence does not constitute harmful error

if the evidence “would not have exculpated Defendant for his role

in both planning and committing the crimes”).

E.

¶29 After hearing argument, the trial court admitted a

photograph of Phillips holding two guns and wearing a bandana

around his forehead. Phillips asserts the court erred because the

photograph was not relevant. Alternatively, Phillips argues the

photograph’s prejudicial effect outweighs its probative value.

¶30 A trial court has “discretion to admit photographs and

will not be reversed absent a clear abuse of that discretion.”

State v. Stuard, 176 Ariz. 589, 602, 863 P.2d 881, 894 (1993). A

12
court may admit a photograph that is “relevant to an issue in the

case . . . if it helps the jury understand any disputed issue.”

Id. If a photograph is relevant but “would tend to incite passion

or inflame the jury, [its] probative value must be weighed against

any unfair prejudice caused by admission.” Id.

¶31 Here, the disputed photograph depicts Phillips holding

two handguns. One gun looks black and the other appears to be

chrome or silver. At trial, a witness to the first robbery stated

that one of the robbers carried a chrome or silver gun. The

photograph is relevant to whether Phillips committed the first

robbery because the description of one of the guns used on April 12

matches one of the guns in the photograph. Furthermore, Phillips

does not explain how the photograph’s prejudicial effect outweighs

its probative value. The trial court did not err.

F.

¶32 Phillips’ jury unanimously convicted him of felony murder

and premeditated murder. Phillips asserts he cannot be guilty of

the specific intent crime of premeditated murder because he neither

intended to shoot or kill Hendricks nor physically shot and killed

Hendricks.

¶33 In Arizona, a person commits premeditated murder if,

“[i]ntending or knowing that [his] conduct will cause death, [he]

causes the death of another with premeditation.” A.R.S. § 13-

1105.A.1. To show premeditation, the “state must prove that the

13
defendant acted with either the intent or knowledge that he would

kill his victim.” State v. Murray, 184 Ariz. 9, 32, 906 P.2d 542,

565 (1995).

¶34 The State does not argue that Phillips intended to kill

Hendricks. Rather, the State argues a jury can convict a defendant

of premeditated murder if the defendant agrees to commit a crime

with another and in the course of committing that crime, the

defendant’s accomplice commits a murder that the defendant

reasonably should have foreseen. Arizona’s accomplice liability

statutes do not permit that result.

¶35 In Arizona, a defendant “is criminally accountable for

the conduct of [his accomplices]” if he aids those accomplices in

“the commission of an offense.” A.R.S. § 13-303.A.3 (emphasis

added). The State interprets section 13-303.A.3 as making a

defendant liable for all acts of an accomplice as long as the

defendant aided the accomplice in planning or committing any

related offense.

¶36 The State’s position ignores the definition of accomplice

provided by section 13-301.2. That section defines an accomplice

as “a person . . . who with the intent to promote or facilitate the

commission of an offense . . . [a]ids, counsels, agrees to aid or

attempts to aid another person in planning or committing the

offense.” A.R.S. § 13-301.2. As the definition makes clear, a

defendant is an accomplice to an offense only if, intending to aid

14
another in committing an offense, he “[a]ids, counsels, agrees to

aid or attempts to aid another person in planning or committing the

offense.” Id. (emphasis added). For example, a defendant who

intends to aid another in committing a robbery is an accomplice to

that robbery. Under section 13-303.A.3, therefore, the defendant

would be liable for the planned robbery even though the defendant’s

accomplice actually committed the robbery.

¶37 Construing section 13-303.A.3 in a manner that would hold

a defendant liable for offenses he did not intend to aid another in

committing, on the other hand, would extend accomplice liability to

a defendant who does not even qualify as an accomplice under

section 13-301.2. For example, the State’s construction of section

13-303.A.3 would allow a defendant who did not intend to aid in an

offense to be an accomplice to that offense. To avoid this absurd

result, we hold that section 13-303.A.3 imposes criminal

accountability on an accomplice defendant only for those offenses

the defendant intended to aid or aided another in planning or

committing. In this case, if Phillips did not intend to aid Finch

in committing murder, he could not be an accomplice to murder under

the terms of the statute.

¶38 Convicting a defendant of premeditated murder by way of

the accomplice liability statute would create other anomalous

results as well. First, as the State itself conceded during oral

argument, interpreting accomplice liability as negating the

15
specific intent requirement of premeditated murder essentially

allows the State to convict a defendant of felony murder without

proving all the elements of felony murder.

¶39 A felony murder conviction requires the State to prove

that the defendant, alone or with others, committed or attempted to

commit a felony and, “in the course of and in furtherance of” that

felony, the defendant or another person caused the death of any

person. A.R.S. § 13-1105.A.2 (emphasis added). In contrast, the

State’s theory using accomplice liability would permit the State to

convict a defendant of first degree murder whenever his accomplice

commits murder during the commission of the underlying offense.

That theory would relieve the State from showing that the

defendant’s accomplice committed the murder in the course of and in

furtherance of the underlying offense, a showing essential to

establish a charge of felony murder. The legislature could not

have intended such an anomalous result.3

¶40 Furthermore, by extending accomplice liability to

premeditated murder, the State’s position ignores the specific

intent requirement of premeditated murder. As a result, the

State’s construction of section 13-303.A.3 first transforms

3
The State’s argument also raises due process concerns.
Arizona’s felony murder and accomplice statutes do not clearly give
notice that accomplice liability can provide a basis for a charge
of premeditated murder. See Lanzetta v. New Jersey, 306 U.S. 451,
452, 59 S. Ct. 618, 619 (1939) (criminal provisions must clearly
define the conduct prohibited and the punishment authorized to
satisfy the notice requirements of the Due Process Clause).

16
accomplice liability into a lesser form of felony murder and then

conflates felony murder with premeditated murder. Arizona law

provides no support for the State’s position, which would eliminate

the essential distinction between felony murder and premeditated

murder. State v. Styers, 177 Ariz. 104, 110-11, 865 P.2d 765, 771-

72 (1993) (although felony murder and premeditated murder are both

first degree murder, a defendant’s specific intent to kill

differentiates premeditated murder from felony murder); see also

State v. Walton, 159 Ariz. 571, 584, 769 P.2d 1017, 1030 (1989).

¶41 In this case, Phillips acted as Finch’s accomplice for

purposes of the robberies committed on April 12, 24, and 28, 1998,

because he intended to facilitate and did aid Finch in committing

those robberies. See A.R.S. § 13-301.2. Under section 13-303.A.3,

Phillips can be held criminally accountable for the robberies

committed by Finch. Phillips cannot, however, be classified as

Finch’s accomplice for the crime of premeditated murder because the

evidence did not show that he intended to facilitate or aid in

committing a murder.4 Accordingly, we reverse Phillips’

premeditated murder conviction.5

4
In State v. Marchesano, 162 Ariz. 308, 315, 783 P.2d 247,
254 (App. 1989), the court of appeals held that a defendant may be
liable for attempted premeditated murder under a theory of
accomplice liability. We disapprove Marchesano to the extent it
conflicts with today’s holding.
5
Because we vacate Phillips’ premeditated murder
conviction, we do not address Phillips’ argument that the trial
court erred in failing to dismiss his premeditated murder

17
 G.

¶42 Phillips also challenges his felony murder conviction.

He argues the State could not have proved felony murder beyond a

reasonable doubt because the trial court’s special verdict in

Finch’s case stated that Finch engaged in an act of gratuitous

murder when he shot and killed Hendricks. Phillips reasons that

because Arizona’s felony murder statute does not include gratuitous

murder, no felony murder occurred.

¶43 To prove felony murder, the State must show that the

defendant, acting alone as a principal or with one or more other

persons, commits or attempts to commit a felony “and in the course

of and in furtherance of the offense or immediate flight from the

offense, the person or another person causes the death of any

person.” A.R.S. § 13-1105.A.2.

¶44 Phillips, acting with Finch, committed a felony. Finch

shot and killed Hendricks during the course of that felony so he

and Phillips could successfully complete the robbery without

detection. Because the State demonstrated that Phillips committed

a felony and that Hendricks was murdered in the course of and to

further that felony, the evidence at trial sustains Phillips’

felony murder conviction.

conviction.

18
 H.

¶45 Phillips claims the prosecutor’s allegedly inflammatory

and improper statements violated his right to a fair trial. The

trial court denied Phillips’ motion for mistrial based on

prosecutorial misconduct. Phillips did not object to the

prosecutor’s allegedly inflammatory statements during closing

arguments.

¶46 We will not disturb a trial court’s order denying a

motion for mistrial based on prosecutorial misconduct absent a

clear abuse of discretion. State v. Lee, 189 Ariz. 608, 616, 944

P.2d 1222, 1230 (1997). We consider whether the prosecutor’s

statements “called jurors’ attention to matters the jury was not

justified in considering in determining its verdict” and “the

probability that the jurors were in fact influenced by the

remarks.” Id.

¶47 Phillips moved for mistrial because the prosecutor’s

opening arguments referred to Phillips’ actions as terrorizing;

described victims as cowering, hiding, and praying to God Almighty;

and stated that Phillips appeared outraged, beyond control, and

absolutely terrifying. The prosecutor’s statements did not call

jurors’ attention to matters the jury could not consider because

Phillips’ actions and state of mind were relevant to the charges

against him. Moreover, if the prosecutor’s statements constituted

improper opening remarks, they simply repeated witness testimony

19
regarding those same facts. Thus, the trial court did not abuse

its discretion in denying Phillips’ motion for mistrial.

¶48 Because Phillips did not object to the prosecutor’s

statements during closing arguments, we review for fundamental

error only. State v. Valdez, 160 Ariz. 9, 13-14, 770 P.2d 313,

317-18 (1989). Fundamental error “goes to the heart of the

defendant’s case or takes from him a right essential to his

defense.” Id. Phillips claims the State violated his rights when

the prosecutor stated that several pieces of evidence offered by

the defense were “one way of trying to confuse you about the issues

in this case,” and again when the prosecutor, in talking about a

defense quotation from a book called Basic Truths, described “some

irony there perhaps in terms of what the defense is based on.”

Neither of these statements goes to Phillips’ defense, which is

based on misidentification. The trial court’s denial of Phillips’

motion for mistrial did not constitute fundamental error.

III.

A.

¶49 The death penalty may not be imposed for a felony murder

conviction “unless the defendant was a major participant in the

underlying felony and acted with reckless disregard for human

life.” State v. Nordstrom, 200 Ariz. 229, 256 ¶ 94, 25 P.3d 717,

744 ¶ 94 (2001) (citing Tison v. Arizona, 481 U.S. 137, 158, 107 S.

20
Ct. 1676, 1688 (1987); Enmund v. Florida, 458 U.S. 782, 797, 102 S.

Ct. 3368, 3377 (1982)). In its special verdict, the trial court

stated that although Phillips did not fire the gun that killed

Kevin Hendricks, he substantially participated in the underlying

felonies and showed a reckless indifference to human life. Because

Phillips not only fully participated in planning and carrying out

the April 28 robbery but also indiscriminately fired into a group

of customers at the Famous Sam’s restaurant, the trial court

correctly found the Enmund/Tison factors satisfied.

B.

¶50 Phillips asserts the trial court improperly considered

victim impact statements in preparing its special verdict. We

disagree.

¶51 Absent indication to the contrary, we presume that a

trial court considered only evidence properly related to its

sentencing decision. State v. Clabourne, 194 Ariz. 379, 390, ¶ 53

983 P.2d 748, 759 ¶ 53 (1999). Although a trial court may not

consider victim impact statements for purposes of finding

aggravation, a court may consider such statements to “rebut the

defendant’s mitigation evidence.” State v. Mann, 188 Ariz. 220,

228, 934 P.2d 784, 792 (1997).

¶52 In its special verdict, the trial court explicitly noted

that it did not consider any presentence report or victim impact

21
information with respect to the aggravating factors. Furthermore,

nothing in the trial court’s sentencing memorandum suggests it

considered victim impact statements when finding the aggravators.

C.

¶53 Phillips challenges the court’s finding with respect to

aggravating factors. First, Phillips argues the trial court erred

in finding he committed Hendricks’ murder for pecuniary gain

because he did not physically kill Hendricks.

¶54 When a defendant commits murder “as consideration for the

receipt, or in expectation of the receipt, of anything of pecuniary

value,” the court shall consider this an aggravating circumstance.

A.R.S. § 13-703.F.5 (2001). In State v. Sansing, 200 Ariz. 347,

353 ¶ 13, 26 P.3d 1118, 1124 ¶ 13 (2001), we held that “[a] murder

committed in the context of a robbery or burglary is not per se

motivated by pecuniary gain. Rather, we reserve the death penalty

for murders committed during a robbery or burglary for those cases

in which the facts clearly indicate a connection between a

pecuniary motive and the killing itself.” Furthermore, “[w]hether

the needed connection exists between expected pecuniary gain and

the motive for killing involves a highly fact-intensive inquiry.”

Id. at 354 ¶ 15, 26 P.3d at 1125 ¶ 15.

¶55 The trial court correctly found F.5 because Phillips’

expectation of pecuniary gain and the murder of Hendricks are

22
clearly connected. Specifically, Phillips’ desire for money caused

him to fire into a bar full of people, and hearing shots fired in

the restaurant resulted in Hendricks’ escape attempt. Finch

followed and shot Hendricks to permit him and Phillips to obtain

and keep the robbery proceeds. Accordingly, we affirm the trial

court’s F.5 finding.

¶56 Second, Phillips asserts the trial court erred in finding

the F.2 aggravator because the court considered convictions from

the third robbery. An aggravating circumstance exists when “[t]he

defendant was previously convicted of a serious offense, whether

preparatory or completed.” A.R.S. § 13-703.F.2. (2001).

Convictions for crimes consolidated for trial purposes with the

murder charge satisfy F.2. State v. Gretzler, 135 Ariz. 42, 57,

659 P.2d 1, 16 (1983). Convictions which arise from the same set

of events as the murder charge, however, should not be considered

when determining the existence of the F.2 factor. Id. at 57 n.2,

659 P.2d at 16 n.2.

¶57 In finding F.2, the trial court considered Phillips’

convictions from the Famous Sam’s on Silverbell, the Firelight

Lounge, and the Famous Sam’s on Valencia. While the trial court

correctly considered Phillips’ convictions from the first two

robberies, it erred in relying on the convictions from the third

robbery. Phillips’ twenty-five convictions for armed robbery,

23
kidnaping, and aggravated assault from the first and second

robberies, however, satisfy F.2. In addition, Phillips had been

convicted of armed robbery and aggravated assault in September 1998

for a robbery he committed on April 26, 1998. Therefore, the trial

court’s F.2 finding is supported.

D.

¶58 Phillips asserts the trial court erred in not finding or

not giving adequate weight to several mitigating factors. We

disagree.

1.

¶59 The trial court rejected Phillips’ claim that his use of

crack cocaine on the night of the third robbery, a history of

substance abuse, and a difficult childhood significantly impaired

his capacity to appreciate the wrongfulness of his conduct.

¶60 A statutory mitigating factor exists when “[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.” A.R.S. § 13-703.G.1 (2001).6 Here,

Phillips’ video-taped confession, taken no more than two hours

after his arrest, does not demonstrate any impairment. Rather, the

6
A.R.S. section 13-703.G.1 is now found at section 13-
703.H.1. (Supp. 2001).

24
video depicts Phillips clearly and coherently answering questions

regarding all three robberies. Additionally, Phillips told

officers he did not use drugs during the third robbery even though

he had been using drugs since the first robbery. Moreover,

unsubstantiated, self-reported drug use is insufficient to

establish this mitigating factor. State v. Poyson, 198 Ariz. 70,

80 ¶ 33, 7 P.3d 79, 89 ¶ 33 (2000). Because Phillips presented

minimal evidence that he was using crack cocaine when he committed

the third robbery and no evidence he was impaired during the third

robbery, the trial court did not err.

¶61 Similarly, although Phillips presented evidence of

substance abuse and a difficult childhood, he did not offer any

evidence that these factors caused him to commit the robberies.

See State v. Jones, 188 Ariz. 388, 400, 937 P.2d 310, 322 (1997)

(holding a history of substance abuse is not mitigating unless the

defendant proves the drug usage impaired his ability to appreciate

the wrongfulness of his conduct); Clabourne, 194 Ariz. at 387 ¶ 35,

983 P.2d at 756 ¶ 35 (holding a difficult childhood is not

mitigating unless the defendant can “link his family background to

his murderous conduct or to otherwise show how it affected his

behavior”). The trial court did not err in rejecting this

mitigating factor.

25
 2.

¶62 Phillips asserts his minor participation in Hendricks’

death as a mitigating factor. The evidence at trial, however,

showed that Phillips initiated the third robbery by opening fire

into a bar full of patrons. Hendricks fled as a result of

Phillips’ firing, and Finch shot and killed Hendricks because he

tried to escape. Because Phillips’ actions recklessly endangered

human life, the trial court correctly found minor participation

unproven.

3.

¶63 The trial court also rejected Phillips’ age as a

mitigating circumstance because although Phillips was only 20 years

old when he committed the robberies, he acted in an experienced,

determined, and deliberate manner.

¶64 In considering age as a mitigator, a trial court should

consider a defendant’s level of intelligence, maturity,

participation in the murder, and criminal history. Id. at 386 ¶

28, 983 P.2d at 755 ¶ 28. Additionally, “average level of

intelligence” and “major participa[tion] in the crime . . . have

tended to weigh against age as a mitigating circumstance.” Id. at

386 ¶ 29, 983 P.2d at 755 ¶ 29.

¶65 Phillips does not dispute that he possesses average

intelligence. More importantly, he substantially participated in

26
the crime, not only by opening fire into Famous Sam’s but also by

planning the robberies and providing the weapons and vehicle for

the robberies. We affirm the trial court’s finding.

4.

¶66 Phillips argues the trial court erroneously rejected

familial responsibility as a mitigator because he lived with and

supported his wife and two adopted stepdaughters.

¶67 The only testimony regarding Phillips’ relationship with

his wife and daughters came from Chess Sexton, Phillips’ mother’s

former husband, and Cecelia Dexter, Phillips’ adoptive mother’s

mother. Sexton simply stated he thought Phillips was close to his

wife and stepdaughters. Likewise, Dexter, who had never met

Phillips’ wife or children, stated she had received a Christmas

card from Phillips depicting his wife and stepdaughters. Phillips’

wife did not testify that he assumed family responsibility. The

trial court did not err.

5.

¶68 The trial court rejected family support as a mitigator

because although Phillips proved he enjoys the love and support of

his family, his family’s love and his love of them did not keep him

from engaging in murderous conduct. Familial support, alone, is

insufficient to overcome aggravation. See State v. Rienhardt, 190

Ariz. 579, 592, 951 P.2d 454, 467 (1997). Thus, the trial court

27
did not err.

6.

¶69 Phillips argues he proved remorse when he delivered an

apologetic statement to the victims and victims’ families at his

aggravation and mitigation hearing. The trial court, however, did

not find remorse.

¶70 “Where the trial judge disbelieves a defendant’s

statements claiming remorse, the circumstance is generally not

established.” State v. Schackart, 190 Ariz. 238, 253-54, 947 P.2d

315, 330-31 (1997). Because the trial court observed Phillips

throughout his trial and sentencing, we affirm its finding that

this mitigator was unproven.

7.

¶71 In its special verdict, the trial court stated it would

not consider Phillips’ felony murder conviction as a mitigating

factor because the jury unanimously found the defendant guilty of

first degree premeditated murder in addition to felony murder.

Because we reverse Phillips’ premeditated murder conviction today,

we consider whether Phillips’ lack of intent to kill is a

mitigating factor.

¶72 A felony murder verdict’s mitigating potential is offset

by a defendant’s “major participation in the planning and execution

of the crime.” State v. Dickens, 187 Ariz. 1, 25, 926 P.2d 468,

28
492 (1996). Phillips acted as a major participant in the planning

and execution of the three robberies culminating in the death of

Kevin Hendricks. Therefore, we give no weight to Phillips’ felony

murder conviction as a mitigating factor.

E.

¶73 Phillips also argues the trial court did not consider his

statutory mitigating factors as nonstatutory mitigators because the

special verdict does not discuss Phillips’ history of substance

abuse, his difficult childhood, his alleged minor participation,

and his age as nonstatutory mitigating factors.

¶74 A trial court’s special verdict need not be “a laundry

list of findings on every nuance or every issue raised by a

defendant.” State v. Kiles, 175 Ariz. 358, 369, 857 P.2d 1212,

1223 (1993). Rather, the trial court need only consider the

evidence and resolve the relevant factual issues. Id. Because the

only support for Phillips’ argument is that the trial court did not

discuss statutory mitigators as nonstatutory mitigators, we find no

error.

F.

¶75 Phillips next claims the trial court improperly

considered Finch’s confession during his sentencing. Specifically,

Phillips states the trial court erred when it adopted as proven

beyond a reasonable doubt certain factual statements, which

29
Phillips alleges were derived from Finch’s confession, set forth in

the State’s sentencing memorandum. Phillips also argues that the

trial court considered Finch’s statements when concluding that

Phillips provided the car, guns, and impetus to start the last

round of robberies, kidnapings, and aggravated assaults.

¶76 Phillips fails to demonstrate that the trial court

considered Finch’s statements when it incorporated the State’s

sentencing memorandum into its special verdict and found that

Phillips provided the car, guns and impetus to commit the third

robbery. Phillips’ video-taped confession contained all the

factual information Phillips claims the trial court derived from

Finch’s confession. We find no error.

G.

¶77 The trial court relied on Phillips’ prior felony

convictions from the robbery he committed alone on April 26, 1998,

to enhance his non-homicide convictions from the April 12, 24, and

28 robberies. Phillips argues that because he was not convicted of

the April 26 robbery until after he had committed the April 12, 24,

and 28 robberies, the trial court could not use the April 26

convictions.

¶78 We have previously rejected this argument. A trial court

may use a prior felony conviction for enhancement purposes whenever

“the conviction on the prior offense . . . precede[s] the

30
conviction on the present offense.” State v. Thompson, 200 Ariz.

439, 441 ¶¶ 6-7, 27 P.3d 796, 798 ¶¶ 6-7 (2001). Phillips’

convictions from the April 26 robbery were entered before his

convictions for the April 12, 24, and 28 robberies. Thus, the

trial court correctly concluded that Phillips’ April 26 convictions

constituted historical prior felonies for purposes of enhancing the

non-homicide sentences stemming from the April 12, 24, and 28

robberies.

H.

¶79 Recognizing that the Ninth Circuit Court of Appeals

upheld dual juries in Lambright v. Stewart, 191 F.3d 1181, 1186

(1999), Phillips argues that the trial court’s use of dual juries

violated his constitutional rights.

¶80 A trial court has discretion to use dual juries. Hedlund

v. Sheldon, 173 Ariz. 143, 145, 840 P.2d 1008, 1010 (1992).

Furthermore, the use of dual juries is “not inherently prejudicial”

to the defendant. Id. Because Phillips fails to demonstrate that

the trial court’s use of dual juries violated his rights, we find

no error.

IV.

¶81 The trial court correctly found the F.5 and F.2

aggravating factors in this case. Phillips’ only proven mitigation

consisted of the support he receives from his family.

31
Independently considering those factors, we conclude the

aggravating circumstances far outweigh the mitigators.

V.

¶82 Phillips states that he joins Finch’s arguments on the

trial court’s reasonable doubt instruction,7 on Apprendi v. New

Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), on pecuniary gain,

and on issues raised to avoid preclusion. We reject those

arguments for the reasons set forth in State v. Finch, ___ Ariz.

___, ___ P.3d ___ (2002).

VI.

¶83 For the foregoing reasons, we reverse Phillips’

conviction for premeditated murder and affirm his remaining

convictions and sentences.

__________________________________
Ruth V. McGregor, Vice Chief Justice

CONCURRING:

_______________________________
Charles E. Jones, Chief Justice

7
See State v. Portillo, 182 Ariz. 592, 898 P.2d 970
(1995).

32
______________________________
Stanley G. Feldman, Justice

_________________________________
Thomas A. Zlaket, Justice (Retired)

__________________________________
Edward C. Voss, Judge*

*Pursuant to Ariz. Const. Article VI, Section 3, the Honorable
Edward C. Voss, Chief Judge of the Court of Appeals, Division One,
was designated to sit on this case.

33