State v. Lujan

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

BRANDON MICHAEL LUJAN, Appellant.

No. 1 CA-CR 24-0443

FILED 12-18-2025

Appeal from the Superior Court in Maricopa County
No. CR2021-129581-001
The Honorable Joseph S. Kiefer, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee

Maricopa County Legal Advocate’s Office, Phoenix
By Michelle Dewaelsche
Counsel for Appellant
 STATE v. LUJAN
Decision of the Court

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Kent E. Cattani joined.

T H U M M A, Judge:

¶1 Defendant Brandon Lujan (Lujan) appeals his convictions and
natural life prison sentences for murdering his brother, M.L., his father,
L.L., and his mother, I.L.1 Lujan argues that specific acts of prosecutorial
error and cumulative error deprived him of his rights to due process, to
present a defense and to a fair trial. Lujan also argues the superior court
erred in denying his motion to preclude late disclosure of witness testimony
and in denying his requested jury instructions and related motion for a
mistrial. Because Lujan has shown no error, his convictions and sentences
are affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 Just before midnight on August 7, 2021, Lujan arrived at his
parents’ home in Phoenix with his wife and two children. Once there, Lujan
shot and killed his brother outside the home and shot and killed his mother
and father inside the home. Lujan’s wife drove away with their two
children. Lujan then apparently brought his brother’s body inside the home
and left. A neighbor who heard the shots called 9-1-1, but responding
officers could not locate where the shots came from.

¶3 The next day, Lujan checked himself into the United States
Department of Veterans Affairs hospital, reporting that he was suffering
from anger issues. Lujan was provided a room and, after speaking with
several workers there, he confessed to a nurse that he had killed his family.
When Phoenix Police Officers arrived, Lujan told them he shot his brother,
mother and father the day before. Officers went to Lujan’s parents’ home
and confirmed his parents and his brother had been shot and were dead.
Lujan was arrested and indicted on three counts of first-degree murder. He
has remained in custody ever since.

1 Initials are used to protect the victims’ and witness’ privacy. State v.

Maldonado, 206 Ariz. 339, 341 n.1 ¶ 2 (App. 2003).

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¶4 The case was designated complex, and the trial was continued
several times, including time to determine whether a guilty except insane
(GEI) defense was viable. In April 2023, the court granted Lujan’s request
for evaluation related to a possible GEI defense. See Ariz. Rev. Stat. (A.R.S.)
§ 13-502 (2025).2

¶5 On April 30, 2024, a week before trial, the State provided a
supplemental disclosure about statements made in a second interview of
Lujan’s brother, T.L. T.L. indicated that when he was interviewed years
earlier (soon after his parents and brother were shot) he was still in shock
from their deaths. Specifically, during cross-examination, when T.L. was
asked why he initially said Lujan never abused alcohol and drugs, T.L.
mentioned the detectives “came to me slightly under two weeks from when
my family was murdered” and he “just wanted to answer their questions
because [he] had a lot [he] was dealing with.”

¶6 T.L. stated that, having thought further, and after speaking
with the police, he had revealed additional information in his second
interview. Among other things, T.L. told officers (contrary to his initial
interview) that Lujan used methamphetamine. T.L. explained that his
motivation to come forward with this new information stemmed from him
remembering “the severity of [Lujan] getting away with things that he
always got away with again.”

¶7 On May 1, 2024, Lujan filed a motion arguing T.L. should “be
strictly prohibited from testifying to anything contained in the attached
eleventh-hour supplement.” The court denied the motion, noting the
disclosure was “arguably six or seven days prior to the trial date” and there
was “fair time and opportunity here to prepare for and respond to even this
new disclosure.”

¶8 During the 19-day trial, which began on May 6, 2024, the State
presented testimony from various witnesses about Lujan’s strained
relationships with his family and wife, and his previous encounters with
law enforcement. The defense countered and mentioned Lujan’s alleged
military sexual trauma (MST), and relied on their theory, through expert
testimony, that Lujan met the GEI criteria.

2 Absent material revisions after the relevant dates, statutes and rules cited

refer to the current version unless otherwise indicated.

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¶9 Lujan moved for a mistrial, arguing that testimony by T.L.
and the State’s expert, Dr. Dana Kirby, misstated the law. The court denied
the motion. The court also denied Lujan’s requested corrective jury
instruction, relying instead on the court’s standard final instructions. The
jury deliberated and found Lujan guilty of all three counts of first-degree
murder, rejecting his GEI defense for all three counts. Lujan was sentenced
to natural life in prison on all three convictions This court has jurisdiction
over Lujan’s timely appeal pursuant to Article 6, Section 9, of the Arizona
Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031 and 13-4033(A).

DISCUSSION

I. Lujan Has Not Shown Reversible Error Resulting from
Prosecutorial Error.

¶10 Lujan argues that the State engaged in numerous instances of
prosecutorial error3 by “asking argumentative questions that impugned the
integrity of a defense expert; attempting to mislead the jury; misstating the
evidence in closing; and vouching.” “To prevail on a claim of prosecutorial
misconduct, a defendant must demonstrate that the prosecutor’s
misconduct ‘so infected the trial with unfairness as to make the resulting
conviction a denial of due process.’” State v. Morris, 215 Ariz. 324, 335 ¶ 46
(2007) (citation omitted); see also State v. Murray, 250 Ariz. 543, 548 ¶ 13
(2021). “Prosecutorial misconduct constitutes reversible error only if (1)
misconduct exists and (2) ‘a reasonable likelihood exists that the
misconduct could have affected the jury’s verdict, thereby denying
defendant a fair trial.’” Morris, 215 at 335 ¶ 46 (citation omitted); see also
State v. Hughes, 193 Ariz. 72, 80 ¶ 32 (1998) (similar).

3 Lujan alleges several instances of prosecutorial error, which he often refers

to as misconduct. However, the Arizona Supreme Court recognized the
difference between the terms and noted “courts should differentiate
between ‘error,’ which may not necessarily imply a concurrent ethical rules
violation, and ‘misconduct,’ which may suggest an ethical violation.”
Matter of Martinez, 248 Ariz. 458, 470 ¶ 47 (2020). Given the distinction
between the two, this court uses “error” throughout, given that the
prosecutor’s conduct appears better characterized as alleged error. See State
v. Murray, 250 Ariz. 543, 548 ¶ 12 (2021).

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¶11 The standard of review depends on whether Lujan objected.
See State v. Gallardo, 225 Ariz. 560, 568 ¶ 35 (2010) (citing cases). If Lujan
objected, this court reviews for harmless error, which means the court
reviews for error, but will not reverse if the State establishes beyond a
reasonable doubt that the error did not contribute to or affect the verdict.
Id. If Lujan did not object, this court reviews for fundamental error. Id.
Fundamental error is error that goes to the foundation of the case and
“‘takes from the defendant a right essential to his defense.’” State v.
Escalante, 245 Ariz. 135, 140 ¶ 13 (2018) (citation omitted). For fundamental
error, Lujan has the burden to establish that (1) error occurred, (2) the error
was fundamental and (3) the error caused him prejudice. State v. James, 231
Ariz. 490, 493 ¶ 11 (App. 2013) (citing cases).

A. The State’s Examination of Lujan’s “Cold” Expert Was Not
Prosecutorial Error.

¶12 Lujan called psychologist Dr. Aleksandr Levitan to testify as
a “cold” expert about MST. See State v. Salazar-Mercado, 234 Ariz. 590, 592 ¶
6 (2014) (concluding Arizona Rule of Evidence 702 “does not bar ‘cold’
experts from offering general, educative testimony to help the trier of fact
understand evidence or resolve fact issues.”). Lujan argues that, on cross-
examination, the State asked Dr. Levitan “exceedingly general and
irrelevant questions about the military.” Those questions, Lujan notes,
included “how many people are in the military right now?”, “[h]ow many
active service members are there right now in the military?” and “[w]hat
are the branches of the military?” Lujan claims that these questions
improperly undercut his GEI defense, “made a mockery” of Dr. Levitan and
implied that he “was incompetent and unprepared to testify.” Lujan also
argues that Dr. Levitan did not rely on the information sought in these
questions, which were “irrelevant to” MST.

¶13 Lujan did not object to these questions, meaning this court
will review for fundamental error resulting in prejudice. Gallardo, 225 Ariz.
at 568 ¶ 35 (citing cases). Lujan has shown no fundamental error. Given Dr.
Levitan’s direct testimony “as an expert in military sexual trauma,” the
States’ questions about demographics of the military on cross-examination
were not irrelevant or unsupported by admissible evidence. See Ariz. R.
Sup. Ct. 42, ER 3.4(e). Moreover, it is not unreasonable to believe that an
expert testifying about MST would have such knowledge of the military.
See State v. Bailey, 132 Ariz. 472, 478 (1982). Thus, Lujan has shown no
prosecutorial error regarding the State’s questions during cross-
examination, of Dr. Levitan. Gallardo, 225 Ariz. at 568 ¶ 35 (citing cases).

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B. Lujan Has Not Shown That the State Misled the Jury.

¶14 Lujan next argues that the State “elicited false and misleading
testimony from material witnesses and failed to notify the court of the error
or to correct the testimony” in violation of Napue v. Illinois, 360 U.S. 264
(1959). Napue held that a “conviction knowingly ‘obtained through use of
false evidence’” violates due process. Glossip v. Oklahoma, 604 U.S. 226, 246
(2025). To show such a due process violation requiring a new trial, Lujan
has the burden to show “that the prosecution knowingly solicited false
testimony or knowingly allowed it ‘to go uncorrected when it appear[ed].’”
Id. Lujan has failed to do so here.

¶15 Lujan first argues that the State misled the jury when it asked
a detective whether “a pipe was found on [Lujan]” during an unrelated
arrest in Eloy, with the detective answering, “I believe so.” The State did
not ask any follow-up about the pipe. Arguing that the pipe was tested and
marijuana was found on the pipe, Lujan argues this exchange “can only
have been a ploy to mislead the jury in the hope that defense counsel would
not address it on redirect.”

¶16 Lujan’s counsel did not object to this question, meaning this
court reviews for fundamental error resulting in prejudice. See Gallardo, 225
Ariz. at 568 ¶ 35 (citing cases). Counsel did address the issue on redirect,
however, asking the detective whether he was “aware that the pipe was
tested and what the results were that were on the pipe?” (he answered
“No.”) and then asked, “So you’re not aware that it was marijuana on the
pipe?” (again, the detective answered “No.”). After being given the police
report to review, the detective confirmed that the pipe tested positive for
marijuana.

¶17 Lujan asserts that, even though defense counsel corrected the
claimed error, this “does not alleviate the prejudice to the defense.” Lujan
speculates that the efforts of his trial attorney, on redirect, were “likely to
have appeared combative to jurors. Thus, the actions defense counsel had
to take to correct the error inured to [Lujan’s] detriment by casting counsel
in an unfavorable light.” But Lujan cites nothing in the record to support
this “unfavorable light” suggestion. Moreover, because Lujan resolved any
inaccurate implication on redirect, he fails to show that any false testimony
went uncorrected, resulting in fundamental error or a denial of his due
process rights. See Glossip, 604 U.S. at 246; Gallardo, 225 Ariz. at 568 ¶ 35
(citing cases).

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¶18 Lujan next argues that the State misled the jury when it asked
Dr. Jack Potts, a forensic psychiatrist, called to support his GEI claim,
questions relating to Arizona Rule of Criminal Procedure 11, which governs
competency proceedings. Lujan argues that, because there had never been
a Rule 11 evaluation in this case, the State’s “questions could only have been
intended to mislead the jury into inferring that Dr. Potts did not review all
of the records.”

¶19 During his direct testimony, Dr. Potts mentioned Rule 11
when asked to explain “competency and restoration.” When defense
counsel later asked, “to spell that out” and describe “what we mean” by
Rule 11, Dr. Potts did so, adding that he had “done thousands of
competency evaluations.” During cross-examination, the prosecutor asked
whether Lujan had undergone a competency evaluation, and Dr. Potts
answered, “I don’t believe so, but I wasn’t involved if he did.”

¶20 When asked if he had been provided any competency records,
Dr. Potts responded, “I was provided all the records I had. I don’t know – I
don’t believe he had a Rule 11 evaluation, counsel. You would know that
better than I.” From the record provided, Lujan’s counsel attempted to
interrupt this line of questioning, and the court stated, “[o]verruled if
there’s an objection. You may ask your question.” The prosecutor then
requested that the defense attorney assigned to the witness make the
objections. That defense attorney then seconded the objection. The court
again stated, “[u]nderstood. Overruled. Go ahead and restate your
question.” Referencing Dr. Potts’ testimony on direct about Rule 11, the
prosecutor followed up by asking, “to your knowledge, there has never
been a competency issue with this defendant?” Dr. Potts responded: “I
don’t know if there’s been a competency issue ever. I was just explaining
that as part of the role I had. [P]reviously there has not been a Rule 11
evaluation to my knowledge of this defendant.” Nothing on this record
shows that these questions and answers misled or otherwise improperly
influenced the jury’s verdicts or were error.

C. Lujan Has Not Shown Fundamental Error in the
Prosecutor’s Closing Arguments.

¶21 Lujan argues the prosecutor misstated the evidence in closing,
focusing on evidence of Lujan’s methamphetamine use. Lujan claims that,
during closing arguments, the prosecutor “all but ignored the urine test
taken 9 hours after the crimes and entirely ignored Dr. Kirby’s testimony
that it takes 24 hours for meth to metabolize out of a person’s system.”
Lujan argues “[t]he prejudice is extreme,” because T.L. was allowed to

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testify that Lujan was under the influence of methamphetamine at the time
of the murders, meaning Lujan was “forced” to defend against the “almost
wholly unsupported” notion of methamphetamine influence.

¶22 Lujan did not object to the prosecutor’s closing arguments,
meaning this court reviews for fundamental error. See Gallardo, 225 Ariz. at
568 ¶ 35. Moreover, attorneys are generally “given wide latitude in closing
arguments and may draw reasonable inferences from the evidence.” State
v. Arias, 248 Ariz. 546, 563 ¶ 67 (App. 2020) (citation omitted); see also
Hughes, 193 Ariz. at 87 ¶ 69; State v. Ramos, 235 Ariz. 230, 237 ¶ 22 (App.
2014). T.L. was asked about his recently disclosed view that Lujan used
methamphetamines when asked by Lujan’s counsel on cross-examination
and then on redirect by the State. On redirect, T.L. testified, without
objection, that he had never seen Lujan use methamphetamines, but he
“[m]ost definitely” believed that Lujan was using methamphetamines
based on his personal observations.

¶23 The prosecutor’s closing arguments that Lujan argues were
improper include statements that the prosecutor did not know that Lujan
“smoked meth, because I don’t know that. We don’t have a tox screen that
says that.” Then, on rebuttal closing, the prosecutor “[a]gain” asserted that
“no one is saying they know the Defendant ever used meth . . . The
important point of this is[4] if Defendant was a lifelong meth user,” then
focusing on his “lifelong extreme cannabis use[]. And that he had an alcohol
use disorder,” which “exacerbates his mental illness.”

¶24 These arguments could have been rephrased, particularly the
statement about what the prosecutor personally knew (“I don’t know
that”), rather than what the trial evidence showed. But “it ‘is not enough
that the prosecutors’ remarks were undesirable.’” Darden v. Wainwright, 477
U.S. 168, 181 (1986) (citation omitted). Instead, the question is whether the
arguments were improper and “‘so infected the trial with unfairness as to
make the resulting conviction a denial of due process.’” Id. at 181 (citation
omitted). Moreover, the superior court instructed the jurors that what
counsel said during opening and closing was “not evidence,” and jurors are
presumed to follow the court’s instructions. See Ramos, 235 Ariz. at 238 ¶
30. On this record, Lujan has shown no fundamental error in the
prosecutor’s closing arguments.

4 Although the transcript reads as if a “not” was omitted here, the parties

have not sought clarification or correction on that basis.

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D. Lujan Has Not Shown That the Prosecutor Improperly
Vouched for Its Expert During Closing Argument.

¶25 Lujan argues that, during closing argument, the prosecutor
improperly vouched for the State’s expert, Dr. Kirby, by insinuating that he
reviewed more “‘voluminous records, detailed reports and addendums’
than” the defense experts. Again, Lujan made no objections, meaning this
court reviews for fundamental error. See Gallardo, 225 Ariz. at 568 ¶ 35.

¶26 During cross-examination, the prosecutor asked Dr. Potts
about the documents he reviewed and whether he had written a
supplemental report. Dr. Potts mentioned that, even though he received
more disclosure after he wrote his report, his “opinions ha[d] not changed
based on the much more data [he] received.” Although admitting he did
not supplement his report, Dr. Potts stated that he “reviewed all the
documents that everyone else reviewed and [his] opinions hadn’t
changed.”

¶27 During closing argument, the prosecutor noted, correctly,
that Dr. Kirby “had more voluminous records, detailed reports and
addendums” than Lujan’s expert, Dr. Potts. The prosecutor also noted that,
although Dr. Kirby prepared a main report and two addenda (as “more
records became available for review”), Dr. Potts, despite receiving more
information, “didn’t do any addendums.” During rebuttal closing, the
prosecutor argued that Dr. Potts “made an opinion, and then no matter
what was presented to him as this case progressed . . . he never changed his
opinion and he really didn’t consider anything else.” These arguments
fairly reflect the trial evidence. See State v. Johnson, 247 Ariz. 166, 205 ¶ 162
(2019). And Lujan has not shown that these arguments constitute
impermissible vouching. See Ramos, 235 Ariz. at 238 ¶ 26 (“‘There are two
types of prosecutorial vouching: (1) when the prosecutor places the prestige
of the government behind its witness, and (2) where the prosecutor
suggests that information not presented to the jury supports the witness’s
testimony.’”).

E. Lujan Has Shown No Cumulative Prosecutorial Error.

¶28 Lujan argues that, even if these alleged instances of
prosecutorial error are not themselves reversible, “the cumulative effect of
the misconduct was a denial of due process.” Lujan further alleges that
these errors were “pervasive” and “undermin[ed] every aspect of the GEI
defense.” Reversible prosecutorial error may result “if the cumulative effect
of the alleged acts of misconduct ‘shows that the prosecutor intentionally

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engaged in improper conduct and did so with indifference, if not a specific
intent, to prejudice the defendant.’” State v. Bocharski, 218 Ariz. 476, 492 ¶
74 (2008) (citation omitted); see also Arias, 248 Ariz. at 556 ¶ 32. But “[a]bsent
any finding of misconduct, there can be no cumulative effect of misconduct
sufficient to permeate the entire atmosphere of the trial with unfairness.”
Bocharski, 218 Ariz. at 492 ¶ 75. Because Lujan has failed to show error, he
cannot show that the cumulative effect of error warrants reversal.

II. Lujan Has Shown No Error in the Superior Court’s Denial of His
Motion to Preclude T.L.’s Newly Disclosed Testimony.

¶29 Lujan contends that the superior court’s denial of his motion
to preclude T.L.’s statement, “disclosed just days before voir dire began,
was an abuse of discretion.” This failure by the court, Lujan suggests,
“placed the defense in the position of having to ask T.L. about the statement
regarding meth,” and “placed the defense in a lose-lose situation.” Lujan
urges that this failure led to the State’s expert changing her opinion and
“snowballed” into the State “arguing in closing that [Lujan] faked his MST
and could not be found GEI because of long-term meth use.” Lujan argues
that, even though defense counsel had time to prepare for cross-
examination, this “does not dispel the error or render the late disclosure
harmless under Rule 15.7(b)(1).”

¶30 The State has a continuing disclosure obligation and,
“[u]nless otherwise permitted, all disclosure . . . must be completed at least
7 days before trial.” Ariz. R. Crim. P. 15.6(a) & (c). Whether the superior
court properly excuses late disclosure is reviewed for an abuse of discretion.
See State v. Moody, 208 Ariz. 424, 454 ¶ 114 (2004) (citing cases); see also State
v. Tucker, 157 Ariz. 433, 439 (1988). Moreover, preclusion of testimony is “‘a
sanction of last resort’” and should be imposed if “‘other less stringent
sanctions are not applicable.’” Moody, 208 Ariz. at 454 ¶ 114. Allowing late-
disclosed evidence is proper if the “the failure to comply was harmless” or
“the party could not have disclosed the information earlier with due
diligence and the party disclosed the information immediately upon its
discovery.” Ariz. R. Crim. P. 15.7(b)(1) & (2).

¶31 When the State “learned new information” about what T.L.
would testify to at trial, it “immediately disclosed” that information to
Lujan. The State made that disclosure to Lujan on April 30, 2024, when trial
was scheduled to begin on May 6, 2024. Given disclosures are to be updated
at least seven days before trial begins, Ariz. R. Crim. P. 15.6(d)(1), this
disclosure appears to have been one day late, Ariz. R. Crim. P. 1.10(a)(1). At
a May 2, 2024 status conference, the court discussed the issue. During that

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hearing, the court found that the evidence would not be precluded based
on the timeliness of disclosure. As noted above, the disclosure was “six or
seven days prior to the trial date” and T.L. did not testify on the first day of
trial. In fact, T.L. did not testify until May 21, 2024. The superior court did
not err by denying Lujan’s disclosure objection after concluding there was
adequate time to prepare for and respond to the new disclosure.

¶32 There is no indication that the State could have disclosed the
information earlier. See Ariz. R. Crim. P. 15.7(b)(2); see, e.g., State v. Zuck, 134
Ariz. 509, 514 (1982) (disclosure and testimony of chief witness two days
before trial was not error because counsel was allowed to interview the
witness and take other curative action, which counsel did not do). There is
also no indication that Lujan was prejudiced, negating his argument that
the court abused its discretion. See Tucker, 157 Ariz. at 439 (citing cases).

III. The Superior Court Did Not Err in Denying Lujan’s Request for a
Corrective Jury Instruction or His Related Motion for Mistrial.

¶33 Lujan argues testimony by T.L. and Dr. Kirby, addressing the
“extraneous matter of punishment,” required the superior court to give a
curative jury instruction. This court reviews the superior court’s decision to
give or refuse a requested jury instruction for an abuse of discretion. State
v. Dann, 220 Ariz. 351, 363-64 ¶ 51 (2009) (citing cases); see also State v. Saiers, 196 Ariz. 20, 21 ¶ 2 (App. 1999) (citing cases). Further, any challenge to a
jury instruction is “evaluated in light of all of the instructions given.” State
v. Cannon, 148 Ariz. 72, 80 (1985) (citation omitted); see also Dann, 220 Ariz.
at 363 ¶ 51 (citing cases). Lujan has shown no error here.

¶34 During cross-examination of T.L. by Lujan’s counsel, when
asked why he delayed telling the police that Lujan faked his MST to get
government benefits, the following exchange took place:

[Question by Lujan’s attorney:] And when you
were talking to [two detectives] about the
homeless shelter that you live in in Washington,
that’s the homeless shelter where the Veteran
supposedly cooked up this idea, you never
mentioned this to [the detectives].

[T.L.’s Answer:] It was a capital case. They were
going for the death penalty. They had no – it
had no relevance.

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Lujan did not object and, after Lujan’s attorney asked ten more questions
and finished cross-examination, the court held a bench conference. Noting
the “capital case” comment, the court discussed with the attorneys
appropriate possible action. Speculating that the reference was to a time
when the State was contemplating “a death penalty notice and that didn’t
end up happening,” the court stated it “would like to just instruct the jury
very briefly at this point, at some point during the cross-examination of his
reference from the witness to something being capital or capital case, I
direct you to disregard those comments.” Lujan’s counsel responded,
“[f]air enough, Judge.” To remove all doubt, when the court asked, “[i]s
that okay?”, Lujan’s counsel answered, “[y]es.” The court then gave that
curative instruction to the jury, and redirect began. Before redirect,
however, T.L. commented on his recent interview with detectives about the
new information relating to Lujan and remembered this information
because he “realized the severity of [Lujan] getting away with things that
he always got away with again.” No objection or curative instruction was
given with this statement.

¶35 A little over a week later, Lujan requested the following jury
instruction regarding T.L.’s statements:

The jury is not to consider[] punishment. You
have heard from a witness that a finding of
guilty except insane in this case will mean Mr.
Lujan “gets away with” the charged conduct.
That is not the law. Mr. Lujan will not get away
with anything if you make a finding of guilty
except insane.

¶36 A few days later, when Dr. Kirby was testifying about the GEI
defense, the State asked: “is it enough that somebody has a mental health
diagnosis, a mental health disease, defect, is that alone enough to find
someone is guilty except insane?” Dr. Kirby answered: “Absolutely not.
And sure or [sic] hope the jury could appreciate that that would be a scary
world to live in, where just having a mental illness would give you carte
blanche to commit crimes without accountability. That’s not the legal
standard of insanity.” Lujan made no contemporaneous objection. The next
day, however, Lujan requested that the court give the following instruction
to the jury: “Dr. Kirby misstated the insanity law to you. A finding of
insanity does not mean Mr. Lujan has ‘carte blanche to commit crimes
without accountability.’”

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¶37 The court mentioned it was concerned about the potential
prejudice that would arise if it incorporated Lujan’s proposed instructions
and felt the best way to resolve the issue was to instruct the jury not to
speculate about punishment, as that was left to the judge. Lujan then moved
for a mistrial, based on this same testimony, which the court also denied.
The final instruction the court gave included the directive that the jury
“must not consider the possible punishment when deciding on guilt;
punishment is left to the judge.”

¶38 There was no timely objection, meaning the review here is for
fundamental error. See Gallardo, 225 Ariz. at 568 ¶35. The superior court
timely cured the misstatement, without objection from Lujan, regarding
T.L.’s testimony, and on appeal, he has shown no error in the court doing
so, or that the court needed to do anything more or different. For Dr. Kirby’s
and T.L.’s passing statements, Lujan has similarly shown no error by the
superior court in denying his requested jury instruction and his motion for
mistrial.

¶39 Lujan acknowledges, but attempts to distinguish, State v.
Cornell, 179 Ariz. 314 (1994) and Moody, 208 Ariz. 424 as not “squarely
address[ing] the issue here.” Lujan cannot argue that the questions (as
opposed to a passing portion of the answers) were objectionable.
Accordingly, this case did not involve “improper questions” that Cornell
then concluded, on the facts presented, “did not amount to fundamental
error.” Cornell, 179 Ariz. at 330. Nor did this case involve an improper
closing argument, as in Moody, where defense counsel timely objected, the
court sustained that objection and directed the jury to “‘disregard the last
comments by the prosecutor,”’ and the court still found defendant had not
shown reversible error. Moody, 208 Ariz. at 459-60 ¶¶ 148-152.

¶40 As the State notes, the Arizona Supreme Court “has
consistently held that any instruction on the consequences of an insanity
verdict is improper.” Saiers, 196 Ariz. at 21 ¶ 5. And although there may be
narrow exceptions to that directive in “certain limited circumstances,”
Shannon v. United States, 512 U.S. 573, 587 (1994), Lujan has not shown that
the superior court here had to do more than what it did.5 On this record,

5 Lujan’s reference, during oral argument before this court, to the recent

decision in United States v. Dencklau, Nos. 22-30068, 22-30069, 2025 WL
3310761 (9th Cir. Nov. 28, 2025) does not alter this analysis. That case
approved a closing instruction on potential punishment that closely tracks
the instruction given by the superior court in this case. Dencklau, 2025 WL

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 STATE v. LUJAN
Decision of the Court

Lujan has shown no abuse of discretion in the superior court denying his
requested instruction or in the other instructions the court gave. See Ramos,
235 Ariz. at 238 ¶ 30. Because there was no instructional error, Lujan has
shown no error in the court’s denial of his requested jury instruction.

¶41 Turning to his motion for mistrial, an order denying such a
motion is “within the sound discretion of the [superior] court.” Gallardo, 225
Ariz. at 564 ¶ 6 (citation omitted). “‘A declaration of a mistrial is the most
dramatic remedy for trial error and should be granted only when it appears
that justice will be thwarted unless the jury is discharged and a new trial
granted.’” Dann, 220 Ariz. at 363 ¶ 48, 363 ¶ 50 (citation omitted); Saiers, 196
Ariz. at 23 ¶ 11 (same).

¶42 In arguing the superior court was required to grant his motion
for mistrial, Lujan relies on State v. McLoughlin, 133 Ariz. 458 (1982). Lujan
claims that, under McLoughlin, once improper testimony is before the jury,
a new trial is required. Lujan misinterprets McLoughlin. A new trial was
necessary in that case because a third party told a juror that if the defendant
were found not guilty, the defendant would go free. Id. at 460. That
information was then spread to the rest of the jury. Id. The court determined
that Ariz. R. Crim. P. 24.1 applied, and that a new trial was warranted “’if
it cannot be concluded beyond a reasonable doubt that the extrinsic
evidence did not contribute to the verdict.’” Id. at 461 (quoting State v.
Poland, 132 Ariz. 269, 283 (1982)). Although the jury had been instructed not
to consider possible punishment, the court found that the jury’s conduct
suggested it had not followed that instruction, requiring a new trial. See
McLoughlin, 133 Ariz. at 461.

¶43 Unlike McLoughlin, there is no indication here that the
testimony from the witnesses or conduct from the jurors implied that they
did not follow the instructions they were given. Again, this court presumes
the jury followed the instruction not to consider punishment. See Ramos, 235
Ariz. at 238 ¶ 30 (citing cases). For these reasons, Lujan has failed to show
that the superior court erred in denying his motion for mistrial.

3310761, at * 10. A primary focus of that appeal was on instructions about
how the jury should construe testimony of cooperating witnesses who had
entered plea agreements. Id. And Dencklau affirmed the convictions, finding
that the instructions properly kept “the jury focused on its factfinding
mission” and did not constitute an abuse of discretion. Id. at *11.

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 STATE v. LUJAN
Decision of the Court

CONCLUSION

¶44 Lujan’s convictions and resulting sentences are affirmed.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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