State v. Lehr

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Supreme Court
) No. CR-97-0317-AP
Appellee, )
vs. ) Maricopa County
) No. CR-92-05731
SCOTT ALAN LEHR, )
) O P I N I O N
Appellant. )
___________________________________)

Appeal from the Superior Court of Maricopa County
The Honorable Stephen A. Gerst, Judge

AFFIRMED IN PART
REVERSED IN PART
REMANDED

_________________________________________________________________

Janet A. Napolitano, Arizona Attorney General Phoenix
By Paul J. McMurdie, Former Chief Counsel,
Criminal Appeals Section
Kent E. Cattani, Chief Counsel,
Capital Litigation Section
Colleen L. French, Deputy Maricopa County Attorney
(Former Assistant Attorney General)
Attorneys for Appellee

Lisa Marie Martin Phoenix
Attorney for Appellant
_________________________________________________________________

Z L A K E T, Justice.

¶1 Scott Alan Lehr appeals from his convictions and

sentences on three counts of first degree murder, three counts of

attempted first degree murder, two counts of aggravated assault,

seven counts of kidnapping, thirteen counts of sexual assault, one
count of attempted sexual assault, four counts of sexual conduct

with a minor, and four counts of sexual assault with a child under

the age of fourteen years. We have jurisdiction pursuant to

Arizona Constitution article VI, section 5(3), Arizona Rules of

Criminal Procedure 26.15, 31.2(b), and Arizona Revised Statutes

section 13-4031.

I. FACTS

¶2 The charges against the defendant stem from separate

attacks upon ten different women over the course of approximately

one year. They are as follows:

A. W.C.1

¶3 On the afternoon of February 13, 1991, W.C. was forty-

eight years old. She stood four feet eleven inches tall, and

weighed ninety pounds. W.C. was walking near 27th Avenue and

Camelback when she accepted a ride from a man in a car. Instead of

taking her home, he drove to an area north of the city via the I-17

freeway. At one point during the drive, the man choked her into

unconsciousness. She awoke as the car was pulling into the desert.

The perpetrator ordered the victim to remove her clothes, which she

did. He then forced her to perform oral sex, vaginally raped her,

and shoved her into a ravine. The naked victim was later found

1
Given the nature of these crimes, victims are identified
by initials in order to protect their privacy and that of their
families.

2
walking along a road, wrapped in an old piece of carpet.

¶4 During the subsequent investigation, the victim picked

the defendant out of a photographic lineup. At trial, however, she

identified as her attacker a man standing in the back of the

courtroom who was not the defendant. The crime laboratory of the

Department of Public Safety (DPS) found a five-probe match between

the defendant’s DNA and a sample taken from the victim’s vagina.

B. T.H.

¶5 On the afternoon of February 23, 1991, T.H. was eighteen

years old, five feet four inches tall, and she weighed

approximately one hundred pounds. She was walking on 16th Street

between Thomas and McDowell when she accepted a ride from a man in

a car. The man agreed to take her to a destination about a mile

and a half south. Instead, he drove onto the I-17 freeway heading

north. After exiting the freeway at Happy Valley Road, the car

drove into the desert and stopped. The perpetrator pulled off

T.H.’s clothes and raped her both vaginally and anally. As the

victim subsequently exited the vehicle, she got a glimpse of the

license plate.2 The rapist ordered her to run. When she

hesitated, he threw a rock that struck her in the chest. He

continued to throw rocks at her as she fled. The victim made a

2
The victim testified that the plate began with the letters
ADW and ended in either 915 or 515. During the relevant time,
the defendant owned a Chevrolet with license plate ADW-015.

3
tentative identification of the defendant at a live lineup,3 and

then positively identified him as her attacker at trial.

C. S.G.

¶6 On the afternoon of March 23, 1991, S.G., thirty-four

years old, five feet three inches tall and weighing approximately

one hundred five pounds, was waiting for a bus at 16th Street and

Glendale. She accepted a ride from a man who drove north on the I-

17 freeway, past Happy Valley Road. He then went down a dirt road

and into the desert. The perpetrator pulled off S.G.’s clothes and

vaginally raped her with his fingers and his penis. The victim

remained in the car and put her clothes back on while the man drove

back toward the city. Upon reaching the end of the dirt road, he

said, “This is close enough to civilization. Get out.” She did,

and as he drove off she saw part of his license plate.4 The victim

identified the defendant as her assailant at a live lineup and at

trial.

D. C.Z.

¶7 On the afternoon of April 4, 1991, C.Z. was twenty-one

years old, four feet eleven inches tall, and she weighed ninety to

3
The victim said she was less than 100% sure that the
defendant was her assailant at the live lineup. At trial, she
explained that she did not want to say 100% because at the lineup
she “hadn’t seen him move or he didn’t seem vicious . . . . [She]
felt sorry for him.”
4
The victim testified that the license plate contained
either the letters ADW or AOW. See also note 2, supra.

4
ninety-five pounds. She was walking near 19th Avenue and Bell Road

when she accepted a ride from a man in a car. C.Z. agreed to meet

this man’s wife to talk about a housekeeping job. The man drove to

a dirt road in the desert off of Happy Valley Road. He then told

the victim that this was a good place to have sex. When she

refused, he choked her. The victim relented and took off her pants

at the man’s order. The perpetrator pushed up her shirt, fondled

her breasts, forced her to perform oral sex, then vaginally raped

her. He pulled her out of the car by the neck and she lost

consciousness. The attacker then apparently struck her head with

or against a rock. C.Z. was ultimately found walking on the

freeway, naked except for her socks. Defendant’s fingerprint was

discovered on a paper cup found at the scene. The victim

identified the defendant as her assailant at a live lineup and at

trial.

E. J.T.

¶8 On the morning of October 24, 1991, J.T. was thirteen

years old, five feet three inches tall, and she weighed one hundred

ten pounds. She was walking near 19th Avenue and Union Hills Drive

when she was offered a ride to her aunt’s house from a man in a

car. Her aunt was not home and she accepted an invitation from the

man to go meet his family. The man drove up 19th Avenue and into

a desert area near Deer Valley Road. He told J.T. that they were

“going to have sex.” When she tried to escape, he choked her. The

5
victim relented and the man took off her clothes. He performed

oral sex on her, vaginally raped her with his penis, and forced her

to perform oral sex on him. He ordered the victim out of the car,

beat her head against the ground, and then choked her into

unconsciousness. DPS found a four-probe match between the

defendant’s DNA and a sample obtained from the victim’s vagina.

The victim identified the defendant as her assailant at a live

lineup and at trial.

F. M.C.

¶9 On November 8, 1991, M.C. was in her mid-thirties and

stood five feet four inches tall. She weighed one hundred fifteen

to one hundred twenty pounds. She was last seen very early in the

morning at a convenience store on the corner of 16th Street and

Indian School. Later that day, M.C.’s body was found lying on a

dirt road in an orchard near 59th Avenue and Utopia. Her sweater

was unzipped and her bra was pushed up over her breasts. Her pants

were pulled down. Her skull was fractured on both sides. There

were two blood stained rocks at the scene, one with hair stuck to

it. She had died from blunt force trauma to the head. Semen was

found in her vagina and rectum. DPS identified a five-probe match

between the defendant’s DNA and a sample found on the victim.

G. J.A.

¶10 On the night of November 18, 1991, J.A. was only ten

6
years old and four feet eight inches tall. She weighed one hundred

ten pounds. She was walking near 35th Avenue and Camelback when

she accepted a ride from a man in a car. The man drove her to a

convenience store, where he bought a soft drink and a bottle of

hand lotion. The perpetrator then drove north into the desert near

99th Avenue and Beardsley Road. He removed his trousers and her

pants, applied lotion to his penis and her vagina, attempted to

penetrate her both vaginally and anally, then forced her to perform

oral sex. After he was finished, he left J.A. in the desert. The

victim identified the defendant as her attacker at trial.

H. B.C.

¶11 On January 20, 1992, B.C. was twenty-one years old, five

feet tall, and she weighed one hundred to one hundred ten pounds.

That night she left her apartment at 15th Street and Cave Creek

Road, intending to hitchhike to a friend’s house near 16th Street

and Northern. That was the last time B.C. was seen alive. Her

remains were found almost six months later near the Central Arizona

Project canal and I-17. The body was severely decomposed; it was

missing one arm and both legs. Her skull was fractured in several

places. She had died from massive blunt force trauma to the head.

At the scene, police found several scattered items, including a

sweater, bra, blue jeans, and panties. A forensic anthropologist

estimated that the victim had been dead from three to six months.

Absence of body fluid on the clothes indicated that they were not

7
on the body while it decomposed. A ring, later identified as

belonging to the victim, was found in the defendant’s home.

I. M.M.

¶12 On the afternoon of February 7, 1992, M.M. was nineteen

years old. She stood five feet one inch tall and weighed one

hundred seven pounds. She was dropped off at 35th Avenue and

Peoria by her roommate. M.M. was last seen getting into a black

truck with a man at a convenience store located on that corner.5

Almost two weeks later, her body was discovered in the desert near

the Carefree Highway and I-17. She was wearing only a top, which

was pushed up over her breasts. There was evidence of vaginal

bruising. She had lacerations to her scalp, and her skull was

fractured in several places. A bloody rock was found at the scene.

The victim had died from blunt force trauma to the head. There was

semen found in her anus. DNA testing of the semen was

inconclusive, but DPS could not exclude the defendant as a possible

donor.

J. E.R.

¶13 On the night of February 23, 1992, E.R. was fourteen

years old, approximately five feet eight inches tall and she

weighed between one hundred eighty and two hundred ten pounds. She

5
Neither the eyewitness description of the truck nor of the
man suggested that he was the defendant.

8
was walking along Indian School Road toward 19th Avenue when she

accepted a ride from a man in a car. He drove north out of the

city and pulled onto a dirt road near Lake Pleasant. In the car,

the perpetrator removed the victim’s underwear, forced her to

perform oral sex, and vaginally raped her. He then took her out of

the car and forced her to perform oral sex again. Afterwards, as

E.R. bent to pick up her sweater, she was struck in the head with

a heavy object. The next day, she was found wandering near Lake

Pleasant. Badly injured, she was wearing only a shirt, a shoe, and

a sock. DPS found a five-probe match between the defendant’s DNA

and a sample taken from the victim’s vagina. The victim identified

the defendant as her assailant at a live lineup and at trial.

K. DEFENDANT’S TESTIMONY

¶14 During the year in question, the defendant was a tree-

trimmer familiar with the desert areas north of Phoenix. He owned

two cars, each of which was identified by victims as the vehicle

driven by their attacker. Nonetheless, he denied ever meeting any

of the victims. He did not offer to explain how his DNA could be

linked to four of the women or how his fingerprint was found at the

scene of one of the attacks. As for the ring found in his home, he

claimed to have bought it at a garage sale. He said that he gave

it to his wife for Christmas, prior to the date of B.C.’s death.

9
 II. PROCEDURAL HISTORY

¶15 The defense sought to have the proceedings severed into

ten separate trials, one for each victim. Judge Stephen A. Gerst

refused, except for counts relating to three of the sexual

assaults, which were consolidated for a separate trial.6 This left

counts pertaining to three homicides and four sexual assaults

joined in the capital proceeding. Both trials were conducted in

front of Judge Gerst. After the juries returned verdicts, the

matters were re-consolidated for sentencing.

III. TRIAL ISSUES

A. PRECLUSION OF EVIDENCE

1. Right to Confront Adverse Witnesses

¶16 Defendant claims that limits placed upon cross-

examination at trial violated his fundamental right to confront

adverse witnesses under the Sixth and Fourteenth Amendments to the

United States Constitution.7 See Pointer v. Texas, 380 U.S. 400,

6
With respect to the sexual assault counts that were
severed, each of the victims -- J.T., S.G., and T.H. -- had been
hypnotized at some point in the investigation of the crimes.
Presumably, the trial court sought to insulate the capital cases
from the taint of any post-hypnosis testimony. However, the
judge did allow two of these sexual assault victims to testify in
the capital trial.
7
The defendant also asserted his confrontation right under
article II, section 24 of the Arizona Constitution, and Arizona
Revised Statutes section 13-114(3), but did not brief or argue
this claim. Because federal law is sufficient to decide the

10
403, 85 S.Ct. 1065, 1068 (1965); State ex rel. Collins v. Superior

Ct., 132 Ariz. 180, 187, 644 P.2d 1266, 1273 (1982). We agree.

Moreover, because we cannot say beyond a reasonable doubt that this

error had no effect on seven of the thirty-seven verdicts in this

case, including two of the first-degree murder convictions, we must

reverse them.

a) The Frye Hearing

¶17 Arizona adheres to the Frye standard in ruling on the

admissibility of novel scientific evidence. State v. Bible, 175

Ariz. 549, 580, 858 P.2d 1152, 1183 (1993) (citing United States v.

Frye, 293 F. 1013 (D.C. Cir. 1923)). Three conditions must be

satisfied for the receipt of such evidence. The proponent must

first demonstrate that the principles being applied are “generally

accepted in the relevant scientific community.” Bible, 175 Ariz.

at 578, 858 P.2d at 1181. The court must also decide the general

acceptance of the technique(s) being used in the application of

such principles. State v. Tankersley, 191 Ariz. 359, 364-65, 956

P.2d 468, 491-92, ¶ 14 (1998). Finally, there needs to be a

foundational showing that correct procedures were followed in a

given case. This foundation is distinct from the Frye finding

itself and, in the judge’s discretion, may initially be provided at

matter, we do not discuss or rely upon these state provisions.

11
trial in front of the jury rather than at a separate hearing.

Bible, 175 Ariz. at 580-81, 858 P.2d at 1183-84.

¶18 Prior to the start of testimony, the defendant’s case was

consolidated with seven others for the limited purpose of a Frye

hearing. This proceeding took place in front of Judge Ronald

Reinstein. Its objective was to determine the admissibility of DNA

evidence processed at the DPS laboratory.

¶19 At the hearing, Judge Reinstein took notice of the fact

“that the principles and theory underlying DNA analysis in forensic

labs are generally accepted in the scientific community, and that

DNA RFLP [restriction fragment length polymorphism] procedures in

particular meet the Frye test of general acceptance as well.” He

then declared that his principal task was to determine “whether the

DPS DNA lab’s RFLP protocol meets the general acceptance test.” A

substantial portion of the Frye hearing was devoted to this

inquiry.8

¶20 A protocol describes the manner in which a particular

type test is to be performed. DPS originally based its protocol

for RFLP testing on that of the FBI. During the Frye hearing, the

defense attacked the DPS protocol, focusing on modifications the

8
The Frye hearing also addressed several methods for
calculating the statistical probability of a random match, which
are not at issue in this case.

12
lab had made to FBI procedures. Specifically, the defense

questioned variations in the use of ethidium bromide and

differences in the length of gels.

¶21 The defense also criticized the DPS validation studies.

Such studies are designed by a lab to verify that it can reliably

perform the testing procedures established in the protocol. As

such, they can be essential to quality control. David H. Kaye &

George F. Sensabaugh, Jr., Reference Guide on DNA Evidence, in

Reference Manual on Scientific Evidence 485, 510 (Fed. Judicial

Ctr. ed. 2000). The defense attack focused on a lack of

documentation, numerous technical errors, and the apparent

manipulation of autorads in the DPS validation studies.9

¶22 Ultimately, Judge Reinstein concluded that DNA evidence

from the lab was admissible because the DPS RFLP protocol was

generally accepted in the relevant scientific community. As for

the validation studies, the judge was not persuaded that the

alleged errors called the DPS protocol into question. Instead, he

found “that the validation studies are really in the guise of

training exercises and experiments.” In the judge’s view, “actual

casework validates the laboratory protocol daily. The ‘proof is in

the pudding’ . . . .”

9
For example, in one validation study bands had been
“penciled in” on the autorads prior to computer analysis.

13
 b) Precluded Cross-Examination at Trial

¶23 The defendant sought to cross-examine the state’s DNA

experts about the DPS protocol. The prosecution moved to preclude

this evidence, arguing that permitting such cross-examination would

allow the defense to relitigate issues that had already been

decided by Judge Reinstein. Judge Gerst agreed, finding that

issues relating to the reliability of the DPS protocol were “not

reviewable by this jury as issues to be decided in this case.” The

judge looked to Arizona Rule of Evidence 403 and found that the

danger of juror confusion substantially outweighed the probative

value of cross-examination. The crux of his ruling was that the

laboratory’s underlying methodology was not within the jury’s

province. He limited cross-examination to “attacks on lab analysis

error, individual case matching, lab slop, and things of that

nature.”10

c) Admissibility and Weight

¶24 It is a basic maxim that judges determine admissibility

of evidence and juries decide what weight to give it. As Wigmore

puts it, “[w]hen evidential data are once admitted by the judge and

there is a sufficiency of them to entitle the case to go to the

10
Judge Gerst admitted, “that’s [a] subject which obviously
I could be wrong on and we can have reasonable disagreement on,
and the appellate court can tell me if I am.”

14
jury, their individual and total weight or probative value is for

the decision of the jury.” 9 John Henry Wigmore, Wigmore on

Evidence § 2551, at 664 (Chadbourn rev. 1981). Likewise, it is

standard practice not “to give jurors a chance to consider issues

already decided by the judge, sometimes referred to as a ‘second

bite at the apple.’” Jack B. Weinstein & Margaret A. Berger,

Weinstein’s Federal Evidence § 104.60(2) (Joseph M. McLaughlin ed.,

2d ed. 2001).

¶25 The state’s position assumes that because the evidence

was originally presented at the Frye hearing, repeating it at trial

would challenge Judge Reinstein’s ruling regarding general

acceptance of the protocol, thus providing a “second bite at the

apple.” This argument fails to recognize that very often the same

proof used to establish admissibility also impacts weight and

credibility.

¶26 A Frye determination is a preliminary finding regarding

the admissibility of scientific evidence and expert qualifications.

It is the judge who is called upon to make this determination.

Ariz. R. Evid. 104(a). Yet, according to Rule 104(e), the judge’s

role in determining preliminary questions “does not limit the right

of a party to introduce before the jury evidence relevant to weight

or credibility.” Ariz. R. Evid. 104(e). Implicit in this rule is

an awareness that some evidence presented at the preliminary

15
hearing will also be relevant to credibility and weight.

Otherwise, Rule 104(e) would be superfluous.

¶27 Other jurisdictions have recognized this principle. In

United States v. Velasquez, the Third Circuit reversed the trial

court for not allowing a critic of handwriting analysis to testify

before the jury after the judge had deemed such analysis

admissible. 64 F.3d 844 (3rd Cir. 1995). The panel accused the

district court of “ignor[ing] the fact that the same considerations

that inform the court’s legal decision to admit evidence under Rule

702 may also influence the factfinder’s determination as to what

weight such evidence, once admitted, should receive.” Id. at 848.

¶28 The North Carolina Supreme Court has reached a similar

conclusion, stating that

[o]nce disputed evidence is admitted at the trial, its
weight and credibility are for the jury. Therefore, if
otherwise competent, to the extent that it bears upon
such weight or credibility, the same testimony which
failed to convince the judge to grant the motion to
suppress is admissible before the jury.

State v. Sanchez, 400 S.E.2d 421, 424 (N.C. 1991) (quoting 1

Brandis on North Carolina Evidence § 19a (3d ed. 1988)).

¶29 We agree that the jury must be allowed to hear such

evidence if it is to properly perform its function as factfinder.

See, e.g., Logerquist v. McVey, 196 Ariz. 470, 476, 487-88, 1 P.3d

113, 119, 130-31, ¶¶ 20, 51-55 (2000). As the North Carolina

16
Supreme Court has noted, “[a]dmissibility is for determination by

the judge unassisted by the jury. Credibility and weight are for

determination by the jury unassisted by the judge.” Sanchez, 400

S.E.2d at 424. The trial court’s blanket preclusion of evidence

from the Frye hearing in this case infringed upon the role of the

jury and improperly insulated the state’s evidence from critique.11

¶30 Judges, in their discretion, may place reasonable limits

upon the scope of cross-examination, without infringing upon the

defendant’s right of confrontation. State v. Fleming, 117 Ariz.

122, 125, 571 P.2d 268, 271 (1977). “The test is whether the

defendant has been denied the opportunity of presenting to the

trier of fact information which bears either on the issues in the

case or on the credibility of the witness[es].” Id. Cross-

examination concerning the DPS protocol would have provided

information with which the jury could weigh testimony concerning

the DNA results. Because the restrictions in this case crossed the

11
For an example that is somewhat analogous, see Joseph M.
Livermore, et al., Arizona Practice: Law of Evidence § 104.7 (4th
ed. 2000):
[E]ven if the court admits an out-of-court statement
under rule 804(b)(2) (the “dying declarations”
exception) . . . the objecting party may introduce
evidence before the jury that tends to show that the
declarant did not believe her death was imminent when
she made the statement, since such evidence would be
relevant to the weight that the jury should give the
statement.

17
line from reasonable to excessive, they breached the defendant’s

right to confront adverse witnesses.

2. Right to Present Testimony

¶31 The defendant also argues that his Sixth Amendment rights

were violated because the judge’s ruling precluded him from

presenting expert testimony regarding the protocol, validation

studies, and match window. We agree. As noted above, the judge’s

application of Rule 403 was based on the erroneous assumption that

evidence from the Frye hearing would play no significant role in

the jury’s consideration. Thus, the trial court abused its

discretion when it found that the probative value of this evidence

was outweighed by the risk of juror confusion.12

3. Reversible Error

¶32 Though we have determined that the trial judge erred in

precluding the defendant’s cross-examination and expert testimony

in violation of the Sixth Amendment, we still must decide whether

this error was reversible. “A constitutional error is harmless if

12
The state asserts an alternative basis for the trial
court’s decision to preclude the defense expert’s testimony.
According to this theory, the trial judge found that the defense
expert, Dr. Aimee Bakken, was not qualified as an expert in
forensic science under Arizona Rule of Evidence 702. We do not
believe that the record, read in context, supports this
assertion. Whatever the judge’s observations about Dr. Bakken’s
qualifications, they appear to be mere surplusage and not the
basis of his holding.

18
it can be said beyond a reasonable doubt that the error had no

influence on the verdict of the jury.” State v. Luzanilla, 179

Ariz. 391, 398, 880 P.2d 611, 618 (1994).

¶33 DNA analysis was a significant part of the evidence

against the defendant in six of the ten cases, including two of the

three homicides. In fact, DNA was the only physical evidence

linking the defendant to those two murders. As the prosecutor said

in closing argument, “It’s when you get to the DNA you know he’s

guilty of the murders.”

¶34 The state argues that any error was harmless because the

defendant was not totally precluded from criticizing the DNA

evidence before the jury. However, the mere fact that the defense

was allowed to question the reliability of the DNA evidence on a

limited basis does not cure the error in this case. We have

previously noted that “‘science’ is often accepted in our society

as synonymous with truth.” Bible, 175 Ariz. at 578, 858 P.2d at

1181 (quoting Morris K. Udall, et al., Arizona Practice: Law of

Evidence § 102, at 212 (3d ed. 1991)). This is particularly so in

the case of DNA evidence, which has the potential to dominate a

factfinder’s thinking. Accordingly, in deciding whether the error

here was harmless, we must determine whether there was other

substantial evidence supporting the convictions.

¶35 For all but three of the victims, there was credible eye-

19
witness identification, physical evidence apart from DNA, or other

corroborating facts clearly implicating the defendant. The error

in precluding evidence from the Frye hearing was harmless as to

them and we need not disturb the verdicts. The counts related to

the attacks upon M.M., M.C. and W.C., however, are another matter.

a) M.M.

¶36 M.M.’s body was discovered in the desert near the

Carefree Highway and I-17 on February 19, 1992. There were signs

of sexual assault, and her skull was fractured in several places.

There was, however, no physical evidence linking the defendant to

this attack. A single sperm was found on the victim’s body. David

Duplissa, a DPS lab technician, conducted a five-probe RFLP

analysis on this sample and testified that the results were

“inconclusive.”

¶37 But Duplissa also said that on one of the five probes

“there is an indication or a hint of an area of intensity in the

same location as a band, the top band of Scott Lehr’s . . . and

[an] even fainter hint of the bottom band.” He further testified

that on another probe, “[t]he male fraction of the anal swab shows

a very faint band lining up in the same visual location as the top

band of Scott Lehr and then an even fainter shadow below for the

bottom.” As a result, according to Duplissa, “the entire profile

or the entire pattern [is] inconclusive. But [one] cannot exclude

20
the defendant as being a possible donor.”

¶38 The defendant argues that these inconclusive results

should not have been admitted because their probative value was

substantially outweighed by their prejudicial effect. Although

Duplissa’s testimony may have invited the jury to speculate that

there really was a match, we need not address this question. The

fact that there was considerable discussion of DNA evidence, and

little else, brings the preclusion error into play.13 The jury’s

evaluation of this highly equivocal testimony might well have been

different had the defense been permitted cross-examination and

additional evidence regarding the methods and conduct of the DPS

lab.

¶39 The state argues, however, that similarities between the

sexual assault and murder of M.M., and the attacks upon the other

victims, were alone sufficient to support the verdict. Although

the state points to some ten similarities it detects among the

attacks, the modus operandi it advances can be summarized as

follows: the perpetrator lured small women into his car from the

street, drove them to the northern desert, sexually assaulted them,

often struck them with rocks (sometimes causing death), and then

13
The state even argues on appeal that the inconclusive
test of the DNA sample taken from M.M. is significant because a
single band match failed to exclude defendant as a donor.

21
left them in the desert. While these likenesses may be probative

of identity, we cannot say they are striking enough to overcome the

prejudice of precluding the cross-examination and expert testimony

in this case. Thus, we cannot say that the error was harmless.14

b) W.C.

¶40 After testifying at trial about her attack, W.C. was

asked by the prosecutor if her assailant was in the courtroom. She

said, “It looks like him, that gentleman back there.” The man she

referred to was not the defendant. The prosecutor then took W.C.

off the stand and placed her in front of the defendant. He asked

her if she had come into contact with the defendant on the night

she was attacked. She said, “No.” He asked if she remembered ever

seeing the defendant before. Again, she indicated not. When

further asked whether she had ever had sex with the defendant, she

said, “No.”

¶41 In closing argument, the state downplayed the

significance of W.C.’s in-court identification, or lack thereof, by

emphasizing that DNA from semen found in her vagina matched the

defendant’s. As the state reminded the jury, a DPS witness

testified that the probability of a random match to the defendant

14
In fact, the error seems particularly significant given
that M.M. was last seen getting into a large black truck with a
man who did not fit the defendant’s description.

22
was one in eleven million. Thus, it is likely that the DNA

evidence carried the day for the prosecution. Given the

credibility problems engendered by W.C.’s failure to identify the

defendant in court, we cannot say that there is enough non-DNA

evidence to support the verdict.

c) M.C.

¶42 M.C.’s body was found in an orchard near 59th Avenue and

Utopia on the morning of November 8, 1991. She had been sexually

assaulted and her skull was fractured on both sides. According to

analysis by the DPS lab, DNA from semen taken from her vagina and

rectum matched the defendant’s at all five probes. Testimony again

indicated that there was a one in eleven million chance of a random

match to the defendant’s DNA. There was no other physical evidence

implicating him.

¶43 Thus, DNA evidence was critical to the charges regarding

M.M., W.C., and M.C. We cannot say beyond a reasonable doubt that

the error in precluding the defendant from challenging that

evidence with material from the Frye hearing had no influence upon

the verdicts. Accordingly, the error was not harmless and these

verdicts must be reversed.

23
 B. ALLEGEDLY TAINTED IDENTIFICATIONS

1. Background

¶44 On February 23, 1992, E.R. was walking along the street

when she was picked up by a man, taken to the desert, sexually

assaulted, and beaten.15 While recovering in the hospital, E.R.

described her attacker to police. On June 23, 1992, a police

detective went to E.R.’s home and showed her three photographic

spreads, two of which contained pictures of Scott Lehr. The victim

was unable to positively identify the defendant as her attacker.

Lehr was arrested on June 25, 1992, two days after the photo

spread. Once he was in custody, police arranged a live lineup of

six men. E.R. identified Lehr as her attacker at the lineup.

During her trial testimony, she indicated that the defendant was

her assailant.

2. Due Process

¶45 Defendant advances two due process arguments: first,

that the lineup was tainted by the prior viewing of the photo

spread; and second, that the in-court identification was tainted by

the lineup.

a) The Lineup

¶46 We review the fairness and reliability of a challenged

15
See supra ¶ 13.

24
identification for clear abuse of discretion. State v. Atwood, 171

Ariz. 576, 603, 832 P.2d 593, 620 (1992). The Due Process Clause

of the Fourteenth Amendment requires us to ensure that any pretrial

identification procedures are conducted in a manner that is

fundamentally fair and secures the suspect’s right to a fair trial.

Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253 (1977).

“It is the likelihood of misidentification which violates a

defendant’s right to due process . . . .” Neil v. Biggers, 409

U.S. 188, 198, 93 S.Ct. 375, 381-82 (1972). The mere fact that a

pretrial identification procedure is overly suggestive, however,

does not bar the admission of an identification. Brathwaite, 432

U.S. at 112, 97 S.Ct. at 2252. Instead, the question is whether

the identification is reliable in spite of any suggestiveness.

“[R]eliability is the linchpin in determining the admissibility of

identification testimony . . . .” Id. at 114, 97 S.Ct. at 2253.

Thus, there is a two-part test for determining admissibility: (1)

whether the method or procedure used was unduly suggestive, and (2)

even if unduly suggestive, whether it led to a substantial

likelihood of misidentification, i.e., whether it was reliable.

See Styers v. Smith, 659 F.2d 293, 297 (2d Cir. 1981); Green v.

Loggins, 614 F.2d 219, 223 (9th Cir. 1980). If the lineup

25
procedure16 was unduly suggestive, and the lineup identification was

not reliable enough to avoid a substantial likelihood of

misidentification, then the testimony must be excluded.

¶47 Making a defendant the only common person in both a photo

spread and a live lineup can be unduly suggestive. State v. Via,

146 Ariz. 108, 119, 704 P.2d 238, 249 (1985). Here, the witness

saw a photo spread and did not identify anyone. She later saw a

lineup and identified the defendant. Lehr was the only person

common to both the photos and the lineup. This arrangement was

arguably unduly suggestive.

¶48 “If the court finds that the pretrial identification

procedure was unduly suggestive, it must next address the question

whether the identification is nevertheless reliable.” State v.

Smith, 146 Ariz. 491, 497, 707 P.2d 289, 295 (1985) (citing

Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253). In Via, we stated

that due process is not violated so long as there is “no

substantial likelihood that [the defendant] would be

misidentified.” 146 Ariz. at 120, 704 P.2d at 250. We use the so-

called Biggers test to determine reliability.

16
Despite the fact that two of the three photo arrays
included pictures of the defendant, he limits his challenge to
the live lineup and the in-court identification.

26
 [T]he factors to be considered [in evaluating the
likelihood of misidentification] include the opportunity
of the witness to view the criminal at the time of the
crime, the witness’ degree of attention, the accuracy of
his prior description of the criminal, the level of
certainty demonstrated at the confrontation, and the time
between the crime and the confrontation. Against these
factors is to be weighed the corrupting effect of the
suggestive identification itself.

Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253 (citing Biggers, 409

U.S. at 199-200, 93 S.Ct. at 382).

¶49 Here, the victim testified that she was able to observe

her assailant from a few feet away while he drove her out of town,

a ride she estimated to be up to two hours long. Moreover, as the

car passed under street lights, she “had quite a few good glances”

at the driver, including once at the last stoplight on the way out

of town, where she “got a really full look at him and he was

looking at me.” In addition to having ample opportunity to view

her attacker, see State v. Smith, 146 Ariz. 491, 497-98, 707 P.2d

289, 294-95 (1985) (suspect viewed walking across parking lot at

night), E.R. was attentive out of fear for her own safety. See id.

(fear sufficient to satisfy degree of attention); State v. Alvarez,

145 Ariz. 370, 371-72, 701 P.2d 1178, 1179-80 (1985) (same).

¶50 Prior to seeing the photo spread, E.R. gave an accurate

and detailed description of her assailant. She indicated that he

was a “white male, in his late 20s to early 30s. Approximately six

foot one. 170 to 180 pounds. . . . [h]e was muscular in the chest

27
area. . . . Short and then preens to the top, hair is brown, combed

back. Light moustache. Four to five days’ growth of beard, large

ears.” At the live lineup, Lehr was six feet two, weighed one

hundred seventy five pounds, had brown hair, and was a few days

younger than thirty-five years old. The victim further testified

that she recognized the defendant the moment she entered the lineup

viewing room, and was absolutely certain. See Alvarez, 145 Ariz.

at 372, 701 P.2d at 1180 (identification occurred “immediately and

without hesitation.”). These factors indicate that the

identification was reliable.

¶51 The only thing that gives us pause is the passage of four

months between the crime and the identification. In light of the

strength of the other Biggers factors, however, the time lapse in

this case does not threaten reliability. See Biggers, 409 U.S. at

201, 93 S.Ct. at 383 (seven month delay did not outweigh other

reliability factors); State v. Schilleman, 125 Ariz. 294, 297, 609

P.2d 564, 567 (1980)(five month delay not fatal). The lineup did

not violate the defendant’s due process guarantees.

b) In-Court Identification

¶52 An in-court identification may be tainted by suggestive

lineup procedures. Smith, 146 Ariz. at 496, 707 P.2d at 294.

However, if the pretrial identification comports with due process,

subsequent identification at trial does not violate a defendant’s

28
rights merely by following on the heels of the earlier

confrontation. See Via, 146 Ariz. at 120, 704 P.2d at 250; State

v. Newman, 141 Ariz. 554, 557, 688 P.2d 180, 183 (1984); State v.

Trujillo, 120 Ariz. 527, 529, 587 P.2d 246, 248 (1978). Because

E.R.’s out-of-court identification was reliable, her in-court

identification was admissible.

C. BURDEN SHIFTING

1. Background

¶53 The police recovered a paper cup from C.Z.’s crime scene.

The state’s fingerprint expert, Karen Jones, testified on direct

examination that she had originally compared the defendant’s prints

with those found on the cup in April 1991. At that time, she had

been unable to make an identification. Three years later,

fingerprint identification technology had advanced to the point

where a more exacting examination of the cup was possible. Jones

then used this new technology to compare the prints from the cup

with the defendant’s prints and found a match.

¶54 On cross-examination, the defense questioned Jones about

her change of opinion. Counsel asked whether anyone involved in

the investigation had informed her that comparison of material

found on C.Z.’s body with Lehr’s DNA had yielded inconclusive

results. Jones replied that she had not heard the DNA results were

inconclusive prior to reexamining the print on the cup.

29
¶55 On redirect, the prosecutor asked Jones whether the

fingerprint cards containing prints which had been recovered from

the crime scene were still on file. She answered that she believed

they were. The prosecutor then asked, “[A]re there other experts

outside the Phoenix Police Department that could look at these

prints and verify or not verify those?” Defendant moved for a

mistrial, and the motion was denied.

2. Prosecutorial Misconduct

¶56 Defendant argues that the trial court abused its

discretion by denying his motion for a mistrial based on a claim

of prosecutorial misconduct. We review the trial court’s decision

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

944 P.2d 1222, 1230 (1997). The defense asserts that the

prosecutor’s question was tantamount to a comment upon the

defendant’s failure to produce evidence of a non-match. It claims

that this transformed the state’s burden to prove guilt into the

defendant’s burden to prove innocence.

¶57 We rejected a similar argument in State ex rel. McDougall

v. Corcoran, 153 Ariz. 157, 160, 735 P.2d 767, 770 (1987). There,

we held that discussing a defendant’s failure to produce evidence

is permissible so long as it does not constitute a comment on his

or her silence. Id. We concluded that “[t]he inference that may

30
be drawn from [the defendant’s] failure to produce evidence -- that

the facts were unfavorable to him –- is not unreasonable.” Id.

We find no error.

IV. SENTENCING ISSUES

A. CONSTITUTIONAL CHALLENGE

¶58 The defense argues that Arizona’s judge-sentencing death

penalty scheme is unconstitutional in light of the United States

Supreme Court decision in Jones v. United States, 526 U.S. 227, 119

S.Ct. 1215 (1999). We rejected this argument in State v. Ring, 200

Ariz. 267, 25 P.3d 1139, ¶ 44 (2001), and need not revisit it here.

B. INDEPENDENT REVIEW AND REWEIGHING

¶59 Defendant has not raised any other issues regarding the

imposition of the death penalty in this case. Nonetheless, we must

independently review the aggravating and mitigating circumstances

found by the sentencing court to determine the propriety of the

death sentence for the murder of B.C., the only remaining capital

offense. Ariz. Rev. Stat. § 13-703.01(A); State v. Nordstrom, 200

Ariz. 229, 25 P.3d 717 (2001).

1. Aggravating Circumstances

¶60 The sentencing court found beyond a reasonable doubt that

the state had proven the aggravating circumstance set forth in

Arizona Revised Statute section 13-703(F)(1). That section applies

31
to a “defendant [who] has been convicted of another offense in the

United States for which under Arizona law a sentence of life

imprisonment or death was imposable.” The judge based this finding

on the two other first degree murder convictions in this case. We

have now reversed those convictions. However, there is ample other

evidence supporting this finding. Defendant was convicted of

numerous counts of kidnapping and sexual assault, for which life

sentences were imposed.

¶61 The judge also found that the state had proven beyond a

reasonable doubt the aggravating circumstance set forth in Arizona

Revised Statute section 13-703(F)(2). Under this section, as it

existed at the time of the murder, previous conviction of a “felony

in the United States involving the use or threat of violence on

another person” constitutes an aggravator. In this case, the

defendant was convicted of three counts of attempted first degree

murder, and two counts of aggravated assault. These convictions

fulfill the requirements of section 13-703(F)(2). See State v.

Lee, 189 Ariz. 590, 604, 944 P.2d 1204, 1218 (1997) (“A sentencing

court may consider any convictions entered previously without

regard to the order of the underlying crimes.”).

¶62 The sentencing court also found that the murder of B.C.

was committed in an especially cruel manner, under section 13-

703(F)(6). Based upon inferences from the experience of victims

32
who survived the defendant’s attacks, the judge concluded that the

victim “suffered incredible terror and mental anguish from the

moment [she] realized [she] was abducted, through painful and

degrading sexual acts being forced upon [her], to the very moment

[she] was murdered.” (Special Verdict at 10). The court further

concluded that the murder of B.C. was especially heinous or

depraved, under section 13-703(F)(6). It decided beyond a

reasonable doubt that the crime was senseless, the victim was

helpless, and that witness elimination was a motive for the murder.

¶63 While we understand the sentencing judge’s inclination to

find that this crime fit the pattern of the others, we cannot agree

that the F(6) aggravator has been established beyond a reasonable

doubt. Very little is known about the circumstances of the

victim’s death. Her remains were out in the desert for several

months. Thus, her body was incomplete and severely decomposed by

the time it was discovered. Her hands, feet, and other bones were

missing. There was no testimony regarding defensive wounds or

anything else that would establish that she was conscious at the

time of her death. Moreover, given all that we do not know

regarding how she found herself in the desert, it is simply too

speculative to conclude that this homicide was committed in a

cruel, heinous, or depraved manner. Nonetheless, the F(1) and F(2)

aggravators we have found are adequate to warrant the death

33
penalty, absent sufficient mitigation.

2. Mitigating Circumstances

¶64 The sentencing judge determined that the defendant failed

to show by a preponderance of the evidence any of the statutory

mitigating factors listed in section 13-703(G)(1)-(5). As for non-

statutory factors, the court decided that the following were not

mitigating: expert opinion regarding the appropriateness of the

death penalty in this case; harm to the defendant’s family; a

single request for the death penalty from only one victim’s family;

and lack of good childhood male role models. It also found that

lingering doubt as to the actual commission of the murder had not

been proven by a preponderance of the evidence.

¶65 The court determined that the following non-statutory

mitigating factors had been proven by a preponderance of the

evidence: the defendant was a good father to his children, a good

husband to his wife, and a good son to his mother; he had no prior

record of criminal behavior or accusations of violence of any kind;

and he had been a model prisoner while in custody. We accept and

approve the trial judge’s findings regarding mitigation.

3. Conclusion

¶66 We also agree with the sentencing court that the

mitigating factors here are weak. We do not find that they are

34
sufficient to warrant leniency. Accordingly, we conclude that the

imposition of the death penalty for the murder of B.C. was

appropriate in this case.

V. DISPOSITION

¶67 Finding error as described in this opinion, we reverse

the defendant’s convictions and sentences on counts one, two,

three, eight, nine, eighteen, and nineteen from the capital trial

and remand to the trial court for proceedings not inconsistent with

this opinion. We affirm the defendant’s remaining convictions and

sentences from the capital trial and all of the convictions and

sentences from the non-capital trial.

_______________________________
THOMAS A. ZLAKET, Justice

CONCURRING:

____________________________________
CHARLES E. JONES, Chief Justice

_____________________________________
RUTH V. MCGREGOR, Vice Chief Justice

____________________________________
STANLEY G. FELDMAN, Justice

___________________________________
FREDERICK J. MARTONE, Justice

35