SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-06-0061-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2002-009759
CHRISTOPHER ALLEN HARGRAVE, )
)
Appellant. ) O P I N I O N
________________________________ )
Appeal from the Superior Court in Maricopa County
The Honorable Roland J. Steinle, Judge
REMANDED FOR RESENTENCING ON BURGLARY,
AFFIRMED IN ALL OTHER RESPECTS
________________________________________________________________
TERRY GODDARD, 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
JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Karen M. Noble, Deputy Public Defender
Louise Stark, Deputy Public Defender
Attorneys for Christopher Allen Hargrave
________________________________________________________________
B E R C H, Chief Justice
¶1 Christopher Allen Hargrave was convicted of three
counts of first degree murder, one count of armed robbery, one
count of burglary, and three counts of kidnapping. He was
sentenced to death for each of the murders. In this automatic
appeal, Hargrave raises fourteen claims of error and lists
fifteen additional issues to avoid preclusion. This Court has
jurisdiction pursuant to Article 6, Section 5(3) of the Arizona
Constitution and Arizona Revised Statutes (“A.R.S.”) § 13-4031
(2010).
I. FACTUAL AND PROCEDURAL BACKGROUND1
¶2 Late on the evening of May 19, 2002, Christopher
Hargrave and Steve Boggs drove to a fast food restaurant from
which Hargrave had recently been fired. Hargrave entered
dressed in his work uniform and told the employees that he had
been called into work.
¶3 Armed with a handgun, Boggs followed Hargrave into the
restaurant and ordered the three employees to lie down on the
floor and empty their pockets. Hargrave watched the employees
while Boggs took money from two registers. Hargrave then
assisted Boggs in directing the employees through the cooler
into the freezer where Boggs lined them up and shot them as he
shouted racial epithets. Hargrave also fired the murder weapon
once inside the cooler. He later tried to withdraw money from
an ATM using a bank card belonging to one of the victims.
¶4 A customer who arrived at the restaurant after the
shootings saw victim B.A. on the ground by the back door and
called the police. When police officers arrived, they found the
1
We view the facts in the light most favorable to sustaining
the verdict. State v. Dann, 205 Ariz. 557, 562 n.1, 74 P.3d
231, 236 n.1 (2003).
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body of victim F.J. on the floor near a telephone and the body
of victim K.B. inside the freezer. All three victims died from
their gunshot wounds. Between $200 and $500 was missing from
the cash registers.
¶5 On May 21, 2002, Boggs pawned a .45 caliber handgun at
a shop owned by Hargrave’s girlfriend’s parents, who reported
the transaction to the police. Ballistics tests indicated that
the gun had ejected the shell casings found at the restaurant,
and an analyst concluded that Hargrave was a “major contributor”
to the DNA recovered from the grip of the weapon.
¶6 On June 6, 2002, officers apprehended Hargrave while he
was sleeping at a campsite. Nearby, officers found two
handguns, a shotgun, two assault rifles, boxes of ammunition,
and several documents evidencing Hargrave’s involvement with the
“Imperial Royal Guard,” a white supremacist organization. As
officers arrested him, Hargrave stated that “things would have
been different” if he had been awake when they arrived.
¶7 A jury found Hargrave guilty of three counts of first
degree felony and premeditated murder and all other charges.
The jury found three aggravating factors for each murder:
(1) the murders were committed in the expectation of pecuniary
gain, A.R.S. § 13-751(F)(5) (2010);2 (2) the murders were
2
In 2008, the capital sentencing statutes were renumbered as
A.R.S. §§ 13-751 to -759. 2008 Ariz. Sess. Laws, ch. 301,
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committed in an especially cruel manner, id. § 13-751(F)(6); and
(3) multiple homicides were committed during the offense, id. §
13-751(F)(8).
¶8 Hargrave did not present mitigation during the penalty
phase and the jury determined that he should be sentenced to
death for each murder. The court imposed a death sentence for
each of the murders and concurrent terms of twenty-one years for
the armed robbery, fifteen years for the burglary, and twenty-
one years for each of the three kidnapping counts.
II. DISCUSSION
A. Guilt Phase Issues
1. Prior act evidence
¶9 Hargrave argues on appeal that the trial court erred in
admitting three categories of evidence at trial: (1) evidence
related to his membership in the Imperial Royal Guard (“IRG”),
(2) evidence of his statement to officers during his arrest that
“things would have been different” had he been awake, and
(3) evidence regarding the guns and ammunition recovered from
the campsite. He claims that the evidence was not relevant and
its admission violated Arizona Rule of Evidence 404(b) because
its limited probative value was substantially outweighed by the
danger of prejudice. He also contends that the prosecutor used
§§ 26, 38-41 (2d Reg. Sess.). Because there were no relevant
substantive changes, we cite the current version of the
statutes.
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the evidence for an improper purpose.
¶10 Evidence of a defendant’s prior or subsequent acts is
not admissible “to show that the defendant is a bad person or
has a propensity for committing crimes.” State v. McCall, 139
Ariz. 147, 152, 677 P.2d 920, 925 (1983) (prior acts); see also
State v. Moreno, 153 Ariz. 67, 68, 734 P.2d 609, 610 (App. 1986)
(subsequent acts). Other act evidence may be admitted, however,
for other purposes, such as proving “motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” Ariz. R. Evid. 404(b). The proponent
must establish by clear and convincing evidence that the
defendant committed the act, State v. Terrazas, 189 Ariz. 580,
582, 944 P.2d 1194, 1196 (1997), and the court must then “(1)
find that the act is offered for a proper purpose under Rule
404(b); (2) find that the prior act is relevant to prove that
purpose; (3) find that any probative value is not substantially
outweighed by unfair prejudice; and (4) give upon request an
appropriate limiting instruction,” State v. Anthony, 218 Ariz.
439, 444 ¶ 33, 189 P.3d 366, 371 (2008).
a. IRG evidence
¶11 Hargrave and Boggs had formed the Imperial Royal Guard
(“IRG”), a paramilitary organization that asserted the supremacy
of the white race and espoused negative views of racial
minorities. Boggs served as “Chief of Staff” and Hargrave as
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“Assistant Chief of Staff.” At Hargrave’s campsite, police
discovered Hargrave’s IRG membership application, his oath of
allegiance to the IRG, a binder containing a declaration
describing the IRG’s tenets, and a camouflage jacket bearing his
IRG “Assistant Chief of Staff” name tag.
¶12 The State offered the IRG evidence to establish racial
bias as a potential motive for the crimes. It presented
evidence that all three victims were members of minority groups
and that Boggs had shouted racial epithets during the shootings.
Hargrave argues that the trial court erred in admitting the IRG
evidence because it was not relevant to the crimes charged and
no evidence established that the murders were motivated by
racial bias.
¶13 Because Hargrave did not object to the IRG evidence at
trial,3 we review its admission for fundamental error, which is
“error going to the foundation of the case, error that takes
from the defendant a right essential to his defense, [or] error
of such magnitude that the defendant could not possibly have
3
The State filed a pretrial notice of its intent to admit
evidence of Hargrave’s membership in the IRG. At a subsequent
status conference, Hargrave’s attorney said that he had not read
the State’s notice, but would file a response. Hargrave’s
counsel later withdrew from the case without filing a response.
When the case was assigned to a different judge for trial, the
court ordered the parties to file all pretrial motions twenty
days before trial. Hargrave’s new counsel filed various
pretrial motions, but did not contest the admission of the IRG
evidence in a motion or at trial.
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received a fair trial.” State v. Henderson, 210 Ariz. 561, 567
¶ 19, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142
Ariz. 88, 90, 688 P.2d 980, 982 (1984)). To prevail under this
standard, Hargrave must first establish that an error occurred,
then prove that the error was fundamental in nature and caused
prejudice. Id. at 567 ¶¶ 20, 23, 115 P.3d at 607.
¶14 Hargrave has not established that any error occurred.
Contrary to Hargrave’s argument, motive is relevant in a murder
prosecution. State v. Hunter, 136 Ariz. 45, 50, 664 P.2d 195,
200 (1983). He counters that the State presented evidence of
other motives, such as robbery or retaliation for having been
fired from his job. But the fact that the State may have
evidence of other motives does not preclude the State from
presenting the IRG motive evidence. See Ariz. R. Evid. 404(b);
see also State v. Andriano, 215 Ariz. 497, 503 ¶ 26, 161 P.3d
546, 549 (2007) (finding evidence of defendant’s extra-marital
affair admissible under Rule 404(b) to prove motive, even though
less prejudicial evidence of motive existed).
¶15 Citing Dawson v. Delaware, 503 U.S. 159 (1992),
Hargrave claims that his affiliation with the IRG was protected
by the First Amendment. In Dawson, the prosecution attempted to
introduce evidence of the defendant’s Aryan Brotherhood and
swastika tattoos during the penalty phase of his murder trial.
503 U.S. at 161. The Court held that the First and Fourteenth
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Amendments prohibited the introduction of this evidence because
it was not relevant to the capital sentencing proceedings. Id.
at 160.
¶16 Here, in contrast, evidence of Hargrave’s affiliation
with the IRG was relevant to establish a motive for the crimes
and its probative value was not substantially outweighed by the
prejudice it might have caused. Hargrave has not satisfied his
initial burden of establishing that the trial court committed
any error in admitting this evidence.4
b. Statements to police officers
¶17 Hargrave argues that the trial court erred in admitting
his post-arrest comments that “things would have been different”
if he had been awake when the officers arrived and that “the
police were lucky that he was asleep” when they took him into
custody. He contends that the statements served no proper
purpose, were not connected to the murders, and allowed jurors
to speculate that he was a violent person. The prosecutor
offered the statements to show a consciousness of guilt.
¶18 Because Hargrave did not object to these statements at
trial, we review for fundamental error. Henderson, 210 Ariz. at
4
Hargrave also challenges the authenticity of the IRG
documents, noting that the handwriting was not identified as
his. Hargrave did not raise this objection at trial, see Estate
of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 286 ¶ 9,
9 P.3d 314, 317 (2000) (applying contemporaneous objection
rule), and does not persuasively argue that any error in this
respect was fundamental.
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567 ¶ 19, 115 P.3d at 607.
¶19 There was no fundamental error. Hargrave’s statements
did not go to the foundation of his case, cause him prejudice,
or otherwise deprive him of a fair trial or any right essential
to his defense. See id. at 568 ¶ 24, 115 P.3d at 608. The
State produced substantial evidence of Hargrave’s participation
in the murders, including eyewitness testimony, Hargrave’s DNA
on the murder weapon, a photograph of Hargrave attempting to use
victim F.J.’s ATM card after the murders, and Hargrave’s own
admission of his culpability in planning and implementing the
armed robbery.
c. Guns and ammunition
¶20 Hargrave objected to the admission of guns, boxes of
ammunition, and shell casings found at his campsite, arguing
that the evidence was not relevant because the guns and
ammunition were not used during the murders. The court
overruled Hargrave’s objection, finding the evidence of
Hargrave’s arrest with Boggs’s guns relevant to rebut Hargrave’s
claim that he did not know that Boggs would have a gun during
the restaurant robbery.5
5
Citing State v. Uriarte, 194 Ariz. 275, 282 ¶ 36, 981 P.2d
575, 582 (App. 1998), Hargrave claims that no clear and
convincing evidence shows that he “took any affirmative action
to possess the guns”; Boggs left him at the campsite with the
weapons and without transportation. But in Uriarte, the court
found error in the admission of evidence that was largely
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¶21 We review the trial court’s evidentiary ruling for
abuse of discretion. State v. Aguilar, 209 Ariz. 40, 49 ¶ 29,
97 P.3d 865, 874 (2004).
¶22 In State v. Ellison, we found that the trial court did
not abuse its discretion in admitting evidence that a defendant
possessed a gun before and after the charged crime because it
made the defendant’s story less plausible. 213 Ariz. 116, 133
¶ 58, 140 P.3d 899, 915 (2006). The evidence here was similarly
relevant to rebut Hargrave’s main defense – that he did not know
Boggs would have a gun. The trial judge did not abuse his
discretion in admitting evidence of the campsite guns and
ammunition.6
uncorroborated and unsupported. Id. Here, in contrast, the
State proved by clear and convincing evidence that Hargrave
possessed the campsite guns.
6
Several of the guns recovered at the campsite belonged to
W.D., the owner of the pawn shop where Boggs pawned the murder
weapon. Hargrave argues that in presenting the guns and
ammunition evidence, Detective Vogel violated the trial court’s
order not to mention a burglary of W.D.’s residence. The
reference occurred in response to a juror’s question asking how
officers learned that the .45 was at the pawn shop. The
detective responded that the shop owners mentioned the gun when
they contacted the sheriff’s office regarding a burglary of
their home. Hargrave did not object to the question or the
response. This fleeting mention of the burglary does not
constitute fundamental error. Moreover, Hargrave’s briefs did
not set forth any argument that this statement caused reversible
error. See State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382,
1390 (1989) (noting that failure to “present significant
arguments, supported by authority,” “usually constitutes
abandonment and waiver of that claim”).
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d. Limiting instruction
¶23 Hargrave asserts that the trial court erred in its
final limiting instruction regarding 404(b) evidence.7 The State
concedes that the trial court erred in instructing the jurors
that they could consider this evidence as demonstrating that
Hargrave had a character trait that predisposed him to commit
7
The instruction stated:
Evidence of other acts has been presented. You
may consider these acts only if you find that the
State has proved by clear and convincing evidence that
the defendant committed these acts. You may only
consider this act to establish the defendant’s motive,
opportunity, intent, preparation, plan, knowledge,
identity or absence of mistake or accident. You must
not consider this act to determine that the defendant
acted in conformity with the defendant’s character or
character trait and therefore committed the charged
offense.
You may consider this evidence in determining
whether the defendant had a character trait that
predisposed him to commit the crimes charged. You may
determine that the defendant had a character trait
that predisposed him to commit the crime charged only
if you decide that the State has proved by clear and
convincing evidence that:
1. The defendant committed these acts; and
2. These acts show the defendant’s
character predisposed him to commit the
crimes charged.
You may not convict the defendant of the crimes
charged simply because you find that he committed
these acts, or that he had a character trait that
predisposed him to commit the crime charged. Evidence
of these acts does not lessen the State’s burden to
prove the defendant’s guilt beyond a reasonable doubt
[sic] the crimes charged.
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the crimes. Such a limiting instruction is properly given when
the jury hears evidence regarding sexual propensity, Ariz. R.
Evid. 404(c), not evidence of prior acts, Ariz. R. Evid. 404(b).
Hargrave did not object to this erroneous instruction at trial,
however, and so we review for fundamental error. Henderson, 210
Ariz. at 567 ¶ 19, 115 P.3d at 607.
¶24 The erroneous instruction did not deny Hargrave a fair
trial or a right essential to his defense. Despite the error,
the jury instruction, taken as a whole, properly advised jurors
of the State’s burden to prove guilt beyond a reasonable doubt
and instructed them not to use the prior act evidence as a basis
for convicting Hargrave of the charges. Hargrave has not met
his burden of establishing that this error constituted
fundamental error.
¶25 There was also either an error in the trial court’s
reading of the limiting instruction or in the court reporter’s
transcription of the instruction. The transcript reads: “You
must [sic] consider this act to determine that the defendant
acted in conformity with the defendant’s character or character
trait and therefore committed the charged offense.” The “[sic]”
notation, which appears in the original transcript, could be
interpreted in one of two ways: Either the judge misspoke and
the court reporter noted the error, or the court reporter did
not hear what was said and included the notation to fill the
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blank in the transcript.
¶26 Hargrave has not met his burden of persuading us that
the trial judge gave an improper instruction. It is highly
unlikely that such an improper instruction, if given, would have
escaped the notice of the trial judge, the prosecutor, and
defense counsel. Moreover, the jurors had with them when they
deliberated an instruction that correctly stated the law on this
issue. Viewing the jury instructions as a whole, we cannot
conclude that the error in reading the limiting instruction, if
one occurred, rises to the level of fundamental error.
2. Armed robbery indictment
¶27 Hargrave argues that the armed robbery indictment was
duplicitous because it charged more than one crime in the same
count and erroneous because it charged armed robbery of the
restaurant. He therefore urges us to vacate the armed robbery
conviction and the felony murder convictions predicated on it.
¶28 A defendant must challenge a defect in a charging
document before trial. Ariz. R. Crim. P. 13.5(e), 16.1(c).
This requirement affords the state an opportunity to cure a
defective charging document. State v. Anderson (Anderson II),
210 Ariz. 327, 336 ¶ 17, 111 P.3d 369, 378 (2005). Because
Hargrave failed to challenge the indictment before trial, he has
waived this issue unless he can establish fundamental error.
See Henderson, 210 Ariz. at 567-68 ¶¶ 19-20, 115 P.3d at 607-08.
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¶29 We require each offense alleged against a defendant to
be charged in a separate count. State v. Whitney, 159 Ariz.
476, 480, 768 P.2d 638, 642 (1989); see also Ariz. R. Crim. P.
13.2, 13.3. Duplicitous indictments, which charge more than one
crime in the same count, are prohibited because “they fail to
give adequate notice of the charge to be defended, they present
a hazard of a non-unanimous jury verdict, and they make a
precise pleading of prior jeopardy impossible in the event of a
later prosecution.” Whitney, 159 Ariz. at 480, 768 P.2d at 642.
A single count is permissible, however, if several transactions
are “merely parts of a larger scheme.” Id. (quoting State v.
Via, 146 Ariz. 108, 116, 704 P.2d 238, 246 (1985)).
¶30 The single verdict form for armed robbery in this case
did not specify the individuals harmed or the property taken.
Hargrave thus claims that we cannot know whether the jurors
convicted him of the nonexistent crime of armed robbery of the
restaurant, or whether the jury returned a non-unanimous verdict
on armed robbery by convicting him of taking different property
from different victims.
¶31 We have rejected a similar argument. In State v. Van
Vliet, the defendant also argued that the information was
erroneous because it alleged armed robbery of a grocery store.
108 Ariz. 162, 163, 494 P.2d 34, 35 (1972). We upheld the
conviction, observing that “[a]n information is sufficient if it
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clearly sets forth the offense in such manner as to enable a
person of common understanding to know what is intended.
Simplicity rather than technicality is the goal to be achieved.”
Id. Here, the indictment also adequately conveyed the offense
charged. Moreover, it did not charge robbery of the restaurant,
but instead named the three victims.
¶32 We have also rejected the argument that not specifying
the victim or property in an armed robbery count requires
reversal, see id., concluding that proper jury instructions and
verdict forms may cure an allegedly defective charging document,
see State v. Axley, 132 Ariz. 383, 392, 646 P.2d 268, 277
(1982). Hargrave did not object to the armed robbery jury
instruction and verdict forms and has failed to demonstrate
fundamental error.
3. Robbery lesser-included offense instruction
¶33 Hargrave next argues that the trial court erred by
failing to instruct the jury on the lesser-included offense of
robbery. A lesser-included offense instruction must be given,
if requested, if the jury could find that (1) the state failed
to prove an element of the greater offense, and (2) the evidence
is sufficient to support a conviction on the lesser offense.
State v. Wall, 212 Ariz. 1, 4 ¶ 18, 126 P.3d 147, 151 (2006);
cf. State v. Schad, 163 Ariz. 411, 417, 788 P.2d 1162, 1168
(1989) (not requiring lesser-included offense instruction for
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robbery serving as the predicate for felony murder in a capital
case). With Hargrave’s consent, the trial judge instructed the
jury on armed robbery and theft, but not simple robbery.
Because Hargrave requested a robbery instruction, we review the
trial court’s refusal to give one for abuse of discretion.
State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995).
¶34 A defendant commits robbery “if in the course of taking
any property of another from his person or immediate presence
and against his will, such person threatens or uses force
against any person with intent either to coerce surrender of
property or to prevent resistance to such person taking or
retaining property.” A.R.S. § 13-1902(A) (2010). Armed robbery
includes all these elements, and also requires that the
defendant be “armed with a deadly weapon or a simulated deadly
weapon.” A.R.S. § 13-1904(A)(1) (2010).
¶35 When the defendant is charged as an accomplice, we look
to the accomplice’s intent to aid the main actor. Wall, 212
Ariz. at 4-5 ¶ 20, 126 P.3d at 151-52. Hargrave argues that the
jurors could have found that he did not intend to assist in an
armed robbery because he did not know that Boggs planned to
carry a gun. The evidence shows, however, that Hargrave not
only watched the victims while an armed Boggs obtained money
from the cash registers, but also helped move the victims to the
freezer and fired the murder weapon. Although Hargrave did not
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carry his own weapon during the robbery, he assisted Boggs in
committing the armed robbery knowing that Boggs possessed a
weapon, and he held the weapon and fired it.
¶36 Hargrave requested that the court give a lesser-
included offense instruction either on robbery or theft, noting
that, if the court were to give only one, he preferred an
instruction on theft. The trial court gave a theft instruction,
based on Hargrave’s claim that he and Boggs intended to steal
money from the restaurant while Hargrave distracted the
employees. If, however, the jury found that more than a theft
occurred and that the robbery element of force or threat was
proven, a rational juror could not have found that the State
failed to prove the additional element of armed robbery: the
presence of a weapon. Boggs entered the restaurant brandishing
a gun and Hargrave continued to assist him during the armed
robbery. The evidence thus did not support a lesser-included
offense instruction on simple robbery, and therefore the trial
court did not abuse its discretion in declining to give such an
instruction.
4. False imprisonment lesser-included offense instruction
¶37 Hargrave claims that the trial court erred by failing
to instruct the jury on unlawful imprisonment as a lesser-
included offense of kidnapping. Because Hargrave did not
request a lesser-included offense instruction, we review the
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trial court’s failure to give one only for fundamental error.
State v. Nordstrom, 200 Ariz. 229, 253 ¶ 81, 25 P.3d 717, 741
(2001).
¶38 Unlawful imprisonment, defined as “knowingly
restraining another person,” A.R.S. § 13-1303(A) (2010), is a
lesser-included offense of kidnapping, which is “knowingly
restraining another person with the intent to [i]nflict death,
physical injury or . . . otherwise aid in the commission of a
felony,” A.R.S. § 13-1304(A)(3) (2010). The “distinguishing
element between kidnapping and unlawful imprisonment is the
perpetrator’s state of mind, i.e., whether the unlawful
imprisonment was accompanied with one of the enumerated intents
set out in A.R.S. § 13-1304 so as to elevate the unlawful
imprisonment to kidnapping.” State v. Detrich, 178 Ariz. 380,
383, 873 P.2d 1302, 1305 (1994); see also State v. Bearup, 221
Ariz. 163, 169 ¶ 24, 211 P.3d 684, 690 (2009).
¶39 Hargrave argues that the trial court should have
instructed the jury on false imprisonment because the jury could
have found he did not intend to harm the employees. The
evidence showed, however, that Hargrave intended to “aid in the
commission of a felony” – the robbery – and knew that victims
might be harmed. See A.R.S. § 13-1304(A)(3). He discussed the
robbery plan with Boggs and knew that Boggs “always carrie[d] a
gun.” Boggs had also warned Hargrave that “if it came down to
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it, he would shoot [the employees].” Hargrave watched the
victims as an armed Boggs took money from the cash registers,
opened the door as Boggs marched the victims into the freezer,
and fired the gun as the victims were directed into the freezer.
He assisted Boggs in restraining the victims to aid in the
commission of the armed robbery, which distinguishes kidnapping
from unlawful imprisonment. See id. Hargrave has failed to
demonstrate fundamental error.
5. Non-residential burglary sentence
¶40 The court sentenced Hargrave to fifteen years for third
degree burglary, a dangerous crime. At the time of Hargrave’s
conviction, this crime carried a presumptive sentence of six
years’ imprisonment and a maximum sentence of eight years.
A.R.S. § 13-604(F) (Supp. 2000) (subsequently re-enacted and
renumbered as A.R.S. § 13-704(A) (2010)). The State concedes
that the fifteen-year sentence is unlawful because it falls
outside the statutory range. See State v. House, 169 Ariz. 572,
573, 821 P.2d 233, 234 (App. 1991). We remand Hargrave’s
burglary conviction for resentencing within the statutory range.
B. Aggravation Phase Issues
1. Sufficiency of the evidence to support aggravators
¶41 Hargrave argues that the evidence was insufficient to
prove the (F)(5) pecuniary gain and (F)(6) especially cruel
aggravating factors. These claims are subsumed within our
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independent review and are addressed in section III of this
opinion. See Andriano, 215 Ariz. at 506 n.5, ¶ 41, 161 P.3d at
549 n.5.
2. Constitutionality of (F)(6) especially cruel
aggravating circumstance
¶42 Hargrave argues that the A.R.S. § 13-751(F)(6)
aggravating factor – murder committed in an “especially cruel”
manner – is unconstitutionally vague, incapable of principled
application, and arbitrary and capricious as applied. We review
alleged constitutional violations de novo, State v. McGill, 213
Ariz. 147, 159 ¶ 53, 140 P.3d 930, 942 (2006), and when
possible, construe statutes to uphold their constitutionality,
State v. Cromwell, 211 Ariz. 181, 188 ¶ 38, 119 P.3d 448, 455
(2005).
¶43 The United States Supreme Court has found Arizona’s
(F)(6) aggravating circumstance facially vague, but held that it
may be remedied with appropriate narrowing judicial
constructions. Walton v. Arizona, 497 U.S. 639, 654-56 (1990),
overruled in part by Ring v. Arizona, 536 U.S. 584 (2002); see
also Ellison, 213 Ariz. at 138 ¶ 96, 140 P.3d at 921. We have
approved of jury instructions defining “especially cruel” as
requiring evidence that the victim was conscious during the
violence and that the defendant knew or should have known that
the victim would suffer mental anguish or physical pain.
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Ellison, 213 Ariz. at 139 ¶¶ 98-99, 140 P.3d at 922; Cromwell,
211 Ariz. at 189 ¶ 42, 119 P.3d at 456; Anderson II, 210 Ariz.
at 352-53 n.19, ¶ 111, 111 P.3d at 394-95 n.19. We have also
upheld instructions requiring that the victim experience
“significant uncertainty” about his or her fate. Cromwell, 211
Ariz. at 189 ¶ 42, 119 P.3d at 456; Anderson II, 210 Ariz. at
352-53 n.19, ¶ 111, 111 P.3d at 394-95 n.19.
¶44 Hargrave argues that these limiting interpretations no
longer save the (F)(6) aggravator from unconstitutional
vagueness because juries, rather than judges, now find the
existence of aggravating factors. See A.R.S. § 13-751(E). We
rejected this argument in Cromwell, 211 Ariz. at 189-90 ¶¶ 41-
42, 44, 119 P.3d at 456-57, and Anderson II, 210 Ariz. at 353 ¶¶
112-14, 111 P.3d at 395.
¶45 The instruction here contained the essential narrowing
factor that the defendant either knew or should have known that
his actions would cause the victims mental anguish or physical
pain before death. We upheld a nearly identical instruction in
State v. Tucker, 215 Ariz. 298, 310-11 ¶¶ 30-31, 160 P.3d 177,
189-90 (2007), and find no reason to depart from that decision
now. The only difference between the Tucker instruction and the
one here is that in Tucker, the instruction stated that a crime
is especially cruel if the “Defendant either intended or knew.”
Here, the instruction used the phrase “the defendant either knew
- 21 -
or should have known” that the crime would cause the victims to
experience physical pain or mental anguish. This slight
alteration does not deprive the instruction of the essential
narrowing factor that maintains its constitutionality.
¶46 Hargrave also argues that the (F)(6) instruction is
facially vague because it failed to properly channel the jurors’
discretion by providing clear, objective standards. We have
previously rejected this argument.8 E.g., id.
3. Jury instruction to not consider punishment at the
aggravation phase
¶47 At the aggravation phase of the trial, the judge
instructed the jury that “[i]n reaching your verdicts in this
phase, you are not to consider the possible punishment.”
Hargrave argues that this instruction improperly relieved jurors
of their duty to consider the gravity of their sentencing
decision. Because Hargrave failed to object to this
instruction, we review for fundamental error, see Henderson, 210
8
Hargrave also argues that the aggravator was arbitrarily
and capriciously applied, in violation of the Fifth, Eighth, and
Fourteenth Amendments. He claims that the expansion of the
Gretzler list of factors “destroys the ‘consistency’ that
preserved the constitutional validity of the statute.” In
Gretzler, we established factors to be considered when deciding
if a murder was especially heinous or depraved. State v.
Gretzler, 135 Ariz. 42, 51-52, 659 P.2d 1, 10-11 (1983).
Although the verdict forms indicate that the murders were
committed in an “especially cruel or depraved manner,” the State
did not present evidence of depravity and the jury was not
instructed on depravity. Thus Gretzler is inapplicable. See
id.
- 22 -
Ariz. at 567 ¶ 19, 115 P.3d at 607.
¶48 It is unconstitutional to minimize the importance of a
capital sentencer’s role in imposing the death penalty, Caldwell
v. Mississippi, 472 U.S. 320, 328-29 (1985), or to make remarks
that “improperly describe[] the role assigned to the jury by
local law,” Dugger v. Adams, 489 U.S. 401, 407 (1989). Under
Arizona law, however, the jury does not consider punishment
until the penalty phase of the trial, see A.R.S. § 13-752(F),
and the instruction was therefore appropriate.
¶49 Moreover, during the penalty phase of the trial, the
court clearly and correctly instructed the jurors, “[i]t is now
your duty to determine whether the Defendant should be sentenced
to death or life imprisonment on his convictions for first
degree murder.” The penalty phase instructions conveyed the
gravity of the jurors’ task: “Your decision is not a
recommendation. Your decision will be binding. If your verdict
is that the Defendant should be sentenced to death, the
Defendant will be sentenced to death.” These instructions
adequately informed the jurors, at the appropriate time, of the
gravity of their decision.
C. Penalty Phase Issues
1. Jury instruction regarding penalties applicable if the
death sentence was not imposed
¶50 Hargrave argues that the trial court improperly
- 23 -
instructed the jury at the aggravation and penalty phases of
trial that he could be released after serving twenty-five years
of a life sentence. He claims that telling the jurors that he
could be released made them consider his future dangerousness as
a factor in determining the sentence.
¶51 Because Hargrave failed to object to these
instructions, we review for fundamental error. Ariz. R. Crim.
P. 21.3(c); Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.
¶52 Hargrave relies on Simmons v. South Carolina, in which
the trial court instructed the jury that the defendant could be
released on parole if not sentenced to death. 512 U.S. 154
(1994) (plurality opinion). In Simmons, however, the defendant
was not eligible for parole because he had two prior felony
convictions. Id. at 156. The trial court refused to inform the
jury of the defendant’s ineligibility for parole, despite
Simmons’ repeated requests for the instruction and even after
the jury asked whether he could be released on parole if not
sentenced to death. Id. at 160, 162. Because the prosecution
in Simmons emphasized the defendant’s future dangerousness if
released, the Court found reversible error. Id. at 162.
¶53 In contrast, the instructions here correctly reflected
the statutory potential for Hargrave’s release. See A.R.S.
§ 13-751(A) (providing that a defendant not sentenced to death
or natural life may not be released for twenty-five or thirty-
- 24 -
five years, depending on the age of the victim). Unlike
Simmons, Hargrave was eligible for release after twenty-five
years, as the jury instruction correctly stated. See id.
Hargrave’s argument that he is not likely to actually be
released does not render the instruction legally incorrect. See
State v. Cruz, 218 Ariz. 149, 160 ¶¶ 41-42, 181 P.3d 196, 207
(2008); see also Dann, 220 Ariz. at 373 ¶¶ 123-24, 207 P.3d at
626 (upholding similar instructions as properly conveying the
jury’s sentencing options). The jury instructions correctly
stated the law, did not mislead the jurors about Hargrave’s
possible penalties, or deny Hargrave the benefit of mitigating
evidence.
2. Jury instruction regarding mitigation
¶54 After consulting his attorney, family, and outside
counsel, Hargrave made a considered decision not to present
mitigation evidence during the penalty phase of his trial,
although he chose to allocute. At the conclusion of the penalty
phase, the judge instructed the jury, without objection, as
follows:
Both parties have had an opportunity to present
additional evidence to you in the penalty phase.
However, neither party was required to present
additional evidence in the penalty phase.
. . . .
- 25 -
. . . [T]he defendant had the opportunity to prove the
existence of mitigating circumstances by a
preponderance of the evidence.
The burden of proving the existence of mitigation is
on the defendant.
¶55 Hargrave argues that these instructions improperly
commented on the evidence and erroneously placed a burden on him
to testify. Because Hargrave failed to object, we review his
claim for fundamental error. Henderson, 210 Ariz. at 567 ¶ 19,
115 P.3d at 607.
¶56 There was no error. The instructions given correctly
state the law. Moreover, the trial court also instructed the
jurors that (a) they must not consider the defendant’s choice
not to present mitigating evidence in their deliberations,
(b) they “should give the defendant’s statement [in allocution]
as much weight as [they] feel it deserves under all the facts
and circumstances of this case,” and (c) they could “also
consider any other relevant mitigation evidence presented during
any phase of the trial, even if it was not proposed by either of
the parties.”
D. Post-Trial Issues
1. Adequacy of the record on appeal
¶57 Hargrave argues that the trial record is inadequate to
allow proper appellate review because the trial court held
several unrecorded bench conferences throughout the proceedings.
- 26 -
¶58 During jury selection, the parties held two unrecorded
conferences without objection from the defense. The State
argues that, by failing to object to these conferences, Hargrave
waived any claim of error. We disagree. Hargrave filed a
pretrial motion requesting a record of all trial proceedings,
which the court granted, and he requested a standing objection
to unrecorded bench conferences. See State v. Sharp, 193 Ariz.
414, 421 ¶ 22, 973 P.2d 1171, 1178 (1999).
¶59 During trial, the court held several other unrecorded
bench conferences, despite repeated defense objections. When
defense counsel asked to maintain a standing objection, the
court noted the objection, but observed that it lacked the
equipment to record bench conferences.
¶60 The court then began to make an after-the-fact record
of each unrecorded conference and changed its practice regarding
juror questions. The court’s staff would show counsel the
jurors’ written questions, and if either party objected, the
court would excuse the jury to allow counsel to state the
reasons for any objections on the record. Hargrave argues that
this practice forced him to object in front of the jury, in
violation of Arizona Rule of Criminal Procedure 18.6(e), which
requires that the court provide counsel an “opportunity . . . to
object to such questions out of the presence of the jury.”
Ariz. R. Crim. P. 18.6(e) (emphasis added). The trial court, in
- 27 -
response, invited counsel to “ask for an opportunity to make a
record,” at which point he would excuse the jury so that counsel
could state objections. Hargrave also notes other gaps in the
record such as an unreported bench conference regarding an
exhibit that the court subsequently admitted into evidence.
¶61 The court record must be sufficiently complete to allow
“adequate consideration of the errors assigned.” State v.
Moore, 108 Ariz. 532, 534, 502 P.2d 1351, 1353 (1972) (citing
Draper v. Washington, 372 U.S. 487 (1963)). We have disapproved
of the practice of holding unrecorded bench conferences. State
v. Bay, 150 Ariz. 112, 115, 722 P.2d 280, 283 (1986); State v.
Fletcher, 149 Ariz. 187, 189, 717 P.2d 866, 868 (1986).
Nevertheless, we have never required “the verbatim reporting of
all bench conferences.” State v. Berndt, 138 Ariz. 41, 46, 672
P.2d 1311, 1316 (1983).
¶62 The procedures here, while not ideal, sufficiently
protected Hargrave’s right to have a reviewable record. Despite
failing to record all sidebar conferences, the trial judge did
ensure that an adequate after-the-fact record was made of the
discussions that occurred during each unrecorded conference and,
as to each, he obtained defense counsel’s assent that he had
adequately described the discussions. By this procedure, the
- 28 -
trial court maintained a sufficient record for appeal.9
2. Constitutionality of Arizona’s method of execution by
lethal injection
¶63 Arizona administers the death penalty “by an
intravenous injection of a substance or substances in a lethal
quantity sufficient to cause death, under the supervision of the
state department of corrections.” A.R.S. § 13-757(A) (2010).
Hargrave argues that Arizona’s method of execution by lethal
injection fails to provide procedural safeguards that ensure a
humane execution and is unconstitutionally cruel and unusual.
¶64 We have rejected the claim that Arizona’s method of
execution by lethal injection automatically constitutes cruel
and unusual punishment. See State v. Van Adams, 194 Ariz. 408,
422 ¶ 55, 984 P.2d 16, 30 (1999). Defendants seeking to
challenge the lethal injection protocol must file a petition
pursuant to Arizona Rule of Criminal Procedure 32. Andriano,
215 Ariz. at 510 n.9, ¶ 62, 161 P.3d at 553 n.9.
III. INDEPENDENT REVIEW
¶65 Because Hargrave’s crimes occurred before August 1,
9
Hargrave’s counsel also argues that he did not waive his
client’s presence at the unreported bench conferences. Although
proceedings “held outside of the defendant’s presence are
fraught with danger and should be conducted, if at all, only for
valid reasons and only where the record clearly shows that the
defendant has waived his right to be present,” State v.
McCrimmon, 187 Ariz. 169, 171, 927 P.2d 1298, 1300 (1996),
defense counsel acknowledged at one point below that the
conferences Hargrave did not attend addressed only juror
questions to which counsel did not object.
- 29 -
2002, we independently review the aggravating and mitigating
circumstances and assess the propriety of the death sentences.
A.R.S. § 13-755(A) (2010). In conducting independent review,
“we consider the quality and the strength, not simply the
number, of aggravating and mitigating factors.” State v. Roque,
213 Ariz. 193, 230 ¶ 166, 141 P.3d 368, 405 (2006) (quoting
State v. Greene, 192 Ariz. 431, 443 ¶ 60, 967 P.2d 106, 118
(1998)).
A. Aggravating Circumstances
¶66 The jury found three aggravating factors: (1) Hargrave
committed the crime in expectation of pecuniary gain, A.R.S.
§ 13-751(F)(5), (2) the victims were murdered in an especially
cruel manner, id. § 13-751(F)(6), and (3) multiple homicides
were committed during the same criminal act, id. § 13-751(F)(8).
1. A.R.S. § 13-751(F)(5): Pecuniary gain
¶67 A defendant convicted of first degree murder becomes
“death eligible” if the state proves beyond a reasonable doubt
that he “committed the offense as consideration for the receipt,
or in expectation of the receipt, of anything of pecuniary
value.” A.R.S. § 13-751(F)(5). Pecuniary gain motivates a
crime “if the expectation of pecuniary gain is a motive, cause,
or impetus for the murder and not merely a result of the
murder.” State v. Lamar, 210 Ariz. 571, 574 ¶ 11, 115 P.3d 611,
614 (2005) (quoting State v. Hyde, 186 Ariz. 252, 280, 921 P.2d
- 30 -
655, 683 (1996)).
¶68 The evidence established the pecuniary gain aggravator
beyond a reasonable doubt. Hargrave and Boggs entered the
restaurant planning to steal money, cash was taken from two cash
registers, an attempt to pry open a third register was
unsuccessful, and credit cards and other items were taken from
the victims.
¶69 Citing State v. Milke, 177 Ariz. 118, 127, 865 P.2d
779, 788 (1993), and State v. Styers, 177 Ariz. 104, 115, 865
P.2d 765, 776 (1993), Hargrave argues that the State did not
establish the pecuniary gain aggravator because conflicting
inferences may be drawn from the evidence. The comparisons to
Milke and Styers are unconvincing. In this case, unlike Milke
and Styers, substantial evidence demonstrates Hargrave’s
financial motivation for the murders. He maintained throughout
his interrogation that robbery was the underlying purpose of the
crime. The State’s allegation of racism as an additional motive
does not detract from the pecuniary gain motive, as pecuniary
gain need be only one of the motives for the murders. See State
v. Boggs, 218 Ariz. 325, 340-41 ¶ 75, 185 P.3d 111, 126-27
(2008).
2. A.R.S. § 13-751(F)(6): Especially cruel
¶70 A defendant is eligible for the death penalty if he
commits first degree murder in “an especially heinous, cruel, or
- 31 -
depraved manner.” A.R.S. § 13-751(F)(6). Only one of the three
manners of killing need be shown to establish the aggravating
circumstance. State v. Clark, 126 Ariz. 428, 436, 616 P.2d 888,
896 (1980). Cruelty requires a showing that “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. Trostle, 191 Ariz. 4, 18, 951 P.2d 869, 883
(1997) (citations omitted). Mental anguish “includes a victim’s
uncertainty about her ultimate fate.” State v. Kiles, 175 Ariz.
358, 371, 857 P.2d 1212, 1225 (1993).
¶71 Hargrave argues that the evidence does not prove the
(F)(6) aggravator because he did not actively participate in the
murders and was not present when Boggs shot the victims.
Hargrave’s argument misstates the evidence and minimizes his
participation. In his June 6 interrogation, Hargrave admitted
that he held the freezer door open as the victims were ordered
in at gunpoint, fired the murder weapon in the cooler just
outside of the freezer, assisted in restraining the victims, and
remained in the cooler while the shootings occurred.
¶72 Hargrave compares his case to State v. Soto-Fong, 187
Ariz. 186, 204, 928 P.2d 610, 628 (1996), in which we held that
the state failed to prove the (F)(6) aggravating circumstance
because the record did not establish the events leading up to
the homicides. Unlike the situation in Soto-Fong, ample
- 32 -
evidence supports the finding of cruelty here: Hargrave
admitted that he and Boggs forced the victims to lie down, empty
their pockets, and later march into the freezer with their hands
in the air. In the freezer, Boggs ordered the victims to turn
around and shot them several times in rapid succession. In
contrast to Soto-Fong, the record establishes that the victims
here suffered uncertainty as to their ultimate fate.
¶73 The State also proved beyond a reasonable doubt the
physical cruelty of two of the murders because victims B.A. and
F.J. did not die immediately, but struggled to get help. B.A.
suffered two gunshot wounds to her back, but managed to crawl
from the freezer to the back door of the restaurant. When
police arrived, she was lying on the ground, moaning and begging
for help. F.J. was shot three times in the back, but still
managed to crawl to the phone, dial 911, and “utter[] a few
words.” A trail of his blood leading from the freezer to the
telephone indicated his consciousness after sustaining the
gunshot wounds. This evidence establishes beyond a reasonable
doubt that B.A. and F.J. suffered physical pain, that all three
victims experienced mental suffering, and that Hargrave should
have known that such suffering would occur.
3. A.R.S. § 13-751(F)(8): Other homicides
¶74 To satisfy the A.R.S. § 13-751(F)(8) multiple homicides
aggravating factor, the state must establish that a first degree
- 33 -
murder and at least one other homicide were “temporally,
spatially, and motivationally related, taking place during one
continuous course of criminal conduct.” Dann, 220 Ariz. at 364
¶ 57, 207 P.3d at 617.
¶75 The evidence established this aggravator beyond a
reasonable doubt. The three victims were shot in close
proximity and in rapid succession to facilitate an armed
robbery. The murders therefore had a temporal, spatial, and
motivational relationship that establishes the (F)(8)
aggravator.
B. Mitigating Circumstances
¶76 Hargrave declined to present mitigating evidence at the
penalty phase of the trial. He urges us to consider as
mitigating both his decision to waive presentation of mitigation
evidence and the statutory mitigating circumstances of youth,
impaired mental condition, and relatively minor participation in
the crimes. See A.R.S. § 13-751(G). Hargrave “must prove the
existence of the mitigating circumstances by a preponderance of
the evidence.” Id. § 13-751(C).
1. Lack of mitigation at penalty phase
¶77 Hargrave contends that his decision not to present
mitigation at trial prevents this Court from adequately
reviewing his case. He relies on State v. Cornell, in which the
record did not contain “all of the mitigating evidence and
- 34 -
circumstances that a reasonable investigation and preparation
might have enabled counsel to present to the court and that
might properly have been part of the record.” 179 Ariz. 314,
335-36, 878 P.2d 1352, 1373-74 (1994). In Cornell, however, the
defendant represented himself in the guilt phase of the trial,
and because of his frequent invocation, then waiver, of his
right to represent himself, his sentencing-phase counsel was not
adequately prepared for the sentencing hearing. Id. at 335, 878
P.2d at 1373.
¶78 In contrast, Hargrave’s defense counsel represented him
throughout all phases of the trial. The defense made a
strategic decision not to present mitigation evidence and made a
thorough record regarding the mitigation strategy at the penalty
phase: “[T]his is a decision I have not come to lightly. I
discussed it with . . . several other attorneys and two
mitigation specialists, including my client [and] his family.
Everybody is in[] total agreement about my position.” We accord
defense counsel’s strategic decision to not present mitigation
no weight and conclude that it does not impair our ability to
independently review the death sentence.
2. Age
¶79 Hargrave was twenty-one years old at the time of the
murders. Although youth “is entitled to great weight as a
mitigating circumstance,” State v. Gerlaugh, 144 Ariz. 449, 461,
- 35 -
698 P.2d 694, 706 (1985), we also consider the defendant’s
maturity, judgment, intelligence, and involvement in the crime,
State v. Herrera, 174 Ariz. 387, 398, 850 P.2d 100, 111 (1993).
¶80 We discount age as a mitigating factor when the
defendant had a significant criminal record or actively
participated in the murders. State v. Poyson, 198 Ariz. 70, 81
¶ 39, 7 P.3d 79, 90 (2000). Hargrave was substantially involved
in the armed robbery leading to the murders. He helped plan the
robbery, and his uniform and previous employment provided the
means to enter the restaurant. Once inside, Hargrave assisted
Boggs in restraining the victims and moving them to the freezer
where they were eventually shot, and Hargrave fired the murder
weapon at least once.
¶81 Hargrave also had a significant juvenile criminal
record. By the time he was seventeen, he had already been
adjudicated regarding eleven complaints, including charges for
aggravated assault, burglary, and theft. We therefore give
little weight to Hargrave’s age as a mitigating circumstance.
3. Minor participation
¶82 A mitigating circumstance exists if a “defendant was
legally accountable for the conduct of another . . . but his
participation was relatively minor, although not so minor as to
constitute a defense to prosecution.” A.R.S. § 13-751(G)(3).
Hargrave argues that he was not the shooter and did not intend
- 36 -
to harm any of the victims when he entered the restaurant. The
evidence shows, however, that Hargrave was not a minor
participant. He helped plan and execute the robbery, using his
work uniform to gain entry to the restaurant, even though Boggs
had provided advance notice that he was prepared to shoot the
employees “if it came down to it.” Hargrave has not established
by a preponderance of the evidence the mitigating circumstance
of minor participation. See Bearup, 221 Ariz. at 175 ¶ 63, 211
P.3d at 696 (finding defendant a major participant even though
he did not strike the death blows).
4. Mental impairment
¶83 Hargrave argues that his “capacity to appreciate the
wrongfulness of his conduct or to conform his conduct to the
requirements of law was significantly impaired, but not so
impaired as to constitute a defense to prosecution.” A.R.S.
§ 13-751(G)(1) (listing statutory mitigating circumstance of
impaired mental health). He asks us to consider that the court
originally found him incompetent to stand trial and committed
him to the Arizona State Hospital to restore his competency.
After Dr. Jason Lewis, a psychologist for the Restoration to
Competency Program, concluded that Hargrave was competent to
stand trial and had “malingered symptoms of psychosis and
ignorance of the legal system,” the trial court found that
Hargrave had been restored to competency.
- 37 -
¶84 In various examinations, Hargrave reported different
information regarding his educational background and mental
health history. He claimed to have attended college in some
interviews; in others, he said he had only a GED-level
education. In some interviews, he claimed to have auditory
hallucinations, but did not report this symptom in other
interviews. Dr. Lewis observed that “[t]he gross differences in
the . . . reports of symptoms and history are suggestive of
malingering.” Indeed, all four of the mental health
professionals who evaluated Hargrave found actual malingering or
the possibility of malingering.
¶85 Thus, even if we were to consider this mental health
evidence, we do not find it sufficiently mitigating to call for
leniency.
C. Propriety of the Death Sentences
¶86 The State established the (F)(5) “pecuniary gain”
aggravator, the cruelty prong of the (F)(6) “cruel, heinous, or
depraved” aggravator, and the (F)(8) “multiple murders”
aggravator, which receives “extraordinary weight.” State v.
Hampton, 213 Ariz. 167, 185 ¶ 90, 140 P.3d 950, 968 (2006).
Under the circumstances of this case, we do not find the
mitigating evidence sufficiently substantial to warrant leniency
and affirm the three death sentences imposed by the superior
court. See A.R.S. § 13-755(B).
- 38 -
IV. CONCLUSION
¶87 For the foregoing reasons, we affirm Hargrave’s
convictions and death sentences, and remand for resentencing on
the burglary conviction.
_______________________________________
Rebecca White Berch, Chief Justice
CONCURRING:
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
W. Scott Bales, Justice
______________________________________
A. John Pelander, Justice
- 39 -
APPENDIX10
Issues Raised to Avoid Federal Preclusion
For purposes of federal review, Hargrave raises the
following fifteen challenges to the constitutionality of
Arizona’s death penalty scheme to avoid preclusion:
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, 428 U.S. 280, 304. The
failure to allow this 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. U.S. Const. Amends. VIII, XIV; Contra State
v. McGill, 213 Ariz. 147, 161, ¶ 54, 140 P.3d 930, 944 (2006).
2. Aggravating factors under A.R.S. § 13-703(F) are
elements of capital murder and must be alleged in an indictment
and screened for probable cause. The State’s failure to allege
an element of a charged offense in the grand jury indictment —
the aggravating factors making the Defendant death eligible — is
a fundamental defect that renders the indictment
constitutionally defective under U.S. Const. Amends. V, VIII,
XIV; Ariz. Const. Art. II, §§ 1, 4, 13, 15, 23, 24. See United
States v. Chesney, 10 F.3d 641 (9th Cir., 1993); Apprendi v. New
Jersey, 530 U.S. 466 (2000). Contra McKaney v. Foreman, 209
Ariz. 268, 100 P.3d 18 (2004).
3. Ex post facto laws are unconstitutional and
prohibited. U.S. Const. Art. 1, § 10, Clause 1, Ariz. Const.
Art. II, § 25; State v. Noble, 171 Ariz. 171, 173, 829 P.2d
1217, 1219 (1992). Application of the new death penalty to
Defendant constitutes an impermissible ex post facto application
of a new law. Rejected in Ring III, 204 Ariz. at 547, ¶ 23.
4. Allowing victim impact evidence at the penalty phase
violated Defendant’s constitutional rights. U.S. Const. Amends.
V, VI, VIII, XIV; Ariz. Const. Art. II, §§ 1, 4, 13, 15, 23, 24.
Contra Lynn v. Reinstein, 205 Ariz. 186, 68 P.3d 412 (2003);
State ex rel. Thomas v. Foreman, 211 Ariz. 153, 118 P.3d 1117
(App. 2005).
10
The Appendix is taken verbatim from Hargrave’s list of
issues raised to avoid preclusion.
- 40 -
5. 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 mandates defendants to prove
their lives should be spared violating U.S. Const. Amends. V,
VI, VIII, XIV; Ariz. Const. Art. II, § 15; Contra State v.
Pandeli, 200 Ariz. 365, at 382, ¶ 92, 26 P.3d 1136, at 1153
(2002), vacated on other grounds, 536 U.S. 953 (2002).
6. Arizona’s death penalty scheme does not sufficiently
channel the sentencing jury’s discretion. Aggravating
circumstances should narrow the class of persons eligible for
the death penalty and reasonably justify the imposition of a
harsher penalty. A.R.S. § 13-703.01 is unconstitutional because
it provides no objective standards to guide the jury in weighing
the aggravating and mitigating circumstances. The broad scope
of Arizona’s aggravating factors encompasses nearly anyone
involved in a murder, violating U.S. Const. Amends. VIII, XIV;
Ariz. Const. Art. II, § 15; Contra Pandeli, 200 Ariz. 365, 382,
¶ 90.
7. The trial court improperly omitted from the penalty
phase instructions words to the effect that jurors may consider
mercy or sympathy in deciding the value to assign the mitigation
evidence. Instead it told them to assign whatever value the
jury deemed appropriate and not to be influenced by mere
“sentiment” or by prejudice in determining these facts.
(I,378A). This error limited the mitigation the jury could
consider violating U.S. Const. Amends. V, VI, VIII, XIV; Ariz.
Const. Art. II, §§ 1, 4, 15, 23, 24; Contra State v. Carreon,
210 Ariz. 54, 70-72, ¶¶ 81-87, 107 P.3d 900, 916-918 (2005).
8. The death penalty is cruel and unusual under any
circumstances and violates U.S. Const. Amends. VIII, XIV; Ariz.
Const. Art. II, § 15; Contra State v. Harrod, 200 Ariz. 309,
320, ¶ 59, 26 P.3d 492, 503 (2001), vacated on other grounds,
536 U.S. 953 (2002).
9. The death penalty is irrational and arbitrarily
imposed, serving no purpose not adequately addressed by life in
prison, in violation of the defendant’s right to due process
under the Fourteenth Amendment to the United States Constitution
and Article 2, §§ 1 and 4 of the Arizona Constitution. Contra
Pandeli, 200 Ariz. 365, 382, ¶ 88. See also State v. Beaty, 158
Ariz. 232, 247, 762 P.2d 519, 534 (1988).
- 41 -
10. The prosecutor’s discretion to seek the death penalty
has no standards violating U.S. Const. Amends. VIII, XIV; Ariz.
Const. Art. II, §§ 1, 4, 15. Contra Sansing, 200 Ariz. 347,
361, ¶ 46, vacated on other grounds by Ring II, 536 U.S. at 584.
11. Arizona’s death penalty is applied so as to
discriminate against poor, young, and male defendants in
violation of Ariz. Const. Art. II, §§ 1, 4, 13. Contra Sansing,
200 Ariz. at 361, ¶ 46. The U.S. 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. at 570.
Summarily, finding that a juvenile is no longer beset by those
same differences simply because he has reached 18 years
disregards “the concerns expressed in Furman that the penalty of
death not be imposed in an arbitrary or capricious manner.” See
Gregg, 428 U.S. 153. Because “the line at 18” is arbitrary and
capricious, execution by lethal injection of 21-year-old
Christopher is cruel and unusual punishment that is
fundamentally unfair violating U.S. Const. Amends. V, VIII, XIV;
Ariz. Const. Art. II §§ 4, 15, 24.
12. Proportionality review serves to identify which cases
are above the “norm” of first-degree murder, narrowing the class
of defendants who are eligible for death. The absence of
proportionality review of death sentences in Arizona denies
capital defendants due process of law and equal protection
amounting to cruel and unusual punishment in violation of U.S.
Const. Amends. V, VIII, XIV; Ariz. Const. Art. II, § 15; Contra
Harrod, 200 Ariz. at 320, ¶ 65.
13. 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 t[sic] U.S. Const. Amends. VIII, XIV; Ariz.
Const. Art. II, § 15. Arizona’s death penalty law cannot
constitutionally presume that death is the appropriate default
sentence. Contra State v. Miles, 186 Ariz. 10, 19, 918 P.2d
1028, 1037 (1996).
14. Arizona’s death penalty scheme is unconstitutional
because it does not require the sentencer to find beyond a
reasonable doubt that aggravating circumstances outweigh the
accumulated mitigating circumstances, violating U.S. Const.
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Amends. V, VIII, XIV; Ariz. Const. Art. II §§ 4, 15. State v.
Poyson, 198 Ariz. 70, 83, 7 P.3d 79, 92 (2000).
15. The death penalty is the irreversible denial of human
rights. The Eighth Amendment “draw’[s] [sic] its meaning from
evolving standards of decency that mark the progress of a
maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958); see
also, Roper, 543 U.S. 551. The international community of
nations has evolved to a state of maturity that abolishes the
death penalty. Today, the majority of nations have abolished
the death penalty. Amnesty International, Facts and Figures on
the Death Penalty (January 1, 2006). The Universal Declaration
of Human Rights, GA Res. 217A (III), U.N. GAOR, 3d Sess. Art. 3,
U.N. Doc. A/810 (1948), provides that “Everyone has the right to
life, liberty, and security of person.” The death penalty
violates the Universal Declaration of Human Rights.
Christopher’s death sentence not only violates the Eighth and
Fourteenth Amendments of the U.S. Constitution but international
law as the majority of civilized nations bar the death penalty.
This Court previously held that the death penalty is not
unconstitutional or violative of international law. State v.
Ross, 180 Ariz. 598, 602, 886 P.2d 1354, 1358 (1994). Hargrave
disagrees.
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