State v. Armstrong

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-06-0443-AP
Appellee, )
) Pima County
v. ) Superior Court
) No. CR-61846
SHAD DANIEL ARMSTRONG, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Pima County
The Honorable Christopher Browning, Judge

AFFIRMED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Capital Litigation Section
Donna J. Lam, Assistant Attorney General Tucson
Attorneys for State of Arizona

LAW OFFICES OF HARRIETTE P. LEVITT Tucson
By Harriette P. Levitt
Attorney for Shad Daniel Armstrong
________________________________________________________________

B A L E S, Justice  

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

that Shad Daniel Armstrong should receive death sentences for

two murders. We have jurisdiction pursuant to Article 6,

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

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

FACTS AND PROCEDURAL HISTORY

¶2 In 2000, a jury convicted Armstrong of murdering, and

conspiring to murder, his sister Farrah Armstrong and her fiancé

Frank Williams. The trial judge imposed death sentences for

each murder after finding two aggravators: Armstrong had

murdered Farrah for pecuniary gain, A.R.S. § 13-703(F)(5) (Supp.

1998), and had committed multiple murders, A.R.S. § 13-

703(F)(8). This Court affirmed the convictions. State v.

Armstrong (Armstrong I), 208 Ariz. 345, 360 ¶ 74, 93 P.3d 1061,

1076 (2004).

¶3 Armstrong was sentenced under a procedure later found

unconstitutional in Ring v. Arizona (Ring II), 536 U.S. 584

(2002). In reviewing Armstrong’s death sentences, this Court

considered whether it was harmless error for the trial judge,

rather than a jury, to have found the aggravating factors and to

have determined that death sentences were appropriate. State v.

Armstrong (Armstrong II), 208 Ariz. 360, 366 ¶ 24, 93 P.3d 1076,

1082 (2004). The Court found harmless the trial judge’s finding

of the (F)(8) multiple murders aggravator. Id. Resentencing

was required, however, because the Court concluded that a

reasonable jury could reach different conclusions than had the

trial judge regarding the (F)(5) pecuniary gain aggravator and

the significance of the mitigating circumstances. Id.

¶4 In 2006, a new jury found the (F)(8) multiple murders

aggravator, but not the (F)(5) aggravator, and determined that

Armstrong should be sentenced to death for each murder. This

2 
appeal followed.

¶5 The facts related to the murders, which are described

in more detail in Armstrong I, 208 Ariz. at 347-50 ¶¶ 2-22, 93

P.3d at 1063-66, are as follows. In 1996, Armstrong lived in

Oklahoma with his girlfriend Russette Medina and his sister

Farrah. Armstrong and Farrah burglarized a home in Texas.

After Armstrong learned that Oklahoma authorities were looking

for him, he fled to Tucson with Medina, Medina’s daughter, and

Farrah.

¶6 In Tucson, Farrah met Williams. They became

romantically involved and moved into an apartment together.

Armstrong and Medina could not afford rent, so they moved in

with Williams and Farrah. Tensions grew in the apartment.

Medina and Armstrong frequently clashed, and Farrah was upset

with Armstrong because of an unpaid cable bill. In early 1998,

Armstrong left the apartment and moved in with his friend David

Doogan. They lived in a trailer in Three Points, Arizona,

belonging to Doogan’s father. Later, Medina, her daughter, and

another child fathered by Armstrong also moved to the trailer in

Three Points.

¶7 Meanwhile, Farrah and Williams visited Farrah’s

parents in Oklahoma. They shared their plans to move there and

get married. Farrah discussed with her parents her need to

resolve her outstanding legal problems. After returning to

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Tucson in early February, Farrah told Medina about her plans to

return to Oklahoma and turn herself over to authorities. She

also told Medina that in order to get favorable treatment, she

planned to tell the Oklahoma authorities where Armstrong was

located.

¶8 Medina told Armstrong about his sister’s plans. He

became angry and worried that he would go to prison and that he

and Medina would lose custody of their children. Shortly after,

Armstrong discussed Farrah’s plans with Doogan and the pair

started plotting to kill Farrah and Williams.

¶9 Several days before the murders, Armstrong and Doogan

dug a grave near the trailer. On the afternoon of February 19,

1998, Armstrong asked Farrah to come to Three Points because he

had money for the unpaid cable bill. He also asked her to bring

Williams because they needed his help with Doogan’s car.

Armstrong had Medina and the children go to a different trailer

so the children would not see Farrah arrive. To further prepare

for the murders, Doogan and Armstrong hung sheets on the walls

and gathered plastic bags and a blanket to cover the bodies.

Armstrong also loaded a shotgun with deer slugs.

¶10 Near dusk, Farrah and Williams drove up to the

property, Doogan opened the front door, and Armstrong hid with

the shotgun. As Farrah and Williams approached the trailer,

Doogan waved Armstrong off. Armstrong put down the gun and

4 
greeted Farrah and Williams. Eventually everyone was in the

living room. Farrah sat on a couch, Williams sat on a recliner,

and Doogan sat on a chair opposite Williams. As Doogan talked

with Farrah and Williams, Armstrong retrieved the shotgun. He

returned to the living room and shot Williams in the chest.

Armstrong shot Farrah twice, first in the chest and then in the

head. He then shot Williams in the head.

¶11 Doogan and Armstrong disposed of the bodies. They

placed a plastic bag over Williams’ head and wrapped the blanket

around both bodies. They could not easily carry the bodies, so

they dragged them outside and used a truck to pull the blanket

to the open grave. They pushed the bodies into the hole and

partially filled it with dirt. They then moved the bloody couch

and recliner into the truck bed. Armstrong gathered some of the

bloody sheets, put them in the hole with the bodies, and

finished filling the grave. By that time, Medina had returned

to the main trailer and soon they all got in the truck and left

Three Points. They dumped the furniture in the desert and

headed to Williams and Farrah’s apartment, where they took some

electronic items and Farrah’s jewelry.

¶12 On the Sunday after the killings, Doogan’s neighbor

called and asked Doogan if he knew where Armstrong was.

Doogan, following Armstrong’s directions, said that Armstrong

had left for Michigan. Armstrong immediately prepared to leave

5 
town. Armstrong, Medina, and the children spent several months

in Los Angeles before relocating to Odessa, Texas. Despite

these evasive maneuvers, an investigation was already in

progress. A friend of Williams and Farrah called the police

about their disappearance, and authorities discovered the blood-

stained furniture in the desert. Doogan’s father also contacted

the police. The police obtained a search warrant for the Three

Points property, discovered the bodies, and began searching for

Armstrong and Medina. Nearly a year after the killings,

authorities arrested them in Texas.

DISCUSSION

¶13 Armstrong raises nine issues on appeal. For the

reasons discussed below, we affirm his death sentences.

A. A.R.S. § 13-703.02 and A.R.S. § 13-703.03

¶14 Armstrong argues that the trial court erred by not

requiring, before his resentencing trial, pre-trial evaluations

under A.R.S. § 13-703.02 (Supp. 2007) to determine if Armstrong

is mentally retarded or under A.R.S. § 13-703.03 (Supp. 2007) to

determine his competency to stand trial. Because Armstrong did

not object to the trial court’s failure to order these

evaluations, we will review solely for fundamental error, which

requires Armstrong to show “both that fundamental error exists

and that the error in his case caused him prejudice.” State v.

Henderson, 210 Ariz. 561, 567 ¶ 20, 115 P.3d 601, 607 (2005).

6 
¶15 The current version of § 13-703.02, in effect at the

time of Armstrong’s resentencing trial, applies to resentencing

proceedings. See 2002 Ariz. Sess. Laws., ch. 1, § 7 (5th Spec.

Sess.) (“13-703.02 . . . as amended by this act . . . appl[ies]

to any sentencing or resentencing proceeding on any first degree

murder case that is held after the effective date of this act.”)

Because Armstrong’s resentencing was “held after the effective

date” of the 2002 modification to A.R.S. § 13-703.02, the trial

court erred in not using the prescreening procedures outlined in

that statute.

¶16 Armstrong cannot show, however, that he was prejudiced

by the trial court’s failure to order a prescreening evaluation

for mental retardation. We have refused to order a new hearing

on mental retardation when there was no evidence “rais[ing] any

doubt as to whether [the defendant] may be mentally retarded.”

State v. Dann, 206 Ariz. 371, 376 ¶ 21, 79 P.3d 58, 63 (2003).

Armstrong does not argue that he is mentally retarded, nor does

any evidence raise doubt about whether Armstrong is mentally

retarded. Although the trial court should have followed the

procedures in A.R.S. § 13-703.02, the failure to do so does not

require reversal or a hearing on mental retardation.

¶17 We have never resolved whether A.R.S. § 13-703.03

applies at resentencing. See State v. Harrod, 218 Ariz. 268,

277 ¶ 28, 183 P.3d 519, 528 (2008) (declining to decide whether

7 
“§ 13-703.03 . . . appl[ies] to capital resentencings”).

Section 13-703.03(A) requires the trial court to start the

screening process “[i]f the state files a notice of intent to

seek the death penalty.” Here the State filed such a notice in

March 1999, well before the adoption of A.R.S. § 13-703.03.

Unlike § 13-703.02, there is no language indicating the

legislature’s intent to apply competency prescreening to

resentencing proceedings.

¶18 Because Armstrong is unable to show prejudice, we need

not resolve whether A.R.S. § 13-703.03(A) applies to

resentencing trials or applies only at the initial pre-trial

phase following the State’s notification of intent to seek the

death penalty. Cf. Harrod, 218 Ariz. at 278 ¶ 33, 183 P.3d at

529 (holding “any error in not ordering an evaluation under

A.R.S. § 13-703.03(A)” harmless because nothing in the record

suggested the defendant was incompetent).

¶19 Armstrong points to two facts to suggest he may have

been incompetent to stand trial: (1) at his first sentencing

hearing, he put on evidence indicating he behaved irrationally

around the time of the murders; and, (2) at the resentencing, he

introduced information of a mental health history, including a

diagnosis for bipolar disorder. These facts, however, do not

suggest that at trial he lacked an ability “to make a reasoned

choice among alternatives, with an understanding of the

8 
consequences of the choice.” State v. Kayer, 194 Ariz. 423, 434

¶ 38, 984 P.2d 31, 42 (1999). Because no evidence suggests

Armstrong may have been incompetent to stand trial in 2006, any

error did not prejudice him.

B. The transcript of David Doogan’s testimony

¶20 Armstrong next argues that the admission of a

transcript of David Doogan’s guilt phase testimony was error

because parts of it were irrelevant and prejudicial. He also

argues that the transcript violated his Sixth Amendment right to

confrontation. We review evidentiary rulings for an abuse of

discretion. State v. Tucker, 215 Ariz. 298, 314 ¶ 58, 160 P.3d

177, 193 (2007). Evidentiary rulings based on constitutional

law or statutory construction, however, are reviewed de novo.

See id. at 315 ¶ 61, 160 P.3d at 194. Because Armstrong

objected below, we will review any error under the harmless

error standard. Henderson, 210 Ariz. at 567 ¶ 18, 115 P.3d at

607. “Harmless error review places the burden on the state to

prove beyond a reasonable doubt that the error did not

contribute to or affect the . . . sentence.” Id.

¶21 David Doogan testified extensively at Armstrong’s

guilt phase trial. The State planned to call Doogan as a

witness during the resentencing trial, but he refused to

testify. Armstrong moved to preclude the State from offering

the transcript of Doogan’s prior testimony, arguing that its

9 
admission would violate the Sixth Amendment Confrontation Clause

and the rules of evidence.

¶22 The trial court denied the motion, reasoning that

A.R.S. § 13-703 (Supp. 2006) allowed the resentencing jury to

hear anything the first jury heard, the transcript was relevant,

and there was no confrontation problem because Armstrong had an

opportunity to cross-examine Doogan at the first trial.

During the aggravation phase, the State read to the jury

Doogan’s direct examination.

1. Evidentiary ruling

¶23 The trial court based its decision to allow Doogan’s

testimony at least partially on a faulty interpretation of

A.R.S. § 13-703 (Supp. 2007) and A.R.S. § 13-703.01 (Supp.

2007). The judge thought that the statutes stated that the new

jury is “entitled to consider anything or any evidence . . .

that was adduced at the guilt phase of the trial.”

¶24 This is an incorrect interpretation of our statutes.

As we have stated before, “evidence admitted at the guilt

proceeding is deemed admitted at a sentencing proceeding only if

the trier of fact is the same in both” proceedings. State v.

Ellison, 213 Ariz. 116, 136 ¶ 80, 140 P.3d 899, 919 (2006); see

also A.R.S. § 13-703(D) (“Evidence that is admitted at the trial

and that relates to any aggravating or mitigating circumstances

shall be deemed admitted as evidence at a sentencing proceeding

10 
if the trier of fact considering that evidence is the same trier

of fact that determined the defendant’s guilt.”). Indeed,

A.R.S. § 13-703(B) commands that “[a]t the aggravation phase

. . . the admissibility of information relevant to any of the

aggravating circumstances . . . shall be governed by the rules

of evidence.” Thus, it would have been error to allow Doogan’s

transcript solely because the guilt phase jury had heard the

testimony.

¶25 The trial court, however, did not admit Doogan’s

testimony for this reason alone; it also determined that the

evidence was relevant. Evidence is relevant if it tends to make

the existence of some fact of consequence more or less probable.

Ariz. R. Evid. 401. Rule 403 gives the judge discretion to

exclude relevant evidence if “its probative value is

substantially outweighed by the danger of unfair prejudice,”

among other considerations. Ariz. R. Evid. 403.

¶26 Armstrong advances two theories to support his

argument that the Doogan transcript was irrelevant or too

prejudicial. First, Armstrong argues that substantial portions

of Doogan’s testimony were irrelevant to the (F)(5) pecuniary

gain aggravator or the (F)(8) multiple murders aggravator.

Specifically, Armstrong suggests that Doogan’s testimony on the

following topics was irrelevant: planning the murders; digging

the grave and burying the bodies; removing the furniture and

11 
cleaning the trailer; and Armstrong’s fleeing from Arizona.

¶27 The details of the crime, including the planning and

execution of the murders, were relevant to both the (F)(5) and

(F)(8) aggravators. In addition, evidence regarding the blood-

stained furniture corroborated testimony regarding the location

of the murder, a fact relevant to the (F)(8) aggravator. The

details of Armstrong’s flight were relevant to the (F)(5)

pecuniary gain aggravator because the evidence included the

theft of items from Williams and Farrah’s apartment that

Armstrong later pawned. To the extent some of the information

was minimally relevant, it was not overly prejudicial. Indeed,

Armstrong admits that the most inflammatory details from

Doogan’s testimony - where and how the violence occurred – were

relevant to the (F)(8) multiple murders aggravator. The judge’s

determination that Doogan’s testimony was relevant was not an

abuse of discretion.

¶28 Second, Armstrong argues that Doogan’s transcript was

overly prejudicial because he was willing to concede the

existence of the (F)(8) multiple murders aggravator. Armstrong

sought to prevent the State from proving (F)(8) because this

Court had “conclude[d] that no reasonable jury could have found

other than that the two murders . . . were temporally,

spatially, and motivationally related.” Armstrong II, 208 Ariz.

at 365 ¶ 19, 93 P.3d at 1081. The trial court allowed the State

12 
to prove (F)(8), reasoning that the State was “obligated to

secure a jury finding,” notwithstanding this Court’s holding

that the previous judicial determination that (F)(8) existed was

harmless error.

¶29 In effect, Armstrong asked the judge to repeat the

same harmless error that occurred at the first trial. We

rejected a similar argument in State v. Pandeli (Pandeli IV),

215 Ariz. 514, 522 ¶ 15, 161 P.3d 557, 565 (2007). There, we

held that even if a judge’s finding of an aggravating

circumstance was harmless error, when a death sentence was

vacated and remanded for resentencing, “the State was obligated

to re-prove the . . . aggravating circumstance on resentencing.”

Id. Moreover, A.R.S. § 13-703.01(P) requires the jury to make

“all factual determinations required by this section or the

Constitution of the United States or this state to impose a

death sentence.”

¶30 Armstrong’s original sentence was vacated and remanded

for resentencing; therefore, the State was obligated to prove

any aggravating circumstance to the jury. Armstrong II, 208

Ariz. at 366 ¶ 24, 93 P.3d at 1082. There was no abuse of

discretion.

2. Confrontation Clause and Rule 19.3(c)

¶31 Armstrong also contends that the admission of the

transcript of Doogan’s testimony violated his Sixth Amendment

13 
Confrontation Clause right because he did not have a meaningful

opportunity to cross-examine Doogan. At trial, he also argued

that admitting the transcript violated Rule 19.3(c) of the

Arizona Rules of Criminal Procedure, which states that former

testimony is admissible if “[t]he party against whom the former

testimony is offered . . . had the right and opportunity to

cross-examine the declarant with an interest and motive similar

to that which the party now has.”

¶32 The Confrontation Clause prohibits the admission of

testimonial hearsay unless (1) the declarant is unavailable and

(2) the defendant “had a prior opportunity to cross-examine” the

declarant. Crawford v. Washington, 541 U.S. 36, 59 (2004); see

also State v. McGill, 213 Ariz. 147, 159 ¶ 51, 140 P.3d 930, 942

(2006) (noting that the Confrontation Clause applies to

testimonial hearsay used to establish an aggravating

circumstance).

¶33 We need not decide whether the admission of the

transcript in the aggravation phase caused error because any

error was harmless beyond a reasonable doubt. Violations of the

Confrontation Clause do not result in automatic reversal.

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). Because the

jury found the State did not prove the (F)(5) aggravator and

because the Confrontation Clause and Rule 19.3(c) would not have

prohibited the admission of the transcript as mitigation

14 
rebuttal during the penalty phase, the only way Doogan’s

transcript could have impermissibly affected the verdict is with

respect to the finding of the (F)(8) multiple murders

aggravator. See McGill, 213 Ariz. at 159 ¶ 52, 140 P.3d at 942

(holding that the Confrontation Clause did not prohibit the

admission of testimonial hearsay to rebut defendant’s

mitigation).

¶34 Apart from Doogan’s prior testimony, the State

presented other evidence sufficient to establish the (F)(8)

aggravating circumstance. Specifically, Medina testified that

she heard four shots and saw Armstrong and Doogan dragging the

bodies from the trailer to the pre-dug grave. Medina also

testified that Armstrong told her how the murders occurred,

including that he shot Williams and Farrah in the living room

and that he shot them each in the chest and the head. Finally,

she testified that Armstrong told her he planned to kill the

victims because Farrah intended to turn him over to Oklahoma

authorities. It is clear that any error “did not contribute to

or affect the . . . sentence.” Henderson, 210 Ariz. at 567

¶ 18, 115 P.3d at 607.

C. Other evidentiary rulings

¶35 As discussed above, the trial court mistakenly

believed that A.R.S. §§ 13-703 and 13-703.01 authorized at

resentencing the admission of all evidence admitted at the

15 
earlier trial. In addition to David Doogan’s testimony, the

trial court relied on this interpretation to overrule

Armstrong’s objections to other evidence and lines of

questioning during the aggravation phase. Armstrong argues that

the trial court’s rulings caused reversible error by allowing

the jury to improperly consider large amounts of evidence.

¶36 In support of his argument, Armstrong asserts that

A.R.S. § 13-703.01(G) and State v. Gulbrandson, 184 Ariz. 46,

66, 906 P.2d 579, 599 (1995), should have limited the admission

of evidence. Armstrong argues that the evidence allowed during

the aggravation phase went far beyond that necessary to prove

the aggravating circumstances, contrary to language in

Gulbrandson that a fact-finder must “give aggravating weight

only to evidence that tends to establish an aggravating

circumstance.” 184 Ariz. at 66, 906 P.2d at 599. We are

unconvinced. Armstrong does not point to any specific evidence

that was irrelevant or overly prejudicial, nor does he explain

how the evidence resulted in the jury “giv[ing] aggravating

weight” to evidence that does not “tend[] to establish an

aggravating circumstance.” Gulbrandson, 184 Ariz. at 66, 906

P.2d at 599.

¶37 Armstrong also suggests that the language in A.R.S.

§ 13-703.01(G) allowing the State to “present any evidence that

demonstrates that the defendant should not be shown leniency”

16 
should be interpreted with Gulbrandson in mind, such that the

state’s right to present rebuttal evidence in the penalty phase

is limited to rebutting specific mitigating circumstances

advanced by the defendant. Armstrong is misguided for two

reasons. First, A.R.S. § 13-703.01(G) regulates the admission

of evidence at the penalty phase; everything Armstrong

references was introduced during the aggravation phase. Indeed,

the State offered little rebuttal evidence during the penalty

phase. Armstrong fails to identify any evidence admitted in

rebuttal that went outside the scope of A.R.S. § 13-703.01(G).

¶38 Second, we have made clear that the underlying facts

of a murder are relevant during the penalty phase because they

tend to show whether the defendant should be shown leniency.

State v. Roque, 213 Ariz. 193, 220-21 ¶¶ 107, 110, 141 P.3d 368,

395-96 (2006). Thus, to the extent Armstrong argues that the

jury was prejudiced during the penalty phase by evidence

describing details of his crime that may not have been

especially relevant to the aggravating circumstances, that

argument has no merit.

D. Victim impact statement

¶39 Armstrong alleges that the victim impact statement of

Julie Williams, Frank Williams’ mother, violated the Eighth

Amendment and caused reversible error. “The admission of victim

impact evidence is reviewed for abuse of discretion.” State v.

17 
Garza, 216 Ariz. 56, 69 ¶ 60, 163 P.3d 1006, 1019 (2007).

1. Constitutionality of A.R.S. § 13-703.01(R)

¶40 Armstrong argues that A.R.S. § 13-703.01(R), the

statute regulating victim statements, is unconstitutional. This

statute provides:

At the penalty phase, the victim may present
information about the murdered person and the impact
of the murder on the victim and other family members
and may submit a victim impact statement in any format
to the trier of fact.

¶41 First, Armstrong contends that victim impact

statements are irrelevant to legitimate jury considerations. We

rejected this argument in Ellison, 213 Ariz. at 140-41 ¶¶ 111-

14, 140 P.3d at 923-24 (“These statements are relevant to the

issue of the harm caused by the defendant . . . [and] do not

violate the Eighth Amendment.”) (citing Lynn v. Reinstein, 205

Ariz. 186, 191 ¶ 17, 68 P.3d 412, 417 (2003)).

¶42 Second, Armstrong contends that A.R.S. § 13-703.01(R)

unconstitutionally contravenes the Supreme Court’s rulemaking

authority. See Ariz. Const. art. VI, § 5(5). This argument is

meritless.

¶43 The Arizona constitution grants a limited authority to

the legislature to make rules “that define, implement, preserve,

and protect the specific rights unique and peculiar to crime

victims, as guaranteed and created by the” Victims’ Bill of

Rights (“VBR”). State v. Hansen, 215 Ariz. 287, 290 ¶ 12, 160

18 
P.3d 166, 169 (quoting State ex rel. Napolitano v. Brown, 194

Ariz. 340, 343 ¶ 11, 982 P.2d 815, 818 (1999)); see Ariz. Const.

art. II, § 2.1(D) (granting limited rulemaking authority to the

legislature under the VBR). Section 2.1(A)(4) of the VBR grants

victims of crime the right “[t]o be heard at any proceeding

involving . . . sentencing.” Thus, the legislature exercised

legitimate constitutional power to establish A.R.S. § 13-

703.01(R).

2. Prejudicial impact

¶44 Aside from the constitutional challenge, Armstrong

argues that the court abused its discretion by allowing Ms.

Williams to give her statement after the close of mitigation

evidence and before Armstrong’s allocution. The Constitution

places limits on victim statements: a statement violates due

process if it is “so unduly prejudicial that it renders the

trial fundamentally unfair.” Payne v. Tennessee, 501 U.S. 808,

825 (1991). Armstrong contends that the timing, along with the

substance of the statement, made the statement unduly

prejudicial.

a. Timing

¶45 The parties disagreed about when during the penalty

phase Ms. Williams should have made her statement. Armstrong

wanted the statement to come before opening statements to avoid

the implication that Ms. Williams was a mitigation witness.

19 
After some deliberation, the court decided that Ms. Williams

would give her statement after the State offered mitigation

rebuttal evidence and before Armstrong’s allocution.

¶46 According to Armstrong, this placement of the victim

statement “negated” his mitigation evidence, diminished any

effect his allocution might have had, and impermissibly turned

her statement, which is not evidence, into “an advisory to the

jury on how to weigh the mitigating evidence.”

¶47 Armstrong’s arguments are unpersuasive. We have held

that “[v]ictim impact statements . . . are generally relevant to

rebut mitigation.” Garza, 216 Ariz. at 69 ¶ 60 n.12, 163 P.3d

at 1019 n.12. Thus, although the statement may have affected

how the jury assessed the mitigation evidence, that effect does

not violate the Constitution.

¶48 The judge acted within his discretion in resolving the

dispute about timing as he did. The timing in this case was not

unusual, and similar challenges have been rejected. In State v.

Carreon, the Court rejected the argument that “the admission of

victim impact statements after the introduction of . . .

mitigation evidence unduly prejudiced the jury.” 210 Ariz. 54,

72 ¶¶ 90-93, 107 P.3d 900, 918 (2005) (reasoning that the “law

permits victim impact evidence to rebut the defendant’s

presentation of mitigation”). Although Ms. Williams’ statement

came after the State concluded its presentation of rebuttal

20 
evidence, rather than during the State’s rebuttal, the statement

immediately followed the State’s case; the State’s formal

separation of Ms. Williams’ statement cannot be said to have

caused undue prejudice.

¶49 Finally, the trial court instructed the jury regarding

victim impact statements immediately after Ms. Williams’

statement. Armstrong does not contend that the instruction was

inadequate or that the jury disregarded it. See State v.

Newell, 212 Ariz. 389, 403 ¶ 68, 132 P.3d 833, 847 (2006) (“We

presume that the jurors followed the court’s instructions.”).

b. Content of the statement

¶50 Armstrong argues Ms. Williams made statements that

fell outside the permissible scope of what victims may say at a

capital sentencing. In particular, he notes that she said that

when she learned she was pregnant with Williams, she also

learned that her mother and husband had been seriously injured

in separate accidents. In addition, she said her ex-husband

“beat [her] senseless” and “kidnapped [her] daughter,” taking

the daughter out of the country. She also discussed her

grandchild, Williams’ son Brandon, and the child’s various

health problems.

¶51 Armstrong claims that Ms. Williams’ comments were

inappropriate and prejudicial because they served only to create

compassion for Ms. Williams that was not based on the impact of

21 
her son’s death. Although some of her comments had an

attenuated relationship to the impact of the crime on its

victims, and for that reason might properly have been excluded

by the trial court, Ms. Williams’ statement was not “so unduly

prejudicial that it render[ed] the trial fundamentally unfair.”

Payne, 501 U.S. at 825.

¶52 After the remarks described above, Ms. Williams

described Frank and Farrah, their engagement, and how pleased

she was to see them happy. She ended her statement by

describing how the murders negatively affected her family and

Brandon in particular because he lacked a fatherly figure in his

life. Following Ms. Williams’ remarks, the judge immediately

instructed the jury, “[T]his information is not a new

aggravating circumstance, and you cannot consider it as such.

It must not be the basis for purely emotional response to the

defendant’s actions.” He further explained that the “law . . .

allows [the jury] to see the victim of the murder . . . as a

unique person and to see the loss resulting from his murder.”

¶53 When considered in context, and in light of the trial

court’s instructions, Ms. Williams’ remarks in the victim impact

statement were not unduly prejudicial.

E. Armstrong’s Allocution

¶54 Armstrong next contends that the trial court erred by

unconstitutionally restricting his right to allocution. We

22 
review questions of constitutional and statutory interpretation

de novo. Because Armstrong objected below, any error is subject

to harmless error review. Henderson, 210 Ariz. at 567 ¶ 18, 115

P.3d at 607.

¶55 Armstrong listed remorse among the mitigating

circumstances he intended to prove during the penalty phase.

The State subsequently gave notice that, as part of its

mitigation rebuttal, it intended to present Armstrong’s

testimony at his first trial denying culpability for the

killings. After the State gave this notice, Armstrong withdrew

remorse as a mitigating circumstance, causing the State to

withdraw Armstrong’s prior testimony from its intended rebuttal.

The trial court made clear, however, that if Armstrong expressed

remorse during his allocution, the State would be permitted to

reopen its rebuttal case and present Armstrong’s prior testimony

denying responsibility for the crime.

¶56 Before closing arguments, Armstrong allocuted but did

not explicitly express remorse. He stated his love for his

sister and his inability to understand how he could have killed

her and Williams. He told the jury that he could not explain

his actions, that it was a “senseless act,” and that what he did

was “beyond forgiveness.” Finally, he asked the jury for mercy.

The State did not ask the court to reopen the case for rebuttal.

¶57 Armstrong contends that these circumstances

23 
impermissibly limited his ability to express remorse in

allocution.

¶58 In Arizona, a defendant has a right to allocute before

he is sentenced. Ariz. R. Crim. P. 19.1(d)(7), 26.10(b)(1).

This right, however, “is not absolute.” State v. Anderson, 210

Ariz. 327, 350 ¶ 100, 111 P.3d 369, 392 (2005).

¶59 We agree that a defendant should be able to express

remorse at a capital sentencing. In this case, however, that

right was not denied. Armstrong remained free to express

remorse, but he declined to do so. In effect, Armstrong argues

that he should have been able to shift a mitigating circumstance

from his mitigation case into his allocution and thereby

insulate that mitigating circumstance from rebuttal evidence.

If Armstrong had presented remorse as a mitigating circumstance

as he originally intended, the State undoubtedly would have been

able to present rebuttal evidence. See A.R.S. § 13-703.01(G).

The judge acted within his discretion in ruling that Armstrong

could not avoid mitigation rebuttal simply by making statements

in allocution that he otherwise would have made as part of his

mitigation case.

F. Sufficiency of evidence for (F)(8)

¶60 Armstrong argues that the State presented insufficient

evidence to prove the existence of the (F)(8) multiple murders

aggravating circumstance. We consider this issue as part of our

24 
independent review. See A.R.S. § 13-703.04(A) (Supp. 2007).

G. Previously rejected arguments

¶61 Armstrong raises three other arguments that we have

rejected in prior cases.

¶62 One: The trial court refused to instruct the jury or

to allow defense counsel to argue that mercy in and of itself

can be a mitigating circumstance. We previously held that mercy

is not a mitigating circumstance. State v. Andriano, 215 Ariz.

497, 507 ¶¶ 47-49, 161 P.3d 540, 550 (2007). Consistent with

Andriano, the trial court allowed Armstrong to argue, and

defense counsel did argue, that mercy is appropriate based on

the mitigation evidence presented.

¶63 Two: The trial court caused fundamental error by not

providing the jury with a specific mitigation verdict form. We

rejected this argument in State v. Roseberry, 210 Ariz. 360, 373

¶ 74 & n.12, 111 P.3d 402, 415 & n.12 (2005).

¶64 Three: The Arizona death penalty statutes are

unconstitutional because they fail to provide adequate standards

or guidance to jurors to determine whether a death sentence is

appropriate and they require the accused to prove he should not

be executed. We rejected the first contention in State v.

Pandeli (Pandeli I), 200 Ariz. 365, 382 ¶ 90, 26 P.3d 1136, 1153

(2001), vacated on other grounds by Pandeli v. Arizona (Pandeli

II), 536 U.S. 953 (2002); we rejected the second in State v.

25 
Ring (Ring I), 200 Ariz. 267, 284 ¶ 64, 25 P.3d 1139, 1156

(2001), rev’d on other grounds by Ring II, 536 U.S. at 584.

INDEPENDENT REVIEW

¶65 Because the murders occurred before August 1, 2002, we

must “independently review the trial court’s findings of

aggravation and mitigation and the propriety of the death

sentence.” A.R.S. § 13-703.04(A); 2002 Ariz. Sess. Laws, ch. 1,

§ 7 (5th Spec. Sess.).

A. Aggravating circumstance

¶66 The jury found one aggravating circumstance: “The

defendant has been convicted of one or more other homicides

. . . that were committed during the commission of the offense.”

A.R.S. § 13-703(F)(8).

¶67 The fact that a “first degree murder and one or more

other homicides occur[red] around the same time” does not alone

establish the (F)(8) aggravating circumstance. State v. Ring

(Ring III), 204 Ariz. 534, 560 ¶ 80, 65 P.3d 915, 941 (2003).

The State must establish beyond a reasonable doubt that the

murders were “temporally, spatially, and motivationally related,

taking place during ‘one continuous course of criminal

conduct.’” State v. Prasertphong, 206 Ariz. 167, 170 ¶ 15, 76

P.3d 438, 441 (2003) (quoting State v. Rogovich, 188 Ariz. 38,

45, 932 P.2d 794, 801 (1997)).

¶68 Armstrong does not dispute that the murders were

26 
temporally and spatially related; he contests only the State’s

proof of a motivational relationship. The motives for killing

each victim need not be identical. In Dann, the defendant went

to an apartment to kill one person, but also killed two others

“because they were there” and because one of them was a witness.

206 Ariz. at 374 ¶ 10, 79 P.3d at 61. The Court held “that

while a jury may differ as to [the defendant’s] precise motive

for killing [the two additional victims], no jury would fail to

find that his motives were related to the murder of [the

originally targeted victim].” Id.

¶69 Armstrong’s overriding motive to kill was his desire

to avoid apprehension by the Oklahoma authorities. Both Medina

and Doogan testified that when Armstrong learned of Farrah’s

plan to notify the authorities, he started planning to kill her

and Williams to stop her from doing so.

¶70 Armstrong argues that he killed Williams for the

separate reason that he simply hated him and he interfered with

Armstrong’s control over Farrah. He cites Medina’s testimony

that Armstrong “just said he didn’t like [Williams]” and the

fact that an initial plan was to kill only Williams. The

testimony reveals, however, that part of the reason Armstrong

hated and wanted to kill Williams was that, in his view,

Williams had too much influence over Farrah, and if he killed

only Farrah, then Williams might turn Armstrong over to the

27 
authorities anyway.

¶71 As we noted in Armstrong II, “even if Armstrong killed

[Williams] because he hated him, such motivation is

intextricably intertwined with his motivation for killing

Farrah: his desire not to be pursued by Oklahoma authorities.”

208 Ariz. at 364-65 ¶ 17, 93 P.3d at 1080-81. The State proved

(F)(8) beyond a reasonable doubt.

B. Mitigating circumstances

¶72 During the penalty phase, the State and the defendant

“may present any evidence . . . relevant to . . . whether there

is mitigation that is sufficiently substantial to call for

leniency.” A.R.S. § 13-703.01(G). The defendant has the burden

to prove any mitigating circumstance by a preponderance of the

evidence, but is not limited to an enumerated list of mitigating

circumstances. A.R.S. § 13-703(C), (G).

¶73 Armstrong presented evidence of five non-statutory

mitigating circumstances: difficult family history, mental

illness, compassionate nature, good behavior in structured

environment, and impact of death sentence on family. We

consider each in turn.

1. Difficult family history

¶74 The Court considers a difficult family history in

mitigation. State v. Boggs, __ Ariz. __, __ ¶ 94, 185 P.3d 111,

130 (2008). Although we do not require a causal nexus between

28 
the mitigating circumstance and the murders, the “lack of a

causal nexus between a difficult personal life and the murders

lessens the effect of this mitigation.” Id. (citing Garza, 216

Ariz. at 73 ¶ 84, 163 P.3d at 1023.

¶75 Armstrong presented evidence that his early childhood

years lacked stability. His father was an alcoholic who abused

his mother and left the family soon after Armstrong was born.

Armstrong was often left in the care of his grandmother, and his

mother married two more times by the time Armstrong was seven

years old. His grandmother died when he was about thirteen, and

he was unable to attend her funeral. He subsequently dropped

out of school and began getting in trouble with authorities. He

spent much of his teen years in foster care and group homes. He

also presented evidence of various health problems he suffered

as an infant, some of which can increase the risk of future

violent behavior.

¶76 Armstrong suggests this history is causally connected to

the murder of Farrah because he felt a sense of abandonment when

he learned of Farrah’s plans similar to the sense he felt when

his grandmother died. Any suggestion that Farrah’s murder was

an uncontrolled emotional response to a feeling of abandonment

is suspect in light of Armstrong’s lengthy and detailed planning

to murder her. Although Armstrong has established that he had a

troubled and unstable upbringing, in this case we accord it

29 
little mitigating weight.

2. Mental health problems

¶77 This Court considers poor mental health a mitigating

factor, but without a causal nexus to the crime, its weight is

minimal. Boggs, __ Ariz. at __ ¶ 94, 185 P.3d at 130. In

addition, the Court “weigh[s] mental health mitigation in

proportion to a defendant’s ability to conform or appreciate the

wrongfulness of his conduct.” Id. (internal quotation marks and

citations omitted).

¶78 Armstrong presented evidence that he was once

diagnosed with bipolar disorder. He also presented evidence

that he displayed symptoms of attention deficit hyperactivity

disorder, although he was never so diagnosed. No testimony or

evidence suggests Armstrong had a diminished ability “to conform

or appreciate the wrongfulness of his conduct.” Id.

Accordingly, we give his mental health history little mitigating

weight.

3. Compassionate nature

¶79 “Past good conduct and character is a relevant

mitigating circumstance,” but “a single good deed, removed in

time from the crime, does not rise to that level.” State v.

Greene, 192 Ariz. 431, 443 ¶ 57, 967 P.2d 106, 118 (1998).

Armstrong presented evidence that he was protective of a

childhood friend’s younger sister. A teacher and a foster

30 
parent also described him as a loving person. This evidence of

Armstrong’s compassionate nature is entitled to little

mitigating weight, however, because the evidence of compassion

is far removed from the crime and the facts of the crime rebut

the idea that Armstrong is a compassionate and loving person.

See Harrod, 218 Ariz. at 283 ¶ 61, 183 P.3d at 534 (noting that

“[a]lthough good character can be a significant mitigating

factor, it deserves less weight in a case involving a murder

planned in advance”).

4. Good behavior in structured environment

¶80 Armstrong presented testimony indicating that he has

behaved and will behave well in incarceration. We do not regard

this as a mitigating circumstance, however, “because inmates are

expected to behave well in prison.” Id. at 284 ¶ 62, 183 P.3d

at 535.

5. Impact on family

¶81 Armstrong’s mother testified that a death sentence

would have a negative impact on Armstrong’s young children.

Although this is a mitigating circumstance, we give it little

weight. Andriano, 215 Ariz. at 512 ¶ 77, 161 P.3d at 555.

C. Propriety of death sentence

¶82 “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. Velazquez, 216

31 
Ariz. 300, 315 ¶ 75, 166 P.3d 91, 106 (2007) (quoting Glassel,

211 Ariz. at 55 ¶ 93, 116 P.3d at 1215).

¶83 We give the multiple murders aggravating circumstance

“extraordinary weight.” State v. Hampton, 213 Ariz. 167, 185 ¶

90, 140 P.3d 950, 968 (2006). The mitigating evidence was not

sufficiently substantial to warrant leniency.

CONCLUSION

¶84 For the foregoing reasons we affirm Armstrong’s

sentences.

_______________________________________
W. Scott Bales, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Patricia A. Orozco, Judge∗

∗
Justice Andrew D. Hurwitz has recused himself from this case.
Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable Patricia A. Orozco, Judge of the Arizona Court of
Appeals, Division One, was designated to sit on this matter.
32