State v. Smith

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-04-0208-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR 95116
JOE CLARENCE SMITH, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Thomas W. O’Toole, Judge

SENTENCES AFFIRMED AS MODIFIED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Capital Litigation Section
Jon G. Anderson, Former Assistant Attorney General
Attorneys for State of Arizona

SUSAN M. SHERWIN, MARICOPA COUNTY LEGAL ADVOCATE Phoenix
By Kerri L. Chamberlin, Deputy Legal Advocate
Attorneys for Joe Clarence Smith
________________________________________________________________

R Y A N, Justice

¶1 In 2004, Joe Clarence Smith was resentenced to death

for two murders committed in 1975 and 1976. An automatic notice

of appeal was filed under Arizona Rules of Criminal Procedure

26.15 and 31.2(b) and Arizona Revised Statutes (“A.R.S.”)

section 13-4031 (2001). We have jurisdiction under Article 6,

Section 5(3), of the Arizona Constitution and A.R.S. § 13-4031.
 I

¶2 On January 1, 1976,1 the nude body of Sandy Spencer was

found in the desert northwest of Phoenix. Her nose and mouth

had been stuffed with dirt and taped shut, causing asphyxiation.

Ligature marks on her wrists and ankles indicated that she had

been bound before death and the ligatures had been removed after

death. Before or near the time of death, Spencer also suffered

nineteen stab wounds to the pubic region and a vaginal tear that

was caused by penetration. She also had three stab wounds to

her breasts and a sewing needle was found embedded in her left

breast.

¶3 On February 2, 1976, Neva Lee’s nude body was

discovered in the desert near the Salt River Indian Reservation.

She, like Spencer, had died from “asphyxiation due to airway

obstruction with soil.” Ligature marks were present on her

wrists and ankles - a result of injuries suffered before death.

She also had puncture and stab wounds to her chest, abdomen, and

breasts and damage to her vulva.

¶4 In November 1976, a Maricopa County grand jury

indicted Smith for two counts of first-degree murder. The

superior court severed the counts, requiring separate trials. A

1
In 1976 Smith was on probation for two prior rape
convictions. See State v. Smith, 116 Ariz. 387, 388, 569 P.2d
817, 818 (1977). Probation was revoked in September 1976 after
his third rape conviction. Id. at 389, 569 P.2d at 819.

2
jury convicted Smith of first-degree murder on June 17, 1977,

for the murder of Neva Lee. Smith then pleaded guilty on July

7, 1977, to first-degree murder for the murder of Sandy Spencer.

The superior court subsequently sentenced Smith to death on both

counts. This Court affirmed the convictions, but remanded for

resentencing in light of State v. Watson, 120 Ariz. 441, 445,

586 P.2d 1253, 1257 (1978). State v. Smith (Smith I), 123 Ariz.

231, 243, 599 P.2d 187, 199 (1979).2

¶5 At resentencing, Smith’s counsel presented no new

mitigation evidence and Smith was again sentenced to death. On

automatic appeal, the sentences were affirmed. State v. Smith

(Smith II), 131 Ariz. 29, 35, 638 P.2d 696, 702 (1981).

¶6 From 1984 through 1991, Smith filed a series of

unsuccessful petitions for post-conviction relief. Smith

subsequently filed a habeas corpus petition in the United States

District Court for the District of Arizona, which was denied.

¶7 On appeal, however, a divided panel of the Ninth

Circuit held that Smith’s counsel had been ineffective at the

resentencing. Smith v. Stewart (Smith III), 189 F.3d 1004, 1014

2
Lockett v. Ohio held that limiting the evidence that could
be presented in mitigation in capital cases violates the Eighth
and Fourteenth Amendments. 438 U.S. 586, 604-05 (1978). Watson
accordingly held that A.R.S. § 13-454(F) (Supp. 1957-1978)
unconstitutionally limited a defendant’s ability to present
mitigation evidence in a capital case. 120 Ariz. at 445, 586
P.2d at 1257. Smith’s death sentences, therefore, were vacated

3
(9th Cir. 1999). The majority concluded that counsel’s failure

to present more mitigation evidence after this Court had held

that Arizona’s mitigation statute was not limited to the listed

statutory mitigating factors was equivalent to presenting no

evidence in mitigation. Id. at 1009-11. The majority pointed

to evidence of multiple personalities, other mental disorders,

and good relationships as potential mitigating evidence that was

not presented at the second sentencing proceeding. Id. at 1009-

10. Believing that this evidence may have changed the mind of

the sentencing judge, the court remanded the case to the

district court with directions to vacate the death sentences and

remand the cases for resentencing. Id. at 1013-14. On November

21, 2000, the federal district court issued an order in

accordance with the Ninth Circuit’s mandate.

¶8 The Maricopa County Superior Court held the first

status conference on the case in December 2000. Because more

than twenty-four years had passed since the commission of the

murders, counsel for both sides required considerable time to

gather evidence and prepare for the resentencing proceedings.

¶9 The Supreme Court’s subsequent invalidation of

Arizona’s judge-sentencing procedure in capital cases caused

further delay. See Ring v. Arizona (Ring II), 536 U.S. 584

to allow him to present further mitigation evidence. Smith I,
123 Ariz. at 243, 599 P.2d at 199.

4
(2002); State v. Ring (Ring III), 204 Ariz. 534, 65 P.3d 915

(2003). In response to Ring II, the Arizona Legislature

“subsequently amended Arizona's death penalty statutes. The

amended sentencing statutes assigned to juries the

responsibility of finding aggravating circumstances and

determining whether to impose the death penalty.” State v.

Glassel, 211 Ariz. 33, 42, ¶ 12, 116 P.3d 1193, 1202 (2005),

cert. denied, 126 S. Ct. 1576 (2006) (citations omitted); see

also 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, §§ 1, 3.

¶10 The sentencing proceeding for the murder of Sandy

Spencer finally began before a jury in April 2004.3 In the

aggravation phase, the State sought to prove the following

aggravators: prior conviction for an offense punishable under

Arizona law by a sentence of life in prison or death, A.R.S. §

13-454(E)(1) (Supp. 1957-1978); prior felony conviction that

involved the use or threat of violence on another, id. § 13-

454(E)(2); and the offense was committed in an especially

heinous, cruel, or depraved manner, id. § 13-454(E)(6). In

support of the (E)(1) aggravator, the jury heard testimony that

Smith had previously been convicted of three counts of rape and

sentenced to five years to life, ten years to life, and seventy-

five years to life. The State used Smith’s conviction for the

3
The superior court denied the State’s motion to consolidate
the two counts.

5
murder of Lee to prove the (E)(2) aggravator. In support of the

(E)(6) aggravator, the State offered testimony about the stab

and puncture wounds to Spencer’s body and the asphyxiation. The

jury made separate findings that each aggravator had been proved

beyond a reasonable doubt. As to the (E)(6) aggravator, the

jury made additional findings that each prong – cruelty,

heinousness, and depravity – had been proved.

¶11 In the penalty phase, the defense presented testimony

about Smith’s mental health, his behavior while in prison, his

struggles with asthma, and his family life. The jury determined

that Smith should be sentenced to death for the murder of

Spencer.

¶12 The sentencing proceeding for the murder of Lee, which

began on May 5, 2004, before a new jury, substantially mirrored

the Spencer proceeding. The State again sought to prove the

(E)(1), (E)(2), and (E)(6) aggravators. Testimony related to

the three prior rape convictions and the Spencer murder was

offered to prove the (E)(1) and (E)(2) aggravators,

respectively. The State also offered testimony about the

injuries to Lee and her cause of death to support the (E)(6)

aggravator. The jury once again made separate findings that all

three aggravators had been proved beyond a reasonable doubt,

including each prong of the (E)(6) aggravator. The mitigation

and rebuttal evidence in the penalty phase was substantially the

6
same as in the Spencer proceeding. This jury also determined

that Smith should be sentenced to death.

¶13 Accordingly, the superior court sentenced Smith to

death by lethal injection on both counts.

II

¶14 Smith first argues that the trial court erred in

denying a judgment of acquittal on the (E)(2) aggravator because

first-degree murder, under A.R.S. § 13-452 (Supp. 1957-1978),

did not necessarily require the use or threat of violence.4

Because this issue concerns a question of law, our review is de

novo. See State v. McGill, 213 Ariz. 147, 156, ¶ 40, 140 P.3d

930, 939 (2006), cert. denied, 127 S. Ct. 1914 (2007).

¶15 A prior felony conviction qualified as an aggravator

under former A.R.S. § 13-454(E)(2) only if the elements of the

offense – without regard to the underlying facts of the crime -

required the use or threat of violence on another person. State

v. Gillies, 135 Ariz. 500, 511, 662 P.2d 1007, 1018 (1983); see

also State v. Fierro, 166 Ariz. 539, 549, 804 P.2d 72, 82 (1990)

(“If, under the statutory definition of the crime, the defendant

could commit or be convicted of the crime without the use or

4
The legislature has since foreclosed this argument by
amending A.R.S. § 13-703(F)(2) (Supp. 2006) (formerly A.R.S. §
13-454(E)(2)). 1993 Ariz. Sess. Laws, 1st Reg. Sess., ch. 153, §
1. The amended aggravator requires only that the prior
conviction be for a “serious offense”; first-degree murder is
expressly identified as such an offense, A.R.S. § 13-703(I)(1).

7
threat of violence, the prior conviction cannot qualify as a

statutory aggravating circumstance.”). Consideration of the

underlying facts is impermissible because it would amount to a

second trial. Gillies, 135 Ariz. at 511, 662 P.2d at 1018; see

also State v. Schaaf, 169 Ariz. 323, 334, 819 P.2d 909, 920

(1991). Therefore, we focus on the language of the statute to

determine whether first-degree murder necessarily required the

use or threat of violence.

¶16 The statute in effect at the time of the murders

defined first-degree murder as “murder . . . perpetrated by

means of poison or lying in wait, torture or by any other kind

of wilful, deliberate or premeditated killing.” A.R.S. § 13-

452. Smith contends that “under the statutory definition, first

degree murder could be committed by lacing a victim’s food or

drink with poison. A murder committed in this manner would not

involve the use or threat of violence.” We reject this

contention.

¶17 Under A.R.S. § 13-454(E)(2), violence is defined as

the use or threat of force with the intent to injure or abuse.

Fierro, 166 Ariz. at 549, 804 P.2d at 82. We hold that even

surreptitious poisoning involves the use of force. A person who

uses poison to kill another person “intentionally avails herself

of the physical force exerted by poison on a human body.”

Vargas-Sarmiento v. U.S. Dep’t of Justice, 448 F.3d 159, 174-75

8
(2d Cir. 2006). Poison invades a victim’s body, attacking vital

organs, until it causes death. It is this result that an

assailant seeks in choosing to poison his victim.

¶18 First-degree murder, as defined in A.R.S § 13-452,

therefore cannot be committed without the use of force, whether

that force be exerted by the defendant or by some

instrumentality that the defendant has put to this use.

Accordingly, we affirm the trial court’s denial of Smith’s

motion for a judgment of acquittal on the (E)(2) aggravator

because a prior first-degree murder conviction does establish

this aggravator.5

III

¶19 Smith next argues that the trial court erred by

admitting hearsay testimony during the Lee aggravation phase,

which violated the Confrontation Clause.6 He also argues that

5
Our previous cases are consistent with this result. We
have upheld a finding of the (E)(2) aggravator based on prior
first-degree murder convictions from California. State v.
Gretzler, 135 Ariz. 42, 57, 659 P.2d 1, 16 (1983). California’s
first-degree murder statute in 1973, the year Gretzler committed
the murders, stated that first-degree murder could be committed
by poisoning. Cal. Penal Code § 189 hist. n. (West, Westlaw
through 1987 legislation).
6
The State correctly concedes that the Confrontation Clause
applies when the evidence presented is used to prove an
aggravator. McGill, 213 Ariz. at 159, ¶ 51, 140 P.3d at 942;
State v. Greenway, 170 Ariz. 155, 161 n.1, 823 P.2d 22, 28 n.1
(1991).

9
this error cannot be harmless because this testimony was the

basis of the (E)(6) aggravator.

¶20 A trial court’s decision to admit evidence over

objection is reviewed for an abuse of discretion. State v.

Hampton, 213 Ariz. 167, 178, ¶ 45, 140 P.3d 950, 961 (2006),

cert. denied, 127 S. Ct. 972 (2007). Legal and constitutional

questions are reviewed de novo. McGill, 213 Ariz. at 156, 157-

58, ¶¶ 40, 45, 140 P.3d at 939, 940-41.

A

¶21 First, Smith argues that the State’s medical examiner,

Dr. Keen, improperly relayed to the jury the previous medical

examiner’s findings and opinions. He claims that this testimony

introduced inadmissible hearsay and violated his right to

confront the previous medical examiner.

¶22 Rule 703 of the Arizona Rules of Evidence states:

The facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to the expert at or before
the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need
not be admissible in evidence.

¶23 Expert testimony that discusses reports and opinions

of another is admissible under this rule if the expert

reasonably relied on these matters in reaching his own

conclusion. State v. Rogovich, 188 Ariz. 38, 41-42, 932 P.2d

794, 797-98 (1997); State v. Villafuerte, 142 Ariz. 323, 327,

10
690 P.2d 42, 46 (1984); State v. Noleen, 142 Ariz. 101, 104, 688

P.2d 993, 996 (1984). Such testimony is not hearsay because it

is offered not to prove the truth of the prior reports or

opinions, but rather is offered only to show the basis of the

testifying expert’s opinion. See Rogovich, 188 Ariz. at 42, 932

P.2d at 798; State v. Lundstrom, 161 Ariz. 141, 148, 776 P.2d

1067, 1074 (1989). A testifying expert, however, may not act as

a “conduit for another non-testifying expert’s opinion.”

Lundstrom, 161 Ariz. at 148, 776 P.2d at 1074. Smith contends,

with respect to Dr. Keen’s testimony on the cause of death, size

of wounds, and timing of infliction, that Dr. Keen acted as a

conduit for the prior medical examiner’s opinion.

¶24 Smith’s characterization of Dr. Keen’s testimony is

inaccurate. Dr. Keen formed his own conclusions based on the

partial autopsy report,7 photographs of Lee’s body, and the

testimony of the prior medical examiner, all of which would

normally be relied upon by a medical examiner to make

independent determinations about injuries and causes of death.

Dr. Keen referred to some of the testimony of the prior medical

examiner, but he did so because it helped form the basis for his

own conclusions and observations. His testimony about the

injuries Lee suffered was based on his independent verification

7
Except for the cover page, the original medical examiner’s
report of the Lee autopsy could not be found.

11
of those injuries from the photographs taken in 1976. Further,

he independently concluded that the ligatures were placed on the

wrists and ankles before death, the cause of death was

asphyxiation, and the stab wounds were inflicted near the time

of death. Dr. Keen discussed the prior medical examiner’s

testimony about the location and size of the wounds because he

used that information to determine that none of the other wounds

would have caused Lee’s death; therefore, he concurred with that

medical examiner’s determination that the cause of death was

asphyxiation.

¶25 Thus, Dr. Keen was not a mere conduit for the opinions

of the prior medical examiner; rather, his ultimate opinions

were independent of the testimony of the prior medical examiner.

Because the underlying data and opinions were used to show the

basis for these conclusions, and not to prove the truth of the

matters asserted, there was no hearsay problem. See Rogovich,

188 Ariz. at 42, 932 P.2d at 798; Lundstrom, 161 Ariz. at 148,

776 P.2d at 1074.

¶26 There was also no Confrontation Clause violation. We

have previously held:

Facts or data underlying the testifying expert’s
opinion are admissible for the limited purpose of
showing the basis of that opinion, not to prove the
truth of the matter asserted. Testimony not admitted
to prove the truth of the matter asserted by an out-
of-court declarant is not hearsay and does not violate
the confrontation clause.

12
Rogovich, 188 Ariz. at 42, 932 P.2d at 798 (citation omitted).

The Supreme Court has made plain that the Confrontation Clause

is not violated by use of a statement to prove something other

than the truth of the matter asserted. Crawford v. Washington,

541 U.S. 36, 59 n.9 (2004); see also Tennessee v. Street, 471

U.S. 409, 414 (1985). Therefore, Smith’s confrontation right

was not violated by Dr. Keen’s testimony.

B

¶27 Smith also raises hearsay and Confrontation Clause

claims because Detective Dominguez testified to statements made

by the prior medical examiner during the autopsy of Lee, which

were recorded in a police report.

¶28 Because both the police report and the statements of

the medical examiner who conducted the autopsy are hearsay, each

must independently qualify under a hearsay exception to be

admissible. Ariz. R. Evid. 805. Here, each clearly falls

within an exception.

¶29 A testifying witness may use a memorandum or record to

testify if the witness had knowledge of the matter referred to

in the memorandum or record at one time, but no longer has

sufficient memory to testify fully; the witness made or adopted

the memorandum or record when the matter was fresh in the

13
witness’s memory;8 and the memorandum or record correctly

reflects the knowledge the witness had. Ariz. R. Evid. 803(5).

¶30 Although he no longer recalled specific details of the

autopsy, Detective Dominguez testified that he remembered the

medical examiner pointing out the trauma areas and relaying the

measurements, which his partner then wrote down.9 Detective

Dominguez adopted the report as his own by signing it shortly

after it was created. At the same time, he reviewed the report

for accuracy and believed that it accurately reflected the

information that had been given by the medical examiner at the

autopsy. Therefore, the detective’s use of the report met the

requirements of Arizona Rule of Evidence 803(5).

¶31 The medical examiner’s statements also fall under a

hearsay exception. Statements qualify as a present sense

impression if they “describe an event or condition, that was

perceived by the declarant, and the statement [is] made

immediately after [or contemporaneous with] the event.” State

v. Tucker, 205 Ariz. 157, 166, ¶ 43, 68 P.3d 110, 119 (2003);

8
The memorandum need not be made by or at the direction of
the witness. “It is sufficient if the witness read the
memorandum at a time when his memory was fresh and recognized
that it accurately recorded the event.” 1 Joseph M. Livermore,
Robert Bartels & Anne Holt Hameroff, Arizona Practice: Law of
Evidence § 803.5, at 360 (4th ed. 2000).
9
Detective Dominguez and his partner were present for the
entire autopsy of Lee.

14
see also Ariz. R. Evid. 803(1). The medical examiner’s

statements are present sense impressions because they describe

the condition of the body, were made by the person perceiving

the information, and were made as he perceived the conditions.10

Accordingly, Detective Dominguez’s testimony was not

inadmissible hearsay.

¶32 Smith’s Confrontation Clause claim with respect to

Detective Dominguez’s testimony turns on whether the statements

made by the medical examiner during the autopsy were

“testimonial.” See Davis v. Washington, 126 S. Ct. 2266, 2274

(2006) (citing Crawford, 541 U.S. at 51) (holding that the

Confrontation Clause encompasses only testimonial hearsay).

Because we conclude that any potential error in admitting the

testimony was harmless beyond a reasonable doubt, we need not

decide whether admission of Detective Dominguez’s statements

violated the Confrontation Clause. See State v. King, 212 Ariz.

372, 380, ¶ 36, 132 P.3d 311, 319 (App. 2006).

¶33 Even without the detective’s contested testimony, the

jury still heard evidence that Lee suffered stab and puncture

wounds to her chest, breasts, and abdomen; puncture wounds and

bleeding were observed around her vulva; none of the wounds

10
Cf. United States v. Gil, 58 F.3d 1414, 1422 (9th Cir.
1995) (holding that officers who are “note-takers” could testify
to statements made by surveillance officers because the

15
would have been fatal; she died from “asphyxiation due to airway

obstruction with soil”; she had ligature marks on her wrists and

ankles; there were struggle areas found at the scene; the stab

wounds occurred around the time of death; the ligature marks

were made before death; and a person could be conscious from

forty-five seconds to several minutes while being asphyxiated.

Thus, Detective Dominguez’s testimony added very little to the

evidence the jury already had before it to find that the murder

of Lee was especially cruel, heinous, or depraved. Therefore,

even if the admission of this testimony was erroneous, the error

was harmless beyond a reasonable doubt.

IV

¶34 Smith also argues that the trial court erred in

sentencing him to death by lethal injection. The State concedes

that A.R.S. § 13-704(B) (2001) applies to Smith and allows him

to choose between death by lethal injection or lethal gas, as

long as he does so twenty days before the execution date.

¶35 We have authority under A.R.S. § 13-4037(A) (2001) to

correct the sentences. Accordingly, we vacate the lethal

injection portion of Smith’s sentences and order that Smith be

permitted to choose either lethal injection or lethal gas, as

long as he does so at least twenty days before the execution

statements fell under the federal present sense impression
exception to the hearsay rule).

16
date. If Smith fails to choose, the death penalty will be

carried out by lethal injection. Id. § 13-704(B).

V

¶36 Smith argues that the superior court’s limitation on

questions, improper interjections, and attempts at juror

rehabilitation during voir dire denied him the ability to obtain

fair and impartial juries.

¶37 A trial court has discretion to determine the scope of

voir dire, which we will not overturn absent an abuse of that

discretion. State v. Mauro, 159 Ariz. 186, 202, 766 P.2d 59, 75

(1988); State v. Melendez, 121 Ariz. 1, 3, 588 P.2d 294, 296

(1978); see also Ariz. R. Crim. P. 18.5(d), (e) & cmt.

A

¶38 Smith complains that the trial court’s limitations on

the questions that he could ask left only general “follow the

law” questions, and thus violated the rule of Morgan v.

Illinois, 504 U.S. 719 (1992).

¶39 In Morgan, the Supreme Court held that potential

jurors must be asked whether they would automatically impose the

death penalty if a defendant is found guilty, because a juror

who would do so must be struck for failure to be impartial. Id.

at 729, 736. Although there is no “catechism for voir dire,”

the defendant’s right to an impartial jury nonetheless requires

“adequate voir dire to identify unqualified jurors.” Id. at

17
729. The Court further held that simply asking potential jurors

whether they can follow the law and be fair and impartial is

insufficient. Id. at 735-36.

¶40 Morgan, however, does not require that Smith be

permitted to ask the questions that he claims were improperly

limited. First, we have previously held that a trial court may

prohibit a defendant from asking potential jurors about their

understanding of the phrase “sufficiently substantial to call

for leniency.” Glassel, 211 Ariz. at 46, ¶ 40, 116 P.3d at

1206. Such questioning is not allowed because the phrase is

necessarily subjective. Id. Moreover, the manner in which

Smith’s counsel posed the question improperly asked the

potential jurors, without having heard any of the evidence, to

opine on what it would take to meet that standard. See

Melendez, 121 Ariz. at 3, 588 P.2d at 296.

¶41 Second, the superior court did not abuse its

discretion in refusing to allow Smith’s open-ended questions

about the best reason for having or not having the death

penalty, the importance of considering mitigation, and the type

of offense for which the juror would consider death to be

appropriate. See Glassel, 211 Ariz. at 47, ¶ 44, 116 P.3d at

1207. Each of these questions was quite broad and went well

beyond the constitutionally required determination of whether

the juror would consider mitigation.

18
¶42 Finally, Smith complains that he was not permitted to

ask jurors whether they would automatically impose the death

penalty if they found specific aggravators. Morgan was not

meant to allow a defendant to “ask a juror to speculate or

precommit on how that juror might vote based on any particular

facts.” United States v. McVeigh, 153 F.3d 1166, 1207 (10th

Cir. 1998). Defendants also cannot seek to “condition” or

“commit [jurors] to certain positions prior to receiving the

evidence.” Melendez, 121 Ariz. at 3, 588 P.2d at 296. Smith’s

question attempted to do just that. As we have already held, a

trial court is not required to allow a defendant to ask about

how a juror would assess specific mitigation. State v. Johnson,

212 Ariz. 425, 434, ¶ 31, 133 P.3d 735, 744 (2006), cert.

denied, 127 S. Ct. 559 (2006). We hold that the same is true of

voir dire focused on the assessment of specific aggravators.

See, e.g., People v. Brown, 665 N.E.2d 1290, 1303 (Ill. 1996)

(holding that Morgan did not require questions about specific

aggravators to be asked of potential jurors).

¶43 In addition, Morgan does not, as Smith seems to

contend, prohibit the trial court from asking jurors whether

they will follow the law. As long as counsel has sufficient

opportunity to determine whether a particular juror would

automatically impose the death penalty upon a guilty verdict,

such general questioning may occur without running afoul of the

19
mandate of Morgan. 504 U.S. at 736. Smith had several

opportunities to determine whether any of the jurors would

automatically impose death. The jurors filled out

questionnaires, which contained the Morgan question, along with

other questions about the death penalty, and Smith had ample

opportunity to question potential jurors – including asking some

jurors the very questions that he complains were limited. See

Johnson, 212 Ariz. at 435, ¶ 34, 133 P.3d at 745; Glassel, 211

Ariz. at 47, ¶ 44, 116 P.3d at 1207.

B

¶44 Smith also contends that the superior court judge

abused his discretion by interrupting voir dire and

“rehabilitating” potential jurors. We focus only on the

complaints related to deliberating jurors, as any error with

respect to non-deliberating jurors was harmless. Glassel, 211

Ariz. at 46, ¶ 41, 116 P.3d at 1206.

¶45 The record refutes Smith’s claim that the trial

judge’s interruptions denied him the right to adequately

exercise his challenges. Smith had multiple opportunities to

question the potential jurors to determine whether they would

automatically impose the death penalty. Further, the trial

judge’s interruptions consisted almost entirely of explanations

of the law and clarification of the questions being asked or

answers being given. Because the trial judge is responsible for

20
ensuring that voir dire is conducted in a manner that results in

a fair and impartial jury for both sides, Ariz. R. Crim. P.

18.5(d), (e) & cmt., a judge may interject to make certain a

juror understands the legal requirements for service, the law on

a particular subject, and the question being asked. See

Wainwright v. Witt, 469 U.S. 412, 435 (1985) (stating that a

trial court “is free to interrupt questioning to clarify any

particular statement”). Therefore, the court’s interjections

were permissible and did not amount to an abuse of discretion.

¶46 Smith fails to offer any examples of deliberating

jurors whom the trial judge improperly rehabilitated to support

his argument that automatic death jurors sat on either jury.

Accordingly, we find no abuse of discretion on this claim.

VI

¶47 Smith next argues that the trial court erred when it

failed to exclude rebuttal evidence that was unduly prejudicial,

cumulative, did not refute any mitigator, and served as an

improper aggravator.11

¶48 We review a trial court’s evidentiary decisions for an

abuse of discretion, Hampton, 213 Ariz. at 178, ¶ 45, 140 P.3d

at 961, giving deference to its determination on relevance,

11
We recently rejected the claim that the Eighth Amendment
limits the state to urging statutory aggravating factors when
presenting rebuttal evidence during the penalty phase. See
Hampton, 213 Ariz. at 178, ¶ 46 n.10, 140 P.3d at 961 n.10.

21
McGill, 213 Ariz. at 156-57, ¶ 40, 140 P.3d at 939-40, and

unfair prejudice, State v. Vickers, 159 Ariz. 532, 540, 768 P.2d

1177, 1185 (1989) (dealing with Arizona Rule of Evidence 403,

which is fundamentally the same as the relevance assessment

under A.R.S. § 13-703(C) (Supp. 2004), McGill, 213 Ariz. at 157,

¶ 40, 140 P.3d at 940).

¶49 Under A.R.S. § 13-703(C), the state and the defendant

are permitted to produce any evidence at the penalty phase

relevant to any of the mitigating circumstances, regardless of

whether the rules of evidence would allow it in another phase of

the trial. Furthermore, A.R.S. § 13-703.01(G) (Supp. 2004)

permits both parties to present evidence that is relevant to

whether the mitigation presented is sufficiently substantial to

call for leniency.

¶50 In rebuttal at both sentencing proceedings, the State

offered testimony concerning the facts of Smith’s prior rape and

murder convictions. A detective described to the juries the

circumstances of Smith’s first two rape convictions, which

involved a woman to whom Smith and his wife had offered a ride.

Smith forcibly raped the victim twice, once while at Smith’s

house with his wife present, and again in the desert inside of

Smith’s car while his wife sat outside on the trunk of the car.

Smith repeatedly threatened to kill the victim and spoke about

22
bodies being found in the desert. He released her, however,

after she promised to bring him money the following day.

¶51 The jury in the Spencer sentencing proceeding heard

testimony related to Smith’s third prior rape conviction from

the victim. She testified that Smith offered her a ride home,

but instead drove her into the desert. While there, Smith bound

her hands, forced her to engage in intercourse, raped her with a

Pepsi bottle, forced her to give and receive oral sex, sodomized

her, and forced her to urinate while he watched. He repeatedly

threatened to kill her while brandishing a knife, told her that

he was a “sadist,” and asked her whether she wanted pins or the

knife stuck in her nipple. Eventually, Smith drove the victim

back into town and released her.

¶52 Finally, each jury was told about the facts of Smith’s

other murder conviction - the Spencer jury was told about the

Lee murder and vice versa.

¶53 The superior court correctly determined that this

testimony was relevant to the diagnosis of sexual sadism, which

was the thrust of Smith’s mitigation.12 Indeed, the mental

health experts relied on the underlying facts of these crimes to

diagnose Smith. This testimony thus assisted the jury in its

12
Smith concedes the relevance of this testimony, but objects
to the way it was presented. In particular, he complains that
allowing the rape victim to testify was inappropriate. Smith

23
evaluation of that testimony and in determining whether Smith’s

mental illness played a role in each murder.

¶54 The relevance determination, however, does not end our

inquiry. Hampton, 213 Ariz. at 179, ¶ 48, 140 P.3d at 962. The

Due Process Clause constrains admission of rebuttal evidence,

id., and requires that unduly prejudicial evidence be excluded

if it makes the proceeding “fundamentally unfair,” Payne v.

Tennessee, 501 U.S. 808, 825 (1991). The Supreme Court has said

that establishing a denial of due process in a criminal trial

requires a finding “that the absence of that fairness fatally

infected the trial; the acts complained of must be of such

quality as necessarily prevent a fair trial.” Lisenba v.

California, 314 U.S. 219, 236 (1941).

¶55 Although trial courts “should exclude [rebuttal]

evidence that is either irrelevant to the thrust of the

defendant’s mitigation or otherwise unfairly prejudicial,”

Hampton, 213 Ariz. at 180, ¶ 51, 140 P.3d at 963, none of the

testimony about which Smith complains rendered his sentencing

proceedings fundamentally unfair. The superior court carefully

assessed and scrutinized the prejudicial nature of the rebuttal

evidence. The court limited the scope of the rape victim’s

testimony in the Lee sentencing proceeding based on the

acknowledges, however, that he would not have objected had the
mental health experts testified to the same facts.

24
mitigation evidence that was presented and also limited the bad

acts testimony that could be presented.13 Given the relevance to

Smith’s mitigation, the limits imposed by the trial court, and

the deference given prejudice assessments, we conclude that no

violation of Smith’s due process rights occurred.

VII

¶56 Finally, Smith argues that his death sentences should

be vacated because his state and federal speedy trial rights

have been violated by the twenty-seven year delay between his

convictions and his resentencing.

¶57 We review issues of state and federal constitutional

law de novo. State v. McCann, 200 Ariz. 27, 28, ¶ 5, 21 P.3d

845, 846 (2001). Any factual determination related to these

issues, however, is reviewed for an abuse of discretion. State

v. Moody, 208 Ariz. 424, 445, ¶ 62, 94 P.3d 1119, 1140 (2004);

State v. Stielow, 14 Ariz. App. 445, 448, 484 P.2d 214, 217

(1971).

13
The State initially wanted to ask the mental health experts
about eleven different acts because they related to the
diagnoses. The court’s ruling limited the testimony to the
three rape convictions, the murder convictions, and another rape
conviction that was overturned on appeal, see State v. Smith,
123 Ariz. 243, 253, 599 P.2d 199, 209 (1979). The State later
chose not to present evidence of the conviction that had been
overturned on appeal.

25
 A

¶58 Although this Court and the Supreme Court have never

explicitly held that the speedy trial right applies to

sentencing, neither court has foreclosed that possibility. See

Pollard v. United States, 352 U.S. 354, 361 (1957); State v.

Blazak, 131 Ariz. 598, 600, 643 P.2d 694, 696 (1982) (citing

State v. Steelman, 126 Ariz. 19, 612 P.2d 475 (1980)). In

Pollard, the Supreme Court assumed, without deciding, that the

Sixth Amendment right to a speedy trial extends to sentencing.

352 U.S. at 361. We do the same today.

¶59 In addressing Smith’s speedy trial claim we must

assess the “[l]ength of delay, the reason for the delay, the

defendant’s assertion of his right, and prejudice to the

defendant.” Barker v. Wingo, 407 U.S. 514, 530 (1972); see also

State v. Brannin, 109 Ariz. 525, 528-29, 514 P.2d 446, 449-50

(1973) (applying the Barker factors to analyze a speedy trial

claim). The most important factor is prejudice; delay is the

least, simply acting as a gatekeeper. See Barker, 407 U.S. at

530 (calling the delay factor a “triggering mechanism,” and

stating that unless the delay is “presumptively prejudicial” in

length the other factors need not be addressed); Schaaf, 169

Ariz. at 327, 819 P.2d at 913.

26
 B

¶60 We reject Smith’s argument that the relevant delay,

for purposes of the speedy trial analysis, is twenty-seven

years. “[W]e . . . do not believe that the period of time

between notice of appeal and retrial upon reversal can be

counted as part of the time to be considered in a constitutional

denial of a defendant’s right to speedy trial.” State v. Ward,

120 Ariz. 413, 416, 586 P.2d 974, 977 (1978). Once there has

been a conviction, the defendant has been sentenced, and he has

appealed, the trial court has no need or authority to proceed

any further. Id. at 415-16, 586 P.2d at 976-77 (quoting State

v. Ames, 190 So. 2d 223, 227 (La. 1966)). Were we to accept

Smith’s argument, it would undercut the principle that a

defendant can be retried after appellate reversal without

running afoul of the speedy trial right. See United States v.

Ewell, 383 U.S. 116, 121 (1966) (citing Ball v. United States,

163 U.S. 662, 671-72 (1896), and United States v. Tateo, 377

U.S. 463, 465, 473-74 (1964)).

¶61 Therefore, absent evidence that the state deliberately

delayed the proceedings and the defendant was prejudiced by the

delay, we do not count the time on appeal. United States v.

Loud Hawk, 474 U.S. 302, 316 (1986); Ward, 120 Ariz. at 416, 586

P.2d at 977. Because Smith does not allege any such actions by

the State, we concern ourselves here only with the time after

27
the superior court was revested with jurisdiction. Ward, 120

Ariz. at 416, 586 P.2d at 977; see also United States v. Alston,

412 A.2d 351, 359 (D.C. 1980). Smith has conceded that there

was no speedy trial violation if the time on appeal is not

counted; therefore, we need not address the remaining Barker

factors.14

VIII

¶62 Because both murders occurred before August 1, 2002,

we must independently review the “findings of aggravation and

mitigation and the propriety of the death sentence[s].”15 A.R.S.

§ 13-703.04(A) (Supp. 2006); see also 2002 Ariz. Sess. Laws, 5th

Spec. Sess., ch. 1, §§ 1, 7(B) (providing that § 13-703.04(A)

applies to any sentencing or resentencing in a first-degree

murder case that occurs after the effective date of the act when

the offense was committed before the act’s effective date). If

we decide “that the mitigation is sufficiently substantial to

14
Smith also claims that executing him after twenty-seven
years on death row would violate his Eighth Amendment right to
be free from cruel and unusual punishment. We expressly
rejected this argument in State v. Schackart, 190 Ariz. 238,
259, 947 P.2d 315, 336 (1997), and do so again here,
particularly because much of the delay resulted from Smith’s
pursuit of his rights to post-conviction relief, as opposed to
intentional delay by the State in carrying out the death
sentence.
15
At the time of the murders, this Court independently
reviewed the aggravation and mitigation evidence to determine
whether the death sentence was appropriate. State v. Richmond,

28
warrant leniency,” we must impose a life sentence. A.R.S. § 13-

703.04(B). If it is not, we must affirm the death sentence.

Id.

¶63 In both sentencing proceedings, the State proved three

aggravating factors beyond a reasonable doubt. Smith’s three

prior rape convictions conclusively established that he had been

convicted of another offense that carried a possible sentence of

life imprisonment or death. See A.R.S. § 13-454(E)(1). As

discussed above, his prior convictions for first-degree murder

met the requirements of A.R.S. § 13-454(E)(2). Finally,

overwhelming evidence established that the murders of Spencer

and Lee were especially cruel. See Id. § 13-454(E)(6).

¶64 The “cruelty” prong of the (E)(6) aggravator focuses

on the victim’s mental anguish and physical suffering. A

finding of cruelty requires proof that the victim “consciously

experienced physical or mental pain prior to death, and the

defendant knew or should have known that suffering would occur.”

State v. Trostle, 191 Ariz. 4, 18, 951 P.2d 869, 883 (1997)

(citation omitted).

¶65 Spencer and Lee both died of asphyxiation after having

their noses and mouths filled with dirt and taped shut. They

also had marks on their wrists and ankles from ligatures that

114 Ariz. 186, 196, 560 P.2d 41, 51 (1976). Section 13-703.04
is a codification of this review.

29
had been placed before death. Although the medical examiner

could not conclusively establish consciousness before they had

been bound, the tape and ligatures would have been unnecessary

if the victims were unconscious. See State v. Djerf, 191 Ariz.

583, 596, ¶ 49, 959 P.2d 1274, 1287 (1998). Asphyxiation caused

by stuffing a victim’s nose and mouth with dirt while bound

would undoubtedly cause mental anguish and physical pain. At a

minimum, Smith should have known pain and anguish would occur.

¶66 Proof of cruelty is sufficient to establish the (E)(6)

aggravator because the aggravator is stated in the disjunctive.

State v. Cromwell, 211 Ariz. 181, 189, ¶ 43, 119 P.3d 448, 456

(2005), cert. denied, 126 S. Ct. 2291 (2006). Because we

independently conclude that the murders of Spencer and Lee were

cruel, we need not consider the separate findings of heinousness

and depravity. Id.

¶67 The focus of Smith’s mitigation evidence related to

his mental health. Smith’s mental health expert testified that

he suffered from sexual sadism with a form of anxiety disorder,

which contributed to the commission of the murders. The role of

Smith’s mental health in the commission of these murders, and

therefore the quality of the mitigation, however, is called into

serious question by testimony that Smith could have controlled

his impulses and that he likely knew what he was doing and that

it was wrong.

30
¶68 The remainder of Smith’s mitigation focused on his

good conduct while in prison and his family life. But

conflicting testimony regarding the presence or substantiality

of these mitigators also lessens their impact.

¶69 After review of the record, we hold that even if all

of Smith’s claimed mitigators were established, the mitigation

presented was not sufficiently substantial to warrant leniency

given the nature of the crimes committed and the aggravators

that we have found proven beyond a reasonable doubt. See A.R.S.

§ 13-703.04(B). We therefore affirm the death sentences. Id.

IX

¶70 Smith raises twelve challenges to the

constitutionality of Arizona’s death penalty scheme to preserve

them for further review. He acknowledges, however, that we have

already decided these issues. Smith asserts:

¶71 (1) The prosecutor’s discretion to seek the death

penalty has no standards and therefore violates the Eighth and

Fourteenth Amendments to the United States Constitution and

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

We rejected this argument in State v. Finch, 202 Ariz. 410, 419,

¶ 50, 46 P.3d 421, 430 (2002) (citing State v. Rossi, 146 Ariz.

359, 366, 706 P.2d 371, 378 (1985)).

¶72 (2) Arizona’s death penalty, as applied,

discriminates against poor, young, and male defendants in

31
violation of Article 2, Sections 1, 4, and 13, of the Arizona

Constitution. This argument was rejected in State v. Sansing,

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

other grounds, 536 U.S. 954 (2002), and Schackart, 190 Ariz. at

260, 947 P.2d at 337.

¶73 (3) The death penalty is cruel and unusual punishment

under any circumstances and therefore violates the Eighth and

Fourteenth Amendments to the United States Constitution and

Article 2, Section 15, of the Arizona Constitution. The Supreme

Court rejected this argument in Gregg v. Georgia, 428 U.S. 153,

186-87 (1976); we rejected it in State v. Harrod, 200 Ariz. 309,

320, ¶ 59, 26 P.3d 492, 503 (2001), vacated on other grounds,

536 U.S. 953 (2002), and Blazak, 131 Ariz. at 601, 643 P.2d at

698.

¶74 (4) 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

unusual punishment in violation of the Fifth, Eighth, and

Fourteenth Amendments to the United States Constitution and

Article 2, Section 15, of the Arizona Constitution. State v.

Gulbrandson, 184 Ariz. 46, 73, 906 P.2d 579, 606 (1995) (citing

Pulley v. Harris, 465 U.S. 37, 43-44 & n.6 (1984), and State v.

Salazar, 173 Ariz. 399, 416, 844 P.2d 566, 583 (1992)), rejected

this argument.

32
¶75 (5) Arizona’s capital sentencing scheme is

unconstitutional because it does not require that the state

prove that the death penalty is appropriate, which violates the

Fifth, Eighth, and Fourteenth Amendments to the United States

Constitution and Article 2, Section 15, of the Arizona

Constitution. This argument was rejected in State v. Van Adams,

194 Ariz. 408, 423, ¶ 55, 984 P.2d 16, 31 (1999) (citing

Gulbrandson, 184 Ariz. at 72, 906 P.2d at 605).

¶76 (6) The death penalty is cruel and unusual because it

is irrationally and arbitrarily imposed. The statute requires

that the death penalty be imposed if the jurors find one or more

aggravating circumstances and no mitigation that is sufficiently

substantial to call for leniency. Furthermore, the death

penalty serves no purpose that is not adequately addressed by a

sentence of life imprisonment. Therefore, it violates 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. This proposition was recently

rejected in Cromwell, 211 Ariz. at 192, ¶ 63, 119 P.3d at 459.

See also State v. Pandeli, 200 Ariz. 365, 382, ¶ 88, 26 P.3d

1136, 1153 (2001), vacated on other grounds, 536 U.S. 953

(2002); State v. Beaty, 158 Ariz. 232, 246-47, 762 P.2d 519,

533-34 (1988).

33
¶77 (7) Section 13-703 provides no objective standards to

guide the jurors in weighing the aggravating and mitigating

circumstances and therefore violates the Eighth and Fourteenth

Amendments to the United States Constitution and Article 2,

Section 15, of the Arizona Constitution. This argument was

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

(citing State v. White, 194 Ariz. 344, 355, ¶ 49, 982 P.2d 819,

830 (1999)).

¶78 (8) Section 13-703 does not sufficiently narrow the

class of murders that are death eligible because the aggravating

factors are so broad that they encompass nearly every murder;

therefore, it violates the Eighth and Fourteenth Amendments to

the United States Constitution and Article 2, Section 15, of the

Arizona Constitution. This claim was also rejected in Pandeli,

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

¶79 (9) Execution by lethal injection is cruel and

unusual punishment. The Court rejected this proposition in Van

Adams, 194 Ariz. at 422, ¶ 55, 984 P.2d at 30 (citing State v.

Hinchey, 181 Ariz. 307, 315, 890 P.2d 602, 610 (1995)).

¶80 (10) A proportionality review of a defendant’s death

sentence is constitutionally required. Gulbrandson, 184 Ariz.

at 73, 906 P.2d at 606 (citing Pulley, 465 U.S. at 43-44 & n.6),

rejected this argument.

34
¶81 (11) Arizona’s death penalty statute violates the

Eighth and Fourteenth Amendments to the United States

Constitution and Article 2, Sections 4 and 15, of the Arizona

Constitution because it does not require multiple mitigating

factors to be considered cumulatively or require the fact-finder

to make specific findings as to each mitigating factor. The

Court recently rejected this argument in State v. Anderson, 210

Ariz. 327, 359, app. A, 111 P.3d 369, 401 (2005), cert. denied,

126 S. Ct. 193 (2005). See also Van Adams, 194 Ariz. at 423, ¶

55, 984 P.2d at 31.

¶82 (12) Arizona’s death penalty statute is

constitutionally deficient because it requires defendants to

prove that their lives should be spared. State v. Roseberry,

210 Ariz. 360, 375, app., 111 P.3d 402, 417 (2005), cert.

denied, 126 S. Ct. 444 (2005), rejected this proposition. See

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

(1988) (holding that shifting the burden of proof on mitigation

to the defendant is not unconstitutional).

X

¶83 For the foregoing reasons, we affirm Smith’s sentences

as modified to comply with A.R.S. § 13-704(B).

_______________________________________
Michael D. Ryan, Justice

35
CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
Maurice Portley, Judge*

* Pursuant to Article 6, Section 3, of the Arizona Constitution,
the Honorable Maurice Portley, Judge of the Arizona Court of
Appeals, Division One, was designated to sit in this matter.

36