State v. Don Chappell

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-07-0384-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2004-037319
DEREK DON CHAPPELL, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Robert L. Gottsfield, Judge

AFFIRMED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Lacey Alexandra Stover Gard, Tucson
Assistant Attorney General
Jeffrey A. Zick, Assistant Attorney General Phoenix
Attorneys for State of Arizona

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Stephen R. Collins, Deputy Public Defender
Spencer D. Heffel, Deputy Public Defender
Attorneys for Derek Don Chappell
________________________________________________________________

P E L A N D E R, Justice

¶1 Derek Don Chappell was convicted of first degree

murder and child abuse and sentenced to death for the murder.

We have jurisdiction over this automatic appeal under Article 6,

Section 5(3) of the Arizona Constitution and Arizona Revised

Statutes (A.R.S.) sections 13-4031 and 13-4033(A)(1) (2010).
1
 I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 Chappell began dating Kristal Shackleford in the fall

of 2003.1 They soon were engaged to be married and Shackleford

and her two-year-old son, Devon, moved in with Chappell and his

parents.

¶3 On December 10, 2003, Chappell was caring for Devon at

home while Shackleford was at work. While changing Devon’s

diaper, Chappell forcefully pushed down on Devon’s shoulders and

neck until his face turned red. Chappell immediately contacted

Shackleford, said he had “hurt Devon,” and asked her to come

home right away. A pediatrician examined Devon later that day

and found bruising on his face and neck consistent with choking.

¶4 In statements to police after the incident, Chappell

suggested that he was jealous of Devon’s relationship with

Shackleford. A Child Protective Services (CPS) investigation

ensued, and CPS told Chappell he was to have no further contact

with Devon.

¶5 Shackleford and Devon moved out of the Chappell home

and into a nearby apartment complex, but Chappell and

Shackleford continued dating. On March 6, 2004, they told

friends they once again were engaged; however, Chappell was

1
We view the facts in the light most favorable to upholding
the verdicts. State v. Garza, 216 Ariz. 56, 61 n.1, 163 P.3d
1006, 1011 n.1 (2007).
2
becoming increasingly worried that CPS’s restrictions would

ultimately force Shackleford to choose between him and Devon.

On March 10, Shackleford told Chappell that if she had to

choose, she “could not live without her son.”

¶6 In the pre-dawn hours of March 11, Shackleford called

911 to report that Devon was missing. Police officers found

Devon floating in the swimming pool at Shackelford’s apartment

complex. Devon was pronounced dead at a nearby hospital, and an

autopsy revealed that the cause of death was drowning. Chappell

quickly became a suspect and ultimately confessed to the murder.

In interviews with police and in a press conference he held from

jail a few days after his arrest, Chappell admitted drowning

Devon but claimed he was acting at Shackleford’s direction.2

¶7 Chappell was indicted on charges of child abuse for

the 2003 choking incident and first degree murder and was found

guilty on both counts. During the aggravation phase of the

trial, the jury found three aggravating circumstances: (1) a

previous conviction of a serious offense (child abuse), A.R.S.

§ 13-751(F)(2) (2010);3 (2) the murder was committed in an

2
Shackelford invoked her Fifth Amendment privilege against
self-incrimination and refused to testify at Chappell’s trial.
3
Arizona’s capital sentencing statutes were reorganized and
renumbered in 2008. 2008 Ariz. Sess. Laws, ch. 301, §§ 26, 38-
41 (2d Reg. Sess.). Because the renumbered statutes are not
materially different from the previous version, we cite the
current version.
3
especially cruel manner, § 13-751(F)(6); and (3) Chappell was an

adult and the victim was under fifteen years of age at the time

of the murder, § 13-751(F)(9). After the penalty phase, the

jury determined that Chappell should be sentenced to death.

II. ISSUES ON APPEAL

A. Guilt Phase

¶8 Chappell argues his statements about the murder should

have been excluded because the State failed to establish corpus

delicti. “We review a ruling on the sufficiency of the evidence

of corpus delicti for abuse of discretion.” State v. Morris,

215 Ariz. 324, 333 ¶ 33, 160 P.3d 203, 212 (2007). Because

Chappell did not raise this argument or object to admission of

his statements at trial, we review only for fundamental error.

See State v. Henderson, 210 Ariz. 561, 567-68 ¶¶ 19-20, 115 P.3d

601, 607-08 (2005).

¶9 “The corpus delicti doctrine ensures that a

defendant’s conviction is not based upon an uncorroborated

confession or incriminating statement.” Morris, 215 Ariz. at

333 ¶ 34, 160 P.3d at 212. Rather, the state must present

sufficient evidence to permit a “reasonable inference” that the

“alleged injury to the victim . . . was caused by criminal

conduct rather than by suicide or accident.” Id. (quoting State

v. Hall, 204 Ariz. 442, 453 ¶ 43, 65 P.3d 90, 101 (2003)); see

also State v. Gillies, 135 Ariz. 500, 506, 662 P.2d 1007, 1013
4
(1983). Corpus delicti can be established through

circumstantial evidence, Morris, 215 Ariz. at 333 ¶ 34, 160 P.3d

at 212, or by independent corroboration of the defendant’s

statements, Smith v. United States, 348 U.S. 147, 156 (1954).

¶10 Unlike State v. Nieves, on which Chappell relies, this

case does not involve “an inexplicable death” or a complete

absence of any “direct or circumstantial corroborating

evidence . . . to bolster the defendant’s confession.” 207

Ariz. 438, 443-44 ¶¶ 28-29, 87 P.3d 851, 856-57 (App. 2004).

Here, the State presented significant evidence to corroborate

Chappell’s statements: Chappell was seen inspecting the

swimming pool area at Shackleford’s apartment complex a few days

before Devon’s death; a river rock, similar to rocks found near

Chappell’s parents’ house, was used to prop open the pool gate;

Shackleford routinely locked her apartment doors at night,

making it unlikely that two-year-old Devon could have opened the

door himself; at one time, Chappell had a key to Shackleford’s

apartment; and Devon’s body was found in the pre-dawn hours in a

pool located some distance from Shackleford’s apartment. This

corroborating evidence makes it very unlikely Devon’s death was

an accident. Therefore, we find no error, fundamental or

otherwise, in the trial court’s admission of Chappell’s

statements.

5
B. Aggravation Phase

1. Sufficiency of Evidence to Prove (F)(6) Aggravator

¶11 Chappell argues that there was insufficient evidence

to support the jury’s finding that the drowning was especially

cruel. See A.R.S. § 13-751(F)(6). “Cruelty involves the pain

and distress visited upon the victim[] and may be found when the

victim consciously experienced physical or mental pain prior to

death, and the defendant knew or should have known that

suffering would occur.” State v. Martinez, 218 Ariz. 421, 436

¶ 70, 189 P.3d 348, 363 (2008) (citation and internal quotations

omitted); accord Morris, 215 Ariz. at 338 ¶ 61, 341 ¶ 79, 160

P.3d at 217, 220; State v. Trostle, 191 Ariz. 4, 18, 951 P.2d

869, 883 (1997). “In reviewing a sufficiency of the evidence

claim, [we review] the record to determine whether substantial

evidence supports the jury’s finding.” State v. Roque, 213

Ariz. 193, 218 ¶ 93, 141 P.3d 368, 393 (2006). “Substantial

evidence is such proof that reasonable persons could accept as

adequate and sufficient to support a conclusion of [the]

defendant’s guilt beyond a reasonable doubt.” Id. (citation and

internal quotation omitted).

¶12 During the aggravation phase, the medical examiner,

Dr. Hu, testified that Devon likely was conscious for thirty

seconds to two minutes while being held underwater. Dr. Hu

would not opine whether a two-year-old under those circumstances
6
could understand that he was about to die, but testified that

Devon certainly would have understood the need to breathe. In

addition, Dr. Hu described at length the physiological reactions

that occur during drowning, including hemorrhaging and acute

expansion of the lungs and the large quantity of foam produced

when inhaled water mixes with air and proteins in the lungs.

Dr. Hu also described several post-mortem photographs,

previously admitted during the guilt phase, which depicted

hemorrhaging of Devon’s lungs and foam on his face.

¶13 Chappell told reporters during a post-arrest press

conference that Devon had struggled while in the pool. Chappell

also stated that, hours after the drowning, he could still

remember Devon “looking at [him] straight in the eyes as he was

in the water.” These facts support a finding that Devon

consciously experienced mental anguish before his death. The

jurors also could have reasonably inferred from this evidence

that Chappell knew or should have known that Devon would suffer.

Therefore, sufficient evidence supported the jurors’ finding

that the murder was especially cruel.

¶14 Chappell also argues that drowning alone is

insufficient to support a finding of cruelty, citing State v.

Poland, 132 Ariz. 269, 285, 645 P.2d 784, 800 (1982) (noting

lack of evidence of victims’ suffering or a struggle), and State

v. Poland, 144 Ariz. 388, 405, 698 P.2d 183, 200 (1985) (noting,
7
after retrial, absence of evidence that “victims were conscious

at the time of death”). But here, unlike Poland, the record

supports a finding that Devon was conscious and struggled during

the drowning. See State v. Amaya-Ruiz, 166 Ariz. 152, 177-78,

800 P.2d 1260, 1285-86 (1990) (evidence of struggle supports

cruelty finding).

¶15 Chappell further argues that, absent physical pain, a

cruelty finding requires “extreme mental anguish from a victim

anticipating [his or her] impending death,” asserting that the

two-year-old victim here was unable to comprehend imminent

death. We have previously rejected the argument that “extreme”

mental anguish is required to establish the (F)(6) aggravator.

See State v. Andriano, 215 Ariz. 497, 511 ¶ 67, 161 P.3d 540,

554 (2007) (citing Trostle, 191 Ariz. at 18, 951 P.2d at 883).

And the mere fact that Devon was two years old, and possibly did

not comprehend he was dying, did not prevent the jury from

finding that he consciously experienced mental anguish before

his death. See State v. Lopez, 174 Ariz. 131, 143-44, 847 P.2d

1078, 1090-91 (1992) (cruelty finding based, in part, on one-

year-old’s mental anguish, knowing that his father had severely

beaten him and “did nothing to stop the pain and comfort him”).4

4
Because we conclude that the (F)(6) aggravator has been
established through evidence of mental anguish, we need not
consider Chappell’s various arguments about the level and type
of physical pain required to establish especial cruelty.
8
 2. Expert Opinion on Ultimate Issue

¶16 Chappell argues Dr. Hu’s testimony that drowning was a

“horrifying experience” and a “10” on “scale of 1 to 10” was

improper expert opinion on an ultimate issue. We review

evidentiary rulings on the admissibility of expert opinions for

abuse of discretion. See State v. Chapple, 135 Ariz. 281, 297,

660 P.2d 1208, 1224 (1983).

¶17 Arizona Rule of Evidence 704 permits expert testimony

that “embraces an ultimate issue to be decided by the trier of

fact,” as long as the opinion “assist[s] the trier of fact to

understand the evidence or to determine a fact in issue.” Ariz.

R. Evid. 704 & cmt. However, “[w]itnesses are not permitted as

experts on how juries should decide cases,” id., and trial

courts should exclude relevant evidence when “its probative

value is substantially outweighed by the danger of unfair

prejudice,” Ariz. R. Evid. 403.

¶18 Chappell cites two out-of-state cases in which experts

explicitly opined on whether the murder had been committed in

the manner of the statutory aggravator. See State v. Hamilton,

681 So. 2d 1217, 1225-26 (La. 1996) (expert testified murder was

“heinous, atrocious or cruel”); Commonwealth v. Crawley, 526

A.2d 334, 346-47 (Pa. 1987) (expert defined torture as the

production of “conscious pain” and testified that the murders

satisfied “the definition of the word torture”). But, here, Dr.
9
Hu merely testified about the experience of drowning and did not

opine whether Devon’s murder was committed in an “especially

cruel” manner. His comments neither were improper nor embraced

an ultimate issue.

3. Prosecutorial Misconduct

¶19 Chappell alleges several instances of prosecutorial

misconduct. We will not reverse a conviction based on “improper

comments by the prosecutor . . . unless it is shown that there

is a reasonable likelihood that the misconduct could have

affected the jury’s verdict.” State v. Newell, 212 Ariz. 389,

403 ¶ 67, 132 P.3d 833, 847 (2006) (citation and internal

quotations omitted); see also Morris, 215 Ariz. at 335 ¶ 46, 160

P.3d at 214 (“The misconduct must be ‘so pronounced and

persistent that it permeates the entire atmosphere of the

trial.’” (quoting State v. Hughes, 193 Ariz. 72, 79 ¶ 26, 969

P.2d 1184, 1191 (1998))). We find no such misconduct here.

¶20 During the aggravation phase, the prosecutor discussed

the large amounts of foam and water that drained from Devon’s

body when police officers pulled him from the pool and attempted

to perform CPR, telling jurors “[e]very bit of that is evidence

that you can consider when you[] consider cruelty.” She also

elicited testimony from Dr. Hu about the causes of the foaming

and lung hemorrhaging and asked him to describe post-mortem

photographs of Devon’s lungs and face. Chappell argues this
10
testimony and argument improperly focused on injuries Devon

sustained after losing consciousness.

¶21 On this record, we cannot determine whether the water-

inhalation injuries occurred when Devon was conscious. But,

even assuming those injuries occurred after Devon lost

consciousness, we cannot conclude that the prosecutor committed

misconduct. The jurors heard very similar testimony from Dr. Hu

during the guilt phase without objection and were repeatedly

instructed that they could consider everything they had

previously heard in deciding whether the (F)(6) aggravator had

been proven beyond a reasonable doubt.

¶22 The prosecutor elicited testimony from Dr. Hu that

drowning would be a “horrifying” experience and a “10” on “a

scale of 1 to 10.” Chappell claims that because Dr. Hu later

testified on cross-examination that he was “not sure” whether a

two-year-old could comprehend impending death, his belief about

what a typical adult would experience during drowning was both

confusing and inflammatory. Dr. Hu’s comments, however, were

not limited to his characterization of drowning as “horrifying”;

he also described the natural instinct to breathe and testified

that a two-year-old child would understand the need and

inability to breathe. Viewed as a whole, Dr. Hu’s testimony

addressed not only the experience of drowning in general, but

the level of mental anguish that this victim likely would have
11
experienced, a proper area of inquiry and one in which the jury

could reasonably have benefitted from expert testimony. See

Ariz. R. Evid. 702 (expert testimony permitted when expert’s

“knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue”).

¶23 The prosecutor also referred several times during the

aggravation phase to Devon’s age and the prior choking incident.

Because these comments concerned the (F)(6) “especially cruel”

aggravator rather than the (F)(2) and (F)(9) aggravators,

Chappell alleges they were improper and inflammatory. Although

neither the victim’s age nor a defendant’s prior conviction is

an element of especial cruelty, both facts were relevant here to

establish whether Devon experienced mental anguish.5 Moreover,

the jury was specifically instructed that the victim’s age was

not to be “consider[ed] . . . in any way in deciding whether the

murder was committed in an especially cruel manner.”

¶24 During the aggravation phase, the prosecutor urged

jurors to “find that when the community, when the legislature

set forth statutory aggravators, those things make a person

5
The State argued that Devon experienced mental anguish from
being unable to breathe because he had previously experienced
that same sensation during the December choking incident. The
State also argued that the prior choking incident had made Devon
afraid of Chappell and that two-year-old Devon, inexplicably
taken from his home in the middle of the night, likely
experienced fear and uncertainty from the time he was awoken
until his death.
12
eligible for death; . . . the State is confident you will find

each of those three [aggravators] applied to this defendant and

that each of those three are proven well beyond a reasonable

doubt.” During the penalty phase, she stated: “Society

declares [its] attitude towards crimes by the punishment that it

gives. We have express[ed] what we feel about a crime by the

punishment that we impose.” In context, both comments referred

to the punishment the legislature has prescribed for certain

crimes; neither comment was improper. See United States v.

Monaghan, 741 F.2d 1434, 1441-42 & n.30 (D.C. Cir. 1984).

¶25 Even if a defendant fails to establish a specific

instance of misconduct warranting reversal, we have found

misconduct “if the cumulative effect of the incidents shows that

the prosecutor intentionally engaged in improper conduct.”

Roque, 213 Ariz. at 228 ¶ 155, 141 P.3d at 403. Here, however,

Chappell has failed to show that any prosecutorial misconduct

occurred. See State v. Bocharski, 218 Ariz. 476, 492 ¶ 75, 189

P.3d 403, 419 (2008).

4. (F)(6) Jury Instructions

¶26 Chappell argues the aggravation phase jury

instructions failed to sufficiently narrow the (F)(6)

aggravator. That aggravator is unconstitutionally vague on its

face. Walton v. Arizona, 497 U.S. 639, 654 (1990), overruled on

other grounds by Ring v. Arizona, 536 U.S. 584, 589 (2002).
13
This vagueness, however, “may be remedied with appropriate

narrowing instructions.” State v. Tucker, 215 Ariz. 298, 310

¶ 28, 160 P.3d 177, 189 (2007); see also State v. Anderson, 210

Ariz. 327, 352-53 ¶¶ 109-14, 111 P.3d 369, 394-95 (2005). We

review de novo whether jury instructions correctly state the

law. State v. Moore, 222 Ariz. 1, 16 ¶ 85, 213 P.3d 150, 165

(2009).

¶27 The jury instructions given here are materially

identical to instructions approved in our previous cases.6 See,

e.g., State v. Velazquez, 216 Ariz. 300, 308 ¶¶ 28-29, 166 P.3d

6
The jury was instructed as follows:
All first degree murders are to some extent
cruel. However this aggravating circumstance cannot
be found to exist unless the State has proved beyond a
reasonable doubt that the murder was “especially”
cruel. “Especially” means unusually great or
significant.
“Especially cruel”: The term “cruel” focuses on
the victim’s pain and suffering. To find that the
murder was committed in an “especially cruel” manner
you must find that the victim consciously suffered
physical or mental pain, distress or anguish prior to
death. A murder is especially cruel when there has
been the infliction of pain and suffering in an
especially wanton and insensitive or vindictive
manner. The defendant must know or should have known
that the victim would suffer. The victim must be
conscious for at least some portion of the time when
the pain and/or anguish was inflicted.
You may not consider the age of the victim in any
way in deciding whether the murder was committed in an
especially cruel manner.

14
91, 99 (2007) (upholding instruction that “[t]he victim . . . be

conscious for at least some portion of the time when the pain

and/or anguish was inflicted”); Andriano, 215 Ariz. at 505-06

¶¶ 40-41, 161 P.3d at 548-49 (same); Anderson, 210 Ariz. at 352-

53 ¶ 111 & n.19, 111 P.3d at 394-95 & n.19. Contrary to

Chappell’s assertion, we have never required that the mental or

physical pain used to establish the (F)(6) aggravator be

“extreme” or above and beyond the pain inherent in the manner of

death itself. See, e.g., Tucker, 215 Ariz. at 310-11 ¶¶ 29-33,

160 P.3d at 189-90; Andriano, 215 Ariz. at 511 ¶ 67, 161 P.3d at

554. The instructions here adequately narrowed the aggravator

and Chappell has failed to establish error.

C. Penalty Phase

1. Execution Impact Evidence

¶28 Chappell argues the trial court improperly excluded

evidence about the impact his execution would have on his

family, including his young daughter. We review evidentiary

rulings for abuse of discretion and defer to the trial court’s

determination of relevance. State v. Smith, 215 Ariz. 221, 232

¶ 48, 159 P.3d 531, 542 (2007).

¶29 In capital cases, “the Eighth and Fourteenth

Amendments require that the sentencer . . . not be precluded

from considering, as a mitigating factor, any aspect of a

defendant’s character or record and any of the circumstances of
15
the offense that the defendant proffers as a basis for a

sentence less than death.” Lockett v. Ohio, 438 U.S. 586, 604

(1978). This requirement, however, does not limit “the

traditional authority of a court to exclude, as irrelevant,

evidence not bearing on the defendant’s character, prior record,

or the circumstances of his offense.” Id. at n.12.

¶30 We have previously held that execution impact evidence

is not relevant to mitigation. Roque, 213 Ariz. at 222 ¶ 119,

141 P.3d at 397.7 In Roque, we upheld the trial court’s

exclusion of sections of a letter from the defendant’s sister

that “addressed the suffering of [defendant’s] family,”

concluding they were “altogether unrelated to defendant, to his

character, or to the circumstance of the offense.” Id.

(citation and internal quotations omitted).8 Similarly, the

trial court did not abuse its discretion here in excluding the

execution impact evidence.

7
Several courts have reached similar conclusions. See,
e.g., Stenson v. Lambert, 504 F.3d 873, 891-92 (9th Cir. 2007);
Jackson v. Dretke, 450 F.3d 614, 618 (5th Cir. 2006); Williams
v. State, 168 S.W.3d 433, 445 (Mo. 2005); Commonwealth v.
Harris, 817 A.2d 1033, 1053-54 (Pa. 2002); but see State v.
Stevens, 879 P.2d 162, 167-68 (Or. 1994).
8
  Although similar evidence has been admitted in some cases,
in none of those cases was the admissibility of the execution
impact evidence at issue on appeal. See, e.g., Moore, 222 Ariz.
at 22-23 ¶ 134, 213 P.3d at 171-72; Velazquez, 216 Ariz. at 315
¶ 74, 166 P.3d at 106; State v. McGill, 213 Ariz. 147, 162 ¶ 67,
140 P.3d 930, 945 (2006); State v. Greene, 192 Ariz. 431, 443
¶ 58, 967 P.2d 106, 118 (1998). 
16
 2. Limits on Allocution

¶31 Chappell argues the trial court’s warning that he

might be subject to cross-examination if he disputed his guilt

during allocution prevented him from freely exercising his right

to allocution and the jury from considering all relevant

mitigating evidence.

¶32 In Arizona, a defendant has a right to allocute before

sentencing. Ariz. R. Crim. P. 19.1(d)(7), 26.10(b)(1). This

right, however, is “not absolute.” Anderson, 210 Ariz. at 350

¶ 100, 111 P.3d at 392. Defendants may not “shift a mitigating

circumstance . . . [into] allocution and thereby insulate that

mitigating circumstance from rebuttal evidence.” State v.

Armstrong, 218 Ariz. 451, 463 ¶ 59, 189 P.3d 378, 390 (2008).

We have repeatedly upheld trial courts’ admonitions that

defendants may be subject to cross-examination if they exceed

the scope of permissible allocution. See, e.g., State v.

Womble, ___ P.3d ___, 2010 WL 2720408, *7-8 ¶¶ 42-45 (Ariz. July

12, 2010); Armstrong, 218 Ariz. at 463 ¶ 59, 189 P.3d at 390.

The judge did not abuse his discretion in so warning Chappell.

¶33 We find similarly unpersuasive Chappell’s argument

that placing limits on his allocution violated due process. The

cases Chappell cites address a complete denial of a defendant’s

right to speak before sentencing, rather than the effect of

limiting such speech. See, e.g., Hill v. United States, 368
17
U.S. 424, 428 (1962); McGautha v. California, 402 U.S. 183, 217-

20 (1971); Boardman v. Estelle, 957 F.2d 1523, 1530 (9th Cir.

1992). Here, in contrast, Chappell was permitted to speak to

the jury before sentencing.

3. Allegations of Uncharged Prior Acts

¶34 Chappell argues the trial court erred by admitting,

over objection, evidence of prior injuries Devon suffered while

in Chappell’s care as rebuttal to Chappell’s mitigation

evidence. Chappell also argues that the admission of e-mails

and statements from Shackleford about Devon’s prior abuse

violated his due process and Confrontation Clause rights.

¶35 Admission of evidence during the penalty stage of a

capital case is not governed by the Arizona Rules of Evidence.

A.R.S. §§ 13-751(C) (“At the penalty phase . . . the prosecution

or the defendant may present any information that is relevant to

any of the mitigating circumstances . . . regardless of its

admissibility under the rules governing admission of evidence at

criminal trials.”), 13-752(G) (“At the penalty phase . . . the

state may present any evidence that is relevant to the

determination of whether there is mitigation that is

sufficiently substantial to call for leniency . . . [and] any

evidence that demonstrates that the defendant should not be

shown leniency.”). We “give deference to a trial judge’s

determination of whether rebuttal evidence offered during the
18
penalty phase is ‘relevant’ within the meaning of the statute.”

McGill, 213 Ariz. at 156-57 ¶ 40, 140 P.3d at 939-40.

¶36 Chappell first argues the trial court erred by finding

inapplicable at the penalty phase Arizona Rule of Evidence 403

and the standards articulated in State v. Terrazas, 189 Ariz.

580, 584, 944 P.2d 1194, 1198 (1997) (“[B]efore admitting

evidence of prior bad acts [under Arizona Rule of Evidence

404(b)], trial judges must find that there is clear and

convincing proof both as to the commission of the other bad act

and that the defendant committed the act.”). In McGill, we

noted that, although admission of evidence during the penalty

phase is controlled by the relevance standard articulated in

§§ 13-751(C) and 13-752(G), “[a] judge’s analysis in determining

relevance [under § 13-751(C)] involves fundamentally the same

considerations as does a relevancy determination under Arizona

Rule of Evidence 401 or 403.” 213 Ariz. at 156-57 ¶ 40, 140

P.3d at 939-40; see also State v. Hampton, 213 Ariz. 167, 180

¶ 51, 140 P.3d 950, 963 (2006) (cautioning trial courts to

“exclude evidence that is either irrelevant to the thrust of the

defendant’s mitigation or otherwise unfairly prejudicial”);

State v. Pandeli, 215 Ariz. 514, 527-30 ¶¶ 41-59, 161 P.3d 557,

570-73 (2007) (considering relevance of the challenged penalty

phase evidence and whether the evidence was unfairly

prejudicial).
19
¶37 Despite these cautionary statements, we have

explicitly rejected the argument that “Rule 404(b) . . . and

this Court’s related case law” govern the admission of other

acts evidence during the penalty phase. Martinez, 218 Ariz. at

431 n.11, 189 P.3d at 358 n.11. But the trial court nonetheless

considered Rules 403 and 404(b) in its ruling, stating:

“[B]ecause other acts evidence is often very harmful . . . the

court has kept in mind the mandates of Terrazas[ ] and Rule

403.” Accordingly, the record does not establish the error of

which Chappell complains.

¶38 Chappell next argues that admission of Shackleford’s

e-mails and police interviews violated his due process rights.

“[D]ue process requires that a capital defendant receive notice

of any hearsay statements to be introduced . . . and have ‘an

opportunity to either explain or deny them.’” Hampton, 213

Ariz. at 179 ¶ 49, 140 P.3d at 962 (quoting State v. Greenway,

170 Ariz. 155, 161, 823 P.2d 22, 28 (1991)). Hearsay statements

must also “contain sufficient indicia of reliability.” Id.

(citing McGill, 213 Ariz. at 160 ¶ 56, 140 P.3d at 943).

Chappell does not contest that he received notice and an

opportunity to deny or explain Shackleford’s statements. He

argues, however, that the evidence lacked “sufficient indicia of

reliability,” noting that Shackleford repeatedly lied to police,

was a suspect in Devon’s murder, was not under oath when she
20
made the statements, and had a strong incentive to lie in order

to deflect attention from herself.9

¶39 The State presented direct and circumstantial evidence

of Devon’s prior injuries and their surrounding circumstances,

including photographs and testimony from lay and expert

witnesses, which supported an inference that Chappell was

responsible for those injuries and corroborated Shackleford’s

statements. See McGill, 213 Ariz. at 160-61 ¶ 58, 140 P.3d at

943-44. Therefore, although Chappell attacked Shackleford’s

credibility, her statements bore sufficient indicia of

reliability.

¶40 Finally, Chappell argues that admission of

Shackleford’s statements violated the Confrontation Clause. See

Crawford v. Washington, 541 U.S. 36, 50-52 (2004). As Chappell

acknowledges, we have previously rejected this argument, finding

the Confrontation Clause inapplicable to penalty phase rebuttal

evidence. See, e.g., McGill, 213 Ariz. at 158 ¶ 49, 140 P.3d at

941. Chappell urges us to revisit our holding in light of

United States v. Mills, 446 F. Supp. 2d 1115 (C.D. Cal. 2006)

and several recent law review articles.

9
Chappell also argues that the hearsay exceptions contained
in Arizona Rules of Evidence 803 and 804 are inapplicable, and
therefore preclude admission of Shackleford’s statements. As
discussed above, however, hearsay rules are not applicable to
evidence presented in the penalty phase. See A.R.S. § 13-
751(C).
21
¶41 Contrary to Chappell’s contention, however, Mills does

not conflict with McGill. Mills specifically declined to

“resolve . . . whether the jury’s task of weighing aggravating

against mitigating factors” is entitled to Confrontation Clause

protection, limiting its holding only to the aggravation phase.

446 F. Supp. 2d at 1135 n.23. We have distinguished hearsay

used to establish aggravating factors from hearsay used as

rebuttal evidence in the penalty phase, concluding that the

former was entitled to Confrontation Clause protections and the

latter was not. See McGill, 213 Ariz. at 159 ¶ 51, 140 P.3d at

942.

4. Sentencing Instructions

¶42 Chappell challenges the trial court’s sentencing

instructions on two grounds. During the penalty phase, the

trial court instructed the jury:

If your verdict is that the defendant should be
sentenced to death, the defendant will be sentenced to
death. If your verdict is that the defendant should
be sentenced to life, the defendant will not be
sentenced to death and the Court will sentence the
defendant to either life without the possibility of
release until 35 calendar years in prison are served,
or natural life which means the defendant would never
be released from prison.

¶43 Chappell first argues that the “instruction[s] misled

the jury to believe [he] was eligible for parole if given a

thirty-five year to life sentence.” The instructions, however,

accurately described the statutory sentencing options. See
22
A.R.S. § 13-751(A). Chappell’s reliance on Simmons v. South

Carolina is similarly unavailing because Chappell was eligible

for release. See 512 U.S. 154, 161-64 (1994) (finding due

process violation when prosecution argued future dangerousness

and trial court failed to instruct jury that defendant was

ineligible for parole); see also Ramdass v. Angelone, 530 U.S.

156, 169 (2000) (“Simmons applies only to instances where, as a

legal matter, there is no possibility of parole if the jury

decides the appropriate sentence is life in prison.”).

¶44 Second, Chappell argues that the court’s failure to

instruct the jury that his child abuse sentence would be served

consecutively to his murder sentence violated the mandates of

Lockett, 438 U.S. at 604, and A.R.S. § 13-752(G). But Chappell

has not established that his probable sentence on the child

abuse charge is relevant to his “character or record [or] any of

the circumstances of the [murder].” See Lockett, 438 U.S. at

604. Rather, as the trial court noted in denying Chappell’s

request, his sentence on the child abuse conviction was

speculative and subject to possible reversal under a variety of

different scenarios. In sum, the court did not err in refusing

to give different instructions about Chappell’s potential

eligibility for release.10

10
Chappell also argues that the trial court abused its
discretion by refusing to accept his waiver of parole
23
 5. Cumulative Mitigation Instruction

¶45 Chappell argues the trial court erred by refusing to

instruct the jury that the “cumulative effect of mitigation” was

a separate and independent mitigating factor. During the

penalty phase, the trial court instructed the jurors to

“individually determine if the total[ity] of the mitigation is

sufficiently substantial to call for leniency,” and to “decide

how compelling or persuasive the totality of the mitigating

factors are when compared against the totality of the

aggravating factors.” The court declined to give Chappell’s

requested instruction, stating “the information under mitigation

assessment and the sentence on burden of proof covers

everything.”

¶46 The instructions fulfilled the purpose of Chappell’s

proffered instruction by informing jurors that they should

consider his mitigation evidence in its “totality.” Therefore,

the trial court did not abuse its discretion in refusing to give

Chappell’s requested instruction.

6. Double Counting of Statutory Aggravators

¶47 Chappell argues his prior conviction and the victim’s

age were improperly used to establish both the (F)(6) aggravator

eligibility and instruct the jury that he had done so; however,
he concedes that we have previously rejected this argument. See
State v. Dann, 220 Ariz. 351, 372-73 ¶¶ 122-24, 207 P.3d 604,
625-26 (2009).
24
and the (F)(2) and (F)(9) aggravators, respectively. See A.R.S.

§ 13-751(F). He contends that the prosecutor’s repeated

references during the aggravation phase to the prior choking

incident and Devon’s age, coupled with an inadequate jury

instruction during the penalty phase, allowed the jury to

double-count these factors.

¶48 A prior conviction or other fact, such as the age of

the victim, may be used to establish two aggravating factors so

long as that fact is not weighed “twice in balancing aggravating

and mitigating circumstances.” Velazquez, 216 Ariz. at 307

¶ 21, 166 P.3d at 98 (quoting State v. Medina, 193 Ariz. 504,

512 ¶ 25, 975 P.2d 94, 102 (1999)); see also State v. Tittle,

147 Ariz. 339, 345, 710 P.2d 449, 455 (1985). Chappell

acknowledges that use of the prior choking incident to prove the

(F)(6) aggravator “may not have been a problem if the sentencing

had been by a judge . . . [who is] presumed to know the law,”

but alleges that the jury was not properly instructed and,

therefore, could not have properly weighed the evidence.

¶49 We have previously held, however, that juries are

capable of considering aggravation and mitigation, even when a

fact is used to establish two aggravators. See Velazquez, 216

Ariz. at 307 ¶ 22, 166 P.3d at 98. The prosecutor’s comments

during the aggravation phase did not improperly encourage jurors

to base their (F)(6) finding on the prior choking incident or
25
Devon’s age. Therefore, the only question is whether the jury

was properly instructed.

¶50 During the penalty phase, the trial court instructed

the jurors:

The State may not rely upon a single fact or aspect of
the offense to establish more than one aggravating
circumstance. Therefore, if you have found that two
or more of the aggravating circumstances were proved
beyond a reasonable doubt by a single aspect[] of the
offense, such as the age of the victim, you are to
consider that fact or aspect of the offense only once.
In other words, you shall not consider twice any fact
or aspect of the offense.

The instruction correctly informed jurors how to consider the

aggravating factors.

7. Jury’s Request to Review Allocution

¶51 Chappell argues the trial court erred by refusing to

provide jurors with a transcript of his allocution during

deliberations. We review this decision for abuse of discretion.

State v. Johnson, 122 Ariz. 260, 273, 594 P.2d 514, 527 (1979).

¶52 During penalty phase deliberations, the jury requested

“a copy of [Chappell’s] statement to the court.” The judge told

counsel that he was inclined to instruct the jurors to rely on

their memories. Chappell objected, arguing his constitutional

right to have the jurors consider all mitigating evidence would

be violated by refusing their request. The judge overruled

Chappell’s objection and instructed the jurors: “Please rely on

your own memory of the statement.”
26
¶53 Arizona Rule of Criminal Procedure 22.3 gives trial

courts discretion to permit jurors to rehear particular

testimony during deliberations, but does not require the judge

to provide transcripts to the jury:

After the jurors have retired to consider their
verdict, if they desire to have any testimony
repeated, or if they or any party request additional
instructions, the court may recall them to the
courtroom and order the testimony read or give
appropriate additional instructions. The court may
also order other testimony read or give other
instructions, so as not to give undue prominence to
the particular testimony or instructions requested.
Such testimony may be read or instructions given only
after notice to the parties.
¶54 Here, the trial court’s ruling was based on a concern

that providing the jury with a transcript of Chappell’s

allocution would unduly emphasize that portion of the evidence.

The court did not abuse its discretion in refusing the jury’s

request. See State v. Jovenal, 117 Ariz. 441, 443, 573 P.2d

515, 517 (App. 1977) (noting concern of some courts that, when

“partial transcripts of the testimony” are provided to the jury,

“undue emphasis is placed on the testimony thus made available

in written form”).

¶55 Chappell’s constitutional claim is similarly

unavailing. The jurors heard Chappell’s allocution, and the

mere fact that they were not given a written transcript during

deliberations neither impeded their ability to consider it nor

violated Chappell’s constitutional rights.
27
 III. REVIEW OF DEATH SENTENCE

¶56 Because the murder occurred after August 1, 2002, we

review for abuse of discretion the jury’s aggravation findings

and death sentence. A.R.S. § 13-756(A). Our review must be

conducted even when, as here, the defendant fails to raise the

issue on appeal. See Morris, 215 Ariz. at 340 ¶ 76, 160 P.3d at

219. We will affirm the jury’s findings and sentence “if there

is any reasonable evidence in the record to sustain [them].”

Id. at 340-41 ¶ 77, 160 P.3d at 219-20 (citation and internal

quotation omitted).

¶57 Chappell does not contest the (F)(2) or (F)(9)

aggravator. The (F)(2) aggravator was established by the jury’s

guilty verdict on the child abuse charge. The (F)(9) aggravator

was established by the jury’s explicit finding during the guilt

phase that Devon was under the age of fifteen when he died.

Therefore, we conclude the jury did not abuse its discretion in

finding that the (F)(2) and (F)(9) aggravators had been proven

beyond a reasonable doubt. See State v. Cruz, 218 Ariz. 149,

170 ¶ 136, 181 P.3d 196, 217 (2008) (finding no abuse of

discretion when defendant did not contest aggravating factor).

In addition, for the reasons discussed above, the jury did not

abuse its discretion in finding that the (F)(6) aggravator had

been proven beyond a reasonable doubt.

¶58 Chappell offered evidence of the following mitigating
28
factors: (1) age; (2) impaired ability to appreciate the

wrongfulness of his conduct; (3) lack of previous criminal

history; (4) past good conduct and character; (5) commission of

the offense was out of character; (6) educational

accomplishments; (7) good behavior during pre-trial

incarceration; (8) love for and by his family; (9) good conduct

during trial; (10) remorse; (11) existence of an uncharged co-

perpetrator (Shackleford); (12) cooperation with authorities;

(13) good prospect of rehabilitation; (14) religious commitment

and belief; (15) alcoholism; (16) impulsivity under stress;

(17) mental health symptoms; (18) bipolar disorder;

(19) attention deficit hyperactivity disorder; (20) unusual

stress at or near the time of the incident; and (21) family

history of mental illness.

¶59 Because the jury imposed the death penalty, it

necessarily determined that Chappell’s mitigation was not

“sufficiently substantial to call for leniency.” See A.R.S.

§ 13-751(E); see also Morris, 215 Ariz. at 341 ¶ 81, 160 P.3d at

220. “[W]e 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 substantial to

call for leniency.” Morris, 215 Ariz. at 341 ¶ 81, 160 P.3d at

220. Although Chappell presented a significant amount of

mitigation evidence, in light of the “nature and strength” of
29
the three aggravating circumstances, we cannot conclude that the

jury abused its discretion in sentencing Chappell to death. Id.

at ¶ 82.

IV. CROSS-APPEAL

¶60 The State cross-appeals from the trial court’s ruling

that Chappell was not required to disclose witness interview

notes taken by his mitigation specialist. See A.R.S. § 13-

4032(3). Because we affirm Chappell’s convictions and

sentences, this issue is moot and we decline to consider it.

See, e.g., State v. McCray, 218 Ariz. 252, 261 ¶ 46, 183 P.3d

503, 512 (2008); State v. Mott, 187 Ariz. 536, 547, 931 P.2d

1046, 1057 (1997).

V. CONCLUSION

¶61 For the foregoing reasons, we affirm Chappell’s

convictions and sentences.11

_____________________________________
A. John Pelander, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

11
Chappell raises sixteen issues to avoid preclusion on
federal review. Those issues are presented verbatim in the
Appendix.
30
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
Michael D. Ryan, Justice

_____________________________________
W. Scott Bales, Justice

APPENDIX

1. The death penalty is cruel and unusual under any
circumstances and violates the Eighth and Fourteenth Amendments
to the United States Constitution and Article 2, § 15 of the
Arizona Constitution. State v. Harrod, 200 Ariz. 309, 320
(2001).
2. The death penalty is imposed arbitrarily and
irrationally in Arizona in violation of the Eighth and
Fourteenth Amendments to the United States Constitution and
Article 2, § 15 of the Arizona Constitution, as well as Derek’s
right to due process under the Fourteenth Amendment to the
United States Constitution and Article 2, § 4 of the Arizona
Constitution. State v. Beaty, 158 Ariz. 232 (1988).
3. Application of the death penalty on the facts of this
case would constitute cruel and unusual punishment in violation
of the Eighth and Fourteenth Amendments to the United States
Constitution and Article 2, §§ 1, 4, 15 of the Arizona
Constitution.
4. The prosecutor’s discretion to seek the death penalty
has no standards and therefore violates the Eighth and
Fourteenth Amendments to the United States Constitution and
Article 2, §§ 1, 4, 15 of the Arizona Constitution. State v.
Sansing, 200 Ariz. 347, 361 (2001).
5. Aggravating factors under A.R.S. § 13-703(F)
(renumbered as A.R.S. § 13-751(F), effective January 1, 2009)
are elements of capital murder and must be alleged in an
indictment and screened for probable cause. Arizona’s failure
to require this violates a defendant’s right to due process and
a fair trial under the Sixth and Fourteenth Amendments to the
United States Constitution and Article 2, §§ 4, 24 of the
Arizona Constitution. McKaney v. Foreman, 209 Ariz. 268 (2004).
31
 6. The reasonable doubt instruction of State v. Portillo,
182 Ariz. 592 (1995), dilutes and shifts the burden of proof in
violation of the Sixth Amendment to the United States
Constitution. State v. Ellison, 213 Ariz. 116 (2006).
7. Allowing the jury commissioner to “time screen” jurors
over defense objection and in counsel’s absence violated Derek’s
due process rights under the Fifth and Fourteenth Amendments to
the United States Constitution and constituted structural error.
State v. Morris, 215 Ariz. 324, 334 (2007).
8. 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 to the United States Constitution and
Article 2, § 15 of the Arizona Constitution. State v.
Gulbrandson, 184 Ariz. 46 (1995). 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.
9. Arizona’s capital sentencing scheme is
unconstitutional because it does not require that the State
prove that the death penalty is appropriate. Failure to require
this proof violates the Fifth, Eighth, and Fourteenth Amendments
to the United States Constitution and Article 2, § 15 of the
Arizona Constitution. State v. Ring, 200 Ariz. 267, 284 (2001)
(Ring I), rev’d on other grounds by Ring II.
10. A.R.S. § 13-703 (renumbered as A.R.S. § 13-751,
effective January 1, 2009) provides no objective standards to
guide the sentencer in weighing the aggravating and mitigating
circumstances and therefore violates the Eighth and Fourteenth
Amendments of the United States Constitution and Article 2, § 15
of the Arizona Constitution. State v. Pandeli, 200 Ariz. 365,
382 (2001).
11. Arizona’s death penalty scheme is unconstitutional
because it does not require the sentencer to find beyond a
reasonable doubt that the aggravating circumstances outweigh the
accumulated mitigating circumstances, in violation of the Fifth,
Eighth, and Fourteenth Amendments to the United States
Constitution and Article 2, §§ 4, 15 of the Arizona
Constitution. State v. Roque, 213 Ariz. 193, 225-26 (2006).
12. A.R.S. § 13-703 does not sufficiently channel the
sentencer’s discretion. Aggravating circumstances should narrow
the class of persons eligible for the death penalty and
32
reasonably justify the imposition of a harsher penalty. The
broad scope of Arizona’s aggravating factors encompasses nearly
anyone involved in a murder, in violation of the Eighth and
Fourteenth Amendments to the United States Constitution and
Article 2, § 15 of the Arizona Constitution. Pandeli, 200 Ariz.
365, 382.
13. Victim impact evidence admitted at the penalty phase
of the trial violated Derek’s constitutional rights under the
Fifth, Sixth, Eighth, and Fourteenth Amendments to the United
States Constitution and Article 2, §§ 1, 4, 13, 15, 23, 24 of
the Arizona Constitution. Lynn v. Reinstein, 205 Ariz. 186, 191
(2003).
14. Execution by lethal injection is cruel and unusual
punishment in violation of the Eighth and Fourteenth Amendments,
and Article 2, § 15 of the Arizona Constitution. State v.
Hinchey, 181 Ariz. 307 (1995).
15. Arizona’s death penalty 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 to the
United States Constitution and Article 2, § 15 of the Arizona
Constitution. State v. Miles, 186 Ariz. 10, 19 (1996).
16. Both offenses were committed by a 21 year old Derek.
As the United States Supreme Court recognizes, “drawing the line
at 18 is subject to the objections always raised against
categorical rules.” Roper v. Simmons, 543 U.S. 551, 554 (2005).
The Roper court recognized three differences between
juveniles and adults that rendered “suspect any conclusion that
a juvenile falls among the worst offenders” that the death
penalty should be reserved for. 543 U.S. 551, 570. Summarily
finding that a juvenile is no longer beset by those same
differences simply because he has reached the age of 18
disregards “the concerns expressed in Furman that the penalty of
death not be imposed in an arbitrary or capricious manner.” See
Gregg v. Georgia, 428 U.S. 153 (1976).
Because “the line at 18” is arbitrary and capricious,
execution by lethal injection of 21 year old Derek is cruel and
unusual punishment that is fundamentally unfair and a violation
of the Fifth, Eighth, and Fourteenth Amendments of the United
States Constitution and of Article 2, §§ 4, 15, 24 of the
Arizona Constitution.

33