State v. Hampton

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-03-0033-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2001-008991
TRACY ALLEN HAMPTON, )
)
Appellant. )
) O P I N I O N
__________________________________)

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

AFFIRMED
________________________________________________________________

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

MICHAEL S. REEVES Phoenix
Attorney for Tracy Allen Hampton
________________________________________________________________

H U R W I T Z, Justice

I.

FACTS AND PROCEDURAL BACKGROUND

¶1 On May 16, 2001, Department of Public Safety officers

attempted to serve a traffic ticket on Tracy Allen Hampton.1 The

officers went to a house on East Roberts Road in Phoenix, where

1
The facts are stated in the light most favorable to
sustaining the verdicts below. See State v. Murdaugh, 209 Ariz.
19, 23 ¶ 2 n.1, 97 P.3d 844, 848 n.1 (2004).
Hampton had been staying with Charles Findley and Findley’s

girlfriend, Tanya Ramsdell, who was five months pregnant.

Hampton was not there, but Findley and Ramsdell were. To prove

that he was not the man the officers were looking for, Findley

showed them a photograph of Hampton, and the officers left.

¶2 Early the next day, Misty Ross and Shaun Geeslin went

to the house on East Roberts Road. Hampton let them in; he told

them of the police visit and his intention to confront Findley

about the incident. When Findley awoke, Hampton argued with

him.

¶3 Later during the morning of May 17, Hampton, Findley,

Ross, Geeslin and several others smoked methamphetamine.

Sometime after 10:30 a.m., Hampton and Geeslin left. The two

returned near noon and entered a back room where Findley was

kneeling on the floor working on a lighter. Hampton turned on a

CD player to a loud volume, walked in front of Findley, and

called out his name. As Findley looked up, Hampton shot him in

the forehead, killing him. Geeslin and Ross then walked to the

front door.

¶4 Hampton began following Ross and Geeslin, but stopped

and said something like, “Wait, we have one more.” He then went

to a bedroom where Ramsdell was sleeping and opened the door.

Ramsdell told Hampton to get out, and Hampton shot her in the

head. Ramsdell and her unborn child died as a result.

2
¶5 Hampton then joined Ross and Geeslin in Geeslin’s

truck. After asking whether he had any blood on his face,

Hampton asked to be taken to get some food. A few hours later,

Hampton asked Ross whether she wanted to play a game of darts

and commented, “What, I killed two people, and we can’t kick

it?”

¶6 Hampton was arrested on May 31, 2001. While awaiting

trial in the Maricopa County jail in August 2001, Hampton shared

a cell with George Ridley. Ridley testified at trial that

Hampton admitted to committing the murders and told him the

story of the murders every night for two weeks. Hampton told

Ridley that he killed Findley because “he was a rat” and he

killed Ramsdell because Hampton was affiliated with the Aryan

Brotherhood and thought that Ramsdell was a “nigger lover” who

was pregnant with a Black man’s child. Hampton also told Ridley

that he “thought it was funny” that Ramsdell had slept through

the shooting of her boyfriend, and “bragged about the fact he

was able to shoot [Ramsdell] in pretty much the same place he

shot her old man.” Ridley also said that before leaving the

house, Hampton knelt down next to Findley’s body and whispered

in his ear, “I want to let you know I took care of your nigger

loving old lady and her little coon baby, too. Don’t worry,

they didn’t feel a thing.”

3
¶7 The State originally charged Hampton by complaint with

two counts of first degree murder for the deaths of Findley and

Ramsdell, and one count of manslaughter for the death of

Ramsdell’s unborn child. The State later filed an information

and a Notice of Intention to Seek the Death Penalty, stating

that it intended to prove “one or more of the enumerated

factors” in Arizona Revised Statutes (“A.R.S.”) § 13-703(F)

(2001).

¶8 On May 2, 2002, a jury found Hampton guilty on all

counts. The State filed a Notice of Aggravating Factors on May

7, 2002, alleging two aggravating circumstances: (1) A.R.S. §

13-703(F)(8) (multiple homicides); and (2) A.R.S. § 13-703(F)(6)

(especially heinous or depraved; “whereby defendant knew victim

Tanya Ramsdell was pregnant, and/or murdered her because he

believed the baby’s father was Black, creating and resulting in

a racist murder, thereby murdering Tanya Ramsdell in order to

murder her unborn baby”).

¶9 On June 24, 2002, the United States Supreme Court held

in Ring v. Arizona (“Ring II”), 536 U.S. 584 (2002), that the

Sixth Amendment requires a jury to find the aggravating

circumstances necessary for the imposition of the death penalty.

The sentencing proceedings were therefore conducted before a new

jury.

4
¶10 In the aggravation phase, the jury found both the

(F)(6) and (F)(8) aggravating circumstances. With respect to

the (F)(6) aggravator, the jurors unanimously concluded in a

special verdict form that: (1) “The defendant relished the

murder”; and (2) “The killing was senseless because it was

unnecessary to achieve the defendant’s criminal purpose, or the

victim was helpless because she was unable to resist.” In the

penalty phase, the jury determined that the mitigating

circumstances were not sufficiently substantial to call for

leniency.

¶11 The superior court accordingly imposed death sentences

for the two murder convictions. The trial judge also sentenced

Hampton to an aggravated term of twelve and one-half years for

manslaughter, to run consecutively to the death penalties. The

convictions and sentences have been appealed to this Court.

II.

ISSUES ON APPEAL

¶12 Hampton raises eighteen issues on appeal. Two issues

relate to the murder convictions and one to the manslaughter

conviction. Fourteen issues relate to the sentences imposed.

Hampton also raises claims in order to avoid federal preclusion,

all of which concern the death sentences.

5
 A.

Issues Relating to the Convictions

1. Death Qualification of the Trial Jury

¶13 The superior court denied Hampton’s pre-trial motion

to preclude “death qualification”2 of the jury. Hampton argues

that the jury selection process violated the Eighth Amendment

because the guilt phase jury was selected on the “false

premises” that it would not decide aggravating factors or

sentencing.

¶14 The United States Supreme Court has long held that the

death qualification of juries is constitutional. See, e.g.,

Wainwright v. Witt, 469 U.S. 412, 424-25 (1985). This Court

repeatedly upheld the death qualification of trial juries before

Ring II, when judges were responsible for sentencing decisions.

See, e.g., State v. Hoskins, 199 Ariz. 127, 141-42 ¶¶ 49-50, 14

P.3d 997, 1011-12 (2000); State v. Anderson (“Anderson I”), 197

Ariz. 314, 324 ¶ 24, 4 P.3d 369, 379 (2000). After juries were

assigned sentencing decisions, we upheld the death qualification

of a jury in precisely the same procedural posture as Hampton’s

guilt phase jury – a jury that would have no role in the

eventual sentencing of a defendant, even though a later jury

2
“Death qualification” refers to the process of questioning
potential jurors to determine whether their qualms about the
death penalty should preclude them from serving in a case in
which the state seeks the death penalty. See State v. Moody,
208 Ariz. 424, 449 ¶ 83, 94 P.3d 1119, 1144 (2004).

6
would. State v. Anderson (“Anderson II”), 210 Ariz. 327, 337 ¶¶

21-23, 111 P.3d 369, 379 (2005). Hampton provides no reason for

us to reconsider Anderson II.

¶15 In any event, the factual premise of Hampton’s

argument – that “jurors’ death penalty scruples were mollified

by the court’s incorrect instruction that the jury would have no

role in sentencing” – is wrong. The guilt phase jury played no

role in sentencing and therefore could not have been misled into

thinking that responsibility for the determination of the proper

sentence lay elsewhere.

2. Admission of Photographs of Victims

¶16 Hampton claims that the trial court erred in admitting

photographs of the victims during the guilt, aggravation, and

penalty phases. He argues that because he did not deny that the

murders took place, but rather only claimed that he was not the

murderer, the photographs “were irrelevant because they were

probative only of matters not in dispute.”3

¶17 We review the decision to admit a photograph for abuse

of discretion. Id. at 339 ¶ 39, 111 P.3d at 381. The analysis

is based on three factors: the photograph’s relevance, its

3
The thrust of Hampton’s defense was that the murders were
committed by someone else, possibly Tim Wallace, one of the
persons at the East Roberts home smoking methamphetamine on the
morning of May 17, 2001.

7
tendency to inflame the jury, and its probative value compared

to its potential to cause unfair prejudice. Id.

¶18 Photographs of the deceased are relevant in a murder

case “‘because the fact and cause of death are always relevant

in a murder prosecution.’” State v. Spreitz, 190 Ariz. 129,

142, 945 P.2d 1260, 1273 (1997) (quoting State v. Chapple, 135

Ariz. 281, 288, 660 P.2d 1208, 1215 (1983)). Photographs may

also be relevant to prove the corpus delecti, to identify the

victim, to show the fatal injury, to determine the atrociousness

of the crime, to corroborate State witnesses, to illustrate

testimony, or to corroborate the State’s theory of the crime.

Anderson II, 210 Ariz. at 339-40 ¶ 39, 111 P.3d at 381-82

(citing Chapple, 135 Ariz. at 288, 660 P.2d at 1215).

¶19 “Even if a defendant does not contest certain issues,

photographs are still admissible if relevant because the burden

to prove every element of the crime is not relieved by a

defendant’s tactical decision not to contest an essential

element of the offense.” State v. Dickens, 187 Ariz. 1, 18, 926

P.2d 468, 485 (1996) (citations and internal quotation omitted).

Because “[t]here is nothing sanitary about murder,” nothing in

the rules of evidence “requires a trial judge to make it so.”

State v. Rienhardt, 190 Ariz. 579, 584, 951 P.2d 454, 459

(1997). Nonetheless, photographs must not be introduced “for

8
the sole purpose of inflaming the jury.” State v. Gerlaugh, 134

Ariz. 164, 169, 654 P.2d 800, 805 (1982).

¶20 We have reviewed the contested photographs, which

depict the bodies of Findley, Ramsdell, and the fetus. All but

the photograph of the fetus show the nature and the placement of

the victims’ injuries and were thus relevant to corroborate the

testimony of the State’s witnesses. Although the photograph of

the fetus is unsettling, it was relevant to both the

manslaughter offense and the multiple homicides aggravator. The

trial court excluded several other photographs because they were

cumulative or potentially unduly prejudicial. On this record,

we cannot conclude that the judge abused his discretion by

determining that the probative value of the remaining

photographs outweighed any danger of unfair prejudice.

3. Fetal Manslaughter

¶21 Hampton claims that the fetal manslaughter statute,

A.R.S. § 13-1103(A)(5) (2001), applies only in cases in which

the mother does not die.4 When the mother also dies, Hampton

argues, fetal manslaughter “is consumed in the mother’s death.”

4
At the time Hampton was tried, § 13-1103(A)(5) provided
that “[a] person commits manslaughter by: Knowingly or
recklessly causing the death of an unborn child at any stage of
its development by any physical injury to the mother of such
child which would be murder if the death of the mother had
occurred.”

9
¶22 We addressed this statute in State v. Brewer, 170

Ariz. 486, 826 P.2d 783 (1992). The facts in Brewer were

similar to those here: the defendant murdered a pregnant woman

and, in so doing, also killed the fetus. Id. at 492, 826 P.2d

at 789. Brewer held that the defendant could not be charged

with first degree murder of the fetus because § 13-1103(A)(5)

“specifically deals with the facts of this case.” Id. at 508,

826 P.2d at 805. Brewer thus makes clear that the fetal

manslaughter statute applies in cases in which both the fetus

and the mother die. Id.; see also Passley v. State, 21 S.E.2d

230, 232 (Ga. 1942) (reaching same conclusion as to similar

Georgia statute).5

¶23 Our discussion in Brewer was technically dictum, as

the State never charged the defendant in that case with

manslaughter under § 13-1103(A)(5). We nonetheless adhere to

our analysis in Brewer today. Section 13-1103(A)(5) was plainly

intended to protect the life of the fetus. It would therefore

be illogical to interpret the statute as treating a murderer who

successfully kills both mother and unborn child more favorably

5
The Georgia statute provided that the “‘wilful killing of
an unborn child so far developed as to be ordinarily called
‘quick’, by any injury to the mother of such child, which would
be murder if it resulted in the death of such mother, shall be
punished by death or imprisonment for life, as the jury may
recommend.’” Passley, 21 S.E.2d at 232 (quoting Ga. Code Ann. §
26-1103 (1876), currently codified at Ga. Code Ann. § 16-5-80
(West, Westlaw through 2005)).

10
than a murderer who manages to kill only the unborn child. The

statute, although perhaps not worded felicitously, applies when

the acts and mental state of the defendant would support a

murder charge in the event the mother died, whether or not she

actually does.

B.

Sentencing Issues

1. Retroactivity of 2002 Capital Sentencing Statute

¶24 After Ring II, the legislature amended Arizona’s death

penalty sentencing statutes. 2002 Ariz. Sess. Laws, 5th Spec.

Sess., ch. 1. Hampton claims that applying the amended statutes

to his case violated the Ex Post Facto Clauses of the federal

and state constitutions, U.S. Const. art. I, § 10, cl. 1 and

Ariz. Const. art. 2, § 25. Identical constitutional claims,

however, were expressly rejected in State v. Roseberry, 210

Ariz. 360, 364-65 ¶ 18, 111 P.3d 402, 406-07 (2005), Anderson

II, 210 Ariz. at 346 ¶ 74, 111 P.3d at 388, State v. Carreon,

210 Ariz. 54, 60-61 ¶¶ 17-21, 107 P.3d 900, 906-07 (2005), and

State v. Ring (“Ring III”), 204 Ariz. 534, 547 ¶¶ 23-24, 65 P.3d

915, 928 (2003).

¶25 Hampton also claims A.R.S. § 1-244 (2002), which

provides that “[n]o statute is retroactive unless expressly

declared therein,” bars application of the new statutes to his

case. We rejected this argument in Roseberry, because the new

11
statutes expressly provide for retroactive application. 210

Ariz. at 365 ¶ 18 n.2, 111 P.3d at 407 n.2 (citing 2002 Ariz.

Sess. Laws, 5th Spec. Sess., ch. 1, § 7).

2. Absence of Probable Cause Findings of Capital Aggravators

¶26 Hampton argues that the death penalty cannot be

imposed because no finding of probable cause with respect to any

of the aggravating circumstances was made either by a grand jury

or at a preliminary hearing. As Hampton concedes, however,

McKaney v. Foreman, 209 Ariz. 268, 272 ¶ 17, 100 P.3d 18, 22

(2004), expressly forecloses his contentions. We decline

Hampton’s invitation to revisit McKaney.

3. Notice of Aggravating Circumstances

¶27 Hampton claims the State violated A.R.S. § 13-

703.01(B) (Supp. 2005)6 by not providing notice of the alleged

aggravating circumstances until after his conviction.7 Hampton

also argues that this procedure violated his constitutional

6
A.R.S. § 13-703.01(B), which was adopted in 2002 as part of
the post-Ring II amendment of the capital sentencing statutes,
provides: “Before trial, the prosecution shall notice one or
more of the aggravating circumstances under § 13-703, subsection
F.”
7
The State filed a Notice of Aggravating Factors five days
after Hampton’s convictions. Post-conviction notice of alleged
capital aggravators was permissible under then-applicable
Arizona Rule of Criminal Procedure 15.1(g). Rule 15.1(i) now
requires the State to provide a list of alleged aggravating
factors within sixty days of arraignment.

12
rights to effective assistance of counsel, due process, and a

fair and reliable capital sentencing proceeding.

¶28 We addressed and rejected Hampton’s statutory

arguments on identical facts in Roseberry, 210 Ariz. at 365-66

¶¶ 19-25, 111 P.3d at 407-08, and Anderson II, 210 Ariz. at 347

¶¶ 79-80, 111 P.3d at 389. We also rejected due process

arguments in Roseberry and Anderson II indistinguishable from

those raised today. Roseberry, 210 Ariz. at 365-66 ¶¶ 21-25,

111 P.3d at 407-08; Anderson II, 210 Ariz. at 347 ¶¶ 79-80, 111

P.3d at 389. Hampton received notice of the aggravating

circumstances eight months before the aggravation phase of his

trial and does not claim any prejudice from the fact that the

notice came after conviction.

4. New Jury for Aggravation and Penalty Phases

¶29 Hampton claims that the superior court erred in

empanelling a second jury for the aggravation and penalty phases

of the trial. He argues that the second jury was “deprived of

evidence from the guilt trial” relevant to aggravation,

mitigation, and the decision whether to impose the death

penalty.

¶30 We held in Anderson II that a defendant has no

absolute right to have the guilt phase jury also determine

sentencing. 210 Ariz. at 347-48 ¶¶ 81-86, 111 P.3d at 389-90;

accord Ring III, 204 Ariz. at 551 ¶ 39, 65 P.3d at 932

13
(“Although completing a defendant’s trial with the same judge or

jurors is ideal, a defendant holds no absolute right to such an

arrangement.”). As was the case in Anderson II, Hampton does

not identify any evidence from the guilt phase that would have

been helpful to the aggravation/penalty jury, nor does he claim

he was prevented from presenting any such evidence to that jury.

210 Ariz. at 347 ¶ 83, 111 P.3d at 389.

¶31 Hampton also argues that the penalty phase jury was

“relieved from the gravity of their decision because they could

rationalize that the [guilt phase] jury was responsible” for the

sentencing decision. The penalty phase jurors, however, were

expressly instructed to the contrary: “You, as jurors, are the

sole judges of the facts and you alone determine whether the

defendant is to receive the death penalty.”

5. Double Jeopardy

¶32 Hampton argues that the sentencing proceedings

violated the federal and state Double Jeopardy Clauses, U.S.

Const. amend. V, and Ariz. Const. art. 2, § 10. He reasons that

the maximum punishment he could have faced after the guilt phase

was life imprisonment, as the then-existing statutory procedure

for aggravation findings (by the judge) was unconstitutional.

Hampton contends that subjecting him to proceedings before the

second jury violated three core concerns of the Double Jeopardy

Clauses: a prohibition on increasing the penalty to which a

14
defendant is exposed; a ban on allowing a new jury to

“supplement” findings not made by a previous jury; and a

preference for completing a trial before a single tribunal.

¶33 Ring III squarely addresses and rejects Hampton’s

argument. 204 Ariz. at 548-49 ¶¶ 29-32, 65 P.3d at 929-30.

Hampton attempts to distinguish his situation from the

defendants in Ring III, all of whom already had been sentenced

by a judge. Any such distinction, however, is precluded by

Anderson II, in which we rejected double jeopardy claims from a

defendant in an identical procedural posture as is Hampton. See

Anderson II, 210 Ariz. at 348 ¶ 87, 111 P.3d at 390.

6. Standard of Review of Death Sentences

¶34 Hampton’s opening brief argued that A.R.S. § 13-

703.05(A) (Supp. 2005), which provides for appellate abuse of

discretion review of death sentences, violates the separation of

powers doctrine and the Eighth Amendment. Hampton’s reply

brief, however, correctly abandoned these arguments. Because

Hampton’s crime occurred before August 1, 2002, the effective

date of the new capital sentencing scheme, § 13-703.05 does not

apply. See 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, §

7(C) (providing that § 13-703.05(A) applies only to sentencings

and resentencing “held after the effective date” of the amended

capital sentencing statutes). Rather, as required by former §

13-703.01 (2001) (renumbered as § 13-703.04 (Supp. 2005)), this

15
Court will independently review the jury’s findings of

aggravation and mitigation and the propriety of the death

sentences. See Roseberry, 210 Ariz. at 370 ¶ 56, 111 P.3d at

412; Carreon, 210 Ariz. at 65 ¶ 50 n.11, 107 P.3d at 911 n.11.

7. Constitutionality of the (F)(6) Aggravator

¶35 In Walton v. Arizona, the Supreme Court found the

“especially heinous, cruel or depraved” aggravating factor,

A.R.S. § 13-703(F)(6), “facially vague,” but held that this

Court’s constructions of the statute furnished sufficient

guidance to satisfy Eighth and Fourteenth Amendment concerns.

497 U.S. 639, 654-55 (1990). Hampton argues that Walton

sanctioned use of this aggravator only because judges (then

responsible for finding aggravators) were assumed to understand

and employ this Court’s decisions. Because jurors, not judges,

now make findings of aggravation, Hampton argues that the (F)(6)

aggravator is no longer constitutional.

¶36 We addressed and rejected this argument in State v.

Cromwell, 211 Ariz. 181, 188 ¶¶ 41-42, 119 P.3d 448, 456 (2005),

and in Anderson II, 210 Ariz. at 353 ¶¶ 113-114, 111 P.3d at

395. Those cases hold that the (F)(6) aggravator may be

constitutionally applied if given substance and specificity by

jury instructions that follow this Court’s constructions.

Cromwell, 211 Ariz. at 188 ¶¶ 41-42, 119 P.3d at 456; Anderson

II, 210 Ariz. at 353 ¶¶ 113-114, 111 P.3d at 395.

16
¶37 The question is thus whether the instructions given to

Hampton’s jury appropriately defined the facially vague terms

“heinous” and “depraved” in accord with our prior decisions.8

The instructions stated:

The term “heinous or depraved manner” requires proof:

the defendant relished the murder; or

the killing was senseless because it was unnecessary
to achieve the defendant’s criminal purpose; or

the victim of the killing was helpless because she was
unable to resist.

A finding the defendant relished the murder will
support a finding the murder was committed in a
heinous and depraved manner by itself.

Because most murders are senseless and most victims
are helpless, a finding of either or both will not
alone support a finding the murder was committed in a
heinous and depraved manner.

If you find the murder of Tanya Ramsdell was committed
in a “heinous or depraved” manner because the
defendant relished the murder, or because the
defendant relished the murder and the murder was
senseless or the victim was helpless, you must then
determine whether the murder was committed in an
“especially” heinous or depraved manner.

Proof the defendant “relished” the murder would be
something the defendant said or did that indicates he
savored the murder. It must contain words or actions
that show debasement or perversion.

¶38 The comparable jury instructions in Anderson II, which

we expressly approved, were as follows:

8
The “cruelty” prong of the (F)(6) aggravator was not
submitted to the jury in this case.

17
 The terms “heinous” and “depraved” focus on the
defendant’s mental state and attitude at the time of
the offense as reflected by his words and actions. A
murder is especially heinous if it is hatefully or
shockingly evil. A murder is depraved if marked by
debasement, corruption, perversion or deterioration.

In order to find heinousness or depravity, you must
find beyond a reasonable doubt that the defendant
exhibited such a mental state at the time of the
offense by doing at least one of the following acts:
One, relishing the murder. In order to relish a
murder the defendant must show by his words or actions
that he savored the murder. These words or actions
must show debasement or perversion, and not merely
that the defendant has a vile state of mind or callous
attitude.

Statements suggesting indifference, as well as those
reflecting the calculated plan to kill, satisfaction
over the apparent success of the plan, extreme
callousness, lack of remorse, or bragging after the
murder are not enough unless there is evidence that
the defendant actually relished the act of murder at
or near the time of the killing.

210 Ariz. at 353 ¶ 111 n.19, 111 P.3d at 395 n.19.

¶39 The instructions in this case concerning

“senselessness” and “helplessness” were in accord with Anderson

II and our prior decisions defining those terms. The

instructions correctly made clear that a mere finding that the

murder was senseless and/or that the victim was helpless would

not be sufficient to support a finding of the (F)(6) aggravator.

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

(“Ordinarily, senselessness and helplessness alone are

insufficient to establish heinousness or depravity.”).

18
¶40 The same is not true, however, of the “relishing”

instructions. In contrast to the instruction in Anderson II,

the instructions here failed to specify that this factor focuses

on the mental state of the defendant at or near the time of the

murder, and that mere indifference, callousness, or even

bragging afterward do not alone constitute relishing. See State

v. Lujan, 124 Ariz. 365, 372, 604 P.2d 629, 636 (1979) (“In

determining whether a murder has been committed in an especially

heinous or depraved manner, we must necessarily consider the

killer’s state of mind at the time of the offense.”) (emphasis

added); see also State v. Johnson, 212 Ariz. 425, 732 ¶ 23, 133

P.3d 735, 742 (2006) (upholding instructions that heinousness or

depravity “referred to the defendant’s state of mind only at the

time of the offense” but recommending use of the more detailed

Anderson II instructions). Nor did the instructions here state,

as did those in Anderson II, that the defendant’s actions or

words after the fact are relevant to a finding of

heinousness/depravity only insofar as they shed light on the

defendant’s mental state at or near the time of the killings.

See Anderson II, 210 Ariz. at 353 ¶ 111 n.19, 111 P.3d at 395

n.19; State v. Greene, 192 Ariz. 431, 440 ¶ 39, 967 P.2d 106,

115 (1998) (“Post-murder behavior is relevant to prove

heinousness or depravity [only] when it provides evidence of ‘a

killer’s vile state of mind at the time of the murder.’”)

19
(quoting State v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10

(1983)).

¶41 Walton held that our prior constructions save what

would otherwise be an unconstitutionally vague (F)(6)

aggravator. 497 U.S. at 654-55. Indeed, in opposing Hampton’s

pre-trial motion to strike the (F)(6) aggravator, the State

recognized this and promised to “submit jury instructions in

this case regarding A.R.S. § 13-703(F)(6) which encompass all of

the narrowing factors formulated by the Arizona Supreme Court

that have been held to render that aggravating circumstance

constitutional.”

¶42 The instructions given in this case, however, did not

follow our previous decisions and allowed the jury to find the

(F)(6) aggravator on the basis of “relishing” that may have

occurred months after the crime. We therefore will not consider

the (F)(6) aggravator in our determination of whether the death

penalty was appropriately imposed in this case. See Anderson

II, 210 Ariz. at 356 ¶ 130, 111 P.3d at 398.

8. Expert Mental Health Testimony

¶43 Hampton obtained an opinion as to his mental health

from an expert, Dr. Rosengard. The expert’s opinion was based

in part on an interview of Hampton. Hampton, however, refused

to consent to an evaluation by the State’s mental health expert.

The trial judge therefore ruled that Dr. Rosengard could not

20
discuss in his testimony either his interview with Hampton or

any opinion based on that interview. Hampton then declined to

present Dr. Rosengard’s testimony. Hampton now challenges the

court’s ruling on Eighth Amendment grounds.

¶44 We rejected an identical argument in Carreon, 210

Ariz. at 68-69 ¶ 74, 107 P.3d at 914-15, and Phillips v.

Araneta, 208 Ariz. 280, 285 ¶ 15, 93 P.3d 480, 485 (2004).

Carreon held that a trial judge may entirely preclude a capital

defendant from presenting mental health expert testimony as

mitigation evidence if the defendant refuses to submit to an

examination by the State’s mental health expert. 210 Ariz. at

68-69 ¶ 74, 107 P.3d at 914-15 (citing Phillips, 208 Ariz. at

283 ¶ 9, 93 P.3d at 483). Here, in contrast, the trial court

precluded only the portion of Hampton’s proposed mental health

mitigation evidence based on the expert’s interview with

Hampton.

9. Testimony of Monica Majors

¶45 Hampton contends that the trial court abused its

discretion by admitting testimony in the penalty phase by his

former girlfriend, Monica Majors, regarding several previous

violent acts committed by Hampton.9 He argues that her testimony

9
Majors testified that Hampton had committed various acts of
violence against her: “He’s beat me severely. Put me in the
hospital. Tied me up and left me in a closet. Beat me. Put
knives to my throat and stuff like that.” Majors also said she

21
should have been excluded because Hampton’s character for

violence was not at issue and, even if relevant, the testimony

was more prejudicial than probative under Arizona Rule of

Evidence 403. We review trial court decisions admitting or

excluding evidence for abuse of discretion. State v. Roscoe,

184 Ariz. 484, 491, 910 P.2d 635, 642 (1996).

a.

¶46 Hampton’s primary argument – that the admission of

this evidence violated Rule 403 – is easily answered. The

governing statute, A.R.S. § 13-703(C), expressly provides that

the rules of evidence do not apply in the penalty phase:

At the penalty phase of the sentencing proceeding
. . . the prosecution or the defendant may present any
information that is relevant to any of the mitigating
circumstances . . . regardless of its admissibility
under the rules governing admission of evidence at
criminal trials.

_________________________
saw Hampton’s oldest brother, Jim, on May 14, 2001, three days
before the murders. Jim had a bloody gash on his head where,
Jim told Majors, Hampton had pistol whipped him. Majors
testified that Jim told her that Hampton was mad at her and
“that he was going to come over and try to kill me.” She
further testified that in 2001, before the murders of Ramsdell
and Findley, Hampton told Majors that he had shot a man in the
leg. She said she saw Hampton after the murders, on May 18,
2001, and “[h]e was basically saying his good-byes, basically.
He gave me a hug and whispered, ‘I did it.’” Majors also
testified that Hampton told her after the preliminary hearing
that what Misty Ross had said at that hearing was true. Hampton
threatened to have Majors’ son kidnapped if she did not bring
him to see Hampton in jail. She said Hampton had told her, “The
only reason you live is you have my Aryan baby.” Finally,
Majors testified that she was told that Hampton was trading
psychiatric medications with other inmates.

22
Indeed, applying the rules of evidence to the penalty phase

would exclude much of the mitigation evidence that defendants

routinely present at penalty phase hearings.10

¶47 The only limit that § 13-703(C) places on the State’s

evidence at the penalty phase is that it must be “relevant” to

the issue of mitigation. See State v. McGill, ___ Ariz. ___,

___ ¶ 40, ___ P.3d ___, ___ (2006); see also A.R.S. § 13-

703.01(G) (providing that the State may present at the penalty

stage “any evidence that is relevant to the determination of

whether there is evidence that is sufficiently substantial to

call for leniency”).11 Hampton’s penalty phase evidence included

10
The Eighth Amendment does not, contrary to Hampton’s
arguments, limit the State to urging statutory aggravating
factors at the penalty stage:

[S]tatutory aggravating circumstances play a
constitutionally necessary function at the stage of
legislative definition: they circumscribe the class
of persons eligible for the death penalty. But the
Constitution does not require the jury to ignore other
possible aggravating factors in the process of
selecting, from among that class, those defendants who
will actually be sentenced to death.

Zant v. Stephens, 462 U.S. 862, 878 (1983). See also People v.
Dunlap, 975 P.2d 723, 740 (Colo. 1999) (“Once the jury finds
that the defendant falls within the legislatively defined
category of persons eligible for the death penalty, . . . the
jury then is free to consider a myriad of factors to determine
whether death is the appropriate punishment.”).
11
At oral argument the State suggested that § 13-703.01(G)
provides no broader warrant for the admission of rebuttal
evidence in the penalty phase than does A.R.S. § 13-703(C).
Section 13-703.01(G), like § 13-703(C) contains an express

23
testimony by the daughter of a former girlfriend that Hampton

“took the part of a father that I didn’t have at the time” and

that Hampton was “a loving father” to his daughter; testimony by

Hampton’s mother and sister that Hampton cares for his three

children; testimony by Hampton’s half-sister that she had always

been very close to Hampton and that he was protective of her and

would stick up for her as her big brother; and testimony by

others that Hampton had treated them fairly and respectfully.

The thrust of this mitigation evidence was that Hampton was a

caring person who deserved leniency. Majors’ testimony

regarding Hampton’s abusive treatment of her and his brother

directly rebutted this mitigation evidence and was therefore

relevant to the issue of mitigation.

b.

¶48 Our statutes, however, do not provide the only

limitation of rebuttal testimony in the penalty phase.

Admission of such evidence is ultimately constrained by the Due

Process Clause of the Fourteenth Amendment. See Payne v.

Tennessee, 501 U.S. 808, 825 (1991); Gardner v. Florida, 430

_________________________
relevance requirement, mandating that the State’s evidence be
“relevant to the determination of whether there is mitigation
that is sufficiently substantial to call for leniency.”

24
U.S. 349, 358 (1977). Hampton claims that he was deprived of

due process because some of Majors’ testimony was hearsay.12

¶49 In State v. Greenway, we held that due process

requires that a capital defendant receive notice of any hearsay

statements to be introduced by the State in rebuttal to

mitigation and have “an opportunity to either explain or deny

them.” 170 Ariz. 155, 161, 823 P.2d 22, 28 (1992). We most

recently held in McGill, ___ Ariz. at ___ ¶ 56, ___ P.3d at ___,

that the Due Process Clause also demands that hearsay statements

contain sufficient indicia of reliability.

¶50 The hearsay statements offered through Majors met

these due process standards. The most damaging hearsay involved

Majors’ conversation with Hampton’s brother Jim about injuries

allegedly inflicted upon him by Hampton.13 Hampton does not

12
Hampton correctly does not raise a Confrontation Clause
objection to Majors’ testimony. Much of her testimony involved
her first-hand observations, such as Hampton’s treatment of her
and his statements to her, and was subject to cross-examination.
Moreover, to the extent that Majors’ testimony included hearsay,
it plainly was not “testimonial” because the hearsay statements
were made to her, not to agents of the state, and were not made
for use in any litigation. See Crawford v. Washington, 541 U.S.
36, 51 (2004) (defining as “testimonial” those “statements that
[the] declarants would reasonably expect to be used
prosecutorially”). This case therefore presents no issue as to
the applicability of the Confrontation Clause to the penalty
phase of a capital trial. See McGill, ___ Ariz. at ___ ¶¶ 45-
52, ___ P.3d at ___.
13
Majors also testified about a conversation with a woman who
said that Hampton traded medication with others in jail.
However, because the defense introduced testimony of Hampton’s

25
contest that he had prior notice of this testimony and the

opportunity to rebut it.14 And there is a strong indication of

reliability as to this testimony – Majors actually saw the wound

allegedly inflicted by Hampton on Jim’s forehead. The admission

of these hearsay statements therefore did not violate Hampton’s

due process rights.15

c.

¶51 Although we find that the admission of prior bad acts

testimony in this case violated neither the Due Process Clause

nor our statutes, we offer a word of caution for future cases.

Trial courts can and should exclude evidence that is either

irrelevant to the thrust of the defendant’s mitigation or

otherwise unfairly prejudicial. Nothing in our death penalty
_________________________
drug dependency as mitigation, any prejudice from this testimony
was negligible.
14
Jim was incarcerated at the time of Hampton’s trial and
therefore available to be called as a witness if Hampton had so
chosen.
15
In a supplemental brief filed after oral argument, Hampton
challenges the penalty phase rebuttal testimony of Detective
Cliff Jewell on the same grounds raised with respect to Monica
Majors’ testimony. Jewell testified about much of the same
evidence of violent behavior and racist leanings to which Majors
testified, including the assault on Jim. Given the close
similarity of Jewell’s testimony to Majors’ testimony, our
analysis applies equally to both. Hampton did not raise a
Confrontation Clause objection to Detective Jewell’s testimony
either at trial or in his supplemental brief. Even if such an
argument had been raised on appeal, moreover, it would be
difficult to view any error in admitting Jewell’s testimony as
fundamental, given its similarity to Majors’ testimony.

26
statutes strips courts of their authority to exclude evidence in

the penalty 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. Rather, trial judges should exercise their broad

discretion in evaluating the relevance of such bad acts evidence

to any mitigation evidence offered. See McGill, ___ Ariz. at

___ ¶ 40, ___ P.3d at ___ (stating that a “judge’s analysis [of

evidence under A.R.S. § 13-703] involves fundamentally the same

considerations as does a relevancy determination under Arizona

Rule of Evidence 401 or 403”).

10. Presumption of Death

¶52 Hampton argues that our death penalty statutes create

a “presumption of death.” This presumption, he claims, arises

from A.R.S. § 13-703(E), which requires a sentence of death if

the trier of fact finds at least one aggravator and no

mitigation sufficiently substantial to call for leniency. This

argument, however, was expressly rejected in Anderson II, 210

Ariz. at 346 ¶ 77, 111 P.3d at 388.

¶53 Hampton also claims that the “fact” that mitigating

circumstances are not sufficiently substantial to call for

leniency is essentially an “element” of capital murder and the

State has the burden of proving that fact. To the extent that

27
Hampton is arguing that a defendant cannot constitutionally be

required to prove the existence of mitigating facts, Anderson II

also rejects that claim. Id.

¶54 Insofar as Hampton claims he was unconstitutionally

saddled with the burden of proving that mitigating circumstances

were sufficiently substantial to call for leniency, his factual

premise is wrong. The jury was instructed that “[n]either the

State [n]or the defendant has a burden of proof with regard to

weighing whether the mitigation is sufficiently substantial to

call for leniency.” This instruction was in accord with State

ex rel. Thomas v. Granville (Baldwin), in which we noted that

“[a]lthough § 13-703(C) requires the defendant to prove

mitigating circumstances by a preponderance of the evidence, the

statutory scheme does not place any burden of proof on the

defendant in connection with establishing that the mitigation

evidence is sufficiently substantial to call for leniency.” 211

Ariz. 468, 472 ¶ 14, 123 P.3d 662, 666 (2005).

11. Instruction on Sympathy or Prejudice

¶55 Hampton argues that the trial court erred by twice

instructing the sentencing proceeding jury not to be influenced

by sympathy or prejudice.16 The instruction, he claims,

16
During the aggravation phase, the jury was told “You must
use these rules to decide this case whether you agree with them
or not. You must not be influenced by sympathy or prejudice.”
The penalty phase instruction was identical.

28
prevented the jury from being able to give effect to all

mitigating evidence, as required by Supreme Court precedent for

death penalty cases. See, e.g., Eddings v. Oklahoma, 455 U.S.

104, 113-14 (1982); Lockett v. Ohio, 438 U.S. 586, 604 (1978).

¶56 We rejected this argument in Anderson II, 210 Ariz. at

349 ¶ 92, 111 P.3d at 391. Moreover, Hampton not only failed to

object to the instruction he now challenges, but actually argued

on the basis of this instruction that jurors should disregard

the State’s purported appeals for sympathy for the victims.

12. Victim Impact Statements

¶57 Hampton asserts that the victim impact evidence,

particularly the statement of Charles Findley’s mother, was

unduly prejudicial. Specifically, Hampton contends that her

statement exceeded the permissible bounds of relevance and that

she testified to matters explicitly precluded by the judge.

¶58 Payne v. Tennessee held that “[a] State may

legitimately conclude that evidence about the victim and about

the impact of the murder on the victim’s family is relevant to

the jury’s decision as to whether or not the death penalty

should be imposed.” 501 U.S. at 827. Arizona permits victim

impact evidence to rebut a defendant’s mitigation evidence.

State v. Glassel, 211 Ariz. 33, 54 ¶ 82, 116 P.3d 1193, 1214

(2005). Such evidence, however, cannot be “so unduly

29
prejudicial that it renders the trial fundamentally unfair.”

Payne, 501 U.S. at 825.

¶59 In this case, the superior court carefully reviewed

the victims’ statements prior to their submission to the penalty

phase jury. The court excluded a portion of Findley’s mother’s

statement which claimed that “these people went through

[Findley’s] 401K and stock money.”

¶60 The stricken portion of the mother’s statement was not

presented to the jury. Nonetheless, during her testimony,

Findley’s mother used the words “these people” in the following

context:

He started hanging around the wrong people. I told
him I – to tell you the truth I don’t know how he met
these people he never went out of the house. But
that’s where they all hung out. I told Charles that
these people weren’t his friends. They were just
there using him. But he couldn’t see that because of
the depression that he was in. Charles never drank.
He never smoked. He didn’t have any tattoos. But he
did – but these people did get him into drugs.
Charles was always against drugs because my youngest
brother is a druggie and we haven’t talked to him for
22 years because he destroyed our family. Charles was
the type of person that always would give you the
shirt off of his back, food to eat, a place to stay,
or food to eat. These people knew that Charles was an
easy target and they took advantage of this. Charles
was my best friend; I’m proud of him. His daughter,
age 3, has to grow up without him. He was always
there for us when we needed help; he always made us
laugh when things were bad. His murder has affected
the whole family and his close true friends. I had to
use all my savings to pay for his funeral. I no
longer want to do anything. I am lost. Charles meant
everything to me. I have lost my house, my work, my

30
 mind; I’m not myself anymore and I don’t think I ever
will be.

¶61 Hampton contends that these statements were unduly

prejudicial and violated the court’s order. Because he raised

no such objection below, we review only for fundamental error.

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

(2005).

¶62 We find no error, much less fundamental error, in the

admission of these statements. The statements focus directly on

the impact of the loss of a son and are not unduly prejudicial.

Nor can the statements be viewed as violating the trial judge’s

order. The judge ordered that the impact statement “delete the

reference to the people who went through the 401K, and the stock

money.” The brief references to “these people” in the admitted

statement do not contravene that order.

13. Fetal Manslaughter Sentence

¶63 Hampton contends that his manslaughter sentence should

not have been consecutive to the two death sentences because of

the prohibition on double punishment in A.R.S. § 13-116 (2001).

He argues that, because both Tanya Ramsdell and the fetus were

killed with a single gunshot, the crime should be deemed a

“single act” for which consecutive sentences cannot be imposed.

¶64 Under A.R.S. § 13-116, “[a]n act or omission which is

made punishable in different ways by different sections of the

31
laws may be punished under both, but in no event may sentences

be other than concurrent.” The statute bars consecutive

sentences when the defendant’s conduct is a “single act.” State

v. Gordon, 161 Ariz. 308, 315, 778 P.2d 1204, 1211 (1989).

¶65 The statute, however, does not prevent consecutive

sentences for crimes involving multiple victims:

A.R.S. § 13-116 has never been interpreted literally.
For instance, the words of the statute draw no
distinction between single victims and multiple
victims. Nevertheless, our courts have held that a
single act that harms multiple victims may be punished
by consecutive sentences.

Id. at 313 n.4, 778 P.2d at 1209 n.4 (citations omitted). In

this case, Ramsdell’s unborn child was a victim of a crime under

§ 13-1103(A)(5), and the sentence for that homicide can be

imposed consecutively to the sentences for the murders of

Findley and Ramsdell.

14. Aggravated Manslaughter Sentence

¶66 Hampton argues that the superior court violated the

rule of Blakely v. Washington, 542 U.S. 296 (2004), by imposing

a twelve and one-half year sentence for the manslaughter

conviction based upon findings by the judge that a weapon was

used in the commission of the crime and that other aggravators

were proven.

¶67 “Other than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed

32
statutory maximum must be submitted to a jury, and proved beyond

a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490

(2000). “[T]he ‘statutory maximum’ for Apprendi purposes is the

maximum sentence a judge may impose solely on the basis of the

facts reflected in the jury verdict or admitted by the

defendant.” Blakely, 542 U.S. at 303. In this case, the

statutory maximum for manslaughter, a class two felony, see

A.R.S. § 13-1103(B), was the presumptive term of five years, see

A.R.S. § 13-701(C)(1), in the absence of factual findings

required to impose an aggravated or enhanced sentence. See

State v. Anderson (“Anderson III”), 211 Ariz. 59, 60 ¶ 3, 116

P.3d 1219, 1220 (2005). We must therefore determine what other

factual findings were necessary to impose the aggravated

sentence of twelve and one-half years.

¶68 The first question is under which statutes Hampton was

sentenced. The sentencing minute entry states that the

manslaughter conviction was a “Class 3 Felony”17 found to be

dangerous pursuant to A.R.S. § 13-604 (2001), and references §§

13-604(P), -701, and -702. Immediately before the judge imposed

sentence, however, defense counsel stated that “my review of the

file would indicate that” the manslaughter conviction “is a non-

17
Manslaughter is a class two, not a class three felony.
A.R.S. § 13-1103(B).

33
dangerous, non-repetitive offense.” The judge agreed: “And

after reviewing the file I believe that’s correct.”

¶69 The manslaughter was in fact charged as a dangerous

offense because either a weapon was used or serious injury was

inflicted. See A.R.S. § 13-604(P) (defining dangerous offense).

In addition, the pre-sentence report stated that the

manslaughter conviction “carries a presumptive sentence of 10.5

years; a minimum sentence of 7 years, and a maximum sentence of

21 years.” These numbers correspond to the sentencing range for

a class two dangerous felony pursuant to § 13-604(I).

¶70 The jury, however, was never asked to make any finding

of dangerousness as required by § 13-604(P), which states that

an enhanced sentence under § 13-604 shall be imposed only if the

dangerous nature of the offense is admitted or “found by the

trier of fact.” We therefore agree with the trial judge’s

characterization of the conviction as one for a non-dangerous

and non-repetitive offense.

¶71 Because the offense was non-dangerous and non-

repetitive, a twelve and one-half year sentence was possible

only upon the finding of at least two aggravating factors. See

A.R.S. § 13-702.01(A) (2001) (governing sentences for defendants

with no prior felony convictions). The judge relied on three

aggravators: (1) use of a weapon, A.R.S. § 13-702(C)(2) (2001);

(2) the heinous and depraved nature of the murder of Ramsdell,

34
A.R.S. § 13-702(C)(5); and (3) the fact that two other murders

were committed at the same time that the manslaughter offense

occurred, which presumably fell under former A.R.S. § 13-

702(C)(18) (“[a]ny other factor that the court deems appropriate

to the ends of justice”).18 The jury did not make any finding as

to the existence of any of these aggravators with respect to the

manslaughter count. Hampton thus claims Blakely error.

¶72 Blakely error, however, can be harmless if no

reasonable jury, on the basis of the evidence before it, could

have failed to find the minimum number of aggravators necessary

to expose the defendant to the sentence imposed. Henderson, 210

Ariz. at 569 ¶ 28, 115 P.3d at 609.19 In this case, no

reasonable jury could have failed to find that a deadly weapon

was used in the commission of the offense. The autopsy expert

testimony made clear that Ramsdell was killed by a bullet wound

to her head. The death of Ramsdell, in turn, clearly caused the

death of the fetus.

18
The trial judge did not provide any statutory citation for
the aggravators he found. We reiterate that, “[i]n order to
facilitate appellate review, trial judges should indicate on the
record the specific statutory subsection under which a criminal
sentence is imposed.” Anderson III, 211 Ariz. at 61 ¶ 4 n.1,
116 P.3d 1219, 1221 n.1.
19
Hampton timely demanded a jury determination of aggravating
factors. Our review of this claim is thus under a harmless
error standard. See Henderson, 210 at 567 ¶ 18, 115 at 607.

35
¶73 Similarly, the finding that two other murders were

committed at the same time as the fetal manslaughter also was,

at worst, harmless error. The evidence on this point was not

disputed. Moreover, this aggravation finding is arguably

implicit in the jury’s finding of the multiple homicides

aggravator with respect to the murder of Ramsdell.20

¶74 Two aggravators were sufficient to expose Hampton to

the twelve and one-half year sentence imposed under A.R.S. § 13-

702.01(A). See State v. Martinez, 210 Ariz. 578, 584 ¶ 21, 115

P.3d 618, 624 (2005). Therefore, any Blakely error was

harmless.

III.

CLAIMS RAISED TO AVOID FEDERAL PRECLUSION

¶75 To preserve the issues for federal review, Hampton

raises thirteen other claims that the death penalty is

unconstitutional. The claims are followed by citations to cases

in which Hampton states that this Court has rejected the

20
Hampton does not challenge, other than on the basis of the
lack of a jury determination, the propriety of relying on any of
the aggravators, including the multiple murders aggravator,
under the (C)(18) “catchall.” See Glassel, 211 Ariz. at 58-59
¶¶ 103-04, 116 P.3d at 1217-18. We therefore need not decide
whether, in light of Blakely, it remains proper to rely on the
“catchall” aggravator to impose an aggravated sentence. See id.

36
argument.21 These claims and citations, as listed by Hampton,

are repeated verbatim in the appendix to this opinion.

IV.

INDEPENDENT REVIEW

¶76 Although Hampton has not briefed the issue, we must

independently review the jury’s findings of aggravating

circumstances and its determination that sentences of death were

warranted for each murder. A.R.S. § 13-703.04(A); see also

Glassel, 211 Ariz. at 55 ¶ 92, 116 P.3d at 1215 (reviewing

propriety of death sentence in absence of urging by appellant);

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

(describing independent duty to review capital aggravation

findings).

A.

Aggravating Circumstances

¶77 The jury found two aggravating circumstances as to the

murder of Ramsdell and one as to Findley: (1) that the murders

of Findley and Ramsdell were each committed during the

commission of one or more other homicides, see A.R.S. § 13-

703(F)(8), and (2) that the murder of Ramsdell was committed in

an especially heinous or depraved manner, see A.R.S. § 13-

703(F)(6). The jury concluded during the penalty phase that the

21
One claim is not accompanied by a citation: Hampton’s
claim that imposition of the death penalty under the facts of
this case constitutes cruel and unusual punishment.

37
mitigating circumstances were not sufficiently substantial to

call for leniency. See A.R.S. § 13-703(E).

¶78 We have determined that the jury was improperly

instructed as to the (F)(6) aggravator, see supra, ¶¶ 35 to 42,

and will therefore not consider that circumstance in our

independent review. See A.R.S. § 13-703.04(B) (providing that

“[i]f the supreme court determines that an error was made

regarding a finding of aggravation . . . the supreme court shall

independently determine if the mitigation the supreme court

finds is sufficiently substantial to warrant leniency in light

of the existing aggravation”). We therefore turn to the only

remaining aggravator: that “[t]he defendant has been convicted

of one or more other homicides, as defined in § 13-1101, that

were committed during the commission of the offense.” A.R.S. §

13-703(F)(8).

¶79 Proof of the (F)(8) aggravator requires “more than

that the jury convicted the defendant of first degree murder and

one or more other homicides occurring around the same time.”

Ring III, 204 Ariz. at 560 ¶ 80, 65 P.3d at 941. Rather, the

statutory requirement that the homicides occur “during the

commission of the offense” necessitates proof of a “continuous

course of criminal conduct” in which the murders have “temporal,

spatial, and motivational relationships.” State v. Rogovich,

188 Ariz. 38, 45, 932 P.2d 794, 801 (1997) (citation omitted).

38
¶80 The evidence in this case compels a finding of the

(F)(8) aggravator as to both first degree murders. The killing

of each victim – Findley, Ramsdell, and Ramsdell’s unborn child

– qualifies as a homicide for purposes of this aggravator. See

A.R.S. § 13-703(F)(8) (referring to “homicides, as defined in §

13-1101”); A.R.S. § 13-1101 (defining “homicide” as first degree

murder, second degree murder, manslaughter or negligent

homicide); A.R.S. § 13-1103(A)(5) (defining fetal manslaughter).

The three homicides were clearly closely related in time, space,

and motivation.

¶81 The (F)(8) multiple homicides aggravator is

extraordinarily weighty. See Rogovich, 188 Ariz. at 46, 932

P.2d at 802 (1997) (finding the (F)(8) aggravator carried more

weight than other aggravators). As the victim impact statements

in this case illustrate, the murder of two people wreaks twice

the horror and sorrow as the murder of one. A triple homicide

triples the loss. The next issue is whether the mitigation

evidence was sufficiently substantial to call for leniency in

light of this aggravator.

B.

Mitigation Evidence

¶82 The majority of the mitigation evidence detailed

Hampton’s very difficult personal and family history. Hampton’s

mother, Joyce Bivins, was an alcoholic who married four times

39
over the course of Hampton’s childhood. Hampton’s biological

father and his stepfathers were also alcoholics who physically

and verbally abused him. Both of Hampton’s older brothers, Jim

and Steven, began using drugs at early ages and were

incarcerated for various periods starting when they were

adolescents. Jim sexually molested both Hampton and their

younger half-sister.

¶83 Throughout Hampton’s childhood, his family moved so

often that his mother “couldn’t even speculate” as to how many

places they lived. From ages twelve to fifteen, Hampton lived

mostly in foster care, including at least six different homes

over the course of two years.

¶84 Hampton has struggled with mental health problems from

childhood. At different stages in his life Hampton has been

prescribed Ritalin, various psychotropic medications, and

Haldol, an anti-psychotic. Records show that Hampton’s problems

ranged from attention deficit disorder to depression to major

affective disorder to antisocial personality disorder.

Hampton’s first recorded suicide attempt occurred when he was

eleven and, by age twenty-five, Hampton reported having made

three additional attempts.22

22
Hampton also had an extensive juvenile record. At age
seven, he pulled a knife on a babysitter. At thirteen, he was
an accessory to a residential burglary in which guns were
stolen. By age fourteen, Hampton had been arrested for shooting

40
¶85 Hampton’s older brother Jim first injected Hampton

with heroin when Hampton was eleven. Hampton first tried

crystal methamphetamine at age thirteen and by age twenty was

regularly using both it and cocaine. Despite repeated

admissions to drug treatment programs, he continued using

crystal methamphetamine. He used the drug just a few hours

before the murders.

¶86 Hampton has three children with three different

mothers. His middle child was taken from her mother’s custody

because of her mother’s drug use. Hampton’s half-sister said he

cares about his children but has “never really been in their

lives.”

¶87 Several individuals testified their race was never an

issue in their relationships with Hampton, despite the fact that

each belongs to a minority group. An ex-girlfriend testified

that Hampton “was a really sweet guy.” A daughter of another of

Hampton’s ex-girlfriends testified that Hampton acted as a

“loving father” towards her, even though he is not her father.

_________________________
BBs at a neighbor’s garage door, contacted by police for
shoplifting a BB gun, arrested for entering a neighbor’s house
and stealing a coat, and arrested for entering a residence and
stealing a small amount of cash. In 1987, Hampton stabbed his
mother’s fourth husband and was sent to Adobe Mountain, a
juvenile detention center in Phoenix, where he joined a group
calling itself the “Third Reichers.” He was placed in juvenile
detention on two other occasions.

41
¶88 Hampton’s younger half-sister testified that she is

married to a Hispanic man and that Hampton got along “very well”

with her husband and his family. She said that she and Hampton

have always been very close and that he was a protective big

brother.

C.

Propriety of the Death Sentence

¶89 Hampton’s mitigation evidence is not insubstantial; it

is fair to say that he had a horrendous childhood. We have

previously emphasized, however, that a “difficult family

background, in and of itself, is not a mitigating circumstance”

sufficient to mandate leniency in every capital case. State v.

Wallace, 160 Ariz. 424, 427, 773 P.2d 983, 986 (1989).

Moreover, while we “do not require that a nexus between the

mitigating factors and the crime be established before we

consider the mitigation evidence . . . the failure to establish

such a causal connection may be considered in assessing the

quality and strength of the mitigation evidence.” State v.

Newell, 212 Ariz. 389, 405 ¶ 82, 132 P.3d 833, 849 (2006)

(internal citation omitted); accord Johnson, 212 Ariz. at 440 ¶

65, 133 P.3d at 750; Anderson II, 210 Ariz. at 349-50 ¶¶ 93-97,

111 P.3d at 391-92. Hampton’s troubled upbringing is entitled

to less weight as a mitigating circumstance because he has not

42
tied it to his murderous behavior.23 Further, Hampton was thirty

years old when he committed his crimes, lessening the relevance

of his difficult childhood.

¶90 More importantly, Hampton committed not one, but three

homicides. Because the multiple homicides aggravator is of

extraordinary weight, we find that the mitigation evidence is

not sufficiently substantial to call for leniency and uphold the

death sentences.

V.

CONCLUSION

¶91 For the reasons above, we affirm Hampton’s convictions

and sentences for the murders of Charles Findley and Tanya

Ramsdell and his conviction and sentence for the manslaughter of

Ramsdell’s unborn child.

__________________________________
Andrew D. Hurwitz, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

23
Hampton chose not to present any contemporary mental health
expert testimony because portions of that testimony were
precluded in response to Hampton’s refusal to meet with the
State’s mental health expert. See supra, ¶¶ 43-44.

43
_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
W. Scott Bales, Justice

44
 Appendix

Claims Raised to Avoid Federal Preclusion

Arizona’s Death Penalty is Unconstitutional.

1. The death penalty is cruel and unusual under any
circumstances and violates the Eighth and Fourteenth
Amendments to the United States Constitution and Article 2,
§ 15 of the Arizona Constitution. State v. Harrod, 200
Ariz. 309, 320, 26 P.3d 492, 503 (2001).

2. The death penalty is imposed arbitrarily and irrationally
in Arizona in violation of the Eighth and Fourteenth
Amendments to the United States Constitution and Article 2,
§ 15 of the Arizona Constitution, as well as Appellant’s
right to due process under the Fourteenth Amendment to the
United States Constitution and Article 2, § 4 of the
Arizona Constitution. State v. Beaty, 158 Ariz. 232, 762
P.2d 519 (1988).

3. Application of the death penalty on the facts of this case
would constitute cruel and unusual punishment in violation
of the Eighth and Fourteenth Amendments to the United
States Constitution and Article 2, §§ 1, 4, and 15 of the
Arizona Constitution.

4. 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, §§ 1, 4, and 15 of the Arizona Constitution.
State v. Sansing, 200 Ariz. 347, 361, 26 P.3d 1118, 1132
(2001).

5. Arizona’s death penalty is applied so as to discriminate
against poor, young, and male defendants in violation of
Article 2, §§ 1, 4, and 13 of the Arizona Constitution.
Sansing, 200 Ariz. at 361, 26 P.3d at 1132.

6. 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, § 15 of the Arizona Constitution. Harrod, 200
Ariz. at 320, 26 P.3d at 503. Proportionality review
serves to identify which cases are above the “norm” of

45
 first-degree murder thus narrowing the class of defendants
who are eligible for the death penalty.

7. Arizona’s capital sentencing scheme is unconstitutional
because it does not require that the State prove that the
death penalty is appropriate. Failure to require this
proof violates the Fifth, Eighth, and Fourteenth Amendments
to the United States Constitution and Article 2, § 15 of
the Arizona Constitution. State v. Ring, 200 Ariz. 267,
284, 25 P.3d 1139, 1156 (2001) (Ring I), rev’d on other
grounds by Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428,
2443 (2002).

8. A.R.S. § 13-703.01 provides no objective standards to guide
the sentencing judge in weighing the aggravating and
mitigating circumstances and therefore violates the Eighth
and Fourteenth Amendments of the United States Constitution
and Article 2, § 15 of the Arizona Constitution. State v.
Pandeli, 200 Ariz. 365, 382, 26 P.3d 1136, 1153 (2001).

9. Arizona’s death penalty scheme is unconstitutional because
it does not requires the sentencer to find beyond a
reasonable doubt that the aggravating circumstances
outweigh the accumulated mitigating circumstances, in
violation of the Fifth, Eighth, and Fourteenth Amendments
to the United States Constitution and Article 2, §§ 4 and
15 of the Arizona Constitution. State v. Poyson, 198 Ariz.
70, 83, 7 P.3d 79, 92 (2000).

10. A.R.S. § 13-703.01 does not sufficiently channel the
sentencer’s. Aggravating circumstances should narrow the
class of persons eligible for the death penalty and
reasonably justify the imposition of a harsher penalty.
The broad scope Arizona’s aggravating factors encompasses
nearly anyone involved in murder, in violation of the
Eighth and Fourteenth Amendments to the United States
Constitution and Article 2, § 15 of the Arizona
Constitution. Pandeli, 200 Ariz. at 382, 26 P.3d at 1153.

11. Execution by lethal injection is cruel and unusual
punishment in violation of the Eighth and Fourteenth
Amendments to the United States Constitution and Article 2,
§ 15 of the Arizona Constitution. State v. Hinchey, 181
Ariz. 307, 315, 890 P.2d 602, 610 (1994).

12. Arizona’s death penalty unconstitutionally requires
imposition of the death penalty whenever at least one

46
 aggravating circumstance and no mitigating circumstances
exist, in violation of the Eighth and Fourteenth Amendments
to the United States Constitution and Article 2, § 15 of
the Arizona Constitution. State v. Miles, 186 Ariz. 10,
19, 918 P.2d 1028, 1037 (1996).

13. Arizona’s death penalty statute is unconstitutional in that
it requires defendants to prove their lives should be
spared, in violation of the Eighth and Fourteenth
Amendments to the United States Constitution and Article 2,
§ 15 of the Arizona Constitution. State v. Fulminante, 161
Ariz. 237, 258, 778 P.2d 602, 623 (1988).

47