State v. Moore

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-07-0164-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR1999-016742-001 DT
JULIUS JARREAU MOORE, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Norman D. Hall, Judge (Deceased)

CONVICTIONS OTHER THAN FIRST-DEGREE PREMEDITATED MURDER
AFFIRMED; FIRST-DEGREE PREMEDITATED MURDER CONVICTIONS AFFIRMED
IN PART, REVERSED IN PART; SENTENCES AFFIRMED
________________________________________________________________

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

DAVID GOLDBERG, ATTORNEY AT LAW Fort Collins, CO
By David Goldberg
Attorney for Julius Jarreau Moore
________________________________________________________________

B A L E S, Justice

¶1 This mandatory appeal is from a jury’s determination

that Julius Jarreau Moore should be sentenced to death for two

of the three murders for which he was convicted. We have

jurisdiction under Article 6, Section 5(3), of the Arizona

Constitution and Arizona Revised Statutes (“A.R.S.”) section 13-

4031 (2001).

 FACTUAL AND PROCEDURAL BACKGROUND

¶2 In November 1999, Delia Ramos and Sergio Mata were

selling crack cocaine from a small rental house in which they

lived on East Yale Street in Phoenix.1 Delia’s brother Guadalupe

Ramos lived with the couple.

¶3 On November 15, Debra Ford came to the house around

5:30 p.m., bought $30 to $40 of crack cocaine, and began smoking

it. After Ford ran out of money and drugs, she remained at the

house hoping Delia would give her more crack. Later that

evening, Ford sat outside the house smoking crack with Moore and

Sarry Ortiz. At some point, Moore left and Ford went with Ortiz

to drive around and smoke more crack. Ford again smoked crack

when she later returned to the Yale Street house.

¶4 While Ford was away with Ortiz, Moore went to his

mother’s house, where he lived with his girlfriend, Jessica

Borghetti. Moore told Borghetti that he had seen a person who

had tried to run him over and he was not going to stand for it.

He took a 9 mm pistol and drew a map for Borghetti of where he

was going in case something happened to him. The map showed a

destination other than the Yale Street house.

¶5 Tony Brown, an acquaintance of Ford, stopped by the

1
Except in our independent review of the death sentence, A.R.S.
§ 13-755(A) (Supp. 2008), 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
Yale Street house at about 4:00 a.m. on November 16, looking for

his girlfriend. Brown saw Mata outside and offered him cash if

he would tell Brown’s girlfriend to come out. When Mata tried

to take the cash, Brown hit Mata and threatened him. Mata ran

inside and Brown decided to leave.

¶6 As he was leaving, Brown saw a man, whom he later

identified as Moore, hiding in oleander bushes near the house.

Brown had seen Moore earlier that evening at a different crack

house. Brown testified that Moore called him over to the

bushes, flashed a gun, and asked if Brown wanted to help Moore

“get” Mata. Brown declined and left on his bicycle.

¶7 After Brown left, Moore sat outside the Yale Street

house smoking cigarettes with Ford and Guadalupe. Moore went

inside, obtained a small amount of crack, and then came back

outside to smoke it. Guadalupe and Ford went back inside the

house. While inside, Ford could hear Moore repeatedly knocking

on the door and calling for her. Delia gave Ford some crack and

asked her to leave.

¶8 When Ford went outside, Moore asked if she got more

crack and offered to let her use his pipe. Mata then came

outside. Moore asked whether Mata had a problem with him. Ford

heard no response; instead, she saw Moore shoot Mata and then

turn and shoot her. Ford fell to the ground and heard several

more gunshots in quick succession.

3
¶9 Shortly afterward, Ortiz picked up Moore near the Yale

Street house and drove him to his mother’s house. When he went

inside, his mother began yelling at him. Moore told Borghetti

he did not “need that right now” because he had just shot four

people. Upon learning that Moore had been out all night, his

mother kicked him and Borghetti out of the house. Moore and

Borghetti left with Ortiz. Moore gave Ortiz some crack while

they drove around.

¶10 While driving, Ortiz saw Ford lying in the front yard

of the Yale Street house. Ortiz got out of her car and flagged

down a taxi driver who called 911. Ortiz noticed Moore trying

to “take off in [her] car.” She got back in her car and they

drove around the neighborhood, picked up Ortiz’s friend, stopped

at another crack house to smoke crack, and then drove past the

crime scene again. After seeing the police had arrived, Ortiz

took Moore and Borghetti back to his mother’s house. As he got

out of the car, Moore gave Ortiz and her friend some crack.

¶11 Moore and Borghetti packed some belongings, including

Moore’s gun and the clothes he had worn the previous night, and

went to some friends’ apartment. After his photo appeared in

the newspaper, Moore cut off his braids in an effort to alter

his appearance. On November 23, 1999, Phoenix police officers

arrested Moore and Borghetti at the apartment. A firearms

examiner later concluded that bullets found at the crime scene

4
had been fired from Moore’s gun.

¶12 Moore was indicted for and convicted of two counts of

premeditated and felony murder for the murders of Delia and

Guadalupe, one count of premeditated murder for the murder of

Mata, one count of attempted first-degree murder for the

injuries to Ford, and one count of first-degree burglary. The

trial court was to sentence Moore in August 2002, but the

hearing was vacated after the Supreme Court held that Arizona’s

capital sentencing scheme was unconstitutional. See Arizona v.

Ring (Ring II), 536 U.S. 584, 609 (2002).

¶13 In November 2004, the trial court empanelled a jury to

determine Moore’s sentence. The State alleged two aggravators:

that Moore murdered Delia in an especially cruel manner, see

A.R.S. § 13-703(F)(6) (Supp. 1999), and that Moore murdered

multiple persons on the same occasion, see id. § 13-703(F)(8).

The jury did not reach a verdict on the (F)(6) aggravator, but

did find the (F)(8) aggravator. Before the penalty phase

concluded, the court declared a mistrial because Moore’s medical

expert suffered a heart attack.

¶14 In May 2007, the trial court empanelled a second jury

to determine Moore’s sentence. The court allowed the State to

retry the (F)(6) aggravator, and the second jury also failed to

reach a verdict on this aggravator. The court instructed the

jury that the (F)(8) aggravator had been established. The jury

5
determined that Moore should be sentenced to death for the

murders of Delia and Guadalupe, but should serve life

imprisonment for the murder of Mata.

DISCUSSION

A. Suggestive Identification

1. Pretrial Identification Procedures

¶15 Moore challenges the trial court’s denial of his

motions to suppress Ford’s pretrial and in-court

identifications. He argues that the court correctly concluded

that the pretrial identification procedures were unduly

suggestive, but erroneously found that Ford’s identification of

Moore was nonetheless reliable and therefore admissible under

Neil v. Biggers, 409 U.S. 188, 199-201 (1972).

¶16 Even if a pretrial identification procedure was

impermissibly suggestive, a subsequent identification is

admissible if it is nonetheless reliable. See State v. Lehr,

201 Ariz. 509, 520 ¶ 46, 38 P.3d 1172, 1183 (2002). To

determine reliability, Arizona courts consider the Biggers

factors. Id. at 521 ¶ 48, 38 P.3d at 1184.

[T]he factors to be considered [in evaluating the
likelihood of misidentification] include the
opportunity of the witness to view the criminal at the
time of the crime, the witness’ degree of attention,
the accuracy of his prior description of the criminal,
the level of certainty demonstrated at the
confrontation, and the time between the crime and the
confrontation.

6
Id. (alterations in original) (quoting Manson v. Brathwaite, 432

U.S. 98, 114 (1977)).

¶17 This Court reviews trial court rulings on pretrial

identifications for abuse of discretion. Id. at 520 ¶ 46, 38

P.3d at 1183. We defer to a trial court’s factual findings that

are supported by the record and are not clearly erroneous. See

State v. Grell, 212 Ariz. 516, 528 ¶ 58, 135 P.3d 696, 708

(2006). The ultimate question of the constitutionality of a

pretrial identification is, however, a mixed question of law and

fact. Sumner v. Mata, 455 U.S. 591, 597 & n.10 (1982)

(discussing difference between factual findings on particular

Biggers factors and ultimate conclusion whether facts state a

constitutional violation). This Court reviews de novo such

mixed questions of law and fact. See State v. Altieri, 191

Ariz. 1, 2 ¶ 7, 951 P.2d 866, 867 (1997) (applying de novo

review to ultimate legal determination of whether facts

supported investigatory stop). A trial court ruling on a motion

to suppress is reviewed based solely on the evidence presented

at the suppression hearing. State v. Newell, 212 Ariz. 389, 396

¶ 22, 132 P.3d 833, 840 (2006); State v. Dessureault, 104 Ariz.

380, 384, 453 P.2d 951, 955 (1969) (outlining procedures for

hearing).

¶18 On the morning of the shooting, Detective Tim Cooning

questioned Ford at the hospital. Ford described her assailant

7
as “Jay,” a “black male, approximately twenty-one years of age.”

She also said that she had not seen Jay before the shooting. In

the days that followed, Cooning showed Ford a photo of another

suspect – Tony Brown. Ford indicated that Brown was not the

shooter and that the shooter was “smaller in size and thinner

than [Brown].”

¶19 On November 20, 1999, four days after the shootings,

Cooning questioned Ford again at the hospital. Lying in a

hospital bed, Ford could not easily speak because she had a

tracheotomy and tubes in her nose. Cooning showed Ford a photo

lineup of six African-American males that included Moore. Asked

if she recognized anyone, Ford shook her head no. Cooning then

asked Ford if she had any doubt that it was “Jay” who shot her

and she again shook her head no. She nodded in assent when

asked to confirm that she had previously said that Jay acted

alone, that he was smaller and skinnier than Brown, and that he

was a black male, approximately twenty-one years of age, who

wore braids. Cooning also showed Ford two composite sketches,

which she indicated looked a bit like the shooter.

¶20 Ford was deposed on videotape on April 28, 2000.

Although Ford was in a wheelchair and paralyzed from the neck

down, she was able to speak and appeared alert. At the

deposition Ford testified that Jay, the man who shot her, had

medium-size braids and was wearing a stocking cap and hooded

8
shirt. Ford also testified that she had met Jay three years

earlier while using crack and hanging out near 23rd Avenue and

Indian School and that she had not seen him again until the

night before the shootings. She stated that her shooter was

eighteen years old and about 6’1”. The prosecutor showed Ford a

video lineup comprised of short video clips of seven African-

American men, including Moore. Ford was again unable to

identify Moore.

¶21 On cross-examination defense counsel asked Ford to

confirm that she had previously been shown pictures to see if

she could identify the shooter. Ford said that while she was in

the hospital an unidentified policeman had shown her a picture

of the person who shot her. On redirect, the prosecutor showed

Ford the video of the November 20, 1999 interview in which

Cooning showed her the six-person photo lineup and the two

composite sketches. The prosecutor then asked if the composite

in the video looked like someone she knew. Ford instead focused

on the photo lineup and said: “That looked like — one of them —

it’s two of them in the middle, right? Looked more like him —

more like him than the picture I just seen just now.” The

prosecutor then showed her the original photo lineup and she

immediately identified Moore as the shooter.

¶22 Before trial, Moore moved to suppress Ford’s out-of-

court identification and any prospective in-court

9
identification. Moore argued that the identification was unduly

suggestive because Moore was the only common subject in the six-

person photo lineup and the seven-person video lineup and Ford

had identified him only upon the fourth showing of a lineup that

included his picture. After conducting a Dessureault hearing,

the court found that the State had failed to establish that the

deposition identification procedures were not unduly suggestive,

but the State had established that Ford’s “in-court

identification could be reliable, independent of and untainted

by the April 28, 2000 identification.”

¶23 Because the State does not challenge on appeal the

trial court’s conclusion that the identification procedures at

the April deposition were unduly suggestive, we must apply the

Biggers factors to determine whether the trial court erred in

concluding that Ford’s identification was nevertheless reliable.

See Lehr, 201 Ariz. at 521 ¶ 48, 38 P.3d at 1183-84.

a. Opportunity to view the criminal at the time of the
crime

¶24 The trial court found, with support in the record,

that Ford had an adequate opportunity to view Moore. Although

the shootings occurred in the darkness of early morning, and

Ford had been consuming crack throughout the night, Ford

testified that thirty seconds before Mata came outside she

talked with Moore from a distance of six to seven feet. She

10
also had spent time with Moore earlier that evening when they

had smoked crack together, and she had heard him calling for her

several times during a fifteen minute period before she went

outside.

b. Witness’s degree of attention

¶25 Although the trial court did not make an explicit

finding on this factor, the record shows that Ford’s attention

was directed to Moore when the shootings began. She went

outside in response to his persistent calling for her, and when

she emerged they talked about whether she had more crack.

Within seconds Mata came outside and the encounter between the

two men occurred.

c. Accuracy of the witness’s prior description of the
criminal

¶26 Under Biggers, we assess the accuracy of a witness’s

prior description, i.e., before the unduly suggestive procedure.

See 409 U.S. at 199-200. Moore did not argue below, and we do

not find, that the initial showing of the six-person photo

lineup to Ford in November 1999 was unduly suggestive. In that

interview, Ford confirmed an earlier description of her

assailant as a black male, twenty-one years old, named Jay, who

wore braids, and who was smaller and thinner than Tony Brown.

The record supports the trial court’s finding that Ford’s prior

description of the shooter coincided with Moore’s appearance.

11
 d. Level of certainty demonstrated by the witness at
the confrontation

¶27 Although the prosecution did not ask Ford about her

level of certainty in identifying Moore, the video deposition

reflects that she was certain that the person she identified in

the photo lineup shot her. Before seeing the photo lineup

again, she testified, “I know who shot me.” After watching the

video of her November 1999 interview, she said that one of

photos “looked more like him” than the composite sketches. When

she was then shown the actual photo lineup, she immediately

identified Moore.

e. Length of time between the crime and the
confrontation

¶28 The deposition took place nearly six months after Ford

witnessed the shooting. This passage of time does not in itself

defeat the reliability of the identification. See, e.g., id. at

201 (finding identification made seven months after crime

reliable); Lehr, 201 Ariz. at 521 ¶ 51, 38 P.3d at 1184 (stating

passage of four months gives pause but ultimately does not

threaten reliability).

f. Weighing of factors and conclusion

¶29 Whether a pretrial identification is reliable is based

on the “totality of the circumstances.” Biggers, 409 U.S. at

199. We find that the State established a reliable basis for

Ford’s identification independent of any suggestive procedures

12
used at the April 2000 deposition. Ford’s use of crack cocaine,

her failure to identify Moore in her November 1999 interview,

and any inconsistencies in her account affect the weight, rather

than the admissibility, of her identification and were

appropriately the subject of cross-examination. The trial court

did not err in admitting Ford’s pretrial and in-court

identifications.

2. The Prosecution’s Opening Statement Comment

¶30 During opening statements, the prosecutor told the

jury, “Debra . . . knew Julius Moore, Jay. She described him.

She recognized him from the night of the shooting from seeing

him before, and she recognized him sometime later as well.”

Toward the end of his remarks, the prosecutor again emphasized

Ford’s identification. While the prosecutor spoke, Ford sat in

the courtroom without objection from Moore.

¶31 After opening statements, defense counsel renewed the

Dessureault objection. Counsel asserted that Ford had not

previously been told that the person she identified in the photo

lineup was indeed Moore, and therefore any in-court

identification by Ford would be “even more suggestive, and less

likely to have a source independent of the previous unduly

suggestive out-of-court identification.”

¶32 “[I]f [a] pretrial identification comports with due

process, subsequent identification at trial does not violate a

13
defendant’s rights merely by following on the heels of the

earlier confrontation.” Lehr, 201 Ariz. at 521 ¶ 52, 38 P.3d at

1184. Because Ford’s pretrial identification was otherwise

reliable, and therefore did not violate due process, the

prosecutor’s reference to it in his opening statement does not

render inadmissible either the pretrial identification or the

later in-court identification.

B. Guilt-Phase Jury Selection Issues

1. Morgan v. Illinois Challenge

¶33 In Morgan v. Illinois, the Supreme Court held that a

capital defendant is entitled, upon request, to inquire whether

prospective jurors believe death should always be imposed for

the conviction of a capital offense. 504 U.S. 719, 735-36

(1992). Failure to permit such questioning is structural error.

Id. at 729-30.

¶34 Moore argues that the trial court committed structural

error by not asking jurors if they thought the death penalty

should be imposed in all cases in which a person knowingly or

intentionally kills another, even though counsel had

specifically requested a jury questionnaire including such

“life-qualifying” questions.

¶35 There was no Morgan error here. The trial court

declined to use a written juror questionnaire and instead told

counsel: “[T]hat is not to suggest that these questions can’t

14
and won’t be asked.” After conducting oral voir dire, the trial

court allowed the prosecutors and defense counsel to question

the panel. Among other questions, Moore’s counsel asked: “Is

there anyone on the panel here that thinks the death penalty is

not given enough in the United States, or this state, for that

matter?” Defense counsel did not ask other life-qualifying

questions.

¶36 Because Moore was allowed to question the jurors, he

cannot complain that the trial court did not itself ask life-

qualifying questions. See State v. Moody (Moody II), 208 Ariz.

424, 452 ¶ 98, 94 P.3d 1119, 1147 (2004) (“[A] defendant who

believes a trial court’s voir dire to be deficient cannot sit on

his rights and bypass the opportunity to cure the error

. . . .”). The trial court did not prevent defense counsel from

asking life-qualifying questions, but instead refused to ask

them in a written questionnaire and invited counsel to ask such

questions in oral voir dire.

2. Witherspoon v. Illinois Challenge

¶37 Moore argues that the trial court erroneously struck

three jurors for cause in violation of Witherspoon v. Illinois,

391 U.S. 510 (1968). We review a trial court’s decision to

strike a potential juror for cause for abuse of discretion.

State v. Jones, 197 Ariz. 290, 302 ¶ 24, 4 P.3d 345, 357 (2000).

¶38 “A death sentence cannot be upheld if the jury was

15
selected by striking for cause those who ‘voiced general

objections to the death penalty or expressed conscientious or

religious scruples against its infliction.’” State v. Ellison,

213 Ariz. 116, 137 ¶ 88, 140 P.3d 899, 920 (2006) (quoting

Witherspoon, 391 U.S. at 522). A judge, however, is required to

question jurors regarding their opinions on the death penalty,

see, e.g., State v. Anderson (Anderson I), 197 Ariz. 314, 318-19

¶¶ 7-10, 4 P.3d 369, 373-74 (2000), and, after attempting

rehabilitation, must remove a potential juror from the jury pool

if the juror’s personal views may “prevent or substantially

impair the performance of [the juror’s] duties.” Wainwright v.

Witt, 469 U.S. 412, 424 (1985) (internal quotation marks

omitted). We defer to the trial judge and a juror’s bias need

not be proved with unmistakable clarity. Id. at 424-25.

Instead, “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 in

the jury room’ sufficient to substantially impair his duties as

a juror, allowing a strike for cause.” Ellison, 213 Ariz. at

137 ¶ 89, 140 P.3d at 920 (quoting State v. Glassel, 211 Ariz.

33, 48 ¶¶ 49-50, 116 P.3d 1193, 1208 (2005)).

¶39 Moore makes two arguments with regard to the striking

of the three potential jurors. He primarily argues that the

trial court committed structural error under Anderson I by

16
striking jurors who had expressed general reservations about the

death penalty without specifically asking if they could set

aside their beliefs and follow the law. He also suggests that

the trial judge abused his discretion in excluding these jurors

given their responses to the questions asked.

¶40 During jury selection, the court informed the

prospective jurors that if they were selected they would be

instructed not to consider the possible punishment in

determining guilt or innocence; that if the defendant were found

guilty of first-degree murder, the court may impose a sentence

of either life imprisonment or death; and that the jury would

not determine the sentence. The court then asked the potential

jurors: “Do any of you have any conscientious or religious

scruples or feeling that would prevent you from voting for first

degree murder because of the possible imposition of the death

penalty?” In response, three jurors responded affirmatively.

After briefly questioning these jurors, the court dismissed each

for cause.

¶41 Moore relies on Anderson I to argue that the trial

court’s failure to ask prospective jurors if they could set

aside their beliefs and follow the law is itself a structural

error that requires reversal. We reject this argument.

Anderson I held that structural error results if jurors are

dismissed based on their generalized answers to a written

17
questionnaire without any opportunity to rehabilitate them

through oral voir dire. Ellison, 213 Ariz. at 137 ¶ 87, 140

P.3d at 920.

¶42 The court’s failure here to specifically ask jurors if

they could set aside their beliefs is not analogous to the trial

court’s refusal in Anderson I to allow any oral voir dire after

jurors voiced general objections. The Federal Constitution does

not dictate a “catechism” for voir dire, and we have recognized

that jurors may be excluded for cause even if they affirm that

they can set aside their beliefs and follow the law. Id. at

¶ 89.

¶43 The issue thus becomes whether, given the questions

that were asked and the responses, the trial judge abused his

discretion in dismissing Jurors M., S., and G. for cause. These

jurors did not merely state general objections to the death

penalty. Instead, after the judge explained that the jury would

not determine, and should not consider, sentencing, they each

stated that their views on the death penalty could affect their

ability to decide the merits. Juror M. said that even though

the jury was not going to decide punishment, she was so strongly

opposed to the death penalty that it might affect her ability to

decide the case on its own merits. Juror S. said that his

feelings about the death penalty would probably interfere with

how he would decide the case. Finally, Juror G. said there was

18
a pretty good chance that her strong feelings about the death

penalty would “come into play” in her decision on guilt or

innocence.

¶44 Although the trial court asked less extensive follow-

up questions than trial courts in many other cases we have

considered, cf. Uttecht v. Brown, 551 U.S. 1 (2007) (noting that

deference to trial court’s assessment of prospective demeanor of

juror is appropriate when trial court “has supervised a diligent

and thoughtful voir dire”), given the trial court’s prefatory

statement that the court and not the jury would decide

sentencing, as well as the individual juror’s responses, the

trial court could reasonably conclude that the views of these

prospective jurors might substantially impair the performance of

their duties as jurors.

C. Refusal to Order Drug Test of State’s Witness

¶45 Moore asserts that the trial court abused its

discretion by refusing to order Ortiz to undergo a drug test to

determine if she was under the influence of drugs while

testifying. “We review a trial court’s ruling on the competency

of a witness for an abuse of discretion.” State v. Cruz, 218

Ariz. 149, 166 ¶ 105, 181 P.3d 196, 213 (2008). A trial court’s

refusal to order a witness to submit to a drug test is also

reviewed for abuse of discretion. See State v. Apodaca, 166

Ariz. 274, 276, 801 P.2d 1177, 1179 (App. 1990).

19
¶46 A witness under the influence of drugs is not

necessarily incompetent to testify. See State v. Ballesteros,

100 Ariz. 262, 265, 413 P.2d 739, 741 (1966). A witness is

competent unless she is so impaired that she cannot coherently

respond to questioning. See Cruz, 218 Ariz. at 166 ¶ 106, 181

P.3d at 213.

¶47 Ortiz testified during the guilt phase trial; among

other things, her testimony placed Moore near the scene of the

murders. After her redirect examination, defense counsel asked

the trial court to order Ortiz to submit to a urinalysis test to

determine whether she was under the influence of drugs. Counsel

said that Ortiz was acting strangely because she was talking

rapidly and got “off track” during questioning. The court

denied the request because it did not view Ortiz’s behavior as

atypical of a witness. The court stated that Ortiz was

coherent, quick to respond to questions, and not slurring her

speech.

¶48 The trial court did not abuse its discretion in

refusing to order a drug test. The transcript and partial video

recording of Ortiz’s testimony show that Ortiz was coherent and

responded appropriately to questioning, even though she had a

tendency to ramble and interrupt counsel. Cf. id. (“Although

[witness’s] testimony was somewhat rambling, it was coherent.”).

The trial court therefore did not abuse its discretion in

20
finding her competent to testify. Moreover, defense counsel was

not prevented from cross-examining Ortiz regarding her drug

history or whether she was under the influence of drugs while

testifying. Cf. State v. Orantez, 183 Ariz. 218, 222-23, 902

P.2d 824, 828-29 (1995) (discussing impeachment of witness based

on drug use).

D. Notice and Sufficiency of Evidence of Burglary and Felony
Murder Charges

¶49 With regard to the deaths of Delia and Guadalupe, the

indictment charged that Moore had committed first-degree

premeditated murder or, in the alternative, had committed first-

degree felony murder with a predicate felony of first-degree

burglary. The indictment also charged Moore with first-degree

burglary, alleging that he, while possessing a handgun, had

“with the intent to commit a theft or a felony therein, entered

or remained unlawfully in or on the residential structure of

Delia Ramos” at East Yale Street. Arizona statutes identify

burglary as one of the predicates for felony murder, A.R.S.

§ 13-1105(A)(2) (Supp. 1999), and define burglary to include

unlawfully entering or remaining in a residence with the intent

to commit “theft or any felony therein.” Id. §§ 13-1506, -1507,

-1508 (1989).

¶50 Moore argues that he was denied due process because

the State did not provide notice until the settling of jury

21
instructions, and after the close of evidence, that it intended

to establish burglary based on Moore’s entering the house with

the intent to commit murder rather than theft. Moore further

argues that burglary based on a defendant’s intent to murder

cannot validly serve as a predicate for felony murder and

accordingly there was insufficient evidence to support his

felony-murder convictions.

1. Notice

¶51 This Court reviews constitutional issues and purely

legal issues de novo. Moody II, 208 Ariz. at 445 ¶ 62, 94 P.3d

at 1140. The Sixth Amendment and due process require that a

defendant be given “notice of the specific charge, and a chance

to be heard in a trial of the issues raised by that charge.”

Cole v. Arkansas, 333 U.S. 196, 201 (1948). Similarly, Arizona

Rule of Criminal Procedure 13.2 provides that an “indictment or

information shall be a plain, concise statement of the facts

sufficiently definite to inform the defendant of the offense

charged.”

¶52 Moore chiefly relies on State v. Blakley, 204 Ariz.

429, 65 P.3d 77 (2003). In Blakley, the state initially

disclosed sexual assault as the predicate offense for felony

murder; at the close of evidence and before closing arguments,

however, the state requested a jury instruction that added child

abuse as an alternative predicate offense. Id. at 439 ¶ 46, 65

22
P.3d at 87. Blakley had defended the case assuming that sexual

assault was the sole predicate felony and had presented evidence

suggesting that the victim died of injuries consistent with

child abuse rather than sexual assault. Id. at 440 ¶ 54. He

also identified other evidence he would have presented had he

known child abuse was also alleged. Id.

¶53 Blakley concluded that “[t]he insertion of a new

predicate felony after all the evidence was in and the defense

had rested constitutes reversible error. The prejudice caused

by such late notice was obvious. The defendant was deprived of

his constitutional right to a fair trial.” Id. at ¶ 55. We

further noted, “[i]n order to avoid injustice and to ensure that

proper notice has been given in a felony murder case, we believe

the state should include the predicate felony in the original or

an amended indictment.” Id. at ¶ 56.

¶54 Moore’s case is distinguishable from Blakley. Moore

does not argue that the State charged or argued one theory and

then attempted to adopt another after the close of evidence.

Instead, Moore complains that the State, while charging felony

murder based on burglary, did not specify until the settling of

jury instructions, and after the close of evidence, that

burglary would be defined by his intent to commit murder rather

than theft.

¶55 We agree with Moore that Blakley implies that the

23
state should identify before trial the particular felony that

will be used to define burglary when the latter crime is the

predicate for felony murder. But Blakley itself recognizes that

the state’s failure to specify the predicate felony before trial

will not be reversible error if the defendant otherwise has

notice and an opportunity to respond to the accusations. See

id. at 439-40 ¶¶ 50, 52, 65 P.3d at 87-88. Blakley explained

that in State v. Arnett, 158 Ariz. 15, 18, 760 P.2d 1064, 1067

(1988), the Court found adequate notice when the state mentioned

the predicate felony on the first day of trial, “giving defense

counsel a reasonable chance to rebut the allegation.” Blakley,

204 Ariz. at 439 ¶ 50, 65 P.3d at 87. Similarly, in State v.

Eastlack, 180 Ariz. 243, 258, 883 P.2d 999, 1014 (1994), the

Court rejected the defendant’s argument that he had received

inadequate notice that kidnapping would be used as a predicate

felony when the defendant failed to show either prejudice or

unfair surprise.

¶56 Like the defendants in Eastlack and Arnett, Moore was

not denied notice of the predicate felony in a way that violates

due process or otherwise constitutes reversible error. Although

the State did not specifically identify until after the close of

evidence that the predicate burglary would itself be based on

Moore’s intent to murder, he had both notice and an opportunity

to defend against the underlying accusations. Moore had notice

24
he was accused of entering or remaining in the Yale Street house

with the intent to murder because he was charged with the

premeditated murders of Guadalupe and Delia and with first-

degree burglary of the house.

2. Felony Murder and the Merger Doctrine

¶57 Relying on State v. Essman, 98 Ariz. 228, 403 P.2d 540

(1965), Moore also argues that under the merger doctrine, felony

murder cannot be predicated upon a burglary that is itself based

on the intent to murder.

¶58 In Essman, the Court held that the trial court had

erred by instructing the jury that the felony-murder doctrine

could apply based on assault with a deadly weapon. Id. at 235,

403 P.2d at 545. Although Arizona statutes did not identify

assault as a predicate for felony murder, the Court reasoned

more generally that allowing assault to serve as a predicate

would eliminate any requirement of proof of premeditation for

nearly all first-degree murders. See id. at 235-36, 403 P.2d at

545. Quoting Judge Cardozo, the Court observed:

“The felony that eliminates the quality of the intent
must be one that is independent of the homicide and of
the assault merged therein, as e.g., robbery or
larceny or burglary or rape.”

Id. (quoting People v. Moran, 158 N.E. 35, 36 (1927)).

¶59 Later Arizona cases implicitly rejected the broad

language in Essman suggesting that the predicate felony must be

25
“independent of the homicide.” For example, in State v.

Miniefield, the defendant argued that it was fundamental error

to charge him with felony murder by arson because “the arson was

merely the use of fire to attempt to kill the victim.” 110

Ariz. 599, 601, 522 P.2d 25, 27 (1974). The Court rejected this

argument by noting that the felony murder statute provided that

when a person commits arson and the arson results in death it is

first-degree murder. Id. at 602, 522 P.2d at 28. “The statute

does not draw a distinction between a person who intends to kill

another by fire and one who only intends to burn down a dwelling

house and accidentally kills one of the occupants.” Id.; see

also State v. Lopez, 174 Ariz. 131, 141-42, 847 P.2d 1078, 1088-

89 (1992) (distinguishing Essman).

¶60 Most recently, the Court distinguished Essman in State

v. Dann (Dann I), 205 Ariz. 557, 74 P.3d 231 (2003). There, the

defendant argued that because he intended to murder a victim

rather than assault him, he could not be convicted of felony

murder. Id. at 567 ¶ 29, 74 P.3d at 241. Noting that the

defendant did not dispute that felony murder could be predicated

on burglary based on intent to commit assault, the Court held

that sufficient evidence supported the finding of the predicate

offense. Id. at 567-68 ¶¶ 27-29, 74 P.3d at 241-42. The Court

further observed that “[m]erger does not apply in cases in which

26
the separate crime of burglary is alleged and established.” Id.

at 568 n.7 ¶ 29, 74 P.3d at 242 n.7.

¶61 Dann I and Miniefield defeat Moore’s argument that

felony murder cannot be predicated on a burglary that is based

on the intent to murder. The felony murder statute, A.R.S.

§ 13-1105(A)(2), does not distinguish between burglaries defined

by intent to commit assault versus intent to murder. It would,

moreover, be anomalous to conclude that first-degree murder

occurs if a burglary with intent to assault results in death but

not if the burglary is based on the more culpable intent to

murder.

¶62 Moore notes that courts in several other states have

held that a felony-murder conviction cannot be based on a

burglary intended solely to murder the victim. See Parker v.

State, 731 S.W.2d 756, 758-59 (Ark. 1987); People v. Garrison,

765 P.2d 419, 435 (Cal. 1989); People v. Wilson, 462 P.2d 22,

27-28 (Cal. 1969); Williams v. State, 818 A.2d 906, 910-13 (Del.

2002); People v. Cahill, 809 N.E.2d 561, 588-89 (N.Y. 2003). We

find these cases unpersuasive because we have already recognized

that Arizona’s felony-murder statute identifies burglary based

on assault as a valid predicate offense; these out-of-state

cases conflict with Miniefield and Lopez insofar as they require

the predicate offense to be separate or independent from the

homicide, and our Court in Lopez distinguished Arizona’s felony

27
murder scheme from that of California. 174 Ariz. at 142, 847

P.2d at 1089. Cf. People v. Farley, 2009 WL 1886072, No.

S024833 (Cal. July 2, 2009) (overruling Wilson and holding

merger doctrine does not apply to first-degree felony murder).

¶63 We therefore reject Moore’s use of the merger doctrine

to challenge his convictions for felony murder.

E. Definition of Premeditation

¶64 Moore argues that the trial court incorrectly

instructed the jury that “proof of actual reflection is not

required” to establish premeditation and the prosecutor’s

closing argument compounded this error.

¶65 The use of the phrase “proof of actual reflection is

not required” is an erroneous instruction on premeditation if

given in a jury instruction “without further clarification.”

State v. Thompson, 204 Ariz. 471, 480 ¶ 34, 65 P.3d 420, 429

(2003); accord Dann I, 205 Ariz. at 565 ¶ 16, 74 P.3d at 239.

¶66 Here, the court instructed the jury that

“[p]remeditation” means that a person 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. Proof of actual reflection is not
required, but an act is not done with premeditation if
it is the instant effect of a sudden quarrel or heat
of passion.

28
During closing arguments the prosecutor reinforced the court’s

instruction by repeatedly telling the jury that Moore “had time

to reflect” with respect to the murders.

¶67 Moore properly objected to the instruction, and the

State correctly concedes that it was erroneous. Accordingly, we

must determine if the error was harmless. Dann I, 205 Ariz. at

565 ¶ 18, 74 P.3d at 239. “An error is harmless if it appears

beyond a reasonable doubt that the error . . . did not

contribute to the verdict obtained.” Id. (alteration in

original) (internal quotation marks omitted).

¶68 The State argues that Moore was not prejudiced by the

erroneous premeditation instruction because he pursued a

mistaken identity offense. We have previously rejected a

similar argument in the context of harmless error review. See

State v. Gomez, 211 Ariz. 494, 499-500, 123 P.3d 1131, 1136-37

(2005); Dann I, 205 Ariz. at 566 & n.3 ¶¶ 19-20, 74 P.3d at 240

& n.3.

¶69 There was, however, overwhelming evidence of Moore’s

premeditation with respect to the murder of Mata. Before

leaving his mother’s house with his gun, Moore told his

girlfriend that he had seen the person who had tried to run him

over and he was not going to stand for it. He later told Brown

that he was going to “smoke” Mata and asked if Brown wanted to

“get” Mata with him. When Mata came outside, Moore confronted

29
him by asking if Mata had a problem with him and then began

shooting. Moore told Borghetti after the shootings that he had

shot the person who had tried to run him over and he was sorry

about the other victims who “didn’t have anything to do with

it.” Given this evidence, the error in the premeditation

instruction was harmless beyond a reasonable doubt with regard

to the murder of Mata.

¶70 In contrast, the evidence of premeditation is less

compelling with regard to the other victims. The State argues

that premeditation was established because Moore, after shooting

Mata and Ford, “entered the house and hunted for Guadalupe and

Delia.” The State’s assertion that Moore “hunted” for the

victims is based on the fact that Moore entered the house, shot

Guadalupe in his sleep, and then immediately shot Delia as she

hid behind a pillow in the closet of another room.

¶71 In Dann I, the Court did not find overwhelming

evidence of premeditation based on the defendant’s killing the

victims by placing his gun muzzle against their heads or his

later making incriminating statements about his motives for

these shootings. See Dann I, 205 Ariz. at 566 ¶ 20, 74 P.3d at

240. This Court also noted that this evidence had to be

considered in light of the court’s erroneous instruction and the

prosecutor’s statements in closing that the passage of time

alone would support a finding of first-degree murder. See id.

30
at 565 ¶ 16, 74 P.3d at 239.

¶72 Consistent with Dann I, the evidence here is not so

overwhelming that this Court can conclude, beyond a reasonable

doubt, that the error in the premeditation instruction did not

affect the verdicts as to Delia and Guadalupe. We therefore

reverse the convictions for the premeditated murders of Delia

and Guadalupe. Because Moore remains convicted of felony murder

for their deaths, however, remand is unnecessary.

F. Lesser-Included Offense Instruction

¶73 Moore argues that the trial court committed

fundamental error by instructing the jury that it could find the

defendant guilty of second-degree murder only if it unanimously

found that the State had failed to prove first-degree murder

beyond a reasonable doubt, but did prove the less serious crime

beyond a reasonable doubt.

¶74 This Court disapproved such an “acquittal-first”

instruction in State v. LeBlanc, 186 Ariz. 437, 438-39, 924 P.2d

441, 442-43 (1996). Because Moore’s counsel did not object to

the instruction at trial, we review for fundamental error.

State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607

(2005).

¶75 The use of the instruction, although erroneous in

light of LeBlanc, does not constitute fundamental error. The

error is not fundamental in nature because Moore has not shown

31
that it denied him a fair trial or deprived him of a right

essential to his defense. See id. at 567 ¶ 19, 115 P.3d at 607.

Although LeBlanc disapproved of the instruction’s prospective

use, the Court expressly noted that the instruction does not

violate the state or federal constitutions, that its use is not

fundamental error, and that the adoption of a new instruction

was a procedural change made for purposes of judicial

administration. See LeBlanc, 186 Ariz. at 439-40, 924 P.2d at

443-44. We reject Moore’s argument that once LeBlanc

disapproved the instruction, its subsequent use necessarily

makes the error fundamental.

G. Right to Conflict-Free Counsel

¶76 Moore argues that he was denied his Sixth Amendment

right to conflict-free counsel when, after he had been convicted

in his first trial, the trial court denied two motions for

substitute counsel before the sentencing trials.

¶77 A trial court’s decision to deny a request for new

counsel will not be disturbed absent an abuse of discretion.

State v. Cromwell, 211 Ariz. 181, 186 ¶ 27, 119 P.3d 448, 453

(2005). “The presence of an irreconcilable conflict or a

completely fractured relationship between counsel and the

accused ordinarily requires the appointment of new counsel.”

Id. at ¶ 29. Disagreements over defense strategy do not

constitute an irreconcilable conflict. Id.

32
¶78 In 2002, Moore’s counsel moved to withdraw on the

grounds that there was an irreconcilable conflict between them

and Moore. The identified conflict concerned the evidence to be

presented at sentencing. Moore desired to maintain his

innocence and to offer testimony by an alibi witness (whom

counsel, with Moore’s agreement, decided not to call at the

guilt trial) and also to inform the jury, in allocution, that he

had passed a polygraph examination after his convictions.

Moore’s counsel instead wanted to present Moore’s drug use as

mitigation. The trial court denied the motion to withdraw on

the grounds that the conflict concerned sentencing strategy.

¶79 Moore contends that determining what evidence to

present at a capital sentencing trial is a “fundamental

decision” that must be made by the defendant himself, and not

merely a strategic decision to be made by his lawyers. Cf.

Jones v. Barnes, 463 U.S. 745, 751 (1983) (recognizing that

defendant has “ultimate authority” over certain “fundamental

decisions regarding the case” including whether to plead guilty,

waive a jury trial, testify on his own behalf, or take an

appeal).

¶80 The trial court did not abuse its discretion in

denying the motion to withdraw. Recognizing that certain

decisions during the sentencing phase of a capital case may be

fundamental, we do not regard Moore’s desire to present evidence

33
of actual innocence to be such a decision. The trial court

properly precluded evidence of actual innocence from the

sentencing phase. See infra ¶¶ 107-09. A defendant’s desire to

present inadmissible evidence contrary to counsel’s sentencing

strategy does not give rise to an irreconcilable conflict.

¶81 Moore’s counsel again sought to withdraw in 2003, this

time arguing that they had an actual conflict because their

office had previously represented a statutory victim in the case

who did not want to testify. This victim, counsel avowed, knew

that other persons wanted to kill the victims, which would be

relevant to residual doubt, and that the victims were drug

dealers, which could rebut any victim impact evidence the State

might present. Moore’s counsel argued that new counsel could

call the witness in question without violating any ethical

rules. After a hearing, the trial court denied the motion

because Moore had failed to show the witness could offer any

relevant, noncumulative information.

¶82 To succeed on a conflict of interest claim, a

defendant must prove the existence of an actual conflict that

adversely affected counsel’s representation. State v. Jenkins,

148 Ariz. 463, 465-66, 715 P.2d 716, 718-19 (1986). To

establish an actual conflict, a defendant must demonstrate that

some plausible alternative defense strategy or tactic might have

been pursued. Id. at 466 n.1, 715 P.2d at 719 n.1.

34
¶83 The trial court correctly denied the second motion to

withdraw. Moore has not shown that there was a plausible

alternative defense strategy that could have been pursued absent

the alleged conflict. Moore argues that a conflict-free lawyer

could have subpoenaed the former client and forced him to

testify. This possibility, however, was not a plausible

alternative strategy because the witness’s contemplated

testimony concerned either residual doubt, which would not have

been admissible at sentencing, or rebuttal of victim impact

evidence, which the State did not introduce. Moore has not

shown that the identified conflict adversely affected his

counsel’s representation.

H. (F)(8) Aggravator

¶84 Moore contends that trial court erroneously failed to

completely instruct the jury on the elements of the (F)(8)

aggravator at the first sentencing trial, that the instruction

given was unconstitutionally vague, and that structural error

occurred.

¶85 This Court reviews de novo whether “instructions to

the jury properly state the law.” See Glassel, 211 Ariz. at 53

¶ 74, 116 P.3d at 1213. Because Moore did not object to the jury

instruction at the first sentencing trial, we review for

fundamental error. See Henderson, 210 Ariz. at 567 ¶ 19, 115

P.3d at 607.

35
¶86 To prove the (F)(8) aggravator, the State must

establish beyond a reasonable doubt that the murders took place

during a “continuous course of criminal conduct” and were

“temporally, spatially, and motivationally related.” State v.

Armstrong (Armstrong III), 218 Ariz. 451, 464 ¶ 67, 189 P.3d

378, 391 (2008). The instruction here instead required only a

finding that the homicides were “committed on the same

occasion,” and was therefore erroneous, which the State

concedes. See State v. Ring (Ring III), 204 Ariz. 534, 560-61

¶¶ 80-81, 65 P.3d 915, 941-42 (2003).

¶87 Moore must also show prejudice to establish that the

incomplete instruction was fundamental error. He cannot meet

this burden because the record of Moore’s first sentencing trial

demonstrates a temporal, spatial, and motivational relationship

substantial enough that no reasonable jury could fail to find

the (F)(8) aggravator beyond a reasonable doubt. See State v.

Armstrong (Armstrong II), 208 Ariz. 360, 364-65 ¶ 11, 93 P.3d

1076, 1080-81 (2004). Ford’s uncontroverted testimony

established the temporal element because within seconds, she saw

Moore shoot Mata and her and then heard multiple gunshots. See

State v. Dann (Dann II), 206 Ariz. 371, 373 ¶ 9, 79 P.3d 58, 60

(2003) (finding temporal element established when murders

occurred in a “short, uninterrupted span of time”). The spatial

element was established by the uncontested evidence that

36
Guadalupe and Delia were shot inside the Yale Street house,

while Mata was shot just outside the front door. See State v.

Tucker (Tucker I), 205 Ariz. 157, 169 ¶ 66, 68 P.3d 110, 122

(2003) (noting that spatial relationship was established when

victims were in different rooms of an apartment). Finally, no

reasonable jury could fail to find the motivational element

because the murders involved a continuous course of criminal

conduct and “it is difficult to imagine a motive for the

killings unrelated to the murder of [Mata].” See id.; see also

State v. Boggs, 218 Ariz. 325, 342 ¶ 81, 185 P.3d 111, 128

(2008) (upholding (F)(8) aggravator where “all the murders

involved a continuous course of criminal conduct”).

¶88 We also reject Moore’s arguments that the (F)(8)

instruction here was facially vague or that we should reconsider

Ring III and hold that a jury finding of an aggravator based on

an incomplete instruction is structural error.

I. Sentencing Jury Did Not Decide Guilt or Aggravating
Circumstance

¶89 Moore argues that his death sentences must be reversed

because the second sentencing jury did not itself find the

(F)(8) aggravator. He contends that because the first

sentencing jury invalidly found the (F)(8) aggravator based on a

flawed jury instruction, the State should have been required to

reprove this aggravator. He argues that this situation is

37
analogous to State v. Pandeli (Pandeli IV), 215 Ariz. 514, 522

¶ 15, 161 P.3d 557, 565 (2007), which recognizes that when a

capital sentence is vacated and remanded for resentencing, the

State must reprove the aggravating circumstances. Pandeli IV is

inapposite because neither Moore’s capital sentence nor the

first jury’s finding of the (F)(8) aggravator was vacated.

¶90 We also reject Moore’s related argument that the

second sentencing jury could not properly determine his sentence

in a “vacuum.” Substantially the same evidence was introduced

at the second sentencing trial as at the guilt phase trial and

the first sentencing trial. There was extensive presentation of

mitigation evidence. The second sentencing jury was therefore

able to make an individualized determination of Moore’s sentence

consistent with the case law of the Supreme Court and this

Court. See Tuilaepa v. California, 512 U.S. 967, 972 (1994);

State ex rel. Thomas v. Granville (Baldwin), 211 Ariz. 468, 472

¶ 17, 123 P.3d 662, 666 (2005).

¶91 Moore also argues that notwithstanding Lockhart v.

McCree, 476 U.S. 162 (1986), juries should no longer be death

qualified because “they unconstitutionally stack the deck

against a capital defendant.” We have previously upheld death

qualification of jurors. See, e.g., State v. Dann (Dann III),

220 Ariz. 351, ___ ¶ 28, 207 P.3d 604, 613 (2009); State v.

Bocharski, 218 Ariz. 476, 483 ¶ 18, 189 P.3d 403, 410 (2008).

38
¶92 Finally, Moore argues that permitting a jury to impose

a death sentence when it did not determine his guilt or the

(F)(8) aggravator violates the Sixth and Eighth Amendments

because the jury that sentenced him to death was able to

abdicate its responsibility to the other juries. Under Caldwell

v. Mississippi, “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.” 472

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

¶93 We have previously concluded that Caldwell’s dictate

is not violated when different juries determine guilt and

sentence if the sentencing jury is not misled as to its role.

Dann III, 220 Ariz. at ___ ¶¶ 29-30, 207 P.3d at 613-14;

Bocharski, 218 Ariz. at 483 ¶ 20, 189 P.3d at 410; State v.

Anderson (Anderson II), 210 Ariz. 327, 337 ¶¶ 21-23, 111 P.3d

369, 379 (2005). Moore argues, however, that this Court has

never sanctioned a bifurcation of the aggravation phase and

penalty phase juries. But this kind of bifurcation is not

substantively different from the bifurcation sanctioned under

our prior cases, and it did not mislead the sentencing jury to

believe that the responsibility for determining Moore’s sentence

would rest elsewhere. Moore’s sentencing jury received clear

instruction that it alone was responsible for the sentencing

39
decision. Therefore, Caldwell was not violated.

J. Sentencing Jury Voir Dire

¶94 Moore argues that the trial court deprived him of his

right to a fair and impartial sentencing jury by refusing to

strike pro-death jurors and restricting his questions to

potential jurors about their views on mitigation.

¶95 Morgan requires that defendants be afforded an

opportunity during voir dire to identify, and to strike for

cause, prospective jurors who would automatically impose the

death penalty once guilt is found. See Glassel, 211 Ariz. at

45-46 ¶¶ 37-41, 116 P.3d at 1205-06. Morgan does not, however,

entitle defendants to ask prospective jurors to identify

circumstances they would find mitigating or to answer open-ended

questions about their views on mitigation. See id. at 45-47

¶¶ 37, 42-44, 116 P.3d at 1205-07.

¶96 Trial court rulings on the scope of voir dire and

whether to strike jurors for cause are reviewed for abuse of

discretion. State v. Smith, 215 Ariz. 221, 230 ¶ 37, 159 P.3d

531, 540 (2007); Ellison, 213 Ariz. at 137 ¶ 88, 140 P.3d at

920. If a defendant is forced to use a peremptory challenge to

remove a juror who should have been excused for cause, an

otherwise valid conviction will not be reversed unless the

defendant shows prejudice. State v. Hickman, 205 Ariz. 192, 198

¶ 28, 68 P.3d 418, 424 (2003).

40
 1. Denial of the Motions to Strike

¶97 Moore contends that the trial court misapplied Morgan

and improperly denied his motions to strike prospective Jurors

4, 9, 22, 61, 62, and 122.

¶98 Only one of these six jurors – Juror 9 – was selected

for the jury. In her responses during voir dire, Juror 9

indicated that she would listen to all of the evidence and the

instructions and could decide between a sentence of life or

death depending on the facts. Defense counsel did not object

that Juror 9 would automatically vote for a death sentence.

Instead, counsel argued that she should be disqualified because

she had said, in response to a question from defense counsel,

that she did not think age would make a difference to her as a

mitigating factor. As the trial court noted, the juror had not

been instructed on the law and was being posed the question in a

vacuum. Given Juror 9’s other responses to the voir dire

questions, the trial court did not abuse its discretion in

denying the motion to strike.

¶99 Jurors 4, 22, 61, 62 and 122 did not sit on the jury.

Thus, under Hickman, any error by the trial court in refusing to

strike them was not reversible error absent prejudice to Moore.

See Glassel, 211 Ariz. at 50 ¶ 56-57, 116 P.3d at 1210. No

evidence suggests that the sentencing jury was not fair and

impartial. We reject Moore’s argument that Hickman should not

41
apply because the trial court systematically misapplied Morgan.

Consistent with Morgan’s requirements, prospective jurors were

asked questions in both a twelve-page jury questionnaire and in

oral voir dire aimed at identifying those who would

automatically impose the death penalty.

2. Restrictions on voir dire regarding mitigation

¶100 Moore argues that the trial court refused to allow him

to “meaningfully” question “many additional” jurors on “whether

they were open to considering any evidence of mitigation.” In

this regard, Moore cites to the transcripts of the oral voir

dire of eleven prospective jurors, but five were not empanelled

and two were designated as alternates and did not deliberate.

Any error in the voir dire of these seven jurors was harmless.

See Glassel, 211 Ariz. at 46 ¶ 41, 116 P.3d at 1206 (stating

that alleged error in restricting voir dire was harmless as to

jurors that did not participate in deliberations).

¶101 With regard to the remaining jurors who were

empanelled – Jurors 27, 77, 196, and 210 – Moore sought to

strike for cause all but Juror 77. The question becomes whether

the court abused its discretion in restricting Moore’s voir dire

or denying his motions to strike these jurors.

¶102 The four identified jurors each completed a written

questionnaire and answered questions in oral voir dire. None

indicated that they would automatically impose the death

42
penalty. We are not persuaded by Moore’s arguments that the

trial court’s restrictions on voir dire regarding mitigation

violated Morgan.

¶103 The trial court refused to allow Moore to ask Juror 27

what things she would or would not consider mitigating. The

trial court also sustained an objection when Moore asked Juror

77 if there were particular areas the juror would want to hear

about. With respect to Juror 196, the trial court sustained the

State’s objection when counsel asked “how can you tell us that

you’d be open minded to consider all mitigation without knowing

anything about what might be out there?” Defense counsel was

allowed, however, to ask this juror if she was open minded and

if “there [were] some things that you’re not open minded about?”

With regard to Juror 210, the trial court sustained objections

to open-ended questions asking the juror to identify what she

thought were “good reasons” for having or not having a death

penalty. The trial court did allow Moore to ask this juror

whether “there [are] some cases in particular in which you think

the death penalty would be justified, some cases where you would

be less open minded?”

¶104 The trial court’s restrictions on voir dire were

consistent with this Court’s decisions. We have repeatedly

rejected arguments that Morgan requires courts to allow

defendants to ask prospective jurors to identify circumstances

43
that they would find mitigating or to respond to open-ended

questions on this topic. For example, in Glassel, this Court

held that Morgan does not require that courts permit defendants

to question prospective jurors as to their understanding of the

phrase “sufficiently substantial to call for leniency.” 211

Ariz. at 46 ¶ 40, 116 P.3d at 1206. The Court also rejected the

use of open-ended questions about the mitigating circumstances a

juror would consider important in deciding whether to impose

death. Id. at ¶ 44.

¶105 The Court further narrowed the scope of sentencing

jury voir dire in State v. Johnson, 212 Ariz. 425, 435 ¶ 33, 133

P.3d 735, 745 (2006). In that case, the Court held that Morgan

does not require courts to allow defendants to ask prospective

jurors about their views on specific mitigating circumstances.

Id. In Smith, the Court held that trial courts may prohibit

open-ended questions seeking to determine a juror’s views “about

the best reason for having or not having the death penalty, the

importance of considering mitigation, and the type of offense

for which the juror would consider death to be appropriate.”

215 Ariz. at 231 ¶ 41, 159 P.3d at 541.

¶106 Under these precedents, the questions that Moore

sought to ask prospective jurors about their views on mitigation

were not required by Morgan. Accordingly, the trial court did

44
not abuse its discretion in limiting voir dire or denying

Moore’s related motions to strike Jurors 27, 196 and 210.

K. Preclusion of Actual Innocence Evidence and Argument

¶107 Moore next asserts that the trial court’s preclusion

of evidence and argument regarding actual innocence violates his

rights to due process, to present a complete defense, and to

have his sentencer consider all relevant mitigation, as well as

the prohibition against ex post facto laws. Moore sought at

sentencing to introduce expert testimony on eyewitness

identification and evidence that he passed a polygraph

examination after the jury found him guilty, and to argue

residual doubt as a mitigating factor. On the State’s motion,

the trial court precluded all evidence on residual doubt from

both the aggravation and penalty phases.

¶108 We have previously rejected the argument that trial

courts are constitutionally or statutorily required to admit

evidence or permit argument regarding residual doubt at a

sentencing trial. See State v. Harrod (Harrod III), 218 Ariz.

268, 281 ¶ 46, 183 P.3d 519, 532 (2008); State v. Garza, 216

Ariz. 56, 70 ¶ 67, 163 P.3d 1006, 1020 (2007); see also Oregon

v. Guzek, 546 U.S. 517, 523 (2006) (“We can find nothing in the

Eighth or Fourteenth Amendments that provides a capital

defendant a right to introduce new evidence of this kind at

sentencing.”). Moore attempts to distinguish his situation by

45
arguing that actual innocence evidence should be admitted

because the (F)(8) aggravator focuses on the defendant’s role in

the murders. However, in Dann III we specifically rejected

using residual doubt evidence at the aggravation phase to

disprove the (F)(8) aggravator when the evidence is to be used

only to disprove guilt. See Dann III, 220 Ariz. at ___ ¶¶ 66-

69, 207 P.3d at 618-19.

¶109 In Dann III, we also rejected the claim that

preclusion of residual doubt evidence is an ex post facto law.

Id. at ___ ¶¶ 119-20, 207 P.3d at 625. Moore also argues that

the preclusion of residual doubt evidence violated his right to

due process because his trial strategies assumed that the judge

presiding over his guilt trial could consider residual doubt in

determining the sentence. This argument, however, mistakenly

presumes that, before jury sentencing, Moore had a right to have

residual doubt considered as mitigation. This Court had never

recognized such a right and more recent cases have clarified

that a defendant has no constitutional right to present residual

doubt evidence at sentencing. See Harrod III, 218 Ariz. at 278-

81 ¶¶ 37-46, 183 P.3d at 528-31.

L. Constitutionality of Burden of Proof at Sentencing

¶110 Moore argues that Arizona’s death penalty scheme is

unconstitutional under the Eighth and Fourteenth Amendments

because it does not require the State to prove beyond a

46
reasonable doubt that mitigating circumstances are not

“sufficiently substantial to call for leniency.”

¶111 This Court, as Moore acknowledges, has previously

rejected this argument. See, e.g., Glassel, 211 Ariz. at 52

¶ 70, 116 P.3d at 1212. Moore argues, however, that under

Kansas v. Marsh, 548 U.S. 163 (2006), when a state allows the

jury to decide whether the death penalty is appropriate, the

issue is an element of the offense of capital murder that must

be proven by the state beyond a reasonable doubt.

¶112 We have rejected this reading of Marsh. That opinion

does not hold that the Federal Constitution requires the state

to prove that mitigating circumstances do not warrant leniency;

instead, as we noted in State v. Tucker (Tucker II), the Supreme

Court held that so long as the state is required to prove the

elements of the offense and aggravating circumstances, the state

may place on the defendant “the burden of proving mitigating

circumstances sufficiently substantial to call for leniency.”

215 Ariz. 298, 316 ¶ 67, 160 P.3d 177, 195 (2007) (internal

quotation marks omitted). For this reason, we held that

instructing a jury that the defendant had the burden of proving

mitigation was sufficiently substantial to warrant leniency,

although contrary to our decision in Baldwin, did not constitute

fundamental error. See id. at 316-17 ¶ 69, 160 P.3d at 195-96.

47
¶113 The trial court here did not err by instructing the

jury, consistent with Baldwin, that the determination of the

appropriate sentence is not a fact question on which either side

has a burden of proof.

M. Independent Review

¶114 Because the murders occurred before August 1, 2002,

this Court must “independently review the trial court’s findings

of aggravation and mitigation and the propriety of the death

sentence.” A.R.S. § 13-755 (Supp. 2009); see 2002 Ariz. Sess.

Laws, ch. 1, § 7 (5th Spec. Sess.).

1. Aggravating Circumstance – (F)(8)

¶115 As discussed in Part H above, the evidence presented

during aggravation establishes beyond a reasonable doubt that

the murders were temporally, spatially, and motivationally

related as required for the (F)(8) aggravator.

2. Mitigating Circumstances

¶116 Moore presented evidence related to two statutory

mitigating factors and several non-statutory mitigating factors.

a. Statutory Mitigation

i. Intoxication

¶117 To establish intoxication as a statutory mitigator, a

defendant must prove by a preponderance of the evidence that

“[t]he defendant’s capacity to appreciate the wrongfulness of

his conduct or to conform his conduct to the requirements of law

48
was significantly impaired, but not so impaired as to constitute

a defense to prosecution.” A.R.S. § 13-703(G)(1) (Supp. 1999).

¶118 Moore established that he used crack cocaine in the

days and hours leading up to the murders. Dr. Stan Cabanski,

who performed a juvenile court psychological evaluation on Moore

when he was seventeen years, eight months old, concluded Moore

was abusing several street drugs. Moore also offered the expert

testimony of Dr. Alex Stalcup, a doctor specializing in

addiction medicine. Stalcup concluded that Moore had been

addicted to crack since age fifteen, that Moore’s drug use had

impaired his brain development and impulse control, and that

Moore had committed the murders in an explosive rage caused by

his craving for cocaine. He further opined that Moore’s

irritability would have been enhanced by his diabetes if his

blood sugar was low because he had not eaten.

¶119 To rebut Moore’s evidence, the State offered testimony

by Dr. Eugene Almer, who acknowledged that Moore had a cocaine

habit and had smoked crack before the murders, but opined that

Moore’s acts the morning of the shooting were volitional. He

noted that although Moore showed signs of anger or rage earlier

in the evening when he informed his girlfriend that he intended

to confront the person who tried to run him over, there were no

signs of rage immediately before the shooting. Dr. Almer also

noted that Moore made efforts to avoid detection by not leaving

49
behind fingerprints or cigarette butts. Neither Dr. Stalcup nor

Dr. Almer interviewed or otherwise examined Moore; they based

their conclusions on reviewing trial evidence and other

information.

¶120 Based on our review of the record, we do not find that

Moore has established the statutory mitigator of intoxication.

“[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). Moore took steps to

avoid prosecution and we do not find that his use of crack

cocaine overwhelmed his ability to control his behavior.

¶121 Although Moore’s evidence of impairment from his crack

cocaine use does not satisfy the statutory mitigation

requirements, we will consider such evidence as non-statutory

mitigation. See State v. Gallegos (Gallegos I), 178 Ariz. 1,

17-18, 870 P.2d 1097, 1113-14 (1994).

ii. Age

¶122 In assessing age as a mitigating circumstance, the

Court considers the defendant’s chronological age, as well as

“his level of intelligence, maturity, past experience, and level

50
of participation in the killings.” State v. Poyson, 198 Ariz.

70, 80 ¶ 37, 7 P.3d 79, 89 (2000).

¶123 Moore was eighteen years, seven months old at the time

of the murders. Although his teachers testified that he was

intelligent, Moore was held back a year in elementary school.

Further, Moore stopped attending school in the ninth grade. He

appears to have lacked maturity, possibly due to his crack

cocaine use, which the experts agreed stunted his emotional

development. Although Moore had a child, he lived with his

mother and never consistently held a job.

¶124 Moore also had extensive experience with the juvenile

justice system. By the time he became an adult, he had twelve

referrals to juvenile court. Although criminal history

typically lessens the mitigating weight assigned to age, see

id., we do not believe Moore’s juvenile record should have a

similar effect because he was never adjudicated delinquent and

the offenses were all non-violent. That is not to say, as Moore

argues, that the failure of the criminal justice system to hold

him accountable as a juvenile itself qualifies as mitigation.

¶125 Moore was the sole participant in the murders, a fact

that tends to reduce any mitigating significance of his age.

¶126 On balance, we conclude that Moore’s age deserves some

weight as a mitigating factor.

51
 b. Non-Statutory Mitigation

i. Appellant’s addiction to crack cocaine

¶127 Moore has clearly established his use of crack

cocaine, both habitually and on the night of the shootings, and

this factor combined with Moore’s relative youth and early-onset

drug use, which likely impacted his mental development, deserves

some mitigating weight.

ii. Appellant’s dysfunctional childhood

¶128 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. State v. Sansing (Sansing II), 206 Ariz. 232, 240-41

¶¶ 34-36, 77 P.3d 30, 38-39 (2003).

¶129 Moore established that he had a dysfunctional

childhood. His father suffered from depression and flashbacks

related to his service in the Vietnam War. He testified that he

was a chronic alcoholic and that his children grew up watching

him kill himself by drinking. Before the murders, Moore’s

father had stopped communicating with his family.

¶130 As a child, Moore was often depressed and kept to

himself. His mother filed for divorce when he was in eighth

grade, and Moore soon thereafter began running away from home.

Approximately one month before Moore’s eighth grade graduation,

52
and weeks after his fifteenth birthday, police stopped Moore in

an area known for drug activity. Moore skipped his graduation

and was arrested that day for consumption of alcohol as a minor.

¶131 On several occasions, Moore’s mother kicked Moore out

of the house. Because he was a minor, the police made her take

him back. Ultimately she filed papers with the courts

unsuccessfully seeking to have Moore declared incorrigible.

Moore’s twelve referrals to juvenile court included several

involving possession of drug paraphernalia.

¶132 Moore has offered sufficient evidence to prove that he

was raised in a dysfunctional environment, but we do not find

that it merits significant weight as a mitigating factor

independent of his drug use as a youth.

iii. Residual doubt

¶133 Once a person is found guilty beyond a reasonable

doubt, claims of innocence or residual doubt do not constitute

mitigation for sentencing purposes. See Dann III, 220 Ariz. at

___ ¶ 136, 207 P.3d at 628; Harrod III, 218 Ariz. at 280 ¶¶ 42-

43, 183 P.3d at 531.

iv. Appellant’s family support and impact on his
family

¶134 “The existence of family ties is a mitigating factor.”

State v. McGill, 213 Ariz. 147, 162 ¶ 67, 140 P.3d 930, 945

(2006). During the penalty phase, Moore’s mother, father,

53
sisters, and grandmother provided testimony or interviews

expressing their love for Moore and indicating that his family,

including his daughter who was eighteen months old at the time

of the murders, would be negatively impacted by his execution.

Although Moore established this mitigating factor, we give it

minimal weight. See Poyson, 198 Ariz. at 82 ¶ 47, 7 P.3d at 91.

v. Appellant has expressed remorse

¶135 Remorse may be a non-statutory mitigating

circumstance, but we give this factor little weight when a

defendant denies responsibility for his or her conduct. See

Dann III, 220 Ariz. at ___ ¶ 150, 207 P.3d at 629; State v.

Andriano, 215 Ariz. 497, 512 ¶ 76, 161 P.3d 540, 555 (2007).

¶136 Although Moore points to statements he made to

Borghetti and his sister as indicating remorse, these statements

carry little weight given that Moore continues to deny

responsibility for the murders. His comments to his sister

express regret about the impact on his family rather than

remorse about the murders. Moore has not established remorse by

a preponderance of the evidence.

3. Propriety of Death Sentence

¶137 In reviewing the propriety of the death sentence, “‘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.

54
Greene, 192 Ariz. 431, 443 ¶ 60, 967 P.2d 106, 118 (1998)). We

give the multiple murders aggravator extraordinary weight.

Garza, 216 Ariz. at 72 ¶ 81, 163 P.3d at 1022. In light of this

significant aggravator, we must determine whether Moore’s

mitigating evidence is “sufficiently substantial to warrant

leniency.” See A.R.S. § 13-755(B).

¶138 Although Moore presented significant mitigating

evidence based on his age and the impact of his extensive use of

crack cocaine both habitually and on the night of the murders,

this evidence is not sufficiently substantial to warrant

leniency.

N. Issues Preserved for Federal Review

¶139 To avoid preclusion, Moore raises twenty-six other

constitutional challenges that he states have been rejected by

the Supreme Court or this Court. These claims and the decisions

Moore identifies as rejecting them are set forth verbatim in the

Appendix.

CONCLUSION

¶140 For the foregoing reasons, we affirm Moore’s

convictions for the first-degree felony murders of Delia Ramos

and Guadalupe Ramos, for the first-degree premeditated murder of

Sergio Mata, for the attempted first-degree murder of Debra

Ford, and for first-degree burglary, and affirm Moore’s death

55
sentences. We reverse Moore’s convictions for the first-degree

premeditated murders of Delia Ramos and Guadalupe Ramos.

_______________________________________
W. Scott Bales, Justice

CONCURRING:

_______________________________________
Rebecca White Berch, Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Ruth V. McGregor, Justice (Retired)

_______________________________________
Daniel A. Barker, Judge*

*Vice Chief Justice Andrew D. Hurwitz has recused himself from
this case. Pursuant to Article 6, Section 3 of the Arizona
Constitution, the Honorable Daniel A. Barker, Judge of the
Arizona Court of Appeals, Division One, was designated to sit in
this matter.

56
 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) Arizona’s death statute unconstitutionally requires
defendants to prove that their lives should be spared. State
v. Fulminante, 161 Ariz. 237, 258, 778 P.2d 602, 623 (1988).

(6) 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).

(7) 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).

(8) The 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).

(9) 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).

57
(10) The prosecutor’s discretion to seek the death penalty
unconstitutionally lacks standards. State v. Cromwell, 211
Ariz. at 181, 192 ¶ 58, 119 P.3d 448, 459 (2005).

(11) 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).

(12) 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).

(13) Subjecting Appellant 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, 550-51 ¶ 39, 65 P.3d 915, 931-32
(2003).

(14) Appellant’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).

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

(16) The absence of notice of aggravating circumstance prior
to Appellant’s guilt phase trial violated the Sixth, Eighth
and Fourteenth Amendments. State v. Anderson (Anderson II),
210 Ariz. 327, 347 ¶¶ 79-80, 82, 111 P.3d 369, 389 (2005).

(17) The reasonable doubt jury instruction at the aggravation
trial lowered the state’s burden of proof and deprived
Appellant 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).

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

58
(19) The failure to provide the jury with a special verdict on
Appellant’s proffered mitigation deprived him of his rights to
not be subject to ex post facto legislation and right to
meaningful appellate review. State v. Roseberry, 210 Ariz.
360, 373 ¶ 74 & n.12, 111 P.3d 402, 415 (2005).

(20) 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 the defendant to death. State v. Carreon, 210 Ariz.
54, 70-71 ¶¶ 81-87, 107 P.3d 900, 916-17 (2005).

(21) 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).

(22) 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
¶¶ 101-102, 140 P.3d 899, 922 (2006).

(23) 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, 218 Ariz. 476, 487-88 ¶¶ 47-50, 189 P.3d 403,
414-15 (2008).

(24) The State’s introduction of unsworn rebuttal testimony
violated Appellant’s rights to confrontation and cross
examination under the Sixth Amendment. State v. McGill, 213
Ariz. 147, 158-59, 140 P. 3d 930, 941-42 (2006).

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

(26) Refusing to instruct the jury or permit the introduction
of evidence and argument regarding residual doubt violated
Appellant’s rights under the Sixth, Eighth and Fourteenth
Amendments and Arizona law. State v. Harrod (Harrod III), 218
Ariz. 268, 278-79 ¶¶ 37-39, 183 P.3d 519, 529-30 (2008); State
v. Garza, 216 Ariz. 56, 70 ¶ 67, 163 P.3d 1006, 1020 (2007).

59