Cited by

“The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” ¶ 139 (2005) (quoting Blockburger v. U.S., 284 U.S. 229, 304 (1932)).

Because Stewart failed to preserve the issue, ¶ 18 (2005) (holding objection at first trial does not preserve error for appellate review of second trial), we review only for fundamental, prejudicial error, ¶¶ 19- 20 (2005).

P. 16.1(c) (precluding untimely motions); –36, ¶¶ 15-17, -78 (2005) (holding objections to the indictment 3 The sentence of 1.5 years’ imprisonment for such a felony as count 4 is less than the statutory limit of 2 years provided in A.R.S.

Reversal of a conviction is warranted when: “(1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying defendant a fair trial.” ¶ 45, (quotations and citations omitted).

P. 16.1(c); –36, ¶¶ 16–17 (2005) (holding that a failure to object to alleged defects in an indictment before trial waived any objection after trial).

¶15 “Photographs may be relevant ‘to prove the corpus delecti, to identify the victim, to show the nature and location of the fatal injury, to help determine the degree or atrociousness of the crime, to corroborate state witnesses, to illustrate or explain testimony, and to corroborate the state’s theory of how and why the homicide was committed.’” -340, ¶ 39 (2005) ().

-42, ¶¶ 50-52, -84 (2005) (finding no error in prosecutor’s statement because the court had admonished the jury that the lawyers’ statements were not evidence).

that the misconduct could have affected the jury’s verdict, thereby denying [the] defendant a fair trial.” ¶ 45

We will reverse based on prosecutorial misconduct if: “(1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury’s verdict, thereby denying [the] defendant a fair trial.” ¶ 45 (2005) (citation omitted).

–53 ¶¶ 109–14, –95, supplemented by P.3d 1219 (2005) (observing that the (F)(6) aggravator was sufficiently narrowed by jury instructions that “gave substance to the terms ‘cruel’ and ‘heinous or depraved’ in accordance with our case law narrowing and defining those terms”); see

¶14 To prevail on this issue of prosecutorial misconduct, Ware must show that “(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.’” ¶ 46 (2007) (quoting State v. Anderson (Anderson II), ¶ 45 (2005)).

¶ 97, supplemented P.3d 1219 (2005); ¶ 90, (no fundamental error where prosecutor argued that defendant’s bad temper was not sufficiently substantial to warrant leniency but rather “should be aggrav

Thus, while we generally review a court’s denial of a jury instruction for an abuse of discretion, we independently assess whether the evidence supported a justification instruction, because that is a question of law and involves no discretionary factual determination.

¶ 45, (“We will reverse a defendant’s conviction because of prosecutorial misconduct if two conditions are satisfied: (1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury’s verdict, thereby denying the defendant a fair

Indeed, just one week before we issued the opinion affirming Roseberry’s death sentence, we issued an opinion explicitly recognizing that “a jury cannot be prevented from giving effect to mitigating evidence solely because the evidence has no causal ‘nexus’ to a defendant’s crimes.” ¶ 93, (quoting Tennard, 542 U.S. at 282–87).

As Harris concedes, “A misstatement of the law can be cured by the court’s instruction that the attorney’s argument is not evidence in a case.” ¶ 50

State v. Anderson (Anderson II), ¶ 60 (2005).

10 STATE V. BURNS Opinion of the Court ¶41 “An indictment is duplicitous if it charges more than one crime in the same count.” ¶ 13

“[A] defendant holds no absolute right to a penalty trial with the same judge or jurors who heard the evidence on guilt.” ¶ 81, ( ¶¶ 39–40, ).

¶15 “A jury must find an aggravating circumstance unanimously.” ¶ 126