State v. Andriano

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-05-0005-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2000-096032
WENDI ELIZABETH ANDRIANO, )
)
Appellant. ) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Brian K. Ishikawa, 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 State of Arizona

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Brent E. Graham, Deputy Public Defender
Margaret M. Green, Deputy Public Defender
Attorneys for Wendi Elizabeth Andriano
________________________________________________________________

B E R C H, Vice Chief Justice

¶1 In 2004, Wendi Andriano was found guilty of one count

of first degree murder and sentenced to death. This automatic

appeal followed. We have jurisdiction pursuant to Article 6,

Section 5(3), of the Arizona Constitution and Arizona Revised

Statutes (“A.R.S.”) section 13-4031 (2001).

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I. FACTS1 AND PROCEDURAL BACKGROUND

¶2 Wendi Andriano, her terminally ill husband, Joe, and

their two small children attended a barbeque on October 7, 2000.

They returned to their apartment around midnight and put the

children to bed.

¶3 At about 2:15 a.m. on October 8, Andriano called

Chris, a coworker who also lived at the apartment complex, and

asked her to watch the children while Andriano took Joe to the

doctor. When Chris arrived, Andriano met her outside the

apartment. She told Chris, “I have a problem. Don’t ask any

questions. My husband’s in on the floor dying and I haven’t

called 911 yet.” When Andriano cautioned, “He doesn’t know I

haven’t called 911,” Chris urged her to make the call.

¶4 Upon entering the apartment, Chris found Joe lying on

the living room floor in the fetal position. He had vomited,

appeared weak, and was having difficulty breathing. While

Andriano was in another room calling 911, Joe told Chris that he

needed help and had “for a long time.” He asked why it was

taking forty-five minutes for the paramedics to arrive.

¶5 Andriano returned to the room and told Chris she

needed to get Joe to the car so she could drive him to the

1
We view the facts in the light most favorable to sustaining
the verdict. State v. Tucker, 205 Ariz. 157, 160 n.1, 68 P.3d
110, 113 n.1 (2003).

- 2 -

hospital because the paramedics were responding to another call.

Joe said he could not get up, so Andriano tried to lift him.

When she could not, she became irritated and yelled at Joe,

using profanities. Hearing sirens approaching, Chris went out

to direct the paramedics to the apartment as Joe began to vomit

again.

¶6 As the paramedics were unloading their equipment,

Andriano came out of the apartment screaming at them to go away.

She then slammed the door. Chris and four paramedics knocked on

the apartment door, but no one answered. After five to ten

minutes of knocking, the Phoenix Fire Department alarm room

called the Andrianos’ home telephone in an attempt to get

Andriano to open the door. The alarm room notified the

paramedics that contact had been made with someone in the

apartment who would come out to speak with them. Rather than

coming through the front door, which opened to the living room,

Andriano went out through her back door, climbed over the back

patio wall, and walked around the apartment building to the

front door, where Chris and the paramedics were standing.

Andriano had changed her shirt and her hair was wet. She told

the paramedics that Joe was dying of cancer and had a do-not-

resuscitate order. She explained that “this was not the way

that he wanted to go.” The paramedics and Chris left without

going into the apartment.

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¶7 Andriano called 911 again at 3:39 a.m. The same

paramedics responded and saw Andriano, wearing a bloody shirt,

standing outside the apartment talking to a police officer.

¶8 When the paramedics entered the apartment, they found

Joe lying on the floor in a pool of blood. He had a deep stab

wound to the left side of his neck and lacerations on his head

that exposed some brain matter. A police detective observed at

3:52 a.m. that the blood surrounding Joe’s head was already

starting to dry. A broken bar stool covered in blood was found

near Joe’s body, as were pieces of a lamp, a kitchen knife with

blood on the sharp edge, a bloody pillow, and a belt.

¶9 A search of the Andrianos’ storage unit revealed an

open cardboard shipping box containing a 500-gram bottle of

sodium azide, two Tupperware containers containing sodium azide,

nine Q-tips, a plastic knife and fork, and two pairs of latex

gloves. Andriano’s fingerprints were on the plastic knife and

the vacuum-packed bag in which the cardboard box was shipped.

During a search of the Andrianos’ apartment, the police found

gelatin capsules filled with sodium azide in a bottle labeled

for an herbal supplement. Trace amounts of sodium azide were

also discovered in the contents of a pot and two soup bowls in

the kitchen. In all, 20.8 grams of sodium azide could not be

accounted for.

¶10 The medical examiner determined that Joe sustained

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brain hemorrhaging caused by no fewer than twenty-three blows to

the back of his head, eight to ten of which independently could

have rendered Joe unconscious. Defensive wounds on Joe’s hands

and wrists indicated, however, that he was conscious for at

least part of the attack. Joe also sustained a 3 and 3/4-inch-

long by 2-inch-wide stab wound to the left side of his neck that

extended to his spine and severed his carotid artery. The

medical examiner opined that the blows to the head were

sustained before the stab wound to the neck and that Joe was

still alive, although likely unconscious, when he was stabbed.

Trace amounts of sodium azide were found in Joe’s blood and

gastric contents. The cause of death was attributed to blunt

force trauma and the stab wound.

¶11 Based on the blood spatter and other evidence, a

Phoenix police detective opined that Joe was lying down while he

was being struck and did not get up during the attack. He

further opined, based on the absence of arterial spurting on the

belt and the knife, that both items were placed beside Joe’s

body after he died. Blood spatter on the bar stool, on the

other hand, suggested that the stool was present when the

arterial spurting began.

¶12 After being taken into custody, Andriano called one of

her coworkers and asked her to hide certain items that were in

Andriano’s business office. Andriano’s adoptive father told a

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police detective on the day of the murder, “I remember

[Andriano] telling me that she stabbed [Joe].”

¶13 Andriano was indicted on one count of first degree

murder. The State filed a notice of intent to seek the death

penalty and subsequently alleged two aggravating factors: that

Andriano committed the offense “in expectation of the receipt[]

of anything of pecuniary value,” in violation of A.R.S. § 13-

703(F)(5) (Supp. 2000), and that she committed the murder “in an

especially heinous, cruel or depraved manner,” in violation of

A.R.S. § 13-703(F)(6). The State further alleged that the

offense was a dangerous felony, see id. § 13-604(P), because it

“involved the intentional or knowing infliction of serious

physical injury upon Joseph Andriano.”

¶14 At trial, Andriano testified that after a failed

assisted suicide attempt by poison, she and Joe got into a

fight, during which she hit Joe with a bar stool in self-

defense. She claimed that he ultimately slit his own throat.

The jury found Andriano guilty of first degree murder and

further found that the murder was a dangerous felony.

¶15 The same jury found the (F)(6) “especially cruel”

aggravating factor, but did not find the (F)(5) “pecuniary gain”

aggravator. Finding that the mitigating circumstances were not

sufficiently substantial to call for leniency, the jury returned

a verdict calling for a sentence of death.

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II. DISCUSSION

¶16 Andriano raises eleven issues on appeal and lists an

additional thirteen claims to avoid preclusion.2

A. Guilt Phase Issues

1. Admission of other act evidence

¶17 Andriano claims that evidence of her extramarital

affairs and her attempts to obtain insurance policies on Joe’s

life was unfairly prejudicial and was neither intrinsic to the

charge against her nor admissible under Arizona Rule of Evidence

404(b). We review evidentiary rulings for an abuse of

discretion. State v. McGill, 213 Ariz. 147, 156, ¶ 40, 140 P.3d

930, 939 (2006), cert. denied, 127 S. Ct. 1914 (2007).

¶18 The trial court found the insurance and affairs

evidence “intrinsic” to the crime. “‘Other act’ evidence is

‘intrinsic’ when [1] evidence of the other act and evidence of

the crime charged are ‘inextricably intertwined’ or [2] both

acts are part of a ‘single criminal episode’ or [3] the other

acts were ‘necessary preliminaries’ to the crime charged.”

State v. Dickens, 187 Ariz. 1, 18-19 n.7, 926 P.2d 468, 485-86

n.7 (1996) (quoting United States v. Coleman, 78 F.3d 154, 156

(5th Cir. 1996)).

2
The thirteen claims listed to avoid preclusion are appended
to this opinion.

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a. Life insurance policies

¶19 After three surgeries to remove a recurring tumor in

his salivary gland and as many misdiagnoses, Joe was diagnosed

with metastatic adenoid cystic carcinoma in 1998. By that time,

the cancer had spread to his lungs and his condition was deemed

terminal.

¶20 Nevertheless, during August and September of 2000,

Andriano made several attempts to obtain insurance on Joe’s life

through various companies. During the prescreening process,

Andriano claimed that Joe did not have cancer. One agent

contacted Joe on September 6 after receiving an electronic pre-

application, at which time Joe indicated that he was not

interested in applying. Andriano sent an email three days later

from her personal email account asking that Joe’s request be

reinstated and directing that further contact be made with her.

She also asked two men to pose as Joe for a life insurance

physical exam, one of whom she offered to pay as much as

$50,000. Both refused. No life insurance policy was ever

obtained through these efforts.

¶21 Andriano’s attempts to procure insurance on Joe’s life

do not fall into any of the three categories of intrinsic

evidence. Because she never secured insurance, the attempts to

procure it were not inextricably intertwined with Joe’s murder,

part of a single criminal episode, or a necessary preliminary to

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Joe’s murder. See id. The insurance procurement evidence

clearly differs from, for example, evidence deemed intrinsic in

Dickens that the defendant had stolen the gun used in the

charged murders and robberies. See id.; see also State v.

Nordstrom, 200 Ariz. 229, 248, ¶ 56, 25 P.3d 717, 736 (2001)

(commenting on the “necessary preliminary” prong of the

intrinsic evidence inquiry).

¶22 Even though not intrinsic to the crime charged, “other

act” evidence may nonetheless be admissible under Rule 404(b) to

prove “motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident,” as long

as its probative value is not substantially outweighed by the

danger of unfair prejudice. Ariz. R. Evid. 403; see also

Dickens, 187 Ariz. at 19, 926 P.2d at 486.

¶23 Evidence of Andriano’s attempts to obtain insurance on

Joe’s life was admissible to show her plan, knowledge, and

intent to kill Joe, and also to show that she premeditated Joe’s

murder. Moreover, the significant probative value of such

damaging evidence is not substantially outweighed by the danger

of unfair prejudice to Andriano. Because the evidence was

admissible under Rule 404(b), the trial court did not abuse its

discretion in admitting the evidence, even if it might have

admitted the evidence for the wrong reason. See State v. Perez,

141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) (affirming trial

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court’s ruling even though trial judge reached the proper

conclusion for the wrong reason).

b. Extramarital affairs

¶24 During the summer of 2000, Andriano had a brief

extramarital affair with Rick, a resident of the apartment

complex where she lived and worked as the property manager.

That affair ended in July when Rick learned that Andriano was

married and had children. Despite his rejection of her

advances, Andriano aggressively pursued Rick. On one occasion,

she stood outside his apartment late at night, banging on his

door for five minutes, demanding to be let in, and threatening

to get the master “pass key” if he did not let her in.

¶25 During that same summer, Andriano frequented bars on a

weekly basis with coworkers and friends. There, she was seen

dancing and flirting and even groping and kissing men. On

September 27, the evening after Joe’s fourth chemotherapy

treatment, Andriano went to a dance club and began dancing

provocatively with and kissing a man she met there. They

ultimately returned to the Andrianos’ apartment and had sex.

During a phone conversation the following day, Andriano told the

man her husband had died of cancer.

¶26 Like the insurance evidence, evidence of Andriano’s

extramarital affairs is not intrinsic to the first degree murder

charge. The affairs were not inextricably intertwined with or

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part of the same criminal episode as the murder, nor were they a

necessary preliminary to the murder. Dickens, 187 Ariz. at 18-

19 n.7, 926 P.2d at 485-86 n.7. The evidence was admissible

under Rule 404(b), however, as evidence of Andriano’s motive for

killing her husband – to be free to pursue other relationships.

Supporting this purpose was testimony from Andriano’s

hairdresser, who testified that Andriano told her in February of

2000 that she would have divorced Joe were he not ill. At a

later visit, Andriano disclosed that Joe “wanted to keep the

marriage together,” but she was “emotionally out of it” and

“wished he was dead so she could move on with her life.” Around

August of 2000, Andriano confided to the hairdresser that she

was interested in another man who hesitated to get involved in a

relationship because she was married.

¶27 The evidence was also admissible under Rule 404(b) to

rebut the defense theory that Andriano was a domestic violence

victim who lived in fear of her abusive husband, whom she

bludgeoned to death in self-defense.

¶28 Andriano maintains, nonetheless, that the evidence was

unfairly prejudicial because “[t]he prosecutor took every

opportunity to infuse the trial with marginally relevant

information about Andriano’s partying and man-chasing.”3 Nearly

3
Andriano does not allege prosecutorial misconduct.

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all the examples Andriano provides relate to the prosecutor’s

comments in the guilt phase closing arguments. Comments in

closing arguments, however, are not evidence, as the jury was

instructed, and thus the comments do not render unfairly

prejudicial evidence that is otherwise properly admitted.

¶29 Another incident about which Andriano complains

occurred during the cross-examination of defense expert Dr.

Sharon Murphy. The prosecutor asked Dr. Murphy whether Andriano

used a personal lubricant during sexual intercourse with Rick.

The door to this line of questioning had been opened by defense

counsel’s questioning on direct examination, to which Dr. Murphy

responded that Andriano and Joe “needed to use a lubricant”

during intercourse. Considered in context, the questioning was

designed to rebut Dr. Murphy’s suggestion, elicited by defense

counsel’s question, that Andriano’s need to use a lubricant when

she had sex with Joe showed that Joe was an abusive spouse. The

evidence elicited was not unfairly prejudicial.

¶30 The final incident relates to a comment the prosecutor

made during aggravation phase closing arguments and therefore is

not relevant to whether such evidence was admissible in the

guilt phase. The probative value of evidence of Andriano’s

extramarital relationships is not substantially outweighed by

the danger of unfair prejudice, and thus the trial court did not

abuse its discretion in admitting the evidence.

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¶31 In sum, although neither category of evidence is

intrinsic to the crime charged, both categories are admissible

under Rule 404(b): evidence of attempts to procure life

insurance to prove plan, knowledge, intent, and premeditation,

and evidence of extramarital affairs to prove motive and to

rebut the defense theory that Andriano was a domestic violence

victim. The trial court did not abuse its discretion in

admitting the evidence.

2. Lesser-included offense instructions

¶32 Andriano argues that the trial court was required sua

sponte to instruct the jury on the lesser-included offenses of

second degree murder and “sudden quarrel or heat of passion”

manslaughter. Defense counsel did not request any lesser-

included offense instructions. We review a trial court’s

failure to give lesser-included offense instructions for

fundamental error when the instructions are not requested at

trial. Nordstrom, 200 Ariz. at 253, ¶ 81, 25 P.3d at 741. In a

capital case, it is fundamental error for the trial court to

fail to give a lesser-included offense instruction if one is

supported by the evidence, id., see also Beck v. Alabama, 447

U.S. 625, 627, 638 (1980), and not waived by the defendant.

¶33 As to second degree murder, Andriano contends on

appeal that because sodium azide poisoning did not cause Joe’s

death, a reasonable jury could have found that she abandoned her

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plan to poison Joe. Abandonment is shown, she argues, by her

summoning Chris to the apartment and her call to 911. She

maintains that a new sequence of events began that led to an

intentional or knowing – but not premeditated – death. As to

manslaughter, Andriano contends that the evidence supports a

conclusion that Joe provoked her when he reached for a knife,

and she then killed him during a sudden quarrel or in the heat

of passion.

¶34 Andriano did not argue either of these theories at

trial, however, and the evidence presented does not support

either theory. Andriano testified that she was attempting to

assist Joe in committing suicide when they got scared and

decided to call for help. She claimed that after 911 was called

and Chris left the apartment to meet the paramedics, Joe decided

that he wanted to follow through with the suicide. She

testified that, after the paramedics left, she admitted to Joe

that she had an affair. Joe then became violent and tried to

choke her with a phone cord, but she was able to reach a knife,

cut the cord, and free herself. When she put the knife down,

Joe bent down to pick it up, so she hit him with the bar stool

until he stopped moving. Ultimately, Joe picked up the knife

and said he was going to kill himself. Andriano tried to stop

him, but her hand slipped off the knife. Suddenly there was

blood everywhere, but she had not stabbed Joe.

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¶35 Despite Andriano’s testimony that Joe had killed

himself, in closing argument, defense counsel argued that

Andriano was a domestic violence victim who acted in self-

defense after an assisted suicide attempt. The jury was

instructed on self-defense and told that if it found Andriano to

be a domestic violence victim, “the state of mind of a

reasonable person . . . shall be determined from the perspective

of a reasonable person who has been a victim of those past acts

of domestic violence.”

¶36 We held in State v. Celaya that “where the sole

defense is self-defense so that the evidence requires either

conviction or acquittal, any instruction on any other grade

would be impermissible.” 135 Ariz. 248, 255, 660 P.2d 849, 856

(1983); see also State v. Wall, 212 Ariz. 1, 6, ¶ 29, 126 P.3d

148, 153 (2006) (noting that when defendant asserts an “all-or-

nothing” defense, the record usually will not support the giving

of a lesser-included offense instruction); State v. Jones, 109

Ariz. 80, 81-82, 505 P.2d 251, 252-53 (1973) (holding that

lesser-included offense instructions were not required where

evidence at trial and defendant’s self-defense theory presented

an “either-or” situation requiring either first degree murder

conviction or acquittal). We conclude that the evidence in this

case did not support either a second degree murder or

manslaughter instruction and that the trial court therefore did

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not commit fundamental error in failing to give either

instruction.

B. Aggravation Phase Issues

1. Constitutionality of (F)(6) aggravating factor

¶37 Andriano argues that the A.R.S. § 13-703(F)(6)

“especially heinous, cruel or depraved” aggravator is both

facially vague and vague as applied by juries rather than trial

judges. In Walton v. Arizona, the United States Supreme Court

found Arizona’s (F)(6) aggravator facially vague. 497 U.S. 639,

654 (1990), overruled on other grounds by Ring v. Arizona (Ring

II), 536 U.S. 584 (2002). The Supreme Court nonetheless upheld

the factor against a constitutional challenge because this

Court’s narrowing construction of the (F)(6) aggravator “gives

meaningful guidance to the sentencer.” Id. at 653-55.

¶38 Because juries rather than trial judges now find the

existence of aggravating factors, see A.R.S. § 13-703.01(C)

(Supp. 2006), Andriano argues that the judge’s knowledge of the

narrowing construction cannot save the (F)(6) aggravator from

unconstitutional vagueness. We rejected this argument in State

v. Cromwell, 211 Ariz. 181, 188-89, ¶¶ 40-42, 119 P.3d 448, 455-

56 (2005), cert. denied, 126 S. Ct. 2291 (2006), and State v.

Anderson (Anderson II), 210 Ariz. 327, 352-53, ¶¶ 109-14, 111

P.3d 369, 394-95 (2005). “Those cases hold that the (F)(6)

aggravator may be constitutionally applied if given substance

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and specificity by jury instructions that follow this Court’s

constructions.” State v. Hampton, 213 Ariz. 167, 176, ¶ 36, 140

P.3d 950, 959 (2006), cert. denied, 127 S. Ct. 972 (2007).

¶39 Andriano also argues that the (F)(6) aggravating

factor is unconstitutionally vague when applied by a jury

because without proportionality review the jury has no way to

determine whether the murder for which it has found the

defendant guilty is “above the norm of other first degree

murders.” We rejected this argument in State v. Johnson, 212

Ariz. 425, 431-32, ¶¶ 19-20, 133 P.3d 735, 741-42, cert. denied,

127 S. Ct. 559 (2006). We similarly reject it here.

2. (F)(6) “cruelty” instruction4

¶40 The trial court provided the following (F)(6)

“cruelty” instruction to the jury:

“Cruelty” involves the infliction of physical
pain and/or mental anguish on a victim before death.
A crime is committed in an especially cruel manner
when a defendant either knew or should have known that
the manner in which the crime is committed would cause
the victim to experience physical pain and/or mental
anguish before death. The victim must be conscious
for at least some portion of the time when the pain
and/or anguish was inflicted.

4
The jury found only the cruelty prong of the (F)(6)
aggravating factor. It did not find the murder heinous or
depraved. A finding of any of the three prongs is sufficient to
support the (F)(6) aggravating circumstance. Cromwell, 211
Ariz. at 189, ¶ 43, 119 P.3d at 456.

- 17 -

Andriano asserts that this instruction was insufficient to guide

the jury and channel its discretion in applying the aggravator.

¶41 The instruction given paraphrases this Court’s

statement in State v. Trostle, 191 Ariz. 4, 18, 951 P.2d 869,

883 (1997), that “[c]ruelty exists if the victim consciously

experienced physical or mental pain prior to death, and the

defendant knew or should have known that suffering would occur.”

(Internal citation omitted.) We recently reaffirmed that the

Trostle definition of “cruelty” sufficiently narrows and gives

substance to the (F)(6) “especially cruel” aggravating factor to

save it from constitutional infirmity. Anderson II, 210 Ariz.

at 352 & n.18, ¶ 109, 111 P.3d at 394 & n.18. We similarly

conclude here that the trial court’s instruction gave sufficient

substance and specificity to the term “cruelty” to channel the

jury’s discretion and correct any unconstitutional vagueness.5

5
Andriano’s brief also seems to claim that the evidence was
insufficient to support the jury’s finding that the murder was
“especially cruel.” Because we would review sufficiency of the
evidence to “determine whether substantial evidence supports the
jury’s finding, viewing the facts in the light most favorable to
sustaining the jury[’s] verdict,” State v. Roque, 213 Ariz. 193,
218, ¶ 93, 141 P.3d 368, 393 (2006), and affirm the jury’s
finding if the evidence is such that “reasonable persons could
accept [it] as adequate and sufficient to support a conclusion
of defendant’s guilt beyond a reasonable doubt,” id. (quoting
State v. Roseberry, 210 Ariz. 360, 369, ¶ 45, 111 P.3d 402, 411
(2005)), the issue is subsumed in our independent review. See
infra ¶¶ 64-68.

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3. “Above the norm of other first degree murders”
instruction

¶42 The trial court instructed the jury that the (F)(6)

aggravating circumstance “cannot be found to exist unless the

murder is especially heinous, cruel or depraved, that is, where

the circumstances of the murder raise it above the norm of other

first degree murders.” Andriano claims that this instruction

required the jury to engage in proportionality review, which was

improper in light of State v. Salazar, 173 Ariz. 399, 416, 844

P.2d 566, 583 (1992), and State v. Greenway, 170 Ariz. 155, 171,

823 P.2d 22, 38 (1991). Because Andriano did not object on this

ground at trial, we review only for fundamental error. See

State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607

(2005).

¶43 We have held that “the death penalty should not be

imposed in every capital murder case but, rather, it should be

reserved for cases in which either the manner of the commission

of the offense or the background of the defendant places the

crime ‘above the norm of first-degree murders.’” State v.

Carlson, 202 Ariz. 570, 582, ¶ 45, 48 P.3d 1180, 1192 (2002)

(quoting State v. Hoskins, 199 Ariz. 127, 163, ¶ 169, 14 P.3d

997, 1033 (2000)). Such an instruction does not require the

jury to engage in proportionality review. Instead, the jurors

must assess whether the murder was so cruel that it rose above

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the norm of first degree murders. To assist them in this

inquiry, the judge instructed the jurors on the definition of

“cruelty,” explaining how to determine whether “the

circumstances of the murder raise it above the norm of other

first degree murders.” Considering the instructions as a whole,

the jury was properly instructed to apply the definition of

“cruelty,” rather than to engage in proportionality review. The

trial court did not err, fundamentally or otherwise, in giving

the instruction.

C. Penalty Phase Issues

1. Residual doubt mitigation

¶44 The trial court denied Andriano’s request to present

evidence of residual doubt as a mitigating circumstance in the

penalty phase. Andriano claims that the trial court was

constitutionally required to allow her to present such

mitigation evidence for the jury’s consideration. We review

alleged constitutional violations de novo. McGill, 213 Ariz. at

159, ¶ 53, 140 P.3d at 942.

¶45 Both the United States Supreme Court and this Court

have rejected the argument that a capital defendant must be

allowed to present residual doubt evidence in mitigation. In

Oregon v. Guzek, the defendant argued that the Eighth and

Fourteenth Amendments granted him a constitutional right to

present new alibi evidence at his sentencing proceeding. 546

- 20 -

U.S. 517, ___, 126 S. Ct. 1226, 1230 (2006). The Supreme Court,

although not deciding whether such a right exists, held that its

previous cases do not grant capital defendants a constitutional

right to present evidence of residual doubt at sentencing. Id.

at ___, 126 S. Ct. at 1231-32. We thus noted in State v.

Ellison that “there is no constitutional requirement that the

sentencing proceeding jury revisit the prior guilty verdict by

considering evidence of ‘residual doubt.’” 213 Ariz. 116, 136,

¶ 82, 140 P.3d 899, 919 (citing Guzek, 546 U.S. at ___, 126 S.

Ct. at 1230-32), cert. denied, 127 S. Ct. 506 (2006). The trial

court did not err in denying Andriano’s request to present

residual doubt evidence in mitigation.

2. Mercy mitigation

¶46 The trial court also denied Andriano’s request to

include “mercy” among the enumerated mitigating circumstances

for the jury’s consideration. Andriano maintains that the trial

court was constitutionally required to allow her to do so. We

disagree.

¶47 Arizona Revised Statutes § 13-703(G) (Supp. 2004)

provides that mitigating circumstances are “any factors

proffered by the defendant or the state that are relevant in

determining whether to impose a sentence less than death,

including any aspect of the defendant’s character, propensities

or record and any of the circumstances of the offense.” The

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defendant bears the burden of proving mitigating circumstances

by a preponderance of the evidence. Id. § 13-703(C). The

defendant cannot, however, prove “mercy” by any standard, nor

does it relate to the character or propensities of the defendant

or the circumstances of the crime. Therefore, mercy is not a

mitigating circumstance.

¶48 Mercy is a concept jurors may apply in evaluating the

existence of mitigating circumstances and in deciding whether

the death penalty is appropriate in a particular case. In this

sense, “mercy” is simply another word for “compassion” or

“leniency.” A capital defendant is free to argue to the jury,

as the defense did here, that mercy or leniency is appropriate

based on the mitigation evidence presented.

¶49 The instructions given in this case correctly conveyed

the role of mercy in determining the appropriate sentence. The

trial court did not err in refusing Andriano’s request to

include mercy among the enumerated mitigating circumstances for

the jury’s consideration.

3. Jury unanimity in determining mitigating circumstances

¶50 The trial court instructed the jury in the penalty

phase as follows:

Any verdict of death or life imprisonment must be
unanimous. If you unanimously find that no mitigation
exists, then you must return a verdict of death. If
you unanimously find that mitigation exists, each one
of you must individually weigh that mitigation in

- 22 -

light of the aggravating circumstance already found to
exist, and if you unanimously find that the mitigation
is not sufficiently substantial to call for leniency,
you must return a verdict of death. If you
unanimously find that mitigation exists and it is
sufficiently substantial to call for leniency, you
must return a verdict of life.

(Emphasis added.) Andriano claims that this instruction

improperly required the jury to unanimously find particular

mitigating circumstances before each juror could individually

consider whether that mitigation was sufficiently substantial to

call for leniency. We review the challenged instruction de novo

and consider the instructions as a whole “to ensure that the

jury receives the information it needs to arrive at a legally

correct decision.” State ex rel. Thomas v. Granville (Baldwin),

211 Ariz. 468, 471, ¶ 8, 123 P.3d 662, 665 (2005).

¶51 Each juror in a death penalty case must individually

determine whether any mitigating circumstances exist. A.R.S.

§ 13-703(C); see Baldwin, 211 Ariz. at 472, ¶ 13, 123 P.3d at

666; see also Ellison, 213 Ariz. at 139, ¶ 102, 140 P.3d at 922

(discussing Supreme Court cases holding that capital sentencing

statutes may not require unanimity as to mitigating

circumstances). Then, in light of the aggravating circumstances

the jury has already found to exist, each juror must

individually determine whether the mitigation that juror has

found to exist is sufficiently substantial to call for leniency.

See A.R.S. § 13-703(C), (E); Baldwin, 211 Ariz. at 473, ¶ 18,

- 23 -

123 P.3d at 667.

¶52 Read as a whole, the instructions given here correctly

advised the jurors that they did not have to agree upon the

existence of any particular mitigating circumstance before each

juror could individually assess whether the mitigation was

sufficiently substantial to call for leniency. The court

repeatedly advised them during the penalty phase that each juror

was required to “individually” determine the existence of

mitigating circumstances.6 We therefore conclude that the trial

6
Before being given the instruction to which Andriano
objects, the jurors had been instructed as follows:

Although a final decision on a penalty of death
or life imprisonment must be unanimous, the
determination of what circumstances are mitigati[ng]
is for each one of you to resolve, individually, based
upon all the evidence that has been presented to you
during this phase and at any of the prior phases of
the trial.

(Emphasis added.) The jurors were also given the following
instruction:

You must make your decision about whether
mitigation is sufficiently substantial to call for
leniency based solely upon your weighing of any
mitigation proven to you and the aggravating factor
you have already found during the Aggravation Phase.
To do this, you must individually determine the nature
and extent of mitigating circumstances. Then, in
light of the aggravating circumstance that has been
proven to exist, you must individually determine if
the totality of the mitigating circumstances is
sufficiently substantial to call for leniency and a
life sentence.

(Emphasis added.)

- 24 -

court’s instruction, considered in light of the other

instructions, adequately informed the jury and does not require

reversal.

4. Jury coercion

¶53 Andriano argues that the trial court coerced the

jury’s death verdict in two ways when it gave an impasse

instruction: (1) by giving the instruction before ascertaining

whether the jury was truly deadlocked; and (2) by improperly

instructing the jury about its duty to deliberate. “In

determining whether a trial court has coerced the jury’s

verdict, this court views the actions of the judge and the

comments made to the jury based on the totality of the

circumstances and attempts to determine if the independent

judgment of the jury was displaced.” State v. Huerstel, 206

Moreover, at the outset of the penalty phase, the jury was
preliminarily advised that “[t]he jurors do not have to agree
unanimously that a mitigating circumstance has been proven to
exist. Each juror may consider any mitigating circumstance
found by that juror in determining the appropriate penalty.”
The jury was further instructed at that time to “individually
decide whether there is mitigation and whether it is
sufficiently substantial to call for the imposition of a life
sentence rather than a sentence of death.”

Defense counsel’s closing argument in the penalty phase
also correctly advised the jurors regarding their
responsibilities. Defense counsel told the jury, “[t]o clarify
once again, individually determine the nature and extent of the
mitigating circumstances. Not as a group, individually. What
is it to me, as one juror. What is my moral position on that
circumstance.”

- 25 -

Ariz. 93, 97, ¶ 5, 75 P.3d 698, 702 (2003).

¶54 Near the end of the second day of penalty phase

deliberations, the jury submitted the following question to the

trial court: “If we are unable to reach an unanimous verdict,

what is the procedure that will be followed?” The court

instructed the jury as follows:

It appears from your note that you are at a
deadlock in your deliberations. I have some
suggestions to help your deliberations, not to force
you to reach a verdict. I am merely trying to be
responsi[ve] to your apparent need for help. I do not
wish or intend to force a verdict. Each juror has a
duty to consult with one another, to deliberate with a
view to reaching an agreement if it can be done
without violence to individual judgment. No juror
should surrender his or her honest conviction as to
the weight or effect of the evidence solely because of
the opinion of other jurors or for the purpose of
reaching a verdict.

However, you may want to identify areas of
agreement and disagreement and discuss the law and the
evidence as they relate to the areas of disagreement.

If you still disagree, you may wish to tell the
attorneys and me which issues, questions, law, or
facts you would like us to assist you with. If you
decide to follow this suggestion, please write down
the issues, questions, law or facts on which we can
possibly help. Please give your note to the bailiff.
We will then discuss your note and try to help.7

The jury asked no further questions and returned a death verdict

two days later.

7
This instruction contains language very similar to that set
forth in the comment to the 1995 amendment to Arizona Rule of
Criminal Procedure 22.4.

- 26 -

a. Prematurely given instruction

¶55 Rule 22.4 of the Arizona Rules of Criminal Procedure

permits the trial court, upon being advised by the jury that it

has reached an impasse in its deliberations, to inquire how it

can assist the jury in its deliberations. “Although the rule

gives a trial judge broad discretion in dealing with juries at

an impasse, the rule requires an affirmative indication from the

jury it is in need of help before assistance may be offered.”

Huerstel, 206 Ariz. at 99, ¶ 17, 75 P.3d at 704. In Huerstel,

the trial court sent an impasse instruction to the guilt phase

jury after three days of deliberations although it had received

no note or other indication that the jury had reached an

impasse. Id. at 97-98, ¶¶ 6-8, 75 P.3d at 702-03. The only

questions the court had received related to the credentials of

an expert witness, evidentiary matters, and a jury instruction.

Id. We held that the impasse instruction was prematurely given

because it was given “without any clear evidence the jury needed

help.” Id. at 99, ¶ 17, 75 P.3d at 704.

¶56 In this case, unlike the situation in Huerstel, the

jury’s question inquiring what would happen if the jury could

not reach a verdict affirmatively indicated that the jurors were

at an impasse. The Huerstel rule does not require that the jury

unequivocally state that it cannot reach a verdict, only that it

give an “affirmative indication” that it is deadlocked. The

- 27 -

trial court did not err in giving the impasse instruction.

b. Duty to deliberate instruction

¶57 Andriano also argues that the impasse instruction

given by the trial court inaccurately stated the law regarding a

capital jury’s duty in penalty phase deliberations. The crux of

the argument is that, although the trial court’s instruction

would have been proper in the guilt phase or the aggravation

phase of the proceedings, it was not appropriate in the penalty

phase because jurors have no duty to “deliberate with a view to

reaching an agreement” in the penalty phase.

¶58 In Lowenfield v. Phelps, the United States Supreme

Court addressed whether an impasse instruction given to a

capital sentencing jury coerced the death sentence in that case.

484 U.S. 231, 233 (1988).8 The Supreme Court held that the

8
In Lowenfield, the trial court gave an instruction that
said in part,

When you enter the jury room it is your duty to
consult with one another to consider each other’s
views and to discuss the evidence with the objective
of reaching a just verdict if you can do so without
violence to that individual judgment.

Each of you must decide the case for yourself but
only after discussion and impartial consideration of
the case with your fellow jurors. You are not
advocates for one side or the other. Do not hesitate
to reexamine your own views and to change your opinion
if you are convinced you are wrong but do not
surrender your honest belief as to the weight and
effect of evidence solely because of the opinion of

- 28 -

instruction did not coerce the jury’s death verdict. Id. at

241. The Court quoted with approval another capital case in

which it had opined that jurors must try to reach a verdict:

The very object of the jury system is to secure
unanimity by a comparison of views, and by arguments
among the jurors themselves. It certainly cannot be
the law that each juror should not listen with
deference to the arguments and with a distrust of his
own judgment, if he finds a large majority of the jury
taking a different view of the case from what he does
himself. It cannot be that each juror should go to
the jury room with a blind determination that the
verdict shall represent his opinion of the case at
that moment; or, that he should close his ears to the
arguments of men who are equally honest and
intelligent as himself.

Id. at 237 (quoting Allen v. United States, 164 U.S. 492, 501-02

(1896)). The Court emphasized that “[t]he continuing validity

of this Court’s observations in Allen are beyond dispute.” Id.

¶59 Lowenfield thus makes clear that jurors in capital

cases have a duty to deliberate in sentencing proceedings.

Arizona’s death penalty sentencing scheme does not alter this

duty. While jurors individually determine whether a mitigating

circumstance exists, A.R.S. § 13-703(C), the jury must still be

unanimous in its decision to impose a death sentence or a life

sentence, id. § 13-703.01(H). Therefore, the jurors may be

instructed that they have a duty to deliberate in the penalty

your fellow jurors or for the mere purpose of
returning a verdict.

484 U.S. at 235.

- 29 -

phase of a capital case.

¶60 In sum, because the impasse instruction correctly

stated the law and was given after an affirmative indication

from the jury that it was deadlocked, it cannot be said that the

verdict was coerced.

D. Constitutionality of Lethal Injection Statute

¶61 Arizona Revised Statutes § 13-704(A) (2001) provides

that “[t]he penalty of death shall be inflicted by an

intravenous injection of a substance or substances in a lethal

quantity sufficient to cause death, under the supervision of the

state department of corrections.” Andriano contends that this

statute is unconstitutionally vague because it does not

prescribe the type or dosage of drugs that must be administered,

the order in which they must be administered, or the

qualifications of the personnel who administer them, thereby

failing to ensure that death by lethal injection is not cruel

and unusual. She argues that to comport with the Eighth

Amendment, “[t]he statute must [also] address the inherent

difficulties with individual issues . . . such as vein

accessibility and chemical resistances.”

¶62 Section 13-704(A) constitutionally prescribes that the

method of death shall be lethal injection. See State v.

Hinchey, 181 Ariz. 307, 315, 890 P.2d 602, 610 (1995)

(considering and rejecting argument that death by lethal

- 30 -

injection constitutes cruel and unusual punishment). Hinchey’s

pronouncement that lethal injection as a method of execution

comports with the Eighth Amendment was not conditioned upon the

use of particular procedures in implementing lethal injection.

Moreover, the United States Supreme Court has never held that

death by lethal injection is cruel and unusual absent specific

procedures for implementation, nor does Andriano cite any cases

to that effect. Andriano has thus failed to establish an Eighth

Amendment right to a particular protocol for lethal injection.9

E. Independent Review

¶63 Because Andriano’s offense occurred before August 1,

2002, we independently review the aggravating and mitigating

circumstances and the propriety of the death sentence. A.R.S.

§ 13-703.04(A) (Supp. 2006); see 2002 Ariz. Sess. Laws, 5th

Spec. Sess., ch. 1, § 7. In conducting our independent review,

we “consider the quality and the strength, not simply the

number, of aggravating and mitigating factors.” State v. Roque,

213 Ariz. 193, 230, ¶ 166, 141 P.3d 368, 405 (2006) (quoting

State v. Greene, 192 Ariz. 431, 443, ¶ 60, 967 P.2d 106, 118

(1998)).

9
Andriano may raise in a petition filed pursuant to Arizona
Rule of Criminal Procedure 32 any objections to the protocol to
be used.

- 31 -

1. Aggravation

¶64 The jury found one aggravating factor – that Andriano

committed the murder in an especially cruel manner. A.R.S.

§ 13-703(F)(6). Andriano argues that we should find the

evidence insufficient to support the “especially cruel” finding

by the jury because (1) Joe experienced only “distress,” but not

“extreme” physical pain or mental anguish after ingesting the

sodium azide; (2) the defensive wounds were “minor and . . . not

indicative of a great or prolonged struggle,” showing that Joe

was rendered unconscious “very quickly” after the bar stool

attack began; and (3) Joe’s distress was not reasonably

foreseeable. We review the jury’s finding de novo. Anderson

II, 210 Ariz. at 354, ¶ 119, 111 P.3d at 396 (citing A.R.S.

§ 13-703.04 (independent review)).

¶65 The cruelty prong of the (F)(6) aggravating

circumstance may be proved by showing that the defendant knew or

should have known that the manner in which the crime was

committed would cause the victim to consciously experience

either physical pain or mental anguish before death. Trostle,

191 Ariz. at 18, 951 P.2d at 883. The evidence showed that

Andriano poisoned Joe with sodium azide and left him to suffer

for what felt to Joe like a “long time.” During that period,

Joe vomited at least twice, was too weak to sit or stand, and

was having difficulty breathing. After pretending to call 911,

- 32 -

Andriano stood by for approximately forty-five minutes as Joe

suffered from the effects of sodium azide poisoning. Andriano’s

Internet research on sodium azide and the warnings accompanying

the shipped chemical demonstrate that she knew or should have

known that poisoning her husband with sodium azide would cause

him physical pain and mental anguish. Joe, who was conscious

during this time, as evidenced by his interaction with Chris,

undoubtedly “experienced significant uncertainty as to [his]

ultimate fate.” See Ellison, 213 Ariz. at 142, ¶ 120, 140 P.3d

at 925 (quoting State v. Van Adams, 194 Ariz. 408, 421, ¶ 44,

984 P.2d 16, 29 (1999)) (mental anguish, and hence cruelty,

established upon this showing).

¶66 Moreover, Andriano struck her terminally ill husband

at least twenty-three times in the back of the head with a bar

stool. Defensive wounds on Joe’s hands and wrists indicate that

he was conscious for at least some of the attack and thus knew

his wife was attacking him as he lay on the floor, unable to

defend himself. Andriano also knew or should have known that

beating her husband with a bar stool would cause him physical

pain and mental anguish.10

¶67 Andriano asks us to require that the physical or

10
The evidence established that Joe was likely unconscious
when his throat was slashed. We therefore do not consider
whether the stabbing caused physical pain or mental anguish.

- 33 -

mental pain experienced by the victim be “extreme.” There is no

such requirement for a cruelty finding. See Trostle, 191 Ariz.

at 18, 951 P.2d at 883. Nonetheless, the physical pain and

mental anguish Joe experienced likely were “extreme” by any

standards.

¶68 Although Andriano argued at trial that she was

assisting Joe in a suicide by poisoning, she argues on appeal

that because Joe did not know he was being poisoned, mental

anguish cannot be proved. While a victim’s knowledge of the

source of physical pain may be relevant to whether the victim

experienced mental anguish, it is not a requisite for a finding

of mental anguish. And on the facts of this case, mental

anguish is established even if Joe did not know he had been

poisoned. Moreover, cruelty can be established upon a showing

of either mental anguish or physical pain. Id. We thus

conclude that cruelty was established based on either – or both

– mental anguish or physical pain.

2. Mitigation11

¶69 Andriano presented several mitigating circumstances

11
Andriano did not argue why the Court should find in its
independent review that the mitigating circumstances were
“sufficiently substantial to call for leniency.” A.R.S. § 13-
703(E). Counsel in capital cases “should take advantage of all
appropriate opportunities to argue why death is not suitable
punishment for their particular client.” ABA Guidelines for the
Appointment and Performance of Defense Counsel in Death Penalty
Cases Guideline 10.11(L) (2003).

- 34 -

for the jury’s consideration, including the stress of Joe’s

cancer, her good grades in school, missionary and community

work, and strong religious convictions. In addition, she

presented evidence that she was a sexual abuse and domestic

violence victim, a good mother to two children, married for six

years, and a good inmate.

¶70 Although Andriano presented some evidence that she was

a domestic violence victim, we assign little weight to this

mitigating circumstance, in part because it is not related to

the murder. See Roque, 213 Ariz. at 231, ¶ 169, 141 P.3d at 406

(“[T]he relationship between mitigating evidence and the murder

may affect the weight given to the mitigating evidence.”)

(citation omitted); State v. Newell, 212 Ariz. 389, 405, ¶ 82,

132 P.3d 833, 849, cert. denied, 127 S. Ct. 663 (2006). The

evidence established that Andriano did not kill Joe while

defending against a domestic violence attack. Instead, she

poisoned her terminally ill husband, struck him in the back of

the head twenty-three times, and slit his throat. Joe posed no

threat to Andriano at the time of the attack because he was so

weak from the poison and chemotherapy that he could not get up.

¶71 Andriano was under substantial stress from having to

deal with Joe’s terminal cancer. The record does not indicate,

however, that at the time of the offense, the stress was any

greater than it had been two years earlier when she and Joe

- 35 -

first learned he was terminally ill, and she was pregnant with

their second child. Moreover, this is not a case in which

Andriano suddenly “cracked” under extreme stress. Andriano

methodically premeditated Joe’s murder, showing that her stress

bore little relation to Joe’s death. This mitigating

circumstance thus does not warrant substantial weight.

¶72 Andriano also offered evidence that she “may have

been” sexually abused by her biological father when she was

around the age of two, although she does not recall it, and that

a member of the traveling ministry to which her family belonged

exposed himself to Andriano when she was between six and eight

years old. Andriano also showed that she maintained good grades

in school and participated in missionary and community work. We

do not weigh these mitigating circumstances heavily because the

events are remote in time to the offense and thus their

relevance is minimal. Cf. Ellison, 213 Ariz. at 144, ¶ 136, 140

P.3d at 927 (finding defendant’s “childhood troubles deserve

little value as a mitigator for the murders he committed at age

thirty-three”).

¶73 The record contains conflicting evidence on whether

Andriano was a good mother. In any event, we afford this

mitigating circumstance minimal value in light of the fact that

Andriano murdered her children’s father while the children were

present in the apartment. Moreover, neither the fact of

- 36 -

Andriano’s marriage nor its six-year duration is mitigating

considering that she would have remained married and the

marriage would have lasted longer had she not killed her

husband.

¶74 Andriano was a good inmate in jail and helpful to

staff and inmates from September 2003 until the penalty phase of

her trial in December 2004. Because inmates are expected to

behave, however, we assign this mitigating circumstance little

weight. State v. Harrod, 200 Ariz. 309, 319, ¶ 53, 26 P.3d 492,

502 (2001), vacated on other grounds, 536 U.S. 953 (2002).

¶75 Although Andriano had what might be considered a

strict religious upbringing, many of her actions, such as

killing her husband and having extramarital affairs, appear

inconsistent with holding strong religious convictions. We thus

assign this evidence minimal value.

¶76 Andriano also alleged as mitigating circumstances

cooperation with law enforcement authorities, remorse, and age.

The evidence presented, however, contradicts Andriano’s

assertion that she cooperated in the investigation of Joe’s

murder.12 Moreover, because Andriano continues to deny

12
Andriano did not mention the sodium azide when she was
questioned by police and later asked her coworker to hide
evidence. Evidence was also presented that Andriano staged the
scene of the murder to make it appear as though she acted in
self-defense.

- 37 -

responsibility for her conduct, we reject her contention that

she is remorseful. See State v. Gulbrandson, 184 Ariz. 46, 70-

71, 906 P.2d 579, 603-04 (1995) (noting that defendant continued

to deny responsibility in finding that he had not proven remorse

as a mitigating circumstance). We likewise do not find her age

- thirty at the time of the offense - to be mitigating,

particularly in light of her above-average I.Q.

¶77 We likewise give minimal weight to the remaining

mitigating circumstances urged: lack of prior convictions, good

candidate for rehabilitation, no future threat to the community,

and impact on family and friends.

3. Propriety of the death sentence

¶78 The quality and strength of Andriano’s mitigation

evidence is not sufficiently substantial to call for leniency in

light of the especially cruel manner in which Andriano murdered

her husband. We therefore affirm Andriano’s sentence of death.

III. CONCLUSION

¶79 For the foregoing reasons, we affirm Andriano’s

conviction and death sentence.

_______________________________________
Rebecca White Berch, Vice Chief Justice

- 38 -

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

- 39 -

APPENDIX

Claims Raised to Avoid Preclusion

Andriano raises the following thirteen challenges to the

constitutionality of Arizona’s death penalty scheme to avoid

preclusion:

1. The death penalty is cruel and unusual punishment
under any circumstances. This argument was rejected
by the United States Supreme Court in Gregg v.
Georgia, 428 U.S. 153, 187 (1976), and by this Court
in Harrod, 200 Ariz. at 320, ¶ 59, 26 P.3d at 503.

2. The death penalty is imposed arbitrarily and
irrationally in Arizona. We rejected this argument in
State v. Beaty, 158 Ariz. 232, 247, 762 P.2d 519, 534
(1988).

3. Application of the death penalty on the facts of this
case would constitute cruel and unusual punishment.
No argument or authority is presented to support this
claim.

4. The prosecutor’s discretion to seek the death penalty
is not channeled by standards. We rejected this
argument in State v. Sansing, 200 Ariz. 347, 361,
¶ 46, 26 P.3d 1118, 1132 (2001), vacated on other
grounds, 536 U.S. 954 (2002).

5. The aggravating factors set forth in A.R.S. § 13-
703(F) are elements of capital murder and must be
alleged in an indictment and screened for probable
cause. We rejected this argument in McKaney v.
Foreman ex rel. County of Maricopa, 209 Ariz. 268,
270, ¶ 9, 100 P.3d 18, 20 (2004).

6. Application of the death penalty statutes promulgated
after Ring II, 536 U.S. at 584, violates the
prohibition against ex post facto laws. The changes
altered the rules of evidence to permit different
testimony than that permitted at the time of
Andriano’s offense. We rejected this argument in
State v. Ring (Ring III), 204 Ariz. 534, 547, ¶ 24, 65
P.3d 915, 928 (2003).

- 40 -

7. The absence of proportionality review of death
sentences by Arizona courts denies capital defendants
due process of law and equal protection and amounts to
cruel and unusual punishment. We rejected this
argument in Gulbrandson, 184 Ariz. at 73, 906 P.2d at
606.

8. Arizona’s capital sentencing scheme is
unconstitutional because it does not require that the
State prove that the death penalty is appropriate. We
rejected this argument in Gulbrandson, 184 Ariz. at
72, 906 P.2d at 605.

9. Arizona Revised Statutes § 13-703 provides no
objective standards to guide the sentencer in weighing
the aggravating and mitigating circumstances. We
rejected this argument in State v. Pandeli, 200 Ariz.
365, 382, ¶ 90, 26 P.3d 1136, 1153 (2001), vacated on
other grounds, 536 U.S. 953 (2002).

10. Arizona’s death penalty scheme is unconstitutional
because it does not require the sentencer to find
beyond a reasonable doubt that the aggravating
circumstances outweigh the accumulated mitigating
circumstances. We rejected this argument in State v.
Poyson, 198 Ariz. 70, 83, ¶ 59, 7 P.3d 79, 92 (2000).

11. Arizona Revised Statutes § 13-703 does not
sufficiently channel the sentencer’s discretion.
Aggravating circumstances should narrow the class of
persons eligible for the death penalty and reasonably
justify the imposition of a harsher penalty. The
broad scope of Arizona’s aggravating factors
encompasses nearly anyone involved in a murder. We
rejected this argument in Pandeli, 200 Ariz. at 382,
¶ 90, 26 P.3d at 1153.

12. Execution by lethal injection is cruel and unusual
punishment. We rejected this argument in Hinchey, 181
Ariz. at 315, 890 P.2d at 610.

13. Arizona’s death penalty scheme unconstitutionally
requires imposition of the death penalty whenever at
least one aggravating circumstance exists and there is
no mitigation sufficiently substantial to call for
leniency. We rejected this argument in State v.
Miles, 186 Ariz. 10, 19, 918 P.2d 1028, 1037 (1996).

- 41 -