SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-08-0098-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2004-005523-001
JOSHUA IDLEFONSO VILLALOBOS, )
)
Appellant. )
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Raymond P. Lee, Judge
AFFIRMED
________________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Jonathan Bass, Assistant Attorney General Tucson
Attorneys for State of Arizona
DROBAN & COMPANY, PC Anthem
By Kerrie M. Droban
Attorney for Joshua Idlefonso Villalobos
________________________________________________________________
H U R W I T Z, Vice Chief Justice
¶1 Joshua Idlefonso Villalobos was convicted of first
degree murder and child abuse and sentenced to death for the
murder. We have jurisdiction over this automatic appeal
pursuant to Article 6, Section 5(3) of the Arizona Constitution
and A.R.S. §§ 13-4031 and 13-4033(A)(1) (2010).
I. FACTS AND PROCEDURAL HISTORY1
¶2 Villalobos lived with Annette Verdugo, five-year-old
Ashley Molina (Verdugo’s daughter), and the couple’s two-year-
old daughter. On January 3, 2004, Villalobos and the children
picked Verdugo up at work and took her to dinner. Ashley did
not eat and complained about stomach pains. Villalobos and the
children again picked Verdugo up from work after her shift ended
in the early morning of January 4. When Verdugo noted an odd
smell, Villalobos claimed he had vomited in the car.
¶3 When they arrived home, Villalobos carried Ashley
upstairs and put her to bed. At approximately 7 a.m.,
Villalobos told Verdugo that Ashley was unresponsive. Ashley’s
body was cold and hard. Villalobos told Verdugo “they’re going
to think it’s me, I was the only one with her.”
¶4 After some delay, Villalobos and Verdugo took Ashley
to the hospital. The emergency room physician recognized
immediately that Ashley was dead; she found “somewhere between
150 to 200 bruises” on Ashley’s body. After Villalobos told the
physician that the bruises were from a fall in the shower,
Phoenix police were summoned.
1
The facts are viewed in the light most favorable to
sustaining the guilty verdicts. State v. Garza, 216 Ariz. 56,
61 n.1, 163 P.3d 1006, 1011 n.1 (2007).
2
¶5 Villalobos was taken to the police station and given
Miranda warnings. Villalobos denied hitting Ashley, and a
detective asked him to take a polygraph examination. Villalobos
agreed. During the examination, Villalobos initially denied
injuring Ashley. When the polygrapher accused him of lying,
Villalobos admitted that he had punched Ashley.
¶6 After the polygraph, a second detective resumed the
interrogation. Villalobos admitted that, before Verdugo’s
dinner break, he had grabbed Ashley by the arm and hit her
several times with a closed fist. Villalobos also said that
Ashley had passed out in the car and then vomited on him while
he was picking Verdugo up from work.
¶7 The medical examiner who conducted the autopsy later
concluded that Ashley had died of blunt force trauma to the
abdomen. He opined that Ashley could have survived for no more
than four hours after the fatal injuries and had died between
five and eight hours before being taken to the hospital. The
autopsy also revealed other internal injuries that predated the
fatal injuries.
¶8 A grand jury indicted Villalobos for child abuse and
first degree murder. Verdugo was indicted for second degree
murder and child abuse. She later pleaded guilty to attempted
child abuse and testified at Villalobos’s trial.
3
¶9 A superior court jury found Villalobos guilty on both
counts. During the aggravation phase of the trial, the jury
found three aggravating circumstances: the offense was
committed in an especially heinous, cruel, or depraved manner,
A.R.S. § 13-751(F)(6) (2010);2 Villalobos committed the offense
while on release from the state department of corrections,
A.R.S. § 13-751(F)(7)(a); and the victim was a child under the
age of fifteen, A.R.S. § 13-751(F)(9). After the penalty phase,
the jury concluded that any mitigating circumstances were not
sufficiently substantial to call for leniency and death was the
appropriate sentence.
II. ISSUES ON APPEAL
A. GUILT PHASE
1. Motion to Suppress Statements Made to Police and the
Polygrapher
¶10 Villalobos argues that the trial court erred in
refusing to suppress his statements to the detectives and the
polygrapher. We review a trial court’s denial of a motion to
suppress a confession for “clear and manifest error,” the
equivalent of abuse of discretion. State v. Newell, 212 Ariz.
389, 396 ¶ 22 & n.6, 132 P.3d 833, 840 & n.6 (2006).
2
We cite the current version of statutes in the absence of
any relevant material changes since the date of the offenses.
4
a. Miranda Warnings
¶11 After receiving Miranda warnings, Villalobos
acknowledged that he understood his rights and answered all
questions posed to him. The trial court therefore did not abuse
its discretion in concluding that the State proved that
Villalobos knowingly and intelligently waived his Miranda
rights. See State v. Tapia, 159 Ariz. 284, 286-87, 767 P.2d 5,
7-8 (1988).
¶12 Villalobos argues, however, that Miranda warnings
should have been reissued before his subsequent encounters with
the polygrapher and the second detective. Repeated Miranda
warnings are required in “circumstances suggesting that a
suspect is not fully aware of his rights.” State v. Trostle,
191 Ariz. 4, 14, 951 P.2d 869, 879 (1997). But this is not such
a case. Villalobos not only received the required warnings
before the initial interrogation, but also reviewed and signed a
consent form reiterating his Miranda rights just before the
polygraph examination began. Only three hours elapsed between
the beginning of the interview and its conclusion, and
Villalobos was aware at all times that he was speaking with
police department employees. See id. (holding repeated warnings
unnecessary for an interrogation that lasted over seven hours at
three separate locations); State v. Gilreath, 107 Ariz. 318,
5
319, 487 P.2d 385, 386 (1971) (same regarding one twelve-hour
gap and one thirty-six-hour gap between warnings).
b. Voluntariness
¶13 Villalobos also argues that his statements were
involuntary. The State must prove that a confession was “freely
and voluntarily made and was not the product of coercion.”
State v. Boggs, 218 Ariz. 325, 335 ¶ 44, 185 P.3d 111, 121
(2008). The superior court did not abuse its discretion in
concluding that the State met that burden here. The
interviewing detectives and polygrapher each testified that they
did not threaten, coerce, or make any promises, and the record
supports that testimony.
¶14 Villalobos contends the polygrapher coerced him into
making inculpatory statements by telling him that an autopsy and
DNA evidence could prove his guilt. These predictions, however,
were accurate and, even if false, would not have rendered the
confession involuntary. See, e.g., Trostle, 191 Ariz. at 15,
951 P.2d at 880 (holding that a deliberate falsehood by
interrogators did not render a confession involuntary). The
polygrapher’s request that Villalobos tell the truth to “get out
of this hole” was also permissible. See, e.g., State v. Amaya-
Ruiz, 166 Ariz. 152, 165, 800 P.2d 1260, 1273 (1990) (noting
that police requests for a suspect to tell the truth without
threat or promise are not inherently coercive).
6
¶15 When talking to the second detective, Villalobos
worried that he would be imprisoned for life for killing Ashley.
The detective responded: “Not necessarily, not necessarily,
there’s going to come a day when you have a relationship with
[your daughter].” The detective also told Villalobos that
“telling me the truth, and that’s being, I didn’t plan this,
that makes it a lot better for you.” After this exchange,
Villalobos admitted he had hit Ashley with a closed fist before
Verdugo’s dinner break, and he later admitted to striking Ashley
repeatedly.
¶16 Villalobos argues that the phrases “not necessarily”
and “that makes it a lot better for you” were implied promises
for leniency. Villalobos, however, had already admitted to
striking Ashley before the detective made these statements. See
State v. Lopez, 174 Ariz. 131, 138, 847 P.2d 1078, 1085 (1992)
(finding alleged inducement irrelevant when incriminating
statement occurred beforehand).3 More importantly, the detective
did not promise leniency. See Amaya-Ruiz, 166 Ariz. at 165, 800
P.2d at 1273 (“Mere advice from the police that it would be
better for the accused to tell the truth when unaccompanied by
3
Villalobos also cites a later statement by the second
detective that “people get out of prison, nobody goes to jail
for the rest of their life anymore especially when it’s not
something they plan.” Whatever the propriety of these remarks,
however, Villalobos made no subsequent incriminating statements.
See Lopez, 174 Ariz. at 138, 847 P.2d at 1085.
7
either a threat or a promise does not render a subsequent
confession involuntary.”); State v. Walton, 159 Ariz. 571, 579,
769 P.2d 1017, 1025 (1989) (finding statements by detective that
defendant needed to tell the truth to “give yourself a chance”
not coercive).
2. Other Acts Evidence
¶17 Villalobos argues the trial court erred in admitting
the following evidence: (1) testimony that he had violently
shaken Ashley in October 2003; (2) his admission that he had
bruised Ashley’s face and buttocks in November 2003; (3) his
admission that he had bruised Ashley’s face in December 2003;
and (4) his admissions to Verdugo that he had bruised Ashley’s
arms in the weeks before her death.
¶18 Evidence of “other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show
action in conformity therewith.” Ariz. R. Evid. 404(b). Such
evidence may, however, be admitted “for other purposes, such as
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Id.
We review the superior court’s decision to admit other acts
evidence for abuse of discretion. State v. Andriano, 215 Ariz.
497, 502 ¶ 17, 161 P.3d 540, 545 (2007).
¶19 The child abuse charge required proof that Villalobos
“intentionally or knowingly” injured Ashley. See A.R.S. § 13-
8
3623(A)(2) (2001). The prior abuse evidence was relevant to
establish Villalobos’s mental state. See State v. Smith, 130
Ariz. 74, 76, 634 P.2d 1, 3 (App. 1981) (admitting evidence of
prior abuse to establish defendant’s mental state). This
evidence also rebutted Villalobos’s claim that he did not intend
to hurt Ashley and hit her as a “reflex,” as well as his
contention that Verdugo could have caused the fatal injuries.
¶20 In light of Villalobos’s defenses, the superior court
did not abuse its discretion in concluding that the probative
value of the other acts evidence was not substantially
outweighed by the danger of unfair prejudice. See Ariz. R.
Evid. 403; see also State v. Roque, 213 Ariz. 193, 212 ¶ 59, 141
P.3d 368, 387 (2006) (reviewing Rule 403 ruling for abuse of
discretion). The prior abuse occurred in October, November, and
December of 2003, shortly before the fatal attack. Any
prejudice from the admission of this evidence was appropriately
mitigated by the instruction given at Villalobos’s request,
which reminded the jury of the limited purposes for which it
could consider the other acts evidence. See Ariz. R. Evid. 105
(requiring that, upon request, a trial court give a limiting
instruction when evidence is admissible for one purpose but not
another); State v. Hyde, 186 Ariz. 252, 276-77, 921 P.2d 655,
679-80 (1996) (stating that an offer to issue limiting
9
instruction “afforded the defendant adequate protection against
unfair prejudice”).
3. Autopsy Photographs
¶21 Villalobos claims the trial court erred in admitting
four autopsy photographs depicting various internal injuries.
Autopsy photographs are admissible to “show the nature and
location of the fatal injury, to help determine the degree or
atrociousness of the crime, to corroborate state witnesses, to
illustrate or explain testimony, and to corroborate the state’s
theory of how and why the homicide was committed.” State v.
Chapple, 135 Ariz. 281, 288, 660 P.2d 1208, 1215 (1983). We
review the trial court’s admission of photographic evidence for
abuse of discretion. State v. Cañez, 202 Ariz. 133, 154 ¶ 65,
42 P.3d 564, 585 (2002).
¶22 The autopsy photographs were relevant to prove the
cause of death and the extent of the abuse. See id. at ¶ 66
(finding photographs relevant in proving murder); Lopez, 174
Ariz. at 138-39, 847 P.2d at 1085-86 (finding photographs
relevant in proving abuse). Each photograph illustrated a
different aspect of the medical examiner’s testimony. This
evidence was also relevant to rebut Villalobos’s argument that
Ashley seemed fine after the beating and his suggestion that she
died because of lack of prompt medical attention.
10
¶23 Nor did the trial court abuse its discretion in
concluding the risk of unfair prejudice from these photographs
did not substantially outweigh their probative value. See Ariz.
R. Evid. 403. “[T]here is nothing sanitary about murder, and
there is nothing in Rule 403, Ariz. R. Evid., that requires a
trial judge to make it so.” State v. Anderson, 210 Ariz. 327,
340 ¶ 40, 111 P.3d 369, 382 (2005) (quoting State v. Reinhardt,
190 Ariz. 579, 584, 951 P.2d 454, 459 (1997)) (internal
quotation marks omitted). The autopsy photographs depicted only
internal injuries and were unlikely to cause undue prejudice
when the underlying charges involved the beating death of a
young child. See Lopez, 174 Ariz. at 139, 847 P.2d at 1078
(finding photographs of child autopsy not unduly prejudicial
because “the crime committed was so atrocious that photographs
could add little to the repugnance felt by anyone who heard the
testimony” (internal quotation marks and citation omitted)).
B. AGGRAVATION PHASE
1. Expert Testimony on the Victim’s Suffering
¶24 The medical examiner testified during the aggravation
phase that Ashley had suffered “excruciating” pain. Villalobos
does not dispute that this testimony was relevant to prove the
murder was especially cruel under A.R.S. § 13-751(F)(6). See
State v. Morris, 215 Ariz. 324, 338 ¶ 61, 160 P.3d 203, 217
(2007) (holding that the (F)(6) cruelty aggravator requires
11
proof that the victim was “conscious and suffered physical pain
or mental anguish during . . . some portion of the crime and
that the defendant knew or should have known the victim would
suffer”). Instead, he argues that the medical examiner was not
qualified to testify on this subject because he was certified
only in pathology and had not ascertained a patient’s pain level
for ten years.
¶25 Expert testimony is appropriate “if scientific,
technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or determine a fact in
issue.” Ariz. R. Evid. 702. A witness can qualify as an expert
through requisite “knowledge, skill, experience, training, or
education.” Id. We review the admission of expert testimony
for abuse of discretion. State v. Davolt, 207 Ariz. 191, 210
¶ 69, 84 P.3d 456, 475 (2004).
¶26 The superior court did not abuse its discretion in
allowing the medical examiner to testify about the victim’s
pain. The medical examiner had extensive medical training and
experience in China, had completed two fellowships and a
pathology residence in the United States, and, in addition to
conducting autopsies, had treated live patients during his
fellowships.
¶27 The medical examiner’s specialization in pathology did
not disqualify him from giving expert testimony on pain. See
12
Morris, 215 Ariz. at 338 ¶ 61, 160 P.3d at 217 (involving
pathologist testimony of pain levels); State v. Sansing, 206
Ariz. 232, 236 ¶ 12, 77 P.3d 30, 34 (2003) (same); State v.
Maturana, 180 Ariz. 126, 132, 882 P.2d 933, 939 (1994) (same).
Instead, the physician’s certification went only to the weight
of his testimony. See Davolt, 207 Ariz. at 210 ¶ 70, 84 P.3d at
475.
2. Double Counting of Victim’s Age
¶28 Villalobos contends that the prosecutor’s description
of Ashley as “tiny,” “32 pound[s],” a “child,” and “five years
old” in his closing argument improperly encouraged the jury to
weigh her age twice in finding the (F)(6) and (F)(9)
aggravators. A jury may use one fact to find multiple
aggravators, but it may not weigh the same fact twice when
assessing aggravation and mitigation. State v. Velazquez, 216
Ariz. 300, 307 ¶ 22, 166 P.3d 91, 98 (2007).
¶29 Villalobos has not demonstrated impermissible double
counting. The prosecutor’s comments regarding Ashley’s age,
size, weight, and references to her as a child appropriately
encouraged the jury to consider whether she was helpless at the
time of the murder. See State v. Bolton, 182 Ariz. 290, 310
n.6, 896 P.2d 830, 850 n.6 (1995) (evaluating child’s
defenselessness as part of (F)(6) aggravator). The prosecutor
expressly told the jury that it could consider physical size as
13
evidence of helplessness, but emphasized that he was “talking
about her size, not her chronological age.” This Court has
found similar comments appropriate in cases involving both the
(F)(6) and (F)(9) aggravators. See Velazquez, 216 Ariz. at 307
¶ 23, 166 P.3d at 98; State v. Medina, 193 Ariz. 504, 512 ¶ 26,
975 P.2d 94, 102 (1999). Moreover, the jury was expressly
instructed not to consider age when determining whether the
crime was especially heinous, cruel or depraved. See Velazquez,
216 Ariz. at 307 ¶ 24, 166 P.3d at 98 (citing such an
instruction in rejecting double-counting argument).
3. Narrowing Instructions
¶30 Arizona’s (F)(6) “especially heinous, cruel or
depraved” aggravator is unconstitutionally vague. Walton v.
Arizona, 497 U.S. 639, 654 (1990), overruled on other grounds by
Ring v. Arizona, 536 U.S. 584, 589 (2002). However, this
vagueness is remedied when “jury instructions provide adequate
specificity in accordance with appellate courts’ narrowing
constructions.” Anderson, 210 Ariz. at 353 ¶ 114, 111 P.3d at
395.
¶31 Villalobos did not object to the aggravation phase
(F)(6) instruction and concedes on appeal that it accurately
stated Arizona law.4 But, he argues, the instruction does not
4
The aggravation phase jury instructions described the
especially cruel prong of the (F)(6) aggravator as follows:
14
cure the vagueness of the (F)(6) aggravator because the term
“especially” was not properly defined. We have repeatedly
rejected similar arguments, holding that jury instructions
materially identical to those here sufficiently narrowed the
“especially cruel” aggravator. See State v. McCray, 218 Ariz.
252, 258-59 ¶¶ 25-26 & n.3, 183 P.3d 503, 509-10 & n.3 (2008);
Velazquez, 216 Ariz. at 308 ¶¶ 28-29, 166 P.3d at 99; State v.
Cromwell, 211 Ariz. 181, 189-90 ¶¶ 42-45, 119 P.3d 448, 456-57
(2005); Anderson, 210 Ariz. at 353 ¶ 114 & n.19, 111 P.3d at 395
& n.19.
C. PENALTY PHASE
1. Refusal to Pose Juror Question
¶32 After redirect of the State’s mental health expert in
the sentencing phase, a juror submitted the following question
to the trial judge: “Given what you know about Mr. Villalobos,
is it likely that he could be significantly reformed with the
help of medications and or therapy?” Over Villalobos’s
_______________________________
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. The Defendant
must know or should have known that the victim would
suffer.
The jury was further instructed that the State had to prove that
the cruelty in this murder was “unusually great or significant”
to make it “especially cruel.”
15
objection, the judge refused to ask the expert that question
because “talking about [a] speculative theoretical future
environment . . . doesn’t seem to fall within the realm of what
mitigation is about.”
¶33 A trial judge may “for good cause . . . prohibit or
limit the submission of [juror] questions to witnesses.” Ariz.
R. Crim. P. 18.6(e). We review the trial court’s decision to
exclude evidence for abuse of discretion. See State v. Ellison,
213 Ariz. 116, 129 ¶ 42, 140 P.3d 899, 912 (2006); Davolt, 207
Ariz. at 210 ¶ 69, 84 P.3d at 475.
¶34 A penalty phase jury may not be precluded from
considering relevant mitigating evidence. See Tennard v.
Dretke, 542 U.S. 274, 287 (2004); Eddings v. Oklahoma, 455 U.S.
104, 114-15 (1982). Our statutes broadly define “mitigating
circumstances” as including “any aspect of the defendant’s
character, propensities or record.” A.R.S. § 13-751(G). A
defendant’s potential for future rehabilitation falls squarely
within this definition. State v. King, 180 Ariz. 268, 283, 883
P.2d 1024, 1039 (1994). The trial judge therefore incorrectly
concluded that future dangerousness and potential for
rehabilitation were not mitigating circumstances.
¶35 Nonetheless, we cannot conclude that the trial judge
committed reversible error in declining to pose the juror’s
question to the State’s expert. The witness had testified only
16
as to the results of a personality test and Villalobos’s I.Q.
score; he did not diagnose the defendant for treatment, nor was
his expertise on the effects of medication or therapy
established.
¶36 More importantly, Villalobos made no offer of proof as
to what the expert would have said if allowed to answer the
question. A finding of error “may not be predicated upon a
ruling which . . . excludes evidence unless . . . the substance
of the evidence was made known to the court by offer or was
apparent from the context.” Ariz. R. Evid. 103(a)(2); see State
v. Towery, 186 Ariz. 168, 179, 920 P.2d 290, 301 (1996)
(requiring, “[a]t a minimum, an offer of proof stating with
reasonable specificity what the evidence would have shown”).
Unlike cases in which no offer of proof is necessary because the
content of the excluded evidence is obvious, e.g., State v.
Kaiser, 109 Ariz. 244, 246, 508 P.2d 74, 76 (1973), nothing in
this record hints at what the expert’s response to the juror’s
question would have been. We therefore cannot conclude the
judge’s ruling was erroneous.
2. Comments Regarding Causal Nexus
¶37 During his penalty phase closing argument, the
prosecutor stated:
[T]he bottom line on that abuse [Villalobos suffered],
if it happened, is what does it have to do with the
murder of Ashley Molina? What does it have to do with
17
repeatedly punching her in the stomach? What does it
have to do with letting her die those slow two to four
hours? The bottom line question is what about his
childhood reduces his moral[] culpability or
blameworthiness for all the decisions he made on
January 3, 2004?
. . . .
[T]he defense team asserts that his borderline IQ is
mitigating . . . . [H]e did have learning disability
in reading and mathematics, but what does this have to
do with the murder of Ashley Molina?
. . . .
This is the fabric of who he is. And I submit to you
there is absolutely nothing mitigating about who he is
in light of what you’ve seen him do, what you’ve seen
demonstrated in this case.
Villalobos argues that these comments improperly suggested that
a “causal nexus” was required between the crime and any
mitigating evidence.
¶38 A jury cannot be precluded from hearing mitigation
evidence because it lacks a causal nexus to the murder.
Tennard, 542 U.S. at 284-87. However, “there is no
constitutional prohibition against the State arguing that
evidence is not particularly relevant or that it is entitled to
little weight.” Anderson, 210 Ariz. at 350 ¶ 97, 111 P.3d at
392; see also State v. Pandeli, 215 Ariz. 514, 525-26 ¶¶ 31-32,
161 P.3d 557, 568-69 (2007). The jury may thus appropriately
consider a lack of causal nexus when “assessing the quality and
18
strength of mitigation.” Newell, 212 Ariz. at 405 ¶ 82, 132
P.3d at 849.
¶39 Villalobos does not claim that the trial court
excluded any evidence for lack of a causal nexus. Rather, he
objects to the prosecutor’s comments. We have repeatedly held,
however, that the state may fairly argue that the lack of a
nexus to the crime diminishes the weight to be given alleged
mitigation. See, e.g., Anderson, 210 Ariz. at 392 ¶ 97, 111
P.3d at 350; Pandeli, 215 Ariz. at 525-26 ¶ 31, 161 P.3d at 568-
69. Thus, the statements here were not improper. Moreover, the
jury was properly instructed that it could consider any relevant
evidence as mitigation and that it alone should determine the
weight to attach to that mitigation. See Pandeli, 215 Ariz. at
526 ¶ 36, 161 P.3d at 569; Roque, 213 Ariz. at 224 ¶ 126, 141
P.3d at 399.
¶40 Villalobos also argues that A.R.S. § 13-751(G)
unconstitutionally requires a causal nexus between mitigation
and the crime. This is incorrect. Relevance, not a causal
nexus, is the only statutory limitation on the jury’s ability to
consider mitigation evidence. A.R.S. § 13-751(G); see Anderson,
210 Ariz. at 350 ¶ 97, 111 P.3d at 392 (noting distinction
between admissibility and the weight given mitigation).
19
D. REVIEW OF THE DEATH SENTENCE
¶41 Because the murder occurred after August 1, 2002, we
review both the jury’s aggravation findings and the death
sentence for abuse of discretion. A.R.S. § 13-756(A) (2010);
Morris, 215 Ariz. at 340 ¶ 76, 160 P.3d at 219. A jury has not
abused its discretion in finding an aggravating circumstance or
determining that death is the appropriate sentence if there is
“any reasonable evidence in the record to sustain” those
conclusions. Morris, 215 Ariz. at 341 ¶ 77, 160 P.3d at 220
(internal quotation marks and citation omitted).5
1. Aggravation Phase
a. (F)(6) Aggravator
¶42 Villalobos argues that the State has not met its
burden of proving the murder was especially cruel because it did
not establish that Ashley was conscious at all times after first
being struck. The especially cruel prong of the (F)(6)
5
A defendant may not be sentenced to death under the Eighth
Amendment unless he “kill[s], attempt[s] to kill, or intend[s]
that a killing will take place or that lethal force will be
employed,” Enmund v. Florida, 458 U.S. 782, 797 (1982), or is a
major participant in a crime and acts with reckless indifference
to human life, Tison v. Arizona, 481 U.S. 137, 158 (1987). The
trial court in this case did not ask the jury to make an
Enmund/Tison finding. See A.R.S. § 13-752(P) (2010) (requiring
jury to make all factual determinations required by the
“Constitution of the United States or this state to impose a
death penalty”). Villalobos did not request an Enmund/Tison
finding below, nor does he raise this as an issue on appeal. In
any event, the evidence below overwhelmingly established that
Villalobos was the actual killer.
20
aggravator, however, does not require the victim to be conscious
for all injuries inflicted. McCray, 218 Ariz. at 259 ¶ 31, 183
P.3d at 510.
¶43 The State presented substantial evidence that Ashley
suffered and that Villalobos knew or should have known she was
suffering. Villalobos admitted that he beat Ashley at
approximately 5 p.m. Ashley was conscious until going to bed
around 1 a.m., thus suggesting she was also conscious during the
fatal beating and suffered its effects while conscious. The
medical examiner also testified that Ashley was conscious after
she was punched and would have been in pain comparable to that
from a ruptured appendix. Therefore, the jury properly found
the (F)(6) aggravator. See Morris, 215 Ariz. at 338 ¶ 61, 160
P.3d at 217.
¶44 “A finding of cruelty alone is sufficient to establish
the (F)(6) aggravator.” Id. at 341 ¶ 80, 160 P.3d at 220.
Moreover, Villalobos does not challenge the jury’s separate
finding that the murder was especially heinous or depraved. The
jury was appropriately instructed, without objection from
Villalobos, that it could find heinousness or depravity under
§ 13-751(F)(6) if it concluded that the murder was senseless,
the victim was helpless, and Villalobos had a caregiver
relationship with the victim. See State v. Prince, 206 Ariz.
24, 27 ¶ 10, 75 P.3d 114, 117 (2003); State v. Styers, 177 Ariz.
21
104, 116, 865 P.2d 765, 777 (1993). Ample evidence supported
each of these findings. Thus, the (F)(6) aggravator was
established independent of any finding of especial cruelty. See
State v. Djerf, 191 Ariz. 583, 595 ¶ 44, 959 P.2d 1274, 1286
(1998) (“a finding of . . . heinousness/depravity will suffice
to establish [the (F)(6)] factor”).
b. (F)(7) Aggravator
¶45 The State introduced uncontroverted evidence that
Villalobos was on authorized release from prison for federal and
state drug charges at the time of the offense. The jury
therefore did not abuse its discretion in finding the (F)(7)
aggravator.
c. (F)(9) Aggravator
¶46 The State introduced uncontroverted evidence that
Villalobos was twenty-one when he murdered Ashley, who was five.
The jury therefore did not abuse its discretion in finding the
(F)(9) aggravator.
22
2. Penalty Phase6
¶47 Villalobos presented four general categories of
mitigation evidence in the penalty phase: prior abuse, mental
health, good behavior, and remorse. His claimed mitigation,
however, was subjected to significant rebuttal by the State.
See A.R.S. § 13-751(D) (allowing state to present evidence
rebutting claimed mitigation).
¶48 For example, although Villalobos alleged two incidents
of childhood abuse by his father, evidence was also presented
that his family was loving and supportive. The jury was
therefore entitled to disbelieve or discount the abuse
allegations. Cf. State v. Hampton, 213 Ariz. 167, 185 ¶ 89, 150
P.3d 950, 968 (2006) (upholding death sentence despite evidence
of childhood abuse); State v. Wallace, 160 Ariz. 424, 427, 773
P.2d 983, 986 (1989) (holding that a difficult family background
does not necessarily mandate leniency). Villalobos’s mental
health claims were similarly undermined by testimony, both from
his own expert and the State’s, that Villalobos’s I.Q. fell
within the normal range and he could tell right from wrong. Cf.
6
Villalobos does not argue that the jury abused its
discretion in determining that any mitigating circumstances were
not sufficiently substantial to warrant leniency. Even when
abuse of discretion review applies, appellate counsel should
“take advantage of all appropriate opportunities to argue why
death is not suitable punishment for their clients.” Morris,
215 Ariz. at 341 ¶ 76 n.10, 160 P.3d at 219 n.10 (citation and
internal quotation marks omitted).
23
State v. Johnson, 212 Ariz. 425, 440 ¶ 65, 133 P.3d 735, 750
(2006) (according mental health mitigation evidence “minimal
weight” on independent review when defendant knew right from
wrong and the evidence did not have a causal nexus to the
crime).
¶49 Villalobos also argued below that he deserved leniency
because he was a high school graduate and behaved properly in
prison. The force of this claimed mitigation was diminished,
however, by evidence that Villalobos was suspended from high
school for excessive absences during a prior incarceration and
was disciplined while in prison for threatening another inmate.
Cf. Pandeli, 215 Ariz. at 533 ¶ 82, 161 P.3d at 576 (giving good
prison behavior mitigation little weight on independent review
because prisoners “are expected to behave and adapt to prison
life”).
¶50 Villalobos argued that the tapes of his police
interview, during which he cried several times and told the
polygrapher he was “sorry,” demonstrate remorse. However,
throughout the same interview, Villalobos deflected
responsibility for Ashley’s injuries by explaining the bruising
on her body as the result of CPR, implying that Verdugo caused
the bruising, justifying the beating as child discipline,
excusing the beating as a “reflex,” and refusing to acknowledge
the extent of the harm he caused. Cf. State v. Dann, 220 Ariz.
24
351, 376 ¶ 150, 207 P.3d 604, 629 (2009) (according evidence of
remorse little weight on independent review because defendant
denied responsibility for his conduct). Villalobos’s failure to
get medical attention for Ashley after she vomited on him, his
efforts to conceal her injuries from Verdugo, and his reluctance
to take Ashley to the hospital because he feared he would be a
suspect also tend to diminish the force of this claimed
mitigation.
¶51 This case involves the senseless murder of a helpless
child. Three aggravating circumstances were clearly
established. On this record, even if we assume that Villalobos
met his burden of establishing all claimed mitigation evidence
by a preponderance of the evidence, we cannot conclude that the
jury abused its discretion in determining that the mitigating
circumstances, taken as a whole, were not sufficiently
substantial to call for leniency. See Morris, 215 Ariz. at 341
¶ 82, 160 P.3d at 220. We therefore affirm the death sentence.
IV. CONCLUSION7
¶52 For the foregoing reasons, we affirm Villalobos’s
convictions and sentences.
7
Villalobos also raises twelve claims about the death
penalty to preserve them for federal review. These claims, and
cases Villalobos represents have rejected his arguments, are set
out verbatim in the Appendix. (The numbering of these claims
has been changed to correct Villalobos’s error in skipping the
number five in his original numbering.)
25
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
Michael D. Ryan, Justice
_____________________________________
W. Scott Bales, Justice
_____________________________________
A. John Pelander, Justice
26
APPENDIX
1. The fact-finder in capital cases must be able to consider
all relevant mitigating evidence in deciding whether to give the
death penalty. See Woodson v. North Carolina, 428 U.S. 280,
304, 96 S. Ct. 2978, 49 L.Ed.2d 944 (1976). The trial court’s
failure to allow the jury to consider and give effect to all
mitigating evidence in this case by limiting its consideration
to that proven by a preponderance of the evidence is
unconstitutional under the Eighth and Fourteenth Amendments.
This court rejected this argument in McGill, 213 Ariz. at 161
¶ 59, 140 P.3d at 944 (2006).
2. The State’s failure to allege an element of a charged
offense in the grand jury indictment-the aggravating factors
that made the defendant death eligible-is a fundamental defect
that renders the indictment constitutionally defective under the
Fifth, Sixth, Eighth, and Fourteenth Amendments and Article 2,
Section 1, 4, 13, 15, 23, and 24 of the Arizona Constitution.
See United States v. Chesney, 10 F.3d 641, 643 (9th Cir. 1993);
see also Apperendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348,
147 L.Ed.2d 435 (2000). This court rejected this argument in
McKaney v. Foreman ex rel. County of Maricopa, 209 Ariz. 268,
273 ¶ 23, 100 P.3d 18, 23 (2004).
27
3. Both the United States and the Arizona Constitutions
prohibit ex post facto laws. U.S. Const. Art. 1, § 10, cl. 1;
Ariz. Const. art. 2, § 25. Application of the new death penalty
law to defendant constitutes an impermissible ex post facto
application of a new law. This Court rejected this argument in
State v. Ring, 204 Ariz. 534, 547 ¶¶ 23-24, 65 P.3d 915, 928
(2003).
4. By allowing victim impact evidence at the penalty phase of
the trial, the trial court violated defendant’s constitutional
rights under the Fifth, Sixth, Eight and Fourteenth Amendments
and Article 2, Sections 1, 4, 13, 15, 23, and 24 of the Arizona
Constitution. This Court rejected challenges to the use of
victim impact evidence in Lynn v. Reinstein, 205 Ariz. 186, 191
¶ 16, 68 P.3d 412, 417 (2003).
5. The trial court improperly omitted from the penalty phase
jury instructions words to the effect that they may consider
mercy or sympathy in deciding the value to assign the mitigation
evidence, instead telling them to assign whatever value the jury
deemed appropriate. The court also instructed the jury that
they “must not be influenced by mere sympathy or by prejudice in
determining these facts.” These instructions limited the
mitigation the jury could consider in violation of the Fifth,
Sixth, Eighth, and Fourteenth Amendments and Article 2, Sections
1, 4, 15, 23, and 24 of the Arizona Constitution. This Court
28
rejected this argument in State v. Carreon, 210 Ariz. 54, 70-71
¶¶ 81-87, 107 P.3d 900, 916-17 (2005).
6. The death penalty is cruel and unusual in violation of the
Eighth and Fourteenth Amendments, and Article 2, Section 15 of
the Arizona Constitution. This Court rejected this argument in
State v. Harrod, 200 Ariz. 309, 320 ¶ 59, 26 P.3d 492, 503
(2001), vacated on other grounds, 536 U.S. 953, 122 S. Ct. 2653,
153 L.Ed.2d 830 (2002).
7. The death penalty is irrational and arbitrarily imposed; it
serves no purpose that is not adequately addressed by life in
prison, in violation of the defendant’s right to due process
under the Fourteenth Amendment of the United States Constitution
and Article 2, Sections 1 and 4 of the Arizona Constitution.
This Court rejected these arguments in State v. Beaty, 158 Ariz.
232, 247, 762 P.2d 519, 534 (1988).
8. The prosecutor’s discretion to seek the death penalty lacks
standards and therefore violates the Eighth and Fourteenth
Amendments, and Article 2, Sections 1, 4, and 15 of the Arizona
Constitution. This Court rejected this argument in State v.
Sansing, 200 Ariz. 347, 361 ¶ 46, 26 P.3d 1118, 1132 (2001),
vacated on other grounds, 536 U.S. 954, 122 S. Ct. 2654, 153
L.Ed.2d 830 (2002).
9. Arizona’s death penalty is applied so as to discriminate
against poor, young, and male defendants in violation of Article
29
2, Sections 1, 4, and 13 of the Arizona Constitution. This
Court rejected this argument in Sansing, 200 Ariz. at 361 ¶ 46,
26 P.3d at 1132.
10. Proportionality review serves to identify which cases are
above the “norm” of first-degree murder, thus narrowing the
class of defendants who are eligible for the death penalty. The
absence of proportionality review of death sentences by Arizona
courts denies capital defendants due process of law and equal
protection and amounts to cruel and unusual punishment in
violation of the Fifth, Eighth, and Fourteenth Amendments, and
Article 2, Section 15 of the Arizona Constitution. This Court
rejected this argument in Harrod, 200 Ariz. at 320 ¶65, 26 P.3d
at 503.
11. Arizona’s capital sentencing scheme is unconstitutional
because it does not require the state to prove the death penalty
is appropriate or require the jury to find beyond a reasonable
doubt that the aggravating circumstances outweigh the
accumulated mitigating circumstances. Instead, Arizona’s death
penalty statute requires defendants to prove their lives should
be spared in violation of the Fifth, Eighth, and Fourteenth
Amendments and Article 2, Section 15 of the Arizona
Constitution. This Court rejected this argument in Pandeli, 200
Ariz. at 382 ¶ 92, 26 P.3d at 1153.
30
12. 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, and
Article 2, Section 15 of the Arizona Constitution. Arizona’s
death penalty law cannot constitutionally presume that death is
the appropriate default sentence. This Court rejected this
argument in State v. Miles, 186 Ariz. 10, 19, 918 P.2d 1028,
1037 (1996).
31