State v. Canez

IN THE SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Supreme Court
) No. CR 98-0488-AP
Appellee, )
) Pinal County
v. ) Superior Court
) No. CR 96-021235
ARTURO ANDA CAÑEZ, )
)
Appellant. ) O P I N I O N
)
______________________________)

Appeal from the Superior Court of Pinal County
Honorable Boyd T. Johnson, Judge

AFFIRMED IN PART; REVERSED IN PART

_________________________________________________________________

Janet A. Napolitano, Attorney General Phoenix
by Paul J. McMurdie, Former Chief Counsel,
Criminal Appeals Section
Kent E. Cattani, Chief Counsel,
Capital Litigation Section
Joseph T. Maziarz, Assistant Attorney General,
Criminal Appeals Section
Attorneys for Appellee

Thomas J. Phalen Phoenix
and
Tara K. Allen Tempe
Attorneys for Appellant

_________________________________________________________________
J O N E S, Chief Justice

¶1 A jury convicted Arturo Anda Cañez of first degree felony

murder, first degree burglary, and two counts of armed robbery.

The trial court’s imposition of the death penalty on the murder

conviction resulted in this direct appeal pursuant to Rules 26.15

and 31.2(b) of the Arizona Rules of Criminal Procedure. We have

jurisdiction pursuant to article VI, section 5(3) of the Arizona

Constitution and section 13-4031 of the Arizona Revised Statutes.

FACTS

¶2 Near midnight on February 22, 1996, a neighbor saw a

truck matching the description of Cañez’ at the Casa Grande home of

77-year-old Franklin Joseph Hale. The driver spoke amiably with

Hale for about five minutes. When the truck left, the neighbor

heard its gears grinding.

¶3 The following night, sometime after 7:00 p.m., Cañez

drove his truck into the parking lot of a bar in Casa Grande.

Jerry Livingston lived in a camper in the parking lot, and he and

Donna Thacker were sitting outside the camper drinking beer. Cañez

joined them and asked if they wanted to get some crack cocaine. As

they sat drinking and smoking, Cañez used a flip-top lighter with

a marijuana leaf printed or etched on it to light his cigarette.

Kathy Shepard soon joined the group. They put their money

together, and Cañez and Shepard left to buy cocaine. The two

bought $20 of crack cocaine and smoked it between themselves.

2
Cañez used the marijuana leaf lighter to smoke the cocaine. After

smoking all of the cocaine, Shepard had Cañez drop her off two

blocks from the bar and instructed Cañez to tell Livingston that

they had “gotten ripped off” to “cover up” for not sharing the

cocaine with him. By the time Shepard walked back to Livingston’s

camper, Cañez was already there. Shepard told Livingston that they

“got burnt.”

¶4 Cañez, Thacker, and Shepard then left the bar in Cañez’

truck. They bought more cocaine and drove to a barn frequented by

drug users and the homeless, arriving between 9:00 and 10:00 p.m.

There they met co-defendant Brian Patterson who was living in the

barn as its caretaker. Patterson recognized Thacker and Shepard

from having previously used drugs with them in the barn. Cañez

introduced himself to Patterson as Anda. The four of them divided

the cocaine and smoked it.

¶5 Afterward, Cañez told Shepard that he “was going to do a

job” and get some money from an old man toward Selma Highway. He

suggested that Shepard “turn a trick” with the man while Cañez took

his money and guns. Shepard declined but Cañez persisted. Cañez

then suggested that they lure Patterson out of the barn and take

his wallet from under his bed. Again Shepard refused.

¶6 Shepard drove Thacker and Cañez in Cañez’ truck to get

more cocaine. They bought another $40 worth, returned to the barn,

and smoked it. Cañez, Thacker, and Shepard again left to buy

3
cocaine. Shepard had become leery of Cañez and his insistence on

going to the old man’s house and decided to get away from him.

With the money, Shepard got out of the truck to buy the drugs,

hinting that Thacker should come with her, but Thacker did not. At

the drug house Shepard met a man she knew and left with him. Cañez

wanted his money back, but Thacker said Shepard would not be coming

back. Cañez dropped Thacker off at her friend’s trailer and

returned alone to the barn.

¶7 Upon his return, Cañez told Patterson they had been

ripped off and asked where they might find the women. They got in

the truck to look for them at the bar. On the way, Cañez asked

Patterson whether he could fight and he said no. Patterson was

then 23 years old, 6' 1", and weighed 125 pounds. He suffered from

walking pneumonia, drug use, and heart problems, for which he had

undergone seven operations and required a pacemaker. They found

neither Thacker nor Shepard at the bar. Cañez then drove to Hale’s

house, grinding the gears as he went. En route, Cañez spoke of

beating someone up and taking his money. When they arrived,

Patterson remarked that it was “too broad a view,” but Cañez said,

“Don’t worry. This guy lives by himself and there’s nobody around

who will notice.”

¶8 Hale answered the door and Cañez said, “Hey, Pops, you

got some more money, another twenty.” Patterson had the impression

they knew each other. Cañez pushed Hale back into the house and

4
closed the door behind him. From outside, Patterson could hear

scraping and thumping. Cañez opened the door and said, “It’s taken

care of, come on in.” Patterson stepped over Hale’s “squirming”

body as he entered the house. At Cañez’ direction, Patterson put

Hale’s television in the truck. On his way back he saw Cañez

twisting a white cloth around Hale’s neck. Patterson turned and

walked away, but Cañez came to the door and threatened him to “get

back in the house.” When Patterson went back inside, Hale was

still moving on the floor.

¶9 Cañez and Patterson emptied the contents of a wallet onto

a chair. On a stand next to the chair, Patterson saw a closed

folding knife. Cañez sent Patterson into the bedroom to look for

guns. From the bedroom doorway, Patterson saw Cañez strike Hale in

the head several times with a frying pan. Patterson saw a glove on

the hand wielding the frying pan but did not see whether the other

hand wore a glove. Hale was still moving and appeared to Patterson

to be semi-conscious. Cañez and Patterson carried out a stereo and

speakers. On his way out for the last time, Patterson saw Hale

moving his right arm toward his head as Patterson stepped over him.

After putting the stereo in the truck, Cañez went back into the

house for two or three minutes and came out with an electric razor

case. They left Hale’s house with the truck’s lights off. Again,

Cañez had trouble shifting gears.

5
¶10 At about 12:45 a.m. a neighbor saw a truck backing out of

Hale’s driveway with its lights off. There appeared to be two

people in the truck. The truck drove to the end of the street and

hesitated at the stop sign for 30 seconds before turning the lights

on and speeding away. At trial, the neighbor identified the truck

as Cañez’.

¶11 Marco and Marta Ramirez testified that Cañez, whom they

knew by sight from the neighborhood, came to their trailer between

midnight and 1:30 a.m. Cañez offered to sell them a television and

stereo. Cañez’ clothes were wet, dark, and dirty, which he

attributed to his having been in a fight. Cañez asked for $50 for

the property but accepted $20 because he “needed the money.”

¶12 In the truck after the sale, Patterson said, “He better

not die.” Cañez replied, “He ain’t gonna die. He ain’t gonna die.

He ain’t gonna die.” Cañez then drove around the block from the

Ramirez residence and parked in front of a trailer he said belonged

to his cousin. He went inside with the electric razor and came out

15 minutes later, cleaned up and wearing different clothes. They

then drove around Casa Grande in a fruitless search for cocaine.

Cañez picked up a woman Patterson did not know and then dropped

Patterson off near the barn. Half an hour later, Cañez and the

woman came back to the barn. Cañez asked whether Patterson had

seen his lighter, but Patterson said he had not. After smoking

more cocaine, Cañez and the woman left.

6
¶13 In the early afternoon of the following day, Hale’s son

discovered the body. The medical examiner determined that Hale

died as a combined result of 21 blunt force injuries and six stab

wounds. That afternoon, Patterson learned from his friend, Justin

McIntosh, whom he had told of the robbery, that the victim had

died. The two went to a pay phone where Patterson called a mental

counseling service and told the counselor that he had been involved

in a homicide. The counseling service called the police and they

met Patterson and McIntosh at the pay phone. Patterson agreed to

go to the station and make a statement.

¶14 Initially, Patterson denied witnessing the assault or

taking drugs, but later admitted to seeing some of the beating and

carrying out the speakers. He agreed to show the detectives where

he had been with Cañez the night before. Patterson took the

detectives to Hale’s house, the Ramirez trailer, the barn, and the

trailer where Cañez had changed clothes (which turned out to be

Cañez’ residence). He also identified Cañez’ truck parked in front

of the trailer where Cañez had changed.

¶15 On March 7, 1996, a grand jury indicted Arturo Anda Cañez

and Brian D. Patterson of first degree felony murder, first degree

burglary, and two counts of armed robbery. Patterson cooperated

with the investigation and testified at Cañez’ trial pursuant to a

plea agreement for manslaughter and first degree burglary.

Patterson ultimately received a ten-year sentence. Cañez’ trial

7
began January 21, 1998, and on February 5, 1998 the jury returned

guilty verdicts on all charges. He was sentenced to death on

October 27, 1998.

TRIAL ISSUES

I. BATSON CHALLENGE

¶16 Cañez, who is Hispanic, made a Batson challenge based on

the state’s removal of five of the seven Hispanic members of the

jury pool. See Batson v. Kentucky, 476 U.S. 79, 89 (1986). The

judge found that this met the defendant’s burden of establishing a

prima facie case of discrimination and asked the state to explain

its strikes. The court ruled that the reasons offered by the state

were race-neutral and denied the Batson challenge. Cañez contends

that this was error and challenges the following juror strikes:

¶17 Perea – The state was concerned that, because she knew

one of the state’s witnesses, Perea might bring unfavorable extra-

judicial information about his controversial employment history

into deliberations. The trial judge, a friend of the witness, knew

of this employment history. Cañez argued that nothing in the

record supported the alleged spotty employment history or that

Perea knew of it. This strike gave the trial judge some pause

since he did not share the state’s concerns. However, he found the

explanation race-neutral.

¶18 Duran – The state struck this juror because she was 21

years old, had only twelve years of education, and, most

8
importantly, claimed to be a nurse. The prosecutor believed that

someone of her age and education could not be a nurse and that her

candor was thus called into question. The court thought she could

have received a two-year nursing degree (although she had not

claimed it on the questionnaire), but found that the concern

regarding candor was race-neutral. Cañez argued that this reason

was pretextual since the state had not asked follow-up questions to

clarify her employment. Although the court believed she would be

a good juror, it upheld the strike as race-neutral.

¶19 Ibarra – The prosecutor had had a close and rocky working

relationship with Ibarra’s brothers who worked in law enforcement.

Two of the brothers had been prosecuted for felonies, and there was

some sentiment that this prosecutor’s office, though it did not

handle the case, chose not to prevent the prosecutions. Ibarra was

struck out of fear of hostility toward the prosecutor. The trial

judge knew that the prosecutor’s office had made the referral that

resulted in the prosecutions and that at least some of the Ibarra

family held the office responsible. Cañez points out that nothing

on the record supports the claimed hostility and that other jurors

with relatives who had brushes with the law were not struck. The

trial court permitted the strike as race-neutral.

¶20 Salazar – The state struck Salazar because he had a

criminal history and expressed his dislike of the death penalty.

The state said it was not convinced by the court’s rehabilitation

9
of the juror regarding the death penalty. The court noted not only

Salazar’s difficulty with the death penalty, but also his

inconsistent answers to questions generally. Cañez points out that

Salazar stated that he could set aside his feelings about the death

penalty and be a fair and impartial juror. The court found the

strike nondiscriminatory.

¶21 Armenta – This juror was struck because he had a criminal

history and did not think it fair for the government to offer co-

defendants plea agreements in exchange for testimony. Cañez points

out that the juror said he could be a fair and impartial juror and

that no co-defendants testified against Armenta in his own

conviction. The court found the strike race-neutral.

¶22 Batson challenges are governed by a three-step analysis:

(1) the party challenging the strikes must make a prima facie

showing of discrimination; (2) the striking party must provide a

race-neutral reason for the strike; and (3) if a race-neutral

explanation is provided, the trial court must determine whether the

challenger has carried its burden of proving purposeful racial

discrimination. Purkett v. Elem, 514 U.S. 765, 767 (1995).

¶23 The state argues that our analysis should end with step

one because the trial court erroneously found a prima facie showing

of discrimination. The state contends that, as a matter of law, a

prima facie case cannot be established where only some, but not

all, members of a cognizable group are struck. However, although

10
“the fact that the state accepted other Hispanic jurors on the

venire is indicative of a nondiscriminatory motive,” it is “not

dispositive.” State v. Eagle, 196 Ariz. 27, 30, 992 P.2d 1122,

1125 (App. 1998) (citing Turner v. Marshall, 121 F.3d 1248, 1254

(9th Cir. 1997) (presence of minority jurors does not preclude

successful Batson challenge)). Because the trial court did not

abuse its discretion in finding a prima facie case of

discrimination, we proceed to step two of the analysis.

¶24 Cañez asserts that the trial court erred in finding that

the state carried its burden of providing race-neutral reasons for

the strikes. Relying on our decision in State v. Cruz, he argues

that where “the state offers a facially neutral, but wholly

subjective, reason for a peremptory strike, it must be coupled with

some form of objective verification” in order to satisfy step two

of the Batson analysis. 175 Ariz. 395, 399, 857 P.2d 1249, 1253

(1993).

¶25 The Cruz rule has been called into question by the

Supreme Court’s subsequent holding that an explanation need only be

facially race-neutral, not “persuasive, or even plausible.”

Purkett, 514 U.S. at 768. Although the court of appeals has held

that Purkett “eliminate[d] the Cruz requirement,” State v. Henry,

191 Ariz. 283, 286, 955 P.2d 39, 42 (App. 1997), we have not

addressed its impact. See State v. Trostle, 191 Ariz. 4, 12, 951

P.2d 869, 877 (1997) (declining to reexamine the continued validity

11
of Cruz in light of Purkett); State v. Murray, 184 Ariz. 9, 25, 906

P.2d 542, 558 (1995) (assuming, without deciding, that Cruz was not

diluted by Purkett).

¶26 We do not address the impact of Cruz, if any, on today’s

opinion because Cruz appears not to have survived Purkett. But

even had it survived, it would not aid Cañez in the case at bar.

Cruz requires only objective verification for wholly subjective

explanations. Here, four of the five challenged strikes were based

on objective facts. Perea knew one of the state’s witnesses.

Duran claimed employment as a nurse, yet was young and did not

report any post-secondary education. Salazar’s criminal history

and dislike of the death penalty appear in the record. Similarly,

Armenta had a criminal history and held a dim view of exchanging

plea agreements for co-defendant testimony. The Cruz rule is

inapplicable because objective facts supported each of these

strikes.

¶27 The fifth strike, Ibarra, was based on an apparently

subjective belief that the Ibarra family harbored ill feelings

toward the prosecutor’s office. The trial judge provided objective

verification for this strike by stating on the record that he knew

of the Ibarra family’s problems with and resentment toward the

prosecutor’s office. See Cruz, 175 Ariz. at 399, 857 P.2d at 1253

(noting trial court’s observations as one source of objective

verification). Thus, each of the challenged strikes easily

12
satisfied Cruz, and, even if its rule survives Purkett, its

application would not change the result here.

¶28 In step three, the trial court ruled against Cañez’

challenge, implicitly finding that he had not carried his burden of

proving purposeful discrimination in any of the state’s peremptory

strikes. We give great deference to the trial court’s ruling,

based, as it is, largely upon an assessment of the prosecutor’s

credibility. See Batson, 476 U.S. at 98 n.21. The trial court

upheld each strike, and we find no error, much less the clear error

required to disturb such rulings. See Murray, 184 Ariz. at 24, 906

P.2d at 557.

II. DEATH QUALIFIED JURY

¶29 Cañez argues that the removal of jurors Smith and Salazar

due to their feelings on the death penalty deprived him of his

rights to an impartial jury, a fair trial, due process, and equal

protection. As to Salazar, Cañez’ claim fails as a matter of law

since the state removed him with a peremptory strike. “Parties may

. . . exercise their peremptory challenges to remove from the

venire any group or class of individuals normally subject to

‘rational basis’ review.” J.E.B. v. Alabama, 511 U.S. 127, 143

(1994). “Nothing about a person’s views on the death penalty

invokes heightened scrutiny under the Equal Protection Clause.

Thus, Batson does not limit the use of peremptory challenges to

exclude jurors because of their reservations about capital

13
punishment.” State v. Bolton, 182 Ariz. 290, 302, 896 P.2d 830,

842 (1995).

¶30 As to Smith, Cañez contends that she should not have been

dismissed for cause because she did not unequivocally state that

she could not be a fair and impartial juror. In support of this

argument, Cañez relies upon State v. Anderson, in which we held

that the trial court committed reversible error by not allowing

oral voir dire in order to rehabilitate jurors with ambiguous

reservations about their ability to be fair in light of their views

on the death penalty. 197 Ariz. 314, 319, 4 P.3d 369, 374 ¶10

(2000). The state argues that Anderson was incorrectly decided and

urges us to reconsider its holding. We decline the request but

point out that, on the record before us, we need not address

Anderson because here, oral voir dire was conducted; Cañez simply

disagrees with the resulting ruling. When the trial judge removed

Smith, Cañez made no objection. Thus, we review only for

fundamental error.

¶31 Both the court and defense counsel attempted to

rehabilitate Smith by explaining to her that the sentencing

decision was for the judge alone. Her responses were inconsistent,

but she ultimately said that she would be incapable of fairly

determining guilt and thereby subjecting the defendant to a

possible death sentence. The “trial judge must excuse any

potential jurors who cannot provide assurance that their death

14
penalty views will not affect their ability to decide issues of

guilt.” State v. Kayer, 194 Ariz. 423, 432, 984 P.2d 31, 40 ¶27

(1999). Smith did not provide such assurance and was therefore

properly excluded for cause.

III. JURY CONTAMINATION

¶32 By failing to raise them at trial, Cañez has waived all

three of his jury contamination arguments. Thus, we review only

for fundamental error. Juror prejudice will not be presumed but

must be demonstrated by objective evidence. See State v. Doerr,

193 Ariz. 56, 61-62, 969 P.2d 1168, 1173-74 ¶18 (1998). All three

claims fail for lack of evidence of resulting prejudice.

¶33 First, Cañez argues that the jury was contaminated by a

venire member’s statement that his sister had been the victim of a

home invasion rape by an African-American and that he would

therefore have a problem serving if the defendant were black.

Cañez suggests that, since he too was a minority accused of a home

invasion attack upon a Caucasian, the juror’s admission of racism

against blacks prejudiced the rest of the jurors against him, an

Hispanic defendant. Though this juror was ultimately removed,

Cañez argues that the court should have questioned the rest of the

jurors to ensure that they were not prejudiced by the statement.

¶34 In support of this argument, Cañez relies on Mach v.

Stewart, 137 F.3d 630 (9th Cir. 1998). During voir dire, a

potential juror repeatedly informed the judge and the panel that

15
she, as a social worker, had substantial expertise in the area of

sexual abuse of children, that she had never been involved in a

case of alleged sexual abuse against a child where the child’s

statements had not been borne out, and that she had never known a

child to lie about sexual abuse. Id. at 632-33. The appellate

court explained that, given the potential juror’s experience and

conviction, “we presume that at least one juror was tainted and

entered into jury deliberations with the conviction that children

never lie about being sexually abused.” Id. at 633. The appellate

court found that the potential juror’s statements were

intrinsically prejudicial and resulted in the swearing in of a

tainted jury because the nature of the statements dealt with the

defendant’s guilt and the victim’s truthfulness, the statements

were “expert-like,” were delivered with certainty, and were

repeated several times.

¶35 Second, while in the restroom, a juror overheard a member

of the victim’s family say to a third person, “I hope they don’t

believe her.” She reported the encounter to the court, and the

judge and counsel interviewed her about it. She did not know who

the speaker was talking about or whether the comment pertained to

the case, but indicated that she thought they may have meant the

next witness, who was female. The court kept the juror but did not

admonish her not to tell the other jurors of the comment. Cañez

did not object or suggest an admonition. Here too, Cañez has

16
failed to demonstrate any resulting prejudice, and none is

apparent.

¶36 Third, a Spanish-fluent juror talked to the court

interpreter during a break. The prosecutor brought the

conversation to the court’s attention. At Cañez’ request, the

court questioned the juror about the discussion. The juror told

the court that their talk did not concern the case and that he

could be a fair and impartial juror. Both attorneys declined to

question the juror. The court reminded the juror not to talk with

staff until the trial ended. Cañez did not object, nor did he

request any other action of the court. There is no indication of

prejudice.

IV. REFUSED JURY QUESTIONNAIRE

¶37 Cañez argues that the court abused its discretion in

refusing to permit his 82-question voir dire questionnaire.

Written questionnaires have been approved by this court and are

recognized by the Rules of Criminal Procedure. Ariz. R. Crim. P.

18.5(d). Nevertheless, questionnaires are not required. The

method and scope of voir dire is left to the discretion of the

trial judge. State v. Detrich, 188 Ariz. 57, 64-65, 932 P.2d 1328,

1335-36 (1997). “We will not disturb the trial court's selection

of the jury in the absence of a showing that a jury of fair and

impartial jurors was not chosen.” State v. Walden, 183 Ariz. 595,

607, 905 P.2d 974, 986 (1995) (internal quotations omitted)

17
(quoting State v. Tison, 129 Ariz. 546, 551, 633 P.2d 355, 360

(1981)), rejected on other grounds by State v. Ives, 187 Ariz. 102,

107-08, 927 P.2d 762, 767-68 (1996). The trial court expressly

encouraged counsel to conduct extensive individual oral voir dire,

including in chambers if necessary. The trial court did not abuse

its discretion.

V. INSUFFICIENT EVIDENCE

A. Murder

¶38 Cañez argues that the trial court erred by denying his

motion for a directed verdict of acquittal due to a lack of

sufficient evidence to convict. To determine whether a rational

jury could convict, we assess the admissible evidence in the light

most favorable to sustaining the verdict. State v. Fulminante, 193

Ariz. 485, 493, 975 P.2d 75, 83 ¶24 (1999).

¶39 Cañez’ principal argument is that the value of

Patterson’s testimony is slight, given that: two other inmates

testified he made statements about being offered a “sweet deal” for

testifying against Cañez in a murder Patterson actually committed;

Patterson agreed to testify in exchange for a lesser sentence;

Patterson had a motive to commit the crime because he was destitute

and without drugs; prior to the murder, Patterson had been

depressed and suicidal; while incarcerated, Patterson wrote letters

to the court asking that he be put to death for his involvement; at

trial, Patterson had limited present recollection of the night of

18
the murder or of his statements to police; and prior to trial,

Patterson submitted an affidavit recanting his identification of

Cañez. However, the credibility of witnesses is a matter for the

jury. Estate of Reinen v. Northern Ariz. Orthopedics, Ltd., 198

Ariz. 283, 287, 9 P.3d 314, 318 ¶12 (2000). Cañez presented all of

the above impeachment evidence to the jury for its use in weighing

Patterson’s testimony.

¶40 In light of our holding that the Ramirezes’ testimony was

not purchased, infra, Purchased Testimony at ¶72, we do not address

Cañez’ contention that their testimony was unreliable because the

state obtained it with the promise of helping them secure

preferential treatment from the Immigration and Naturalization

Service.

¶41 Cañez also points to the substantial lack of physical

evidence. No fingerprints were found on the stolen property, nor

did the property appear to have been wiped off. However, co-

defendant Patterson testified that Cañez was wearing at least one

glove during the assault. None of Cañez’ hair was found at the

scene. None of his shoes matched a print found at the scene. The

tires on his truck, though consistent with tracks at the scene,

could not be definitively matched. No bloody clothes were found at

Cañez’ home or in his truck. No blood was found in Cañez’ truck.

None of Cañez’ blood was found at the crime scene. The only

physical evidence recovered from the scene linking Cañez to the

19
murder was his lighter which, although a detective testified to

having noticed it on the first processing, was not noted,

photographed, or recovered until the second processing two days

later.

¶42 Physical evidence is not required to sustain a conviction

where the totality of the circumstances demonstrates guilt beyond

a reasonable doubt. Fulminante, 193 Ariz. at 494, 975 P.2d at 84

¶26. The jury heard eyewitness testimony from co-defendant

Patterson that Cañez attacked Hale and removed property from his

home. A neighbor identified Cañez’ truck leaving Hale’s house on

the night of the murder. Tire tracks consistent with those made by

Cañez’ truck were found at the scene. The Ramirezes testified that

they bought the stolen property from Cañez on the night of the

murder. A lighter seen in Cañez’ possession on the night of the

murder was found at the crime scene. Several witnesses testified

to riding in or seeing Cañez drive his truck on the night of the

murder, contradicting Cañez’ statements to police that he was home

that night and that the truck never moved because it was not

licensed and he could not drive a manual transmission. Finally,

Cañez was heard to say that he planned to “do a job” and take some

money from an old man.

¶43 The trial court did not err in denying Cañez’ motion for

a directed verdict. There was ample evidence which “reasonable

persons could accept as adequate and sufficient to support a

20
conclusion of defendant's guilt beyond a reasonable doubt.” State

v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980).

B. Two Counts of Armed Robbery

¶44 Cañez next argues that the evidence cannot support two

counts of armed robbery, one with a knife and one with a frying

pan. He contends that although he allegedly attacked Hale with

different weapons and took various pieces of his property, there

was only one continuous course of conduct and thus only one armed

robbery. The state points out that defendant pushed his way into

the house, attacked Hale, and removed property from the house to

his truck. He then left the truck, went back into the house,

attacked Hale with another implement, and took additional property.

The state concludes that two takings with two weapons, although

having a common victim, constitute two armed robberies.

¶45 The trial court reserved judgment on this issue when

Cañez raised it at the close of the state’s case. It does not

appear to have been called to the court’s attention a second time,

except perhaps as an implicit element of Cañez’ blanket motion for

dismissal due to insufficient evidence made prior to closing

arguments. Therefore, the trial court apparently never expressly

decided whether two counts of armed robbery were proper on these

facts.

¶46 We find only one count of armed robbery appropriate.

First, both takings and attacks occurred within the same course of

21
conduct. The fact that Cañez interrupted the offense to take some

of the stolen property to his truck will not give rise to an

additional count. Second, robbery will lie only where the

defendant “threatens or uses force . . . with intent either to

coerce surrender of property or to prevent resistance.” A.R.S.

§ 13-1902(A). Given the totality of circumstances, this happened

only once, even though Cañez was in and out of the residence. The

entries occurred within minutes of each other and the victim was

the same each time. Cañez did not leave the property until his

crimes were complete. Accordingly, we reverse the conviction and

sentence on Count III, the second allegation of armed robbery.

VI. SUGGESTIVE IDENTIFICATION PROCEDURE

¶47 The only witness to the commission of the crimes at issue

was co-defendant Patterson. Cañez argues that the trial court

committed reversible error in admitting Patterson’s pretrial and

in-court identifications of Cañez. Patterson, who met Cañez for

the first time on the night of the murder, identified him as the

murderer from a single photograph provided by the police. Single

person identifications are inherently suggestive. State v.

Williams, 144 Ariz. 433, 439, 698 P.2d 678, 684 (1985). However,

even where the pretrial identification procedure is unduly

suggestive, reliable identifications will be admitted. Id. at 439-

40, 698 P.2d at 684. We assess an identification’s reliability

using the Biggers factors: (1) the witness’ opportunity to view,

22
(2) the witness’ degree of attention, (3) the accuracy of the

description, (4) the witness’ certainty, and (5) the time between

crime and confrontation. Neil v. Biggers, 409 U.S. 188, 199-200

(1972).

¶48 Patterson had an ample opportunity to view Cañez, having

spent several hours in his actual presence before, during, and

after the murder, including in close proximity while in the pickup

truck and while sharing drugs. Cañez commanded Patterson’s

undivided attention, both during the attack and when they talked

alone before and after. Patterson provided a detailed description,

which included a distinctive tattoo and identifications of Cañez’

truck and residence. Patterson was “very certain” of his

identification of Cañez’ photo. Finally, the identification was

made less than two days after the crime. All five Biggers factors

indicate reliability. Weighing against this is the fact that he

was shown only one photograph and asked, “Is this the guy who did

this?” or “Do you recognize this person?” We find Patterson’s

identification wholly reliable, despite the suggestive pretrial

identification procedure. Therefore, the trial court did not err

in admitting it.

VII. ADMISSION OF CAÑEZ’ STATEMENTS TO POLICE

¶49 Cañez argues that his statements to police following his

arrest should not have been admitted. The jury heard an edited and

redacted copy of the tape recorded interview, and the interviewing

23
officer testified as to its substance. Cañez claimed to have been

home on the night of the murder. He also said that his truck was

never driven because he could not drive a manual shift vehicle and

because the truck was unlicensed and had a hole in the windshield.

Cañez’ inability to drive a manual shift was corroborated by

several witnesses. His denial that he drove his truck was

contradicted by at least five witnesses, three of whom rode in the

truck with Cañez on the night of the murder.

A. Warrantless Arrest

¶50 When the police went to Cañez’ residence to arrest him,

they had neither a search warrant nor an arrest warrant. Cañez’

wife answered the door, and the officers asked to see Cañez. When

he did not appear promptly, two officers followed Cañez’ wife into

the house without her objection or express permission. The

officers told Cañez he needed to come outside and talk to them.

Once outside, they formally placed Cañez under arrest for first

degree murder.

¶51 Cañez argues that because his arrest was illegal, his

subsequent statement to the police should not have been admitted.

Because Cañez raises this issue for the first time on appeal, we

review only for fundamental error. The alleged illegality arises

from the fact that the police arrested Cañez in his home and

without a warrant. The state asserts, in a footnote without

authority or argument, that Cañez’ constitutional claims fail

24
because: (1) Cañez’ wife implicitly consented to the officers’

entry; (2) Cañez was not arrested in his home; (3) there were

exigent circumstances; and, (4) the taint from any violation was

attenuated. These issues could be deemed abandoned by the state’s

failure to argue them. Ariz. R. Crim. P. 31.13(c)(1)-(2); State v.

Blodgette, 121 Ariz. 392, 395, 590 P.2d 931, 934 (1979).

Nevertheless, because we are obliged to uphold the trial court’s

ruling if legally correct for any reason, we address each of the

state’s contentions. State v. Perez, 141 Ariz. 459, 464, 687 P.2d

1214, 1219 (1984).

¶52 The Fourth Amendment of the United States Constitution

protects individuals from “unreasonable searches and seizures.”

Because the invasion of the home is the chief evil to be prevented

by the Fourth Amendment, “searches and seizures inside a home

without a warrant are presumptively unreasonable.” Payton v. New

York, 445 U.S. 573, 585-86 (1980). In addition, Arizona’s

Constitution protects the home from official intrusion without

lawful authority. ARIZ. CONST. art. 2, § 8. Therefore, warrantless

entries of the home are per se unlawful absent exigent

circumstances or other clear necessity. State v. Bolt, 142 Ariz.

260, 265, 689 P.2d 519, 524 (1984). Any evidence obtained as a

result of such illegal searches and seizures is generally

inadmissible at trial, pursuant to the exclusionary rule. See Mapp

25
v. Ohio, 367 U.S. 643 (1949); Bolt, 142 Ariz. at 269, 689 P.2d at

528.

¶53 First, although the constitutional protections of the

home can be voluntarily waived, the record does not support the

state’s contention that Cañez’ wife consented to the entry. See

State v. Schad, 129 Ariz. 557, 563, 633 P.2d 366, 372 (1981). “In

determining whether or not there was a consent, it is necessary

that such a waiver or consent be proved by clear and positive

evidence in unequivocal words or conduct expressing consent

. . . .” State v. Kananen, 97 Ariz. 233, 235, 399 P.2d 426, 427

(1965). At the pretrial voluntariness hearing, one of the

detectives who entered the house was asked, “Did she invite you

in?” He answered, “She never said the words come in, I said

something about coming in, she turned and walked back into her

house and I followed her in.” This is not the unequivocal consent

required to permit police entry into the home.

¶54 Second, we find that Cañez was seized, for Fourth

Amendment purposes, when the officers confronted him in his

bathroom. “[T]he test is whether, in light of all the

circumstances, the police conduct would ‘have communicated to a

reasonable person that he was not at liberty to ignore the police

presence and go about his business.’” State v. Wyman, 197 Ariz.

10, 13, 3 P.3d 392, 395 ¶7 (App. 2000) (quoting Michigan v.

Chesternut, 486 U.S. 567, 569 (1988)). A reasonable person,

26
confronted in the bathroom of his own home by two police officers

advising him that he “needed to come outside,” would not feel free

to go about his business. Therefore, contrary to the state’s

assertion, Cañez was arrested in his dwelling.

¶55 Moreover, absent permission or exigent circumstances,

officers may not enter a home without a warrant. Bolt, 142 Ariz.

at 265-66, 689 P.2d at 524-25. Therefore, whether Cañez was

arrested when the officers came into his bathroom and asked him to

come outside to talk with them, or whether he was not under arrest

until he went outside and was formally arrested and handcuffed, is

of little importance. In either event, the officers unlawfully

entered his residence and any evidence obtained thereby was subject

to suppression.

¶56 Third, while it claims there were exigent circumstances

sufficient to justify the warrantless entry and arrest, the state

has not suggested what those circumstances might have been. Though

not an exhaustive list, we have recognized the following exigent

circumstances: response to an emergency; hot pursuit; potential

destruction of evidence; potential violence; and flight. State v.

White, 160 Ariz. 24, 32-33, 770 P.2d 328, 336-37 (1989). Here,

there was no emergency or pursuit. There may have been some worry

of violence, flight, or destruction of evidence since Cañez was

suspected of murder. However, the absence of a warrant exacerbated

any such fears because the delay between the entry and the police

27
alerting Cañez to their presence and their entry gave Cañez time to

prepare for resistance, flight, or the destruction of evidence.

This case is factually similar to State v. Ault in which the police

had probable cause to arrest but did not obtain a warrant before

entering the defendant’s home and seizing him. 150 Ariz. 459, 724

P.2d 545 (1986).

[T]he deputies chose not to legally arrest defendant at
his home . . . . The exigent circumstances alleged on
behalf of the state were created by the arresting
deputies. An arrest warrant could have been obtained and
defendant apprehended at his home. This was not done.

. . . .

[W]e cannot allow the creation of exigent circumstances
in order to circumvent the warrant requirement.

Ault, 150 Ariz. at 463, 724 P.2d at 549. The same reasoning

applies here to rule out an exigent circumstances justification for

the warrantless entry and arrest.

¶57 Finally, the state contends that even if the entry and

arrest were illegal, the taint on Cañez’ statement was sufficiently

attenuated that it should not be excluded as the fruit of the

poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 487-

88 (1963). The Supreme Court has addressed this question under

nearly identical circumstances. It held that where the police have

probable cause to arrest, but violate the defendant’s Fourth

Amendment rights by doing so in his home and without a warrant,

subsequent statements made “at the station house” are not fruits of

the illegal arrest. New York v. Harris, 495 U.S. 14, 20 (1990)

28
(“[T]he statement, while the product of an arrest and being in

custody, was not the fruit of the fact that the arrest was made in

the house rather than someplace else.”). Here, the state did not

obtain incriminating evidence as a result of the arrest being

effected illegally in Cañez’ home rather than legally elsewhere.

Therefore, because Cañez’ statement was made subsequently and

voluntarily at the police station, it was not tainted by the

illegal entry and arrest. Accordingly, the trial court did not err

in admitting it.

B. Miranda Warning

¶58 Cañez also argues that his statement to the police should

have been suppressed because it was obtained without a valid waiver

of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436

(1966). The interview began with the following exchange between

Cañez and the lead investigator, Detective Hercel Merchant.

Det. Merchant: Ok. Before we start, go any further ah,
I wanna read you your rights. You have the right to
remain silent. Anything you say can and will be used
against you in a court of law. You have the right to
talk to a lawyer, one will be appointed to represent you
before any questioning if you wish. Do you understand
each of these rights? You’re going to have to say yes or
no. Yes? Ok. Ah, are you willing to talk to me?

Cañez: Well, like I say, I don’t know what you’re
talking about.

Det. Merchant: I told you, it’s about . . .

Cañez: Ah . . .

Det. Merchant: that case. I would like for you . . .

29
 Cañez: You can ask me, you, whatever you want and I’ll,
you know, I’m, I’m gonna tell you the truth man ah, ah,
where I’ve been at, you know.

After a hearing, the court found the statement voluntary and

admissible. Such rulings will be disturbed on appeal only upon a

finding of clear and manifest error. State v. Prince, 160 Ariz.

268, 272, 772 P.2d 1121, 1125 (1989).

¶59 Cañez argues that he never stated that he understood or

waived his rights. However, Miranda rights are waived by conduct

where, as here, the defendant answers questions following Miranda

warnings. State v. Tapia, 159 Ariz. 284, 287, 767 P.2d 5, 8

(1988). Merchant’s question and inferred answer (“Yes? Ok.”)

suggest that Cañez indicated he understood his rights. In

addition, Cañez expressly consented to questioning and assured

Merchant that he would answer truthfully. This is sufficient to

uphold the trial court’s ruling under the manifest error standard.

Furthermore, Cañez does not point to any evidence that he was

incapable of understanding the warnings provided. In addition, the

fact that the defendant had significant experience with the

criminal justice system suggests that he understood his rights.

See id. The trial court’s ruling was not clearly erroneous.

C. Rule 403

¶60 Cañez also argued at trial that even if the substance of

his statement was otherwise admissible, it should not have been

presented to the jury by audiotape. He objected to the tape on the

30
ground that the state’s only reason for playing it was to prejudice

the jury by showcasing his thick accent, poor grammar, limited

education, and cocky, nonchalant attitude. He contends that the

danger of unfair prejudice in these respects substantially

outweighed the tape’s probative value. Ariz. R. Evid. 403(b).

Cañez relies heavily upon the argument that the substance of the

interview could have been presented by other means, such as the

transcript or the interviewing officer’s testimony. The state

counters that the tape provided the best evidence of what Cañez

said and how he said it.

¶61 Because the trial court is best situated to conduct the

Rule 403(b) balance, we will reverse its ruling only for abuse of

discretion. State v. Roscoe, 184 Ariz. 484, 493, 910 P.2d 635, 644

(1992). We conclude, however, that it would require a rare case

for the defendant’s own statement to be seen as prejudicial to the

extent it should be excluded under Rule 403. This is not that

case. Moreover, because the jury’s credibility determination would

be aided by hearing Cañez’ demeanor, the tape clearly had

substantial probative value. The trial court’s resolution of the

issue was reasonable. We find no abuse of discretion.

VIII. LIMITED CROSS-EXAMINATION

¶62 Cañez argues that the trial court violated his

constitutional right to confront the witnesses against him by

limiting his cross-examination of co-defendant Patterson. “[T]rial

31
judges retain wide latitude insofar as the Confrontation Clause is

concerned to impose reasonable limits on such cross-examination

based on concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness’ safety, or interrogation that

is repetitive or only marginally relevant.” Delaware v. Van

Arsdall, 475 U.S. 673, 679 (1986); see also State v. Fleming, 117

Ariz. 122, 125, 571 P.2d 268, 271 (1977) (“The right to

cross-examination must be kept within ‘reasonable’ bounds and the

trial court has discretion to curtail its scope.”). We evaluate

cross-examination restrictions on a case-by-case basis to determine

whether the defendant was denied the opportunity to present

evidence relevant to issues in the case or the witness’

credibility. Fleming, 117 Ariz. at 125, 571 P.2d at 271.

¶63 Prior to trial, the defense interviewed Patterson

extensively concerning his drug use since age nine. The state

filed a motion in limine to restrict cross-examination with respect

to such prior bad acts under Rule 608(b), Arizona Rules of

Evidence. The trial court partially granted the motion, ruling

that though defense counsel could not “start with him as a child

and go through his history using drugs,” cross-examination would be

permitted on his regular usage, the extent and effect of his use

the night of the murder, and his potential motive to commit these

crimes in order to buy drugs. The trial court found Patterson’s

more remote drug use irrelevant and unduly prejudicial.

32
¶64 Cañez contends that his inability to delve into

Patterson’s full drug history deprived him of his right to impeach

the witness and present his defense that Patterson had a motive to

commit the crimes. We disagree. The trial court expressly

permitted cross-examination on motive. The court also allowed

questioning concerning Patterson’s habitual drug use. Defense

counsel elicited from Patterson his usual drug use, his drug use

the night of the murder and the following day, his poor financial

circumstances, his inability to acquire drugs in the few days

before the murder, his purchase the next day of $20 of marijuana,

and his unclear and incomplete memory of much of the night. The

trial court only precluded questioning as to historical, “specific

instances of drug use and the length of time.” Despite this

restriction, Cañez was permitted to elicit facts necessary to

support his theory that Patterson was a drug addict in need of

money to support his habit. We find that the limits upon cross-

examination were entirely reasonable and did not prevent Cañez from

impeaching the witness or presenting a defense. There was no

confrontation clause violation.

IX. GRUESOME PHOTOGRAPHS

¶65 Cañez argues that the admission of gruesome photographs

deprived him of a fair trial and rendered the death penalty

unreliable. We review the admission of potentially inflammatory

photographs for clear abuse of discretion. State v. Murray, 184

33
Ariz. 9, 28, 906 P.2d 542, 561 (1995). Relevant photographs will

be excluded only if they are inflammatory and the risk of unfair

prejudice substantially outweighs their probative value. State v.

Dickens, 187 Ariz. 1, 18, 926 P.2d 468, 485 (1996); Ariz. R. Evid.

403.

¶66 “[A]ny photograph of the deceased in any murder case is

relevant to assist a jury to understand an issue 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)

(internal quotations and alterations omitted) (quoting State v.

Chapple, 135 Ariz. 281, 288, 660 P.2d 1208, 1215 (1983)). Cañez’

assertion that the photos were probative only of matters not in

dispute does not render them irrelevant as the state must carry its

burden of proof on uncontested issues as well as contested ones.

Dickens, 187 Ariz. at 18, 926 P.2d at 485.

¶67 Cañez objected to Exhibit 19, a photograph, on the ground

that it was cumulative and its prejudice outweighed its relevance.

The court overruled the objection and admitted the photo as

evidence of what Hale’s son saw upon entering the house. We do not

find the photo gruesome or inflammatory. It depicts the body lying

on the floor, partially obscured by boxes in a cluttered living

room. The victim’s shirt is blood-soaked, but neither his head nor

face is visible. This photo has little or no tendency to inflame

a jury. However, it likewise has little or no probative value

34
since the position of the body was not contested. Chapple, 135

Ariz. at 289, 660 P.2d at 1216. Because both the risk of prejudice

and the probative value were minimal, the former did not

substantially outweigh the latter. The trial court did not abuse

its discretion in admitting the photograph.

¶68 Cañez also objected to Exhibit 75 as unduly prejudicial

and irrelevant. The state offered the photo on re-direct to show

the position of the body as seen by the first officer on the scene.

The trial court admitted the photo upon a finding that it was not

unduly prejudicial or gruesome. The photo shows the body lying on

its side wearing a blood-soaked shirt with the bruised and bloodied

left arm partially obscuring the face. We do not find the photo

inflammatory or gruesome. Cañez concedes that corroboration of

witness testimony is a proper use of photographic evidence, but

argues that this photo was not corroborative because the officer

testified that it did not accurately depict his recollection of the

position of the head. The court recognized this discrepancy but

admitted the photo because it depicted the officer’s view upon

opening the door. Moreover, Cañez’ objection went to weight, not

admissibility. The photograph was probative to rebut the

defendant’s attempt to impeach the officer concerning the position

of the body. The trial court did not abuse its discretion.

¶69 Cañez also objected to the admission of Exhibits 32, 33,

and 34 -- large format head shots taken during the autopsy that

35
depict injuries to the victim’s face and head. The state offered

them to help the medical examiner in illustrating the wounds,

particularly those the doctor would testify were consistent with

the attacks described by Patterson. Cañez conceded their relevance

but argued that the photographs were unduly inflammatory in light

of the fact that the defense did not contest the injuries or the

manner in which they were inflicted. The defense argued that the

evidence should be presented verbally or by diagram to avoid

inflaming the jury. The trial court ruled that the photos were

relevant in illustrating the doctor’s testimony and that they were

not unduly gruesome. These are the most graphic photographs

presented, yet we do not find them gruesome or inflammatory. They

show the bruises and cuts to Hale’s face consistent with the

beating described by Patterson, but they are not “unduly

disturbing.” Cf. Spreitz, 190 Ariz. at 142, 945 P.2d at 1273

(finding abuse of discretion in admission of autopsy photos showing

decomposition and insect activity on the body); Chapple, 135 Ariz.

at 287, 660 P.2d at 1214 (finding abuse of discretion in admission

of photographs of “burned body, face and skull, the entry wound of

the bullet, a close-up of the charred skull with a large bone flap

cut away to show the red-colored, burned dura matter on the inside

rim of the skull”). Because the photographs’ probative value in

helping the jury understand the doctor’s testimony was not

36
substantially outweighed by their potential for prejudice, we find

no abuse of discretion.

X. PURCHASED TESTIMONY

¶70 Cañez argues that the admission of Patterson’s and the

Ramirezes’ testimonies violated his due process rights because the

state’s plea agreement with Patterson and its alleged efforts to

prevent the deportation of the Ramirezes amounted to purchasing

testimony in violation of Arizona law and professional ethics. The

state first responds that Cañez has waived this suppression

argument, including fundamental error review, for failure to make

a pretrial motion. However, we will review for fundamental error

even absent a pretrial motion to suppress. See, e.g., State v.

Jones, 185 Ariz. 471, 480-82, 917 P.2d 200, 209-11 (1996)

(reviewing admission of evidence for fundamental error despite

failure to raise arguments in motion to suppress).

¶71 Cañez contends that the state violated the statutory

prohibition on offering, conferring, or agreeing to confer “any

benefit upon a witness with the intent to . . . influence the

testimony of that person.” A.R.S. § 13-2802(A)(1). However, Cañez

points to no evidence that the state was attempting to influence

the testimony of either Patterson or the Ramirezes. The statute

prohibits only conferring benefits in an attempt to influence

testimony, not in order to obtain truthful testimony. See State v.

Dumaine, 162 Ariz. 392, 400-01, 783 P.2d 1184, 1192-93 (1989)

37
(finding that offer of favorable plea agreement did not violate

A.R.S. § 13-2802 or rules of professional ethics). The plea

agreement did not violate the statute.

¶72 With regard to the Ramirezes’ testimony, Cañez alleges

that the prosecutor wrote a letter to the INS on their behalf to

ensure that they would not be deported, at least until the trial

ended. The trial court ordered the letter disclosed, but it is not

in the record. However, the record supports the state’s

characterization of the letter as a mere inquiry into the

Ramirezes’ immigration status so that the state could seek a

deposition if there was a risk of unavailability. Once the state

was satisfied that their immigration status was such that

deportation was not a concern, it withdrew its motion for

depositions. No evidence suggests that the state sought to keep

the Ramirezes in this country or to alter their treatment by the

INS. Even if it had, nothing suggests that its intent in doing so

would have been to influence their testimony. On this record, we

conclude the INS letter did not violate the statute.

¶73 Ethical Rule 3.4(b) requires that lawyers “not . . .

falsify evidence, counsel or assist a witness to testify falsely,

or offer an inducement to a witness that is prohibited by law.”

Ariz. R. Sup. Ct. 42. Here, neither the plea agreement nor the INS

letter violated the statute, nor was there any evidence that the

38
prosecutor falsified evidence or sought false testimony.

Therefore, we discern no ethical violation.

¶74 Because the state obtained Patterson’s and the Ramirezes’

testimonies without violating the law or rules of ethics, we find

no error in their admission.

XI. REASONABLE DOUBT INSTRUCTION

¶75 Cañez argues that the court’s jury instruction on

reasonable doubt violated his rights to due process and jury trial

by impermissibly lowering the state’s burden of proof. Since Cañez

failed to object to the instruction, we will review only for

fundamental error.

¶76 The trial court gave the definition of reasonable doubt

mandated by this court: “Proof beyond a reasonable doubt is proof

that leaves you firmly convinced of the defendant's guilt.” State

v. Portillo, 182 Ariz. 592, 596, 898 P.2d 970, 974 (1995). Cañez

contends that “firmly convinced” is more suggestive of the lower

clear and convincing standard than it is of the beyond a reasonable

doubt standard. See State v. King, 158 Ariz. 419, 423, 763 P.2d

239, 243 (1988) (“[A] ‘firm belief or conviction’ is truer to the

clear and convincing standard . . . .”) (citing State v.

Turrentine, 152 Ariz. 61, 68, 730 P.2d 238, 245 (App. 1986) (“Clear

and convincing evidence is that measure or degree of proof that

will produce in the mind of the trier of facts a firm belief or

conviction as to the issue sought to be proved.”)). We have

39
previously rejected this argument. State v. Van Adams, 194 Ariz.

408, 418, 984 P.2d 16, 26 ¶29-30 (1999). We do so once again and

thereby reaffirm the Portillo instruction. The trial court did not

err.

SENTENCING ISSUES

I. CONSTITUTIONAL CHALLENGES TO CAPITAL SENTENCING SCHEME

A. Judicial Finding of Aggravating Circumstances

¶77 Cañez argues that Arizona’s capital sentencing scheme

violates his constitutional right to trial by jury as interpreted

by recent United States Supreme Court precedent. See Apprendi v.

New Jersey, 530 U.S. 466 (2000); Castillo v. United States, 530

U.S. 120 (2000); Jones v. United States, 526 U.S. 227 (1999).

Whatever the implications of these cases, this court is bound by

the Supreme Court’s decision upholding Arizona’s system of judicial

sentencing in capital cases. Walton v. Arizona, 497 U.S. 639

(1990). For a fuller treatment of the issue, see State v. Ring,

200 Ariz. 267, 278-80, 25 P.3d 1139, 1150-52 ¶¶40-44 (2001), and

State v. Harrod, 200 Ariz. 309, 318, 26 P.3d 492, 503 ¶¶40-44

(2001).

B. Untimely Notice of Aggravating Circumstances

¶78 Cañez argues that, as a matter of due process, he was

entitled to pretrial notice of the aggravating factors upon which

the state would rely. He asserts that this early notice is

required in order to afford capital defendants an opportunity to

40
rebut trial evidence which may also be relevant for aggravation.

See A.R.S. § 13-703(C) (any evidence admitted at trial may be

considered at sentencing). We once again reject this argument.

State v. Scott, 177 Ariz. 131, 141, 865 P.2d 792, 802 (1993); State

v. West, 176 Ariz. 432, 452-53, 862 P.2d 192, 212-13 (1993),

overruled on other grounds by State v. Rodriguez, 192 Ariz. 58, 63-

64 n.7, 961 P.2d 1006, 1011-12 n.7 ¶¶28-30 (1998); State v.

Richmond, 136 Ariz. 312, 315-16, 666 P.2d 57, 60-61 (1983); State

v. Ortiz, 131 Ariz. 195, 207-08, 639 P.2d 1020, 1032-33 (1981),

disapproved on other grounds by State v. Gretzler, 135 Ariz. 42, 57

n.2, 659 P.2d 1, 16 n.2 (1983). Even if this claim were not

foreclosed by our prior decisions, Cañez has failed to explain how

the nearly seven months between the state’s aggravation disclosure

in compliance with Rule 15.1(g), Arizona Rules of Criminal

Procedure, and the commencement of his sentencing hearing were

insufficient or otherwise prejudicial to his ability to rebut the

aggravation. We find no due process violation.

C. Judicial Finding of Prior Convictions

¶79 Cañez claims that Arizona’s sentencing scheme, which

provides for jury determinations of prior convictions in non-

capital cases but not in capital cases, is arbitrary and capricious

in violation of his rights to due process and equal protection

under the Fourteenth Amendment. We have expressly rejected this

argument. West, 176 Ariz. at 454, 862 P.2d at 214. Moreover, the

41
claim fails in its premise since non-capital defendants are no

longer statutorily entitled to a jury determination of prior

convictions. See A.R.S. § 13-604(P); State v. Quinonez, 194 Ariz.

18, 20, 976 P.2d 267, 269 (App. 1999) (finding revocation of

statutory right to jury trial on prior convictions constitutional).

¶80 In addition, Cañez contends that as an aggravating

circumstance, his prior convictions must be proven to a jury.

However, whatever the impact of Apprendi on Walton, it is clear

that prior convictions may be found by the court. Apprendi, 530

U.S. at 490 (“Other than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed

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

reasonable doubt.” (emphasis added)).

D. Victim’s Age as Aggravating Circumstance

¶81 Cañez argues that the victim’s age is an impermissible

aggravating factor because (a) the lives of children and the

elderly are not more valuable, (b) the legislature’s addition of

the aggravator expanded rather than narrowed the reach of the death

penalty, and (c) its application double counts the heinous, cruel,

or depraved aggravator. We have upheld the (F)(9) aggravator:

We find that the age of a victim is an appropriate
aggravating factor because a rational basis exists for
it. By adopting the (F)(9) factor, the legislature
determined that the young and old are especially
vulnerable and should be protected. It is not irrational
for the legislature to conclude that murders of children
and the elderly are more abhorrent than other

42
 first-degree murders. Thus, in the absence of sufficient
mitigating factors, murders of this sort should be
punished more severely. In addition, the age of the
victim is relevant to an inquiry into the defendant's
characteristics and propensities. Those who prey on the
very young or the very old are more dangerous to society.

State v. Smith, 193 Ariz. 452, 462, 974 P.2d 431, 441 ¶48 (1999).

¶82 As to double counting, we presume that, even where the

fact of the victim’s age is used in finding two aggravating

factors, trial courts will not count it twice when weighing

aggravation against mitigation. State v. Medina, 193 Ariz. 504,

512, 975 P.2d 94, 102 ¶25 (1999). Here, however, we need not

indulge the presumption since the trial judge explicitly made his

heinous, cruel, or depraved finding “without regard to the age of

the victim.” This aggravating circumstance was not weighed twice.

II. STATUTORY AGGRAVATING FACTORS

A. Prior Serious Convictions

¶83 Prior convictions of certain enumerated offenses

constitute an aggravating circumstance. A.R.S. § 13-703(F)(2),

(H)(1). Cañez argues that the state failed to prove his prior

convictions at the sentencing hearing. He does not appear to

contest the quantum of proof or the fact that his prior offenses

qualify as serious under the statute. Instead, he objects that the

evidence relied upon was admitted at the trial on prior convictions

rather than at the capital sentencing hearing.

43
¶84 Following the jury’s guilty verdicts, the court held a

bench trial on prior convictions. The prior offenses were

demonstrated by the admission, over Cañez’ evidentiary objections,

of records from the Pima County Superior Court and the Department

of Corrections. The state proved by fingerprint and photographic

evidence that Cañez was the offender. The court found beyond a

reasonable doubt that Cañez had four felony convictions in Pima

County Superior Court under CR-12633 and CR-12452 (in which three

felonies had been combined for prosecution as a single felony).

¶85 At the capital sentencing hearing, the state sought to

question a custodian of records from the Department of Corrections

to eliminate Cañez’ authentication objection to the DOC records

admitted at the prior conviction trial. The judge declined to hear

the witness, saying, “if I were wrong before [about the

admissibility of the documents], I’m wrong now; if I was right

before, I’m right now.” This decision also eliminated the need to

call an expert to testify that the DOC record fingerprint matched

that of Cañez since such testimony had been admitted at the prior

convictions trial. The court found beyond a reasonable doubt that

Cañez had been convicted of the serious offenses of first degree

burglary and aggravated robbery in CR-12452.

¶86 Despite the statutory provision that “[e]vidence admitted

at the trial, relating to such aggravating or mitigating

circumstances, shall be considered without reintroducing it at the

44
sentencing proceeding,” Cañez argues that the same evidence had to

be admitted again at the sentencing hearing. A.R.S. § 13-703(C).

He contends that the bench trial on prior convictions was not part

of the “trial” contemplated by § 13-703, but a hearing solely for

proving aggravation of the non-capital offenses under § 13-702. We

see no reason to read “trial” in § 13-703 so narrowly. Section 13-

703(C) obviates the need for re-introducing for sentencing purposes

evidence which has already properly been placed before the court.

Cañez’ limiting construction of the term “trial” as used in the

statute would frustrate the judicial economy objective of the

provision without any discernible offsetting gains in accuracy or

fairness.

¶87 The only case cited in support of refusing to use trial

evidence at sentencing is inapposite. In State v. Hensley, the

defendant was convicted upon stipulated evidence. 137 Ariz. 80,

89-90, 669 P.2d 58, 67-68 (1983). Because the parties had not

intended that the stipulated evidence be used at sentencing, we

remanded for a hearing at which the trial court could make findings

of fact based upon admissible evidence. Id. Here, in contrast,

the trial judge made findings of fact supported by evidence

properly before the court. Cañez claims to have thought that the

evidence of prior convictions admitted at the bench trial on prior

convictions would be used only for non-capital sentencing. In

light of the language of § 703(C), this was not a reasonable

45
assumption. Moreover, Cañez had ample opportunity to rebut the

prior conviction evidence at the capital sentencing hearing seven

months later.

¶88 Cañez also asserts without argument that the trial court

erred in admitting the documentary evidence of his prior

convictions. This issue may be deemed waived for failure to argue

it on appeal. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d

830, 838 (1995). Nevertheless, we note that the DOC record appears

to have been properly admitted as a self-authenticating document

because it is a public record bearing a signed certification by the

department’s custodian. Ariz. R. Evid. 902(2), (4). Similarly,

the copy of the minute entry reflecting Cañez’ convictions bears

the seal of the Pima County Superior Court and a signed

certification by the clerk of the court that it is a true copy. We

find no error in the admission of either document.

B. Elderly Victim

¶89 It shall be considered an aggravating circumstance where

the murder victim was at least 70 years old. A.R.S. § 13-

703(F)(9). Cañez argues that the trial court erred in admitting a

birth certificate to prove Hale’s age and that therefore the state

failed to prove this aggravating factor. At the sentencing

hearing, Cañez objected that the birth certificate lacked

authentication and contained hearsay. The trial court overruled

46
the objection without explanation. We find it unnecessary to

address the admissibility of the birth certificate.

¶90 The victim’s age need not be established by

documentation, such as a birth certificate or driver’s license, but

may be proven by the testimony of people who knew him. See Medina,

193 Ariz. at 511, 975 P.2d at 101 ¶23 (upholding finding of

victim’s age based upon testimony of girlfriend and medical

examiner, although the defendant also admitted the age in his

sentencing memorandum). Even without the birth certificate, the

uncontradicted evidence amply supports the trial court’s finding as

to Hale’s age. First, Hale’s son testified without objection to

Hale’s birthday (June 26, 1918) and age (77) as matters of family

history. See Ariz. R. Evid. 803(19). Second, the photographs of

Hale admitted at trial corroborated his age. Third, the coroner

testified without objection that the victim’s body was consistent

with that of a 77-year-old man. Finally, no evidence contradicted

the victim’s age. We agree with the trial court that the state

proved beyond a reasonable doubt that Hale was at least 70 years

old.

C. Pecuniary Gain

¶91 This aggravator requires a finding that “the defendant

committed the offense . . . in expectation of the receipt of

anything of pecuniary value.” A.R.S. § 13-703(F)(5).

Specifically, the state must prove that pecuniary gain was a

47
“motive, cause, or impetus for the murder and not merely the

result.” State v. Kayer, 194 Ariz. 423, 433, 984 P.2d 31, 41

(1999). This proof may be either by “tangible evidence or strong

circumstantial inference.” State v. Hyde, 186 Ariz. 252, 280, 921

P.2d 655, 683 (1996). Here, the record amply supports the trial

court’s findings “that the offense was motivated by the desire for

pecuniary gain and the objective was robbery of the victim; that

the death occurred in the course of and in furtherance of the

defendant’s efforts to obtain the victim’s property.”

¶92 The evidence supports, and Cañez does not dispute, the

trial court’s conclusion that the robbery was motivated by Cañez’

desire to get money for drugs. Yet Cañez contends that while the

robbery may have been motivated by pecuniary gain, the murder was

not. He attempts to distinguish the motive for the assaults from

the motive for the murder, arguing that because he did not intend

or need to kill in order to effect the robbery, pecuniary gain was

not a motive for the murder. Under this reasoning, because the

murder was assertedly not contemplated, it had no motive at all and

hence does not qualify for (F)(5) aggravation. Given the quantity

and quality of wounds inflicted, we find patently absurd the claim

that this victim’s death was unintentional.

¶93 More importantly, pecuniary gain aggravation does not

require a motive to kill. Aggravation under this factor may also

be based upon a causal connection between the pecuniary gain

48
objective and the killing. Kayer, 194 Ariz. at 433, 984 P.2d at 41

(holding that (F)(5) aggravation is established where pecuniary

gain was a “cause” of the murder). Thus, we have upheld the

pecuniary gain factor even where the killing may have been

unintentional. State v. Harding, 141 Ariz. 492, 500, 687 P.2d

1247, 1255 (1984) (upholding pecuniary gain factor where robbery

victim asphyxiated as a result of binding and gagging). Neither

does the fact that a killing is not necessary to effectuating the

underlying robbery preclude a pecuniary gain aggravation. State v.

Comer, 165 Ariz. 413, 429, 799 P.2d 333, 349 (1990). “When the

defendant comes to rob, the defendant expects pecuniary gain and

this desire infects all other conduct of the defendant.” State v.

LaGrand, 153 Ariz. 21, 35, 734 P.2d 563, 577 (1987). Thus, the

state need not prove the defendant intended beforehand to kill as

well as rob. Id. at 35-36, 734 P.2d at 577-78.

¶94 We recognize that “[a] murder committed in the context of

a robbery or burglary is not per se motivated by pecuniary gain.”

State v. Sansing, 200 Ariz. 347, 353, 26 P.3d 1118, 1124 ¶13

(2001). Nevertheless, killing the victim and sole witness of a

robbery is powerful circumstantial evidence of an intent to

facilitate escape or hinder detection and thus advance the

underlying pecuniary gain objective. See, e.g., State v. Hoskins,

199 Ariz. 127, 147, 14 P.3d 997, 1017 ¶87 (2000) (“When a robbery

victim is executed to facilitate the killer's escape and hinder

49
detection for the purpose of successfully procuring something of

value, the pecuniary gain motive is present.”); State v. Rockwell,

161 Ariz. 5, 14, 775 P.2d 1069, 1078 (1989) (even if committed

after property had been taken, “the murder was part and parcel of

the robbery because it resulted in eliminating the only witness to

the crime.”); State v. Correll, 148 Ariz. 468, 479, 715 P.2d 721,

732 (1986) (finding pecuniary gain aggravation where “the murders

were part of the overall scheme of the robbery with the specific

purpose to facilitate the robber’s escape.”). The inference is

particularly strong in cases, like this one, where the defendant

made no attempt to cover his face or otherwise conceal his identity

from the victim. State v. Greenway, 170 Ariz. 155, 165, 823 P.2d

22, 32 (1991) (finding pecuniary gain motive for murder of robbery

victim where defendant committed home invasion robbery without

attempting to cover his face despite knowing victims were inside).

¶95 We can conceive no nonpecuniary reason for Cañez to kill

this victim. Cañez assaulted Hale in order to secure his property,

and Hale’s death facilitated Cañez’ escape and hindered detection

of the robbery. Hale’s death was therefore directly caused by

Cañez’ desire for pecuniary gain and cannot be described as

accidental or unexpected such that (F)(5) aggravation might be

inappropriate. See State v. Trostle, 191 Ariz. 4, 18, 951 P.2d

869, 883 (1997) (“[A] significant consideration is whether the

50
killing was part of an overall robbery scheme, as opposed to being

unexpected or accidental.”).

¶96 This is not a case in which the robbery and murder can be

characterized as separate events for (F)(5) purposes. Sansing, 200

Ariz. at 353-54, 26 P.3d at 1126-27 ¶22 (finding murder committed

at least an hour after robbery a separate event). Where, as here,

the killing and robbery take place almost simultaneously, we will

not attempt to divine the evolution of the defendant’s motive in

order to discern when, or if, his reason for harming the victim

shifted from pecuniary gain to personal “amusement” or some other

speculative nonpecuniary drive. Medina, 193 Ariz. at 513, 975 P.2d

at 103 ¶31 (finding causal relationship between pecuniary gain

motive and murder attenuated by fact that killing was “removed in

time and place” from robbery) (quoting State v. Rinehardt, 190

Ariz. 579, 591, 951 P.2d 454, 466 (1997)).

¶97 We find beyond a reasonable doubt that Cañez’ desire for

pecuniary gain was a direct and immediate cause of the murder. The

trial court correctly found (F)(5) aggravation.

¶98 Cañez also argues that pecuniary gain was double counted

because it was both an aggravating factor of the felony murder and

an element of the underlying armed robbery. We have long since

rejected this argument because the pecuniary gain aggravator

requires factual findings apart from the elements of robbery.

State v. Carriger, 143 Ariz. 142, 161, 692 P.2d 991, 1010 (1984).

51
 D. Especially Cruel, Heinous, or Depraved Offense

¶99 Aggravation will be found where the offense was committed

in “an especially heinous, cruel or depraved manner.” A.R.S. § 13-

703(F)(6). Any one of the three elements will establish (F)(6)

aggravation. State v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10

(1983). Here, the trial court found the offense cruel as well as

heinous or depraved. On independent review, we find (F)(6)

aggravation established beyond a reasonable doubt due to the

cruelty of the attack.

1. Especially Cruel

¶100 The cruelty factor goes to the mental and physical

anguish suffered by the victim. State v. Clark, 126 Ariz. 428,

436, 616 P.2d 888, 896 (1980). Therefore, the victim must be

conscious for at least some of the wounds inflicted. State v.

Lopez, 163 Ariz. 108, 114-15, 786 P.2d 959, 965-66 (1990). The

state must also show that the defendant knew or should have known

that the victim would suffer. Trostle, 191 Ariz. at 18, 951 P.2d

at 883. Here, the court found that Hale was conscious at the time

of the initial stabbing and remained at least partially conscious

through the attempted strangulation and beating. The court

therefore concluded that Cañez “caused the victim pain and agony

for a sufficient period of time to constitute cruelty as defined by

law.”

52
¶101 On appeal, the state concedes that the evidence does not

support the trial court’s conclusion that the stab wounds preceded

the beating. Although in its closing argument the state argued

that the stabbing preceded the beating, the state now contends that

the evidence strongly suggests the stabbing came last. In either

event, the state believes the evidence supports the court’s finding

of mental and physical anguish. To demonstrate that Hale was

conscious throughout the robbery, the state offers the following

chronology based on Patterson’s testimony.

¶102 Cañez knocked on the door and forced his way in. From

outside, Patterson could hear a struggle. Cañez then opened the

door and told him to come in. As Patterson entered, he stepped

over Hale’s “squirming” body. When Patterson returned from loading

a television into the truck, he found Cañez strangling Hale with a

white cloth. Patterson turned to leave, but Cañez came to the door

and ordered him back in. When Patterson re-entered the house, he

saw Hale still moving on the ground. He also saw a folding knife

on a stand next to a chair (the police later found an open folding

knife, with a tiny amount of species-indeterminate blood on it,

lying on the chair). Patterson next saw Cañez strike Hale with his

fist and a frying pan. As Patterson left for the last time

carrying the stereo speakers, he stepped over Hale, who was raising

his right arm toward his head. The medical examiner testified that

this motion suggests Hale was conscious enough to feel pain in his

53
head. The medical examiner also testified that one of the stab

wounds was a defensive injury, indicating consciousness.

¶103 Cañez argues that the evidence does not prove beyond a

reasonable doubt that Hale remained conscious during the attack.

The medical examiner could not determine the order in which the

injuries were inflicted and testified that any of the ten blunt

force injuries to the head could have resulted in immediate

unconsciousness. Thus, Cañez argues that Hale may have been

unconscious from the first blow. In the alternative, Cañez notes

that the medical examiner also testified that one of the stab

wounds would have rendered Hale unconscious. Therefore, Cañez

concludes that whatever the order of injuries, Hale was probably

unconscious soon after attacks began. However, Patterson reported

seeing Hale moving at several points throughout the robbery. Thus,

whatever the sequence of attacks, the evidence demonstrates that

they did not result in sustained unconsciousness.

¶104 We concur with the trial court’s especial cruelty ruling.

This is not a case in which cruelty cannot be established because

one course of events consistent with consciousness is as likely as

another suggesting unconsciousness. See State v. Bolton, 182 Ariz.

290, 311, 896 P.2d 830, 851 (1995) (noting that a finding of

especial cruelty is precluded by inconclusive evidence of

consciousness). Patterson’s uncontroverted testimony indicates

that Hale was conscious throughout the robbery and assaults. This

54
is not a case in which the injuries were inflicted in quick

succession such that the victim had no opportunity to suffer or

contemplate his fate. Cf. State v. Soto-Fong, 187 Ariz. 186, 203-

04, 928 P.2d 610, 627-28 (1996). Instead, Cañez’ assaults were

punctuated by his removing property to the truck and ordering

Patterson to help in the theft. Finally, Cañez’ assertion that

Hale’s suffering did not constitute cruelty because it was not

intended or foreseeable is facially untenable. Cf. State v. Smith,

146 Ariz. 491, 504, 707 P.2d 289, 302 (1985) (finding no cruelty

because gunshot to the head could not reasonably be foreseen to

cause suffering). The state has carried its burden of proving

especial cruelty beyond a reasonable doubt.

2. Especially Heinous or Depraved

¶105 The trial court implicitly found the offense heinous or

depraved because the repeated attacks on the victim were

unnecessary to accomplishing the robbery, the victim was attacked

after he was rendered helpless, and the violence was gratuitous.

These findings are recognized factors for establishing heinousness

or depravity. Gretzler, 135 Ariz. at 52, 659 P.2d at 11. However,

heinousness or depravity aggravation must stand or fall with a

gratuitous violence finding because a showing of helplessness and

senselessness, without more, is not, as a matter of law,

sufficiently aggravating. Trostle, 191 Ariz. at 18, 951 P.2d at

883.

55
¶106 Violence beyond that necessary to kill is gratuitous.

Rinehardt, 190 Ariz. at 590, 951 P.2d at 465. Here, Cañez

attempted to strangle Hale, stabbed him six times, and delivered 21

blunt force injuries, ten of them to the head. He attacked Hale

with his fist, a frying pan, a laundry bag, and a knife. Cañez

argues that this violence was not grossly in excess of that

required to kill. This point is valid in light of the state’s

contention that the stabbing came last. On this interpretation of

the evidence, Cañez merely escalated his attacks until he succeeded

in killing Hale. Therefore, we cannot find beyond a reasonable

doubt that the violence exceeded that necessary to kill.

¶107 The trial court held the killing senseless because it was

unnecessary to the robbery. We agree. After incapacitating Hale

in the initial attack, Cañez could easily have removed the

property. He argues, without merit, that the killing cannot have

been both senseless and motivated by pecuniary gain. A murder is

senseless when unnecessary to the defendant’s criminal purpose.

State v. Lee, 189 Ariz. 608, 619, 944 P.2d 1222, 1233 (1997). The

purpose here was to take Hale’s property. Thus, there is no

inconsistency between the pecuniary gain objective and the

senselessness of the killing.

¶108 The trial court also found that the victim was helpless.

We agree. Helplessness is present when the victim is unable to

resist. Hyde, 186 Ariz. at 281, 921 P.2d at 684 (finding

56
helplessness where elderly victims had been subdued prior to most

vicious attacks). Here, the initial assault rendered Hale

incapable of resistance. The mere presence of a defensive stab

wound does not show that the victim was capable of resisting. See

State v. Miller, 186 Ariz. 314, 324, 921 P.2d 1151, 1161 (1996)

(attempt to resist does not preclude finding of helplessness).

¶109 Although we agree that the victim was helpless and the

killing senseless, these factors alone are not enough.

Accordingly, we cannot concur in the trial court’s finding of

heinousness or depravity. The defendant’s state of mind simply

does not rise to that level on this record. See Trostle. We

therefore conclude that evidence is not sufficient to justify a

finding of heinousness or depravity as an aggravating circumstance.

III. MITIGATING CIRCUMSTANCES

¶110 The sentencing court must “consider as mitigating

circumstances any factors . . . which are relevant in determining

whether to impose a sentence less than death, including any aspect

of the defendant’s character, propensities or record and any of the

circumstances of the offense.” A.R.S. § 703(G); see also Lockett

v. Ohio, 438 U.S. 586, 604 (1978). However, “it is not required to

find that evidence to be mitigating. If it does find that the

evidence is mitigating, the weight to be given that evidence is

within its discretion.” State v. Gonzales, 181 Ariz. 502, 515, 892

P.2d 838, 851 (1995). The defendant bears the burden of proving

57
mitigation circumstances by a preponderance of the evidence. State

v. McMurtrey, 143 Ariz. 71, 72-73, 691 P.2d 1099, 1100-01 (1984).

A. Statutory Mitigation

¶111 Arizona’s capital sentencing statute provides that it

shall be a mitigating factor if the “defendant’s capacity to

appreciate the wrongfulness of his conduct or to conform his

conduct to the requirements of law was significantly impaired.”

A.R.S. § 13-703(G)(1). This was the only statutory mitigation

advanced at trial or on appeal. Cañez argues that the trial court

erred in finding that he was not “significantly impaired.” In

support of this factor, Cañez points to evidence that he was

mentally retarded, was taking medication for seizures, suffered a

depressive disorder, had little education, was illiterate,

exhibited symptoms of brain damage, was probably a drug addict, and

was intoxicated at the time of the offense.

¶112 Cañez’ primary contention is that his intoxication and/or

craving for drugs at the time of the murder was enough to establish

(G)(1) mitigation. Although Cañez was using crack cocaine the

night of the murder, there was no evidence of his degree of

intoxication nor “that it overwhelmed his ability to control his

physical behavior.” State v. Stanley, 167 Ariz. 519, 530-31, 809

P.2d 944, 955-56 (1991) (upholding finding of no (G)(1) mitigation

and contrasting with State v. Rossi II, 154 Ariz. 245, 250-51, 741

P.2d 1223, 1228-29 (1987), in which there was uncontroverted expert

58
testimony that defendant’s addiction was so great that his “whole

personality began to evolve around the use of cocaine”). Here,

Cañez was in control of himself to the extent that he drove away

from the scene of the crime with his headlights turned off and went

home to clean up and change clothes after selling Hale’s property.

See Rinehardt, 190 Ariz. at 591-92, 951 P.2d at 466-67.

¶113 The evidence of brain damage, mental illness, and

retardation was conflicting. Three psychological experts evaluated

Cañez. First, Cañez’ psychological expert, Dr. Tatro, examined him

on June 10, 1998. He diagnosed borderline personality disorder

with antisocial features, intermittent explosive personality

disorder, depressive disorder recurrent, and possible organic brain

syndrome. Next, on referral by Tatro, Dr. Blackwood examined Cañez

specifically for neuropsychological problems (brain damage or

dysfunction) on July 21, 1998. His finding of indications of

organic brain damage was qualified due to suggestions that Cañez

may not have been trying at the tests. Finally, the state’s

psychological expert, Dr. Youngjohn, evaluated Cañez on August 6,

1998. Youngjohn found no evidence of mental illness or brain

damage, but diagnosed antisocial personality disorder and the

closely related psychopathic personality disorder. He found Cañez

a dangerous person who is likely to re-offend. Youngjohn also

testified that his, Blackwood’s, and Tatro’s testings all indicated

that Cañez was probably “faking it” to exaggerate symptoms. Tatro

59
did not test for malingering, but, based upon his clinical

interview, he opined that Cañez was trying as hard as he could.

Youngjohn determined that when Cañez’ intelligence, as tested by

both Tatro and himself, was adjusted for socioeconomic background,

it fell within the average range. Tatro did not deem such an

adjustment necessary.

¶114 “The trial judge has broad discretion in determining the

weight and credibility given to mental health evidence.” State v.

Doerr, 193 Ariz. 56, 69, 969 P.2d 1168, 1181 ¶64 (1998). On

independent review, we accord great deference to the trial court’s

conclusions because the “trial judge is in the best position to

evaluate credibility and accuracy, as well as draw inferences,

weigh, and balance.” Hoskins, 199 Ariz. at 149, 14 P.3d at 1019

¶97 (internal quotations omitted) (quoting State v. Bible, 175

Ariz. 549, 609, 858 P.2d 1152, 1212 (1993)). Presented with

conflicting psychological evidence, the trial court credited

Youngjohn, who agreed with Tatro’s antisocial personality disorder

diagnosis but not his borderline personality disorder diagnosis.

In any event, both personality disorders are insufficient to

establish (G)(1) mitigation. See Hoskins, 199 Ariz. at 149, 14

P.3d at 1019 ¶96 (agreeing with trial court that antisocial and

borderline personality disorders are conduct disorders not

sufficient to establish (G)(1) mitigation). Moreover, despite any

psychological problems, the evidence demonstrates that Cañez

60
understood the wrongfulness of his conduct. We agree with the

trial court’s conclusion that this statutory mitigating factor is

not present because Cañez was not significantly impaired.

B. Non-Statutory Mitigation

¶115 Cañez argues that the trial court improperly rejected

each of his proposed bases for non-statutory mitigation.

1. Drug and Alcohol Use

¶116 The court found that though Cañez was somewhat impaired,

there was not “a sufficient connection between the use of alcohol

or drugs and the offense for this to constitute a sufficiently

mitigating factor.” Cañez argues that his impairment due to

intoxication, even if not sufficient for statutory mitigation,

should be considered. However, a causal nexus between the

intoxication and the offense is required to establish non-statutory

impairment mitigation. Kayer, 194 Ariz. at 438, 984 P.2d at 46

¶54. Cañez offered no evidence of the degree of his intoxication,

its connection with his actions, or any resulting impairment. A

possibility of impairment will not suffice. Id. We agree with the

trial court that this factor is, at best, minimally mitigating.

2. Felony Murder

¶117 The court found the felony murder conviction not a

“sufficiently mitigating circumstance” because it determined beyond

a reasonable doubt that Cañez personally killed Hale and that his

conduct was intentional. Contrary to Cañez’ assertion, this

61
finding is clearly supported by the evidence. A conviction for

felony murder is not mitigating when, as here, the “defendant

intended to kill or knew with substantial certainty that his action

would cause death.” West, 176 Ariz. at 450, 862 P.2d at 210

(internal quotations and alterations omitted). We find the felony

murder conviction not mitigating.

3. Defendant’s Good Character

¶118 The court found that Cañez had not proven his good

character by a preponderance of the evidence. Cañez contends that

this factor was dismissed out of hand. However, he points to no

evidence in support of his alleged good character. To the

contrary, his prior convictions argue against a finding of good

character. See Gonzales, 181 Ariz. at 515, 892 P.2d at 851. We

find this factor unproven.

4. Traumatic Childhood and Dysfunctional Family

¶119 The trial court acknowledged that Cañez had endured

“violence, suicide, mental illness, and poverty” as a child, but

determined that these experiences were “not sufficiently connected

to his conduct at the time of the offense to constitute a

substantial relevant mitigating circumstance.” A defendant’s

difficult childhood is mitigating only where causally connected to

his offense. State v. Clabourne II, 194 Ariz. 379, 387, 983 P.2d

748, 756 ¶35 (1999). Tatro suggested that Cañez may have killed

this elderly victim out of displaced rage toward his abusive

62
parents.1 However, such a tenuous, speculative nexus is

insufficient to constitute significant mitigation. See Hoskins,

199 Ariz. at 151-52, 14 P.3d at 1021-22 ¶¶113, 115. We find this

factor unproven.

5. Defendant’s Love of Family

¶120 The trial court found that Cañez had loving relationships

with family members but did not find this fact a “substantial

relevant mitigating circumstance.” Loving family relationships are

mitigating. Trostle, 191 Ariz. at 22, 951 P.2d at 887. However,

like the trial court, we find that this factor carries little

weight.

6. Mental Illness or Impairment

¶121 The court found that Cañez had a personality disorder and

low average intelligence or borderline mental retardation.2

Nevertheless, the court found that Cañez possessed “sufficient

intelligence to make reasonable judgments regarding his conduct.”

Neither his personality disorder nor his intelligence were judged

a “sufficiently mitigating factor to call for leniency.” The trial

1
Among other things, as the sixth of nine children, Cañez was
frequently chained by his hands to a table or bed when he
misbehaved, began using marijuana at age 7, began using heroin at
age 13, witnessed his father attempt suicide with a knife, and saw
substantial intra-family violence, including shootings.
2
Mitigation evidence showed a family history of epilepsy and
mental health problems, including the suicides of Cañez’ father and
brother. Cañez reportedly attempted suicide three times while a
teenager.

63
court heard expert testimony that Cañez’ personality disorder(s)

may have led him to impulsive, explosive, or psychotic reactions

when under stress. However, this fact is entitled to little weight

since Cañez brought the stress upon himself by electing to commit

the robbery.

¶122 “[T]he weight to be given mental impairment should be

proportional to a defendant's ability to conform or appreciate the

wrongfulness of his conduct.” Trostle, 191 Ariz. at 21, 951 P.2d

at 886. Here, this factor is entitled to little weight because, as

noted in our (G)(1) discussion, the court found, and the evidence

demonstrates, that Cañez appreciated the wrongfulness of his

conduct. Moreover, Cañez has failed to establish a causal link

between any propensity to lose control and the robbery which he had

in mind for at least several hours before carrying it out. See

Kayer, 194 Ariz. at 438, 984 P.2d at 46 ¶54 (causal nexus between

mental disorder and crime required for mitigation). We agree with

the trial court that this factor is insufficient to call for

leniency.

7. Defendant’s Good Conduct in Court

¶123 The court found defendant’s conduct, though appropriate,

not a relevant mitigating factor. We agree. See Trostle, 191

Ariz. at 22, 951 P.2d at 887.

8. Disparate Sentence of Co-Defendant

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¶124 “A disparity in sentences between co-defendants and/or

accomplices can be a mitigating circumstance if no reasonable

explanation exists for the disparity.” Kayer, 194 Ariz. at 439,

984 P.2d at 47 ¶¶57-58. Here, Patterson, Cañez’ co-defendant,

received a sentence of only ten years. The court did not find this

fact mitigating because Patterson’s lesser sentence was justified

by his minor “participation in the offense, his lack of any prior

record, his cooperation with law enforcement and his agreement to

testify.” In contrast, Cañez has a substantial criminal record,

lied to the police, and was found to be the only killer. The trial

court correctly found the disparity in this case reasonable and

hence not mitigating. See Kayer, 194 Ariz. at 439, 984 P.2d at 47

¶¶57-58 (no sentence disparity mitigation where co-defendant

entered plea agreement, provided evidence, and was not the actual

killer).

9. Cumulative Mitigation

¶125 Cañez also contends that because each factor was rejected

individually, the court improperly failed to consider their

cumulative effect. However, in its Special Verdict the trial court

explicitly held that “the cumulative effect of all of the

mitigation offered by the defendant . . . is not sufficiently

substantial to call for leniency.”

IV. INDEPENDENT REWEIGHING

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¶126 We re-weigh all factors, both aggravating and mitigating.

In light of the four statutory aggravating circumstances

established beyond a reasonable doubt, the absence of statutory

mitigation, and the minimal weight of the non-statutory mitigating

circumstances, we independently conclude that the mitigating

circumstances are insufficient to call for leniency. In reaching

this conclusion, we are aware that our decision today removes the

depravity and heinousness component of (F)(6). Even with that

removal, however, the remaining (F)(6) cruelty finding,

particularly when coupled with the other aggravators, carries

sufficient weight to uphold the defendant’s sentence.

¶127 Although Cañez does not raise the issue on appeal, we

note that because the trial court found, and we agree, that Cañez

personally killed Hale, Enmund v. Florida, 458 U.S. 782 (1982), and

Tison v. Arizona, 481 U.S. 137 (1987), are satisfied.

CONSTITUTIONAL CLAIMS RAISED TO PREVENT FEDERAL PRECLUSION

¶128 1. The death penalty is per se cruel and unusual

punishment. Rejected by Gregg v. Georgia, 428 U.S. 153, 186-87

(1976); State v. Salazar, 173 Ariz. 399, 411, 844 P.2d 566, 578

(1992).

¶129 2. Execution by lethal injection is cruel and unusual

punishment. Rejected by State v. Hinchey, 181 Ariz. 307, 315, 890

P.2d 602, 610 (1995).

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¶130 3. The statute unconstitutionally requires imposition of

the death penalty whenever at least one aggravating circumstance

and no mitigating circumstances exist. Rejected by State v.

Bolton, 182 Ariz. 290, 310, 896 P.2d 830, 850 (1995).

¶131 4. The death statute is unconstitutional for its failure

to permit defendants to “death qualify” the sentencing judge.

Rejected by State v. West, 176 Ariz. 432, 454-55, 862 P.2d 192,

214-15 (1993), overruled on other grounds by State v. Rodriguez,

192 Ariz. 58, 63-64 n.7, 961 P.2d 1006, 1011-12 n.7 ¶¶28-30 (1998).

¶132 5. The death statute is unconstitutional because it

fails to guide the sentencing court. Rejected by State v. Van

Adams, 194 Ariz. 408, 422, 984 P.2d 16, 30 ¶55 (1999).

¶133 6. Arizona’s death statute unconstitutionally requires

defendants to prove that their lives should be spared. Rejected by

State v. Fulminante, 161 Ariz. 237, 258, 778 P.2d 602, 623 (1988).

¶134 7. The statute unconstitutionally fails to require

either cumulative consideration of multiple aggravating factors or

that the trial court make specific findings as to each mitigating

factor. Rejected by Van Adams, 194 Ariz. at 422, 984 P.2d at 30

¶55.

¶135 8. Arizona’s statutory scheme for considering mitigating

evidence is unconstitutional because it limits full consideration

of that evidence. Rejected by State v. Mata, 125 Ariz. 233, 242,

609 P.2d 48, 57 (1980).

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¶136 9. The mitigation statute is unconstitutional because

there are no statutory standards for weighing. Rejected by State

v. Atwood, 171 Ariz. 576, 645-46 n.21, 832 P.2d 593, 662-63 n.21

(1992), disapproved on other grounds by State v. Nordstrom, 200

Ariz. 229, 241, 25 P.3d 717, 729 ¶25 (2001).

¶137 10. Arizona’s capital sentencing statute insufficiently

channels the sentencer’s discretion in imposing death sentences.

Rejected by West, 176 Ariz. at 454, 862 P.2d at 214.

¶138 11. Arizona’s death statute is unconstitutionally

defective because it fails to require the state to prove that death

is appropriate. Rejected by State v. Gulbrandson, 184 Ariz. 46,

72, 906 P.2d 579, 605 (1995).

¶139 12. The prosecutor’s discretion to seek the death

penalty unconstitutionally lacks standards. Similar claim rejected

by Salazar, 173 Ariz. at 411, 844 P.2d at 578.

¶140 13. Arizona’s death sentence has been applied

arbitrarily and in a discriminatory manner against impoverished

males whose victims have been Caucasian. Discriminatory

application claim rejected by West, 176 Ariz. at 455, 862 P.2d at

215. Arbitrary application claim rejected by State v. Lee, 185

Ariz. 549, 553, 917 P.2d 692, 696 (1996).

¶141 14. The constitution requires proportionality review of

a defendant’s death sentence. Rejected by Salazar, 173 Ariz. at

416, 844 P.2d at 583.

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¶142 15. There is no meaningful distinction between capital

and non-capital cases. Rejected by Salazar, 173 Ariz. at 411, 844

P.2d at 578.

CONCLUSION

¶143 For the reasons set forth, we reverse the conviction of

one count of armed robbery and affirm all remaining convictions and

sentences.

_________________________________
Charles E. Jones
Chief Justice

CONCURRING:

____________________________________
Ruth V. McGregor, Vice Chief Justice

____________________________________
Stanley G. Feldman, Justice

____________________________________
Thomas A. Zlaket, Justice

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