SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-99-0296-AP
Appellee, )
) Pima County
v. ) Superior Court
) No. CR-61452
KEITH ROYAL PHILLIPS, )
)
Appellant. ) O P I N I O N
)
)
___________________________________)
Appeal from the Superior Court of Pima County
Honorable Bernard P. Velasco, Judge
REVERSED IN PART; AFFIRMED IN PART
_________________________________________________________________
Janet Napolitano, Attorney General Phoenix
By Kent E. Cattani, Chief Counsel
Capital Litigation Section
and Jack Roberts, Assistant Attorney General
Attorneys for the State of Arizona
Pima County Public Defender Tucson
By Nancy F. Jones, Deputy Public Defender
Rebecca A. McLean, Deputy Public Defender
and John F. Palumbo, Deputy Public Defender
Attorneys for Phillips
_________________________________________________________________
M c G R E G O R, Vice Chief Justice
¶1 The State charged Keith Phillips with fifty-six counts of
armed robbery, kidnaping, aggravated assault, and attempted first
degree murder for three robberies that occurred in Tucson on April
12, 24, and 28 of 1998, and with one count of first degree murder
for the death of Kevin Hendricks that occurred during the third
robbery. The trial court consolidated all three incidents for a
dual jury trial with Phillips’ co-defendant, Marcus Finch.
Phillips’ jury convicted him of first degree felony and
premeditated murder, as well as most of the non-homicide counts.
Following a sentencing hearing, Judge Bernard P. Velasco sentenced
Phillips to death on December 6, 1999. Appeal to this court is
automatic and direct when the court imposes a sentence of death.
Arizona Revised Statutes (A.R.S.) § 13-703.01 (2001). We exercise
jurisdiction pursuant to Article 6, Section 5.3 of the Arizona
Constitution, A.R.S. section 13-4031 and Arizona Rule of Criminal
Procedure 31.2(b).
I.
A.
¶2 At 1:15 a.m. on April 12, 1998, Demien Purdy and his
friend Mike sat in their car in the parking lot of Famous Sam’s on
Silverbell and Grant in Tucson. They saw a gold Chrysler LeBaron
convertible driving around the parking lot. The LeBaron stopped
for a few moments, left the lot, then returned. Purdy and Mike
left the parking lot, but when they returned about ten minutes
later, they noticed the LeBaron parked with its lights turned off.
¶3 Around 1:30 a.m. that same day, Marcus Finch and a man
with a bandana covering his nose and mouth entered the Famous Sam’s
on Silverbell and Grant. Witnesses later stated that the man with
the bandana was Hispanic or white while his accomplice was black.
The black man, Finch, carried a sawed-off rifle and the other man
2
carried a handgun. The robbers ordered the employees into the
cooler. When waitress Shelly Raab saw Finch, she dropped to her
knees about one arm’s length away from him. Finch pointed the
sawed-off rifle at her chest, said, “Get in the cooler, bitch,” and
shot her in the chest. Next, Finch grabbed Raab by the hair and
dragged her to the cooler.
¶4 The robbers held office manager Beverly Rochon at
gunpoint and told her to lead them to the money. The man wearing
a bandana put his gun to Rochon’s head and told her she had ten
seconds to give him the money or he would put a hole in her head.
Rochon gave him all the money she could find and went back into the
cooler. The armed men left shortly thereafter.
¶5 Shelly Raab survived, but the bullet fragmented her
liver, lung, and stomach, and caused her to lose her spleen, a
kidney, and part of her pancreas. Raab’s injuries have left her
with a permanent limp and frequent numbness in her legs.
B.
¶6 At 10:30 p.m. on April 23, 1998, a man came into the
Firelight Lounge on Wetmore in Tucson and asked what time the bar
closed. Jaimi Ramirez Gilson, the bartender, told him she closed
at 1:00 a.m. Ms. Gilson later identified the man as Phillips. Two
hours later, Finch walked into the bar and asked for a Killian’s
Red beer. When Ms. Gilson stepped into the cooler to get the beer,
the same man who had asked for the closing time earlier that night
3
walked through the front door with what appeared to be a sawed-off
rifle and shouted, “Everybody on the fucking floor or I’m going to
blow your brains out.” Ms. Gilson tried to hide behind the bar but
Finch, who had a handgun, grabbed her by the hair, dragged her to
the cash register and told her to open it. After taking the money,
Finch dragged her to the men’s restroom and threw her inside.
¶7 Meanwhile, the robber identified as Phillips took money
from the customers and herded them into the women’s restroom when
he learned there was no cooler large enough to hold them. As
patron Bill Gilson entered the women’s restroom, Phillips shot him
once in the shoulder and once in the back. Gilson fell into the
restroom, where other patrons assisted him. The robbers left the
bar and the police arrived shortly thereafter.
¶8 Bill Gilson survived, but one of the bullets collapsed
his right lung. In addition, he lost his spleen and part of his
liver and remained in a coma for three weeks.
C.
¶9 Near midnight on April 28, 1998, Finch walked into the
Famous Sam’s located at Cardinal and Valencia in Tucson and asked
Margaret Damron, the bartender, how much a Killian’s Red beer cost.
When she answered, he told her he was going back to his car to get
some change. When Finch returned, he sat down at the bar and
ordered a beer. A few minutes later, a man subsequently identified
as Phillips walked through the front door with a sawed-off rifle
4
and opened fire at the backs of customers seated at the bar.
Phillips shot Ricardo Herrera in both arms and Mario Rodriguez in
one arm. Finch, armed with a handgun, suddenly emerged from a
restroom and told one patron, “Get down or I’ll fucking shoot you.”
Finch then saw two customers, Preston Juan and Kevin Hendricks,
fleeing out the back door. Finch followed them outside and shot
Hendricks in the back twice.
¶10 During this commotion, Damron and a customer, Sandra
Sellards, ran into the office and locked the door. Sellards took
the telephone and hid under a desk while she called 911. The man
identified as Phillips broke into the office, smashed the phone and
pointed his gun at Damron’s head. As Damron gave Phillips the
restaurant’s money, Phillips noticed a video monitor and told her,
“Give me the tape, bitch, I’m going to fucking kill you.” Although
the video camera wasn’t working, Damron gave him the tape and
begged him to leave. Damron emerged from the office thirty seconds
after the robbers left.
¶11 Shortly after midnight on April 28, 1998, Pima County
Sheriff’s Deputy Jeff Englander received a dispatch stating that
shots had been fired at the Famous Sam’s on Cardinal and Valencia.
When he arrived at the restaurant’s parking lot, he saw a gold
Chrysler LeBaron speeding out of the lot. Englander pursued the
LeBaron until it finally pulled over and stopped. Englander
ordered two men out of the car and took them into custody.
5
Englander identified the car’s occupants as Keith Phillips and
Marcus Finch. Inside the car, Englander found money, an empty gun
holster on the driver’s side where Finch had been sitting, and a
sawed-off rifle on the passenger side where Phillips had been
seated. Deputy Thomas Adduci, who searched the LeBaron pursuant to
a search warrant, found a .38 caliber handgun with a live round in
the chamber and three more in the magazine as well as .22 caliber
ammunition.
¶12 Some time after Deputy Englander took Finch and Phillips
into custody, dispatch informed him that a mall security guard had
found a body in the back parking lot of Famous Sam’s. The parties
stipulated it was the body of Kevin Hendricks. Hendricks died of
two gunshot wounds. One bullet entered the right side of
Hendricks’ back, punctured his right lung, and exited below his
collarbone. The other entered the upper part of the left side of
his back and lodged in his left lung.
D.
¶13 At trial, witnesses from all three incidents identified
Phillips as one of the two men who committed the robberies.
Furthermore, the police investigation revealed that Phillips owned
the sawed-off rifle used in all three robberies.
¶14 Phillips claimed misidentification as his sole defense.
He sought to establish this defense through discrepancies in the
victims’ descriptions of the white or Hispanic robber and of the
6
LeBaron; the absence of his fingerprints at the three locations;
and some victims’ failure to identify him from a photographic
lineup.
¶15 Phillips’ jury convicted him of several counts of
attempted murder, aggravated assault with a deadly weapon,
aggravated assault with serious physical injury, kidnaping, armed
robbery, and one count of first degree. The jurors’ answer to a
special interrogatory indicated they unanimously found both felony
and premeditated murder. Following a sentencing hearing, the trial
court found the State proved beyond a reasonable doubt the
existence of statutory aggravating factors under A.R.S. sections
13-703.F.5 (expectation of pecuniary gain) and 13-703.F.2 (prior
conviction of a serious offense).1 After finding only one proved
mitigating factor, the court concluded that either of the two
aggravating circumstances was sufficient in itself to outweigh the
mitigation.
II.
A.
¶16 Phillips argues that the counts from the three robberies
should have been severed under State v. Ives, 187 Ariz. 102, 927
P.2d 762 (1996), because the offenses occurred at different
locations and on different days, the gunmen in the first robbery
1
Ariz. Rev. Stat. (A.R.S.) section 13-703 has been revised
so that the F.5 and F.2 aggravating factors are now located at
sections 13-703.G.5 and 13-703.G.2.
7
concealed their faces while the gunmen in the two subsequent
robberies did not, and only the robbers in the third robbery killed
someone.
¶17 We have held that even if a trial court errs in denying
a defendant’s motion to sever, the error is harmless “[i]f the
evidence could have been introduced at separate trials (under Rule
404(b), Ariz. R. Evid.).” Id. at 109, 927 P.2d at 769. Rule
404(b) states that “evidence of other crimes, wrongs, or acts
is . . . admissible for . . . purposes, such as proof of . . .
identity.” Arizona Rules of Evidence (Ariz. R. Evid.) 404(b).
¶18 Here, Phillips’ sole defense was misidentification. If
Phillips had been tried for each robbery in a separate trial, the
State could have introduced evidence of the other robberies under
Rule 404(b) for the purpose of proving Phillips’ identity. Thus,
the trial court’s denial of Phillips’ motion to sever, even if
erroneous, constitutes harmless error.
B.
¶19 After conducting a Dessureault2 hearing, the trial court
admitted the photographic lineup from which witnesses identified
Phillips. Phillips argues the lineup was unnecessarily suggestive
and, therefore, the trial court erred in not excluding the out-of-
court and in-court identifications. We review the trial court’s
2
See State v. Dessureault, 104 Ariz. 380, 453 P.2d 951
(1969).
8
decision under a clear abuse of discretion standard. State v.
Atwood, 171 Ariz. 576, 603, 832 P.2d 593, 620 (1992).
¶20 Because “[l]ineups need not and usually cannot be ideally
constituted . . . the law only requires that they depict
individuals who basically resemble one another such that the
suspect’s photograph does not stand out.” State v. Alvarez, 145
Ariz. 370, 373, 701 P.2d 1178, 1181 (1985)(citations omitted). For
example, a photographic lineup may contain differences in lighting
between the defendant’s photograph and other photographs. State v.
Gonzales, 181 Ariz. 502, 509, 892 P.2d 838, 845 (1995).
¶21 Phillips’ photographic lineup contains photographs of six
men with light skin who appear white or Hispanic. Phillips’
photograph, in the sixth position, is taken from a slightly greater
distance than the other photographs. As a result, Phillips’ head
appears somewhat smaller than the heads of the other individuals.
The difference between Phillips’ photograph and the other
photographs is slight. Additionally, all of the photographs are
taken from slightly different distances.
¶22 Because the difference between Phillips’ photograph and
the other photographs does not make Phillips stand out, the trial
court did not abuse its discretion in denying the motion to
suppress. Because the photographic lineup was not unduly
suggestive, the issue whether out-of-court identifications tainted
in-court identifications becomes moot. See Dessureault, 104 Ariz.
9
at 384, 453 P.2d at 955.
C.
¶23 The trial court excused three potential jurors, Ms. C,
Ms. B, and Ms. M, after they expressed their views on the death
penalty and their ability to serve. Phillips alleges the trial
court excluded the jurors in violation of his right to a fair trial
and an impartial jury.
¶24 A trial judge “must excuse any potential jurors who
cannot provide assurance that their death penalty views will not
affect their ability to decide issues of guilt.” State v. Kayer,
194 Ariz. 423, 432 ¶ 27, 984 P.2d 31, 40 ¶ 27 (1999). Here, Ms. B
and Ms. M expressly stated their views on the death penalty would
affect their verdict. Ms. C suggested she might decide issues of
guilt independently of her views on the death penalty, but she
could not assure the court of this until she spoke with her pastor.
She could not even tell the court whether she could serve if her
pastor told her to make her own decision. Because these jurors did
not assure the court their views would not affect their ability to
decide facts in accordance with the law, the trial court did not
err.
D.
¶25 Phillips argues the trial court should have admitted
evidence that another individual, Michael Locklin, committed the
first robbery.
10
¶26 The proffered third-party culpability evidence in this
case allegedly showed that Locklin, an African-American man,
confessed to committing the first Famous Sam’s robbery. Phillips
sought to introduce evidence that Locklin had a prior history of
robbery and criminal behavior, carried a gun, and that witnesses
identified Locklin with a white man at the Famous Sam’s on
Silverbell the night before the first robbery. In addition,
Phillips wanted to offer evidence that police searched Locklin’s
apartment after the first robbery and found an empty .38 caliber
handgun box.
¶27 The trial court relied on State v. Fulminante, 161 Ariz.
237, 778 P.2d 602 (1988), to exclude Phillips’ evidence of third-
party culpability. In a recent decision, we clarified Fulminante’s
test for the admission of third-party culpability evidence. See
State v. Gibson, 2002 WL 819107 (Ariz. May 1, 2002). There, we
held that “[t]he appropriate analysis [for determining
admissibility of evidence of third-party culpability] is found in
Rules 401, 402, and 403, Arizona Rules of Evidence.” Id. at *2 ¶
12. Thus, “[i]nitially, the court must determine if the proffered
evidence is relevant.” Id. at *2 ¶ 13. In Gibson, we explained
that “[t]he proper focus in determining relevancy is the effect the
evidence has upon the defendant’s culpability. To be relevant, the
evidence need only tend to create a reasonable doubt as to the
defendant’s guilt.” Id. at *3 ¶ 16.
11
¶28 The evidence Phillips offered was not relevant because
even if Phillips could have connected Locklin to the first robbery,
evidence that Locklin was the African-American man who committed
that crime would not exculpate Phillips, who could have been the
white or Hispanic man involved in the robbery. In addition,
evidence that Locklin committed the first robbery would not
exculpate Phillips for the second and third robberies. Because
Phillips’ proffered evidence did not have a tendency to create a
reasonable doubt as to Phillips’ guilt, the evidence was not
relevant. Thus, the trial court properly excluded Phillips’ third-
party culpability evidence. See State v. Ring, 200 Ariz. 267, 276
¶ 32, 25 P.3d 1139, 1148 ¶ 32 (2001) (a trial court’s exclusion of
third-party culpability evidence does not constitute harmful error
if the evidence “would not have exculpated Defendant for his role
in both planning and committing the crimes”).
E.
¶29 After hearing argument, the trial court admitted a
photograph of Phillips holding two guns and wearing a bandana
around his forehead. Phillips asserts the court erred because the
photograph was not relevant. Alternatively, Phillips argues the
photograph’s prejudicial effect outweighs its probative value.
¶30 A trial court has “discretion to admit photographs and
will not be reversed absent a clear abuse of that discretion.”
State v. Stuard, 176 Ariz. 589, 602, 863 P.2d 881, 894 (1993). A
12
court may admit a photograph that is “relevant to an issue in the
case . . . if it helps the jury understand any disputed issue.”
Id. If a photograph is relevant but “would tend to incite passion
or inflame the jury, [its] probative value must be weighed against
any unfair prejudice caused by admission.” Id.
¶31 Here, the disputed photograph depicts Phillips holding
two handguns. One gun looks black and the other appears to be
chrome or silver. At trial, a witness to the first robbery stated
that one of the robbers carried a chrome or silver gun. The
photograph is relevant to whether Phillips committed the first
robbery because the description of one of the guns used on April 12
matches one of the guns in the photograph. Furthermore, Phillips
does not explain how the photograph’s prejudicial effect outweighs
its probative value. The trial court did not err.
F.
¶32 Phillips’ jury unanimously convicted him of felony murder
and premeditated murder. Phillips asserts he cannot be guilty of
the specific intent crime of premeditated murder because he neither
intended to shoot or kill Hendricks nor physically shot and killed
Hendricks.
¶33 In Arizona, a person commits premeditated murder if,
“[i]ntending or knowing that [his] conduct will cause death, [he]
causes the death of another with premeditation.” A.R.S. § 13-
1105.A.1. To show premeditation, the “state must prove that the
13
defendant acted with either the intent or knowledge that he would
kill his victim.” State v. Murray, 184 Ariz. 9, 32, 906 P.2d 542,
565 (1995).
¶34 The State does not argue that Phillips intended to kill
Hendricks. Rather, the State argues a jury can convict a defendant
of premeditated murder if the defendant agrees to commit a crime
with another and in the course of committing that crime, the
defendant’s accomplice commits a murder that the defendant
reasonably should have foreseen. Arizona’s accomplice liability
statutes do not permit that result.
¶35 In Arizona, a defendant “is criminally accountable for
the conduct of [his accomplices]” if he aids those accomplices in
“the commission of an offense.” A.R.S. § 13-303.A.3 (emphasis
added). The State interprets section 13-303.A.3 as making a
defendant liable for all acts of an accomplice as long as the
defendant aided the accomplice in planning or committing any
related offense.
¶36 The State’s position ignores the definition of accomplice
provided by section 13-301.2. That section defines an accomplice
as “a person . . . who with the intent to promote or facilitate the
commission of an offense . . . [a]ids, counsels, agrees to aid or
attempts to aid another person in planning or committing the
offense.” A.R.S. § 13-301.2. As the definition makes clear, a
defendant is an accomplice to an offense only if, intending to aid
14
another in committing an offense, he “[a]ids, counsels, agrees to
aid or attempts to aid another person in planning or committing the
offense.” Id. (emphasis added). For example, a defendant who
intends to aid another in committing a robbery is an accomplice to
that robbery. Under section 13-303.A.3, therefore, the defendant
would be liable for the planned robbery even though the defendant’s
accomplice actually committed the robbery.
¶37 Construing section 13-303.A.3 in a manner that would hold
a defendant liable for offenses he did not intend to aid another in
committing, on the other hand, would extend accomplice liability to
a defendant who does not even qualify as an accomplice under
section 13-301.2. For example, the State’s construction of section
13-303.A.3 would allow a defendant who did not intend to aid in an
offense to be an accomplice to that offense. To avoid this absurd
result, we hold that section 13-303.A.3 imposes criminal
accountability on an accomplice defendant only for those offenses
the defendant intended to aid or aided another in planning or
committing. In this case, if Phillips did not intend to aid Finch
in committing murder, he could not be an accomplice to murder under
the terms of the statute.
¶38 Convicting a defendant of premeditated murder by way of
the accomplice liability statute would create other anomalous
results as well. First, as the State itself conceded during oral
argument, interpreting accomplice liability as negating the
15
specific intent requirement of premeditated murder essentially
allows the State to convict a defendant of felony murder without
proving all the elements of felony murder.
¶39 A felony murder conviction requires the State to prove
that the defendant, alone or with others, committed or attempted to
commit a felony and, “in the course of and in furtherance of” that
felony, the defendant or another person caused the death of any
person. A.R.S. § 13-1105.A.2 (emphasis added). In contrast, the
State’s theory using accomplice liability would permit the State to
convict a defendant of first degree murder whenever his accomplice
commits murder during the commission of the underlying offense.
That theory would relieve the State from showing that the
defendant’s accomplice committed the murder in the course of and in
furtherance of the underlying offense, a showing essential to
establish a charge of felony murder. The legislature could not
have intended such an anomalous result.3
¶40 Furthermore, by extending accomplice liability to
premeditated murder, the State’s position ignores the specific
intent requirement of premeditated murder. As a result, the
State’s construction of section 13-303.A.3 first transforms
3
The State’s argument also raises due process concerns.
Arizona’s felony murder and accomplice statutes do not clearly give
notice that accomplice liability can provide a basis for a charge
of premeditated murder. See Lanzetta v. New Jersey, 306 U.S. 451,
452, 59 S. Ct. 618, 619 (1939) (criminal provisions must clearly
define the conduct prohibited and the punishment authorized to
satisfy the notice requirements of the Due Process Clause).
16
accomplice liability into a lesser form of felony murder and then
conflates felony murder with premeditated murder. Arizona law
provides no support for the State’s position, which would eliminate
the essential distinction between felony murder and premeditated
murder. State v. Styers, 177 Ariz. 104, 110-11, 865 P.2d 765, 771-
72 (1993) (although felony murder and premeditated murder are both
first degree murder, a defendant’s specific intent to kill
differentiates premeditated murder from felony murder); see also
State v. Walton, 159 Ariz. 571, 584, 769 P.2d 1017, 1030 (1989).
¶41 In this case, Phillips acted as Finch’s accomplice for
purposes of the robberies committed on April 12, 24, and 28, 1998,
because he intended to facilitate and did aid Finch in committing
those robberies. See A.R.S. § 13-301.2. Under section 13-303.A.3,
Phillips can be held criminally accountable for the robberies
committed by Finch. Phillips cannot, however, be classified as
Finch’s accomplice for the crime of premeditated murder because the
evidence did not show that he intended to facilitate or aid in
committing a murder.4 Accordingly, we reverse Phillips’
premeditated murder conviction.5
4
In State v. Marchesano, 162 Ariz. 308, 315, 783 P.2d 247,
254 (App. 1989), the court of appeals held that a defendant may be
liable for attempted premeditated murder under a theory of
accomplice liability. We disapprove Marchesano to the extent it
conflicts with today’s holding.
5
Because we vacate Phillips’ premeditated murder
conviction, we do not address Phillips’ argument that the trial
court erred in failing to dismiss his premeditated murder
17
G.
¶42 Phillips also challenges his felony murder conviction.
He argues the State could not have proved felony murder beyond a
reasonable doubt because the trial court’s special verdict in
Finch’s case stated that Finch engaged in an act of gratuitous
murder when he shot and killed Hendricks. Phillips reasons that
because Arizona’s felony murder statute does not include gratuitous
murder, no felony murder occurred.
¶43 To prove felony murder, the State must show that the
defendant, acting alone as a principal or with one or more other
persons, commits or attempts to commit a felony “and in the course
of and in furtherance of the offense or immediate flight from the
offense, the person or another person causes the death of any
person.” A.R.S. § 13-1105.A.2.
¶44 Phillips, acting with Finch, committed a felony. Finch
shot and killed Hendricks during the course of that felony so he
and Phillips could successfully complete the robbery without
detection. Because the State demonstrated that Phillips committed
a felony and that Hendricks was murdered in the course of and to
further that felony, the evidence at trial sustains Phillips’
felony murder conviction.
conviction.
18
H.
¶45 Phillips claims the prosecutor’s allegedly inflammatory
and improper statements violated his right to a fair trial. The
trial court denied Phillips’ motion for mistrial based on
prosecutorial misconduct. Phillips did not object to the
prosecutor’s allegedly inflammatory statements during closing
arguments.
¶46 We will not disturb a trial court’s order denying a
motion for mistrial based on prosecutorial misconduct absent a
clear abuse of discretion. State v. Lee, 189 Ariz. 608, 616, 944
P.2d 1222, 1230 (1997). We consider whether the prosecutor’s
statements “called jurors’ attention to matters the jury was not
justified in considering in determining its verdict” and “the
probability that the jurors were in fact influenced by the
remarks.” Id.
¶47 Phillips moved for mistrial because the prosecutor’s
opening arguments referred to Phillips’ actions as terrorizing;
described victims as cowering, hiding, and praying to God Almighty;
and stated that Phillips appeared outraged, beyond control, and
absolutely terrifying. The prosecutor’s statements did not call
jurors’ attention to matters the jury could not consider because
Phillips’ actions and state of mind were relevant to the charges
against him. Moreover, if the prosecutor’s statements constituted
improper opening remarks, they simply repeated witness testimony
19
regarding those same facts. Thus, the trial court did not abuse
its discretion in denying Phillips’ motion for mistrial.
¶48 Because Phillips did not object to the prosecutor’s
statements during closing arguments, we review for fundamental
error only. State v. Valdez, 160 Ariz. 9, 13-14, 770 P.2d 313,
317-18 (1989). Fundamental error “goes to the heart of the
defendant’s case or takes from him a right essential to his
defense.” Id. Phillips claims the State violated his rights when
the prosecutor stated that several pieces of evidence offered by
the defense were “one way of trying to confuse you about the issues
in this case,” and again when the prosecutor, in talking about a
defense quotation from a book called Basic Truths, described “some
irony there perhaps in terms of what the defense is based on.”
Neither of these statements goes to Phillips’ defense, which is
based on misidentification. The trial court’s denial of Phillips’
motion for mistrial did not constitute fundamental error.
III.
A.
¶49 The death penalty may not be imposed for a felony murder
conviction “unless the defendant was a major participant in the
underlying felony and acted with reckless disregard for human
life.” State v. Nordstrom, 200 Ariz. 229, 256 ¶ 94, 25 P.3d 717,
744 ¶ 94 (2001) (citing Tison v. Arizona, 481 U.S. 137, 158, 107 S.
20
Ct. 1676, 1688 (1987); Enmund v. Florida, 458 U.S. 782, 797, 102 S.
Ct. 3368, 3377 (1982)). In its special verdict, the trial court
stated that although Phillips did not fire the gun that killed
Kevin Hendricks, he substantially participated in the underlying
felonies and showed a reckless indifference to human life. Because
Phillips not only fully participated in planning and carrying out
the April 28 robbery but also indiscriminately fired into a group
of customers at the Famous Sam’s restaurant, the trial court
correctly found the Enmund/Tison factors satisfied.
B.
¶50 Phillips asserts the trial court improperly considered
victim impact statements in preparing its special verdict. We
disagree.
¶51 Absent indication to the contrary, we presume that a
trial court considered only evidence properly related to its
sentencing decision. State v. Clabourne, 194 Ariz. 379, 390, ¶ 53
983 P.2d 748, 759 ¶ 53 (1999). Although a trial court may not
consider victim impact statements for purposes of finding
aggravation, a court may consider such statements to “rebut the
defendant’s mitigation evidence.” State v. Mann, 188 Ariz. 220,
228, 934 P.2d 784, 792 (1997).
¶52 In its special verdict, the trial court explicitly noted
that it did not consider any presentence report or victim impact
21
information with respect to the aggravating factors. Furthermore,
nothing in the trial court’s sentencing memorandum suggests it
considered victim impact statements when finding the aggravators.
C.
¶53 Phillips challenges the court’s finding with respect to
aggravating factors. First, Phillips argues the trial court erred
in finding he committed Hendricks’ murder for pecuniary gain
because he did not physically kill Hendricks.
¶54 When a defendant commits murder “as consideration for the
receipt, or in expectation of the receipt, of anything of pecuniary
value,” the court shall consider this an aggravating circumstance.
A.R.S. § 13-703.F.5 (2001). In State v. Sansing, 200 Ariz. 347,
353 ¶ 13, 26 P.3d 1118, 1124 ¶ 13 (2001), we held that “[a] murder
committed in the context of a robbery or burglary is not per se
motivated by pecuniary gain. Rather, we reserve the death penalty
for murders committed during a robbery or burglary for those cases
in which the facts clearly indicate a connection between a
pecuniary motive and the killing itself.” Furthermore, “[w]hether
the needed connection exists between expected pecuniary gain and
the motive for killing involves a highly fact-intensive inquiry.”
Id. at 354 ¶ 15, 26 P.3d at 1125 ¶ 15.
¶55 The trial court correctly found F.5 because Phillips’
expectation of pecuniary gain and the murder of Hendricks are
22
clearly connected. Specifically, Phillips’ desire for money caused
him to fire into a bar full of people, and hearing shots fired in
the restaurant resulted in Hendricks’ escape attempt. Finch
followed and shot Hendricks to permit him and Phillips to obtain
and keep the robbery proceeds. Accordingly, we affirm the trial
court’s F.5 finding.
¶56 Second, Phillips asserts the trial court erred in finding
the F.2 aggravator because the court considered convictions from
the third robbery. An aggravating circumstance exists when “[t]he
defendant was previously convicted of a serious offense, whether
preparatory or completed.” A.R.S. § 13-703.F.2. (2001).
Convictions for crimes consolidated for trial purposes with the
murder charge satisfy F.2. State v. Gretzler, 135 Ariz. 42, 57,
659 P.2d 1, 16 (1983). Convictions which arise from the same set
of events as the murder charge, however, should not be considered
when determining the existence of the F.2 factor. Id. at 57 n.2,
659 P.2d at 16 n.2.
¶57 In finding F.2, the trial court considered Phillips’
convictions from the Famous Sam’s on Silverbell, the Firelight
Lounge, and the Famous Sam’s on Valencia. While the trial court
correctly considered Phillips’ convictions from the first two
robberies, it erred in relying on the convictions from the third
robbery. Phillips’ twenty-five convictions for armed robbery,
23
kidnaping, and aggravated assault from the first and second
robberies, however, satisfy F.2. In addition, Phillips had been
convicted of armed robbery and aggravated assault in September 1998
for a robbery he committed on April 26, 1998. Therefore, the trial
court’s F.2 finding is supported.
D.
¶58 Phillips asserts the trial court erred in not finding or
not giving adequate weight to several mitigating factors. We
disagree.
1.
¶59 The trial court rejected Phillips’ claim that his use of
crack cocaine on the night of the third robbery, a history of
substance abuse, and a difficult childhood significantly impaired
his capacity to appreciate the wrongfulness of his conduct.
¶60 A statutory mitigating factor exists when “[t]he
defendant’s capacity to appreciate the wrongfulness of his conduct
or to conform his conduct to the requirements of law was
significantly impaired, but not so impaired as to constitute a
defense to prosecution.” A.R.S. § 13-703.G.1 (2001).6 Here,
Phillips’ video-taped confession, taken no more than two hours
after his arrest, does not demonstrate any impairment. Rather, the
6
A.R.S. section 13-703.G.1 is now found at section 13-
703.H.1. (Supp. 2001).
24
video depicts Phillips clearly and coherently answering questions
regarding all three robberies. Additionally, Phillips told
officers he did not use drugs during the third robbery even though
he had been using drugs since the first robbery. Moreover,
unsubstantiated, self-reported drug use is insufficient to
establish this mitigating factor. State v. Poyson, 198 Ariz. 70,
80 ¶ 33, 7 P.3d 79, 89 ¶ 33 (2000). Because Phillips presented
minimal evidence that he was using crack cocaine when he committed
the third robbery and no evidence he was impaired during the third
robbery, the trial court did not err.
¶61 Similarly, although Phillips presented evidence of
substance abuse and a difficult childhood, he did not offer any
evidence that these factors caused him to commit the robberies.
See State v. Jones, 188 Ariz. 388, 400, 937 P.2d 310, 322 (1997)
(holding a history of substance abuse is not mitigating unless the
defendant proves the drug usage impaired his ability to appreciate
the wrongfulness of his conduct); Clabourne, 194 Ariz. at 387 ¶ 35,
983 P.2d at 756 ¶ 35 (holding a difficult childhood is not
mitigating unless the defendant can “link his family background to
his murderous conduct or to otherwise show how it affected his
behavior”). The trial court did not err in rejecting this
mitigating factor.
25
2.
¶62 Phillips asserts his minor participation in Hendricks’
death as a mitigating factor. The evidence at trial, however,
showed that Phillips initiated the third robbery by opening fire
into a bar full of patrons. Hendricks fled as a result of
Phillips’ firing, and Finch shot and killed Hendricks because he
tried to escape. Because Phillips’ actions recklessly endangered
human life, the trial court correctly found minor participation
unproven.
3.
¶63 The trial court also rejected Phillips’ age as a
mitigating circumstance because although Phillips was only 20 years
old when he committed the robberies, he acted in an experienced,
determined, and deliberate manner.
¶64 In considering age as a mitigator, a trial court should
consider a defendant’s level of intelligence, maturity,
participation in the murder, and criminal history. Id. at 386 ¶
28, 983 P.2d at 755 ¶ 28. Additionally, “average level of
intelligence” and “major participa[tion] in the crime . . . have
tended to weigh against age as a mitigating circumstance.” Id. at
386 ¶ 29, 983 P.2d at 755 ¶ 29.
¶65 Phillips does not dispute that he possesses average
intelligence. More importantly, he substantially participated in
26
the crime, not only by opening fire into Famous Sam’s but also by
planning the robberies and providing the weapons and vehicle for
the robberies. We affirm the trial court’s finding.
4.
¶66 Phillips argues the trial court erroneously rejected
familial responsibility as a mitigator because he lived with and
supported his wife and two adopted stepdaughters.
¶67 The only testimony regarding Phillips’ relationship with
his wife and daughters came from Chess Sexton, Phillips’ mother’s
former husband, and Cecelia Dexter, Phillips’ adoptive mother’s
mother. Sexton simply stated he thought Phillips was close to his
wife and stepdaughters. Likewise, Dexter, who had never met
Phillips’ wife or children, stated she had received a Christmas
card from Phillips depicting his wife and stepdaughters. Phillips’
wife did not testify that he assumed family responsibility. The
trial court did not err.
5.
¶68 The trial court rejected family support as a mitigator
because although Phillips proved he enjoys the love and support of
his family, his family’s love and his love of them did not keep him
from engaging in murderous conduct. Familial support, alone, is
insufficient to overcome aggravation. See State v. Rienhardt, 190
Ariz. 579, 592, 951 P.2d 454, 467 (1997). Thus, the trial court
27
did not err.
6.
¶69 Phillips argues he proved remorse when he delivered an
apologetic statement to the victims and victims’ families at his
aggravation and mitigation hearing. The trial court, however, did
not find remorse.
¶70 “Where the trial judge disbelieves a defendant’s
statements claiming remorse, the circumstance is generally not
established.” State v. Schackart, 190 Ariz. 238, 253-54, 947 P.2d
315, 330-31 (1997). Because the trial court observed Phillips
throughout his trial and sentencing, we affirm its finding that
this mitigator was unproven.
7.
¶71 In its special verdict, the trial court stated it would
not consider Phillips’ felony murder conviction as a mitigating
factor because the jury unanimously found the defendant guilty of
first degree premeditated murder in addition to felony murder.
Because we reverse Phillips’ premeditated murder conviction today,
we consider whether Phillips’ lack of intent to kill is a
mitigating factor.
¶72 A felony murder verdict’s mitigating potential is offset
by a defendant’s “major participation in the planning and execution
of the crime.” State v. Dickens, 187 Ariz. 1, 25, 926 P.2d 468,
28
492 (1996). Phillips acted as a major participant in the planning
and execution of the three robberies culminating in the death of
Kevin Hendricks. Therefore, we give no weight to Phillips’ felony
murder conviction as a mitigating factor.
E.
¶73 Phillips also argues the trial court did not consider his
statutory mitigating factors as nonstatutory mitigators because the
special verdict does not discuss Phillips’ history of substance
abuse, his difficult childhood, his alleged minor participation,
and his age as nonstatutory mitigating factors.
¶74 A trial court’s special verdict need not be “a laundry
list of findings on every nuance or every issue raised by a
defendant.” State v. Kiles, 175 Ariz. 358, 369, 857 P.2d 1212,
1223 (1993). Rather, the trial court need only consider the
evidence and resolve the relevant factual issues. Id. Because the
only support for Phillips’ argument is that the trial court did not
discuss statutory mitigators as nonstatutory mitigators, we find no
error.
F.
¶75 Phillips next claims the trial court improperly
considered Finch’s confession during his sentencing. Specifically,
Phillips states the trial court erred when it adopted as proven
beyond a reasonable doubt certain factual statements, which
29
Phillips alleges were derived from Finch’s confession, set forth in
the State’s sentencing memorandum. Phillips also argues that the
trial court considered Finch’s statements when concluding that
Phillips provided the car, guns, and impetus to start the last
round of robberies, kidnapings, and aggravated assaults.
¶76 Phillips fails to demonstrate that the trial court
considered Finch’s statements when it incorporated the State’s
sentencing memorandum into its special verdict and found that
Phillips provided the car, guns and impetus to commit the third
robbery. Phillips’ video-taped confession contained all the
factual information Phillips claims the trial court derived from
Finch’s confession. We find no error.
G.
¶77 The trial court relied on Phillips’ prior felony
convictions from the robbery he committed alone on April 26, 1998,
to enhance his non-homicide convictions from the April 12, 24, and
28 robberies. Phillips argues that because he was not convicted of
the April 26 robbery until after he had committed the April 12, 24,
and 28 robberies, the trial court could not use the April 26
convictions.
¶78 We have previously rejected this argument. A trial court
may use a prior felony conviction for enhancement purposes whenever
“the conviction on the prior offense . . . precede[s] the
30
conviction on the present offense.” State v. Thompson, 200 Ariz.
439, 441 ¶¶ 6-7, 27 P.3d 796, 798 ¶¶ 6-7 (2001). Phillips’
convictions from the April 26 robbery were entered before his
convictions for the April 12, 24, and 28 robberies. Thus, the
trial court correctly concluded that Phillips’ April 26 convictions
constituted historical prior felonies for purposes of enhancing the
non-homicide sentences stemming from the April 12, 24, and 28
robberies.
H.
¶79 Recognizing that the Ninth Circuit Court of Appeals
upheld dual juries in Lambright v. Stewart, 191 F.3d 1181, 1186
(1999), Phillips argues that the trial court’s use of dual juries
violated his constitutional rights.
¶80 A trial court has discretion to use dual juries. Hedlund
v. Sheldon, 173 Ariz. 143, 145, 840 P.2d 1008, 1010 (1992).
Furthermore, the use of dual juries is “not inherently prejudicial”
to the defendant. Id. Because Phillips fails to demonstrate that
the trial court’s use of dual juries violated his rights, we find
no error.
IV.
¶81 The trial court correctly found the F.5 and F.2
aggravating factors in this case. Phillips’ only proven mitigation
consisted of the support he receives from his family.
31
Independently considering those factors, we conclude the
aggravating circumstances far outweigh the mitigators.
V.
¶82 Phillips states that he joins Finch’s arguments on the
trial court’s reasonable doubt instruction,7 on Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), on pecuniary gain,
and on issues raised to avoid preclusion. We reject those
arguments for the reasons set forth in State v. Finch, ___ Ariz.
___, ___ P.3d ___ (2002).
VI.
¶83 For the foregoing reasons, we reverse Phillips’
conviction for premeditated murder and affirm his remaining
convictions and sentences.
__________________________________
Ruth V. McGregor, Vice Chief Justice
CONCURRING:
_______________________________
Charles E. Jones, Chief Justice
7
See State v. Portillo, 182 Ariz. 592, 898 P.2d 970
(1995).
32
______________________________
Stanley G. Feldman, Justice
_________________________________
Thomas A. Zlaket, Justice (Retired)
__________________________________
Edward C. Voss, Judge*
*Pursuant to Ariz. Const. Article VI, Section 3, the Honorable
Edward C. Voss, Chief Judge of the Court of Appeals, Division One,
was designated to sit on this case.
33