State v. Johnson

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-03-0420-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR 01-01604
RUBEN MYRAN JOHNSON, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Thomas W. O’Toole, Judge

AFFIRMED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Capital Litigation Section
Robert J. Gorman, Jr. Tucson
Assistant Attorney General
Attorneys for the State of Arizona

KERRIE M. DROBAN Scottsdale
Attorney for Ruben Myran Johnson
________________________________________________________________

M c G R E G O R, Chief Justice

¶1 A grand jury indicted Ruben Myran Johnson for first

degree murder, assisting a criminal syndicate or criminal street

gang, burglary in the first degree, and armed robbery. On

November 28, 2001, a jury found Johnson guilty of all four

counts. At the conclusion of the aggravation phase of the

sentencing proceeding, a different jury found three aggravating

factors proved beyond a reasonable doubt: (1) Johnson was

previously convicted of a serious offense, Ariz. Rev. Stat.

(A.R.S.) § 13-703.F.2 (2001); (2) Johnson knowingly created a

grave risk of death to another person in addition to the person

murdered, A.R.S. § 13-702.F.3; and (3) Johnson committed the

offense in an especially heinous and depraved manner, A.R.S. §
1
13-703.F.6. In the penalty phase, that same jury determined

that Johnson should receive the death sentence for the charge of

first degree murder. The trial court sentenced him to death for

the murder and to consecutive, aggravated terms on the non-

capital charges. The clerk filed an automatic notice of appeal

from the judgment and sentence pursuant to Rule 31.2.b of the

Arizona Rules of Criminal Procedure. This Court has

jurisdiction pursuant to Article 6, Section 5.3 of the Arizona

Constitution, and sections 13-4031 and -4033.A of the Arizona

Revised Statutes.

I.

¶2 On November 7, 2000, Ruben Johnson and Jarvis Ross,

both members of the Lindo Park Crips Gang (the LPC), committed a

robbery at the Affordable Massage business in Phoenix. They

1
Because Johnson’s trial occurred before Ring v. Arizona, 536 U.S. 584 (2002), was decided, the jury for the guilt
proceeding was not required to find the presence or absence of
aggravating factors. After finding Johnson guilty on all four
counts, the jury was dismissed. Between Johnson’s conviction on
November 28, 2001, and January 8, 2003, Johnson’s sentencing
hearing was continued six times. Following a stay and yet

2

committed the robbery at the behest of Johnson’s friend, Cheryl

Newberry. Newberry drove Johnson and Ross to the Affordable

Massage location. Johnson and Ross then entered the massage

parlor through a back door and confronted Stephanie Smith and

Russell Biondo. Johnson and Ross stole Biondo’s wallet and

pager and Smith’s cell phone and left the massage parlor

separately. Johnson escaped, but police officers captured Ross

after a short chase. Smith and Biondo both identified Ross as

one of the robbers.

¶3 Soon after the robbery, Johnson learned from his

friend Phyllis Hansen, a clerk at the Maryvale Justice Court,

that Ross’s preliminary hearing was scheduled for November 15,

2000, and that the victims were going to testify at the

preliminary hearing. Newberry later testified that Johnson and

two other men came to her home in an SUV and made her reveal the

location of Stephanie Smith’s residence.

¶4 Johnson and Quindell Carter, a fellow gang member,

arrived at Smith’s home shortly after one o’clock on the morning

of November 15, 2000. Smith was in a bedroom reading a story to

her four-year-old son, Jordan. Leonard Justice and Mike Solo

were also at her home visiting. Solo heard a dog barking behind

the house and went into the backyard to investigate. When he

_____________________
another continuance, Johnson’s sentencing proceeding commenced
on November 12, 2003.

3

got outside, a black male put a gun to Solo’s head, threatened

to kill him, and asked who else was in the house. The gunman

first pushed Solo into the house through the back sliding glass

door and then told him to leave the house. Solo hurried to his

car and drove away. Leonard Justice looked out the back window

of the house, saw what was happening, and called 9-1-1 on his

cell phone. He then went into Jordan’s bedroom and handed Smith

the phone so she could give the dispatcher the address. After

handing the phone back to Justice, Smith left the bedroom.

Justice followed her, and they both saw Johnson come through the

arcadia door. Justice then ran into the bathroom, while Smith

ran into Jordan’s bedroom. Johnson walked into Jordan’s bedroom

and shot Smith in the head, killing her. Arriving officers

apprehended Quindell Carter after a short chase, but Johnson

evaded the officers.

¶5 Two days later, Johnson visited Phyllis Hansen at her

home. Hansen testified that Johnson showed her a newspaper

article about the murder and told her that he was the unnamed

suspect mentioned in the story. Hansen also testified that

Johnson stated he killed Smith because Smith was going to

testify against “his cuz or one of his homies.” Hansen later

went to the police and turned over papers Johnson had left at

her home. One of those papers had Johnson’s fingerprint on it

4

and contained Russell Biondo’s name and date of birth written in

Johnson’s handwriting.

¶6 Johnson raises multiple issues on appeal. We address

each of these issues below.

II.

A.

¶7 The first issue Johnson raises involves the trial

court’s failure to sever Count 2, assisting a criminal

syndicate,2 from the remaining counts. Two or more offenses may

be joined if they:

(1) Are of the same or similar character; or
(2) Are based on the same conduct or are otherwise
connected together in their commission; or
(3) Are alleged to have been a part of a common
scheme or plan.

Ariz. R. Crim. P. 13.3.a.

¶8 Before trial, Johnson unsuccessfully moved to sever

Count 2. The trial court ruled that because “the defendant

noticed several alternative defenses including mistaken identity

. . . the evidence in regard to gang activity [was not only]

material in regard to Count 2 but also relevant in regard to

identity and motive in regard to the remaining counts.” Johnson

now argues that Count 2 was joined only because it was of “the

2
A person commits the offense of “assisting a criminal
syndicate by committing any felony offense, whether completed or
preparatory, with the intent to promote or further the criminal

5

same or similar character” as the other charges and thus he

could sever it as a matter of right.

¶9 A defendant is entitled to sever offenses joined only

by virtue of being of the same or similar character as a matter

of right, “unless evidence of the other offense or offenses

would be admissible under applicable rules of evidence” if tried

separately. Ariz. R. Crim. P. 13.4.b. Denial of a motion to

sever under Rule 13.4.b constitutes reversible error “if the

evidence of other crimes would not have been admitted at trial”

for another evidentiary purpose. State v. Aguilar, 209 Ariz.

40, 51 ¶ 38, 97 P.3d 865, 876 (2004) (quoting State v. Ives, 187

Ariz. 102, 106, 927 P.2d 762, 766 (1996)).

¶10 Count 2 does not fall within Rule 13.4.b. Assisting a

criminal street gang is not of the same or similar character as

first degree murder, burglary in the first degree, or armed

robbery. See State v. Mauro, 149 Ariz. 24, 28, 716 P.2d 393,

397 (1986) (noting that homicide and child abuse counts were

joined under Rule 13.3.a pursuant to the “same conduct”

provision and not the “same or similar character” provision),

rev’d on other grounds, 481 U.S. 520 (1987).

¶11 Moreover, as the trial court noted, evidence material

to Count 2 could have been admitted to establish motive and

_____________________
objectives of a criminal syndicate.” Ariz. Rev. Stat. (A.R.S.)
§ 13-2308.C.

6

identity in the armed robbery, murder, and burglary charges.

Prejudice from a failure to sever is unlikely “[i]f the evidence

of one crime would have been admissible in a separate trial for

the others.” State v. Stuard, 176 Ariz. 589, 596, 863 P.2d 881,

888 (1993). In addition, if “testimony is probative on the

crucial issue of identification[,] any slight prejudicial

element is clearly outweighed by [the] probative value.” United

States v. Buck, 548 F.2d 871, 876 (9th Cir. 1977).

¶12 We agree that evidence material to Count 2 was

admissible to establish motive and identity for Johnson’s other

crimes.3 The murder of Stephanie Smith resulted from Johnson’s

desire to eliminate a witness to an armed robbery with which

Jarvis Ross, Johnson’s “cuz” or “homeboy,” was being charged.

The State presented ample evidence to establish that the

motivation behind the armed robbery and the murder of Stephanie

Smith was to further the criminal objectives of the LPC.4 For

3
Likewise, as noted by the trial court, evidence relating to
the other counts was admissible to prove Count 2:

The specific language of Count 2 [alleging that the
defendant assisted a criminal street gang by
committing first degree murder and/or armed robbery]
. . . necessarily includes proof of Counts 1, 3, and
4. So if Count 2 was severed, it would require for
all practical purposes, a duplicative trial presumably
with identical or nearly identical evidence.
4
Johnson also argues that because the State had ample
testimony and evidence to tie the crimes together merely by
establishing that Johnson’s motive to kill Smith was to protect

7

example, the three individuals involved in the murder and

robbery were all members of or affiliated with the LPC; as an

original gangster (O.G.), Johnson had an obligation to “bring

up,” or look after, younger gang members such as Jarvis Ross;

Damon Ross, another LPC O.G., went with Johnson to locate

Smith’s house; and Johnson told Phyllis Hansen that he killed

Smith to keep her from testifying against his “cuz,” or fellow

gang member, referring to Jarvis Ross. The evidence of gang

involvement provided a motive for Johnson to kill Smith, who had

no connection with Johnson other than her role as a witness

against his fellow gang member. The State provided evidence

that these acts were consistent with the LPC’s typical criminal

activity of pursuing pecuniary gain and intimidating witnesses.

The evidence of Johnson’s gang involvement helped to establish

his identity and motive for committing the other charged crimes.

_____________________
his friend, Jarvis Ross, the State did not need to show they
were fellow gang members. See State v. Williams, 183 Ariz. 368,
376, 904 P.2d 437, 445 (1995) (noting possible alternative
explanations for why a defendant might shoot someone rather than
to conceal a crime would go to the weight of the evidence and
not to its admissibility). Although there could have been non-
gang-related motivations for Johnson to shoot Stephanie Smith
(e.g., to protect a friend), the trial court correctly noted
that the State is not obligated to limit its case by presenting
evidence of lesser import.

8

¶13 In addition, the trial judge took several steps to

reduce any prejudice that could have resulted from joinder.5

First, prior to opening statements, the court cautioned the

State against misusing the gang evidence and instructed it to

avoid presenting evidence of any gang motivation until later in

the case, when its relevance became clear. Second, the court

instructed the jury to consider each offense separately and

advised that each must be proven beyond a reasonable doubt.

“[A] defendant is not prejudiced by a denial of severance where

the jury is instructed to consider each offense separately and

advised that each must be proven beyond a reasonable doubt.”

State v. Prince, 204 Ariz. 156, 160 ¶ 17, 61 P.3d 450, 454

(2003) (citing holding in State v. Atwood, 171 Ariz. 576, 613,

832 P.2d 593, 630 (1992)).

¶14 Under the circumstances of this case, we conclude that

the trial court did not abuse its discretion in refusing to

sever Count 2.

5
Although it is unclear from the record whether the court
determined Count 2 was properly joined pursuant to Rule
13.3.a(2) or a(3), the joinder of the counts is most consistent
with 13.3.a(2), which applies to two or more offenses that are
“based on the same conduct” or “otherwise connected together in
their commission.” Ariz. R. Crim. P. 13.3.a(2); see also State
v. Prion, 203 Ariz. 157, 162 ¶ 32, 52 P.3d 189, 194 (2002)
(defining “otherwise connected together in their commission” as
situation in which “evidence of the two crimes [i]s so
intertwined and related that much the same evidence [i]s
relevant to and would prove both, and the crimes themselves
arose out of a series of connected acts”).

9

B.

¶15 Johnson also asserts that the F.3 and F.6 aggravators

are facially vague and that the trial court’s jury instruction

defining these factors provided jurors with insufficient

guidance and failed to appropriately channel the jury’s

discretion. We review de novo whether instructions to the jury

properly state the law. State v. Orendain, 188 Ariz. 54, 56,

932 P.2d 1325, 1327 (1997). We review a trial court’s denial of

a requested jury instruction for an abuse of discretion. State

v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995).

1.

¶16 Johnson argues that the trial court’s jury instruction

on the F.3 aggravator, which applies when a defendant “knowingly

created a grave risk of death to another person or persons in

addition to the person murdered during the commission of the

offense,” A.R.S. § 13-703.F.3, is unconstitutionally vague.

Johnson also contends that the phrase “zone of danger,” which

was used in the F.3 instruction, is inherently vague.

¶17 This Court has previously rejected Johnson’s argument,

concluding that because an F.3 aggravating circumstance may be

found only when others are “physically present in the zone of

danger” and may not be found when others are simply in another

room, or are intended victims, “[t]he aggravating circumstance

is sufficiently precise to avoid its arbitrary application.”

10

State v. McMurtrey, 151 Ariz. 105, 108, 726 P.2d 202, 205

(1986).

¶18 Even if the F.3 aggravator were vague, under Walton v.

Arizona, 497 U.S. 639, 652-53 (1990), overruled in part on other

grounds by Ring v. Arizona, 536 U.S. 584 (2002), a court can

remedy vagueness by giving instructions that clarify its

meaning. The trial court did so in this case: the court’s

instructions to the jury tracked the language of A.R.S. § 13-

703.F.3 and correctly stated that the standard of inquiry for

the F.3 aggravator is whether, during the course of the killing,

“the defendant knowingly engaged in conduct that created a real

and substantial likelihood that a specific third person might

suffer fatal injury.” State v. Wood, 180 Ariz. 53, 69, 881 P.2d

1158, 1174 (1994). The trial court also instructed jurors that

the “mere presence of bystanders” is insufficient to support the

finding of an F.3 aggravator, id., and that actual intent to

kill the bystander precludes an F.3 finding, see State v. Tison,

129 Ariz. 526, 542, 633 P.2d 335, 351 (1981). Moreover, the

instruction given to explain the F.3 aggravator substantially

reflected Johnson’s requested jury instruction. We find no

error and conclude that the trial court’s instruction on the F.3

aggravator provided sufficient guidance to channel the jury’s

discretion.

11

2.

¶19 Johnson next argues that the trial court’s jury

instruction on the F.6 aggravator was unconstitutionally vague

because it failed to distinguish for jurors which murders should

be considered especially heinous, cruel, or depraved. Johnson

contends that the term “especially” in section 13-703.F.6

essentially requires some kind of comparison between death-

eligible murder cases and the “norm.” Because Arizona law

prohibits proportionality review, Johnson claims that the F.6

language fails to provide jurors adequate context for deciding

whether certain aggravating circumstances warrant the death

penalty.

¶20 This Court squarely rejected proportionality review in

State v. Salazar, 173 Ariz. 399, 417, 844 P.2d 566, 584 (1992),

which adopted Justice Moeller’s concurrence in State v.

Greenway, 170 Ariz. 155, 173, 823 P.2d 22, 38 (1991). In

Greenway, Justice Moeller agreed with the majority holding that

“[t]he trial court’s consideration of other similarly situated

defendants is irrelevant to this defendant’s ‘character or

record,’ and does not show any of the circumstances surrounding

this defendant’s ‘offense’ that would call for a sentence less

than death.” Id. at 173, 823 P.2d at 40 (Moeller, J.,

concurring) (quoting majority opinion) (alteration in original).

12

Justice Moeller also noted that allowing such a proportionality

review would create a “slippery slope”:

If meaningful proportionality reviews are to be
conducted with the parties’ participation, it seems
obvious that the courts in such cases will soon be
litigating not one murder case, but scores or, indeed,
hundreds of murder cases in every potential capital
case. One may also reasonably predict that when a
defendant under a death sentence at last exhausts his
other remedies and nears an execution date, he will
seek an updated proportionality review to include
capital cases which have accrued during the years
since his own death sentence was imposed. . . . [I]f
carried to its logical conclusion, [proportionality
review] will inevitably result in all death penalty
cases becoming so bogged down that it will be
virtually impossible to conclude any of them.

Id. (Moeller, J., concurring). The reasoning of Salazar applies

equally regardless whether a defendant asks a trial judge or a

jury to conduct a proportionality review. Accordingly, we

reject Johnson’s argument.

¶21 Johnson also argues that the trial court’s jury

instructions on the F.6 aggravator were unconstitutionally vague

and deprived him of a fair sentencing. In State v. Anderson,

this Court recently rejected the argument that the language of

the F.6 aggravator, which requires that a crime be “especially

cruel, heinous, or depraved,” is unconstitutionally vague. 210

Ariz. 327, 352-53 ¶¶ 109-11, 111 P.3d 369, 394-95 (2005). We

held, “Our ‘narrowing construction[s]’” have given “‘substance’

to the facially vague aggravator, and the sentencing judge was

presumed to apply those constructions because trial judges ‘know

13

the law and . . . apply it in making their decisions.’” Id. at

352 ¶ 109, 111 P.3d at 394 (quoting Walton, 497 U.S. at 653-54)

(alterations in original).6

¶22 The trial judge in this action provided an appropriate

narrowing construction when he instructed the jury about the

meanings of “heinous” and “depraved.”7 The trial court’s

detailed definitions for “heinous” and “depraved” followed prior

case law and provided sufficient guidance to the jury to correct

any potential vagueness. See, e.g., State v. Murdaugh, 209

Ariz. 19, 31 ¶ 57, 97 P.3d 844, 856 (2004) (defining heinous and

depraved); State v. Greene, 192 Ariz. 431, 440 ¶ 34, 967 P.2d

106, 115 (1998) (defining relishing); State v. Ross, 180 Ariz.

598, 606, 886 P.2d 1354, 1362 (1994) (defining witness

elimination); State v. Gretzler, 135 Ariz. 42, 52-53, 659 P.2d

6
This Court also rejected Anderson’s challenge that the
decision in Walton would not save a facially vague F.6
aggravator when a jury, as opposed to a judge, performs the
initial fact-finding function because the jury instructions
given were “adequate to provide a narrowed construction of the
facially vague statutory terms.” State v. Anderson, 210 Ariz.
327, 353 ¶¶ 112-14, 111 P.3d 369, 395 (2005).
7
Because the jury did not unanimously find especial cruelty
and therefore could not have relied on this aggravator in
imposing death, we need not address Johnson’s arguments related
to the cruelty instruction. See State v. Rodriguez, 192 Ariz.
58, 63 ¶ 27, 961 P.2d 1006, 1011 (1998) (stating court will not
reverse a conviction if it can conclude beyond a reasonable
doubt that an error did not influence the verdict).

14

1, 11-12 (1983) (discussing relishing, senselessness, and

helplessness).

¶23 Johnson also contends that the trial court’s

instruction as to “relishing,” one of the mental states that

allows a jury to find an action is heinous or depraved, referred

to the defendant’s state of mind only “at the time of the

offense,” rather than to his state of mind “near the time of the

offense.” We have upheld instructions stating that relishing

can be shown either “at the time” of the offense or “at or near”

the time of the offense and find no error.8 See, e.g., Greene,

192 Ariz. at 440-41 ¶ 39, 967 P.2d at 115-16 (“[P]ost-murder

statements suggesting indifference, callousness, or a lack of

remorse constitute ‘relishing,’ only when they indicate, beyond

a reasonable doubt, that the killer savored or enjoyed the

murder at or near the time of the murder.”); Gretzler, 135 Ariz.

at 51, 659 P.2d at 10 (“[H]einous and depraved involve a

killer’s vile state of mind at the time of the murder.”).9

8
In fact, the trial court’s instruction, which referred to
Johnson’s state of mind “at the time of the offense,” actually
favored him because the State relied on evidence of Johnson’s
actions and statements shortly after, not at, the time of the
murder to establish relishing. Adopting Johnson’s suggested
instruction actually would have increased, not decreased, the
likelihood that a reasonable jury would find that he relished
the murder.
9
While we conclude that the instructions given were
sufficient to guide and channel the jury’s discretion, we
commend the instructions given in Anderson, 210 Ariz. at 352-53

15

C.

¶24 Johnson filed a motion in limine to preclude gang-

related evidence in the aggravation phase and the penalty phase.

He argues that the gang evidence is prejudicial and irrelevant

and that A.R.S. § 13-703.F, which defines aggravating

circumstances, does not provide for the admission of evidence

about or reference to gangs. The trial court denied his motion,

stating that “as it relates to witness elimination as the motive

for the murder, . . . gang membership is probative at the

aggravation phase [to establish heinousness or depravity] and

[its] probative value outweighs any prejudicial effect.”

¶25 The rules of evidence govern the admissibility of

information relevant to any of the aggravating circumstances set

forth in A.R.S. § 13-703.F. A.R.S. § 13-703.B (Supp. 2005). We

_____________________
¶ 111 n.19, 111 P.3d at 394-95 n.19, on “relishing.” In
Anderson, the judge instructed the jury as follows:

In order to relish a murder the defendant must show by
his words or actions that he savored the murder.
These words or actions must show debasement or
perversion, and not merely that the defendant has a
vile state of mind or callous attitude.

Statements suggesting indifference, as well as
those reflecting the calculated plan to kill,
satisfaction over the apparent success of the plan,
extreme callousness, lack of remorse, or bragging
after the murder are not enough unless there is
evidence that the defendant actually relished the act
of murder at or near the time of the killing.

Id.

16

will not disturb the trial court’s evidentiary rulings absent an

abuse of discretion. State v. Jones, 197 Ariz. 290, 308 ¶ 47, 4

P.3d 345, 363 (2000). “[E]vidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in

order to show action in conformity therewith.” Ariz. R. Evid.

404(b). Such evidence, however, may be admissible to show

“proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” Id.

¶26 Other jurisdictions have held that evidence of gang

affiliation is allowed under circumstances similar to those of

this case. For instance, in People v. Champion, the prosecution

offered substantial evidence that the Raymond Avenue Crips were

involved in a triple murder. 891 P.2d 93, 116 (Cal. 1995),

abrogation on other grounds recognized by People v. Combs, 101

P.3d 1007, 1033 (Cal. 2004). In Champion, the California

Supreme Court concluded that evidence “that defendants were

members of the same gang formed a significant evidentiary link

in the chain of proof tying them to the crimes in [the] case.”

Id. As was true in Champion, evidence that Johnson was a member

of the same gang as his co-conspirators fortified the testimony

of the witnesses identifying witness elimination as his motive

for killing Stephanie Smith. See also State v. Ross, 127 P.3d

249, 255 (Kan. 2006) (stating that gang affiliation evidence is

admissible “to establish a motive for an otherwise inexplicable

17

act”); State v. Ferguson, 581 N.W.2d 824, 834-35 (Minn. 1998)

(concluding that trial court did not abuse its discretion in

admitting photographs and testimony on gang graffiti; although

the pictures “may have been highly prejudicial, the evidence was

also highly probative of [defendant’s] alleged motive to kill”).

¶27 The court of appeals reached a similar conclusion in

State v. Romero, 178 Ariz. 45, 870 P.2d 1141 (App. 1993). In

Romero, evidence that the defendant was a Hollywood Gang member,

that the attack occurred in rival gang territory, and that at

least some of the victims were present or former rival gang

members, was sufficient for the jury to find “a motive for what

otherwise would have been a random and unprovoked attack.” Id.

at 52, 870 P.2d at 1148. Similarly, an abundance of evidence

linked Johnson, his crimes, and his affiliation with the Lindo

Park Crips. Most notably, evidence that demonstrated Johnson’s

motive to murder Stephanie Smith included the facts that the

crimes involved other affiliated gang members, that Johnson

asked Phyllis Hansen whether any charges had been filed against

Ross, and that Johnson told Phyllis Hansen that “[Smith] was

going to testify against his cuz . . . and if there was no

testimony from her that there would be no case against [Ross].”

¶28 We also reject Johnson’s argument that the gang

evidence was unduly prejudicial. Although evidence that a

criminal defendant is a member of a gang could have a “‘highly

18

inflammatory impact’” on a jury, Champion, 891 P.2d at 116

(quoting People v. Cox, 809 P.2d 351, 373 (Cal. 1991)), the

trial court carefully scrutinized the evidence in this case and

reasonably concluded that its probative value was not

substantially outweighed by its prejudicial effect. Because the

evidence of gang affiliation was particularly probative on the

issue of motive, the trial court did not abuse its discretion in

permitting its introduction in the aggravation phase.

D.

¶29 During jury selection for the sentencing proceeding,

Johnson asked the court to strike the entire panel for cause,

based on the trial court’s failure to permit him to voir dire

the jurors to ask whether they regarded specific factors, such

as substance abuse, difficult childhood, and psychological

problems, as mitigating factors.10 Johnson cites Eddings v.

Oklahoma, 455 U.S. 104 (1982), for the proposition that a

“capital sentencer must give effect to all relevant mitigating

evidence.” Additionally, Johnson argues that Morgan v.

10
Johnson argues that Juror No. 116, who initially stated
that he viewed alcoholism as an aggravating circumstance,
provided a perfect demonstration of why he should have been
allowed to voir dire jurors on specific mitigating
circumstances. Juror No. 116, however, was not selected for the
aggravation and penalty phase jury panel, and any error
involving voir dire of this particular juror therefore is
harmless. State v. Glassel, 211 Ariz. 33, ___ ¶ 41, 116 P.3d
1193, 1206 (2005) (finding that any error in voir dire of

19

Illinois, 504 U.S. 719 (1992), implies that general fairness and

“follow the law” questions alone are insufficient to ensure

against a death-biased jury. Based on these contentions,

Johnson argues he did not receive a fair trial by impartial

jurors. This Court reviews a trial court’s rulings involving

the voir dire of prospective jurors for abuse of discretion,

State v. Trostle, 191 Ariz. 4, 12, 951 P.2d 869, 877 (1997).

¶30 In State v. Glassel, 211 Ariz. 33, ____ ¶¶ 42-44, 116

P.3d 1193, 1207 (2005), this Court recently rejected arguments

similar to those raised by Johnson. Glassel argued that the

trial court abused its discretion by refusing to allow him to

ask prospective jurors open-ended questions about what type of

mitigating evidence would be important to them in deciding

whether to impose the death penalty. Id. at ___ ¶ 42, 116 P.3d

at 1207. He contended that such questions were “necessary to

determine which prospective jurors, in violation of Morgan,

would automatically impose the death sentence despite the

jurors’ assurance that they could be fair and impartial.” Id.

at ___ ¶ 43, 116 P.3d at 1207. Finding no abuse of discretion,

we rejected his arguments, noting that Glassel cited no

authority to support his contention and that the trial court

_____________________
specific jurors was harmless when those jurors did not take part
in deliberations).

20

“did permit Glassel to ask open-ended questions on several

occasions.” Id. at ___ ¶ 44, 116 P.3d at 1207 (emphasis added).

¶31 Johnson also has cited no authority that requires a

court to allow a defendant to voir dire potential jurors about

specific mitigating circumstances. Extant authority unanimously

rejects this argument. See, e.g., Sellers v. Ward, 135 F.3d

1333, 1341-42 (10th Cir. 1998) (rejecting argument that a

defendant can inquire whether jurors would find specific facts

mitigating); Woodall v. Kentucky, 63 S.W.3d 104, 116 (Ky. 2001)

(finding no abuse of discretion when trial judge prohibited

questions about specific mitigating factors such as low I.Q. to

prevent defendant from “oblig[ing] jurors to commit themselves

by either accepting a specific mitigator or rejecting it before

any evidence was heard”); Burch v. State, 696 A.2d 443, 464 (Md.

1997) (“A defendant has no right to question prospective jurors,

under the guise of searching for disqualifying bias, to see who

might be receptive to any of the myriad of potential mitigating

factors he or she may choose to present.”); Holland v. State,

705 So. 2d 307, 338-39 (Miss. 1997) (refusing defendant’s

request to ask jurors whether alcohol consumption would be

regarded as a mitigating factor was not abuse of discretion);

State v. Wilson, 659 N.E.2d 292, 301 (Ohio 1996) (stating

“Morgan does not require judges to allow individual voir dire on

separate mitigating factors” because “jurors cannot be asked to

21

weigh specific factors until they have heard all the evidence

and been fully instructed on the applicable law”); Cannon v.

State, 961 P.2d 838, 845 (Okla. Crim. App. 1998) (finding no

abuse of discretion in trial judge’s refusal to permit voir dire

inquiry into jurors’ views on particular mitigating factors);

State v. Hill, 501 S.E.2d 122, 127 (S.C. 1998) (stating Morgan

held the defendant was entitled to know “if jurors would

consider general mitigating evidence . . . [not] that the

defendant was entitled to know if a juror would consider

specific mitigating evidence”) (emphasis added); Raby v. State,

970 S.W.2d 1, 3 (Tex. Crim. App. 1998) (“A trial court does not

abuse its discretion by refusing to allow a defendant to ask

venire members questions based on facts peculiar to the case on

trial (e.g. questions about particular mitigating evidence).”).

¶32 Johnson’s argument misconstrues the holding in

Eddings. In Eddings, the Court held that no mitigating evidence

may be statutorily precluded from consideration by a trier of

fact. 455 U.S. at 113-14. Nowhere in the opinion does the

Court suggest that voir dire about specific mitigating

circumstances is required. In fact, allowing such a procedure

could encourage jurors to limit their evaluation of mitigation

evidence to only those factors enumerated rather than to make a

broader inquiry into all the evidence presented. Such a result

would be contrary to the policy behind Eddings, which permits

22

consideration of any relevant mitigating evidence. See id. at

117.

¶33 Nor does Morgan support Johnson’s argument. In

Morgan, the Supreme Court held that “defendants have a right to

know whether a potential juror will automatically impose the

death penalty once guilt is found, regardless of the law,” and

therefore, “defendants are entitled to address this issue during

voir dire.” Jones, 197 Ariz. at 303 ¶ 27, 4 P.3d at 358

(construing Morgan). As we noted in Glassel, however, “‘[t]he

Constitution . . . does not dictate a catechism for voir dire,’”

211 Ariz. at ____ ¶ 37, 116 P.3d at 1205-06 (quoting Morgan, 504

U.S. at 729) (alteration in original), and “trial courts have

‘great latitude in deciding what questions should be asked on

voir dire.’” Id. at ____ ¶ 37, 116 P.3d at 1206 (quoting Mu’Min

v. Virginia, 500 U.S. 415, 424 (1991)). Although Morgan

indicates that voir dire must go beyond simple questions of

“[w]ill you follow the law that I give you?” and “[d]o you have

any prefixed ideas about this case at all?”, 504 U.S. at 735

n.9, it does not suggest that courts should permit inquiries

into specific mitigating circumstances.

¶34 Here, the trial court clearly complied with Morgan

requirements. Before the aggravation phase, the trial court

required each potential juror to fill out a 23-page juror

questionnaire that fully addressed Morgan issues. The trial

23

court also conducted individual voir dire of every prospective

juror whose responses raised impartiality concerns. Jurors not

rehabilitated following individual voir dire were dismissed for

cause.

¶35 We conclude that the trial court did not abuse its

discretion in refusing to allow detailed questioning about

specific mitigating factors during voir dire.

E.

¶36 Johnson next contends that the trial court erred by

permitting the State to introduce a four-minute video clip of

Detective Tom Kulesa’s January 2001 interrogation of Johnson

during the rebuttal testimony of Dr. Gina Lang, the State’s

mental health expert. Johnson argues that playing the audio

portion of the tape was unduly prejudicial because the tape

contained profanity and references to Johnson’s unrelated

criminal conduct. He contends that the visual images

themselves, without the audio, would have been sufficient for

jurors to evaluate the credibility of Dr. Lang’s diagnosis.

Finally, he argues that the error in admitting the tape was not

harmless because the trial court failed to instruct jurors to

limit their consideration of the tape to a proper purpose.

¶37 “Evidentiary rulings are subject to the trial court’s

determination and will not be disturbed, absent an abuse of

discretion.” Jones, 197 Ariz. at 308 ¶ 47, 4 P.3d at 363.

24

“Facts or data underlying [a] testifying expert’s opinion are

admissible for the limited purpose of showing the basis of that

opinion, [but] not to prove the truth of the matter asserted.”

State v. Rogovich, 188 Ariz. 38, 42, 932 P.2d 794, 798 (1997).

Dr. Lang testified that, in addition to reports, records, and

her own examination of Johnson, she relied on the tape-recording

of Detective Kulesa’s interrogation of Johnson to diagnose him

with a “personality disorder that includes antisocial borderline

and histrionic traits.”

¶38 The videotape was helpful to jurors in several ways.

It demonstrated for the jurors Johnson’s histrionic traits, one

of the factors that Dr. Lang relied upon in her analysis. In

addition to corroborating her diagnosis, the tape served to

rebut defense expert Dr. Carlos Jones’s testimony that Johnson

was not faking his symptoms. See A.R.S. § 13-703.D (Supp. 2005)

(permitting the prosecution and defendant to rebut any

information received at the aggravation or penalty phase of the

sentencing proceeding). Although some of the statements made in

the interrogation do not reflect positively on Johnson, the

trial court did not abuse its discretion in concluding that any

potential prejudice from the tape did not outweigh its probative

value in helping the jury understand Dr. Lang’s diagnosis.

25

¶39 Also, contrary to Johnson’s contention, the trial

court specifically limited the jury’s use of the videotape to a

proper purpose. The trial court instructed the jury that

this video is merely offered to help you understand
this doctor’s opinion . . . as to defendant’s various
psychological characteristics. Language in the tape,
which you see as Detective Kulesa is talking to the
defendant, is not offered for the substance; it is
merely offered as part of his, the defendant’s
behavior, which the Doctor, I believe, says is of
histrionic nature. With that understanding, that’s
the only purpose [for which] this videotape is being
admitted.

¶40 Because the videotape assisted jurors in determining

the credibility and accuracy of Dr. Lang’s diagnosis and the

trial court properly instructed the jury as to the limited

purpose of the videotape, we find no abuse of discretion.

F.

¶41 Johnson also argues that his Eighth and Fourteenth

Amendment rights were violated because the trial court failed to

specifically instruct jurors to consider evidence of family

dysfunction, substance abuse, and personality disorder as

mitigation in the penalty phase jury instructions. Because of

this failure to instruct, Johnson contends, a reasonable

probability remains that the jury did not consider principal

mitigating evidence.

¶42 During the aggravation phase of a capital trial, “the

Eighth Amendment requires that a capital sentencing jury’s

26

discretion be guided and channeled by requiring examination of

specific factors that argue in favor of or against imposition of

the death penalty in order to eliminate arbitrariness and

capriciousness.” Buchanan v. Angelone, 522 U.S. 269, 274 (1998)

(quoting Buchanan v. Angelone, 103 F.3d 344, 347 (4th Cir.

1996)) (internal quotations omitted). “In contrast, in the

[penalty] phase, [the Supreme Court has] emphasized the need for

a broad inquiry into all relevant mitigating evidence to allow

an individualized determination.” Id. at 276. The standard for

reviewing jury instructions used during the penalty phase of the

capital sentencing proceeding is “‘whether there is a reasonable

likelihood that the jury has applied the challenged instruction

in a way that prevents the consideration of constitutionally

relevant [mitigating] evidence.’” Id. (quoting Boyde v.

California, 494 U.S. 370, 380 (1990)).

¶43 A significant danger could result if we were to adopt

Johnson’s approach and direct or permit trial courts to give

potentially confining mitigation instructions during the penalty

phase of a capital trial. The consistent concern in the penalty

phase is “that restrictions on the jury’s sentencing

determination not preclude the jury from being able to give

effect to mitigating evidence.” Id. “[The Supreme Court’s]

decisions suggest that complete jury discretion is

constitutionally permissible.” Id. (citing Tuilaepa v.

27

California, 512 U.S. 967, 978-79 (1994), as “noting that at the

[penalty] phase, the state is not confined to submitting

specific propositional questions to the jury and may indeed

allow the jury unbridled discretion”); see also Zant v.

Stephens, 462 U.S. 862, 875 (1983) (finding that a scheme

permitting jurors unbridled discretion in determining whether to

impose the death penalty after eligibility for the death penalty

is determined is not unconstitutional).

¶44 The Supreme Court has rejected the argument that

judges should instruct capital juries on specific mitigating

factors. Buchanan, 522 U.S. at 270 (holding that the Eighth

Amendment does not require “that a capital jury be instructed on

the concept of mitigating evidence generally, or on particular

statutory mitigating factors”). Buchanan involved a jury

instruction that advised jurors, “[I]f you believe from all the

evidence that the death penalty is not justified, then you shall

fix the punishment of the Defendant at life imprisonment.” Id.

at 272-73 & n.1. This instruction survived a constitutional

challenge because it “did not foreclose the jury’s consideration

of any mitigating evidence.” Id. at 277.

¶45 The instructions given by the trial court clearly

satisfy the Buchanan test. The court instructed the jurors that

“mitigating circumstances may be any factors presented by the

defendant or the State that are relevant in determining whether

28

to impose a sentence of less than the death penalty” and that

they could consider “any aspect of the defendant’s background,

character, or propensity or record, and any of the circumstances

of the offense that might justify a penalty less severe than

death.” (Emphasis added.) Cf. Blystone v. Pennsylvania, 494

U.S. 299, 308 (1990) (rejecting argument that trial judge’s list

of statutory mitigating factors impermissibly precluded

consideration of other possible mitigation because trial judge

instructed jurors that they were “entitled to consider ‘any

other mitigating matter concerning the character or record of

the defendant, or the circumstances of his offense’”).

¶46 The jury had ample opportunity to consider all the

evidence related to mitigation. Johnson presented witnesses and

evidence to establish possible mitigating factors over a three-

day period. Given the focus Johnson placed on the mitigating

factors and the time allotted to present and argue the evidence,

we see no reasonable likelihood that the jury found itself

foreclosed from considering potentially mitigating evidence of

family dysfunction and substance abuse. See Buchanan, 522 U.S.

at 278 (stating that it is “unlikely that reasonable jurors

would believe that the court’s instructions transformed four

days of defense testimony on the defendant’s background and

character into a virtual charade”) (citation and internal

quotation omitted).

29

¶47 Accepting Johnson’s argument that a trial court should

be required to provide a list of specific mitigating factors to

the jury “would be inharmonious with the Supreme Court’s

admonitions that the sentencer be free to consider any relevant

mitigating factor.” Tucker v. Zant, 724 F.2d 882, 892 (11th

Cir. 1984) (emphasis added); see also Eddings, 455 U.S. at 112.

The sort of specificity Johnson requests “would doubtless bring

complaints from other petitioners that the trial court had

unduly narrowed the focus of the jury’s consideration.”11

Tucker, 724 F.2d at 892. The trial court did not abuse its

discretion in refusing to instruct the jury on specific

mitigating factors.

III.

¶48 Because Johnson’s crime occurred before August 1,

2002, we independently review the jury’s “findings of

aggravation and mitigation and the propriety of the death

sentence.” A.R.S. § 13-703.04.A; see also 2002 Ariz. Sess.

Laws, 5th Spec. Sess., ch. 1, § 7.B. “[W]e consider the quality

and strength, not simply the number, of aggravating and

mitigating factors.” Greene, 192 Ariz. at 443 ¶ 60, 967 P.2d at

118.

11
We also note that even though the trial court did not
specifically instruct the jury on family dysfunction and
substance abuse, during final arguments, Johnson’s counsel

30

A.

¶49 In this case, the jury found three aggravators: (1)

prior conviction for the serious offense of armed robbery; (2)

grave risk of death to a third party; and (3) that the murder

was especially heinous and depraved. A.R.S. § 13-703.F.2, F.3,

F.6.

1.

¶50 A defendant is eligible for the death penalty if he

was “previously convicted of a serious offense, whether

preparatory or completed.” A.R.S. § 13-703.F.2. A serious

offense includes armed robbery. A.R.S. § 13-703.I(8) (Supp.

2005). Johnson did not dispute his prior conviction for the

serious offense of armed robbery.

2.

¶51 Under section 13-703.F.3, an aggravating circumstance

exists if “[i]n the commission of the offense the defendant

knowingly created a grave risk of death to another person or

persons in addition to the person murdered during the commission

of the offense.” The question in this case was whether Johnson

created a grave risk of danger to Jordan, the victim’s young

son. Factors relevant to our analysis include: (1) the third

person’s proximity to the victim (whether the third person was

_____________________
argued the presence of specific mitigating circumstances not
elaborated by the final penalty phase jury instructions.

31

in the “zone of danger”), see Wood, 180 Ariz. at 69, 881 P.2d at

1174; (2) whether the defendant’s actions were during “the

murderous act itself,” see State v. McCall, 139 Ariz. 147, 160,

677 P.2d 920, 933 (1983); (3) whether the defendant intended to

kill the third party, see Tison, 129 Ariz. at 542, 633 P.2d at

351; and (4) whether the defendant engaged in sufficiently risky

behavior toward the third person, see State v. Jeffers, 135

Ariz. 404, 428-29, 661 P.2d 1105, 1129-30 (1983). “No single

factor is dispositive of this circumstance. Our inquiry is

whether, during the course of the killing, the defendant

knowingly engaged in conduct that created a real and substantial

likelihood that a specific third person might suffer fatal

injury.” Wood, 180 Ariz. at 69, 881 P.2d at 1174.

¶52 Substantial evidence supports the F.3 aggravator. It

is clear that any potential risk to Jordan took place during

“the murderous act itself” because Jordan was in the same room

as Smith at the time she was shot. It is also evident that

Johnson did not intend to kill Jordan. His motive was to kill

Smith because she was a witness to another crime. Moreover,

upon entering Smith’s property, he said, “We’re here for the

bitch,” indicating his intention to kill Smith. The exact

proximity of Jordan to his mother, however, is unclear. The

“mere presence of bystanders” is insufficient to show this

32

aggravator, but the F.3 aggravator is not limited to cases in

which the third party was directly in the line of fire. Id.

¶53 Even if Jordan was not in his mother’s arms at the

time of the shooting, clearly he was in the zone of danger.

Jordan and his mother were in a small bedroom, measuring 10 feet

by 10 feet, and he was in close enough proximity when she was

shot to have her blood splatter on his cheek and shirt. See

State v. Gonzales, 181 Ariz. 502, 514, 892 P.2d 838, 850 (1995)

(finding that wife confined to 10 feet by 10 feet courtyard with

the defendant as he stabbed her husband was in grave risk of

death; she attempted to rescue her husband by jumping on the

defendant’s back as he was stabbing her husband); State v.

Fierro, 166 Ariz. 539, 550, 804 P.2d 72, 83 (1990) (finding

victim’s girlfriend was in zone of danger when defendant fired

several shots at victim, striking him once and narrowly missing

his girlfriend whom the defendant knew was seated nearby). The

evidence establishes a “grave risk of death to others.”

3.

¶54 Because the F.6 aggravator is considered in the

disjunctive, we evaluate the terms cruel, heinous, and depraved

separately. Gretzler, 135 Ariz. at 51, 659 P.2d at 10. The

jury did not find the aggravating factor of especial cruelty but

did find the murder both heinous and depraved.

33

¶55 Heinousness and depravity go to a defendant’s mental

state as reflected in his words and actions at or near the time

of the offense. State v. Martinez-Villareal, 145 Ariz. 441,

451, 702 P.2d 670, 680 (1985). Heinousness is generally defined

as “hatefully or shockingly evil: grossly bad.” State v. Knapp,

114 Ariz. 531, 543, 562 P.2d 704, 716 (1977) (citing Webster’s

Third New International Dictionary). Depravity is generally

defined as “marked by debasement, corruption, perversion or

deterioration.” Id.

¶56 Gretzler, 135 Ariz. at 52, 659 P.2d at 11, and Ross,

180 Ariz. at 606, 886 P.2d at 1362, set forth six factors to be

considered in determining whether a defendant’s state of mind

was especially heinous or depraved. One of these factors is

witness elimination as a motive for the murder. Ross, 180 Ariz.

at 606, 886 P.2d at 1362.

¶57 The State can establish witness elimination as a

motive by showing: (1) “[that] the murder victim is a witness

to some other crime, and is killed to prevent that person from

testifying about the other crime”; (2) “a statement by the

defendant that witness elimination is a motive for the murder”;

or (3) that “extraordinary circumstances of the crime show,

beyond a reasonable doubt, that witness elimination is a

motive.” Id. State v. King held that witness elimination, by

itself, is not sufficient to raise a murder “above the norm” and

34

cannot support a finding of heinousness or depravity. 180 Ariz.

268, 286-87, 883 P.2d 1024, 1042-43 (1994).

¶58 King involved the elimination of a witness who was

also a victim of the same crime rather than the elimination of a

witness to some other crime. Id. at 270, 883 P.2d at 1026

(store clerk and security guard killed during robbery). As

Justice Moeller’s concurrence in King correctly noted, however,

under some circumstances witness elimination itself can support

a finding of heinousness or depravity. Id. at 290, 883 P.2d at

1046 (Moeller, V.C.J., concurring). For example, “such a case

might be the murder of a government witness arranged by gangs or

organized crime under circumstances not falling within the

aggravating pecuniary value provisions of § 13-703(F)(4) or

(5).” Id. (Moeller, V.C.J., concurring). We agree that, under

the circumstances underlying the King decision, witness

elimination did not establish heinousness or depravity. We

hold, however, that the broad statement in King does not apply

when a capital defendant eliminates the witness to a crime other

than the murder to prevent that witness from testifying. In

such a situation, witness elimination, by itself, will justify a

finding of heinousness or depravity.

¶59 “Ending the life of a human being so that that person

cannot testify against the defendant indicates a complete lack

of understanding of the value of a human life.” State v. Smith,

35

141 Ariz. 510, 512, 687 P.2d 1265, 1267 (1984); see also State

v. Correll, 148 Ariz. 468, 481, 715 P.2d 721, 734 (1986) (noting

“depravity is indicated” where witness elimination occurs).

“Killings committed with this cold-blooded logic in mind are

especially depraved,” Smith, 141 Ariz. at 512, 687 P.2d at 1267,

and “separate the crime from the ‘norm’ of first-degree

murders,” Gretzler, 135 Ariz. at 53, 659 P.2d at 12.

Accordingly, we are persuaded that witness elimination can

itself be sufficient to find heinousness or depravity when a

witness to some other crime is eliminated to prevent that

witness from testifying.

¶60 In so holding, we do not transform witness elimination

into a “per se aggravating factor” as discussed in King, 180

Ariz. at 285-86, 883 P.2d at 1041-42. Instead, we uphold Ross’s

distinction between the elimination of the victim of the capital

crime, which “would be present in every murder” and the

elimination of a witness to another crime, 180 Ariz. at 606, 886

P.2d at 1362, which is a separate and serious act.

¶61 In this case, strong and uncontroverted evidence

supports witness elimination as a motive for the murder of

Stephanie Smith. First, Smith was a witness to “some other

crime,” the robbery at Affordable Massage on November 7, 2000.

Second, the State presented evidence that Johnson made

statements to Phyllis Hansen admitting that his motive for

36

killing Smith was to eliminate her as a witness. Indeed, on

appeal, Johnson does not contest that the evidence established

witness elimination as the motive for killing Smith.

¶62 Given the strength of the evidence establishing

witness elimination as Johnson’s motive for killing Smith, this

factor, by itself, establishes the F.6 aggravator.12

B.

¶63 Johnson alleges a myriad of statutory and nonstatutory

mitigating circumstances including brain damage, chronic

substance abuse, borderline and antisocial personality disorder,

dysfunctional family background, love of his family, and

disparity of treatment of his co-defendant.

¶64 Although Johnson presented some evidence of frontal

brain dysfunction and some level of memory and executive

function impairment through Dr. Carlos Jones’s testimony, both

the State’s and Johnson’s psychological experts agreed that

Johnson’s cognitive functions are intact. In fact, Johnson’s

own expert, Dr. Jones, admitted that “there’s not real

impairment there” and that Johnson appears to fall within the

average range of cognitive ability.

12
The State also presented evidence of relishing and
helplessness, but because we hold that witness elimination can
itself be sufficient to find heinousness or depravity when a
witness to a crime other than the murder is eliminated to
prevent that witness from testifying, we need not address the
remaining factors.

37

¶65 Most of the other mitigating circumstances alleged by

Johnson involve some type of mental or psychological impairment.

“[T]he weight to be given [to] 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. “We do not require that a [causal] nexus between

the mitigating factors and the crime be established before we

consider the mitigation evidence. But the failure to establish

such a causal connection may be considered in assessing the

quality and strength of the mitigation evidence.” State v.

Newell, ___ Ariz. ___, ___ ¶ 82, ___ P.3d ___, ___ (2006). In

this case, both the State’s and Johnson’s experts indicated that

Johnson knew right from wrong and could not establish a causal

nexus between the mitigating factors and Johnson’s crime.

Accordingly, we afford Johnson’s evidence of personality

disorders, difficult childhood, and substance abuse only minimal

value.

¶66 The remaining mitigation evidence, based on the love

of his family and the allegation of discrepancy in sentencing,

also is of minimal weight. “[H]is family’s love has not stopped

him from what amounts to a lifetime of crime.” King, 180 Ariz.

at 289, 883 P.2d at 1045. Moreover, the disparity between the

punishment given to Quindell Carter and that given this

38

defendant is explained by Johnson’s larger role in the murder of

Stephanie Smith.

¶67 Balancing the de minimis mitigation against the three

established aggravating factors, we conclude that the mitigating

circumstances are not sufficiently substantial to call for

leniency.

IV.

¶68 For purposes of federal review, Johnson raises a

number of challenges to the constitutionality of Arizona’s death

penalty scheme. He concedes that this Court has previously

rejected these arguments. Although Johnson failed to offer any

argument to support these challenges, we will briefly address

each issue.

¶69 First, Johnson contends that A.R.S. § 13-703 is

unconstitutional because it permits jurors unfettered discretion

to impose a death sentence without adequate guidelines to weigh

and consider appropriate factors and fails to provide a

principled means to distinguish between those defendants

deserving of death and those who do not. We rejected this

argument in State v. Carreon, 210 Ariz. 54, 75-76 ¶ 117, 107

P.3d 900, 921-22 (2005).

¶70 Second, Johnson contends that Arizona’s requirement

that mitigating circumstances be proved by a preponderance of

the evidence improperly precludes jurors from considering

39

mitigating facts. We rejected a similar argument in State v.

Medina, 193 Ariz. 504, 515 ¶ 43, 975 P.2d 94, 105 (1999)

(stating “it is not unconstitutional to require the defense to

establish mitigating circumstances by a preponderance of the

evidence”).

¶71 Third, he argues that Arizona’s death penalty scheme

violates the Fifth, Eighth, and Fourteenth Amendments by

shifting the burden of proof and requiring that a capital

defendant convince jurors that his life should be spared. We

rejected this argument in State v. Fulminante, 161 Ariz. 237,

258, 778 P.2d 602, 623 (1988), and Carreon, 210 Ariz. at 76 ¶

122, 107 P.3d at 922 (restating holding in Fulminante).

¶72 Fourth, he contends that death-biased language in the

proceedings prejudiced jurors in favor of the death penalty. No

case in Arizona or in any other jurisdiction has specifically

addressed this issue. In raising this argument, Johnson asserts

that use of the words “aggravation phase” connotes to jurors

that “aggravation” necessarily exists and invades the province

of the jury since it is jurors who must determine whether the

State has proven aggravation beyond a reasonable doubt. He also

contends that the word “death” was “peppered liberally”

throughout the aggravation and penalty phase instructions and

evidences a strong and unconstitutional bias in favor of the

death penalty. We note, however, that Johnson’s own requested

40

jury instructions used the terms “aggravation phase” and “death”

at least ten times, respectively. Moreover, the trial court’s

jury instructions during the aggravation phase, taken as whole,

clearly indicated to jurors that the purpose of the proceeding

was to determine whether the State had established any

aggravating factors and that the mere allegation of aggravating

factors against Johnson was not evidence against him. No

reasonable juror would have interpreted these instructions and

the use of the words “aggravation phase” as requiring a finding

of aggravation. Nonetheless, because Johnson failed to develop

this argument, we regard it as waived. Bolton, 182 Ariz. at

298, 896 P.2d at 838.

¶73 Fifth, Johnson argues that the lack of guidance in the

jury’s verdict form impedes reviewability because there is no

indication which mitigating factors jurors found to exist. We

rejected this argument in State v. Roseberry, 210 Ariz. 360, 373

n.12, 111 P.3d 402, 415 n.12 (2005).

¶74 Sixth, Johnson argues that the introduction of victim

impact evidence shifts the burden of proof to the defendant. We

rejected a similar argument in Carreon, 210 Ariz. at 72 ¶¶ 90-

92, 107 P.3d at 918 (rejecting defendant’s argument that victim

impact statements admitted after the introduction of his

mitigation evidence unduly prejudiced the jury).

41

¶75 Finally, Johnson contends that the failure of Arizona

courts to permit jurors to conduct proportionality review denies

him due process of law. We rejected an identical claim in State

v. Harrod, 200 Ariz. 309, 320 ¶ 65, 26 P.3d 492, 503 (2001), and

Carreon, 210 Ariz. at 75 ¶ 115, 107 P.3d at 921.

V.

¶76 For the foregoing reasons, we affirm Johnson’s

convictions and sentences, including the capital sentence.

____________________________________
Ruth V. McGregor, Chief Justice

CONCURRING:

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

42