State v. Boggs

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-05-0174-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2002-009759
STEVE ALAN BOGGS, )
)
Appellant. ) A M E N D E D
) O P I N I O N
)

Appeal from the Superior Court in Maricopa County
The Honorable John Foreman, Judge (retired)

AFFIRMED
________________________________________________________________

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

BRUCE PETERSON, ACTING LEGAL ADVOCATE Phoenix
By Thomas J. Dennis, Deputy Legal Advocate
Attorneys for Steve Alan Boggs
________________________________________________________________

M c G R E G O R, Chief Justice

¶1 On May 12, 2005, a jury determined that Steve Boggs

should receive the death penalty for the May 2002 murders of

Beatriz Alvarado, Kenneth Brown, and Fausto Jimenez. In

accordance with Arizona Rule of Criminal Procedure 31.2(b),

appeal to this Court is automatic. We exercise jurisdiction

pursuant to Article 6, Section 5.3 of the Arizona Constitution
and Arizona Revised Statutes (A.R.S.) section 13-4031 (2001).

I.

A.

¶2 On May 19, 2002, Alvarado, Brown, and Jimenez were

working at a fast-food restaurant in Mesa, Arizona.1 After ten

p.m., only the drive-through window was open. At approximately

11:15 p.m., as Keith Jones drove toward the drive-through

speaker to order food, he noticed an SUV in the parking lot

behind the restaurant with a male in the driver’s seat. Jones

saw three uniformed employees inside the store: a Hispanic

woman, a Hispanic man, and a Caucasian man.2

¶3 Luis Vargas arrived at the drive-through window

between 11:30 and 11:45. After waiting for ten minutes, Vargas

yelled to get the attention of someone working at the restaurant

and then heard Alvarado moaning. He approached Alvarado, who

was lying on the ground outside the restaurant’s back door. She

told him in Spanish that “men entered,” “they were robbing,” and

that she thought “they were still robbing.” Vargas backed away

from the restaurant and called 911.

1
We view the facts in the light most favorable to upholding
the jury’s verdict. State v. Tucker, 205 Ariz. 157, 160 n.1, 68
P.3d 110, 113 n.1 (2003).
2
According to Boggs, Christopher Hargrave, who is Caucasian
and was also charged with the murders, was wearing his uniform
when he entered the restaurant.

2
¶4 Police Officer Daniel Beutal, who responded to the 911

call, talked with Alvarado and understood her to mean that “bad

people” might still be in the restaurant. From outside, Beutal

could see Jimenez lying on the restaurant floor. Beutal called

for backup and a K-9 unit. After other officers arrived, but

before entering the restaurant, Beutal moved Alvarado away from

the store to the paramedics. Beutal testified that Alvarado

repeatedly asked for help; she subsequently died from two

gunshots to her back.

¶5 Inside the restaurant, the police found Jimenez’s body

next to a telephone and found Brown’s body in the freezer.

Brown had died almost immediately from two gunshot wounds, one

of which perforated his heart. Jimenez apparently had escaped

from the freezer and, shortly after dialing 911, died from three

gunshot wounds to his back.

¶6 The police found shell casings and bullet projectiles

inside the freezer, evidencing that the perpetrators shot the

victims there. Two cash registers were open and contained only

coins, while the third register was closed but appeared as if

someone had tried to pry it open. Approximately $300 had been

taken from the registers. Police found a purse inside the

office, but did not find a wallet for either Jimenez or Brown.

Just after midnight on May 20, a man, later identified as

3
Christopher Hargrave, tried to use Jimenez’s bank card at an

ATM.

¶7 Hargrave, a friend of Boggs, had worked at the

restaurant from April 19 to May 15, 2002. Boggs and Hargrave

participated in a militia, the “Imperial Royal Guard,” which

focused on “uplifting” the white race and fostered negative

views of minority groups. The Imperial Royal Guard consisted

entirely of Boggs as Chief of Staff, Hargrave as Assistant Chief

of Staff, and their girlfriends, Amy Willet and Gayle Driver.

¶8 Before the murders, Hargrave lived in a trailer on

land belonging to his girlfriend’s parents, Kay and William

Driver. The Drivers allowed Hargrave to live there on the

condition that he remain employed. In May 2002, Jimenez, an

assistant manager in training at the restaurant, reported

Hargrave for twice having a short register. When Hargrave

subsequently was fired for the shortages, the Drivers asked him

to leave their property.

¶9 The Drivers also knew Boggs, who often came into their

pawn shop. On May 21, two days after the murders, Boggs took

two guns, one of them a Taurus handgun, into the pawn shop to

trade for a new gun. William Driver cleaned the Taurus, but

placed it in his safe because he had a “feeling” about the

transaction. Kay Driver later called police and told them about

4
the Taurus that Boggs had pawned. On June 3, Boggs and Hargrave

each called the pawn shop and asked to buy back the Taurus.

¶10 The police recovered the gun from the Drivers and

conducted several test firings. The State’s criminalist

concluded that all the shell casings and bullet fragments from

the scene, as well as fragments removed from the bodies, were

fired from the Taurus. DNA found on the Taurus came from at

least three sources. The DNA matched Hargrave’s profile at 14

locations; the DNA expert could not eliminate Boggs as a source.

¶11 On June 5, Mesa Detective Donald Vogel interrogated

Boggs for approximately three hours. Boggs waived his Miranda3

rights and agreed to answer questions. During the interview,

Boggs told several versions of what happened on the day of, and

the days following, the murders. Information gained in this

interview led to the apprehension of Hargrave the following day.

¶12 On June 6, Detectives Kaufman and Price took Boggs to

obtain his photograph, fingerprints, and DNA, and to transport

him to his initial appearance. As the detectives secured the

evidence, Boggs asked Kaufman how he could change the story he

had told to Detective Vogel the previous day. En route to his

initial appearance, Boggs asked Price how he could change his

story. At the initial appearance, Boggs requested counsel,

3
Miranda v. Arizona, 384 U.S. 436 (1966).

5
which the judge appointed. Subsequently, while returning to

jail, Boggs once more asked Kaufman with whom he needed to speak

to change his story. Price telephoned Vogel and arranged to

take Boggs to the interrogation room for further questioning.

Once at the police station, after Boggs informed Detective Vogel

that he wished to speak with him, Vogel read Boggs his Miranda

rights and again interviewed him.

¶13 During the June 6 interview, Boggs first claimed that

Hargrave committed all the crimes inside the restaurant and

denied knowledge of Hargrave’s actions at the time. In his next

version of events, he admitted helping to plan a non-violent

robbery, but maintained that he remained outside the store as a

lookout during the robbery. A short while later, Vogel

mentioned Boggs’ infant son. When Vogel asked his son’s name,

Boggs repeated, “Just leave me alone,” three times. After Vogel

twice offered to leave the room, Boggs began discussing suicide.

¶14 Boggs then asked to speak with the prosecutor so that

“he could assure me that I would at least in some way be able to

still be with my son.” Vogel responded that no one could make

any promises to Boggs. Vogel also assured Boggs that, whether

or not Boggs talked with him, Vogel would ask the jail to place

Boggs in protective custody. After more than an hour of

interrogation, Boggs confessed to playing an active role in the

robbery and admitted shooting at the victims.
6
¶15 In January 2004, Boggs sent a letter to Detective

Vogel detailing the order and manner in which the deceased

employees fell to the ground and stating that he wished to speak

with Vogel in person. Boggs also stated that his motivation for

the murders was not pecuniary, but rather, based on race.

¶16 In June 2004, Boggs moved to represent himself.

During the following months, the trial judge discussed several

times the repercussions of proceeding in propria persona (pro

per) and attempted to dissuade Boggs from doing so. The

following September, the court granted his motion and appointed

advisory counsel. While acting pro per, Boggs complained to the

trial judge of interference by the Maricopa County Sheriff’s

Office (MCSO) with his self-representation. Specifically, Boggs

claimed that the MCSO seized legal documents from his cell and

refused to provide him items sent to the jail by his advisory

counsel.

¶17 Meanwhile, Detective Vogel and the prosecutor received

threatening letters, allegedly sent by Boggs. In response, the

MCSO began searching Boggs’ cell and confiscating items. After

Vogel warned the MCSO employees not to proceed without a

warrant, they moved Boggs to a different cell, replaced the

items, and waited for a search warrant before resuming the

search. A detective took the confiscated materials to a

superior court judge who had been appointed as a special master
7
for the purpose of reviewing the items for relevance as to the

warrant. The jail staff ultimately confiscated eighteen items

and returned those items that the special master deemed

improperly seized. The prosecutor did not see any of the

privileged items confiscated during the search. Boggs’ advisory

counsel was informed of the special master’s independent review,

but declined to participate or review the seized items. Boggs

alleged that certain legal documents, including discovery items,

were never returned. The trial judge recommended that both

parties review the property to determine what items, if any, may

have been missing.

¶18 On March 23, 2005, Boggs filed a motion to dismiss

based on the search and seizure of items from his cell. The

trial judge addressed the issue on April 4, 2005, when Boggs

told the judge that some items were still missing, including

questions he had prepared for a voluntariness hearing scheduled

for later that day. Boggs expressed concern that his missing

questions could have been used to coach state witnesses. The

prosecutor reminded the court that he had not seen any

privileged items from the search. The judge concluded that

nothing “untoward occurred” and stated that the hearing would

continue as scheduled unless Boggs could show that a

“substantial amount of materials were actually taken.”

8
¶19 At the voluntariness hearing, the trial court

addressed Boggs’ motion to suppress all statements made in the

June 5 and June 6 interrogations. During the hearing, Boggs

appears to have been expressing a Miranda objection, claiming

that he had requested an attorney, and a voluntariness

objection, pointing to the manner in which police detained him

and transported him to the police station. Detectives Heivilin,

Price, and Vogel testified at the voluntariness hearing.

Heivilin testified that during his apprehension on June 5, Boggs

did not request an attorney. Price testified next about Boggs’

June 6 request to speak with Vogel so that he could change the

statements he made during the June 5 interrogation. Vogel then

testified regarding the interrogations themselves. As to the

June 6 interrogation, Vogel testified that Boggs initiated the

contact with the police and that he read Boggs his Miranda

rights. Vogel also testified that he did not threaten Boggs,

make any promises of leniency, or physically abuse Boggs during

the ninety-minute interrogation. At the close of the hearing,

the trial court ruled that Boggs’ statements were voluntary.

¶20 Also on April 4, Boggs’ advisory counsel asked the

trial judge to allow hybrid representation for voir dire. The

judge agreed, but warned that he would not permit hybrid

representation during the trial. He told Boggs that if he

wanted, his advisory counsel could take over the trial, but that
9
“if they take over the trial, they are going to take over the

trial.” On April 11, 2005, after several days of jury

selection, Boggs relinquished his right to proceed pro per. The

trial court responded that this was a “wise move” and stated,

“Just so we are clear on this, Mr. Boggs, we are not going [to]

go back and forth on this.”

B.

¶21 The guilt proceeding began on April 11, 2005. During

the trial, the prosecution played videotapes of the June 5 and 6

interrogations and gave the jury transcripts to follow as they

watched the video. The defense did not object. On May 3, 2005,

at the close of the guilt proceeding, the jury found Boggs

guilty of three counts of first degree murder.

¶22 The sentencing proceeding began on May 4, 2005. At

the aggravation phase, the State presented no new evidence and

the jury returned its verdicts the same day, finding three

aggravating factors for each of the murders: expectation of

pecuniary gain, under A.R.S. § 13-703.F.5; murders committed in

an especially heinous, cruel or depraved manner, under § 13-

703.F.6; and a conviction for one or more other homicides during

the commission of the offense, under § 13-703.F.8.

¶23 On May 5, before the penalty phase, Boggs again moved

to represent himself. The trial judge denied his motion,

stating:
10
 Mr. Boggs, I indicated to you earlier, we’re not
going to play ping-pong on this. You’ve indicated
that you wanted Mr. Alcantar and Mr. Carr to represent
you during the trial. I think that was a wise move.
I do not think it would be a wise move to change.

And more importantly, the law indicates that this is
not something that we can – we can’t be changing
horses in the mid-stream here.

When Boggs responded that he wished to “fire” his counsel, the

court stated: “We’ve gone over that. You have a right to

counsel. You’ve got counsel. We’re at the very end of a long

and difficult trial . . . . We’re not going to be changing

counsel here.” The penalty phase continued on May 9, 2005.

¶24 During the penalty phase, the defense presented

mitigation evidence concerning Boggs’ troubled childhood and his

mental health. At the close of the trial, the jury found Boggs’

mitigation not sufficiently substantial to call for leniency and

concluded that death was the appropriate sentence for each

murder. See A.R.S. § 13-703.01.G-H.

II.

A.

¶25 Boggs first argues that the trial court violated his

right to counsel by admitting the June 6 interview into

evidence. We review constitutional issues de novo. State v.

Pandeli, 215 Ariz. 514, 522 ¶ 11, 161 P.3d 557, 565 (2007).

¶26 The right to counsel attaches at “‘critical’ stages in

the criminal justice process ‘where the results might well
11
settle the accused’s fate and reduce the trial itself to a mere

formality.’” Maine v. Moulton, 474 U.S. 159, 170 (1985)

(quoting United States v. Wade, 388 U.S. 218, 224 (1967)). When

a defendant asserts this right, the state has an “affirmative

obligation to respect and preserve the accused’s choice to seek

this assistance.” Id. at 171. The state may not engage in

further interrogation unless the accused initiates the

communication and makes a voluntary, knowing, and intelligent

waiver of his right to be silent. See State v. Smith, 193 Ariz.

452, 459 ¶ 29, 974 P.2d 431, 438 (1999).

¶27 Boggs asserted his Sixth Amendment right to counsel at

the June 6 initial appearance. Subsequently, however, Boggs

asked several times to speak with someone to change the story he

had told Detective Vogel during the previous day’s

interrogation. Importantly, after Boggs asserted his right to

counsel at the initial appearance, Boggs asked Detective Kaufman

with whom he could speak to change his story and told Detective

Vogel that he wanted to speak with him. Finally, at the

beginning of the June 6 interrogation, Detective Vogel asked

Boggs a series of questions to clarify that Boggs, rather than

the detectives, initiated the conversation. Vogel again read

Boggs his Miranda rights, and Boggs agreed to voluntarily answer

Vogel’s questions. Boggs thus initiated the communication with

12
the police, and Detective Vogel was not barred from conducting

further interrogation.

¶28 Boggs argues that although he initiated contact by

asking to change his story, the June 6 interview nonetheless

violated his right to counsel. He cites State v. Hackman, 189

Ariz. 505, 507-08, 943 P.2d 865, 867-68 (App. 1997), for the

proposition that once counsel is appointed, counsel must be

present for an accused to validly waive his Sixth Amendment

rights. But Hackman, unlike this case, involved contact

initiated by the state’s investigator rather than by the

accused. Id. at 506, 943 P.2d at 866. Boggs also relies on a

New York case which again involved a police-initiated interview.

See People v. Arthur, 239 N.E.2d 537, 537-38 (N.Y. 1968). We

decline to hold that an accused cannot waive the right to

counsel unless counsel is present when the accused himself

initiates contact with the police. We find no violation of

Boggs’ Sixth Amendment rights.

B.

¶29 Boggs next argues that the trial court violated his

right to confront witnesses and his right to a fair trial by

admitting that portion of the June 6 interview in which

Detective Vogel confronted Boggs with statements allegedly made

by Hargrave earlier that day. Specifically, Vogel stated,

“Chris told me that you did all the shootin’ inside the store”
13
and “I’m just tellin’ ya’ that Chris told me that you were the

one that went in the back cooler with everybody . . . and that

you did all the shootin’.”

¶30 Detective Vogel testified more than a week after the

jury watched the interrogation video. During Vogel’s testimony,

both parties elicited statements from him to the effect that he

had “more information” about the murders during the June 6

interview than he had during the June 5 interview. Vogel

explained that this new information included information he

received from Hargrave. On cross-examination, Vogel

acknowledged that lying is a permissible interrogation

technique. The defense did not request that the court instruct

the jury that they could not use the statements attributed to

Hargrave to prove the truthfulness of the assertions.

1.

¶31 We review de novo challenges to admissibility based on

the Confrontation Clause. State v. Tucker, 215 Ariz. 298, 315 ¶

61, 160 P.3d 177, 194 (2007). When a defendant fails to object

to error at trial, we engage in fundamental error review. State

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

Fundamental error is limited to “error going to the foundation

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

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

defendant could not possibly have received a fair trial.” State
14
v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). A

defendant bears the burden of proving that fundamental error

exists and that the error caused him prejudice. Henderson, 210

Ariz. at 567 ¶ 20, 115 P.3d at 607. Because Boggs did not

object to the admission of the unredacted interview, we are

limited to fundamental error review.

¶32 The Confrontation Clause provides: “In all criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” U.S. Const. amend.

VI. The Confrontation Clause attaches to “testimonial witness

statements made to a government officer to establish some fact.”

State v. Roque, 213 Ariz. 193, 214 ¶ 70, 141 P.3d 368, 389

(2006). The right is not violated, however, “by use of a

statement to prove something other than the truth of the matter

asserted.” State v. Smith, 215 Ariz. 221, 229 ¶ 26, 159 P.3d

531, 539 (2007); see also Roque, 213 Ariz. at 214 ¶ 70, 141 P.3d

at 389.

¶33 In Roque, we addressed a similar situation that

involved a trial court’s admission of a videotaped interview in

which a detective repeated statements allegedly made by a non-

testifying witness against the defendant. 213 Ariz. at 213-14 ¶

69, 141 P.3d at 388-89. There, we recognized the use of such

statements as a valid interrogation technique and found no

Confrontation Clause violation because the statements were used
15
merely as a method of interrogation and the jury was instructed

that the statements could not be used to establish the truth of

the matters asserted. Id. at 214 ¶ 70, 141 P.3d at 389.

¶34 Boggs attempts to distinguish his case from Roque, in

which the prosecution did not present any evidence to establish

the truth of the out-of-court statements repeated by the

detective. Id. Here, Boggs argues, Detective Vogel suggested

the truthfulness of Hargrave’s statements when he testified at

trial that he “had more information with which to confront Mr.

Boggs” at the June 6 interview, including information from

Hargrave. On the other hand, the State did not present the jury

with any direct testimony as to the truthfulness of the

statements, did not seek to introduce a transcript of Hargrave’s

interrogation into evidence, and did not rely on the statements

as substantive evidence. Furthermore, on cross-examination,

Detective Vogel testified that lying is a permissible

interrogation technique.

¶35 Had Boggs objected at trial, he might well have been

entitled to an instruction that the statements attributed to

Hargrave were introduced as part of the interrogation and could

not be used to prove the truth of the matters asserted. But

because the statements were admissible at least for the limited

purpose of showing the context of the interrogation, Boggs

cannot demonstrate fundamental error.
16
 2.

¶36 Boggs also asserts that Vogel’s testimony about

Hargrave’s statements violated his right to a fair trial because

the judge did not instruct the jury that the statements were

untrue. The defense, however, not only failed to object to the

admission of the June 6 interview, but also failed to request

that the judge give such a limiting instruction. The trial

judge’s failure to provide a limiting instruction sua sponte was

not fundamental error.

C.

¶37 During the June 5 and June 6 interrogations, Detective

Vogel repeatedly accused Boggs of lying. The State played the

June 5 and 6 interrogation videos for the jury without redacting

any portions in which Detective Vogel accused Boggs of lying.

Boggs did not object or request a limiting instruction. Boggs

now argues that the admission of the unredacted interrogations

violated his right to a fair trial.

¶38 We review a trial court’s evidentiary rulings for

abuse of discretion. Tucker, 215 Ariz. at 314 ¶ 58, 160 P.3d at

193. When the alleged error is based on a constitutional or

legal issue, we review the issue de novo. Pandeli, 215 Ariz. at

522 ¶ 11, 161 P.3d at 565. Because Boggs failed to object, our

review is limited to fundamental error. Henderson, 210 Ariz. at

567 ¶ 19, 115 P.3d at 607.
17
¶39 Arizona prohibits lay and expert testimony concerning

the veracity of a statement by another witness. State v. Moran,

151 Ariz. 378, 382, 728 P.2d 248, 252 (1986) (expert witness);

State v. Reimer, 189 Ariz. 239, 240-41, 941 P.2d 912, 913-14

(App. 1997) (lay witness). Determining veracity and credibility

lies within the province of the jury, and opinions about witness

credibility are “nothing more than advice to jurors on how to

decide the case.” Moran, 151 Ariz. at 383, 728 P.2d at 253.

The issue of whether a videotaped interrogation that includes

accusations of a defendant’s untruthfulness can be admitted,

however, is one of first impression in Arizona.

¶40 Because Vogel’s accusations were part of an

interrogation technique and were not made for the purpose of

giving opinion testimony at trial, we find no fundamental error.

Decisions from other states buttress our conclusion. See State

v. Cordova, 51 P.3d 449, 455 (Idaho Ct. App. 2002) (allowing

such statements by interrogating officers at trial “to the

extent that they provide context to a relevant answer by the

suspect”); Lanham v. Commonwealth, 171 S.W.3d 14, 27-28 (Ky.

2005); State v. O’Brien, 857 S.W.2d 212, 221-22 (Mo. 1993);

State v. Demery, 30 P.3d 1278, 1284 (Wash. 2001) (plurality

opinion); see also Dubria v. Smith, 224 F.3d 995, 1001 (9th Cir.

2000) (concluding, in the context of reviewing a denial of

habeas corpus, that an officer’s statements simply gave context
18
to the defendant’s answers). But see State v. Elnicki, 105 P.3d

1222, 1229 (Kan. 2005) (holding that an officer’s statements in

a videotaped interrogation are inadmissible opinion evidence and

noting that “context” for a defendant’s shifting stories could

be shown in other ways); Commonwealth v. Kitchen, 730 A.2d 513,

521 (Pa. Super. Ct. 1999) (analogizing an interviewer’s

statements regarding a defendant’s truthfulness to a

prosecutor’s inadmissible personal opinion as to the defendant’s

guilt).

¶41 Lanham, one of the most recent cases to address this

issue, noted that “[a]lmost all of the courts that have

considered the issue recognize that this form of questioning is

a legitimate, effective interrogation tool. And because such

comments are such an integral part of the interrogation, several

courts have noted that they provide a necessary context for the

defendant’s responses.” Lanham, 171 S.W.3d at 27. The court

concluded that “such recorded statements by the police during an

interrogation are a legitimate, even ordinary, interrogation

technique, especially when a suspect’s story shifts and

changes.” Id. The court also stated that because the

statements are not admissible to prove that the suspect was

lying, courts should provide the jury with a limiting

instruction if one is requested. Id. at 27.

19
¶42 We agree that, if Boggs had requested a limiting

instruction, one would have been appropriate, but Boggs neither

objected to the evidence nor requested a limiting instruction.

In addition, Boggs cannot establish prejudice because he did, in

fact, provide multiple stories about his involvement; the jury

did not need Vogel’s comments to know that Boggs lied. Boggs

has not established fundamental error.

D.

¶43 Boggs next argues that all the statements he made to

Detective Vogel after he said “[J]ust leave me alone” and

mentioned suicide were involuntary and therefore inadmissible.

We review a trial court’s ruling on the admissibility of a

defendant’s confession for abuse of discretion. State v.

Ellison, 213 Ariz. 116, 126 ¶ 25, 140 P.3d 899, 909 (2006).

¶44 Only voluntary statements made to law enforcement

officials are admissible at trial. Id. at 127 ¶ 30, 140 P.3d at

910. A defendant’s statement is presumed involuntary until the

state meets its burden of proving that the statement was freely

and voluntarily made and was not the product of coercion. State

v. Arnett, 119 Ariz. 38, 42, 579 P.2d 542, 546 (1978). The

state meets its burden “when the officer testifies that the

confession was obtained without threat, coercion or promises of

immunity or a lesser penalty.” State v. Jerousek, 121 Ariz.

420, 424, 590 P.2d 1366, 1370 (1979). In determining whether a
20
confession is voluntary, we consider whether the defendant’s

will was overcome under the totality of the circumstances.

State v. Newell, 212 Ariz. 389, 399 ¶ 39, 132 P.3d 833, 843

(2006). To find a confession involuntary, we must find both

coercive police behavior and a causal relation between the

coercive behavior and the defendant’s overborne will. Colorado

v. Connelly, 479 U.S. 157, 165-66 (1986). In this case, the

court did not abuse its discretion in ruling the statements

voluntary.

¶45 Boggs alleges that Vogel employed psychological

pressure to provoke his confession by preying on his love for

his son. He analogizes this case to United States v. Tingle,

658 F.2d 1332 (9th Cir. 1981), which held that police statements

were patently coercive because they implied that a mother might

not see her child for a long time unless she cooperated with

police. Id. at 1336.

¶46 Any analogy to Tingle is strained. Unlike the agents

in Tingle, Detective Vogel did not threaten Boggs with the loss

of his child. Rather, Vogel attempted to solicit a sense of

responsibility for his son to encourage Boggs to “tell the

truth,” not to intimate that Boggs would never see his son if he

did not cooperate. When Boggs was unresponsive to Vogel’s

question regarding his son’s name, Vogel responded, “[Y]ou don’t

have to talk about the boy,” and changed the subject. In fact,
21
although Boggs brought up his son later in the conversation,

Vogel refrained from further conversation regarding Boggs’ son.

Also, Boggs did not confess in direct response to Vogel’s

comments about his son, demonstrating that these comments did

not overcome his will.

¶47 Although his argument is not clear, Boggs also seems

to argue that the statements must be excluded because Vogel

coerced him when he did not cease questioning after Boggs

stated, “Just leave me alone.” Miranda requires that when an

“individual indicates in any manner, at any time prior to or

during questioning, that he wishes to remain silent, the

interrogation must cease.” Miranda, 384 U.S. at 473-74. If the

alleged assertion of the right to silence is ambiguous, or

“susceptible to more than one interpretation, the limit of

permissible continuing interrogation immediately after the

assertion would be for the sole purpose of ascertaining whether

the defendant intended to invoke his right to silence.” State

v. Finehout, 136 Ariz. 226, 229, 665 P.2d 570, 573 (1983); see

State v. Flower, 161 Ariz. 283, 287, 778 P.2d 1179, 1183 (1989)

(“[B]y failing to at least clarify [the defendant’s] intent,

[the detective] did not ‘scrupulously honor’ [the defendant’s]

right to silence, and the entire statement was inadmissible as a

violation of Miranda.”).

22
¶48 When Boggs stated, “Just leave me alone,” Vogel did

not ignore the statement, but instead offered to leave him alone

by asking, “Do you want me to walk out for a few minutes?” and

stating, “If you want me to leave the room, tell me.” These

comments attempted to clarify whether Boggs wanted Vogel to end

the interrogation or merely to stop discussing his son. Instead

of responding in the affirmative, Boggs stated that the police

were going to kill him anyway and they “might as well just get

it over with now.” Boggs then continued talking with Vogel.

Vogel did not engage in coercive behavior by clarifying the

meaning of Boggs’ statements and responding to Boggs’ further

comments.

¶49 Under the totality of the circumstances, Boggs’

statements were voluntary. Vogel neither threatened Boggs nor

made him any promises. Indeed, Vogel made clear to Boggs that

he could not make any promises and was only looking for the

truth. Boggs presented no evidence of coercive behavior.

E.

¶50 Boggs next argues that the MCSO’s failure to return

some of the documents seized from his cell violated his

constitutional right to keep confidential pretrial preparations

and attorney-client communications and required the court to

grant his motion to dismiss. We review de novo alleged

violations of a defendant’s Sixth Amendment right to counsel,
23
State v. Glassel, 211 Ariz. 33, 50 ¶ 59, 116 P.3d 1193, 1210

(2005), but review a ruling on a motion to dismiss for abuse of

discretion, State v. Moody, 208 Ariz. 424, 448 ¶ 75, 94 P.3d

1119, 1143 (2004).

¶51 The Sixth Amendment and Article 2, Section 24 of the

Arizona Constitution guarantee criminal defendants the right to

counsel, State v. Warner, 150 Ariz. 123, 127, 722 P.2d 291, 295

(1986), but “not every intrusion into the attorney-client

relationship results in a denial of effective assistance of

counsel. Whether a Sixth Amendment violation exists depends on

whether the intrusions were purposeful and whether the

prosecution, either directly or indirectly, obtained evidence or

learned of defense strategy from the intrusions.” State v.

Pecard, 196 Ariz. 371, 377 ¶ 28, 998 P.2d 453, 459 (App. 1999)

(citing Weatherford v. Bursey, 429 U.S. 545, 558 (1977)).

¶52 In Warner, this Court addressed an argument similar to

that made by Boggs. See 150 Ariz. at 125-28, 722 P.2d at 293-

96. Jail personnel had seized all papers from Warner’s cell in

an attempt to secure evidence of alleged perjury. Id. at 125,

722 P.2d at 293. Jail staff returned the seized papers,

including transcripts and summaries of conferences between the

defendant and his counsel, to the defendant but provided copies

to the prosecutor. Id. The prosecutor’s assistant read the

materials, and the prosecutor read some of the materials. Id.
24
at 126, 722 P.2d at 294. Because the prosecutor viewed the

privileged materials, we found a presumptive violation of the

defendant’s right to counsel. Id. at 127, 722 P.2d at 295.

¶53 Boggs’ case differs from Warner, however, because the

prosecutor here never received or reviewed any privileged items.

In fact, the State protected the defendant’s right to counsel by

requesting that a special master review the seized materials and

return any privileged items to Boggs. The trial court then held

evidentiary hearings to address the alleged violation of Boggs’

right to counsel. At the hearings, the court found the

testimony of two MCSO officers and Detective Vogel credible and

concluded that nothing “untoward occurred.”

¶54 Thus, unlike the defendant in Warner, Boggs failed to

show improper interference with his right to counsel. See

Moody, 208 Ariz. at 448 ¶ 77, 94 P.3d at 1143 (“The defendant

bears the initial burden to establish an interference in the

attorney-client relationship.”).

F.

¶55 At the guilt phase, Luis Vargas and Officer Beutal

testified to Alvarado’s statements on the night of the murders.

Boggs contends that the admission of Alvarado’s statements

violated his Sixth Amendment right to confrontation. Although

we usually review de novo Confrontation Clause challenges,

Tucker, 215 Ariz. at 315 ¶ 61, 160 P.3d at 194, because Boggs
25
failed to object below, he must show fundamental error,

Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.

¶56 The Confrontation Clause applies only to testimonial

evidence. Crawford v. Washington, 541 U.S. 36, 51 (2004).

Crawford defined testimony as “[a] solemn declaration or

affirmation made for the purpose of establishing or proving some

fact.” Id. The Court clarified “testimonial” in Davis:

Statements are nontestimonial when made in the course
of police interrogation under circumstances
objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet
an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no
such ongoing emergency, and that the primary purpose
of the interrogation is to establish or prove past
events potentially relevant to later criminal
prosecution.

Davis v. Washington, 126 S. Ct. 2266, 2273-74 (2006); see also

id. at 2279 (finding statements non-testimonial when declarant

“was seeking aid, not telling a story about the past”).

¶57 The admission of Alvarado’s statements did not violate

Boggs’ right to confrontation. As she lay dying on the ground

just outside the restaurant, Alvarado told Vargas that “men

entered,” “they were robbing,” and that she thought “they were

still robbing.” When Officer Beutal arrived, she told him that

two people were in the store and repeatedly asked him for help.

¶58 The circumstances in which Alvarado made the

statements indicate that she was seeking aid for herself and the

26
others inside the store to meet an ongoing emergency. Further,

the officers’ actions, including surrounding the restaurant and

sending dogs in to confront anyone still inside the restaurant,

demonstrate that they understood the situation to be an ongoing

emergency. See State v. Alvarez, 213 Ariz. 467, 473 ¶ 19, 143

P.3d 668, 674 (App. 2006) (finding an “ongoing emergency” when

facts indicate that “[a]lthough the criminal activity . . . had

ended, the emergency that those events set in motion was very

much ongoing”). Because Alvarado’s statements described what

appeared to be an ongoing emergency, they were non-testimonial.

G.

¶59 Boggs raises two arguments with respect to the

sentencing proceeding. First, he argues that the trial court

abused its discretion by denying his motion to proceed pro per

at the penalty phase.4 See State v. De Nistor, 143 Ariz. 407,

413, 694 P.2d 237, 243 (1985) (stating that a trial court

maintains discretion to deny an untimely motion for self-

representation). The right to proceed without counsel is not

unqualified, but must be balanced against the government’s right

to a “‘fair trial conducted in a judicious, orderly fashion.’”

De Nistor, 143 Ariz. at 412, 694 P.2d at 242 (quoting United

States v. Dujanovic, 486 F.2d 182, 186 (9th Cir. 1973)).

4
Boggs moved to proceed pro per in the middle of the
sentencing proceeding, before the start of the penalty phase.
27
¶60 A defendant who exercises the right to self-

representation can subsequently waive that right, either

explicitly or implicitly. See, e.g., McKaskle v. Wiggins, 465

U.S. 168, 182 (1984). In this case, Boggs relinquished his

right to proceed pro per on April 11, 2005, despite the trial

judge’s warning that “if [advisory counsel] take over the trial,

they are going to take over the trial.” The judge further

cautioned, “[W]e are not going [to] go back and forth on this.”

¶61 When a defendant has waived his right to self-

representation, the trial court may exercise its discretion in

deciding whether to permit or deny a subsequent attempt to

proceed pro per. See United States v. Singleton, 107 F.3d 1091,

1099 (4th Cir. 1997) (stating that if a defendant has waived the

right to self-representation, “[t]he decision at that point

whether to allow the defendant to proceed pro se at all or to

impose reasonable conditions on self-representation rests in the

sound discretion of the trial court”). The nature of the right

to self-representation does not “suggest[] that the usual

deference to ‘judgment calls’ . . . by the trial judge should

not obtain here.” McKaskle, 465 U.S. at 177 n.8; see also State

v. Cornell, 179 Ariz. 314, 326, 878 P.2d 1352, 1364 (1994)

(recognizing that self-representation is not an absolute right

and stating that “the court need not stop the trial for the

convenience of the defendant each time he changes his mind”).
28
¶62 Before Boggs decided to relinquish his right of self-

representation, the trial judge cautioned that if Boggs wished

to have appointed counsel take over his representation, counsel

would remain in that position for the remainder of the trial.

When Boggs relinquished his right to self-representation and

thereby waived his right to proceed pro per, the judge again

gave a similar warning. When the trial court denied Boggs’

second motion to represent himself, it reminded Boggs of its

previous warnings and stated that it would not go back and forth

on the issue. Because Boggs had relinquished the right to self-

representation, the trial judge did not abuse his discretion in

denying Boggs’ second request to represent himself.

H.

¶63 Finally, Boggs argues that the trial court violated

his due process right to a fair trial by allowing the State to

present threatening letters as rebuttal evidence in the penalty

phase. We review a trial court’s evidentiary rulings at the

penalty phase for abuse of discretion, State v. McGill, 213

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

constitutional issues de novo, id. at 159 ¶ 53, 140 P.3d at 942.

1.

¶64 Arizona’s sentencing scheme provides:

At the penalty phase, the defendant and the state may
present any evidence that is relevant to the
determination of whether there is mitigation that is
29
 sufficiently substantial to call for leniency. In
order for the trier of fact to make this
determination, the state may present any evidence that
demonstrates that the defendant should not be shown
leniency.

A.R.S. § 13-703.01.G. Relevant information is admissible at

sentencing “regardless of its admissibility under the rules

governing admission of evidence at criminal trials.” A.R.S. §

13-703.C. Both parties are also “permitted to rebut any

information received” at the penalty phase. A.R.S. § 13-703.D.

¶65 Evidence presented for rebuttal must be relevant to

the mitigation proffered. A.R.S. § 13-703.C; Roque, 213 Ariz.

at 220 ¶ 107, 141 P.3d at 395. Relevant means “‘tending to

prove or disprove the matter at issue,’ a standard virtually

identical to that employed in Rule 401 of the Arizona Rules of

Evidence.” Roque, 213 Ariz. at 220-21 ¶ 107, 141 P.3d at 395-96

(quoting McGill, 213 Ariz. at 157 ¶ 40, 140 P.3d at 940). While

we give “deference to a trial judge’s determination of whether

rebuttal evidence offered during the penalty phase is ‘relevant’

within the meaning of the statute,” McGill, 213 Ariz. at 156-57

¶ 40, 140 P.3d at 939-40, “[t]rial courts can and should exclude

evidence that is either irrelevant to the thrust of the

defendant’s mitigation or otherwise unfairly prejudicial,” State

v. Hampton, 213 Ariz. 167, 180 ¶ 51, 140 P.3d 950, 963 (2006).

¶66 We agree that the threatening letters are relevant to

rebut mitigation testimony. The thrust of the mitigation was
30
that Boggs suffers from mental health issues, including bipolar

disorder. To support the diagnosis, two mental health experts,

Drs. Ruiz and Lanyon, testified about Boggs’ delusional

involvement in a militia and suggested that, because the militia

was a delusion, Boggs could not cause any harm through the

entity. Dr. Ruiz stated that although she had no knowledge to

confirm or disaffirm the militia’s existence, she believed

Boggs’ militia activities to be delusional. When the State

questioned Dr. Lanyon about the concrete manifestations of the

current militia, including uniforms and weapons, he responded:

“That to me seemed to support the delusional aspects of this

that he was – had a big organization that was going to shake up

the world or something, going to put bombs in, you know.”

Boggs’ letters that threatened harm for mistreating the leader

of the militia rebut the suggestion that Boggs’ militia

involvement was benign.

¶67 Boggs further argues that even if the letters are

relevant, they are too prejudicial, relying on language from

State v. Hampton. In Hampton, the prosecution offered bad acts

evidence to rebut mitigation testimony that Hampton was a

“caring person who deserved leniency.” Id. at 179 ¶ 47, 140 P.3d

at 962. We concluded that the bad acts evidence was admissible,

but recognized that our death penalty statutes do not “strip[]

courts of their authority to exclude evidence in the penalty
31
phase if any probative value is substantially outweighed by the

prejudicial nature of the evidence. Trial courts should not

allow the penalty phase to devolve into a limitless and

standardless assault on the defendant’s character and history.”

Id. at 180 ¶ 51, 140 P.3d at 963. The language that Boggs

relies on, however, does not extend to the circumstances before

us because here the threatening letters were not offered to show

Boggs’ bad character. The trial court therefore did not abuse

its discretion in admitting them.

2.

¶68 Rebuttal evidence in the mitigation phase must comport

not only with Arizona’s sentencing scheme, but also with the

requirements of the Due Process Clause. Hampton, 213 Ariz. at

179 ¶ 48, 140 P.3d at 962. Although the sentencing process does

not require the same procedural safeguards as does the guilt

phase of a trial, Gardner v. Florida, 430 U.S. 349, 358 n.9

(1977), testimonial hearsay presented at sentencing must be

“accompanied by sufficient indicia of reliability,” McGill, 213

Ariz. at 160 ¶ 57, 140 P.3d at 943. Boggs asserts that the

letters did not contain sufficient indicia of reliability to

comply with due process.

¶69 Introduction of the letters at the penalty phase did

not violate due process. As a primary matter, the threatening

letters in this case were neither hearsay nor testimonial.
32
Furthermore, Boggs knew of the threatening letters before the

trial started, as he successfully kept them out of the guilt

phase. Yet, Boggs failed to object on foundational grounds at

the sentencing hearing. When the trial judge specifically asked

the defense if it objected to the foundation of the evidence,

the defense responded in the negative. On cross-examination,

the defense questioned the reliability of the threatening

letters by comparing the handwriting with another letter signed

by Boggs and noting that one of the letters contained no

evidence that it was sent from jail. Thus, the defense did

address the letters’ reliability before the jury, but did not

object to their foundation.

¶70 Boggs now asserts that the threatening letters are not

reliable because the State provided insufficient proof that he

wrote them. This argument is not persuasive. First, nearly

identical letters were sent to the lead detective and to the

prosecutor. Second, Boggs’ militia title was “Chief of Staff,”

and the letters specifically referred to the “Chief.” Third,

jail staff intercepted one of the letters, which an inmate

stated that Boggs had asked him to mail. Finally, the letters

stated, “we know where you live,” and Boggs possessed an address

for Vogel. The introduction of the threatening letters at the

penalty phase did not violate Boggs’ due process rights.

III.
33
¶71 Because the murders occurred before August 1, 2002, we

independently review the aggravating and mitigating factors and

the “propriety of the death sentence.” A.R.S. § 13-703.04.A;

see also State v. Roseberry, 210 Ariz. 360, 373 ¶ 77, 111 P.3d

402, 415 (2005) (“[The Court] independently determines ‘if the

mitigation is sufficiently substantial to warrant leniency in

light of existing aggravation.’” (citation omitted)).

A.

¶72 The State alleged the existence of three aggravating

factors for each of the murders. We address each in turn.

1.

¶73 A defendant convicted of first degree murder is

eligible for the death penalty if the state proves beyond a

reasonable doubt that he “committed the offense as consideration

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

of pecuniary value.” A.R.S. § 13-703.F.5. This aggravating

factor is present “if the expectation of pecuniary gain is a

motive, cause, or impetus for the murder and not merely a result

of the murder.” State v. Hyde, 186 Ariz. 252, 280, 921 P.2d

655, 683 (1996).

¶74 The evidence allowed the jury to find the pecuniary

gain aggravator beyond a reasonable doubt. Boggs’ June 6

confession clearly indicated his monetary motivation: Boggs

told Detective Vogel that money was his motivation and that the
34
incident happened “[b]ecause of the money.” Moreover, the

evidence demonstrated that money was taken from two registers;

that someone attempted to pry open a third register; that the

victims’ pockets were emptied and wallets taken; and that one

victim’s bank card was used in an attempt to withdraw money from

an ATM.

¶75 Boggs urges that the pecuniary gain aggravating factor

is lacking because the evidence indicates multiple motivations

for the murders, including a desire to silence witnesses and

racist beliefs. Silencing witnesses so that none survive the

robbery, however, is an act in furtherance of the robbery and

thus supports a finding of the pecuniary gain aggravating

factor. See State v. Hoskins, 199 Ariz. 127, 147 ¶ 87, 14 P.3d

997, 1017 (2000) (“When a robbery victim is executed to

facilitate the killer’s escape and hinder detection for the

purpose of successfully procuring something of value, the

pecuniary gain motive is present.”). Moreover, because

pecuniary gain need only be a motive or cause of the murder, see

Hyde, 186 Ariz. at 280, 921 P.2d at 683, the fact that Boggs may

have had other motives does not mean that the State failed to

prove this aggravator.

2.

¶76 A defendant who commits first degree murder in “an

especially heinous, cruel or depraved manner,” is eligible for
35
the death penalty. A.R.S. § 13-703.F.6. The state need prove

the existence of only one of these elements to establish this

aggravating factor. Tucker, 215 Ariz. at 321 ¶ 103, 160 P.3d at

200. To show that a defendant committed a murder in an

especially cruel manner, the state must show beyond a reasonable

doubt that the victim suffered mental or physical distress.

Ellison, 213 Ariz. at 141-42 ¶ 119, 140 P.3d at 924-25. The

defendant must also “intend that the victim suffer or reasonably

foresee that there is a substantial likelihood that the victim

will suffer as a consequence of the defendant’s acts.” State v.

McCall, 139 Ariz. 147, 161, 677 P.2d 920, 934 (1983).

¶77 We conclude that the State proved beyond a reasonable

doubt that the victims suffered mental anguish sufficient to

render the murders especially cruel. Mental anguish requires

evidence that the victim “was conscious during the infliction of

violence.” State v. Van Adams, 194 Ariz. 408, 420 ¶ 44, 984

P.2d 16, 28-29 (1999). Moreover, the state can prove mental

anguish by showing that a victim experienced “significant

uncertainty about his or her ultimate fate.” Tucker, 215 Ariz.

at 311 ¶ 33, 160 P.3d at 190.

¶78 Boggs unsuccessfully attempts to analogize his case to

State v. Soto-Fong, which involved the murder of three

individuals in a store. 187 Ariz. 186, 190, 928 P.2d 610, 614

(1996). In Soto-Fong, the record lacked evidence demonstrating
36
what occurred between the time the defendant entered the store

and the time that he killed the victims. Id. at 204-05, 928

P.2d at 628-29. In addition, only inconclusive evidence

suggested that the victims suffered. Id. at 205, 928 P.2d at

629. In contrast, Boggs described the murders in detail during

both the June 5 and June 6 interrogations. Boggs admitted that

the victims were forced at gunpoint to lie down in the work area

of the restaurant, ordered to remove everything from their

pockets, ordered to march through the cooler into the back

freezer with their hands interlaced on top of their heads,

forced to kneel down, and then shot in rapid succession. Boggs

also stated that after he and Hargrave left the victims in the

freezer, he heard screaming, at which point he returned to the

freezer and shot some more. Physical evidence corroborates

Boggs’ statements. The State thus presented sufficient evidence

to establish the especially cruel aggravator for all three of

the victims.5

3.

¶79 A defendant is death eligible if he “has been

convicted of one or more other homicides . . . committed during

the commission of the offense.” A.R.S. § 13.703.F.8. This

5
Because the especially cruel aggravator requires only
mental or physical suffering, see Ellison, 213 Ariz. at 141-42 ¶
119, 140 P.3d at 924-25, we need not determine whether the
evidence also shows physical suffering.
37
aggravator applies if “the defendant was found criminally

liable, even if he himself did not physically commit the

murders.” Ellison, 213 Ariz. at 143 ¶ 129, 140 P.3d at 926. To

establish the aggravator, we evaluate “the temporal, spatial,

and motivational relationships between the capital homicide and

the collateral [homicide], as well as . . . the nature of that

[homicide] and the identity of its victim.” State v. Lavers,

168 Ariz. 376, 393-94, 814 P.2d 333, 350-51 (1991) (alterations

in original) (citations omitted); see Ellison, 213 Ariz. at 143

¶ 128, 140 P.3d at 926 (requiring the murders be “part of a

continuous course of criminal conduct”).

¶80 Boggs concedes the temporal and spatial relationship

among the victims, but argues that the homicides lack a

motivational relationship. With regard to the various

motivations, Boggs asserts that Hargrave shot one of the victims

because he caused Hargrave to lose his job at the restaurant.

Boggs also suggests that he participated in the shooting only

because he was “flipping out upon seeing the victims after

Hargrave shot them.” Then he suggests that one of the killings

was based on race and another was to eliminate a witness.

¶81 Regardless of Boggs’ specific motive for committing

the murders, all the murders involved a continuous course of

criminal conduct. The evidence, including Boggs’ admission from

his June 6 interrogation, demonstrates that the victims were
38
killed, at least in part, as a means of witness elimination so

that they could not identify the perpetrators. Boggs also

stated that the victims were shot in the freezer to lessen the

gunshot noise and avoid detection. This evidences that the

murders were intended to prevent detection of the perpetrators,

as part of a continuous course of criminal conduct.

¶82 Additionally, other alleged potential motivations

apply to all the victims. First, the racial motivation applied

to all the victims. Although Kenneth Brown was Native American

and Alvarado and Jimenez were Hispanic, Boggs confessed to the

killings in his January 2004 letter to Vogel and stated that his

motive was “to rid the world of a few needless, illegals.”

Because Boggs’ confession does not distinguish among the victims

based on their race, any attempted distinction now seems

disingenuous.

¶83 Second, Boggs contends that Hargrave shot one of the

victims because he informed the restaurant manager of Hargrave’s

short drawer, resulting in Hargrave losing his employment.

Hargrave, however, was angry not merely about being fired, but

also about what he perceived to be disparate treatment between

him and the “Mexican” employees with regard to discipline and

salary. The record indicates that Hargrave did not distinguish

among the employees based on their specific minority heritage.

As a result, any race-based motive or motive related to
39
Hargrave’s animosity toward the restaurant applies to all the

victims. Because the murders were motivationally related and

Boggs concedes the temporal and spatial relationship, the State

established this aggravator beyond a reasonable doubt.

B.

¶84 A capital defendant may present any relevant evidence

during the penalty phase so long as it “supports a sentence less

than death.” Tucker, 215 Ariz. at 322 ¶ 106, 160 P.3d at 201.

The defendant must prove mitigating circumstances by a

preponderance of the evidence. A.R.S. § 13-703.C. Boggs

suggests three mitigating circumstances: difficult upbringing;

mental illness; and cooperation with the police in apprehending

Hargrave.

1.

¶85 Boggs presented sufficient evidence during the penalty

phase to establish his difficult childhood by a preponderance of

the evidence. Boggs’ aunt testified that Boggs was born with a

cleft palate that required numerous surgeries at an early age

and led to emotional problems. Dr. Ruiz explained that constant

hospitalizations and numerous surgeries during the developmental

stages of Boggs’ life affected his later functioning, causing

him to be dissociated and delusional.

¶86 Boggs’ aunt also testified that his mother abused him

mentally and practiced “extreme discipline,” although she never
40
abused him physically. She explained that Boggs’ mother was

diagnosed as having mental retardation and did not know how to

parent. Boggs developed behavioral problems and, from the ages

of ten to fifteen, spent significant time in group homes.

Boggs’ mitigation testimony also included allegations of sexual

abuse between the ages of ten and fourteen, once involving

another boy in a group home and once involving a police officer.

Additionally, Boggs’ aunt recalled him talking of suicide from

the age of ten. Boggs was hospitalized for at least one

suicidal episode.

¶87 Boggs’ difficult life extended into his early

adulthood, as most of his immediate family died when he was

between the ages of sixteen and twenty-one. His maternal

grandmother died of liver failure in 1996, his mother died of

cancer in 1997, his sister died of an epileptic seizure in 1998,

his brother committed suicide in 1998, and his maternal

grandfather died of cancer in 1999.

2.

¶88 The defense also presented evidence sufficient to

establish Boggs’ mental health mitigating circumstance by a

preponderance of the evidence. Dr. Ruiz testified about his

traumatic life events and diagnosed Boggs with post-traumatic

stress disorder (PTSD) and bipolar disorder based on his medical

records. She explained that, with PTSD, “there are rare
41
instances where somebody . . . is reminded of [a past traumatic

experience] because of an event that occurs in their lifetime,

and they go into a [dissociative] state.” Dr. Ruiz also

explained that bipolar individuals suffer mood shifts from

extremely depressed to manic or hypo-manic states, bypassing

“normalcy.” In a manic state, she said, “[e]ventually you rev

up so fast, that you become psychotic” and disinhibited. Dr.

Ruiz could not, however, offer an opinion as to whether Boggs

was in a dissociative or manic state at the time of the murders.

¶89 Dr. Lanyon, a forensic psychologist, evaluated Boggs

several times and concluded that he suffered from chronic

bipolar disorder. Dr. Lanyon explained that delusions are a

symptom of bipolar disorder and testified that “to a reasonable

degree of psychological certainty” Boggs suffered from bipolar

disorder at the time of the crimes, but stated: “That doesn’t

necessarily mean that his behavior on that day was driven by it.

That means that his life up to that point . . . was heavily

colored by it.” Like Dr. Ruiz, Dr. Lanyon could not determine

whether Boggs was in a manic state when he committed the crimes

and even testified that it seemed “reasonably clear” that, at

the time of the murders, Boggs was not doing the “out of control

impulsive things” typical of a manic state. On the other hand,

Dr. Lanyon testified that he believed Boggs was affected by his

disorder at the time, particularly with regard to Boggs’
42
motivations for committing the crimes. In addition, Dr. Lanyon

stated that delusions are a symptom of bipolar disorder and that

Boggs’ belief in his militia supported the delusional aspects of

his mental health. He testified that Boggs may have been

delusional at the time of the crimes, but not in a manic state.

¶90 In rebuttal, the State’s expert, Dr. Almer, testified

that although Boggs exhibited characteristics of anti-social,

narcissistic, and borderline personality disorders, he was not

bipolar. Dr. Almer suggested that Boggs was exaggerating his

mental illness when Lanyon performed psychological tests on him,

but testified that Boggs did have traits typical of a sociopath,

which include a lack of “appreciation for the rights of other

people [and] empathy for the misery of mankind, except to create

[misery] for mankind.” The evidence thus conflicts as to

whether Boggs was bipolar or only anti-social. Taking all the

evidence into account, the defense established that Boggs

suffered from mental health issues, but could not establish his

mental state at the time of the crimes.

3.

¶91 Boggs also argues on appeal that we should consider

his voluntary assistance in helping the police capture Hargrave

as mitigation. The defense contends that Boggs’ assistance led

to the peaceful apprehension of a dangerous man in a potentially

violent situation.
43
¶92 Boggs did aid in the apprehension of Hargrave, but his

motives for doing so are unclear. As the State points out,

Boggs may have provided the police with this information for his

own benefit. Indeed, because Boggs then blamed the robbery and

murders completely on Hargrave, it was in his best interest for

the police to capture Hargrave. Boggs’ cooperation with the

police to aid in Hargrave’s apprehension is entitled to minimal

weight. See State v. Doerr, 193 Ariz. 56, 70 ¶ 67, 969 P.2d

1168, 1182 (1998) (giving little weight, if any, to cooperation

as a mitigating circumstance if defendant is “motivated by self-

interest”).

C.

¶93 After evaluating each aggravating and mitigating

factor, we independently review the propriety of the death

sentence. A.R.S. § 13-703.04.A. In our independent reweighing

of the evidence, we consider the “quality and the strength, not

simply the number, of aggravating and mitigating factors.”

State v. Greene, 192 Ariz. 431, 443 ¶ 60, 967 P.2d 106, 118

(1998). Because the State proved three aggravating factors, of

which the multiple murders aggravating factor receives

“extraordinary weight,” Hampton, 213 Ariz. at 185 ¶ 90, 140 P.3d

at 968, we must determine whether Boggs’ mitigating evidence is

“sufficiently substantial to warrant leniency,” A.R.S. § 13-

703.04.B.
44
¶94 Boggs’ mitigation evidence involves primarily his

difficult upbringing and poor mental health. In our reweighing,

we consider a difficult childhood and poor mental health as

mitigating factors, whether or not they are causally related to

the murder. The existence or lack of a causal link, however,

aids us in “assessing the quality and strength of the mitigation

evidence.” State v. Johnson, 212 Ariz. 425, 440 ¶ 65, 133 P.3d

735, 750 (2006) (citation omitted). As we recently noted, lack

of a causal nexus between a difficult personal life and the

murders lessens the effect of this mitigation. State v. Garza,

216 Ariz. 56, 73 ¶ 84, 163 P.3d 1006, 1023 (2007).

Additionally, we weigh mental health mitigation in proportion to

“a defendant’s ability to conform or appreciate the wrongfulness

of his conduct.” Johnson, 212 Ariz. at 440 ¶ 65, 133 P.3d at

750 (quoting State v. Trostle, 191 Ariz. 4, 21, 951 P.2d 869,

886 (1997)).

¶95 In this case, no expert testified that Boggs did not

know right from wrong, and none could establish his mental state

at the time of the crime. Without a causal link between the

murders and his troubled childhood or mental health issues,

these mitigating circumstances are entitled to less weight. See

id. Weighed against three aggravating factors, including one

for multiple homicides, the mitigating evidence is not

sufficiently substantial to call for leniency.
45
 IV.

¶96 For purposes of federal review, Boggs raises the

following challenges to the constitutionality of Arizona’s death

penalty scheme. He concedes that we have previously rejected

these arguments.

¶97 (1) The fact-finder in capital cases must be able to

consider all relevant mitigating evidence in deciding whether to

give the death penalty. See Woodson v. North Carolina, 428 U.S.

280, 304 (1976). The trial court’s failure to allow the jury to

consider and give effect to all mitigating evidence in this case

by limiting its consideration to that proven by a preponderance

of the evidence is unconstitutional under the Eighth and

Fourteenth Amendments. We rejected this argument in McGill, 213

Ariz. at 161 ¶ 59, 140 P.3d at 944.

¶98 (2) The State’s failure to allege an element of a

charged offense in the grand jury indictment — the aggravating

factors that made the defendant death eligible — is a

fundamental defect that renders the indictment constitutionally

defective under the Fifth, Sixth, Eighth, and Fourteenth

Amendments and Article 2, Sections 1, 4, 13, 15, 23, and 24 of

the Arizona Constitution. See United States v. Chesney, 10 F.3d

641, 643 (9th Cir. 1993); see also Apprendi v. New Jersey, 530

U.S. 466 (2000). We rejected this argument in McKaney v.

46
Foreman ex rel. County of Maricopa, 209 Ariz. 268, 273 ¶ 23, 100

P.3d 18, 23 (2004).

¶99 (3) Both the United States and the Arizona

Constitutions prohibit ex post facto laws. U.S. Const. Art. 1,

§ 10, cl. 1; Ariz. Const. art. 2, § 25. Application of the new

death penalty law to defendant constitutes an impermissible ex

post facto application of a new law. We rejected this argument

in State v. Ring, 204 Ariz. 534, 547 ¶¶ 23-24, 65 P.3d 915, 928

(2003).

¶100 (4) The F.6 aggravating factor of “especially cruel,

heinous, or depraved” is unconstitutionally vague and overbroad

because the jury does not have enough experience or guidance to

determine when the aggravator is met. The finding of this

aggravator by a jury violates the Eighth and Fourteenth

Amendments because it does not sufficiently place limits on the

discretion of the sentencing body, the jury, which has no

“narrowing construction[s]” to draw from and give “substance” to

the otherwise facially vague law. See Walton v. Arizona, 497

U.S. 639, 652-54 (1990), overruled on other grounds by Ring v.

Arizona, 536 U.S. 584 (2002); Godfrey v. Georgia, 446 U.S. 420,

428-29 (1980). We rejected this argument in State v. Cromwell,

211 Ariz. 181, 188-90 ¶¶ 39-45, 119 P.3d 448, 455-57 (2005).

¶101 (5) By allowing victim impact evidence at the penalty

phase of the trial, the trial court violated defendant’s
47
constitutional rights under the Fifth, Sixth, Eighth and

Fourteenth Amendments and Article 2, Sections 1, 4, 13, 15, 23,

and 24 of the Arizona Constitution. We rejected challenges to

the use of victim impact evidence in Lynn v. Reinstein, 205

Ariz. 186, 191 ¶ 16, 68 P.3d 412, 417 (2003).

¶102 (6) The trial court improperly omitted from the

penalty phase jury instructions words to the effect that they

may consider mercy or sympathy in deciding the value to assign

the mitigation evidence, instead telling them to assign whatever

value the jury deemed appropriate. The court also instructed

the jury that they “must not be influenced by mere sympathy or

by prejudice in determining these facts.” These instructions

limited the mitigation the jury could consider in violation of

the Fifth, Sixth, Eighth and Fourteenth Amendments and Article

2, Sections 1, 4, 15, 23, and 24 of the Arizona Constitution.

We rejected this argument in State v. Carreon, 210 Ariz. 54, 70-

71 ¶¶ 81-87, 107 P.3d 900, 916-917 (2005).

¶103 (7) The death penalty is cruel and unusual under any

circumstances and violates the Eighth and Fourteenth Amendments,

and Article 2, Section 15 of the Arizona Constitution. We

rejected this argument in State v. Harrod, 200 Ariz. 309, 320 ¶

59, 26 P.3d 492, 503 (2001), vacated on other grounds, 536 U.S.

953 (2002).

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¶104 (8) The death penalty is irrational and arbitrarily

imposed; it serves no purpose that is not adequately addressed

by life in prison, in violation of the defendant’s right to due

process under the Fourteenth Amendment to the United States

Constitution and Article 2, Sections 1 and 4 of the Arizona

Constitution. We rejected these arguments in State v. Beaty,

158 Ariz. 232, 247, 762 P.2d 519, 534 (1988).

¶105 (9) The prosecutor’s discretion to seek the death

penalty lacks standards and therefore violates the Eighth and

Fourteenth Amendments, and Article 2, Sections 1, 4, and 15 of

the Arizona Constitution. We rejected this argument in State v.

Sansing, 200 Ariz. 347, 361 ¶ 46, 26 P.3d 1118, 1132 (2001),

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

¶106 (10) Arizona’s death penalty is applied so as to

discriminate against poor, young, and male defendants in

violation of Article 2, Sections 1, 4, and 13 of the Arizona

Constitution. We rejected this argument in Sansing, 200 Ariz.

at 361 ¶ 46, 26 P.3d at 1132.

¶107 (11) Proportionality review serves to identify which

cases are above the “norm” of first-degree murder, thus

narrowing the class of defendants who are eligible for the death

penalty. The absence of proportionality review of death

sentences by Arizona courts denies capital defendants due

process of law and equal protection and amounts to cruel and
49
unusual punishment in violation of the Fifth, Eighth, and

Fourteenth Amendments, and Article 2, Section 15 of the Arizona

Constitution. We rejected this argument in Harrod, 200 Ariz. at

320 ¶ 65, 26 P.3d at 503.

¶108 (12) Arizona’s capital sentencing scheme is

unconstitutional because it does not require the state to prove

the death penalty is appropriate or require the jury to find

beyond a reasonable doubt that the aggravating circumstances

outweigh the accumulated mitigating circumstances. Instead,

Arizona’s death penalty statute requires defendants to prove

their lives should be spared, in violation of the Fifth, Eighth,

and Fourteenth Amendments, and Article 2, Section 15 of the

Arizona Constitution. We rejected this argument in Pandeli, 200

Ariz. at 382 ¶ 92, 26 P.3d at 1153.

¶109 (13) Arizona’s death penalty scheme does not

sufficiently channel the sentencing jury’s discretion.

Aggravating circumstances should narrow the class of persons

eligible for the death penalty and reasonably justify the

imposition of a harsher penalty. Section 13-703.01 is

unconstitutional because it provides no objective standards to

guide the jury in weighing the aggravating and mitigating

circumstances. The broad scope of Arizona’s aggravating factors

encompasses nearly anyone involved in a murder, in violation of

the Eighth and Fourteenth Amendments, and Article 2, Section 15
50
of the Arizona Constitution. We rejected this argument in

Pandeli, 200 Ariz. at 382 ¶ 90, 26 P.3d at 1153.

¶110 (14) Execution by lethal injection is cruel and

unusual punishment in violation of the Eighth and Fourteenth

Amendments, and Article 2, Section 15 of the Arizona

Constitution. We rejected this argument in Van Adams, 194 Ariz.

at 422 ¶ 55, 984 P.2d at 30.

¶111 (15) Arizona’s death penalty unconstitutionally

requires imposition of the death penalty whenever at least one

aggravating circumstance and no mitigating circumstances exist,

in violation of the Eighth and Fourteenth Amendments, and

Article 2, Section 15 of the Arizona Constitution. Arizona’s

death penalty law cannot constitutionally presume that death is

the appropriate default sentence. We rejected this argument in

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

V.

¶112 For the foregoing reasons, we affirm Boggs’

convictions and sentences.

_______________________________________
Ruth V. McGregor, Chief Justice

CONCURRING:

_______________________________________
Rebecca White Berch, Vice Chief Justice

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_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

52