SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-05-0267-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2003-011506
CORY DEONN MORRIS, )
)
Appellant. )
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Douglas L. Rayes, Judge
AFFIRMED
________________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel, Capital
Litigation Section
Patricia A. Nigro, Assistant Attorney General
Attorneys for State of Arizona
SUSAN M. SHERWIN, MARICOPA COUNTY LEGAL ADVOCATE Phoenix
By Consuelo M. Ohanesian, Deputy Legal Advocate
Attorneys for Cory Deonn Morris
________________________________________________________________
M c G R E G O R, Chief Justice
¶1 On July 19, 2005, a jury determined that Cory Morris
should be sentenced to death for the murders of Barbara Codman,
Shanteria Davis, Jade Velasquez, Sharon Noah, and Julie
Castillo. Appeal to this Court is automatic. Ariz. R. Crim. P.
31.2.b. We have jurisdiction pursuant to Article 6, Section 5,
Clause 3 of the Arizona Constitution and Arizona Revised
Statutes (A.R.S.) section 13-4031 (2001).
I.
A.
¶2 Morris lived in a camper in the backyard of his aunt
and uncle’s house in Phoenix and worked at a bar approximately
three nights a week. In April 2003, Morris’s boss noticed for
the first time that Morris had a body odor problem. Morris’s
aunt and uncle also noticed that Morris had a body odor problem
that had become progressively worse since he began living with
them six months earlier.
¶3 On April 12, 2003, when Morris’s uncle went to the
camper to find Morris, he smelled a “rotten odor” in the
backyard and saw flies inside the window of the camper. As he
opened the door and stepped inside, he saw flies and maggots
“boiling on the floor.” He discovered the decomposed body of
Julie Castillo under a blanket.
¶4 On the same day, police officers questioned Morris
about the body in his camper, as well as four other bodies that
had been found nearby. During this interview, Morris admitted
to knowing the five victims and provided two versions of each
victim’s death. In the first version, he claimed that each
victim died of a drug overdose while he was away from the
camper. After discussing all five victims, the detective
conducting the interview told Morris that he did not believe
2
him. Morris then stated that each victim asked him to choke her
during sex and that each accidentally died as a result of this
conduct. Morris also claimed that he used a condom during sex
with the victims. We discuss each victim in turn.
1.
¶5 On September 11, 2002, police discovered Barbara
Codman’s naked, decomposed body in an alley between East
McKinley and East Pierce Streets and west of 9th Street. The
alley is located just north of Morris’s residence. Police found
drag marks from the sidewalk crossing the alley into the alley
itself. Codman’s body exhibited skin slippage 1 on her inner
thighs and breast, and her head and neck were more decomposed
than the rest of her body.
¶6 Morris said that he met Codman while walking at night
and, for twenty dollars, she agreed to come to his camper and
have sex with him. Morris first said that he went outside after
he and Codman had sex and, when he returned, Codman was sitting
naked on the bed using drugs. Morris told her to leave after
she finished, and then he stepped outside. When he went back
into the camper, Codman was sitting on the bed panting, and she
1
Skin slippage occurs when, in the postmortem phase,
bacteria destroy connections between the skin and the underlying
tissue so that, with pressure and movement, the skin begins to
detach and slip off the body.
3
soon collapsed. Morris dragged Codman out of the camper on a
sleeping bag.
¶7 In his second version of events, Morris stated that
Codman asked him to choke her with a necktie during sex. He did
so, and she collapsed and never regained consciousness.
¶8 Morris kept some of Codman’s belongings, including her
overalls, panties, and purse. Analysts found Codman’s DNA on
some of the items. When Morris was arrested, he was carrying
Codman’s social security card, driver’s license, and check card
in his wallet.
¶9 Because of the extensive decomposition of Codman’s
head and neck, Dr. John Hu, who performed her autopsy, was
unable to conduct a detailed investigation for trauma in that
region. Hu originally determined that the cause of death was
combined toxicity of morphine and cocaine and listed the manner
of death as undetermined because the circumstances surrounding
Codman’s death were suspicious. After the police gave Hu a
transcript of Morris’s statements, he determined that “the cause
of death is most likely asphyxia due to ligature strangulation”
because the autopsy results were not inconsistent with such a
determination.
2.
¶10 On October 10, 2002, police found Shanteria Davis’s
naked, decomposed body in the same alley in which Codman’s body
4
had been discovered. Davis had skin slippage on her back,
buttocks, and the backs of her legs. Police found drag marks in
the alley.
¶11 In his first version of events, Morris stated that,
for five dollars, Davis agreed to come back to his camper and
have sex with him. After they had sex, Morris left Davis alone
in the camper for about an hour because she wanted to use drugs.
When Morris returned, Davis was unconscious but breathing.
Morris covered her and left for his friend’s house. When he
returned the next morning, Davis was dead. That night, he
dragged her into the alley.
¶12 In his second version of events, Morris stated that
Davis asked him to wrap her hair extensions around her neck
while they were having sex. Davis died as a result of this
conduct.
¶13 Police found hair extensions in Morris’s camper. DNA
under Davis’s fingernails matched Morris’s DNA. DNA analysis on
panties found in Morris’s camper could not exclude Davis as a
source of the DNA.
¶14 Because of the extent of decomposition, Dr. Kevin
Horn, who performed Davis’s autopsy, could not determine whether
Davis suffered any trauma. Based on the lack of visible trauma
and the presence of cocaine and cocaine breakdown products in
her spleen, Horn determined that the cause of death was cocaine
5
intoxication. After reviewing a transcript of Morris’s
statements to the police, Horn stated that nothing in his
autopsy was inconsistent with strangulation.
3.
¶15 On February 27, 2003, police discovered the clothed
body of Jade Velasquez on the west side of 9th Street, just
outside the gate leading to the backyard where Morris’s camper
was located. Velasquez had ligature marks on the front and
sides of her neck and bruising under her left eye. Police noted
“some disturbance” in the ground near the gate to the backyard,
which was consistent with removing the gate from its hinge and
then replacing it. Police also noted grass scuff marks on the
sidewalk, indicating that the body had been dragged. A
detective spoke with Morris’s aunt during the investigation of
Velasquez’s death.
¶16 Morris first stated that Velasquez, a friend, agreed
to come to his camper for sex. He claimed that Velasquez was
drunk when she arrived at the camper and passed out before
having sex with him. According to Morris, he realized that
Velasquez was dead when she did not wake up the next morning.
He left for the day and moved her body to the street that night.
¶17 In his second version of events, Morris stated that
Velasquez asked him to use his hands to choke her while they
were having sex. Morris did so, and Velasquez passed out and
6
never regained consciousness. Morris put Velasquez’s clothes
back on her before he dragged her to the street because he knew
her and did not want to leave her in the street unclothed.
¶18 DNA from semen on a vaginal swab taken from
Velasquez’s body matched Morris’s DNA profile. Dr. Vladimir
Shvarts, who performed Velasquez’s autopsy, found petechial
hemorrhages in her left eye and focal hemorrhagic areas inside
her neck and determined that the cause of death was
strangulation. Velasquez’s blood tested positive for alcohol,
cocaine metabolites, and benzodiazepines, but the combination of
drugs was not sufficient to cause death.
4.
¶19 On March 29, 2003, police found Sharon Noah’s naked
body on the west side of 9th Street, approximately fifteen to
twenty feet from the location at which Velasquez’s body was
discovered. There were ligature marks on Noah’s neck and skin
slippage on her inner thighs, breasts, and hips. Some maggots
were present on her body, and her hand and foot were mummified.
Some of Noah’s artificial fingernails were broken.
¶20 Morris first stated that he met Noah, who had the
mental age of a ten- or eleven-year-old, while out walking, and
the two then went back to his camper and had sex. Afterwards,
Morris left because Noah wanted to use drugs. Noah was dead
when he returned. Morris then put a belt around Noah’s neck and
7
pulled her body onto his sleeping bag. He dragged her body
outside that night. He threw away most of her clothes but kept
her shoes.
¶21 In his second version of events, Morris said that Noah
suggested that he use the nylon strap attached to Morris’s gym
bag to choke her during sex. Morris did so, but when Noah’s
eyes closed, he stopped and noticed that she was no longer
breathing. Morris left the strap on Noah’s neck until he
dragged her outside.
¶22 DNA on panties found in Morris’s camper matched both
Morris’s and Noah’s DNA profiles, and Morris’s DNA profile
matched DNA on a vaginal swab taken from Noah. Police also
found broken fingernails in Morris’s camper.
¶23 Noah’s autopsy indicated that she died of ligature
strangulation resulting in asphyxia. Toxicology reports showed
that Noah had used cocaine before her death and that although
she had GHB, which is often used in date rapes, in her system,
drug overdose was not the cause of death. When asked how he
would explain the extensive skin slippage on Noah’s thighs, the
medical examiner posited that some item may have contacted her
thighs postmortem.
5.
¶24 The body discovered in Morris’s camper on April 12,
2003, was that of Julie Castillo. The badly decomposed body was
8
face down and her buttocks were near the camper’s fold-down bed.
There was a necktie around her neck.
¶25 Morris first stated that he brought Castillo back to
his camper because it was cold and she needed a place to spend
the night. Morris left the camper after Castillo asked if she
could smoke crack, and when he returned, Castillo was
unconscious on the floor. He took her clothes off because she
had urinated on herself. The next day, he went to work, and
when he returned, he realized that Castillo was dead. Morris
stayed in the camper that night. When the detective conducting
the interview asked whether Morris engaged in any sexual
activity while Castillo’s body was in the camper, Morris stated
that he ejaculated in his sleep but was facing away from
Castillo’s body at the time. Morris originally said that he
never had sex with Castillo.
¶26 In his second version of events, Morris stated that
Castillo asked him to choke her with a necktie during sex.
Morris did so, and Castillo collapsed and never regained
consciousness. Morris kept Castillo’s body in his camper for
approximately five days before it was discovered. He claimed
that he had not been in the camper during the three days before
the body’s discovery.
¶27 Dr. Horn, who performed Castillo’s autopsy, determined
that Castillo had been dead “between three and seven” days at
9
the time the body was found. Based on information from the
detectives, Horn determined that the cause of death was
“probable ligature strangulation.” Because of the extensive
decomposition, there was no visible evidence of trauma.
Castillo had a blood alcohol content of 0.12, and also had
traces of cocaine in her system. Additionally, seven defects
measuring up to three-eighths of an inch radiated around
Castillo’s anus. Horn could not determine whether the defects
resulted from trauma or normal decomposition.
B.
¶28 A grand jury indicted Morris for five counts of first
degree murder. During the guilt phase of the trial, the
prosecution played videotapes of Morris’s descriptions of each
woman’s death. Morris did not present a defense, but his
counsel moved for acquittal on all counts pursuant to Arizona
Rule of Criminal Procedure 20.a. The judge denied the motion.
The jury then found Morris guilty on all five counts.
¶29 At the close of the aggravation phase of the trial,
the jury unanimously found that Morris had been convicted of
prior serious offenses, A.R.S. § 13-703.F.2 (Supp. 2004), based
on the five convictions from the guilt phase of the trial, and
that he committed all five murders in both an “especially cruel”
and “especially heinous or depraved” manner, id. § 13-703.F.6.
With respect to the especially cruel prong, Dr. Keen testified
10
that strangulation victims are conscious for at least a short
period and experience pain before they lose consciousness. With
respect to the heinous and depraved prong, the prosecutor argued
that Morris kept the bodies after they began to decompose
because he enjoyed the odor of decomposition. He also argued
that Morris had sexual intercourse with all of the corpses
except for Davis’s. The prosecutor focused on the selective
skin slippage on the bodies and the presence of semen on some of
the victims despite Morris’s insistence that he used condoms
during sex.
¶30 In the penalty phase, Morris’s mitigation evidence
focused on the responsibilities placed on him at a young age;
his problems with his appearance and hygiene, particularly his
problems with body odor; his desire to improve himself; and his
good work record. 2
¶31 The jury determined that Morris’s mitigation evidence
was not sufficiently substantial to call for leniency and that
death was the appropriate sentence for each of the five murders.
See A.R.S. § 13-703.01.G, .H (Supp. 2004). 3
2
Prior to trial, Morris declined to participate in IQ
testing or psychological evaluation.
3
The trial judge also found that Morris had violated the
terms of probation imposed after a 2002 theft conviction. He
revoked Morris’s probation and imposed a presumptive sentence of
one year for theft.
11
II.
¶32 Morris raises four issues on appeal. We first address
his claim that the State presented insufficient evidence of the
corpus delicti for the deaths of Codman and Davis. Next, we
consider his claim that prescreening prospective jurors to
determine which ones could serve for the length of the trial
violated his right to be present at all stages of the criminal
proceeding against him. We then address Morris’s argument that
the prosecutor engaged in misconduct. Finally, we evaluate the
claim that the trial court abused its discretion in admitting
excessively gruesome photographs.
A.
¶33 Morris contends that the trial court erred in
admitting his statements concerning the deaths of Codman and
Davis because the State did not establish the corpus delicti for
those murders. We review a ruling on the sufficiency of the
evidence of corpus delicti for abuse of discretion. State v.
Gerlaugh, 134 Ariz. 164, 169-70, 654 P.2d 800, 805-06 (1982);
see also State v. Gillies, 135 Ariz. 500, 505-06, 662 P.2d 1007,
1012-13 (1983).
¶34 The corpus delicti doctrine ensures that a defendant’s
conviction is not based upon an uncorroborated confession or
incriminating statement. State v. Hall, 204 Ariz. 442, 453 ¶
43, 65 P.3d 90, 101 (2003) (citing Smith v. United States, 348
12
U.S. 147, 152 (1954)). Therefore, the State must show that the
“alleged injury to the victim . . . was caused by criminal
conduct rather than by suicide or accident.” Id. “[O]nly a
reasonable inference of the corpus delicti need exist” before
incriminating statements may be considered, and circumstantial
evidence can support such an inference. Id. (quoting Gillies,
135 Ariz. at 506, 662 P.2d at 1013). Furthermore, the State
need not present evidence supporting the inference of corpus
delicti before it submits the defendant’s statements “[a]s long
as the State ultimately submits adequate proof of the corpus
delicti before it rests.” Id. (quoting State v. Jones ex rel.
County of Maricopa, 198 Ariz. 18, 23 ¶ 14, 6 P.3d 323, 328 (App.
2000)). The corpus delicti doctrine does not require the State
to prove the cause of death. State v. Atwood, 171 Ariz. 576,
598-99, 832 P.2d 593, 615-16 (1992), disapproved on other
grounds by State v. Nordstrom, 200 Ariz. 229, 241 ¶ 25, 25 P.3d
717, 729 (2001).
¶35 Here, sufficient evidence independent of Morris’s
incriminating statements establishes corpus delicti for the
deaths of both Codman and Davis. Both died under suspicious
circumstances and were discovered naked in the same alley. Drag
marks near both bodies indicated that they had been moved. DNA
on panties and overalls found in Morris’s camper matched
Codman’s DNA, DNA on panties found in the camper matched Davis’s
13
DNA, and Davis had Morris’s DNA under her fingernails. Hair
extensions similar to Davis’s were found in the camper. Morris
was carrying Codman’s driver’s license, social security card,
and check card when he was arrested.
¶36 Morris argues that, despite the other evidence that
these two deaths resulted from criminal conduct, the State
cannot establish corpus delicti because the medical examiners
believed that both deaths resulted from drug overdoses before
police gave them transcripts of Morris’s statements. The State,
however, need not prove cause of death to establish corpus
delicti. See id. Instead, the State need only present evidence
sufficient to raise a “reasonable inference” that the death
resulted from criminal activity. Hall, 204 Ariz. at 453 ¶ 43,
65 P.3d at 101 (quoting Gillies, 135 Ariz. at 506, 662 P.2d at
1013). Given the evidence here, the State met its burden even
if we disregard the medical examiners’ testimony. 4 Therefore,
the trial court did not abuse its discretion in admitting
4
Although Morris argues that State v. Nieves, 207 Ariz. 438,
87 P.3d 851 (App. 2004), controls the resolution of this issue,
we disagree. In Nieves, the medical examiner based his
conclusion about cause of death solely on the defendant’s
statements. Id. at 441 ¶¶ 14-15, 87 P.3d at 854. Because there
was no evidence of criminal activity other than the medical
examiner’s testimony, the court held that the State failed to
establish the corpus delicti. Id. at 444 ¶¶ 28-29, 87 P.3d at
857. Here, conversely, evidence independent of the medical
examiners’ testimony supports criminal activity in the deaths of
both Codman and Davis.
14
Morris’s statements as to the deaths of Codman and Davis.
B.
¶37 We next consider whether Morris’s absence during the
jury commissioner’s prescreening of prospective jurors to
determine whether they could serve on a lengthy trial violated
his right to be present at all stages of the criminal
proceeding. Because the trial was expected to last six to eight
weeks, the judge ordered the jury commissioner to poll the
jurors to identify those who claimed that they could not serve
for such a long trial. The jury commissioner gave those jurors
one-page questionnaires on which they could state the reasons
for their inability to serve. The lawyers then reviewed the
questionnaires for potentially invalid excuses and submitted
those questionnaires to the judge for further review.
¶38 After reviewing the questionnaires, the judge
determined that approximately twenty prospective jurors had
provided questionable excuses. When he asked the jury
commissioner to send those twenty individuals to the courtroom
for further questioning, the jury commissioner informed him that
only four of the twenty were available. The jury commissioner
had released the remaining sixteen to other panels.
¶39 Defense counsel admitted that he could not identify
any group excluded from service or show that the jury did not
represent a cross-section of the community, but objected to the
15
prescreening procedure because it left only “volunteers” as
prospective jurors. The trial judge rejected this challenge.
¶40 Although a “defendant in a criminal case is entitled
to a fair and impartial jury for the trial of his case, . . . he
is not entitled to be tried by any particular jury.” Atwood,
171 Ariz. at 624, 832 P.2d at 641 (quoting State v. Arnett, 119
Ariz. 38, 50, 579 P.2d 542, 554 (1978)). To make a prima facie
showing that a jury does not represent a fair cross-section of
the community, a defendant must show each of the following:
(1) that the group alleged to be excluded is a
“distinctive” group in the community; (2) that the
representation of this group in venires from which
juries are selected is not fair and reasonable in
relation to the number of such persons in the
community; and (3) that this underrepresentation is
due to systematic exclusion of the group in the jury-
selection process.
Duren v. Missouri, 439 U.S. 357, 364 (1979).
¶41 Morris has neither identified a distinctive group that
was excluded from his jury panel nor claimed that the jury he
received was not fair and impartial. Therefore, he has failed
to satisfy even the first prong of Duren. See State v. Wooten,
193 Ariz. 357, 361-62 ¶¶ 20-24, 972 P.2d 993, 997-98 (App. 1998)
(rejecting claims that a jury commissioner’s prescreen of
prospective jurors for length of the trial excluded poor and
minority jurors because the defendant failed to satisfy any of
the Duren prongs).
16
¶42 Moreover, jury commissioners have broad discretion to
excuse jurors from service:
If a person’s answers to a questionnaire indicate that
the person is unqualified for jury service or, in the
opinion of the judge or jury commissioner, state
grounds sufficient to be excused from jury service,
the person’s name shall not be included on the
qualified juror list and the person shall be notified
that he is excused from jury service.
A.R.S. § 21-315.A (Supp. 2006) (emphasis added); see also
Wooten, 193 Ariz. at 362-63 ¶¶ 25-26, 972 P.2d at 998-99
(rejecting defendant’s claim that jury commissioner’s
prescreening of prospective jurors violated his due process
rights based in part on the jury commissioner’s broad statutory
power to excuse jurors from service). Because the jury
commissioner decided to excuse prospective jurors solely on the
basis of their ability to serve on a lengthy trial, a neutral
criterion, he properly exercised his discretion. See State v.
Murray, 184 Ariz. 9, 23-24, 906 P.2d 542, 556-57 (1995) (noting
that “[g]ranting excuses based on the application of neutral
criteria to prospective jurors’ individual situations” is a
proper exercise of the jury commissioner’s discretion (quoting
State v. Sanderson, 182 Ariz. 534, 539, 898 P.2d 483, 488 (App.
1995))).
¶43 Even if Morris could show that certain prospective
jurors were wrongly excused, we would not reverse his
convictions unless he could also show actual prejudice, i.e.,
17
that the jurors who actually served were not fair and impartial.
State v. Webb, 101 Ariz. 307, 309, 419 P.2d 91, 93 (1966); State
v. Fendler, 127 Ariz. 464, 470-71, 622 P.2d 23, 29-30 (App.
1980) (extending “actual prejudice” doctrine to excusals by jury
commissioner). Because Morris is unable to demonstrate any
actual prejudice resulting from the jury commissioner’s
prescreening of prospective jurors, his challenge fails.
¶44 Morris argues that his exclusion from the prescreening
process violates his right to be present at all stages of the
proceeding against him. We have previously held that exclusion
from the entire jury selection process is structural error, but
in so holding we noted that exclusion from a “minor portion” of
jury selection proceedings may be harmless error. State v.
Garcia-Contreras, 191 Ariz. 144, 148 ¶ 17, 953 P.2d 536, 540
(1998) (quoting State v. Ayers, 133 Ariz. 570, 571, 653 P.2d 27,
28 (App. 1982)). “An error is harmless if it appears ‘beyond a
reasonable doubt that the error . . . did not contribute to the
verdict obtained.’” State v. Dann, 205 Ariz. 557, 565 ¶ 18, 74
P.3d 231, 239 (2003) (quoting Chapman v. California, 386 U.S.
18, 24 (1967)).
¶45 Here, Morris attended all aspects of jury selection
except the prescreening process, which focused solely on the
length of the trial and did not involve questioning the jurors
about the facts or legal issues of the case. Thus, even
18
assuming that he was entitled to attend the prescreening
process, an issue we do not reach, any error is harmless because
no basis exists on which we could conclude that Morris’s
exclusion from that process affected the verdict.
C.
¶46 Morris next identifies five instances of alleged
prosecutorial misconduct. “To prevail on a claim of
prosecutorial misconduct, a defendant must demonstrate that the
prosecutor's misconduct ‘so infected the trial with unfairness
as to make the resulting conviction a denial of due process.’”
State v. Hughes, 193 Ariz. 72, 79 ¶ 26, 969 P.2d 1184, 1191
(1998) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)). The misconduct must be “so pronounced and persistent
that it permeates the entire atmosphere of the trial.” Id.
(quoting Atwood, 171 Ariz. at 611, 832 P.2d at 628).
Prosecutorial misconduct constitutes reversible error only if
(1) misconduct exists and (2) “a reasonable likelihood exists
that the misconduct could have affected the jury’s verdict,
thereby denying defendant a fair trial.” State v. Anderson
(Anderson II), 210 Ariz. 327, 340 ¶ 45, 111 P.3d 369, 382
(quoting Atwood, 171 Ariz. at 606, 832 P.2d at 623), cert.
denied, 126 S. Ct. 193 (2005).
¶47 We evaluate each instance of alleged misconduct, and
the standard of review depends upon whether Morris objected. If
19
he objected, then the issue is preserved for review under the
standard articulated in Anderson II. Id. at 340-41 ¶ 45, 111
P.3d at 382-83. If Morris did not object, then we review only
for fundamental error. State v. Roque, 213 Ariz. 193, 228 ¶
154, 141 P.3d 368, 403 (2006). We also address the cumulative
effect of misconduct:
[E]ven if there [is] no error or an error [is]
harmless and so by itself does not warrant reversal,
an incident may nonetheless contribute to a finding of
persistent and pervasive misconduct if the cumulative
effect of the incidents shows that the prosecutor
intentionally engaged in improper conduct and “did so
with indifference, if not a specific intent, to
prejudice the defendant.”
Id. at ¶ 155 (citation omitted) (quoting Hughes, 193 Ariz. at 80
¶ 31, 969 P.2d at 1192).
1.
¶48 Morris argues that the prosecutor improperly
influenced the medical examiners investigating the deaths of
Codman and Davis by providing them copies of the statements
Morris made to the police. Dr. Hu, who performed Codman’s
autopsy, and Dr. Horn, who performed Davis’s autopsy, originally
determined that the cause of death for each woman was drug
overdose. After police provided them transcripts of Morris’s
statements regarding the deaths, the medical examiners testified
that they found nothing inconsistent with asphyxiation due to
strangulation as the cause of death for both women. Morris did
20
not object at trial, so we review for fundamental error. Id. at
¶ 154.
¶49 Arizona statutes permit medical examiners to receive
information about the circumstances surrounding a suspicious
death. Arizona Revised Statutes section 11-593.B (2001)
requires a peace officer to report the results of “an
investigation of the facts and circumstances surrounding [a
suspicious] death” to the county medical examiner. Moreover,
the medical examiner is statutorily required to “[m]ake
inquiries regarding the cause and manner of death.” A.R.S. §
11-594.A.4 (2001); see also id. § 11-594.A.2. The prosecutor
did not, therefore, engage in misconduct by giving transcripts
of Morris’s statements to the medical examiners. Moreover, the
record does not suggest that Morris’s statements improperly
influenced either of the medical examiners. Both testified
simply that they found nothing inconsistent with those
statements in their respective autopsies of Codman and Davis,
and they acknowledged that, without the statements, they would
have believed that drug intoxication caused the deaths.
Therefore, this incident does not constitute prosecutorial
misconduct.
2.
¶50 In the aggravation phase, the prosecutor argued that
Morris murdered the victims in order to have sexual intercourse
21
with their corpses. Morris claims that this argument had no
basis in fact. Morris failed to object to the argument at
trial, so we review for fundamental error. Roque, 213 Ariz. at
228 ¶ 154, 141 P.3d at 403.
¶51 Prosecutors have “wide latitude” in presenting their
arguments to the jury. State v. Jones, 197 Ariz. 290, 305 ¶ 37,
4 P.3d 345, 360 (2000). The prosecutor is permitted to argue
“all reasonable inferences from the evidence,” but cannot “make
insinuations that are not supported by the evidence.” Hughes,
193 Ariz. at 85 ¶ 59, 969 P.2d at 1197. In evaluating the
propriety of a prosecutor’s arguments, we consider “whether the
remarks called to the jurors’ attention matters that they should
not consider, and whether, ‘under the circumstances of the
particular case, [the remarks] probably influenced’ the jurors.”
Roque, 213 Ariz. at 224 ¶ 128, 141 P.3d at 399 (alteration in
original) (quoting Sullivan v. State, 47 Ariz. 224, 238, 55 P.2d
312, 317 (1936)).
¶52 While the evidence in this case does not compel the
conclusion that Morris engaged in intercourse with the corpses
of the victims, the record includes sufficient evidence to
permit the prosecutor to make such an argument. 5 The prosecutor
5
At trial, the State did not argue that Morris engaged in
intercourse with Davis’s body and made it clear to the jury that
it did not have sufficient evidence to support such an
inference.
22
relied in part on skin slippage on selective parts of the
victims’ bodies as evidence that Morris engaged in intercourse
with the corpses. Selective skin slippage existed on Codman’s
inner thighs and breast and on Noah’s inner thighs. The medical
examiners testified that skin slippage can result from friction
and the general decomposition process.
¶53 The prosecutor also relied on the skin defects on
Castillo’s anus, although the medical examiner was unable to
determine whether those defects were caused by trauma or
decomposition. In his statement to police, Morris also
mentioned that he either masturbated or ejaculated in his sleep
after Castillo died but while she was still in his camper.
Castillo’s buttocks were level with Morris’s bed.
¶54 Additionally, the prosecutor relied on DNA evidence
showing Morris’s semen was present in Velasquez’s and Noah’s
vaginas, even though Morris insisted that he wore a condom
during sex with the women before their deaths. Thus, the
proposition that Morris had intercourse with the corpses of
Codman, Velasquez, Noah, and Castillo is a “reasonable
inference” to be drawn from the evidence in the record, and the
prosecutor did not act improperly in making this argument.
¶55 Furthermore, the judge instructed the jury that the
lawyers’ arguments were not evidence to be considered in
reaching its conclusions. See State v. Newell, 212 Ariz. 389,
23
403 ¶¶ 67-68, 132 P.3d 833, 847 (holding that jury instructions
stating that closing arguments are not evidence negated improper
comments of prosecutor), cert. denied, 127 S. Ct. 663 (2006);
Anderson II, 210 Ariz. at 342 ¶ 50, 111 P.3d at 384 (holding
that jury instructions that the lawyer’s statements are not
evidence cured the prosecutor’s misstatement of the law).
Jurors are presumed to follow the judge’s instructions. Newell,
212 Ariz. at 403 ¶ 68, 132 P.3d at 847. Therefore, we presume
that the jurors reached their own conclusions regarding the
strength of the evidence. Even if the prosecutor’s comments
were improper, the judge’s instructions negated their effect.
¶56 Finally, the prosecutor’s arguments were directed only
toward establishing the “heinous or depraved” prong of the F.6
aggravator. Because the jury determined that each murder was
committed in an especially cruel manner and because a finding of
cruelty alone is sufficient to establish the F.6 aggravator, see
infra ¶¶ 61, 79-80, the prosecutor’s arguments were, at worst,
harmless error.
3.
¶57 Morris also argues that, during rebuttal to defense
counsel’s closing argument in the aggravation phase, the
prosecutor invited jurors to put themselves in the place of the
victims and singled out specific jurors based on appearance and
gender. The prosecutor made the challenged comments while
24
responding to defense counsel’s argument that the jurors could
not determine whether the victims suffered because they were
intoxicated when they were killed. Defense counsel did not
object to these statements, so we review for fundamental error.
Roque, 213 Ariz. at 228 ¶ 154, 141 P.3d at 403.
¶58 A prosecutor has wide latitude in presenting arguments
to the jury, including commenting on the “vicious and inhuman
nature of the defendant’s acts,” but cannot make arguments that
appeal to the fears or passions of the jury. State v. Comer,
165 Ariz. 413, 426, 799 P.2d 333, 346 (1990). Although the
State argues that the prosecutor simply asked the jurors to
apply common sense to the factual situation before them, the
prosecutor’s remarks did far more than make that request.
Instead, the prosecutor singled out particular jurors and
addressed them personally, 6 playing on their sympathy for the
6
For example, the prosecutor asked:
[W]hich one of you wants to volunteer? I want a show
of hands on this one. Which one of you ladies—and we
don’t need guys on this one, because he didn’t take
guys. He only took women.
Which one of you want [sic] to volunteer to come
sit here and have the defendant sit himself on your
chest and say, Oh, that didn’t hurt? Because the
defense attorney is saying throw common sense out of
[the] window. Which one? I challenge anybody to say,
That is something I want to do.
And anyway, and on top of that, while he’s
sitting on my chest, which one of you, since the one
lower left-hand side has the longer hair of the
jurors, maybe she wants to have him grab her hair
25
victims and fears of the defendant. Such remarks constitute
misconduct.
¶59 Because Morris did not object, however, we must
determine whether this misconduct constitutes fundamental error.
Morris bears the burden of persuasion and must “establish both
that fundamental error exists and that the error in his case
caused him prejudice.” State v. Henderson, 210 Ariz. 561, 567 ¶
20, 115 P.3d 601, 607 (2005). Fundamental error is “error going
to the foundation of the case, error that takes from the
defendant a right essential to his defense, and error of such
magnitude that the defendant could not possibly have received a
fair trial.” Id. at ¶ 19 (quoting State v. Hunter, 142 Ariz.
88, 90, 688 P.2d 980, 982 (1984)).
¶60 The prosecutor’s comments here do not constitute
fundamental error. Morris has not shown that this isolated
while he’s sitting on her chest . . . to grab it and
pull it around her neck.
You think that’s not going to hurt? You think
one of you guys is going to volunteer for that? You
can’t leave your common sense aside. [Defense
counsel] wants you to because he makes these arguments
and says, well, we don’t know what is in their heads.
We don’t know what is in Juror Number 1’s head. Can
you tell me you don’t think it’s not going to hurt
when he sits on you?
Hey, Juror Number 1 or Juror Number 14, whatever
it is, what if we put Winnie the Pooh tie around your
neck? Are you going to enjoy that? Are you going to
like it? Going to feel real good when you can’t
breathe?
26
incident of impropriety denied him a fair trial or deprived him
of a right essential to his defense.
¶61 Additionally, Morris cannot establish prejudice. The
prosecutor’s argument was directed toward proof of cruelty. To
prove that a murder was “especially cruel” under A.R.S. § 13-
703.F.6, the State must show that the victim was conscious and
suffered physical pain or mental anguish during at least some
portion of the crime and that the defendant knew or should have
known that the victim would suffer. State v. Trostle, 191 Ariz.
4, 18, 951 P.2d 869, 883 (1997). Here, independent of the
prosecutor’s improper argument, the State presented overwhelming
evidence of cruelty. The medical examiner testified that all of
the victims would have experienced pain for some period before
losing consciousness. Moreover, the evidence suggests that at
least three of the victims struggled with Morris before losing
consciousness: Morris’s DNA was under Davis’s fingernails,
Noah’s fingernails were broken, and the side of Velasquez’s face
was bruised. Morris has not met his burden of showing that the
argument caused prejudice.
4.
¶62 Morris next argues that the prosecutor committed
misconduct during the guilt phase when he introduced Castillo’s
jacket solely to inflame the jury. The prosecutor admitted his
misconduct, Morris argues, when he told the jury during his
27
closing argument that he had offered the jacket for the jury’s
“smelling pleasure.” 7 Defense counsel did not object during the
prosecution’s statement, but did discuss the comment during his
closing argument, noting that the odor on the jacket resulted in
part from storing the jacket in a bag for a long period.
Because defense counsel did not object to the prosecutor’s
comments, we review for fundamental error. Roque, 213 Ariz. at
228 ¶ 154, 141 P.3d at 403.
¶63 The prosecutor originally introduced the jacket to
show that it belonged to Castillo. During the testimony of a
police officer who investigated the scene of Castillo’s death,
the prosecutor introduced a booking photograph of Castillo
wearing the jacket and then asked the officer to remove the
jacket from its plastic bag and hold it up. The prosecutor
quickly asked the detective to return the jacket to the bag.
7
The prosecutor stated:
But one of the things that is interesting about
[Castillo] is that the smell is absolutely putrid,
absolutely one of the worst things that you will ever
probably experience. And you got a minimal exposure
to it when the jacket was opened up for your, if you
will, smelling pleasure, for lack of a better word.
And what ended up happening—you could tell it was
a very strong odor about it. So with regard to Julie
Castillo, one of the things that happened to her is
that she was wearing that jacket, and the reason that
we pulled it out to show it to you, because the
sleeves were inside out, and what that means is that
he killed her.
28
There was no misconduct in introducing the jacket into evidence.
¶64 At worst, the offhand “smelling pleasure” comment was
inappropriate. It does not, however, rise to the level of
fundamental error because this single remark did not deprive
Morris of a fair trial. Moreover, overwhelming evidence
established that the strong odor associated with the jacket
resulted from its close proximity to Castillo’s badly decomposed
body. Given this evidence, Morris cannot establish that the
prosecutor’s comment resulted in prejudice.
5.
¶65 Finally, Morris notes that on June 15, 2005, during
the guilt phase of the trial, the prosecutor kept on his table,
in view of the jury, an excluded photograph showing a maggot
infestation. During a bench conference with the judge on
another matter, defense counsel objected and the court ordered
the prosecutor to move the photograph from the jury’s view. The
prosecutor did so. Because of the objection, Morris preserved
this incident of alleged prosecutorial misconduct. Id.
¶66 Nothing in the record indicates that any juror
actually saw the challenged photograph. Defense counsel did not
ask the trial judge to determine whether any jurors had seen the
photograph or to instruct the jurors to disregard it. The
prosecutor complied with the judge’s order to remove the
photograph from view, and nothing indicates that he
29
intentionally left it on his desk or that he repeated this
conduct at any other point in the trial. Given these
circumstances, this incident does not constitute misconduct
requiring reversal.
6.
¶67 We finally consider whether “persistent and pervasive”
misconduct occurred and whether the “cumulative effect of the
incidents shows that the prosecutor intentionally engaged in
improper conduct and ‘did so with indifference, if not a
specific intent, to prejudice the defendant.’” Id. at ¶ 155
(quoting Hughes, 193 Ariz. at 80 ¶ 31, 969 P.2d at 1192).
Because Morris has described only one incident of misconduct, we
cannot conclude that the prosecutor engaged in “persistent and
pervasive” misconduct. Moreover, given the overwhelming
evidence of Morris’s guilt and of the cruelty of the murders,
the challenged remarks by the prosecutor did not prejudice
Morris.
D.
¶68 Morris also claims that the trial judge abused his
discretion by allowing the State to introduce excessively
gruesome photographs of the bodies throughout the trial. Morris
argues that the photographs had no evidentiary value because
they did not show the cause of death or the identity of the
victims.
30
¶69 We review a trial judge’s decision to admit
photographs for abuse of discretion. State v. Hampton, 213
Ariz. 167, 173 ¶ 17, 140 P.3d 950, 956 (2006), cert. denied, 127
S. Ct. 972 (2007). We look to three factors to determine
whether the trial judge erred in admitting the photographs: “the
photograph’s relevance, its tendency to inflame the jury, and
its probative value compared to its potential to cause unfair
prejudice.” Id.
¶70 Photographs of a victim’s body are always relevant
because “the fact and cause of death are always relevant in a
murder prosecution.” State v. Spreitz, 190 Ariz. 129, 142, 945
P.2d 1260, 1273 (1997) (quoting State v. Chapple, 135 Ariz. 281,
288, 660 P.2d 1208, 1215 (1983)). Additionally, photographs of
a victim’s body may be introduced
to prove the corpus delicti, to identify the victim,
to show the nature and location of the fatal injury,
to help determine the degree or atrociousness of the
crime, to corroborate state witnesses, to illustrate
or explain testimony, and to corroborate the state’s
theory of how and why the homicide was committed.
Chapple, 135 Ariz. at 288, 660 P.2d at 1215. If, however, the
photographs have “no tendency to prove or disprove any question
which is actually contested, they have little use or purpose
except to inflame and would usually not be admissible.” Id.
Gruesome or inflammatory photographs may be admitted, but if
they are “admitted for the sole purpose of inflaming the jury,
31
[the Court] will reverse on appeal.” Gerlaugh, 134 Ariz. at
169, 654 P.2d at 805.
¶71 None of the photographs to which Morris specifically
objects on appeal, all of which are of Noah’s body, are
gruesome. 8 Four show Noah’s hands or feet and one shows her nude
body from a distance. All of the photographs provide
information about the time and manner of death or otherwise
corroborate the State’s case. See Anderson II, 210 Ariz. at 340
¶ 41, 111 P.3d at 382 (holding that photographs showing
extensive decomposition, including skin slippage, bloating, and
discoloration were relevant to “corroborate the State’s theory
of the case”). Moreover, the trial judge carefully analyzed
each photograph for purposes of Arizona Rule of Evidence 403 9 and
determined that any prejudicial effect did not substantially
outweigh the probative value. On this record, we cannot
conclude that the trial judge abused his discretion in admitting
8
Morris also argues that some photographs that were marked
as exhibits but not admitted at trial are gruesome. Morris
cannot establish prejudice from exhibits never admitted into
evidence.
9
Arizona Rule of Evidence 403 states:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of
cumulative evidence.
32
the photographs.
III.
¶72 If a jury imposes the death penalty for murders
committed before August 1, 2002, this Court independently
reviews the jury’s findings of aggravating and mitigating
circumstances and the propriety of the death sentence. A.R.S. §
13-703.04 (Supp. 2006); 2002 Ariz. Sess. Laws 2092, 2099, 5th
Spec. Sess., ch. 1, § 7.B (noting that A.R.S. § 13-703.04
applies to offenses committed before August 1, 2002). For
capital offenses committed on or after August 1, 2002, however,
the Court no longer conducts independent review. See 2002 Ariz.
Sess. Laws 2092, 2099, 5th Spec. Sess., ch. 1, § 7.C (noting
that A.R.S. § 13-703.05 is effective on August 1, 2002 and
applies to offenses committed on or after that date). Instead,
A.R.S. § 13-703.05 (Supp. 2006), which the legislature adopted
as part of a larger bill addressing the constitutional defects
of Arizona’s capital sentencing scheme in light of Ring v.
Arizona, 536 U.S. 584 (2002), governs our review of these cases.
See 2002 Ariz. Sess. Laws 2092, 2099, 5th Spec. Sess., ch. 1, §
9.A.1. Because Morris committed all five murders after August
1, 2002, we follow the standard of review set out in section 13-
703.05.
33
A.
¶73 Section 13-703.05 states:
A. The supreme court shall review all death
sentences to determine whether the trier of fact
abused its discretion in finding aggravating
circumstances and imposing a sentence of death.
B. If the supreme court determines that an error
occurred in the sentencing proceedings, the
supreme court shall determine whether the error
was harmless beyond a reasonable doubt. If the
supreme court cannot determine whether the error
was harmless beyond a reasonable doubt, the
supreme court shall remand the case for a new
sentencing proceeding.
¶74 This is the first case in which we consider our role
under section 13-703.05. The primary goal of statutory
interpretation is to effect the intent of the legislature.
State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993).
If the language of a statute is plain and unambiguous, we look
no further. Id.
¶75 Other than his claim of persistent and pervasive
prosecutorial misconduct, Morris raises no challenges to the
aggravation or penalty phases of his trial. We must therefore
initially determine whether the statute requires us to review
the sentencing portion of the trial even when a defendant fails
to raise issues related to those matters.
¶76 The statute provides that this Court “shall review all
death sentences” under the abuse of discretion standard. A.R.S.
§ 13-703.05.A (emphasis added). Because the statute contains
34
mandatory language, we conclude that we are required to
determine whether the jury abused its discretion, even though
Morris failed to challenge the jury’s decision with regard to
either the aggravating factors or the imposition of the death
sentences. 10 See, e.g., Ins. Co. of N. Am. v. Superior Court,
166 Ariz. 82, 85, 800 P.2d 585, 588 (1990) (noting that “shall”
is presumably mandatory).
B.
¶77 Because we conclude that the statute mandates our
review, we first consider whether the jury abused its discretion
in finding the aggravating circumstances. Under this standard
of review, we uphold a decision if there is “any reasonable
evidence in the record to sustain it.” State v. Veatch, 132
Ariz. 394, 396, 646 P.2d 279, 281 (1982). Here, the jury found
that the State proved two aggravators beyond a reasonable doubt:
Morris committed prior serious offenses, A.R.S. § 13-703.F.2,
and Morris committed each of the murders in an especially
heinous, cruel or depraved manner, id. § 13-703.F.6.
¶78 The jury did not abuse its discretion in finding the
10
Our conclusion that section 13-703.05 requires us to review
the sentence regardless of Morris’s failure to raise arguments
against it should not be understood to relieve death penalty
counsel of the duty to raise all meritorious arguments against a
death sentence. See ABA Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty Cases Guideline
10.11.L (2003) (“Counsel at every stage of the case should take
35
F.2 aggravator. The State properly used the multiple murder
convictions from the guilt phase as prior serious offenses. See
id. § 13-703.F.2 (“Convictions for serious offenses . . . not
committed on the same occasion but consolidated for trial with
the homicide . . . shall be treated as a serious offense under
this paragraph.”). Certainly, reasonable evidence supports the
jury’s decision that the State proved the F.2 aggravator.
¶79 We likewise conclude that the jury did not abuse its
discretion in finding that the State proved the F.6 aggravator
beyond a reasonable doubt. The jury made separate findings that
the State had proved (1) cruelty and (2) heinousness or
depravity. As noted earlier, the State establishes especial
cruelty by showing that a victim was conscious and suffered
physical pain or mental anguish before death and that the
defendant knew or should have known that the victim would
suffer. Trostle, 191 Ariz. at 18, 951 P.2d at 883. With
respect to the cruelty prong, the State presented expert
evidence that strangulation victims remain conscious and
experience pain for at least some period of time. Additionally,
the State presented evidence that Davis, Velasquez, and Noah
struggled with Morris. Therefore, the evidence in the record
supports the jury’s finding of cruelty in each of the five
advantage of all appropriate opportunities to argue why death is
not suitable punishment for their particular client.”).
36
murders.
¶80 A finding of cruelty alone is sufficient to establish
the F.6 aggravator. We therefore need not address whether the
jury abused its discretion in finding that the murders were also
heinous or depraved. Cf. Newell, 212 Ariz. at 405-06 ¶¶ 84-85,
132 P.3d at 849-50 (noting, during independent review, that a
finding of cruelty alone establishes the F.6 aggravator).
C.
¶81 The statute also directs us to consider whether the
jury abused its discretion when it imposed a sentence of death
for each of the murders. Although Morris presented mitigation
evidence, the jury necessarily determined that it was not
sufficiently substantial to call for leniency. See A.R.S. § 13-
703.E (noting that the trier of fact imposes a death sentence if
it finds at least one aggravating circumstance and determines
that the mitigating circumstances are not “sufficiently
substantial to call for leniency”). The decision to impose the
death penalty once the jury finds aggravating factors is a
matter for each individual juror to consider. See id. § 13-
703.C (stating that “[e]ach juror may consider any mitigating
circumstance found by that juror in determining the appropriate
penalty”). Therefore, we will not reverse the jury’s decision
so long as any reasonable jury could have concluded that the
mitigation established by the defendant was not sufficiently
37
substantial to call for leniency.
¶82 Here, Morris presented mitigation evidence relating to
long-standing problems with his appearance and hygiene, the
responsibilities placed on him at a young age, his desire to
improve himself, and his good work record. Given the nature and
strength of the aggravating factors for each murder, a
reasonable jury could have determined that this mitigation
evidence was not sufficiently substantial to call for leniency.
Therefore, we cannot say that the jury abused its discretion in
imposing death sentences for each of the murders.
IV.
¶83 For purposes of federal review, Morris raises the
following fourteen challenges to the constitutionality of
Arizona’s death penalty scheme. He concedes that this Court has
previously rejected these arguments.
¶84 (1) The fact-finder in capital cases must be able to
consider all relevant mitigating evidence in deciding whether to
give the death penalty. See Woodson v. North Carolina, 428 U.S.
280, 304 (1976). The trial court’s failure to allow the jury to
consider and give effect to all mitigating evidence in this case
by limiting its consideration to that proven by a preponderance
of the evidence is unconstitutional under the Eighth and
Fourteenth Amendments. We rejected this argument in State v.
McGill, 213 Ariz. 147, 161 ¶ 59, 140 P.3d 930, 944 (2006), cert.
38
denied, 127 S. Ct. 1914 (2007). See also State v. Medina, 193
Ariz. 504, 514-15 ¶ 43, 975 P.2d 94, 104-05 (1999).
¶85 (2) The State’s failure to allege an element of the
charged offense in the grand jury indictment—the aggravating
factors that made Morris death eligible—is a fundamental defect
that renders the indictment constitutionally defective because
it violates the Fifth, Sixth, Eighth, and Fourteenth Amendments
and Article 2, Sections 1, 4, 13, 15, 23, and 24 of the Arizona
Constitution. We rejected this argument in McKaney v. Foreman
ex rel. County of Maricopa, 209 Ariz. 268, 273 ¶ 23, 100 P.3d
18, 23 (2004).
¶86 (3) The F.6 “especially heinous, cruel or depraved”
aggravating factor is unconstitutionally vague and overbroad
because the jury does not have enough experience or guidance to
determine when the aggravator is met. The finding of this
aggravator by a jury violates the Eighth and Fourteenth
Amendments because it does not sufficiently place limits on the
discretion of the sentencing body, the jury, which has no
“narrowing constructions” to draw from and give “substance” to
the otherwise facially vague law. We rejected this argument in
State v. Cromwell, 211 Ariz. 181, 188-90 ¶¶ 38-45, 119 P.3d 448,
455-57 (2005), cert. denied, 126 S. Ct. 2291 (2006), and
Anderson II, 210 Ariz. at 353 ¶ 114, 111 P.3d at 395.
39
¶87 (4) By allowing victim impact evidence at the penalty
phase of the trial, the trial court violated Morris’s
constitutional rights under the Fifth, Sixth, Eighth and
Fourteenth Amendments and Article 2, Sections 1, 4, 13, 15, 23,
and 24 of the Arizona Constitution. We rejected challenges to
the use of victim impact evidence in Lynn v. Reinstein, 205
Ariz. 186, 191 ¶¶ 16-17, 68 P.3d 412, 417 (2003).
¶88 (5) The trial court improperly omitted from the
penalty phase jury instructions language to the effect that the
jury may consider mercy or sympathy in deciding the value to
assign the mitigation evidence, instead telling the jury to
assign whatever value it deemed appropriate. The court also
instructed the jury that they “must not be influenced by mere
sympathy or by prejudice in determining these facts.” These
instructions limited the mitigation the jury could consider in
violation of the Fifth, Sixth, Eighth and Fourteenth Amendments
and Article 2, Sections 1, 4, 15, 23, and 24 of the Arizona
Constitution. We rejected this argument in State v. Carreon,
210 Ariz. 54, 70-71 ¶¶ 81-87, 107 P.3d 900, 916-17, cert.
denied, 126 S. Ct. 122 (2005).
¶89 (6) The death penalty is cruel and unusual under any
circumstances and violates the Eighth and Fourteenth Amendments,
and Article 2, Section 15 of the Arizona Constitution. This
Court and the United States Supreme Court have rejected this
40
argument. Gregg v. Georgia, 428 U.S. 153, 186-87 (1976); State
v. Harrod, 200 Ariz. 309, 320 ¶ 59, 26 P.3d 492, 503 (2001),
vacated on other grounds, 536 U.S. 953 (2002) (mem.).
¶90 (7) The death penalty is irrational and arbitrarily
imposed; it serves no purpose that is not adequately addressed
by life in prison, in violation of the defendant’s right to due
process under the Fourteenth Amendment to the United States
Constitution and Article 2, Sections 1 and 4 of the Arizona
Constitution. We rejected these arguments in State v. Smith,
203 Ariz. 75, 82 ¶¶ 35-36, 50 P.3d 825, 832 (2002), and State v.
Beaty, 158 Ariz. 232, 247, 762 P.2d 519, 534 (1988).
¶91 (8) The prosecutor’s discretion to seek the death
penalty has no standards and therefore violates the Eighth and
Fourteenth Amendments, and Article 2, Sections 1, 4, and 15 of
the Arizona Constitution. We rejected this argument in State v.
Sansing, 200 Ariz. 347, 361 ¶ 46, 26 P.3d 1118, 1132 (2001),
vacated on other grounds, 536 U.S. 954 (2002) (mem.). See also
State v. Finch, 202 Ariz. 410, 419 ¶ 50, 46 P.3d 421, 430
(2002).
¶92 (9) Arizona’s death penalty is applied so as to
discriminate against poor, young, and male defendants in
violation of Article 2, Sections 1, 4, and 13 of the Arizona
Constitution. We rejected this argument in Sansing, 200 Ariz.
41
at 361 ¶ 46, 26 P.3d at 1132. See also State v. Stokley, 182
Ariz. 505, 516, 898 P.2d 454, 465 (1995).
¶93 (10) Proportionality review serves to identify which
cases are above the “norm” of first degree murder, thus
narrowing the class of defendants who are eligible for the death
penalty. The absence of proportionality review of death
sentences by Arizona courts denies capital defendants due
process of law and equal protection and amounts to cruel and
unusual punishment in violation of the Fifth, Eighth, and
Fourteenth Amendments, and Article 2, Section 15 of the Arizona
Constitution. We rejected this argument in State v.
Gulbrandson, 184 Ariz. 46, 73, 906 P.2d 579, 606 (1995). See
also State v. Salazar, 173 Ariz. 399, 417, 844 P.2d 566, 584
(1992).
¶94 (11) Arizona’s capital sentencing scheme is
unconstitutional because it does not require the State to prove
the death penalty is appropriate or require the jury to find
beyond a reasonable doubt that the aggravating circumstances
outweigh the accumulated mitigating circumstances. Instead,
Arizona’s death penalty statute requires defendants to prove
their lives should be spared, in violation of the Fifth, Eighth,
and Fourteenth Amendments, and Article 2, Section 15 of the
Arizona Constitution. We rejected this argument in State v.
42
Fulminante, 161 Ariz. 237, 258, 778 P.2d 602, 623 (1988). See
also Carreon, 210 Ariz. at 76 ¶ 122, 107 P.3d at 922.
¶95 (12) Arizona’s death penalty scheme does not
sufficiently channel the sentencing jury’s discretion.
Aggravating circumstances should narrow the class of persons
eligible for the death penalty and reasonably justify the
imposition of a harsher penalty. Arizona Revised Statutes
section 13-703.01 is unconstitutional because it provides no
objective standards to guide the jury in weighing the
aggravating and mitigating circumstances. The broad scope of
Arizona’s aggravating factors encompasses nearly anyone involved
in a murder, in violation of the Eighth and Fourteenth
Amendments, and Article 2, Section 15 of the Arizona
Constitution. We rejected this argument in State v. Pandeli,
200 Ariz. 365, 382 ¶ 90, 26 P.3d 1136, 1153 (2001), vacated on
other grounds, 536 U.S. 953 (2002) (mem.). See also State v.
Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31 (1991).
¶96 (13) Execution by lethal injection is cruel and
unusual punishment in violation of the Eighth and Fourteenth
Amendments, and Article 2, Section 15 of the Arizona
Constitution. We rejected this argument in State v. Van Adams,
194 Ariz. 408, 422 ¶ 55, 984 P.2d 16, 30 (1999), and State v.
Hinchey, 181 Ariz. 307, 315, 890 P.2d 602, 610 (1995).
43
¶97 (14) Arizona’s death penalty scheme unconstitutionally
requires imposition of the death penalty whenever at least one
aggravating circumstance and no mitigating circumstances exist,
in violation of the Eighth and Fourteenth Amendments, and
Article 2, Section 15 of the Arizona Constitution. Arizona’s
death penalty law cannot constitutionally presume that death is
the appropriate default sentence. We rejected this argument in
State v. Miles, 186 Ariz. 10, 19, 918 P.2d 1028, 1037 (1996).
V.
¶98 For the foregoing reasons, we affirm Morris’s
convictions and sentences.
_______________________________________
Ruth V. McGregor, Chief Justice
CONCURRING:
_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
_______________________________________
W. Scott Bales, Justice
44
State v. Morris
Court: Arizona Supreme Court
Date filed: 2007-06-18
Citations: 160 P.3d 203, 215 Ariz. 324
Copy Citations