State v. Garcia

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-07-0438-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2002-016160A
ALFREDO LUCERO GARCIA, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable John R. Ditsworth, Judge

AFFIRMED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Amy Pignatella Cain, Assistant Attorney General
Jeffrey A. Zick, Assistant Attorney General
Attorneys for State of Arizona

DAVID GOLDBERG, ATTORNEY AT LAW Fort Collins, CO
By David Goldberg
Attorney for Alfredo Lucero Garcia
________________________________________________________________

B A L E S, Justice

¶1 Alfredo Lucero Garcia was convicted of armed robbery

and first degree murder and sentenced to death for the murder.

We have jurisdiction over this mandatory appeal under Article 6,

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

Statutes (“A.R.S.”) section 13-4031 (2001).

1
 FACTUAL AND PROCEDURAL BACKGROUND1

¶2 On the afternoon of May 21, 2002, Daniel Anderson was

tending bar at Harley’s Club 155. Steven Johnson, the bar’s

owner, was talking with Anderson. Garcia entered and asked to

use the restroom; they directed him toward the rear of the bar,

where there was also a back door. Shortly thereafter, Johnson

went to the rear of the bar and began fixing a broken ATM.

Anderson followed and they continued talking. Johnson kneeled

beside the ATM with a stack of $20 bills.

¶3 Garcia suddenly burst through the back door and

shouted “drop the money.” Directly behind Garcia was James

Taylor Sheffield, who was crouching and carrying a gun. Johnson

stood, threw the $20 bills on the ground, and said “just get

out, get out of here.” Garcia pushed Johnson against the wall.

Anderson stood “frozen” until Johnson looked at him and said

“get out of here.” Anderson ran into the bar’s office, pushed

an alarm button, and then escaped. He heard a gunshot before

entering the office and heard a scuffling sound followed by a

second gunshot as he fled.

¶4 Anderson went to another bar and called the police.

1
Except in our independent review of the death sentence, we
view the facts in the light most favorable to sustaining the
jury’s verdict. See State v. Garza, 216 Ariz. 56, 61 n.1, 163
P.3d 1006, 1011 n.1 (2007). 

2
Upon arriving at Harley’s, police found Johnson’s body outside

the back door and $20 bills scattered nearby. Police also

viewed video recordings from bus security cameras on the

afternoon of Johnson’s murder. The recordings showed Garcia and

Sheffield boarding a bus near the crime scene and later getting

off at the same stop. The investigation ultimately led police

to arrest Garcia on June 1 and Sheffield on June 6, 2002.

¶5 Garcia and Sheffield were each indicted on one count

of first degree murder and one count of armed robbery; their

trials were later severed. On November 13, 2007, a jury found

Garcia guilty on both counts. After learning of possible juror

misconduct, the trial court empanelled a new jury for the

aggravation and penalty phases. The second jury found that

Garcia was a major participant in the felony and was recklessly

indifferent to Johnson’s life. This jury also found two

aggravators: Garcia had been previously convicted of a serious

offense, see A.R.S. § 13-751(F)(2) (Supp. 2009); and he had

committed first degree murder for pecuniary gain, see A.R.S. §

13-751(F)(5).2 Concluding there was no mitigation sufficiently

substantial to call for leniency, the jury determined that

2
Arizona recently renumbered its capital sentencing statutes
to A.R.S. §§ 13-751 to -759 (Supp. 2009). 2008 Ariz. Sess.
Laws, ch. 301, §§ 26, 38-41 (2d Reg. Sess.). This opinion cites
the current version of the statutes.

3
Garcia should be sentenced to death.

DISCUSSION

I. Suggestive Identification

¶6 Garcia challenges the trial court’s denial of his

motion to suppress Anderson’s pretrial and in-court

identifications. Cf. State v. Dessureault, 104 Ariz. 380, 384,

453 P.2d 951, 955 (1969) (outlining procedures for hearing). In

our review, we consider only the evidence presented at the

suppression hearing and defer to the trial court’s factual

findings unless clearly erroneous. State v. Moore, 222 Ariz. 1,

7 ¶ 17, 213 P.3d 150, 156 (2009). The “ultimate question of the

constitutionality of a pretrial identification is, however, a

mixed question of law and fact,” which we review de novo. Id.

¶7 On the day of the shooting, Anderson gave Detective

Sandra Rodriguez a detailed description of the first man to

enter the bar. Three days later, however, Anderson did not

identify Garcia when shown a photographic lineup. That evening,

the police department gave local TV stations copies of pictures

from the bus security camera showing Garcia and Sheffield.

Neither had yet been apprehended. The police contacted Anderson

and other witnesses and told them to avoid watching any

television coverage of the crime. Anderson, however, later saw

the bus photographs in a reward flier that was neither created

nor distributed by the police.
4
¶8 On August 31, 2007, the trial court held a Dessureault

hearing at which Anderson identified Garcia as one of the men

who had entered Harley’s. In denying Garcia’s motion to

suppress this identification and any prospective in-court

identification, the trial court concluded that the photographic

lineup was not unduly suggestive and that the reward flier had

not impermissibly tainted Anderson’s identifications because the

police were not responsible for the flier.

¶9 The trial court did not err in denying Garcia’s motion

to suppress. Garcia does not challenge the trial court’s

determination that the photographic lineup was not unduly

suggestive. With regard to the flier, the trial court properly

first considered whether the State was sufficiently responsible

for the reward flier to trigger due process protection. State

v. Williams, 166 Ariz. 132, 137, 800 P.2d 1240, 1245 (1987); see

also State v. Prion, 203 Ariz. 157, 160 ¶ 14, 52 P.3d 189, 192

(2002). The “due process clause does not preclude every

identification that is arguably unreliable; it precludes

identification testimony procured by the state through unduly

suggestive pretrial procedures.” Williams, 166 Ariz. at 137,

800 P.2d at 1245.

¶10 Detective Rodriguez unequivocally testified that the

police were not responsible for the reward flier. The flier was

not introduced at the hearing, nor did any testimony identify
5
who created the flier; however, Detective Rodriguez speculated

that whoever created the flier may have obtained the bus

photographs from newspapers or online sources after the police

released them to local TV stations.

¶11 That some unidentified third party may have used

police-released photographs to create and distribute the flier

does not constitute state action. See Prion, 203 Ariz. at 160

¶ 15, 52 P.3d at 192 (holding that photograph of defendant on

cover of periodical did not trigger due process concerns because

not the result of state action); State v. Nordstrom, 200 Ariz.

229, 241 ¶ 24, 25 P.3d 717, 729 (2001) (holding that when “the

media, rather than the State, allegedly tainted [the witness’s]

identification of the defendant,” the “state action requirement

of the Fourteenth Amendment [could not] be established,” making

“due process analysis . . . inapposite”).

¶12 Garcia argues that even in the absence of state

action, the trial court should have analyzed the reliability of

Anderson’s identification under State v. Atwood, 171 Ariz. 576,

603, 832 P.2d 593, 620 (1992) (stating that “unnecessarily

suggestive government identification procedures are [not] the

sine qua non of due process concerns”). We, however, explicitly

rejected this argument in Nordstrom, 200 Ariz. at 241 ¶ 25, 25

P.3d at 729 (disapproving Atwood in this respect and reiterating

that “[o]nly identification evidence allegedly tainted by state
6
action must meet . . . reliability standard[s]”).

II. Jury Selection Issues

A. Case-specific Questioning

¶13 Garcia argues that by allowing the State to ask

prospective jurors questions that reflected case-specific facts,

the trial court allowed the State to pack the jury with jurors

who would impose the death penalty in his case. We “review a

trial court’s rulings on voir dire of prospective jurors for

abuse of discretion.” State v. Glassel, 211 Ariz. 33, 45 ¶ 36,

116 P.3d 1193, 1205 (2005).

¶14 During voir dire for the first jury, the State said

that there would be a question whether Garcia was the actual

shooter and asked some prospective jurors if they could consider

imposing a death sentence on a non-shooter. After the trial

court excluded two prospective jurors who indicated that they

might not be able to consider a death sentence in these

circumstances, Garcia moved to preclude the State from asking

jurors if the specific facts of Garcia’s case would prevent them

from imposing death. Although the State said it would ask

questions that did not directly involve the facts of the case,

it subsequently presented prospective jurors with several

hypothetical situations that closely mirrored the facts of

Garcia’s case.

¶15 In reviewing the qualification of jurors in capital
7
cases, we have rejected efforts by defense counsel to elicit how

prospective jurors will vote based on specific facts. See State

v. Smith, 215 Ariz. 221, 231 ¶ 42, 159 P.3d 531, 541 (2007)

(concluding that trial court did not abuse its discretion by

refusing defendant’s request to ask jurors if they would

automatically impose death upon finding specific aggravators);

State v. Johnson, 212 Ariz. 425, 434-35 ¶¶ 29-35, 133 P.3d 735,

744-45 (2006) (concluding that trial court did not abuse its

discretion by refusing defendant’s request to ask jurors whether

they regarded specific factors as mitigation). Garcia argues

that the trial court here impermissibly allowed the State to

question jurors in a manner contrary to Smith and Johnson.

¶16 The trial court did not abuse its discretion in

allowing the State to ask prospective jurors if they could

consider imposing a death sentence if a defendant had not

actually shot the victim. Given the nature of this case, these

questions properly probed beyond abstract juror views on capital

punishment. See United States v. Fell, 372 F. Supp. 2d 766, 769

(D. Vt. 2005) (noting that in some cases, “highly general

questions may not be adequate to detect specific forms of juror

bias,” therefore, “the parties should be allowed to ask more

specific questions to investigate potential bias”). And, unlike

the rejected questions in Smith and Johnson, the State never

asked jurors to precommit to a specific position; rather, it
8
merely asked jurors if they could consider the death penalty in

circumstances in which it is permitted under Arizona law. Cf.

United States v. Johnson, 366 F. Supp. 2d 822, 845 (N.D. Iowa

2005) (stating that a juror’s willingness to consider life or

death “commits a juror to no other position than fair

consideration of the appropriate penalty in light of all of the

facts and the court’s instructions”).

B. Dismissal of Juror O.

¶17 Garcia also argues that the trial court, over his

objection, erroneously struck a “life-scrupled” juror because of

his views on the death penalty. “We review a trial court’s

decision . . . to strike jurors for cause for abuse of

discretion.” Glassel, 211 Ariz. at 47 ¶ 46, 116 P.3d at 1207.

¶18 During defense counsel’s questions, Juror O. stated

that “I don’t know if I can make the decision to vote for the

death penalty. I don’t know if I can say yes to death. I can’t

— I don’t know if I can do that. I am very conflicted about

it.” After further questioning, Juror O. said that he thought

he could vote for death “if the State meets its burden beyond a

reasonable doubt regarding the law and the facts.” However,

when questioned by the State, Juror O. later stated that he was

not sure he could vote for death.

¶19 The trial court did not abuse its discretion in

striking Juror O. Although Juror O. said at one point that he
9
could follow the law, he also testified that he was “not

positive” that he could vote for death, would “heavily lean” in

favor of life, and that it would be “almost impossible” for him

to vote for death. “Even if a juror is sincere in his promises

to uphold the law, a judge may still reasonably find a juror’s

equivocation ‘about whether he would take his personal biases

into the jury room’ sufficient to substantially impair his

duties as a juror, allowing a strike for cause.” State v.

Ellison, 213 Ariz. 116, 137 ¶ 89, 140 P.3d 899, 920 (2006)

(quoting Glassel, 211 Ariz. at 48 ¶ 49, 116 P.3d at 1208).

Here, the trial court could have reasonably concluded that Juror

O.’s performance would be substantially impaired by his feelings

about capital punishment. See State v. Montaño, 204 Ariz. 413,

422-23 ¶¶ 38-39, 65 P.3d 61, 70-71 (2003).

C. Batson Challenge

¶20 Garcia argues that the trial court erred during

selection of the second jury by denying his Batson challenge to

the State’s strike of Juror R., a woman with a Hispanic surname

who had limited education and difficulty reading English.

¶21 The exclusion of a potential juror on the basis of

race violates the Equal Protection Clause of the Fourteenth

Amendment. Batson v. Kentucky, 476 U.S. 79, 89 (1986). Batson

challenges are subject to a three-step analysis: “(1) the party

challenging the strike must make a prima facie showing of
10
discrimination; (2) the striking party must provide a race-

neutral reason for the strike; and (3) if a race-neutral

explanation is provided, the trial court must determine whether

the challenger has carried its burden of proving purposeful

racial discrimination.” State v. Cañez, 202 Ariz. 133, 146

¶ 22, 42 P.3d 564, 577 (2002). “[T]he ultimate burden of

persuasion regarding racial motivation rests with, and never

shifts from, the opponent of the strike.” Purkett v. Elem, 514

U.S. 765, 768 (1995).

¶22 “We review a trial court’s decision regarding the

State’s motives for a peremptory strike for clear error.” State

v. Roque, 213 Ariz. 193, 203 ¶ 12, 141 P.3d 368, 378 (2006). We

defer to the trial court’s ruling, which is based “largely upon

an assessment of the prosecutor’s credibility.” Id. (quoting

Cañez, 202 Ariz. at 147 ¶ 28, 42 P.3d at 578).

¶23 During voir dire, the State twice moved to strike

Juror R. for cause on the ground that she could not read

English. The trial court denied both strikes, stating that it

could accommodate Juror R. and she could be a productive juror.

When the State later peremptorily struck Juror R., defense

counsel made a Batson challenge.

¶24 The State responded by noting that Juror R. lacked a

high school education; had been at her current job for only a

year, indicating a lack of stability in the community; had
11
problems understanding the juror questionnaire and what was

being said in court; and could not read. The trial court denied

the Batson challenge. After the final jury members were

announced, the trial court noted that two or three of the

selected jurors appeared to have Hispanic names.

¶25 The State argues that Garcia failed to make a prima

facie showing of discrimination, but this issue is moot. The

State offered a race-neutral explanation without the trial court

making, or the State requesting, an explicit finding on the

issue of prima facie discrimination. “Once [the State] has

offered a race-neutral explanation for the peremptory challenges

and the trial court has ruled on the ultimate question of

intentional discrimination, the preliminary issue of whether

[Garcia] had made a prima facie showing becomes moot.”

Hernandez v. New York, 500 U.S. 352, 359 (1991).

¶26 The State, however, satisfied the second step of the

Batson analysis, which focuses solely on the “facial validity of

the [State]’s explanation.” Id. The explanation given need

only be race-neutral or “based on something other than the race

of the juror.” Id. Here, the State offered several facially

valid, race-neutral explanations for striking Juror R.

¶27 The third step in the Batson analysis is “fact

intensive and . . . the trial court’s finding at this step is

due much deference.” State v. Newell, 212 Ariz. 389, 401 ¶ 54,
12
132 P.3d 833, 845 (2006). We will not second-guess the trial

court’s credibility determination, especially when, as here,

both parties agree that at least one juror with a Hispanic

surname was ultimately chosen. See Roque, 213 Ariz. at 204 ¶

15, 141 P.3d at 379 (noting that “[a]lthough not dispositive,

the fact that the state accepted other [minority] jurors on the

venire is indicative of a nondiscriminatory motive”).

III. Mistrial after Juror Misconduct

¶28 The trial court ordered a mistrial of the aggravation

phase after a juror disclosed a potential incident of juror

misconduct on the first day of that phase of the trial. Garcia

now argues that the trial court erred by failing to sua sponte

declare a mistrial of the guilt phase. We review a trial

court’s ruling on alleged juror misconduct for abuse of

discretion. State v. Dann, 220 Ariz. 351, 370 ¶ 106, 207 P.3d

604, 623 (2009). Moreover, because Garcia failed to object

below, he must establish that any error was fundamental in

nature and resulted in prejudice. State v. Henderson, 210 Ariz.

561, 567 ¶¶ 19-20, 115 P.3d 601, 607 (2005).

¶29 On the first day of the aggravation phase, Juror P.

told the bailiff that she thought members of Garcia’s family had

improperly contacted her. She later testified that a Hispanic

male had come to her house two or three weeks earlier and asked

if she wanted to have weeds pulled from her yard; she said no
13
and he left. Juror P. said that a very similar-looking Hispanic

male appeared at her house the day before the aggravation phase

began and asked if she wanted to sell her SUV. During this

conversation, another SUV with a woman and young child inside

was parked in front of Juror P.’s house. Juror P. told the man

that she would not sell her SUV and asked him to leave. As he

walked away, Juror P. heard the woman in the SUV say something

about “Jeffrey Dalmer [sic] and eating people or something.” On

the first day of the aggravation phase, Juror P. noticed a woman

sitting on Garcia’s side of the audience who looked very similar

to the woman she had seen in the SUV. At lunch, Juror P. told

other jurors about both incidents.

¶30 The trial court interviewed Juror P. and the jurors

with whom she spoke. Juror P. said that the first incident did

not affect her deliberations in the guilt phase of the trial and

that she made a connection to Garcia only when she saw the woman

in court. She confirmed that she had not mentioned either

incident to the other jurors until that day. After the

interviews concluded, defense counsel moved for a mistrial of

the aggravation phase, which the trial court granted.

¶31 The trial court did not err in failing to sua sponte

also grant a mistrial for the already completed guilt phase.

When an issue of potential juror misconduct arises, “the court’s

response should be ‘commensurate with the severity of the threat
14
posed.’” State v. Miller, 178 Ariz. 555, 557, 875 P.2d 788, 790

(1994) (quoting United States v. Thomas, 463 F.2d 1061, 1063

(7th Cir. 1972)). Defense counsel specifically stated that he

was seeking only a mistrial of the aggravation phase and not the

guilt phase. Moreover, the trial court’s decision to grant a

mistrial as to the aggravation phase alone was sufficient in

light of the limited nature of the potential prejudice. The

risk of prejudice arose only after Juror P. connected the

incidents to Garcia and told other jurors about them, possibly

tainting their perceptions, all of which occurred after the

guilt phase.

IV. Admission of Prior Act Evidence

¶32 Garcia challenges the trial court’s admission, during

the aggravation phase, of evidence regarding his having

committed an armed robbery in April 2002 at RNR Stix bar. This

evidence, he argues, impermissibly suggested that he was a

violent person deserving of execution. We review a trial

court’s evidentiary rulings for abuse of discretion. State v.

McGill, 213 Ariz. 147, 156 ¶ 40, 140 P.3d 930, 939 (2006).

¶33 Evidence of a defendant’s prior acts is inadmissible

to prove action in conformity with a character trait. Ariz. R.

Evid. 404(b). It may, however, be admitted for other purposes,

such as proving “motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” Id.
15
Before prior act evidence may be presented to a jury, the trial

court must find “clear and convincing evidence that the prior

. . . act[] [was] committed and that the defendant committed the

act[].” State v. Terrazas, 189 Ariz. 580, 582, 944 P.2d 1194,

1196 (1997). The trial court must also find that the prior act

evidence is relevant and that its probative value is not

substantially outweighed by unfair prejudice, and the court must

give an appropriate limiting instruction upon the defendant’s

request. State v. Anthony, 218 Ariz. 439, 444 ¶ 33, 189 P.3d

366, 371 (2008).

¶34 Here, the State sought to introduce evidence during

the aggravation phase that, five weeks before the Harley’s

robbery, Garcia and Sheffield were involved in another armed

robbery and shooting at RNR Stix. This evidence, the State

argued, was relevant not only to prove that Garcia had been

previously convicted of a serious offense, an aggravator under

A.R.S. § 13-751(F)(2), but also to establish his death

eligibility. Specifically, because Garcia was charged with

felony murder, the State was required to prove that he had been

a major participant and had acted “with reckless indifference to

human life” in the later robbery at Harley’s. Tison v. Arizona,

481 U.S. 137, 158 (1987). Over Garcia’s objection, the State

introduced evidence related to the RNR Stix robbery that

included (1) documents and testimony reflecting Garcia’s
16
conviction for an armed robbery, (2) testimony from the

investigating detective, (3) testimony from a ballistics expert,

(4) testimony from the shooting victim, and (5) surveillance

video footage of the incident.

¶35 At Garcia’s request, the court gave the jury the

following limiting instruction before admitting the evidence:

Evidence of other crimes is about to be presented for
purposes of proving Mr. Garcia’s degree of
participation and individual culpability as it relates
to his individual motive, opportunity, intent,
preparation, plan, knowledge, identity and absence of
mistake or accident as to the crime of felony murder
involving the death of Mr. Johnson. You may consider
these acts only if you find that they are going to be
proven by clear and convincing evidence that the
defendant committed these acts. They are not to be
used to prove his bad character or a bad character
trait. What they’re used for is . . . to make a
decision about his level of individual participation
and his individual culpability.

¶36 We briefly summarize the evidence admitted regarding

the robbery at RNR Stix. Court documents indicated that Garcia

had been convicted of an offense that occurred on April 15,

2002; other documents showed that Sheffield had pleaded guilty

to attempted murder in connection with an April 15, 2002

incident. These documents alone, however, did not establish

that the two men were involved in the same incident. The State

called the brother of the victim of the Harley’s robbery, who

had attended the RNR Stix court proceedings, to testify that

17
both Garcia’s verdict and Sheffield’s plea concerned the same

events.

¶37 The investigating detective testified that he found a

shell casing at the RNR Stix crime scene, and the State’s

ballistics expert opined that this casing and three casings

recovered from the Harley’s crime scene were shot from the same

weapon. The trial court also admitted surveillance video

footage and testimony by the victim of the RNR Stix robbery.

The victim testified that on April 15, 2002, two men entered RNR

Stix and one of them shot him. When the victim tried to get up,

the non-shooter — whom the victim identified as Garcia — knocked

him to the ground, kicked him, took his wallet, and slammed him

into a pool table. The State then played the bar’s surveillance

videotapes for the jury while the victim described what was

happening. The grainy video showed Garcia taking the victim’s

wallet while hitting and kicking him.

¶38 The trial court did not abuse its discretion in

admitting the evidence regarding the RNR Stix robbery. The

documents reflecting Garcia’s conviction for that robbery were

admissible to establish the (F)(2) prior conviction aggravator.

These documents and the other RNR Stix evidence were also

admissible to establish that Garcia acted with “reckless

indifference” to human life at the subsequent robbery at

Harley’s. The evidence showed that five weeks before the
18
Harley’s robbery, Garcia had participated in another armed

robbery in which Sheffield shot someone. The RNR Stix victim’s

testimony and the video footage show that Garcia did not express

surprise or abandon the robbery after Sheffield shot the victim.

That Garcia would, within weeks, lead Sheffield into Harley’s to

commit another robbery with the same weapon is highly probative

of Garcia’s knowledge that the second robbery posed a grave risk

of death to others.

¶39 The trial court here reasonably concluded that the

probative value of the evidence was not substantially outweighed

by any unfair prejudice and gave the jury a limiting instruction

regarding the purposes for which it could be considered. The

trial court did not err in admitting this evidence.

V. Enmund/Tison Finding in Aggravation Phase

¶40 In November 2005, the assigned judge granted Garcia’s

motion to have the Enmund/Tison inquiry resolved in the guilt

phase. In February 2007, after the case had been reassigned,

another judge reversed the prior ruling and ruled that the

Enmund/Tison finding would be made in the aggravation phase.

After the jury returned its guilty verdict, Garcia moved to

bifurcate the aggravation phase so as to resolve the

Enmund/Tison issue separately from the aggravation issue. The

trial court also denied this motion.

¶41 Garcia argues that the trial court violated the “law
19
of the case” doctrine by ruling that the jury would make the

Enmund/Tison finding in the aggravation phase. Garcia also

contends that even if the Enmund/Tison inquiry was properly

conducted during the aggravation phase, the trial court still

erred by denying his motion to bifurcate the death eligibility

and aggravation issues.

¶42 We review a trial court’s reconsideration of a prior

judge’s ruling for abuse of discretion. State v. King, 180

Ariz. 268, 279, 883 P.2d 1024, 1035 (1994). Although we have

not previously adopted a standard of review for a trial court’s

denial of a motion to bifurcate an aggravation hearing, we

conclude that this decision should also be reviewed for an abuse

of discretion. Cf. Atwood, 171 Ariz. at 612, 832 P.2d at 629

(reviewing decision on motion to sever for abuse of discretion).

¶43 The second judge did not abuse his discretion by

reconsidering the prior judge’s decision. Arizona Rule of

Criminal Procedure 16.1(d) provides that “[e]xcept for good

cause . . . an issue previously determined by the court shall

not be reconsidered.” This rule and the law of the case

doctrine are rules of procedure, not substance; thus, they do

not limit a court’s “power to change a ruling simply because it

ruled on the question at an earlier stage.” King, 180 Ariz. at

279, 883 P.2d at 1035. Nor do the rules “prevent a different

judge, sitting on the same case, from reconsidering the first
20
judge’s prior, nonfinal rulings.” Id.

¶44 More importantly, in reconsidering the earlier ruling,

the second judge properly gave effect to Arizona law, which

“specifically requires the trier of fact to make Enmund/Tison

findings in the aggravation phase.” State v. Garza, 216 Ariz.

56, 67 ¶ 46, 163 P.3d 1006, 1017 (2007) (citing A.R.S. § 13-

752(P) (Supp. 2009)); Ellison, 213 at 134-35 n.12 ¶ 72, 140 P.3d

at 917-18 n.12.

¶45 Nor did the trial court abuse its discretion in

denying Garcia’s motion to bifurcate the death eligibility and

aggravation issues. Bifurcation may be appropriate in some

cases. See, e.g., United States v. Fell, 531 F.3d 197, 239-40

(2d Cir. 2008) (noting that while not required, a number of

district courts had “trifurcated” capital proceedings to avoid

unfair prejudice to defendants). Here, however, the trial

court’s refusal to bifurcate did not unfairly prejudice Garcia.

Even if the jury had been asked to separately determine the

Enmund/Tison issue before finding any aggravating factors,

evidence of Garcia’s involvement in the RNR Stix robbery would

have been admissible in that first phase to establish his

reckless indifference to human life. Thus, the jury would still

have heard about the most damning of Garcia’s prior convictions

during a separate Enmund/Tison phase.

¶46 Finally, Garcia contends that resolution of the
21
Enmund/Tison issue during an un-bifurcated aggravation phase

violated his constitutional rights. We have previously held

that making this determination in the aggravation phase does not

violate the Sixth Amendment. Garza, 216 Ariz. at 67 ¶ 46, 163

P.3d at 1017. We also reject Garcia’s arguments that the

process used here resulted in the arbitrary imposition of a

death sentence in violation of the Eighth Amendment or denied

him due process in violation of the Fourteenth Amendment.

VI. Enmund/Tison Instructions

¶47 Garcia argues that the trial court erred by

incorrectly defining “major participant” and “reckless

indifference” in the Enmund/Tison jury instructions. To prevail

on this issue, Garcia must establish fundamental error because

he did not object to the trial court’s final instructions, which

modified those that he had proposed. See Henderson, 210 Ariz.

at 567 ¶¶ 19-20, 115 P.3d at 607.

¶48 Garcia requested that the trial court give the Revised

Arizona Jury Instructions (“RAJI”) Capital 1.0 Degree of

Participation Instruction, which included the following

language:

In determining whether the defendant was a “major
participant” in the felony, some factors to consider
include: the degree to which the defendant
participated in the planning of the felony; whether
the defendant possessed a weapon or furnished weapons
to any accomplice; the degree to which the defendant
22
 participated in the felony; and the scope of the
defendant’s knowledge of the completion of the felony.

A defendant acts with “reckless indifference” to human
life when that defendant knowingly engages in criminal
activities known to carry a grave risk of death to
another human being. The defendant’s culpability
ultimately rests on whether the defendant was aware or
believed that the defendant’s acts were likely to
result in the death of a person. A finding of
“reckless indifference” cannot be based solely upon a
finding that the defendant was present at the time of
the killing, merely participated in a crime resulting
in a homicide or failed to render aid for the victims
to call for help.

¶49 The trial court substantially followed Garcia’s major

participation instruction, but added “whether the defendant

reported the crimes” as another factor for the jury to consider.

It also condensed the reckless indifference instruction by

telling the jury:

A defendant acts with reckless indifference when the
defendant knowingly engages in criminal activities
that he’s aware may likely create a grave risk of
death to others. A finding of reckless indifference
cannot be based solely on a finding that the defendant
was present at the time of the killing or failed to
render aid to the victims.

¶50 Garcia first argues that the trial court erred in

instructing the jury that it could consider his failure to

report the crime in determining if he was a “major participant.”

Although previous cases may have suggested otherwise, see State

v. Dickens, 187 Ariz. 1, 23, 926 P.2d 468, 490 (1996) (noting

failure to contact authorities among factors supporting finding
23
of major participation), we agree that juries should not be

instructed to consider this factor with regard to major

participation. This factor may, however, be relevant in

determining if a defendant acted with “reckless indifference.”

See State v. Lacy, 187 Ariz. 340, 351, 929 P.2d 1288, 1299

(1996) (finding that failure to render aid or call for help does

not alone establish reckless indifference). Garcia’s failure to

report the robbery after the fact does not bear on his

participation in the robbery while in progress, and it was error

to instruct the jury otherwise.

¶51 Nevertheless, Garcia has not established that the

instruction constituted fundamental error. Identifying the

failure to report the crime as one of several factors that the

jury could consider in determining if Garcia was a major

participant was not an error of fundamental magnitude. Nor has

Garcia shown prejudice. The evidence of his major participation

included his leading Sheffield into the bar, shouting “drop the

money,” pushing Johnson up against the wall, and being in close

proximity when Johnson was shot to death. Garcia cannot

convincingly argue that the jury’s finding of major

participation rested on his failure to report the crime.

¶52 Garcia also argues that the “reckless indifference”

instruction improperly relieved the State of its burden of

proving that he subjectively realized that his conduct would
24
likely lead to death. We disagree. The trial court told the

jury that “reckless indifference” requires finding that the

defendant “knowingly engage[d] in criminal activities that he

[was] aware may likely create a grave risk of death to others.”

The written jury instructions similarly stated that to find

“reckless indifference,” the jury had to conclude that Garcia

“knowingly engage[d] in criminal activities that he [was] aware

w[ould] likely create a grave risk of death to others.”

VII. Evidentiary Basis for Enmund/Tison Findings

¶53 Garcia argues that the State did not prove the

Enmund/Tison predicate beyond a reasonable doubt. He contends

that he had only a “limited role” in the murder and that his

participation in the robbery was insufficient to support the

jury’s finding.

¶54 We review the jury’s Enmund/Tison finding for

substantial evidence, “viewing the facts in the light most

favorable to sustaining the jury verdict.” State v. Roseberry,

210 Ariz. 360, 368-69 ¶ 45, 111 P.3d 402, 410-11 (2005).

Substantial evidence exists when there is “such proof that

‘reasonable persons could accept as adequate and sufficient to

support a conclusion of defendant’s guilt beyond a reasonable

doubt.’” State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869

(1990) (quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51,

53 (1980)).
25
¶55 The Eighth Amendment prohibits imposition of the death

penalty unless the defendant “kill[s], attempt[s] to kill, or

intend[s] that a killing take place or that lethal force will be

employed,” Enmund v. Florida, 458 U.S. 782, 797 (1982), or is a

major participant in the underlying felony and acts with

reckless indifference to human life, Tison, 481 U.S. at 158.

Garcia was convicted under Tison; thus, the State had to prove

beyond a reasonable doubt that Garcia was a major participant in

the crime and was recklessly indifferent to Johnson’s life. See

id. at 158; State v. Tison, 160 Ariz. 501, 502, 774 P.2d 805,

806 (1989).

¶56 Substantial evidence supports the jury’s finding that

Garcia was a major participant in the underlying robbery. He

initially entered the bar alone through the front door, which

suggests that he was casing the scene. He and Sheffield later

entered through the back door and Garcia shouted at Johnson to

drop the money. The evidence established that Garcia was

“actively involved in every element of the [robbery] and was

physically present during the entire sequence of criminal

activity culminating in” Johnson’s murder. See Tison, 481 U.S.

at 158.

¶57 Substantial evidence also supports the jury’s finding

that Garcia acted with reckless indifference to human life.

Tison characterized such action as “knowingly engaging in
26
criminal activities known to carry a grave risk of death.” 481

U.S. at 157.

¶58 Garcia attempts to analogize his case to Lacy, which

held that the State had failed to prove reckless indifference

beyond a reasonable doubt. 187 Ariz. at 351-53, 929 P.2d at

1299-1301. In Lacy, the defendant went to the victims’

apartment with his co-defendant to get chemicals to make drugs.

Id. at 345, 92 P.2d at 1293. While there, his co-defendant

argued with the victims and shot one. Id. The defendant

claimed that he ran out, taking a microwave with him. Id. When

he re-entered the apartment, his co-defendant had tied up the

other victim and was shooting her in the head. Id. The

defendant stated that he then ran away again, and his co-

defendant later picked him up and drove him home. Id. Given

those facts, we found that there was “little to establish [the

defendant’s] involvement in the [victims’] deaths,” and that

without the defendant’s testimony, there would be “an almost

complete void as to what occurred that night.” Id. at 352, 929

P.2d at 1300 (noting that it was both unclear whether defendant

knew that his co-defendant had a gun and whether he should have

anticipated violence). Although the defendant “stole a

microwave after one of the murders and did nothing to prevent

either victim’s death,” that conduct alone did not establish

reckless indifference. Id.
27
¶59 This case, however, differs in several important

respects. First, unlike the defendant in Lacy, who accompanied

his co-defendant to get drug chemicals and may not have

anticipated violence, Garcia accompanied Sheffield to rob a bar.

Garcia had every reason to anticipate violence, because he knew

Sheffield had shot someone during the RNR Stix robbery just

weeks before.

¶60 Second, there is no comparable void in the evidence

about what occurred at Harley’s. Anderson testified that Garcia

led Sheffield into the bar and helped overcome Johnson by

pushing him against the wall. A shirt spotted with Johnson’s

blood was found near the murder scene; a button consistent with

one missing from the shirt was found on Johnson’s person. The

shirt, the parties stipulated, also contained a mixed sample of

DNA that was 21,000 times more likely to have come from Garcia

and two unknown individuals than from three unknown individuals.

This evidence shows that Garcia played an active role in the

murder.

¶61 Third, there is no evidence that Garcia attempted to

flee at any point during the course of events. Indeed, the

evidence showed that he continued to act in concert with

Sheffield after the murder.

¶62 Viewing the facts in the light most favorable to

sustaining the verdict, we conclude that substantial evidence
28
supports the jury’s finding that Garcia was a major participant

in the robbery and acted with reckless indifference to human

life. Cf. State v. Bearup, 221 Ariz. 163, 166, 171-72 ¶¶ 3, 37-

43, 211 P.3d 684, 687, 692-93 (2009) (rejecting Lacy-based

argument when defendant accompanied others to commit violent

crime and evidence established his role in events leading up to

and following murder).

VIII. (F)(5) Aggravator

¶63 Garcia argues that the evidence was insufficient to

support the (F)(5) pecuniary gain aggravator. This claim is

subsumed within our independent review. See State v. Andriano,

215 Ariz. 497, 506 n.5 ¶ 41, 161 P.3d 540, 549 n.5 (2007).

IX. Constitutionality of Burden of Proof at Sentencing

¶64 Garcia argues that Arizona’s death penalty scheme is

unconstitutional because it does not require the State to prove

beyond a reasonable doubt that a mitigating circumstance, once

proven by the defendant, is not sufficiently substantial to call

for leniency. We have previously rejected this argument. See

Moore, 222 Ariz. at 20 ¶¶ 110-13, 213 P.3d at 169.

X. Juror Replacement in Penalty Phase

¶65 Garcia challenges the trial court’s decision to

release a juror after the aggravation phase and replace him with

an alternate. He argues that the court failed to determine

whether the alternate juror agreed with the jury’s earlier
29
findings, and that he was thus deprived of his right to a

unanimous verdict on death eligibility and aggravation. Garcia

further contends that the juror replacement impermissibly

allowed the alternate juror to shift responsibility for the

ultimate verdict to the replaced juror.

¶66 We review a trial court’s dismissal of a juror for

abuse of discretion. Roseberry, 210 Ariz. at 371 ¶ 63, 111 P.3d

at 413. Garcia’s constitutional claims are reviewed de novo.

State v. Pandeli, 215 Ariz. 514, 521 ¶ 11, 161 P.3d 557, 565

(2007).

¶67 At the close of the aggravation phase, the trial court

designated four jurors as alternates. That afternoon, the jury

found that the State had proved two aggravators and that Garcia

was death-eligible under Tison. The alternates did not

participate in this decision. On the first day of the penalty

phase, a juror called in sick and was excused by the State and

defense counsel. Before the jury retired to deliberate, the

court designated one of the alternates, Juror Sixteen, to

deliberate with the panel on the penalty phase issues.

¶68 Garcia first argues that the trial court abused its

discretion in releasing the sick juror and replacing him with

Juror Sixteen. Although it is “preferable to complete a

defendant’s trial with the same jury that began it,” Roseberry,

210 Ariz. at 372 ¶ 69, 111 P.3d at 414, Garcia is “not
30
constitutionally entitled to have the same jury” render verdicts

in each phase, id. Arizona Rule of Criminal Procedure 18.5(i)

provides that “[i]n the event a deliberating juror is excused

during the aggravation or penalty phases due to inability . . .

to perform required duties, the court may substitute an

alternate juror . . . to join in the deliberations.” The newly

constituted jury need not “deliberate anew about a verdict

already reached and entered.” Id. Only if the juror

substitution occurs during actual deliberations must the jurors

“begin anew for the phase of the sentencing that they are

currently deliberating.” Id.; see also Roseberry, 210 Ariz. at

373 ¶ 72, 111 P.3d at 415.

¶69 The trial court’s dismissal of the flu-stricken juror

thus comported with Rule 18.5(i). Not only did the court

properly replace the juror with an alternate, it correctly

determined that the newly constituted jury was not required to

revisit the questions of death eligibility under Tison or

aggravation. A verdict had already been entered in the

aggravation phase, and the penalty phase jury was not required

to deliberate anew on these issues. Cf. A.R.S. § 13-752(K)

(providing that jury newly impaneled during penalty phase shall

not retry issues of guilt or aggravation determined by prior

jury).

¶70 Nor was the trial court required to ascertain whether
31
Juror Sixteen agreed with the jury’s prior findings. In

Roseberry, we noted that the trial court “took precautions to

ensure that Juror Twelve, the alternate who replaced Juror

Eight, was able to deliberate for the penalty phase,” by

allowing the State to ask Juror Twelve a series of questions to

establish his understanding that (1) the jury had deliberated

without him, (2) the jury had previously found the defendant

guilty, (3) the jury had also found aggravating circumstances,

and (4) those verdicts had to be his as well. 210 Ariz. at 372

¶ 67, 111 P.3d at 414.

¶71 Contrary to Garcia’s assertion, our decision in

Roseberry does not require a trial court to engage sua sponte in

a similar dialogue with an alternate juror, nor does it suggest

that an alternate’s agreement with a jury’s earlier findings is

a prerequisite to deliberation. And, while it may be wise for a

court to discuss with an alternate juror his role in the

proceedings, Juror Sixteen was well aware that his duty was to

deliberate on sentencing alone. In its instructions, the trial

court reminded the jury that “in the guilt phase of [the] trial,

[Garcia] was found guilty of first degree murder,” and that in

the aggravation phase, two aggravators were found to exist. The

sentencing phase jury, including Juror Sixteen, thus had a duty

to determine only “whether [Garcia] should be sentenced to life

imprisonment or death for his conviction of first degree
32
murder.” These instructions served the same purpose as the

State’s questions in Roseberry: they established that Juror

Sixteen was to accept the jury’s prior findings as his own and

deliberate only on sentencing issues.

¶72 Garcia also argues that because Juror Sixteen did not

decide his death qualification in the aggravation phase, he

impermissibly abdicated responsibility for his ultimate decision

to the juror he replaced. Garcia notes that it is

“constitutionally impermissible to rest a death sentence on a

determination made by a sentencer who has been led to believe

that the responsibility for determining the appropriateness of

the defendant’s death rests elsewhere.” Caldwell v.

Mississippi, 472 U.S. 320, 328-29 (1985).

¶73 No impermissible shifting of responsibility occurred

here. The trial court informed the jurors that their duty was

to “determine whether the defendant should be sentenced to life

imprisonment or death for his conviction of first degree

murder.” The court also instructed the jury that its

“sentencing decision [wa]s not a recommendation. [Its] decision

[would] be binding. If [its] verdict [wa]s that the defendant

should be sentenced to death, the defendant [would] be sentenced

to death. If [its] verdict [wa]s that the defendant should be

sentenced to life, he [would] be sentenced to life.” Given

these instructions, Juror Sixteen was fully aware that he bore
33
responsibility for determining the appropriate sentence. See

also Dann, 220 Ariz. at 360-61 ¶¶ 29-30, 207 P.3d at 613-14

(rejecting defendant’s argument that use of different sentencing

jury “improperly shifted responsibility between the two juries”

because the second sentencing jury “received clear instruction

that it alone would determine the appropriate sentence”).

XI. Penalty Phase Jury Instructions

¶74 Garcia argues that the trial court erred in rejecting

three of his proposed penalty phase instructions. Garcia

requested instructions (1) stating that he would not be eligible

for parole until he had served at least 53.6 years in prison;

(2) informing jurors of their duty to discuss the case and

deliberate, but noting that jurors should not change their

honest beliefs solely because of fellow jurors’ opinions or “for

the mere purpose of returning a verdict”; and (3) defining

relatively minor participation and stating that it is a

mitigating circumstance.

¶75 We review a trial court’s refusal to give a jury

instruction for abuse of discretion. State v. Martinez, 218

Ariz. 421, 432 ¶ 49, 189 P.3d 348, 359 (2008). We review the

“legal adequacy” of an instruction de novo. Id. “In assessing

the adequacy of jury instructions, the instructions must be

viewed in their entirety in order to determine whether they

accurately reflect the law.” State v. Hoskins, 199 Ariz. 127,
34
145 ¶ 75, 14 P.3d 997, 1015 (2000). Additionally, “when the

substance of a proposed instruction is adequately covered by

other instructions, the trial court is not required to give it.”

Id.

¶76 The trial court did not abuse its discretion in

refusing to instruct the jury that Garcia would not be eligible

for parole for 53.6 years. An instruction on parole eligibility

must be given only when (1) the defendant’s life sentence

carries no possibility of parole, and (2) the State argues that

the defendant’s future dangerousness militates in favor of the

death penalty. Simmons v. South Carolina, 512 U.S. 154 (1994);

see also Kelly v. South Carolina, 534 U.S. 246, 251-52 (2002)

(clarifying that Simmons applies even if an allegation of future

dangerousness is made solely as “a logical inference from the

evidence”).

¶77 Here, the trial court was not required to give an

instruction on parole eligibility because, irrespective of any

likelihood that he would die in prison, Garcia was not

technically ineligible for parole. See Simmons, 512 U.S. at 168

(noting that when parole is available, the Court will not

“lightly second-guess a decision whether or not to inform a jury

of information regarding parole”). Moreover, the State did not

emphasize Garcia’s future dangerousness. The State did not ask

the jury to return a death verdict for reasons of “self-
35
defense,” see Simmons, 512 U.S. at 157, nor did it implicitly

indicate that Garcia would pose a threat if he were someday

released from prison, see Kelly, 534 U.S. at 248-50. Rather,

the State primarily argued that Garcia had been presented with

chances to “get himself straightened out,” and that any

mitigation he offered did not excuse his conduct.

¶78 Furthermore, the trial court instructed the jury that

Garcia “face[d] . . . a minimum sentence of 38.85 years,” and

Garcia repeatedly told the jury that he was facing decades of

prison time before parole became an option. Thus, the jury

received sufficient information from which it could conclude

that Garcia would likely die in prison. The trial court did not

err in refusing this instruction.

¶79 The trial court also did not abuse its discretion in

refusing to instruct jurors that they had a duty to deliberate,

but should not change their honest beliefs merely to return a

verdict. The verdict form itself had an option for “no

unanimous agreement,” which sufficiently communicated to the

jury that it was not required to reach a verdict. Moreover, the

trial court’s instructions emphasized that the each juror should

make an individual decision as to the sufficiency of Garcia’s

mitigation evidence in determining the proper sentence.

¶80 Finally, the trial court did not abuse its discretion

in refusing to give an instruction defining relatively minor
36
participation and stating that it is a mitigating circumstance.

We rejected a similar argument in Johnson. 212 Ariz. at 436-38

¶¶ 41-47, 133 P.3d at 746-48. Because the Supreme Court has

emphasized that there must be a “broad inquiry into all relevant

mitigating evidence to allow an individualized determination,”

Buchanan v. Angelone, 522 U.S. 269, 276 (1998), we noted that

“direct[ing] or permit[ting] trial courts to give potentially

confining mitigation instructions” could result in a

“significant danger,” 212 Ariz. at 437 ¶ 43, 133 P.3d at 747,

and “would be inharmonious with the Supreme Court’s admonitions

that the sentencer be free to consider any relevant mitigating

factor,” id. at 437 ¶ 47, 133 P.3d at 747 (quoting Tucker v.

Zant, 724 F.2d 882, 892 (11th Cir. 1984)).

¶81 The trial court here properly instructed the jurors

that they could consider any relevant factor as mitigating.

Garcia was permitted to argue that he was a relatively minor

participant; indeed, it was a theme of his penalty phase closing

argument. See Johnson, 212 Ariz. at 437 n.11 ¶ 47, 133 P.3d at

747 n.11 (finding no abuse of discretion when defense counsel

“argued the presence of specific mitigating circumstances not

elaborated by the final penalty phase jury instructions”).

XII. Propriety of Death Sentence

¶82 Garcia argues that this Court should review the

propriety of his death sentence under an analysis similar to
37
that employed in Roper v. Simmons and Atkins v. Virginia.

Roper, 543 U.S. 551 (2005) (categorically excluding defendants

under eighteen years old from death eligibility); Atkins, 536

U.S. 304 (2002) (categorically excluding mentally retarded

defendants from death eligibility). He contends that such an

analysis compels the categorical exclusion of non-shooters from

death eligibility in felony murder cases.

¶83 We disagree. In Tison, the Supreme Court explicitly

approved the imposition of death sentences on persons who do not

themselves kill but who act with reckless indifference to human

life and are major participants in criminal activities that

result in death. 481 U.S. at 158. Cf. Kennedy v. Louisiana,

128 S. Ct. 2641, 2650 (2008) (noting that in Tison the Court

“allowed the defendants’ death sentences to stand where they did

not themselves kill the victims but their involvement in the

events leading up to the murders was active, recklessly

indifferent, and substantial”). We also reject Garcia’s

suggestion that a death sentence is constitutionally barred

because Sheffield was the actual shooter and ultimately received

a natural life sentence.

XIII. Denial of Exhibit Review during Deliberations

¶84 Garcia argues that the trial court fundamentally erred

by denying the jury’s request to review Exhibit 203 during

penalty phase deliberations. We review for fundamental error,
38
as Garcia did not object below. See Henderson, 210 Ariz. at 567

¶¶ 19-20, 115 P.3d at 607.

¶85 The record reflects some confusion regarding Exhibit

203. During the penalty phase, the State introduced two

exhibits while cross-examining Garcia’s mitigation specialist.

The exhibits, marked as 201 and 203, were presentence reports

from Garcia’s prior cases. Both exhibits were used solely for

impeachment and neither was admitted. Later that day, the trial

court issued a minute entry renumbering Exhibit 203 as Exhibit

202. The next day, defense counsel questioned a witness about

Sheffield’s participation in a murder at a liquor store after

Garcia’s arrest. During this testimony, defense counsel

introduced a copy of Sheffield’s plea agreement for the murder

in that case. The plea agreement was marked as Exhibit 203 and

admitted into evidence.

¶86 Less than thirty minutes after it began deliberating,

the jury requested Exhibits 201 and 203. The trial court denied

the request, stating that those exhibits had not been admitted.

Neither attorney objected. The trial court was mistaken,

because although the exhibit first marked as 203 (a presentence

report) was not admitted, another exhibit (Sheffield’s plea

agreement) was later numbered Exhibit 203 and admitted.

¶87 Nonetheless, the trial court’s refusal to submit

Exhibit 203 to the jury was not fundamental error because Garcia
39
cannot show prejudice. He was able to present ample evidence

that Sheffield had committed another murder and had made non-

death sentence plea deals for that crime and the RNR Stix

incident. Exhibit 197, which detailed Sheffield’s sentences for

both crimes, was admitted into evidence. Detective Rodriguez

testified that Garcia was in custody when Sheffield committed

the liquor store murder and that Sheffield took a plea bargain

in that case. Garcia told the jury in his closing argument that

the State had “dropped the death penalty” against Sheffield and

that his solo conviction for a subsequent murder established

that Garcia was a minor participant in the Harley’s murder.

XIV. Independent Review

¶88 Because the murder occurred before August 1, 2002, we

independently review aggravation, mitigation, and the propriety

of Garcia’s death sentence.3 A.R.S. § 13-755(A) (Supp. 2009);

see also 2002 Ariz. Sess. Laws, ch. 1, § 7 (5th Spec. Sess.).

A. Aggravating Circumstances

1. A.R.S. § 13-751(F)(2) — Prior Conviction

3
Garcia also asks this Court to treat the Enmund/Tison
finding as it would an aggravating circumstance and subject it
to independent review. We have, however, previously noted that
“Enmund/Tison findings are not aggravators, and, consequently,
are not subject to our independent review.” Ellison, 213 Ariz.
at 135 n.13 ¶ 73, 140 P.3d at 918 n.13 (internal citations 
omitted). 

40
¶89 Under A.R.S. § 13-751(F)(2), an aggravating

circumstance exists if “[t]he defendant has been or was

previously convicted of a serious offense.” The State proved

this aggravator beyond a reasonable doubt by introducing

documents reflecting Garcia’s prior convictions for sexual

assault and armed robbery.

2. A.R.S. § 13-751(F)(5) — Pecuniary Gain

¶90 Under A.R.S. § 13-751(F)(5), an aggravating

circumstance exists if “[t]he defendant committed the offense as

consideration for the receipt, or in expectation of the receipt,

of anything of pecuniary value.” Our inquiry is “highly fact-

intensive.” State v. Ring, 204 Ariz. 534, 560 ¶ 76, 65 P.3d 915

941 (2003).

¶91 To establish the (F)(5) aggravator, the State must

establish that “pecuniary gain was a ‘motive, cause, or impetus

for the murder and not merely the result.’” Cañez, 202 Ariz. at

159 ¶ 91, 42 P.3d at 590 (quoting State v. Kayer, 194 Ariz. 423,

433 ¶ 32, 984 P.2d 31, 41 (1999)). Aggravation based on

pecuniary gain “does not require a motive to kill . . . [but]

may also be based upon a causal connection between the pecuniary

gain objective and the killing.” Cañez, 202 Ariz. at 159 ¶ 93,

42 P.3d at 590. The ultimate inquiry is “whether a motive for

the murder was to facilitate the taking of or the ability to

keep items of pecuniary value.” State v. Sansing (Sansing I),
41
200 Ariz. 347, 354 ¶ 15, 26 P.3d 1118, 1125 (2001), vacated on

other grounds, 536 U.S. 954 (2002).

¶92 Here, the (F)(5) aggravator was proven beyond a

reasonable doubt. Garcia led Sheffield, gun drawn, into the bar

where Johnson was kneeling in front of the ATM. Garcia could

have seen Johnson and the ATM from outside the bar’s back door.

When Johnson shouted “get out” at the intruders, Garcia pushed

him against the wall. Anderson heard “scuffling” as he escaped

the bar. Johnson’s body was found outside on the back patio,

although he had been inside when Anderson last saw him. His

body was surrounded by $20 bills, some of them crumpled.

Johnson’s wife testified that Johnson was not someone who would

“back away” if threatened, and the medical examiner testified

that Johnson had wounds on his body that were consistent with an

altercation. A shirt was found near the crime scene that was

spotted with Johnson’s blood and was missing a button. A button

consistent with the missing button was found near Johnson’s

body. Also on the shirt was a mixed sample of DNA that was

21,000 times more likely to have come from Garcia and two

unknown individuals than from three unknown individuals.

¶93 Moreover, Anderson’s testimony indicates that the

murder and robbery happened in a short time; indeed, he heard

two gunshots before he escaped the bar. We have noted that when

“the killing and robbery take place almost simultaneously, we
42
will not attempt to divine the evolution of the defendant’s

motive in order to discern when, or if, his reason for harming

the victim shifted from pecuniary gain to personal ‘amusement’

or some other speculative nonpecuniary drive.” Cañez, 202 Ariz.

at 160 ¶ 96, 42 P.3d at 591.

¶94 Considered in its totality, the evidence establishes

beyond a reasonable doubt that Garcia’s participation in the

murder was motivated by the expectation of pecuniary gain, even

if we assume that Sheffield rather than Garcia shot Johnson.

B. Mitigating Circumstances

1. A.R.S. § 13-751(G)(3) — Minor Participation

¶95 Under A.R.S. § 13-751(G)(3), a mitigating circumstance

exists where “[t]he 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.” Garcia has failed to establish that he was a

minor participant. Even if we focus solely on Garcia’s

participation in the murder itself rather than the robbery,

circumstantial evidence established that he was actively

involved.

2. Sentencing Disparity

¶96 On October 1, 2007, after jury selection for a joint

trial had begun, Garcia’s and Sheffield’s trials were severed

because of Sheffield’s poor health. Sheffield suffered from
43
end-stage liver disease and had become disoriented after falling

in his cell. At Garcia’s trial in December 2007, the State

confirmed that Sheffield was scheduled to begin trial in January

2008 and that it was seeking the death penalty.

¶97 On the eve of Sheffield’s trial, Correctional Health

Services requested shorter trial days so that it could closely

monitor Sheffield’s health. Subsequently, the trial court

announced that it would hold trial from 1:00 to 4:30 p.m. daily

and that it anticipated that the trial would last through May

2008. On January 15, 2008, Sheffield entered into a natural

life plea agreement. He died on February 26, 2008.

¶98 “A disparity in sentences between codefendants and/or

accomplices can be a mitigating circumstance if no reasonable

explanation exists for the disparity.” Kayer, 194 Ariz. at 439

¶ 57, 984 P.2d at 47. Although the record does not detail the

State’s reasons for entering the plea agreement with Sheffield,

we do not believe that the resulting sentencing disparity

deserves significant weight as a mitigating factor.

¶99 When the jury determined in December 2007 that Garcia

should be sentenced to death, it was not under any misimpression

about Sheffield’s status. The jury was never told that

Sheffield would receive a death sentence in this case; it was

told only that he could after a future trial. The jury was also

informed that Sheffield had already received a life sentence for
44
the liquor store murder he committed after Garcia’s arrest.

¶100 Although the State never made explicit its reasons for

offering Sheffield a plea, its decision is well-supported by the

record. When Sheffield pleaded guilty, his health had declined

to the point where he could not attend court for more than a few

hours a day. His trial would have taken months to conclude and

indeed, had he gone to trial, he would have died long before its

projected conclusion. Under these circumstances, the sentencing

disparity does not merit significant mitigating weight.

3. Remorse

¶101 Garcia’s former girlfriend testified that after

Johnson’s murder, she saw Garcia’s picture on TV and asked him

if he “did it.” Garcia said no and started crying.

¶102 Garcia has not established remorse as a mitigating

factor. When apprehended, Garcia was not remorseful, but

instead attempted to flee after cursing and making an obscene

gesture at the police officer, who had to shoot Garcia to

capture him. Garcia has consistently denied involvement in

Johnson’s murder, and we have previously rejected remorse as

mitigation when the defendant continues to deny responsibility.

See, e.g., Dann, 220 Ariz. at 376 ¶¶ 150-51, 207 P.3d at 629;

Andriano, 215 Ariz. at 512 ¶ 76, 161 P.3d at 555.

4. Drug Addiction

¶103 Garcia presented evidence that he began using
45
marijuana and drinking alcohol at an early age. He later began

using heroin and crack cocaine. Within one month of his January

2001 release from prison for a prior offense, he tested positive

for opiates and was returned to prison.

¶104 Garcia has established his drug addiction; however, we

give minimal weight to this mitigator because he has “failed to

tie his . . . drug abuse to the crime or to his mental

functioning” when the murder occurred. Pandeli, 215 Ariz. at

532 ¶ 75, 161 P.3d at 575.

5. Dysfunctional Childhood

¶105 Garcia presented evidence that his father, Alfredo

Garcia, Sr., was a heroin dealer who used drugs in front of his

children. The neighborhood feared him. He was often drunk and

terrorized his family, sometimes “shoot[ing] up the house.” He

once hung Garcia on a hook and stabbed him with a screwdriver

because he was not tough enough. Alfredo Sr. maintained another

household with a girlfriend and spent increasing time away from

his family. Garcia and his siblings often went hungry. When

his father passed out, Garcia would steal money from him and

give it to his mother for groceries.

¶106 Garcia began his numerous encounters with the juvenile

justice system at age twelve. At fifteen, he was placed at the

Arizona Boys Ranch. He dropped out of school in ninth grade,

but eventually earned his GED. When Garcia was eighteen, his
46
father was murdered, an event Garcia said was “very painful.”

¶107 “A difficult family background may be a mitigating

circumstance in determining whether a death sentence is

appropriate; however, we give this factor little weight absent a

showing that it affected the defendant’s conduct in committing

the crime.” Moore, 222 Ariz. at 22 ¶ 128, 213 P.3d at 171. We

give this factor little weight here because Garcia was thirty-

nine at the time of Johnson’s murder and no evidence linked his

childhood experiences to the murder. Cf. Ellison, 213 Ariz. at

144 ¶ 136, 140 P.3d at 927 (noting that “[the defendant’s]

childhood troubles deserve[d] little value as a mitigator for

the murders he committed at age thirty-three”).

6. Lack of Future Dangerousness

¶108 Garcia argues that he poses no risk of future

dangerousness because he will never be released from prison. A

defendant’s reliance on the mere fact that he will be

incarcerated provides no more than “minimal weight” for

mitigation purposes. See State v. Sansing (Sansing II), 206

Ariz. 232, 241 ¶ 37, 77 P.3d 30, 39 (2003).

C. Propriety of Death Sentence

¶109 After evaluating each aggravating and mitigating

circumstance, we must independently review the propriety of the

death sentence. See A.R.S. § 13-755(A). In doing so, “we

consider the quality and the strength, not simply the number, of
47
aggravating and mitigating factors.” Roque, 213 Ariz. at 230 ¶

166, 141 P.3d at 405 (internal quotations omitted).

¶110 Here, both the (F)(2) and (F)(5) aggravators are

established beyond a reasonable doubt, and Garcia’s mitigation

evidence is not sufficiently substantial to warrant leniency.

XV. Issues Preserved for Federal Review

¶111 To avoid preclusion, Garcia raises twenty-seven

additional constitutional claims that he states have been

rejected in previous decisions by the Supreme Court or this

Court. The attached Appendix lists these claims and the

decisions Garcia identifies as rejecting them.

CONCLUSION

¶112 For the foregoing reasons, we affirm Garcia’s

convictions and sentences.

_____________________________________
W. Scott Bales, Justice
CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
Michael D. Ryan, Justice

_____________________________________
A. John Pelander, Justice
48
 APPENDIX

(1) The death penalty is per se cruel and unusual punishment.
Gregg v. Georgia, 428 U.S. 153, 186-87 (1976); State v.
Salazar, 173 Ariz. 399, 411, 844 P.2d 566, 578 (1992).

(2) Execution by lethal injection is per se cruel and unusual
punishment. State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d
602, 610 (1995).

(3) The statute unconstitutionally requires imposition of the
death penalty whenever at least one aggravating
circumstance and no mitigating circumstances exist. Walton
v. Arizona, 497 U.S. 639, 648 (1990); State v. Miles, 186
Ariz. 10, 19, 918 P.2d 1028, 1037 (1996).

(4) The death penalty is unconstitutional because it permits
jurors unfettered discretion to impose death without
adequate guidelines to weigh and consider appropriate
factors and fails to provide principled means to
distinguish between those who deserve to die or live.
State v. Johnson, 212 Ariz. 425, 440 ¶ 69, 133 P.3d 735,
750 (2006).

(5) The statute unconstitutionally fails to require the
cumulative consideration of multiple mitigating factors or
require that the jury make specific findings as to each
mitigating factor. State v. Gulbrandson, 184 Ariz. 46, 69,
906 P.2d 579, 602 (1995).

(6) Arizona’s statutory scheme for considering mitigating
evidence is unconstitutional because it limits full
consideration of that evidence. State v. Mata, 125 Ariz.
233, 242, 609 P.2d 48, 57 (1980).

(7) Arizona’s death statute is unconstitutional because there
are no statutory standards for weighing. State v. Atwood,
171 Ariz. 576, 645-46 n.21(4), 832 P.2d 593, 662-63 n.21(4)
(1992).

(8) Arizona’s death statute insufficiently channels the
sentencer’s discretion in imposing the death sentence.
State v. Greenway, 170 Ariz. 151, 164, 823 P.2d 22, 31
(1991).

49
(9) The prosecutor’s discretion to seek the death penalty
unconstitutionally lacks standards. State v. Cromwell, 211
Ariz. 181, 192 ¶ 58, 119 P.3d 448, 459 (2005).

(10) Death sentences in Arizona have been applied arbitrarily
and irrationally and in a discriminatory manner against
impoverished males whose victims have been Caucasian.
State v. West, 176 Ariz. 432, 455, 862 P.2d 192, 215
(1993).

(11) The Constitution requires a proportionality review of a
defendant’s death sentence. State v. Gulbrandson, 184
Ariz. 46, 73, 906 P.2d 579, 606 (1995).

(12) Subjecting Garcia to a second trial on the issue of
aggravation and punishment before a new jury violates the
double jeopardy clause of the Fifth Amendment. State v.
Ring (Ring III), 204 Ariz. 534, 550 ¶ 39, 65 P.3d 915
(2003).

(13) Garcia’s death sentence is in violation of his rights to a
jury trial, notice and due process under the Fifth, Sixth,
and Fourteenth Amendments since he was not indicted for a
capital crime. McKaney v. Foreman, 209 Ariz. 268, 271 ¶
13, 100 P.3d 18, 21 (2004).

(14) Imposition of a death sentence under a statute not in
effect at the time of Garcia’s trial violates due process
under the Fourteenth Amendment. State v. Ellison, 213
Ariz. 116, 137 ¶ 85, 140 P.3d 899, 920 (2006).

(15) The reasonable doubt jury instruction at the aggravation
trial lowered the State’s burden of proof and deprived
[Garcia] of his right to a jury trial and due process under
the Sixth and Fourteenth Amendments. State v. Dann (Dann
I), 205 Ariz. 557, 575-76 ¶ 74, 74 P.3d 231, 249-50 (2003).

(16) Arizona’s death statute creates an unconstitutional
presumption of death and places an unconstitutional burden
on Garcia to prove mitigation is “sufficiently substantial
to call for leniency.” State v. Glassel, 211 Ariz. 33, 52
¶ 72, 116 P.3d 1193, 1212 (2005).

(17) The failure to provide the jury with a special verdict on
Garcia’s proffered mitigation deprived him of his rights to
not be subject to ex post facto legislation and right to

50
 meaningful appellate review. State v. Roseberry, 210 Ariz.
360, 373 ¶ 74 & n.12, 11 P.3d 402, 415 & n.12 (2005).

(18) The trial court improperly omitted penalty phase
instructions that the jury could consider mercy or sympathy
in evaluating the mitigation evidence and determining
whether to sentence Garcia to death. State v. Carreon, 210
Ariz. 54, 70-71 ¶¶ 81-87, 107 P.3d 900, 916-17 (2005).

(19) Arizona’s current protocols and procedures for execution by
lethal injection constitute cruel and unusual punishment in
violation of the Eighth and Fourteenth Amendments. State
v. Andriano, 215 Ariz. 497, 510 ¶¶ 61-62, 161 P.3d 540, 553
(2007).

(20) The jury instruction that required the jury to unanimously
determine that the mitigating circumstances were
“sufficiently substantial to call for leniency” violated
the Eighth Amendment. State v. Ellison, 213 Ariz. 116, 139
¶¶ 101-02, 140 P.3d 899, 922 (2006).

(21) The failure to instruct the jury that only murders that are
“above the norm” may qualify for the death penalty violates
the Sixth, Eighth, and Fourteenth Amendments. State v.
Bocharski (Bocharski II), 218 Ariz. 476, 487-88 ¶¶ 47-50,
189 P.3d 403, 414-15 (2008).

(22) The refusal to permit voir dire of prospective jurors
regarding their views on specific aggravating and
mitigating circumstances violates Garcia’s rights under the
Sixth and Fourteenth Amendments. State v. Johnson, 212
Ariz. 425, 440 ¶¶ 29-35, 133 P.3d 735, 750 (2006).

(23) The refusal to permit Garcia to argue or the jury to
consider whether his death sentence would be proportional
to other similarly situated defendants violated his rights
under the Eighth and Fourteenth Amendments. State v.
Johnson, 212 Ariz. 425, 431-32 ¶¶ 19-20, 133 P.3d 735, 750
(2006).

(24) The refusal to permit evidence regarding a sentence of life
without parole and ineligibility of any future release
deprived Garcia of his rights under the Eighth and
Fourteenth Amendments. State v. Cruz, 218 Ariz. 149, 160
¶¶ 40-45, 181 P.3d 196, 207 (2008).

51
(25) Subjecting Garcia to sentencing before a jury that did not
decide his guilt deprives him of his rights under the
Fifth, Sixth, Eighth, and Fourteenth Amendments since his
guilt trial jury was organized to convict and his
sentencing jury was organized solely to impose a death
sentence. State v. Bocharski (Bocharski II), 218 Ariz.
476, 483-84 ¶¶ 17-25, 189 P.3d 403, 410-11 (2008).

(26) The failure to instruct the jury that the State bore the
burden of proving its rebuttal to mitigation evidence
beyond a reasonable doubt violated Garcia’s rights under
the Sixth, Eighth, and Fourteenth Amendments. State v.
Roque, 213 Ariz. 193, 225-26 ¶¶ 138-40, 141 P.3d 368, 400-
01 (2006).

(27) The penalty phase jury instructions that advised the jury
it “must” return a death sentence in various circumstances
and forms of verdict impermissibly shifted the burden of
proof to Garcia and created a presumption of death. State
v. Tucker (Tucker II), 215 Ariz. 298, 317 ¶¶ 70-73, 160
P.3d 177, 196 (2007).

52