State v. Kiles

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-06-0240-AP
Appellee, )
) Yuma County
v. ) Superior Court
) Nos. SC89C15444
ALVIE COPELAND KILES, ) and SC89C15577
)
Appellant. )
_________________________________ ) O P I N I O N

Appeal from the Superior Court in Yuma & Maricopa Counties
The Honorable Kirby D. Kongable, Judge Pro Tempore1

AFFIRMED
________________________________________________________________

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

LAW OFFICES OF PAUL J. MATTERN Phoenix
By Paul J. Mattern
Attorney for Alvie Copeland Kiles
________________________________________________________________

R Y A N, Justice

I
A

¶1 In February 1989, Valerie Gunnell, and her five-year-

old and nine-month-old daughters were beaten to death in their

1
Judge Kongable presided over this case first as a superior
court judge in Yuma County, and later, after he had left the
bench in Yuma County, as a judge pro tempore in Maricopa County.

1
Yuma apartment. After a jury convicted Alvie Kiles of three

counts of first degree murder and two counts of child abuse, the

trial judge sentenced Kiles to death for each murder. The

convictions and Kiles’ sentences were affirmed on direct appeal.

See State v. Kiles (Kiles I), 175 Ariz. 358, 857 P.2d 1212

(1993). In post-conviction relief proceedings, the superior

court found ineffective assistance of counsel and vacated the

convictions and sentences.

¶2 After a second jury trial in 2000, Kiles was again

convicted of three counts of first degree murder and two counts

of child abuse. The parties later stipulated to transfer the

case to Maricopa County. In 2006, a jury2 found three

aggravating factors for each murder: (1) Kiles had been

previously convicted of a crime involving the use or threat of

violence, (2) he had been convicted of multiple homicides, and

(3) he had committed the offenses in an especially cruel,

heinous, or depraved manner. See Ariz. Rev. Stat. (“A.R.S.”) §

13-703(F)(2) (1989) (prior offense involving threat or use of

violence); A.R.S § 13-751(F)(6), (F)(8) (Supp. 2008) (multiple

2
After Ring v. Arizona, 536 U.S. 584 (2002), legislation was
enacted providing for a jury trial as to both the existence of
capital aggravating circumstances and the appropriate sentence.
2002 Ariz. Sess. Laws, ch. 1, § 3 (5th Spec. Sess.); see State
v. Ring, 204 Ariz. 534, 545, ¶ 13, 65 P.3d 915, 926 (2003).

2
murders and especially cruel, heinous or depraved).3 The jury

also concluded that the two children were less than fifteen

years of age. A.R.S. § 13-751(F)(9) (defendant an adult and

victim younger than fifteen). The jurors, however, returned a

verdict of death only for the murder of Valerie Gunnell.4

¶3 An automatic notice of appeal was filed under Arizona

Rules of Criminal Procedure 26.15 and 31.2(b) and A.R.S. §§ 13-

4031 and -4033 (2001). This Court has jurisdiction under the

Arizona Constitution, Article 6, Section 5(3), and A.R.S. §§ 13-

4031, -4033.

B5

¶4 Alvie Kiles moved in with Valerie Gunnell and her two

daughters in January 1989. Valerie and Kiles soon began arguing

about Kiles stealing her food stamps to support his cocaine

habit. On February 9, 1989, Deirdre Johnson, who lived next

3
Arizona’s capital sentencing statutes were reorganized and
renumbered to A.R.S. §§ 13-751 to -759. 2008 Ariz. Sess. Laws,
ch. 301, §§ 26, 38-41 (2d Reg. Sess.). Because the renumbered
statutes are not materially different, we cite the current
version of the statute, unless otherwise noted.
4
The jurors could not reach a unanimous verdict regarding
the imposition of a capital sentence for the murders of the
children. The State dismissed the notice of death penalty
regarding those two slayings and the superior court sentenced
Kiles to consecutive life sentences. Kiles does not appeal
these convictions or sentences.
5
We view the facts in the “light most favorable to
sustaining the [guilty] verdict.” State v. Tucker (Tucker I),
205 Ariz. 157, 160 n.1, 68 P.3d 110, 113 n.1 (2003).
3
door to Valerie, saw Kiles outside the apartment working on his

car. Early the next day, Johnson saw Kiles back his car into a

parking space at the apartment. Later that morning Valerie’s

mother knocked on the door of the apartment, but got no answer.

¶5 Larry Hawkins saw Kiles outside Hawkins’ apartment

that morning in Valerie’s car. Valerie’s step-father also saw

Kiles driving her car that day. Later, Deirdre Johnson noticed

Kiles struggling to lift a trash bag over the fence behind the

apartment. He dropped the bag, which emitted a “loud thud

sound” when it landed.

¶6 That afternoon, Kale Johnson saw Kiles sitting in

Valerie’s car at a Yuma park. Referring to Valerie, Kiles told

Johnson, “I killed that girl.” Kiles admitted to Johnson that

“I killed the kids too” because they were “crying and hollering

and screaming.” He told Johnson that he had used something he

took from the car to commit the murders. Kiles also told

Johnson that he had disposed of the children’s bodies in the

Colorado River.

¶7 Johnson did not believe Kiles, so Kiles took Johnson

to Valerie’s apartment. Johnson saw Valerie’s body lying on the

floor. There was a puddle of blood on the floor and blood “all

over the walls and the ceilings.” Johnson attempted to leave

the apartment, but Kiles hit him with a broom handle.

¶8 Kiles admitted killing Valerie and the children to

4
others. Kiles told Larry Hawkins that he had killed Valerie and

her children. He explained that he and Valerie had argued over

food stamps that Kiles had taken to buy cocaine. Kiles told

Hawkins that Valerie had slapped him twice, once after he had

told her not to. Kiles then went to his car and retrieved a

tire jack, which he used to strike Valerie at least twice.

Hawkins stated that Kiles told him that Valerie “regained

consciousness” after the initial blow and asked Kiles, “[W]hy

did [you] do this?” Kiles told Hawkins that he had killed the

children “because . . . they had seen him.” Hawkins wrote a

letter to Yuma Silent Witness describing Kiles’ admissions.

¶9 Kiles also admitted to Jesse Solomon, a family friend,

and to his mother, Imojean Kiles, that he had killed Valerie

with the jack. He further told his mother that he had “taken

care of” the children “because they could talk,” and had

“dumped” the children’s bodies in a canal.

¶10 The Yuma police went to Valerie’s apartment on

February 11, 1989. The police found the apartment in

“disarray,” with cartons of eggs on the floor and a lamp

overturned. An officer saw blood spatters in a bedroom, signs

of a struggle, blood on the bed, and something “wrapped up in a

blanket” in the hall. It was Valerie’s body.

¶11 Further investigation at the apartment revealed blood

smeared on the bathroom floor “as if somebody had tried to wipe

5
[it up].” The bathroom smelled of cleanser and police found a

pile of bloody towels.

¶12 In Valerie’s bedroom, the bed was covered in papers

and money and there was clothing all over the floor. A blood-

soaked pillow and a piece of a car jack with her hair and blood

on it were also found. In the children’s bedroom, two “very

large pools of blood” were found on the bed. Blood spatter was

found on the walls, drapes, ceiling, and door of the west

bedroom. A blood spatter expert testified that at least

fourteen blows were delivered in the children’s room. In the

northwest corner of the living room, a blood-stained ottoman and

a bone fragment were also found. Blood had soaked into the

carpeting. Blood spatter and blood stains were found in the

living room. A chair in the living room had stains that

indicated someone had lost a lot of blood. A large bone

fragment and blood spatter were found near the south wall. In

addition, blood smears were found on the front door of the

apartment. Blood spatter and smears were found in the kitchen-

dining area as well.

¶13 Valerie died from multiple blunt force trauma to the

head with multiple scalp lacerations, skull fractures, and a

brain laceration. She had a broken arm, which medical testimony

identified as a defensive wound. The body of Valerie’s younger

child was later found in a canal in Mexico. She died of blunt

6
force trauma to the skull with extensive skull fractures and a

brain laceration. The older child was never found. Her blood,

however, was detected on the mattress cover in the apartment.

¶14 In his 2000 guilt-phase trial, Kiles admitted

murdering Valerie.6

II

A

¶15 Kiles first argues that the trial court’s instruction

on premeditation, combined with the prosecutor’s arguments, ran

afoul of this Court’s ruling in State v. Thompson, 204 Ariz.

471, 479-80, ¶¶ 32-34, 65 P.3d 420, 428-29 (2003).

¶16 Because Kiles failed to object to either the jury

instruction or the prosecutor’s argument, we review only for

fundamental error. See State v. Gallegos, 178 Ariz. 1, 11, 870

P.2d 1097, 1107 (1994) (“Failure to object at trial to an error

or omission . . . waives the issue on appeal unless the error

amounts to fundamental error.”); see also Ariz. R. Crim. P.

21.3(c). Fundamental error is “error going to the foundation of

the case, error that takes from the defendant a right essential

to his defense, and error of such magnitude that the defendant

could not possibly have received a fair trial.” State v.

Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005)

6
Kiles did not testify at the first trial. See Kiles I, 175
Ariz. at 363, 857 P.2d at 1217.
7
(internal quotation marks omitted). “To prevail under this

standard of review, a defendant must establish both that

fundamental error exists and that the error in his case caused

him prejudice.” Id. at ¶ 20.

1

¶17 First degree murder is committed when a person

“[i]ntending or knowing that his conduct will cause death . . .

causes the death of another with premeditation.” A.R.S. § 13-

1105(A)(1) (1989). The superior court gave the following

instruction about premediation:

Premeditation means the defendant acts with the
knowledge that he will kill another human being, when
such intention or knowledge precedes the killing by a
length of time to permit reflection. An act is not
done with premeditation if it is the instant effect of
a sudden quarrel or heat of passion.
¶18 No error occurred here. Thompson invalidated the use

of an instruction stating both that premeditation could be “as

instantaneous as successive thoughts of the mind” and that

“proof of actual reflection is not required.” 204 Ariz. at 479-

80, ¶¶ 32-34, 65 P.3d at 428-29. The jury instruction given

here is similar to the alternative instruction approved in

Thompson, and reflects the statute in force at the time. Id. at

479, ¶ 32, 65 P.3d at 428.7 As Kiles acknowledges, the

7
The statute defined premeditation as meaning that

8
instruction neither included the disapproved “instantaneous as

successive thoughts” language nor stated that actual reflection

was not required. Indeed, the instruction specifically stated

that premeditation required consideration of the murder

preceding the act.

¶19 This instruction correctly distinguishes between

reflection and action. See id. (“[The jury must find that the

defendant] reflected on the decision before killing. It is this

reflection, regardless of the length of time in which it occurs,

that distinguishes first degree murder from second degree

murder.”).

¶20 This distinction is crucial because it was the

language stating “that the length of time [for reflection] can

be ‘as instantaneous as successive thoughts of the mind’” that

created the problem in Thompson. Id. at 478, ¶ 26, 65 P.3d at

427. This problem was obviated by the trial court’s instruction

here, consistent with Thompson, specifying that an act that is

the “instant effect of a sudden quarrel or heat of passion” is

not premeditated. Id. at ¶ 28. “This language distinguishes

the defendant acts with either the intention or the
knowledge that he will kill another human being, when
such intention or knowledge precedes the killing by a
length of time to permit reflection. An act is not
done with premeditation if it is the instant effect of
a sudden quarrel or heat of passion.
A.R.S. § 13-1101(1) (1989).
9
impulsive killings from planned or deliberated killings and

confirms the legislature’s intent that premeditation be more

than just a snap decision made in the heat of passion.” Id.

2

¶21 Nor did the prosecutor’s argument create fundamental

error. The State’s theory of the case was that Kiles left

Valerie’s apartment, went to his car, returned with the jack,

attacked her, and when she regained consciousness, began the

final, fatal onslaught. With respect to premeditation, although

the prosecutor noted that the time required to actually

premeditate could be “instantaneous,” he made clear that such

was not the case in this matter. His argument focused on the

circumstantial evidence of premeditation, noting that Kiles had

to go out to his car, open the hatchback, find a weapon, return

to the apartment, and then attack Valerie. Further, after his

first attack did not kill Valerie, Kiles resumed his assault.

¶22 The prosecutor’s argument was consistent with

Thompson, which approved an instruction that said reflection can

occur “regardless of the length of time in which it occurs” and

specifically permits prosecutors to argue circumstantial

evidence of reflection. 204 Ariz. at 479, ¶¶ 31-32, 65 P.3d at

428 (“Such evidence might include, among other things, threats

made by the defendant to the victim, a pattern of escalating

violence between the defendant and the victim, or the

10
acquisition of a weapon by the defendant before the killing.”).8

B

¶23 The State charged Kiles with murdering Valerie Gunnell

knowingly and with premeditation. See A.R.S. § 13-1105(1)

(1989).9 During closing arguments, the prosecutor and Kiles’

attorney argued about whether the jury could consider

intoxication in determining premeditation.

¶24 The prosecutor argued that “intoxication does not

apply when you consider first degree murder. That is all there

is to it. No argument could be made that it’s any different.

When you are discussing . . . the crime of first degree murder,

whether it be premeditated or whether it be felony murder, you

are not allowed to consider that the defendant may have been

drinking or may have been intoxicated. That’s the law.” On

rebuttal, the prosecutor similarly argued that intoxication was

not a consideration in determining whether first degree murder

had been committed, particularly noting that intoxication does

8
In his reply brief, Kiles attempted to add new arguments
relating to prosecutorial misconduct. These arguments, however,
are waived, because “opening briefs must present significant
arguments, supported by authority, setting forth an appellant’s
position on the issues raised.” State v. Carver, 160 Ariz. 167,
175, 771 P.2d 1382, 1390 (1989).
9
This Court has held that A.R.S. § 13-1105 permits a
defendant to be charged with either knowing or intentional
murder, and that knowing alone could be charged “[e]ven if the
State charged knowingly rather than intentionally to preclude
the introduction of evidence of defendant’s intoxication.”
State v. Lavers, 168 Ariz. 376, 389, 814 P.2d 333, 346 (1991).
11
not apply to a “knowing” crime.

¶25 In contrast, the defense argued that Kiles’

intoxication affected his ability to “premeditate and commit

that murder.” Kiles’ attorney continued, “You can consider the

intoxication. We would not have put them in those instructions

if we didn’t want you to consider it . . . . As I told you in

opening, this is a case about the degree to which you have to

hold Alvie Kiles responsible for the death of Valerie.”

¶26 Kiles also asked the court for a curative instruction

on premeditation in light of the prosecutor’s argument. The

trial court concluded that the following instruction on

intoxication sufficed:

“Intoxication” means any mental or physical incapacity
resulting from use of drugs or intoxicating liquors.
No act committed by a person while in a state of
voluntary intoxication is less criminal by reason of
his having been in such condition, but when the actual
existence of the culpable mental state of
intentionally or with the intent to is a necessary
element to constitute any particular species or degree
of offense, the jury may take into consideration the
fact that the accused was intoxicated at the time in
determining the culpable mental state with which he
committed the act.

¶27 “A trial court’s refusal to give a jury instruction is

reviewed for abuse of discretion.” State v. Anderson (Anderson

II), 210 Ariz. 327, 343, ¶ 60, 111 P.3d 369, 385 (2005). The

Court reviews de novo whether a jury instruction accurately

reflects the law. State v. Cox, 217 Ariz. 353, 356, ¶ 15, 174

12
P.3d 265, 268 (2007).

¶28 Kiles’ claim that he was entitled to an instruction on

his “defense” of intoxication is without merit. The trial court

instructed the jury under the terms of former A.R.S. § 13-503

(1989).10 That section provided that

[n]o act committed by a person while in a state
of voluntary intoxication is less criminal by
reason of his having been in such condition, but
when the actual existence of the culpable mental
state of intentionally or with the intent to is a
necessary element to constitute any particular
species or degree of offense, the jury may take
into consideration the fact that the accused was
intoxicated at the time in determining the
culpable mental state with which he committed the
act.

¶29 The statute unambiguously provides that intoxication

is a defense only against the culpable mental state of

intentionally. See Lavers, 168 Ariz. at 389, 814 P.2d at 346

(concluding that voluntary intoxication is no defense to knowing

first degree murder). Consequently, Kiles’ argument that he may

not have reflected on his decision to bludgeon Valerie because

he was voluntarily intoxicated cannot be sustained.

¶30 Kiles also argues that this Court’s holdings in State

v. Moody (Moody II), 208 Ariz. 424, 466-67, ¶¶ 188-96, 94 P.3d

1119, 1161-62 (2004), and State v. Schurz, 176 Ariz. 46, 55 &

10
The legislature amended the statute in 1994 to eliminate
intoxication as a defense “for any criminal act or requisite
state of mind.” A.R.S. § 13-503 (2001); 1993 Ariz. Sess. Laws,
ch. 256, §§ 2, 3 (1st Reg. Sess.).
13
n.5, 859 P.2d 156, 165 & n.5 (1993), indicate that intoxication

under § 13-503 is a defense to premeditation. These cases do

not so hold. Rather, consistent with the statute, they hold

that intoxication is relevant to the culpable mental state of

intentional.

¶31 For instance, in Moody II, we observed that the trial

court erred because “[r]ather than instructing the jury that

intoxication could be considered in determining Moody’s mental

state at the time of the acts, the trial court instructed the

jury on the later version of the statute, which disallows

intoxication as a defense.” 208 Ariz. at 466, ¶ 188, 94 P.3d at

1161 (emphasis added). In Schurz, we explained that § 13-503

permitted a jury to consider voluntary intoxication only when

the culpable mental state is intentional or with intent to. 176

Ariz. at 55, 859 P.2d at 165.

¶32 Schurz addressed whether an intoxication instruction

was appropriate when a defendant was charged with

“intentionally” or “knowingly” committing first degree murder.

Id. at 55, 859 P.2d at 165. The Court explained that “[a]s a

matter of logic and statutory construction, an allegation of

‘intending or knowing’ is indistinguishable from an allegation

of ‘knowing.’” Id. “An inexorable result of the statute, then,

is that voluntary intoxication under A.R.S. § 13-503 will be

considered by the jury only when intent is alleged and knowing

14
is not alleged.” Id. The same reasoning applies to the

premeditation instruction given in this case.

¶33 Schurz left open whether “intoxication could be

relevant and admissible on the question of reflection [as a

requirement of premeditation], even if not admissible on the

question of culpable mental state.” Id. at 55 n.5, 859 P.2d at

165 n.5. But the premeditation instruction given here required

proof that Kiles acted “with the knowledge that he will kill

another human being when such intention or knowledge precedes

the killing by a length of time to permit reflection.”

(Emphasis added.) Because the instruction referred to both the

knowledge and intentional mental states, there was no error.

C

¶34 Although Kiles has affirmatively waived any challenge

to the guilt and sentencing for the deaths of the two children,

he nevertheless argues that the admission of various

photographs, both at the guilt trial and during the sentencing

proceedings, was error.

¶35 Admission of such evidence is reviewed for abuse of

discretion. State v. Spreitz (Spreitz I), 190 Ariz. 129, 141,

945 P.2d 1260, 1272 (1997). “The admissibility of a potentially

inflammatory photograph is determined by examining (1) the

relevance of the photograph, (2) its tendency to incite or

inflame the jury, and (3) the probative value versus potential

15
to cause unfair prejudice.” State v. Cruz, 218 Ariz. 149, 168-

69, ¶ 125, 181 P.3d 196, 215-16 (2008) (internal quotation marks

omitted).

¶36 Kiles’ opening brief does not specify his objection to

any but two of the challenged photographs. He has therefore

waived any argument as to the other photographs. See State v.

Martinez, 218 Ariz. 421, 434 n.14, ¶ 59, 189 P.3d 348, 361 n.14

(2008) (waiver found when argument fails to identify basis).

¶37 Exhibit 70, one of two exhibits on which Kiles

presented argument, plainly meets the test for admissibility.

The photograph demonstrates Valerie’s broken arm, which medical

testimony explained was a defensive wound. “[T]he fact and

cause of death are always relevant in a murder prosecution.”

Cruz, 218 Ariz. at 169, ¶ 126, 181 P.3d at 216 (internal

quotation marks omitted). Kiles has identified nothing about

the photograph that is particularly inflammatory, especially

given that “[t]here is nothing sanitary about murder.” Id. at ¶

127 (internal quotation marks omitted). Finally, the defensive

wounds portrayed in the photograph are highly probative; the

photograph thus corroborated that Kiles committed first degree

murder and supported the existence of the aggravating factor of

cruelty. See A.R.S. § 13-751(F)(6).

¶38 With respect to Exhibit 72, a photograph of one of the

16
children,11 Kiles suffered no prejudice. Given that the jury did

not determine that a sentence of death was appropriate for the

slayings of the children, we cannot conclude that this

photograph prejudiced the jury with regard to the verdict

rendered for Valerie’s murder.

D

¶39 Kiles claims that he was denied representation of

counsel in violation of the Sixth Amendment. In briefing and in

oral argument, Kiles’ appellate counsel contends that cumulative

evidence of alleged ineffectiveness and delays in the

appointment of counsel constitute complete deprivation of

counsel for Sixth Amendment purposes, obviating any need for him

to establish prejudice. See Powell v. Alabama, 287 U.S. 45, 68-

73 (1932) (holding that due process requires the provision of

counsel).

¶40 Kiles does not claim that he was without counsel in

any proceeding critical to his defense or that counsel lacked

ample time to prepare. State v. Glassel, 211 Ariz. 33, 51, ¶¶

62-64, 116 P.3d 1193, 1211 (2005) (rejecting claim of per se

ineffective assistance when defense counsel presented arguments

and evidence, but no witnesses, in mitigation); see also Powell,

287 U.S. at 71 (holding due process requires courts to assign

11
This photograph depicts the child’s body after it was
recovered from a canal in Mexico a week after the murders.
17
counsel to capital defendants in a manner that does not

“preclude the giving of effective aid in the preparation and

trial of the case”). Nor does Kiles contend on appeal he had an

irreconcilable conflict with counsel. See State v. Moody (Moody

I), 192 Ariz. 505, 508-09, ¶¶ 21, 23, 968 P.2d 578, 581-82

(1998) (reversing conviction and sentence when record

demonstrated irreconcilable conflict).

¶41 Kiles recognizes that ineffective assistance of

counsel claims are properly brought in post-conviction

proceedings under Arizona Rule of Criminal Procedure 32. E.g.,

State v. Spreitz (Spreitz II), 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525,

527 (2002). Indeed, his counsel conceded at oral argument that

all of his claims could be brought in such a proceeding. But he

nonetheless claims that his numerous allegations of

ineffectiveness may be combined to create structural error and

should be considered on direct appeal. See United States v.

Cronic, 466 U.S. 648, 659 n.25 (1984) (“The Court has uniformly

found constitutional error without any showing of prejudice when

counsel was either totally absent, or prevented from assisting

the accused during a critical stage of the proceeding.”).

¶42 Even accepting all of Kiles’ allegations as true,12 we

12
The State challenges the accuracy of Kiles’
characterization of the record below. Because we do not address
his claims of ineffective assistance, we express no opinion on
the allegations or their veracity and leave them for Kiles to
18
cannot conclude that he was effectively deprived of counsel.

The most that can be said is that there were delays and

allegations of poor professional conduct.

¶43 Because we cannot consider facts outside the record,

our consideration of ineffective assistance of counsel claims on

direct appeal would rarely result in reversal. We caution that

raising an argument such as this on direct appeal gains very

little, but risks a great deal, as the defendant who asks this

Court to determine issues of ineffectiveness on the appellate

record faces the possibility of later preclusion. See Ariz. R.

Crim. P. 32.2(a)(2) (“A defendant shall be precluded from relief

under this rule based upon any ground . . . [f]inally

adjudicated on the merits on appeal or in any previous

collateral proceeding . . . .”); see also Spreitz II, 202 Ariz.

at 3, ¶ 9, 39 P.3d at 527 (explaining that improvidently raised

ineffective assistance claims are not precluded because

appellate courts will decline to address such claims).

¶44 Nonetheless, Kiles attempts to distinguish his case by

arguing that the record demonstrates several violations of the

ABA Guidelines for the Appointment and Performance of Defense

Counsel in Death Penalty Cases (rev. ed. 2003) (“ABA Capital

Standards”), the ABA Criminal Justice Defense Function Standards

raise in a proper proceeding. See Glassel, 211 Ariz. at 51 n.9,
¶ 64, 116 P.3d at 1211 n.9.
19
(3d ed. 1993) (“ABA Criminal Standards”), and the Arizona Rules

of Professional Conduct. Specifically, he alleges that his

attorneys failed to properly assemble a defense team,

investigate the underlying facts of the case, communicate with

Kiles, and represent him competently and diligently. See, e.g.,

Ariz. R. Sup. Ct. 42, E.R. 1.1, 1.3 (competence and diligence);

ABA Capital Standard 10.4, 10.5 (establishing defense team,

relationship with client); ABA Criminal Standard 4-2.1, 4-3.1,

4-4.1 (communication, relationship with counsel, and

investigative duties). These alleged violations, he argues,

constitute structural error.

¶45 Citing Wiggins v. Smith, 539 U.S. 510 (2003), Kiles

argues that breach of these standards is qualitatively different

from typical claims of ineffective assistance of counsel. But

Wiggins announced no new category of structural error. Rather,

that case addressed an ineffective assistance of counsel claim,

an issue on which professional standards have considerable

bearing. See id. at 519-20 (“Petitioner renews his contention

that his attorneys’ performance at sentencing violated his Sixth

Amendment right to effective assistance of counsel.”);

Strickland v. Washington, 466 U.S. 668, 691-92 (1984) (noting

professionally unreasonable standard).13 Nor do any of the

13
Although this Court has subscribed to the ABA Capital
Standards under Arizona Rule of Criminal Procedure 6.8
20
allegations raised by Kiles obviate the need for a proper Rule

32 proceeding at which there will be a full opportunity to

assess counsels’ actions.

E

¶46 Kiles’ case was subject to regular news coverage;

Kiles claims the Yuma Sun published ninety-eight articles during

a ten-year period. He maintains the articles detailed evidence

of the case, including that the victims likely died from the

same cause, that Kiles had told several people in Yuma he had

committed the crimes, that Kiles had made inculpatory statements

during sentencing at the original trial, and that he elected to

stay silent in that trial. In addition, he argues, the coverage

revealed personal information about witnesses, expert testimony

from sentencing, and many other facts. Kiles argued that the

trial court should have concluded that this publicity was

excessive and inflammatory and that the court should have

presumed prejudice and moved the second trial to another

county.14

(b)(1)(iii), the comment to the rule itself makes clear “[a]
deviation from the guidelines . . . is not per se ineffective
assistance of counsel. The standard for evaluating counsel’s
performance continues to be that set forth in Strickland
. . . .” Ariz. R. Crim. P. 6.8, 2006 cmt.
14
Kiles did not contend that he proved actual prejudice from
the news coverage. See State v. Davolt, 207 Ariz. 191, 206, ¶
50, 84 P.3d 456, 471 (2004) (“The critical inquiry is the
21
¶47 The trial court denied Kiles’ motion. The court noted

the ten-year span and the fact that Yuma is a “growing

community” with a “transient” population, which suggested that

the most damaging stories simply would be unknown to most

people.

¶48 Whether a change of venue must be ordered turns on

whether “pretrial publicity will probably deprive the party of a

fair trial,” and the Court reviews the trial court’s

determination for an abuse of discretion. Cruz, 218 Ariz. at

156, ¶ 12, 181 P.3d at 203 (alterations and internal quotation

marks omitted).

¶49 Kiles argues that the pre-trial publicity in Yuma

County was such that this Court should presume prejudice to his

fair trial rights. He has not established, however, that the

media coverage created an “outrageous . . . ‘carnival-like’

atmosphere.” Id. at 157, ¶ 15, 181 P.3d at 204 (quoting State

v. Atwood, 171 Ariz. 576, 631, 832 P.3d 593, 648 (1992)); see

also State v. Bible, 175 Ariz. 549, 567, 858 P.2d 1152, 1170

(1993) (“Although many cases discuss the doctrine, very few

cases have actually presumed prejudice due to a carnival or

circus atmosphere at trial.”). At most, Kiles’ brief and the

arguments presented below point to regular press coverage over

‘effect of publicity on a juror’s objectivity’”) (quoting State
v. LaGrand, 153 Ariz. 21, 34, 734 P.2d 563, 576 (1987)).
22
the course of some ten years. Kiles simply has not satisfied

the “extremely heavy” burden of demonstrating that the pre-trial

publicity was presumptively prejudicial. See Bible, 175 Ariz.

at 564, 858 P.2d at 1167.

¶50 Kiles also argues that State v. Schmid, 109 Ariz. 349,

509 P.2d 619 (1973), requires an automatic change of venue if

certain facts are reported by the news media. But that case,

which offers suggestions to news organizations to avoid unfair

proceedings, simply does not stand for the proposition that any

mention of certain information will require reversal. Id. at

353-54, 509 P.2d at 623-24 (suggesting “publicity” of sensitive

information like guilt or innocence, existence and contents of

confessions and admissions, identity and credibility of

witnesses “may result in reversal”).

III

A

¶51 Over defense objection, the trial court permitted the

State to offer both Kiles’ conviction for aggravated assault and

his conviction for attempted aggravated assault to prove the

(F)(2) aggravating factor. See A.R.S. § 13-1204(A)(8) (Supp.

1985) (aggravated assault); A.R.S. §§ 13-1001(A) (2001)

(attempt), 13-1204(A)(1) (2001) (aggravated assault). When

Kiles committed Valerie’s murder, a defendant’s prior conviction

for “a felony in the United States involving the use or threat

23
of violence on another person” was an aggravating circumstance.

A.R.S. § 13-703(F)(2) (1989).15 This Court affirmed the use of

both convictions in Kiles I. See 175 Ariz. at 370, 857 P.2d at

1224.

¶52 At the second trial, defense counsel correctly argued

that Kiles I is inconsistent with subsequent case law defining

the (F)(2) aggravator. As this Court has clarified, “if [an]

offense could have been committed without the use or threat of

violence, the prior conviction does not qualify as an (F)(2)

aggravator.” State v. McCray, 218 Ariz. 252, 257, ¶ 17, 183

P.3d 503, 508 (2008). For example, because Arizona’s attempt

statute permits a crime to be committed with a single nonviolent

step, an attempted murder did not qualify under (F)(2). State

v. Williams, 183 Ariz. 368, 382, 904 P.2d 437, 451 (1995).

Kiles I is inconsistent with these decisions. See 175 Ariz. at

370, 857 P.2d at 1224.

¶53 At oral argument, the State argued that Kiles I is the

law of this case. The law of the case is

a rule of general application that the decision of an
appellate court in a case is the law of that case on
the points presented throughout all the subsequent
proceedings in the case in both the trial and the
appellate courts, and no question necessarily involved
and decided on that appeal will be considered on a
second appeal or writ of error in the same case,

15
The legislature later rewrote the statute to list the
crimes that qualify for the (F)(2) aggravator. See 1993 Ariz.
Sess. Laws, ch. 153, § 1 (1st Reg. Sess.).
24
 provided the facts and issues are substantially the
same as those on which the first decision rested, and,
according to some authorities, provided the decision
is on the merits.

State v. Bocharski, 218 Ariz. 476, 489, ¶ 60, 189 P.3d 403, 416

(2008) (quoting State v. King, 180 Ariz. 268, 278, 883 P.2d

1024, 1034 (1994)). Kiles is correct that the use of the

attempted offense is inconsistent with recent cases such as

McCray. But the Yuma County judge was not free to question this

Court’s ruling on a legal issue for the subsequent retrial.

Nevertheless, the law of the case is a procedural rule, and this

Court can recognize that a former ruling has been rendered

obsolete by later case law. Cf. King, 180 Ariz. at 278-79, 883

P.2d at 1034-35 (recognizing court’s power to revisit prior

rulings). Under more recent cases, the attempted aggravated

assault conviction does not establish the (F)(2) aggravator.

¶54 The (F)(2) aggravator remains valid, however, because

of the other conviction. Williams, 183 Ariz. at 382, 904 P.2d

at 451 (noting that reliance on ineligible conviction is

“immaterial” when another conviction suffices). Because Kiles

does not challenge the use of his aggravated assault conviction,

any error here is harmless beyond a reasonable doubt. See State

v. Sansing, 206 Ariz. 232, 237, ¶ 16, 77 P.3d 30, 35 (2003) 

(holding error harmless when no reasonable jury could have

25
failed to find aggravating factor established).16

B

¶55 Kiles next contends that because two jurors were not

convinced beyond a reasonable doubt that Kiles himself committed

the murders of the children, the (F)(8) aggravator should have

been stricken. In essence, he argues that an inconsistency

between the aggravation-phase jury’s verdict and the guilt-phase

jury’s felony murder verdict renders the (F)(8) aggravator

unconstitutional.

¶56 In 2000, the guilt-phase jury convicted Kiles of first

degree murder of the two children. In reaching their verdicts,

two jurors concluded that the murder of one daughter was felony

murder, and five jurors concluded that the murder of the other

daughter was felony murder. The remaining jurors concluded the

murder of each child was premeditated.

¶57 Before the 2006 sentencing jury could consider the

16
We also reject Kiles’ argument that Brown v. Sanders, 546
U.S. 212 (2006), requires remand for resentencing. Brown held
that in a state like Arizona, in which “the [capital]
eligibility factors by definition identif[y] distinct and
particular aggravating features, if one of them was invalid the
jury could not consider the facts and circumstances relevant to
that factor as aggravating in some other capacity.” Id. at 217.
Even if “the sentencer’s consideration of an invalid eligibility
factor . . . skewed its balancing of aggravators with
mitigators,” reversal is not required if “a state appellate
court determine[s] the error was harmless or reweigh[s] the
mitigating evidence against the valid aggravating factors.” Id.
(emphasis added). Here, the factor itself remains properly
established, and, in any event, because we independently review
Kiles’ sentence, Brown is inapposite.
26
aggravating factors, the trial court charged the jury with

determining whether the convictions for first degree murder of

the children qualified as death-eligible murders under Tison v.

Arizona, 481 U.S. 137 (1987), and Enmund v. Florida, 458 U.S.

782 (1982).17

¶58 The verdict form specifically asked the jurors to

reach conclusions on four separate Enmund/Tison issues: (1)

whether Kiles killed each child, (2) whether Kiles attempted to

kill each child, (3) whether Kiles intended that a killing take

place, and (4) whether Kiles was a major participant in the

crime of child abuse and acted with reckless indifference to

human life. Ten jurors found that Kiles killed both; eleven

found that he attempted to kill both; and twelve jurors found

that Kiles both intended a killing to take place and that he was

a major participant in the crime of child abuse and acted with

reckless indifference to human life.

¶59 After making its Enmund/Tison findings, the jurors

17
Enmund and Tison address the proportionality of capital
punishment for felony murder under the Eighth Amendment. See
Tison, 481 U.S. at 146-48 (explaining Eighth Amendment issues).
In Enmund, the Supreme Court reversed a Florida Supreme Court
decision because it “affirmed the death penalty . . . in the
absence of proof that Enmund killed or attempted to kill, and
regardless of whether Enmund intended or contemplated that life
would be taken.” 458 U.S. at 801. In Tison, the Court
concluded that a capital sentence could be appropriate when the
defendant exhibits “reckless disregard for human life implicit
in knowingly engaging in criminal activities known to carry a
grave risk of death.” 481 U.S. at 157-58.
27
were asked whether the State had proven the (F)(8) aggravator.

The court instructed the jurors: “You must assess the

aggravators based upon evidence of the defendant’s own actions

and mental state.” The judge then told the jury that

to find the aggravating factor of the defendant being
convicted of one or more other homicides, which were
committed during the commission of this offense, you
may not make your finding based solely upon the trial
jury’s verdict of guilt on multiple homicides. . . .
[Y]ou must find that the other murders were related in
time and space and motivation to the first degree
murder, which you are considering. This instruction
applies to each of the three murders.

A temporal or time relationship exists between
multiple homicides when it is established beyond a
reasonable doubt that the murders were committed
within a short span of time.

A spatial relationship exists when it is established
beyond a reasonable doubt that the victims were killed
in close physical proximity to each other.

A motivational relationship exists when it is
established beyond a reasonable doubt that the victims
were killed for a related reason.

The jury unanimously found the (F)(8) aggravator was proven

beyond a reasonable doubt.

¶60 Kiles’ arguments with regard to the (F)(8) aggravator

miss the mark. First, as the State notes, there is no need for

unanimity on a single theory. Cf. State v. Gomez, 211 Ariz.

494, 498 n.3, ¶ 16, 123 P.3d 1131, 1135 n.3 (2005) (“A jury need

not be unanimous as to the theory of first degree murder so long

as all agree that the murder was committed.”). Second, Kiles’

28
argument confuses two separate issues. The first issue is the

Enmund/Tison question: whether a felony murder may qualify to

make a person eligible for consideration of a capital sentence.

The second issue is whether the jury may consider convictions

for the murders of the children in determining whether the

(F)(8) aggravator was proven as to Valerie.

¶61 Under the (F)(8) aggravator, jurors are asked whether

“the defendant [has been] convicted of one or more other

homicides, which were committed during the commission of this

offense,” and whether such crimes are motivationally,

temporally, and spatially related to the offense considered for

a capital sentence. Determining whether the mixed premeditated-

murder and felony murder verdicts for the children’s deaths made

those convictions death-eligible differs from deciding whether

the convictions for those murders qualify under the (F)(8)

aggravator for Valerie’s death. Indeed, at oral argument, Kiles

conceded that because he does not challenge his guilt for the

slayings of the two children, he is guilty of those crimes.

Consequently, we reject Kiles’ effort to question the jury’s

findings on the (F)(8) aggravator.

IV

¶62 Because the murders were committed before August 1,

2002, we review aggravation, mitigation, and the propriety of

the sentence “independently” under A.R.S. § 13-755(A)-(C) (Supp.

29
2008). 2002 Ariz. Sess. Laws, ch. 1, § 7 (5th Spec. Sess.). In

conducting such 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

¶63 The jury found three aggravating circumstances: that

the defendant was previously convicted of a felony involving the

use or threat of violence on another person, see A.R.S. § 13-

703(F)(2) (1989), that the defendant committed the offense in an

especially heinous, cruel, or depraved manner, see id. § 13-

751(F)(6) (Supp. 2008), and that the defendant was convicted of

one or more other homicides that were committed during the

commission of the offense, see id. § 13-751(F)(8). We review

the record de novo to “determine[] [whether] an error was made

regarding a finding of aggravation.” Id. § 13-755(B); Anderson

II, 210 Ariz. at 354 & n.21, ¶ 119, 111 P.3d at 396 & n.21.

1

¶64 As previously discussed, it was error to permit the

jury to use Kiles’ attempted aggravated assault conviction to

satisfy the (F)(2) aggravator. Kiles’ previous conviction for

aggravated assault, however, proves the (F)(2) aggravator beyond

a reasonable doubt. See ¶¶ 51-54, supra.

30
 2

¶65 “Cruelty involves the pain and distress” to the victim

and may be found when “the victim consciously experienced

physical or mental pain prior to death, and the defendant knew

or should have known that suffering would occur.” Anderson II,

210 Ariz. at 352 n.18, ¶ 109, 111 P.3d at 394 n.18 (internal

quotation marks omitted).

¶66 The evidence shows beyond a reasonable doubt that the

murder of Valerie was especially cruel. Kiles admitted that

Valerie remained conscious after the attack began, and the

medical testimony regarding defensive wounds supported that

conclusion.

¶67 Additional evidence supports the (F)(6) aggravator and

the version of events Kiles admitted to Hawkins. A pillow with

blood on it consistent with a source that continued to move was

found in Valerie’s bedroom. A transfer stain consistent with a

person running a bloody hand along a door was also identified.

Blood spatter was found between eighteen and twenty-four inches

from the ground, indicating that “the source of the blood would

be lower toward the floor.” The transfer stain on the door,

together with spatter on the lower part of the north and south

walls of the living room, indicated that either the blood source

or the attacker was moving. A piece of the jack itself was

found in the bedroom with Valerie’s blood on it. This evidence

31
directly contradicts Kiles’ trial testimony, when, contrary to

his earlier admissions, he claimed that when he hit Valerie with

the jack, she fell down in a living room chair and never got

up.18

¶68 The (F)(6) cruelty aggravator was proven as to mental

and physical cruelty. See State v. Boggs, 218 Ariz. 325,

341, ¶ 78, 185 P.3d 111, 127 (2008) (affirming (F)(6) aggravator

based on admissions by defendant corroborated by physical

evidence).

¶69 Kiles’ argument that State v. Soto-Fong, 187 Ariz.

186, 928 P.2d 610 (1996), requires the Court to vacate the

(F)(6) finding is incorrect. In Soto-Fong, we rejected the

(F)(6) mental cruelty finding because the evidence indicated

only that one of the defendants “thought” one of the victims

lingered before dying. Id. at 204-05, 928 P.2d at 628-29. In

this case the evidence shows that Valerie was conscious after

the attack began and thus “experienced significant uncertainty

as to her ultimate fate.” State v. Ellison, 213 Ariz. 116, 142,

18
Kiles separately raises on appeal the denial of his motion
for acquittal of the (F)(6) aggravator under Ariz. R. Crim. P.
20 (stating that “[i]n an aggravation hearing, . . . on a motion
of a defendant . . . , the court shall enter a judgment that an
aggravating circumstance was not proven if there is no
substantial evidence to warrant the allegation”). Because this
case is subject to our independent review, however, our analysis
of sufficiency of the evidence supporting an aggravating factor
subsumes any Rule 20 issue. Anderson II, 210 Ariz. at 354, ¶
119 & n.21, 111 P.3d at 396 & n.21.
32
¶¶ 120-21, 140 P.3d 899, 925 (2006) (internal quotation marks

omitted). We distinguished Soto-Fong on similar terms in Boggs.

218 Ariz. at 341, ¶ 78, 185 P.3d at 127.

3

¶70 “To establish the [(F)(8)] aggravator, we evaluate the

temporal, spatial, and motivational relationships between the

capital homicide and the collateral homicide . . . .” Id. at ¶

79 (internal quotation marks and substitutions omitted).

¶71 Kiles was convicted of first degree murder of all

three victims. Kiles no longer disputes that he murdered the

children, and his own testimony confirms that he bludgeoned

Valerie to death. Witnesses testified that Kiles admitted

killing the children because they had seen the murder and

because they were screaming. Larry Hawkins testified that Kiles

admitted that all three murders had been committed at the same

time and that he disposed of the children’s bodies. Further,

blood from both children was found in their bedroom in Valerie’s

apartment. Given this evidence, “[t]he record demonstrates that

all three murders occurred on the same day and in the same

apartment . . . it is difficult to imagine a motive for the

killings [of the children] unrelated to the murder of

[Valerie].” State v. Tucker (Tucker II), 215 Ariz. 298, 321, ¶

105, 160 P.3d 177, 200 (2007) (internal quotation marks

omitted). Further, a continuing course of criminal conduct

33
establishes a motivational link. See Boggs, 218 Ariz. at 342, ¶

81, 185 P.3d at 128. Accordingly, the (F)(8) aggravator was

proven beyond a reasonable doubt.

B

¶72 The jury considered a comprehensive mitigation

presentation that sought to establish several mitigating facts,

including good behavior while in custody; a family history of

substance abuse; Kiles’ substance abuse; good character; and

various psychological and character disorders including post-

traumatic stress disorder and attention deficit hyperactivity

disorder. In urging this Court to conclude that he should

receive a sentence of less than death, Kiles emphasizes

psychological issues, chronic substance abuse, his good behavior

in custody, and his “traumatic” childhood. He argues both

statutory and non-statutory mitigation.

1

¶73 Kiles makes two claims to establish that his “capacity

to appreciate the wrongfulness of his conduct or to conform his

conduct to the requirements of law was significantly impaired.”

A.R.S. § 13-751(G)(1). He argues that psychological conditions

and chronic intoxication establish this statutory mitigator.

a

¶74 At the penalty phase, Kiles offered testimony of four

mental health experts who suggested that a combination of

34
psychological and substance abuse issues impaired Kiles’

judgment. This evidence, Kiles argues, establishes the

statutory mitigating factor of diminished capacity. See id.

¶75 Psychiatrist Albert Globus testified, based on his

review of records and an interview of Kiles, that at the time of

the murders Kiles was addicted to and dependent on alcohol and

cocaine, that he suffered from chronic depression stemming from

childhood, and had experienced “psychotic decompensation,” a

“toxic psychosis as a result of too much drugs, such as cocaine,

and even to some extent from alcohol.” He also testified that

Kiles had some impairment due to exposure in utero to alcohol,

based on his mother’s admitted drinking and pharmaceutical use

while pregnant. Kiles’ family history included evidence of

violence and drug and alcohol abuse. His family history was

consistent with making him genetically and environmentally

predisposed to depression, which in turn may have led to his

drug use, while at the same time preventing the development of

proper coping mechanisms. Dr. Globus concluded that Kiles’ use

of cocaine caused him to act impulsively, without “careful

consideration” of the consequences.

¶76 Dr. Thomas Gaughan, another psychiatrist, also

testified. He interviewed Kiles for five hours and reviewed

numerous school, police, medical, and other records. Dr.

Gaughan diagnosed Kiles with post-traumatic stress disorder

35
brought on by violence and abuse. He found Kiles’ strong

reaction to being touched a symptom of that abuse. Although

Kiles himself claimed his home life was loving, Dr. Gaughan

testified that evidence suggested it was not. Based on Kiles’

description of his childhood and school reports, Dr. Gaughan

also diagnosed Kiles with attention deficit hyperactivity

disorder, which includes impulsivity. He further opined that

drug and alcohol use, combined with attention deficit

hyperactivity disorder and post-traumatic stress disorder,

“decreas[e] the ability to apply [the] sort of rational thought

and judgment in terms of inhibiting actions.”19

¶77 Dr. Ashley Hart also testified. He originally

diagnosed Kiles with post-traumatic stress disorder based on the

murders themselves. In addition, he stated that Kiles had a

narcissistic personality disorder, bipolar disorder, and poly-

substance dependencies. He further testified that, although the

murders were the result of an “irresistible impulse,” Kiles knew

that his violence and substance abuse were related.

¶78 Finally, Dr. Mark Cunningham, a clinical psychologist,

identified “factors [that] predisposed [Kiles] to criminal

behavior.” Cunningham’s presentation was based on an interview

with Kiles and an extensive review of records. His method was

19
In addition, Dr. Gaughan diagnosed Kiles with obsessive
compulsive disorder.
36
to take studies, particularly studies from the U.S. Department

of Justice, and apply them to the facts of Kiles’ life to

establish his risk of criminal behavior.

¶79 In rebuttal, the State offered the testimony of Dr.

John Scialli, who testified based on his review of numerous

psychological and psychiatric reports, and a five-hour interview

of Kiles. He stated that Kiles reported routinely carrying

weapons, getting into fights, and feeling the need for

retribution. Because Kiles’ birth weight was normal, Dr.

Scialli concluded that Kiles did not have fetal alcohol syndrome

and that any effect from fetal exposure to alcohol would have

been minimal. He also directly contradicted Dr. Gaughan’s post-

traumatic stress disorder diagnosis. He testified that, in any

event, the disorder does not lead to the kind of impaired

judgment Kiles’ experts claimed. Dr. Scialli’s principal

diagnosis was that Kiles suffered from an anti-social

personality disorder along with substance dependencies and

intoxication.

¶80 John Moran, a psychologist, also testified for the

State. He stated that the results of a personality test showed

Kiles had traits consistent with an anti-social personality

disorder.

¶81 The opinions offered by the experts indicate Kiles has

a personality or character disorder. On balance, however, the

37
expert testimony does not show that Kiles established the

statutory mitigating factor of diminished capacity. See A.R.S.

§ 13-751(G)(1); Tucker II, 215 Ariz. at 323, ¶ 118, 160 P.3d at

202 (rejecting similar evidence as proof of statutory

mitigation). Rather, Kiles proved that he suffered from some

form of personality disorder, which we consider as non-statutory

mitigation. See Tucker II, 215 Ariz. at 323, ¶ 118, 160 P.3d at

202.

b

¶82 Kiles claims that his chronic drug abuse at the time

of the offense established the statutory mitigator of voluntary

intoxication. “Voluntary intoxication is a mitigating

circumstance under § 13-[751](G)(1) if it significantly impairs

a defendant’s capacity to conform his conduct to requirements of

the law.” Kiles I, 175 Ariz. at 374, 857 P.2d at 1228 (citation

omitted). But “[w]e have frequently found that a defendant’s

claim of alcohol or drug impairment fails when there is evidence

that the defendant took steps to avoid prosecution shortly after

the murder, or when it appears that intoxication did not

overwhelm the defendant’s ability to control his physical

behavior.” State v. Reinhardt, 190 Ariz. 579, 591-92, 951 P.2d

454, 466-67 (1997). Kiles admitted he attempted to clean up the

scene of the crime and disposed of the bodies of the two girls.

Accordingly, he has not proven the statutory mitigation of

38
impairment due to abuse of alcohol and drugs. See A.R.S § 13-

751(G)(1). Nonetheless, because Kiles’ abuse of intoxicants was

not disputed by the State’s experts, he has proved chronic

intoxication as a non-statutory mitigating factor.

2

¶83 Kiles raises many non-statutory mitigating factors

which, he claims, also demonstrate that he has established a

capital sentence is inappropriate.

a

¶84 Kiles proved by a preponderance of the evidence good

behavior in custody through evidence that he was entitled to

special privileges in prison and evidence that he was a model

prisoner in the Yuma County jail, where he treated staff with

the “utmost respect” and had no disciplinary record in six

years.

b

¶85 Kiles established that he had a less-than-ideal

childhood. For example, Kathy Perrone, who lived with the Kiles

family for about a year, recalled that Imojean Kiles was strict,

drank heavily, and administered “spankings, whippings, [and]

beatings.” She also stated that Kiles’ father’s death in the

early 1980s was hard on him. Imojean Kiles reported to Dr.

Gaughan that Kiles’ father threatened Kiles with a gun and once

choked him. Kiles reported seeing his father and mother fight

39
violently.

¶86 The evidence presented is not entirely clear cut,

however, because witnesses testified that Kiles’ home-life was

ordinary. For example, Kathy Perrone agreed that the Kiles

family had a “nice home,” that he was a “mama’s boy,” and that

she never saw either parent strike him. Similarly, she

testified Kiles was a well-liked child who did as he was told

during his early adolescence. Another witness, Yolanda

Beibrich, testified that in high school Kiles was well-liked,

respected his elders, and got along with his peers. Although

Kiles did not establish an extraordinarily bad home life, he did

establish that his home life was not ideal.

c

¶87 As noted above, Kiles established that he suffered

from some form of personality disorder and that he was substance

dependent at the time of the murders. Accordingly, we consider

these factors as non-statutory mitigators.

C

¶88 The State proved three aggravating factors, including

the multiple-murder aggravator, which “receives extraordinary

weight.” Boggs, 218 Ariz. at 344, ¶ 93, 185 P.3d at 130

(internal quotation marks omitted). Valerie’s murder was

especially cruel and inflicted both mental and physical pain on

her as she remained conscious after the attack began.

40
¶89 In light of this significant aggravation, Kiles’

mitigation evidence is not particularly compelling. Although

Kiles established that he has been a model prisoner since being

taken into custody, this Court accords this mitigating factor

minimal weight because of the expectation that prisoners behave

in prison. State v. Dann, 220 Ariz. 351, ___, ¶ 141, 207 P.3d

604, 628 (2009).

¶90 The psychiatric testimony, although consistent with a

personality disorder, did not establish a sufficient connection

to the murder to warrant significant weight; at most it

established Kiles’ bad judgment, not his inability to judge.

See Tucker II, 215 Ariz. at 323, ¶ 118, 160 P.3d at 202; State

v. Pandeli, 215 Ariz. 514, 533, ¶ 81, 161 P.3d 557, 576 (2007)

(noting that insubstantial impairment and defendant’s ability to

discern right from wrong lead to according such mitigation

lesser weight). Kiles argues that this Court should give great

weight to the fact that he acted impulsively, suggesting this

means he could not control his behavior. But this claim does

not account for the sustained attack on Valerie, nor his

decision to murder the children.

¶91 Likewise, Kiles’ non-statutory chronic intoxication

claims warrant reduced weight given that his efforts to cover up

the crime demonstrate his knowledge of its wrongfulness.

Reinhardt, 190 Ariz. at 591-92, 951 P.2d at 466-67. In

41
addition, although Kiles established that he was a “good kid”

who had a less-than-ideal childhood, this evidence carries

minimal weight “because the evidence . . . is far removed from

the crime.” State v. Armstrong, 218 Ariz. 451, 465-66, ¶ 79,

189 P.3d 378, 392-93 (2008). Kiles was twenty-seven at the time

of the murder.

¶92 Taken together, and in light of the significant weight

accorded to the (F)(6) and (F)(8) aggravators, the mitigation

offered by Kiles is not sufficient to call for leniency. In

light of the facts and circumstances of Kiles and his crime,

death is the appropriate sentence.20

V

¶93 For the forgoing reasons we affirm the verdict and

sentence.

_______________________________________
Michael D. Ryan, Justice

20
Kiles raises several issues previously decided by the
Supreme Court, the Ninth Circuit Court of Appeals, or this Court
to preserve for federal review. These, with one exception, are
listed in the attached appendix, along with authority Kiles
identifies as having rejected his arguments.

The exception is Kiles’ argument that lethal injection as
employed by the State is cruel and unusual. We reject that
issue as premature because Kiles “may raise in a petition filed
pursuant to Arizona Rule of Criminal Procedure 32 any objections
to the protocol to be used.” State v. Andriano, 215 Ariz. 497,
510 n.9, ¶ 62, 161 P.3d 540, 553 n.9 (2007).
42
CONCURRING:

_______________________________________
Rebecca White Berch, Chief Justice

_______________________________________
Andrew D. Hurwitz, Vice Chief Justice

_______________________________________
W. Scott Bales, Justice

_______________________________________
Ruth V. McGregor, Justice (Retired)

43
 Appendix

Issues preserved for federal review

1) The death penalty is per se cruel and unusual

punishment and violates the Eighth and Fourteenth Amendments,

and Article 2, § 15 of the Arizona Constitution. Rejected by

Gregg v. Georgia, 428 U.S. 153, 186-87 (1976); State v. Harrod

(Harrod I), 200 Ariz. 309, 320, ¶ 59, 26 P.3d 492, 503 (2001);

State v. Salazar, 173 Ariz. 399, 411, 844 P.2d 566, 578 (1992);

State v. Gillies, 135 Ariz. 500, 507, 662 P.2d 1007, 1014

(1983).

2) The death statute unconstitutionally requires

imposition of the death penalty whenever at least one

aggravating circumstance and no mitigating circumstance exist.

Rejected by Walton v. Arizona, 497 U.S. 639, 648 (1990); State

v. Miles, 186 Ariz. 10, 19, 918 P.2d 1028, 1037 (1996); State v.

Bolton, 182 Ariz. 290, 310, 896 P.2d 830, 850 (1995).

3) The death statute is unconstitutional because it fails

to guide the sentencing jury with a limiting definition of who

is eligible for the death penalty aggravating circumstances,

narrow the class of persons eligible for the death penalty and

reasonably justify the imposition of a harsher penalty. The

broad scope of Arizona’s aggravating factors, the broad

definition of premeditation, and the expansive number of

offenses under Arizona’s felony murder law make death-eligible

44
nearly anyone who is involved in a murder, in violation of the

Eighth and Fourteenth Amendments and Article 2, § 15 of the

Arizona Constitution. Rejected by State v. Greenway, 170 Ariz.

155, 164, 823 P.2d 22, 31 (1991).

4) Arizona’s death statute unconstitutionally requires

defendants to prove their lives should be spared. Rejected by

State v. Fulminante, 161 Ariz. 237, 258, 778 P.2d 602, 623

(1988).

5) Arizona’s death penalty statute unconstitutionally

fails to require either cumulative consideration of multiple

mitigating factors or that the jury make specific findings as to

each mitigating factor. Rejected by State v. Gulbrandson, 184

Ariz. 46, 69, 906 P.2d 579, 602 (1995); State v. Ramirez, 178

Ariz. 116, 131, 871 P.2d 237, 252 (1994); State v. Fierro, 166

Ariz. 539, 551, 804 P.2d 72, 84 (1990).

6) Arizona’s statutory scheme for considering mitigating

evidence is unconstitutional because it limits full

consideration of that evidence. Rejected by State v. Mata, 125

Ariz. 233, 242, 609 P.2d 48, 57 (1980).

7) The statute is unconstitutional because there are no

statutory standards for weighing. Rejected by State v. Atwood,

171 Ariz. 576, 645-46 n.21, 832 P.2d 593, 662-63 n.21 (1992).

8) Arizona’s death statute insufficiently channels the

sentencer’s discretion in imposing the death penalty. Rejected

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by Greenway, 170 Ariz. at 164, 823 P.2d at 31.

9) Arizona’s death statute is unconstitutionally

defective because it fails to require the State to prove that

death is appropriate. Rejected by Gulbrandson, 184 Ariz. at 72,

906 P.2d at 605.

10) The prosecutor’s discretion to seek the death penalty

unconstitutionally lacks standards, in violation of the Eighth

and Fourteenth Amendments and Article 2, §§ 1, 4, and 15 of the

Arizona Constitution. Rejected by State v. Salazar, 173 Ariz.

399, 411, 844 P.2d 566, 578 (1992).

11) The constitution requires a proportionality review of

a defendant’s death sentence which would allow the court to

identify cases sufficiently above the norm of first degree

murder to justify capital punishment. Rejected by Salazar, 173

Ariz. at 416, 844 P.2d at 588.

12) There is no meaningful distinction between capital and

non-capital cases, making each crime the product of an

unconstitutionally vague statute. Rejected by Salazar, 173

Ariz. at 411, 844 P.2d at 578.

13) Arizona’s capital sentencing scheme unconstitutionally

serves no deterrent purpose, exceeds any legitimate retributive

aim, is without penalogical justification, and results in the

gratuitous infliction of suffering. Rejected by Gregg, 428 U.S.

at 183.

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14) The conditions and length of appellant’s confinement

constitute cruel and unusual punishment. Rejected by Comer v.

Stewart, 215 F.3d 910, 916 (9th Cir. 2000).

47