SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0095-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR1992-005731
SCOTT ALAN LEHR, )
)
Appellant. )
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Andrew G. Klein, Judge
AFFIRMED
________________________________________________________________
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Jeffrey A. Zick, Assistant Attorney General
Attorneys for State of Arizona
DAVID GOLDBERG ATTORNEY AT LAW Fort Collins, CO
By David Goldberg
Attorney for Scott Alan Lehr
________________________________________________________________
B A L E S, Justice
¶1 This automatic appeal arises from Scott Alan Lehr’s
convictions and death sentences for murdering two women. We
have jurisdiction under Article 6, Section 5(3) of the Arizona
Constitution and A.R.S. § 13–4031 (2011).
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Over the course of about a year, beginning in February
1991, Lehr separately attacked ten women in central and
northwest Phoenix, abducting and sexually assaulting his victims
and brutally murdering three of them. He was convicted of three
counts of first degree murder, three counts of attempted first
degree murder, two counts of aggravated assault, seven counts of
kidnapping, and twenty-two counts involving sexual assault. See
State v. Lehr (“Lehr I”), 201 Ariz. 509, 512 ¶ 1, 38 P.3d 1172,
1175 (2002). The trial court imposed death sentences for Lehr’s
murder convictions for victims M.M., M.C., and B.C.
¶3 This Court affirmed Lehr’s convictions and sentences
for the counts related to seven victims, but reversed his
convictions concerning M.M., M.C., and W.C. because the trial
court had improperly restricted Lehr’s cross-examination of the
State’s DNA expert. Id. at 518-20 ¶¶ 32-43, 38 P.3d at 1181-83.
On independent review, this Court affirmed Lehr’s death sentence
for B.C.’s murder. Id. at 522-24 ¶¶ 60-66, 38 P.3d at 1185-86.
¶4 The case was remanded for a retrial on the charges
concerning M.M., M.C., and W.C. See id. at 524 ¶ 67, 38 P.3d at
1186. Before the mandate issued, however, the Supreme Court
decided Ring v. Arizona, 536 U.S. 584 (2002). In light of Ring,
this Court also vacated Lehr’s death sentence for B.C.’s murder
and remanded the case for resentencing. State v. Lehr (“Lehr
II”), 205 Ariz. 107, 110 ¶ 10, 67 P.3d 703, 706 (2003).
¶5 The counts involving victims M.M., M.C., and W.C. were
2
retried in 2009. After finding Lehr guilty on these counts, the
jury concluded that Lehr should be sentenced to death for the
murders of M.M. and M.C., but it could not reach a verdict on
the appropriate sentence for the murder of B.C. In lieu of
retrying the sentencing phase for B.C.’s murder, the State
withdrew its request for the death penalty, and the trial court
sentenced Lehr to life imprisonment to be served consecutively
to his other sentences. The trial court also sentenced Lehr to
seven-year consecutive terms of imprisonment for each non-
capital offense. This appeal followed.
DISCUSSION
¶6 Lehr raises eight issues on appeal and also urges the
Court, in its independent review, to vacate his death sentences
and impose terms of life imprisonment without parole.
A. Waiver of Right to Attend Trial
¶7 Lehr repeatedly told the trial court that he wanted to
waive his right to attend pretrial and trial proceedings. He
now contends that his waiver was involuntary and violated the
Fifth, Sixth, and Fourteenth Amendments because it was based on
the trial court’s adherence to a jail policy requiring him to
wear a stun belt in the courtroom. Not having made this
objection below, Lehr argues that the alleged error was both
fundamental and structural.
¶8 We review de novo whether a defendant knowingly and
3
voluntarily waived his right to be present at trial. See
Campbell v. Wood, 18 F.3d 662, 672 (9th Cir. 1994) (noting that
voluntariness is ultimately a legal question). When a defendant
does not object to a trial court’s requiring him to wear
restraints such as stun belts, we review for fundamental error.
State v. Dixon, 226 Ariz. 545, ¶ 24, 250 P.3d 1174, 1180 (2011).
¶9 Lehr has not established error, fundamental or
otherwise. Although he contends that he waived his right to be
present only because he did not want to wear a stun belt, the
record belies this assertion. Before trial, Lehr informed the
court several times that he desired to be absent from all court
proceedings. The trial court held lengthy discussions to
confirm that Lehr understood his right to be present and that he
knowingly, intelligently, and voluntarily waived this right.
The issue arose again during the trial, when Lehr agreed to
stipulate that W.C. had previously identified him in a photo
lineup. In discussing the stipulation, Lehr reaffirmed his
intent to absent himself during the entire trial, and the trial
court found his waiver knowing, intelligent, and voluntary.
¶10 On the eve of the penalty phase, the trial court again
discussed with Lehr his waiver of his right to be present. Lehr
said that he wanted to absent himself in order to increase his
chances of receiving the death penalty. When the trial court
told Lehr that he would need to be present for the reading of
4
the verdicts, Lehr for the first time voiced concerns about
wearing a stun belt – which he characterized as “that deadly
execution device” – and asked if he could instead appear dressed
in jail clothes and wearing chains.
¶11 Lehr contends that his waiver was invalid because the
trial court, before the eve of the penalty phase, did not ask
why he did not want to be present. Lehr cites United States v.
Mitchell, 502 F.3d 931, 986-87 (9th Cir. 2007), for the
proposition that a judge must inquire into a defendant’s reasons
for absenting himself from trial. Mitchell does not so hold.
Although the trial court in Mitchell did ask the defendant why
he wished to absent himself, the Ninth Circuit’s opinion does
not address whether such an inquiry is required, but instead
holds that a capital defendant may absent himself from the
penalty phase and the trial court need not hold a competency
hearing when the defendant elects to do so. Id. at 986-88.
¶12 Similarly unavailing is Lehr’s supplemental citation
to In re MH 2006-000749, 214 Ariz. 318, 324-25 ¶ 29, 152 P.3d
1201, 1207-08 (App. 2007). In that case, the court of appeals
observed that “[t]he better practice in cases in which a court
is called upon to assess whether a right has been voluntarily
waived is to make specific findings.” Id. Although judges may
sometimes appropriately inquire into a party’s reasons for
waiving a right, they are not constitutionally required to do so
5
for a waiver to be valid. Cf. State v. Hunnel, 873 P.2d 877,
880 (Idaho 1994) (holding that a trial court need not inquire
into the reasons for a defendant’s waiver of right to counsel so
“long as the record as a whole and inferences drawn therefrom
show the waiver is voluntary and knowing”).
¶13 We also reject Lehr’s belated assertion that he waived
his presence solely because he did not want to wear a stun belt.
The only time he expressed concern about a stun belt was when
the trial court told him he would be required to appear in the
courtroom for the return of the sentencing verdicts. But even
if his desire not to wear a stun belt influenced his waiver,
Lehr has not established any error by the trial court.
¶14 Lehr’s argument presumes that if he had not waived his
presence, the trial court would have required him to wear a stun
belt merely because of jail policy. We reject this presumption.
In fact, on the eve of opening statements for the guilt phase,
the trial court told counsel that if Lehr chose to appear in
court and objected to a stun belt, the court would require the
jail security officers to explain their policies and “why they
apply to [Lehr] in this case” and the court would then make a
ruling. When Lehr later appeared in court for the reading of
the sentencing verdicts, the trial court, consistent with Deck
v. Missouri, 544 U.S. 622 (2005), and State v. Gomez, 211 Ariz.
494, 503 ¶ 43, 123 P.3d 1131, 1140 (2005), made a case-specific
6
determination that security concerns warranted shackling Lehr.
¶15 Because the trial court here appropriately conducted
several hearings to verify Lehr’s continued desire to absent
himself from trial and correctly found that Lehr’s decision was
knowing, intelligent, and voluntary, Lehr has not established
error.
B. Joinder and Other Acts Evidence
¶16 Lehr makes several arguments regarding the joinder of
charges for trial and the use of other acts evidence.
1. Admission of Other Acts Evidence
¶17 Pursuant to Rules 404(b) and (c) of the Arizona Rules
of Evidence, the trial court allowed the State to present
evidence of conduct involved in convictions upheld in Lehr I to
show modus operandi, identity, and aberrant sexual propensity.
¶18 Rule 404(b) allows the admission of evidence of “other
crimes, wrongs, or acts” for purposes that include “proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” In cases
involving sexual offense charges, Rule 404(c) allows courts to
admit evidence of “other crimes, wrongs, or acts . . . if
relevant to show that the defendant had a character trait giving
rise to an aberrant sexual propensity to commit the offense
charged.” To admit such evidence, a trial court must
specifically find, among other things, that the other acts
7
provide “a reasonable basis to infer that the defendant had a
character trait giving rise to an aberrant sexual propensity to
commit the crime charged” and that “[t]he evidentiary value of
proof of the other act is not substantially outweighed by danger
of unfair prejudice, confusion of issues, or other factors
mentioned in Rule 403.” Ariz. R. Evid. 404(c)(1).
¶19 Lehr argues that the acts involved in his other crimes
were not sufficiently similar to warrant admitting evidence of
them under Rule 404(b). He also argues that such evidence was
inadmissible under Rule 404(c) because its probative value was
substantially outweighed by its prejudicial effect. We review
the trial court’s admission of this evidence for an abuse of
discretion. See State v. Villalobos, 225 Ariz. 74, 79–80 ¶ 18,
235 P.3d 227, 232–33 (2010).
¶20 Before admitting the other acts evidence, the trial
court held an evidentiary hearing at which the State presented
expert testimony. The court found “that the information
presented . . . convincingly establish[ed] that evidence of
other acts provides a reasonable basis to infer that [Lehr] has
a character trait which gives rise to an aberrant sexual
propensity for violent and sexual acts against non-consenting
females.” Consistent with Rule 404(c)(1), the trial court also
found that “the probative value of the evidence is not
substantially outweighed by the danger of unfair prejudice.”
8
The trial court further found that the evidence of previous
crimes could be admitted to show “modus operandi and identity”
because the “attacks were strikingly similar in the way the
Defendant lured the victims and transported them to the area
where they were assaulted, how he assaulted them, where he
assaulted them, and how he left them.”
¶21 In arguing that the trial court erred in admitting the
other acts evidence, Lehr notes that the attacks occurred at
different times and on different days of the week, the victims
varied in age, and other differences. The trial court, however,
identified extensive similarities among Lehr’s crimes. Acts
need not be perfectly similar in order for evidence of them to
be admitted under Rule 404. State v. Roscoe, 145 Ariz. 212,
216, 700 P.2d 1312, 1317 (1984). The trial court did not abuse
its discretion by admitting the other acts evidence.
2. Joinder of Charges for Trial
¶22 The court denied Lehr’s motion to sever the trials on
the charges relating to victims M.M., M.C., and W.C. and to
separately resentence Lehr for the murder of B.C. “A denial of
a motion to sever under Rule 13.4(b) is reversible error only if
the evidence of other crimes would not have been admitted at
trial for an evidentiary purpose anyway.” State v. Aguilar, 209
Ariz. 40, 51 ¶ 38, 97 P.3d 865, 876 (2004) (quotation marks and
citations omitted). The trial court denied Lehr's motion to
9
sever the retrials and the resentencing because “evidence of the
other offense or offenses would be admissible under applicable
rules of evidence if the offenses were tried separately.” Ariz.
R. Crim. P. 13.4(b). The court properly applied Rule 13.4(b) in
denying Lehr's motion to sever.
3. Jury Instructions and State’s Closing
¶23 Lehr also argues that the trial court erred in
instructing the jury that it could consider the evidence of
other acts for all of the purposes listed in Rule 404(b).
Repeatedly during trial and at the close of the guilt phase, the
trial court gave limiting instructions to the jury about using
evidence for 404(b) and (c) purposes. The court instructed the
jury that it could consider the other acts evidence under Rule
404(b) only “to establish the Defendant’s motive, opportunity,
intent, preparation, plan, knowledge, and identity.” On the
third day of trial, Lehr asked the court to remove from the jury
instructions all reasons to consider Rule 404(b) evidence except
identity. The court denied Lehr's request.
¶24 Although trial courts should specify in their limiting
instruction the purposes for which Rule 404(b) evidence is being
admitted, the failure to do so here was harmless error. See
United States v. Wilson, 107 F.3d 774, 783 (10th Cir. 1997)
(holding that trial court’s failure to instruct jury on specific
purpose for admitting Rule 404(b) evidence “is harmless if its
10
purpose is apparent from the record and it was properly
admitted”). Here, the purposes for which the evidence was
admitted were apparent from the record. In closing arguments,
the State urged the jury to consider the evidence only for the
original purposes for which it had been offered: to show modus
operandi, identity, and an aberrant sexual propensity.
¶25 Relying on State v. Blakely, 204 Ariz. 429, 65 P.3d 77
(2003), Lehr next contends that the State's discussion of Rule
404(b) factors in its closing remarks changed the theory of
prosecution and violated due process because he did not have a
chance to respond to the expanded use of the other acts
evidence. Blakely, however, is inapposite. In that case, at
the close of the evidence, the State changed the predicate
felony used to charge the defendant with felony murder. Id. at
438-39 ¶¶ 42, 46, 65 P.3d at 86–87. We held that Blakely was
deprived of his right to a fair trial because “nothing in the
proceedings up to the eve of closing arguments gave him notice”
that the state was going to allege the predicate felony it
asserted at the close of evidence. Id. at 440 ¶¶ 53-54, 65 P.3d
at 88. Lehr, in contrast, was on notice well before the start
of trial that the State planned to use other acts evidence.
Additionally, as discussed above, the State urged the jury in
closing arguments to consider the evidence only for the original
purposes for which it had been offered.
11
4. Admission of Evidence of B.C.’s Murder
¶26 Lehr finally contends that admission of evidence of
B.C.’s murder was improper and exposed him to double jeopardy
because this Court held in Lehr I that there was insufficient
evidence to prove the aggravator under A.R.S. § 13-751(F)(6).
The fact that the State produced insufficient evidence at Lehr’s
original trial to establish the (F)(6) aggravator, however, does
not imply that evidence of the murder could not satisfy the
requirements for admissibility under Rules 404(b) and (c) at his
2009 trial. Double jeopardy concerns are also not implicated.
This Court’s 2002 ruling that there was insufficient evidence to
prove the (F)(6) aggravator was not an acquittal, see Poland v.
Arizona, 476 U.S. 147, 155–56 (1986), and, in any event,
admission of evidence of other acts for which a defendant has
been acquitted does not violate double jeopardy. See Dowling v.
United States, 493 U.S. 342, 348 (1990).
C. Right of Confrontation
¶27 Before the 2009 retrial, the State sought to have
victim T.H. declared unavailable under Arizona Rule of Criminal
Procedure 19.3(c) because she refused to testify against Lehr.
At the 1996 trial, T.H. testified that Lehr had abducted and
raped her and then threw rocks at her as she fled. The State
sought to introduce evidence of these other acts in the retrial.
¶28 At a hearing to determine her availability as a
12
witness, T.H. testified that she would not testify against Lehr
because she strongly opposed capital punishment and had
testified previously only because the prosecutor assured her
that her testimony would not be used to decide whether to impose
the death penalty. The trial court told T.H. that if she
refused to testify the court could find her in criminal
contempt, jail her for up to six months, fine her up to $300,
and force her to wake up early every morning in jail and return
to court to revisit whether she would testify. T.H. said she
accepted the possible consequences and reaffirmed her refusal to
testify.
¶29 The trial court found T.H. unavailable under Arizona
Rule of Evidence 804(a)(2). Noting that the State had “done
everything in its power to compel [T.H.'s] testimony,” the court
concluded that “putting her in jail or fining her is not going
to change her mind” and that T.H. would persist in refusing to
testify. Because her previous testimony was “given under oath
and subject to cross-examination,” the court allowed the State
to read her previous testimony into the record.
¶30 Lehr argues that the trial court abused its discretion
in admitting this evidence and violated his Sixth Amendment
right of confrontation. We review a trial court's finding of a
witness's unavailability for an abuse of discretion. State v.
Montaño, 204 Ariz. 413, 420 ¶ 25, 65 P.3d 61, 68 (2003).
13
¶31 Rule 19.3(c)(1) of the Arizona Rules of Criminal
Procedure allows “[s]tatements made under oath by a party or
witness during a previous judicial proceeding” to be admitted if
(i) The party against whom the former testimony is
offered was a party to the action or proceeding during
which a statement was given and had the right and
opportunity to cross-examine the declarant with an
interest and motive similar to that which the party now
has . . . and
(ii) The declarant is unavailable as a witness, or is
present and subject to cross-examination.
¶32 The definition of “unavailability” under the Arizona
Rules of Evidence includes situations in which the declarant
“persists in refusing to testify concerning the subject matter
of the declarant's statement despite an order of the court to do
so.” Ariz. R. Evid. 804(a)(2).
¶33 The Sixth Amendment’s Confrontation Clause provides
that “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against
him.” U.S. Const. amend. VI. The Confrontation Clause allows
the admission of testimonial hearsay that satisfies the common
law requirements of “unavailability and a prior opportunity for
cross-examination.” Crawford v. Washington, 541 U.S. 36, 68
(2004). Lehr had an opportunity to cross examine T.H. at his
first trial. The only Confrontation Clause issue, therefore, is
whether T.H. was unavailable to testify.
¶34 A witness’s “refusal to testify . . . [makes] him
14
‘unavailable’ for Confrontation Clause purposes.” Jennings v.
Maynard, 946 F.2d 1502, 1505 (10th Cir. 1991); see also United
States v. Bourjaily, 781 F.2d 539, 543-44 (6th Cir. 1986)
(holding that a witness was “unavailable because he refused to
testify”); cf. United States v. Tirado-Tirado, 563 F.3d 117, 123
n.3 (5th Cir. 2009) (“Crawford did not change the definition of
'unavailability' for Confrontation Clause purposes; pre-Crawford
cases on this point remain good law.").
¶35 In admitting the prior testimony by T.H., the trial
court did not abuse its discretion or violate Lehr’s rights
under the Confrontation Clause.
D. DNA Testing That Consumed the Remaining Sample
¶36 Lehr argues that he was denied his right to due
process because the State, without consulting Lehr’s attorneys,
authorized DNA testing that consumed the swab sticks from which
DNA was extracted. The trial court admitted the DNA test
results over Lehr’s objection. “We review evidentiary rulings
for an abuse of discretion.” State v. Andriano, 215 Ariz. 497,
502 ¶ 17, 161 P.3d 540, 545 (2007).
¶37 In 1992, the State performed inconclusive DNA tests on
anal and vaginal swabs from M.M.'s body. This testing consumed
the cotton on the swabs but not the sticks, which were retained.
In 2002, the State asked the Phoenix Police Department Crime
Laboratory to perform DNA tests on the remaining sticks with
15
techniques not available in 1992. Without notifying the
defense, the prosecutor authorized the lab to complete the tests
even though doing so would consume the sticks. DNA extracted
from the anal swab matched Lehr's DNA. Although the test
consumed the sticks, DNA extractions obtained from the sticks
were preserved and were available to Lehr for testing. Lehr did
not elect to test the extractions.
¶38 Before trial, Lehr moved to preclude the DNA evidence
from the 2002 tests. After a hearing, the trial court found no
evidence of bad faith on the State’s part and no evidence that
retesting would have exonerated Lehr or had a tendency to
exonerate him. The court denied Lehr's motion, but permitted
him to “attack the manner in which the test was conducted and
argue to the jury that consumption of the initial sample
deprived [Lehr] of the ability to test the original sample.”
The court also noted that Lehr was “welcome to retest the
extraction.” In denying Lehr’s motion for reconsideration, the
court noted that he had “not challenged the test performed,
sought expert testimony concerning the extraction procedure or
test results, nor requested to have the extraction re-tested.”
The court found that “no showing can be made that any re-testing
was likely to exonerate the Defendant or produce different
results” and therefore Lehr was not prejudiced.
¶39 The Due Process Clause of the Fourteenth Amendment
16
requires that “criminal defendants be afforded a meaningful
opportunity to present a complete defense.” California v.
Trombetta, 467 U.S. 479, 485 (1984). “To safeguard that right,
the [Supreme] Court has developed what might loosely be called
the area of constitutionally guaranteed access to evidence.”
Id. (internal quotation marks and citation omitted).
¶40 In determining whether the state's failure to preserve
evidence violates a defendant's constitutional rights, “[t]he
critical distinction . . . is between material exculpatory
evidence and potentially useful evidence.” State v. Speer, 221
Ariz. 449, 457 ¶ 37, 212 P.3d 787, 795 (2009) (internal
quotation marks and citations omitted). Prosecutors have a duty
to disclose evidence that “is clearly supportive of a claim of
innocence.” United States v. Agurs, 427 U.S. 97, 107 (1976).
The state denies a defendant due process when it destroys
evidence that “both possess[ed] an exculpatory value that was
apparent before the evidence was destroyed, and [was] of such a
nature that the defendant would be unable to obtain comparable
evidence by other reasonably available means.” Trombetta, 467
U.S. at 488-89.
¶41 When evidence is merely potentially exculpatory,
however, the “failure to preserve potentially useful evidence
does not constitute a denial of due process of law” unless the
defendant “can show bad faith on the part of the police.”
17
Arizona v. Youngblood, 488 U.S. 51, 58 (1988). Absent bad
faith, “[t]he inference that the evidence may be exculpatory is
not strong enough to dismiss the case. It is enough to let the
jury decide whether to draw such an inference.” State v.
Youngblood, 173 Ariz. 502, 507, 844 P.2d 1152, 1157 (1993).
¶42 The trial court did not abuse its discretion in
denying Lehr's motion to preclude the DNA evidence. Because
there is no evidence that the swab sticks were exculpatory
(indeed, they proved to be inculpatory, because the DNA
extracted from them matched Lehr's), the key question is whether
the State acted in bad faith. Lehr argues that he has shown bad
faith because the State, without contacting his counsel,
authorized testing that consumed the sticks. This does not
establish bad faith, particularly because the State retained the
DNA extracted from the swab sticks and made it available to Lehr
for independent testing.
E. Juror Conduct
¶43 Several jurors stood and applauded after the State’s
DNA expert completed his testimony. Lehr argues that the trial
court’s refusal to grant a mistrial or to dismiss certain jurors
denied him his Sixth Amendment right to a fair and impartial
jury. Trial court rulings on motions for a mistrial or to
dismiss jurors are reviewed for abuse of discretion. State v.
Speer, 221 Ariz. 449, 462 ¶ 72, 212 P.3d 787, 800 (2009); State
18
v. Cook, 170 Ariz. 40, 54, 821 P.2d 731, 745 (1991).
¶44 The record reflects that after the State's DNA expert
finished two days of testimony and was excused, “the jury
applaud[ed].” Immediately after the applause, the following
exchange occurred:
THE COURT: I’m not going to ask if you are clapping
because of his performance or because he's done.
A JUROR: His performance.
THE WITNESS: I’m happy because I’m done. Unless, of
course, I’m recalled.
One or more jurors also apparently stood while they applauded.
¶45 Lehr's counsel argued that the applause indicated that
some jurors had “begun to make up their mind” and moved for a
mistrial. He also asked the trial court to discharge the juror
(Juror 5) who said she had clapped for the witness's
performance. Noting the jurors' obvious boredom during the
witness's testimony the previous day, the trial court remarked
that the jurors had likely applauded because “they were just
glad he was done.” The next day, the trial judge and the court
bailiff saw Juror 5 give a “thumbs up” sign to victim E.R. after
she testified. Another juror also observed that Juror 5 called
out E.R.'s name.
¶46 The court held a hearing that same day to question
each juror individually about the clapping and to question Juror
5 about her gesturing to E.R. During examination, Jurors 1, 3,
19
5, 8, and 9 admitted to clapping when the DNA witness finished
his testimony. Jurors 1, 3, and 5 admitted to saying that they
clapped because of the witness's performance. One juror later
stated that another juror said he or she had clapped because
“they were glad [the witness] was done.” Juror 5 admitted that
she called out E.R.'s name and gave a thumbs up to her,
explaining that she did it because it was apparent E.R. was
having a difficult time and she felt sorry for her. All jurors,
whether they clapped or not, affirmed that they could be fair
and impartial and had not made up their minds about Lehr’s
guilt.
¶47 In seeking a mistrial, Lehr argued that the applause
was an “act of bias” that “tainted the entire jury” and that at
the very least Jurors 1, 3, and 5 should be dismissed. The
court denied the motion for mistrial, recognizing that although
the applause was inappropriate, all jurors affirmed that “their
minds had not been made up,” “they could evaluate all witnesses
by the same standards,” and “they could continue to give Scott
Lehr a fair trial and remain open-minded.” The State stipulated
to Juror 5’s removal for cause, and the court accepted the
stipulation, stating “I did find her answers much more troubling
than anybody else's.”
¶48 After closing arguments, Jurors 3, 6, and 12 were
selected as alternate jurors. Therefore, of the jurors who
20
clapped, Jurors 1, 8, and 9 participated in the jury
deliberations.
¶49 Defendants have the right to “an impartial jury.”
U.S. Const. amend. VI; Ariz. Const. art. 2, § 24. “[E]ven a
single partial juror violates a defendant's constitutional right
to a fair trial.” United States v. Angulo, 4 F.3d 843, 848 (9th
Cir. 1993). Although a jury must refrain from premature
deliberations, “juror misconduct warrants a new trial [only] if
the defense shows actual prejudice or if prejudice may be fairly
presumed from the facts.” State v. Dann, 220 Ariz. 351, 371 ¶
115, 207 P.3d 604, 624 (2009) (internal quotation marks and
citation omitted).
¶50 The trial court carefully questioned all jurors to
verify that each remained unbiased and able to provide Lehr a
fair trial. The court dismissed the only juror about whom it
felt concern. The remaining jurors affirmed their ability to
remain fair and impartial and that they had not yet formed an
opinion as to Lehr's guilt, and the court accepted their
answers. The trial court did not abuse its discretion, and
there is no reason to conclude that the applause denied Lehr his
right to a fair trial.
F. Jury Instruction Defining Premeditation
¶51 Lehr argues that the trial court's jury instruction
defining premeditation, together with the prosecutor's closing
21
statement about premeditation, violated his Fourteenth Amendment
right to due process. “The Court reviews de novo whether a jury
instruction accurately reflects the law.” State v. Kiles, 222
Ariz. 25, 32 ¶ 27, 213 P.3d 174, 181 (2009).
¶52 The trial court here instructed the jury:
“Premeditation” means that the defendant intended to
kill another human being, or knew he would kill
another human being, and that after forming that
intent or knowledge, reflected on the decision before
killing. It is this reflection, regardless of the
length of time in which it occurs, that distinguishes
first-degree murder from second-degree murder. An act
is not done with premeditation if it is the instant
effect of a sudden quarrel or heat of passion. The
time needed for reflection is not necessarily
prolonged, and the space of time between the intent or
knowledge to kill and the act of killing may be very
short.
¶53 During the settling of jury instructions, Lehr
objected to the premeditation instruction, arguing that the last
sentence was impermissible under State v. Thompson, 204 Ariz.
471, 65 P.3d 420 (2003). The trial court found that the facts
warranted the final sentence and overruled Lehr's objection.
¶54 During closing argument, the prosecutor stated:
Premeditation only requires a short period of time to
reflect. When you’ve got a rock and you’re using that
to strike someone in the head, you have time to think
about what you’re doing before you strike somebody
with that rock. When you pick it up, you form the
intent in your mind that you’re going to kill someone.
And then you pick it up, and you go ahead and you do
it, that’s premeditation. That’s first-degree murder.
Once you pull that trigger in your mind that you’re
going to kill someone, everything else is easy,
because then all you have to do is pick it up and hit
22
them with it.
¶55 Lehr argues that the last sentence of the jury
instruction was inappropriate because there were no eyewitnesses
or other direct evidence of what happened during the murders.
He contends that the instruction, together with the State's
closing argument, allowed the jury to unconstitutionally convict
him without proof of actual reflection.
¶56 The trial court’s premeditation instruction was nearly
identical to the jury instruction mandated by this Court in
Thompson. We explained in Thompson, however, that courts may
use the sentence to which Lehr objected “[o]nly when the facts
of a case require it . . . . It is the act of premeditation and
not the length of time available that determines the question.”
204 Ariz. at 479-80 ¶ 32, 65 P.3d at 428-29. Thompson also held
that jury instructions on premeditation could not use “the
phrase 'proof of actual reflection is not required'” because it
“relieves the state of the burden of proving with direct
evidence that a defendant reflected.” Id. Instead, the State
must prove “reflection through direct evidence or through
circumstantial evidence.” Id.
¶57 In Thompson, we emphasized that the premeditation
instruction we approved
does not mean that the state must rely on direct
evidence of premeditation; as we have noted, such
evidence is rarely available. Nor does this
23
instruction mean that the state cannot rely on the
passage of time between the formation of intent and
the act of killing as a fact tending to show
premeditation. This instruction merely clarifies that
the state may not use the passage of time as a proxy
for premeditation. The state may argue that the
passage of time suggests premeditation, but it may not
argue that the passage of time is premeditation.
Id. at 480 ¶ 33, 65 P.3d at 429 (alterations in original).
“[I]f a court's instruction or a prosecutor's comment to the
jury signals that the mere passage of time will suffice to
establish the element of premeditation, those instructions or
comments constitute error.” Dann, 205 Ariz. at 565 ¶ 16, 74
P.3d at 239.
¶58 Given the facts of the case, the final sentence of the
trial court's jury instruction was appropriate. Lehr is correct
that the State offered no direct evidence of premeditation, but
the State presented substantial circumstantial evidence. M.C.
and M.M. were both killed by blunt force trauma to the head.
Near their bodies were bloody rocks, which likely were used to
kill the victims. The State did not impermissibly argue that
the passage of time was enough to show premeditation. Instead,
the State argued that the circumstantial evidence relating to
the murders supported a jury finding of premeditation.
¶59 We noted in Thompson that “the state may use all the
circumstantial evidence at its disposal in a case to prove
premeditation,” and that “[s]uch evidence might include, among
24
other things . . . the acquisition of a weapon by the defendant
before the killing.” 204 Ariz. at 479 ¶ 31, 65 P.3d at 428.
“The key is that the evidence, whether direct or circumstantial,
must convince a jury beyond a reasonable doubt that the
defendant actually reflected.” Id. The jury instruction on
premeditation and the State’s closing argument complied with
Thompson.
G. Amendment of Notice of Aggravating Factors
¶60 Lehr argues that the trial court violated A.R.S. § 13-
752 and Rules 13.5 and 15.1(i)(2) of the Arizona Rules of
Criminal Procedure by allowing the State to amend its notice of
aggravating factors on the eve of the penalty phase.
¶61 Arizona law requires the state to provide the
defendant notice, generally within sixty days after arraignment,
of its intent to seek the death penalty. Ariz. R. Crim. P.
15.1(i)(1). The state must also identify before trial the
particular aggravating circumstances it will rely on in seeking
the death penalty. See A.R.S. § 13-752(B) (providing that
“[b]efore trial, the prosecution shall notice one or more of the
aggravating circumstances under § 13-751, subsection F”); Ariz.
R. Crim. P. 15.1(i)(2) (directing that upon filing notice of
intent to seek the death penalty, “the prosecutor shall at the
same time provide the defendant with a list of aggravating
circumstances the state will rely on at the aggravating hearing
25
in seeking the death penalty”).
¶62 Rule 13.5 of the Rules of Criminal Procedure addresses
the amendment of charges. Under Rule 13.5(a), the prosecutor
may amend a charging document, subject to the time limits of
Rule 16.1(b), “to add an allegation of one or more prior
convictions or other non-capital sentencing allegations that
must be found by the jury.” The charges otherwise “may be
amended only to correct mistakes of fact or remedy formal or
technical defects, unless the defendant consents to the
amendment.” Ariz. R. Crim. P. 13.5(b). Capital sentencing
allegations are subject to Rule 13.5(c), which states that
“[t]he filing of a notice to seek the death penalty with noticed
aggravating circumstances shall amend the charging document, and
no further pleading needs to be filed.”
¶63 Here, after the case was remanded, the State in 2003
filed a “Notice of Aggravating Factors” with respect to each
first degree murder charge. This notice identified three
aggravating factors: (F)(2), because identified prior
convictions were “serious offenses”; (F)(6), because Lehr had
committed the offense in an especially heinous, cruel or
depraved manner; and (F)(8), because he would have been
convicted of one or more other homicides. (As in the 1996
trial, the State contended that each victim’s murder was
aggravated by the two other murders.) Before the 2009 trial,
26
the State withdrew the (F)(6) and (F)(8) aggravators.
¶64 In March 2009, after the guilt phase, Lehr objected to
the penalty phase, arguing that the State had incorrectly
characterized some of his prior convictions as “serious
offenses” for purposes of the (F)(2) aggravator, when the pre-
1993 version of the statute applied only to offenses “involving
the use or threat of violence.” He also argued that the State
had erred in identifying the other murders as a basis for the
(F)(8) aggravator. In response, the State acknowledged that it
had used incorrect language in referring to the (F)(2)
aggravator and incorrectly listed certain prior convictions
under (F)(2) or (F)(8) instead of (F)(1).
¶65 Over Lehr’s objection, the trial court allowed the
State to amend its notice to identify two of the prior
convictions listed in the 2003 notice (the aggravated assault
convictions regarding victim T.H.) as supporting the (F)(2)
aggravator because they involved “the use or threatened use of
violence,” and to identify some of the other convictions
referred to in the 2003 notice, including the other murders and
his crimes (which were classified as dangerous crimes against
children) against minor victims J.A., E.R., and J.T., as
supporting the (F)(1) aggravator because they were crimes
punishable by a sentence of death or life imprisonment. The
trial court specifically found that, over the preceding twelve
27
years, Lehr had received notice of all the prior convictions the
State intended to use as aggravators and that he was not
prejudiced by the amendment.
¶66 The State concedes that the amendment of its notice of
aggravating factors during trial did not comport with Rule
13.5(b). The mid-trial amendment also did not comply with
A.R.S. § 13-752 or Rule 15.1(i)(2). The State argues, however,
that the error was harmless, relying on State v. Freeney, 223
Ariz. 110, 219 P.3d 1039 (2009).
¶67 In Freeney, the trial court violated Rule 13.5(b) by
allowing the state to amend the indictment on the first day of
trial to change the nature of the charged offense. 223 Ariz. at
111 ¶ 2, 219 P.3d at 1040. This Court held, however, that a
violation of Rule 13.5(b) is neither structural error nor
prejudicial per se. Id. at 114 ¶ 26, 219 P.3d at 1043.
Instead, because Freeney had objected to the improper amendment,
the Court reviewed for harmless error. Id.
¶68 Lehr argues that Freeney’s harmless error analysis
should not be extended to an improper amendment regarding notice
of aggravating circumstances in a capital case. We disagree.
Most trial errors, including constitutional errors, are not
structural. Id. at 114 ¶ 23, 219 P.3d at 1043. Cf. State v.
Cropper, 205 Ariz. 181, 184 ¶ 15, 68 P.3d 407, 410 (2003)
(holding that State’s failure to provide written notice of
28
intended aggravating factor under prior version of Rule 15.1 was
not reversible error when defendant had timely actual notice and
was not prejudiced); State v. Ring, 204 Ariz. 534, 554 ¶ 50, 65
P.3d 915, 935 (2003) (holding that harmless error analysis
applies to failure to submit the aggravating circumstance
element of capital murder to a jury).
¶69 Under harmless error analysis, to avoid a reversal,
the state must establish that an error was harmless beyond a
reasonable doubt. Freeney, 223 Ariz. at 114 ¶ 26, 219 P.3d at
1143. The State has met its burden here. As the trial court
correctly concluded, Lehr had notice of the prior convictions
the State intended to use as aggravating circumstances. The
error in the 2003 notice was incorrectly identifying which
statutory aggravator would be supported by those convictions and
failing to quote the applicable version of the (F)(2)
aggravator.
¶70 Lehr also was not prejudiced by the amendment of the
notice of aggravating factors. He contends that the amendment
improperly allowed the murders to serve as an (F)(1) aggravator
when they could not have validly qualified as aggravators under
(F)(2). This argument, however, misperceives the prejudice
analysis. The issue is not whether the amendment subjects the
defendant to an aggravating factor (or, as in Freeney, a charged
offense) different from that alleged before the amendment, but
29
instead whether the amendment somehow prejudices the defendant’s
“litigation strategy, trial preparation, examination of
witnesses, or argument.” Freeney, 223 Ariz. at 115 ¶ 28, 219
P.3d at 1044. Given that Lehr had notice of the particular
offenses, including the other murders, that the State would
contend established aggravating circumstances, and never
suggested that the amendment affected his defense in the
sentencing phase, we conclude that the procedurally improper
amendment of the notice of aggravating factors was harmless
beyond a reasonable doubt. Nor did the amendment violate Lehr’s
rights under the Sixth Amendment. Cf. id. at 115 ¶¶ 29-30, 219
P.3d at 1044 (noting that same factors leading Court to find
Rule 13.5(b) violation harmless supported conclusion that Sixth
Amendment rights were not violated).
H. Victim Testimony Opposing Death Penalty
¶71 During the penalty phase, the trial court precluded
Lehr from offering testimony from one of his victims, T.H.,
about her opposition to the death penalty. Lehr argues that the
court prevented him from presenting all available mitigating
circumstances to the jury in violation of the Eighth Amendment.
¶72 We review “evidentiary rulings for an abuse of
discretion.” Andriano, 215 Ariz. at 502 ¶ 17, 161 P.3d at 545.
As noted above, in his 1996 trial, Lehr was convicted of two
counts of aggravated assault regarding victim T.H. At the 2009
30
retrial, T.H. refused to testify because she opposed the death
penalty. During the penalty phase, Lehr’s counsel sought to
introduce T.H.’s 2009 hearing testimony explaining her refusal
to testify. The trial court precluded Lehr from offering this
evidence.
¶73 The trial court did not err. “[A] victim's
recommendation of what sentence should be imposed in a capital
case, whether for or against the death penalty, is simply not
relevant.” State v. Glassel, 211 Ariz. 33, 55 ¶ 91, 116 P.3d
1193, 1215 (2005). We reject Lehr’s argument that although
sentencing recommendations by victims of the capital offense are
not admissible, such testimony should be allowed from victims of
non-capital offenses who oppose the death penalty. Such
testimony is not relevant for purposes of either A.R.S. § 13-
751(C) (allowing defendant to “present any information that is
relevant to any [] mitigating circumstances”) or the Eighth
Amendment. See Glassel, 211 Ariz. at 55 ¶ 91, 116 P.3d at 1215.
I. Independent Review
¶74 Because the murders occurred before August 1, 2002,
this Court independently reviews the “findings of aggravation
and mitigation and the propriety of the death sentence.” A.R.S.
§ 13-755(A); see 2002 Ariz. Sess. Laws, ch. 1, § 7(B) (5th Spec.
Sess.). We review the record de novo and do not defer to the
jury’s findings or decisions. State v. Newell, 212 Ariz. 389,
31
405 ¶ 82, 132 P.3d 833, 849 (2006).
1. Aggravating Circumstances
¶75 The jury found two aggravating circumstances for
M.M.’s and M.C.’s murders: Lehr had been “convicted of another
offense in the United States for which under Arizona law a
sentence of life imprisonment or death was imposable,” A.R.S.
§ 13-703(F)(1) (1991), and he had been “previously convicted of
a felony in the United States involving the use or threat of
violence on another person.” Id. § 13-703(F)(2).
¶76 These aggravators were proved beyond a reasonable
doubt. For each of the murder victims, Lehr's convictions for
murdering the other two victims establish the (F)(1) aggravator;
his prior convictions for kidnappings and sexual assaults of
victims J.A., J.T., and E.R. also establish the (F)(1)
aggravator. The (F)(2) aggravator is established based on
Lehr’s two aggravated assault convictions regarding victim T.H.
2. Mitigating Circumstances
¶77 Lehr presented evidence to show that a natural life
sentence would be a viable alternative to the death penalty
because he has been sentenced to at least 716 years imprisonment
for his non-capital convictions, he has been a well-behaved
inmate with few disciplinary problems, and he poses little risk
of violent conduct in prison.
¶78 That Lehr would remain imprisoned for his natural life
32
if he is not sentenced to death is of little mitigating weight.
We also accord minimal weight to the prospect that he will be a
“model prisoner.” All prisoners are expected to behave in
prison. Kiles, 222 Ariz. at 42 ¶ 89, 213 P.3d at 191.
¶79 Lehr also notes that the trial court in 1996 found
that he had proved several non-statutory mitigating
circumstances by a preponderance of the evidence. The court
found that Lehr “was a good father to his children, a good
husband to his wife, 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.”
In Lehr I, this Court accepted and approved these findings. 201
Ariz. at 523-24 ¶ 65, 38 P.3d at 1186.
¶80 The State argues that we should not consider
mitigation evidence from the 1996 trial that was not introduced
at the 2009 retrial. In our independent review of aggravating
circumstances, we have declined “to consider evidence that the
sentencing jury did not hear,” State v. Ellison, 213 Ariz. 116,
142 ¶ 121 n.19, 140 P.3d 899, 925 n. 19 (2006), and the State
contends we should similarly limit our consideration of
mitigation evidence in the penalty phase. Even considering the
evidence identified by Lehr from the 1996 trial, however, we
find it is not significantly mitigating.
33
3. Propriety of Death Sentence
¶81 In reviewing the propriety of the death sentence, this
Court considers the quality and the strength, not simply the
number, of aggravating and mitigating factors. Glassel, 211
Ariz. at 55 ¶ 93, 116 P.3d at 1215. The (F)(1) and (F)(2)
aggravators were established beyond a reasonable doubt. The
mitigation is not sufficiently substantial to warrant leniency.
J. Preservation of Issues for Federal Review
¶82 To avoid preclusion, Lehr lists twenty-six additional
constitutional claims that he states have been rejected in
previous decisions. The appendix lists these claims and the
decisions Lehr identifies as rejecting them.
CONCLUSION
¶83 We affirm Lehr’s convictions and sentences.
__________________________________
W. Scott Bales, Justice
CONCURRING:
__________________________________
Rebecca White Berch, Chief Justice
__________________________________
A. John Pelander, Justice
34
__________________________________
Robert M. Brutinel, Justice
__________________________________
Patricia A. Orozco, Judge*
* Justice Andrew D. Hurwitz has recused himself from this case.
Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable Patricia A. Orozco, Judge of the Arizona Court of
Appeals, Division One, was designated to sit in this matter.
35
APPENDIX
Lehr raises twenty-six issues to preserve them for
federal appeal. This Appendix lists verbatim his claims and the
decisions he identifies as rejecting them.
(1) The death penalty is per se cruel and unusual
punishment. Gregg v. Georgia, 428 U.S. 153, 186-87
(1976); State v. Salazar, 173 Ariz. 399, 411, 844 P.2d
566, 578 (1992).
(2) Execution by lethal injection is per se cruel and
unusual punishment. State v. Hinchey, 181 Ariz. 307,
315, 890 P.2d 602, 610 (1995).
(3) Arizona’s death penalty statutory scheme is
unconstitutional because it permits jurors unfettered
discretion to impose death without adequate guidelines
to weigh and consider appropriate factors and fails to
provide principled means to distinguish between those
who deserve to die or live. State v. Johnson, 212
Ariz. 425, 440, ¶ 69, 133 P.3d 735, 750 (2006).
(4) The statute unconstitutionally fails to require the
cumulative consideration of multiple mitigating
factors or require that the jury make specific
findings as to each mitigating factor. State v.
Gulbrandson, 184 Ariz. 46, 69, 906 P.2d 579, 602
(1995).
(5) Arizona’s death statute is unconstitutional because
there are no statutory standards for weighing. State
v. Atwood, 171 Ariz. 576, 645-46 n. 21(4), 832 P.2d
593, 662-63 n. 21(4) (1992).
(6) The prosecutor’s discretion to seek the death penalty
unconstitutionally lacks standards. State v.
Cromwell, 211 Ariz. 181, 192, ¶ 58, 119 P.3d 448, 459
(2005).
(7) Death sentences in Arizona have been applied
arbitrarily and irrationally and in a discriminatory
manner against impoverished males whose victims have
been Caucasian. State v. West, 176 Ariz. 432, 455,
862 P.2d 192, 215 (1993); State v. Sansing, 200 Ariz.
36
347, 361, ¶ 46, 26 P.3d 1118 (2001).
(8) The Constitution requires a proportionality review of
a defendant’s death sentence. State v. Gulbrandson,
184 Ariz. 46, 73, 906 P.2d 579, 606 (1995).
(9) Subjecting Appellant to a second trial on the issue of
aggravation and punishment before a new jury violates
the double jeopardy clause of the Fifth Amendment.
State v. Ring (Ring III), 204 Ariz. 534, 550, ¶ 39, 65
P.3d 915 (2003).
(10) Appellant’s death sentence is in violation of his
rights to a jury trial, notice and due process the
Fifth, Sixth and Fourteenth Amendments since he was
not indicted for a capital crime. McKaney v. Foreman,
209 Ariz. 268, 271, ¶ 13, 100 P.3d 18, 21 (2004).
(11) Imposition of a death sentence under a statute not in
effect at the time of Appellant’s trial violates due
process under the Fourteenth Amendment. State v.
Ellison, 213 Ariz. 116, ¶ 85, 140 P.3d 899 (2006).
(12) The absence of notice of aggravating circumstance
prior to Appellant’s guilt phase trial violated the
Sixth, Eighth and Fourteenth Amendments. State v.
Anderson (Anderson II), 210 Ariz. 327, 347, ¶¶ 79-80,
82, 111 P.3d 369 (2005).
(13) The reasonable doubt jury instruction at the
aggravation trial lowered the state’s burden of proof
and deprived Appellant of his right to a jury trial
and due process under the Sixth and Fourteenth
Amendments. State v. Dann (Dann I), 205 Ariz. 557,
575-76, ¶ 74, 74 P.3d 231 (2003).
(14) Arizona’s death statute creates an unconstitutional
presumption of death and places an unconstitutional
burden on Appellant to prove mitigation is
“sufficiently substantial to call for leniency.”
Walton v. Arizona, 497 U.S. 639, 648 (1990); State v.
Glassel, 211 Ariz. 33, 52, ¶ 72, 116 P.3d 1193, 1212
(2005).
(15) The failure to provide the jury with a special verdict
on Appellant’s proffered mitigation deprived him of
his rights to not be subject to ex post facto
37
legislation and right to meaningful appellate review.
State v. Roseberry, 210 Ariz. 360, 373, ¶ 74 & n.12,
111 P.3d 402 (2005).
(16) The trial court improperly omitted penalty phase
instructions that the jury could consider mercy or
sympathy in evaluating the mitigation evidence and
determining whether to sentence the defendant to
death. State v. Carreon, 210 Ariz. 54, 70-71, ¶¶ 81-
87, 107 P.3d 900, 916-17 (2005).
(17) Arizona’s current protocols and procedures for
execution by lethal injection constitute cruel and
unusual punishment in violation of the Eighth and
Fourteenth Amendments. State v. Andriano, 215 Ariz.
497, ¶¶ 61-62, 161 P.3d 540 (2007).
(18) The jury instruction that required the jury to
unanimously determine that the mitigating
circumstances were “sufficiently substantial to call
for leniency” violated the Eighth Amendment. State v.
Ellison, 213 Ariz. 116, ¶¶ 101-02, 140 P.3d 899
(2006).
(19) The failure to instruct the jury that only murders
that are “above the norm” may qualify for the death
penalty violates the Sixth, Eighth and Fourteenth
Amendments. State v. Bocharski (Bocharski II), 218
Ariz. 476, ¶¶ 47-50, 189 P.3d 403 (2008).
(20) The refusal to permit voir dire of prospective jurors
regarding their views on specific aggravating and
mitigating circumstances violates Appellant’s rights
under the Sixth and Fourteenth Amendments. State v.
Johnson, 212 Ariz. 425, 440, ¶¶ 29-35, 133 P.3d 735,
750 (2006).
(21) The refusal to permit Appellant to argue or the jury
to consider whether his death sentence would be
proportional to other similarly situated defendants
violated his rights under the Eighth and Fourteenth
Amendments. State v. Johnson, 212 Ariz. 425, 431-32,
¶¶ 19-20, 133 P.3d 735, 750 (2006).
(22) Refusing to instruct the jury or permit the
introduction of evidence and argument regarding
residual doubt violated Appellant’s rights under the
38
Sixth, Eighth and Fourteenth Amendments and Arizona
law. State v. Harrod (Harrod III), 218 Ariz. 268, ¶¶
37-39, 183 P.3d 519 (2008); State v. Garza, 216 Ariz.
56, 70, ¶ 67, 163 P.3d 1006 (2007).
(23) The penalty phase jury instructions that advised the
jury they “must” return a death sentence in various
circumstances and forms of verdict impermissibly
shifted the burden of proof to the defendant and
created a presumption of death. State v. Tucker
(Tucker II), 215 Ariz. 298, 317, 160 P.3d 197 (2007).
(24) Arizona’s death penalty scheme violates Appellant’s
right to equal protection under the Fourteenth
Amendment since it fails to require the jury to make
specific findings of fact and conclusions of law
reviewable on appeal. State v. Dann (Dann III), 220
Ariz. 351, ¶¶ 127-28, 207 P.3d 604 (2009).
(25) Arizona’s death penalty scheme violates Appellant’s
rights under the Eighth and Fourteenth Amendments by
not requiring that once a defendant proves mitigating
circumstances exist that the State prove beyond a
reasonable doubt that the mitigation is not
sufficiently substantial to call for leniency and that
death is the appropriate sentence. State v. Dann
(Dann III), 220 Ariz. 351, ¶¶ 94-95, 207 P.3d 604
(2009).
(26) The death penalty is an irreversible denial of human
rights and international law. State v. Richmond, 136
Ariz. 312, 322, 666 P.2d 57 (1983).
39