Cited by

V 17, the state argues Mason has forfeited any appellate review of this issue because he failed to object below that the charges were multiplicitous.

13 This vagueness, however, “may be remedied with appropriate narrowing instructions.” ¶ 28, -53 ¶¶ 109-14, -95 (2005).

¶¶ 119, 121, (referring to the (F)(6) prongs as “especially cruel” and “especially heinous/depraved” or “especially heinous or depraved”); Murdaugh, 209 Ariz. at 31 ¶ 59, 97 P.3d at 856 (stating that “[t]he ter

“[T]here is nothing sanitary about murder, and there is nothing in Rule 403, Ariz. R. Evid., that requires a trial judge to make it so.” ¶ 40, (quoting State v. Reinhardt, 190 Ariz. 579, 584, ) (internal quotation marks omitted).

Although photographs may not be introduced solely to inflame the jury, State v. Anderson (Anderson II), ¶ 40, “[t]here is nothing sanitary about murder,” and we do not “require[] a trial judge to make it so,” 10 State v. Rienhardt, 190 Ariz. 579, 584

to kill the victim, not to engage in violence beyond that necessary to kill.” Wallace, 219 Ariz. at 8 ¶ 37, 191 P.3d at 171 (quoting State v. Anderson, 210 Ariz. 327, 355 ¶ 123, ); see, e.g., State v. Cañez, -62 ¶ 106, -93 (2002) (finding no gratuitous violence because defendant “merely escalated his attacks until he succeeded in killing [victim]”).

State v. Anderson (Anderson II), ¶ 17

establish that “‘the victim consciously experienced physical or mental pain and the defendant knew or should have known that’ the victim would suffer.” -11 ¶¶ 31-33, -90 (2007) (alterations removed) ( n.18 ¶ 109, n.18 (2005)).

P. 13.5(e), 16.1(b); -78 (2005), and the failure to do so forfeits the objection absent fundamental error.

¶ 137 , ¶ 53 , , 336 n. 5, 337, ¶¶ 18, 20, , 378 n. 5, 379 (2005); ¶ 19

¶27 “A trial court’s refusal to give a jury instruction is reviewed for abuse of discretion.” State v. Anderson (Anderson II), ¶ 60

Dann III, 220 Ariz. at ___ ¶¶ 29-30, 207 P.3d at 613-14; Bocharski, 218 Ariz. at 483 ¶ 20, 189 P.3d at 410; State v. Anderson (Anderson II), ¶¶ 21-23

When a timely objection is made, reversal is warranted if “a reasonable likelihood exists that the misconduct could have affected the jury’s verdict, thereby denying the defendant a fair trial.” State v. Anderson (Anderson II), -41 ¶ 45, -83 17 (2005) (citation omitted).

types of comment[s]—those that mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision.’” ¶ 33, (alteration in original) (quoting Romano v. Oklahoma, 512 U.S. 1, 9 (1994)); State v. Anderson (Anderson II), ¶ 22, (same).

§ 13-703(B) (applying rules of evidence to aggravation phase); , (defendant not permitted to “complain that evidence relevant to sentencing was presented at the guilt proceeding” because “nothing prevented [Ellison] from introducing evidence from the guilt proceeding at his sentencing proceeding”); , (noting “aggravation and penalty phases” of *175 resentencing included “essentially a full-blown re-presentation of the entire case” and “nothing prevented [defendant] from offering the[ ] guilt pha

§ 13-703(B) (applying rules of evidence to aggravation phase); (defendant not permitted to “complain that evidence relevant to sentencing was presented at the guilt proceeding” because “nothing prevented [Ellison] from introducing evidence from the guilt proceeding at his sentencing proceeding”); (noting “aggravation and penalty phases” of resentencing included “essentially a full-blown re-presentation of the entire case” and “nothing prevented [defendant] from offering the[] guilt phase testimo

See, ¶ 119 & n.21, & n.21 (2005).

We rejected a -48 ¶¶ 81-86, -90 (2005).

This right, however, “is not absolute.” ¶ 100

denied, 128 S. Ct. 2078 (2008) (quoting State v. Anderson (Anderson II), ¶ 45, ).

See Schroeder, 167 Ariz. at 54, 804 P.2d at 783 (Kleinschmidt, J., concurring) (explaining the technical inaccuracy and practical peril of characterizing the latter category of indictment, which actually charges only one offense in each count, as “duplicitous”); -37, ¶20 , -79 (2005) (explaining that when an indictment charges a single crime, yet evidence of more than one alleged criminal act is presented at trial to prove that crime, there is potential error that is not caused by a duplicitous

See, e.g., Garza, 216 Ariz. at 65, ¶ 32, 163 P.3d at 1015; Glassel, 211 Ariz. at 46-47, ¶ 41, 116 P.3d at 1206-07; ¶ 29 & n.7, & n.7 (2005).

See Guzek, 546 U.S. at 523, 526; ¶ 86, (“The only issue at the aggravation phase is whether any aggravating circumstances have been proved; the only issue during the penalty phase is whether death is the appropriate sentence.”).

4) the instructions created a presumption of death; and (5) the consideration of mitigation evidence was improperly restricted.2 Although we generally review de novo whether the penalty phase jury instructions correctly state the law, Baldwin, 211 Ariz. at 471 ¶ 8, 123 P.3d at 665, absent an objection by the defendant, we review for fundamental error, see State v. Anderson (Anderson II), ¶ 72