State v. Tucker

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-05-0162-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR1999-015293
EUGENE ROBERT TUCKER, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Jeffrey A. Hotham, Judge

AFFIRMED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Jeffrey A. Zick, Assistant Attorney General
Capital Litigation Section
Attorneys for the State of Arizona

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Christopher V. Johns, Deputy Public Defender
Karen Noble, Deputy Public Defender
Attorneys for Eugene Robert Tucker
________________________________________________________________

B A L E S, Justice

¶1 This automatic appeal is from a jury’s determination

that Eugene Robert Tucker should receive death sentences for

three murders. 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).

I. Factual and Procedural Background1

¶2 On July 15, 1999, ten days after he turned eighteen,

Tucker entered an apartment occupied by Ann Marie Merchant, a

woman with whom he had a prior sexual relationship. Also living

at the apartment were Ann Marie’s brother, Roscoe Merchant;

Roscoe’s girlfriend, Cindy Richards; and Cindy’s infant son,

Anothy. Tucker bound, gagged, strangled, beat, sexually

assaulted, and shot Ann Marie. He shot and killed Cindy and

Roscoe as they slept in their bed; he left the infant alive in a

crib in the same room.

¶3 In 2000, Tucker was tried and convicted of sexual

assault, kidnapping, burglary, and three counts of first degree

murder for the deaths of Ann Marie, Roscoe, and Cindy. The

trial judge sentenced Tucker to twenty-five years to life for

sexual assault, twenty-one years for kidnapping, twenty-one

years for burglary, and death for each of the murders.

¶4 In 2003, the Court affirmed the convictions and

sentences for the non-capital offenses and affirmed the murder

convictions. State v. Tucker (Tucker I), 205 Ariz. 157, 170 ¶

69, 68 P.3d 110, 123 (2003). Pursuant to State v. Ring (Ring

III), 204 Ariz. 534, 555 ¶ 53, 65 P.3d 915, 936 (2003), the

1
On appeal, the Court views the facts in the “light most
favorable to sustaining the verdict.” State v. Tucker (Tucker
I), 205 Ariz. 157, 160 n.1, 68 P.3d 110, 113 n.1 (2003). A more
complete account of the crimes and the first trial appears in
Tucker I. Id. at 160-61 ¶¶ 1-18, 68 P.3d at 113-14.

2

Court considered whether it was harmless error for the trial

court, rather than a jury, to have found the aggravating factors

and to have determined that death sentences were appropriate.

Tucker I, 205 Ariz. at 167 ¶ 54, 68 P.3d at 120. The Court

concluded that the findings of the A.R.S. § 13-703(F)(6) (Supp.

1999) aggravator based on cruelty for the death of Ann Marie and

the § 13-703(F)(8) multiple murders aggravator for each victim

constituted harmless error. Tucker I, 205 Ariz. at 169 ¶¶ 62,

66, 68 P.3d at 122. Resentencing was required, however, because

the Court concluded that a reasonable jury could reach different

conclusions than had the trial court with regard to the § 13-

703(F)(6) aggravator for Roscoe and Cindy, which was based on a

witness-elimination theory; the § 13-703(F)(3) aggravator, which

was based on a theory that Tucker had placed the infant in

“grave risk of death” by leaving him in the apartment after

killing all the adult occupants; and the significance of the

mitigating circumstances. Id. at 169-70 ¶ 68, 68 P.3d at 122-

23.

¶5 On remand, a newly impaneled jury sentenced Tucker to

death for each of the murders after finding four aggravating

circumstances for each victim: (1) conviction of another

offense eligible for life imprisonment or death; (2) grave risk

of death to another person; (3) especially heinous, cruel, or

depraved; and (4) conviction of one or more other homicides

3

during the commission of the offense.

II. Aggravation Phase Issues

A. Right to Testify

¶6 Tucker contends that the trial judge interfered with

his right to testify at the aggravation phase and failed to

secure a knowing, voluntary, and intelligent waiver of that

right. He also argues that the judge’s comments prevented the

jury from considering mitigation evidence. Because Tucker did

not object at trial, we review for fundamental error. State v.

Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005).

¶7 Tucker testified during the first trial and denied

committing the murders. See Tucker I, 205 Ariz. at 161 ¶¶ 16-

17, 68 P.3d at 114. During the resentencing aggravation phase,

Tucker’s counsel told the trial judge that he and Tucker had

discussed, in “very precise and in-depth conversations,” whether

Tucker would testify. Counsel opined that Tucker was “very

clear” about his right. He confirmed that if Tucker decided to

testify, Tucker would do so in the penalty phase.

¶8 The trial judge advised Tucker that he had a

constitutional right to testify and that he should consider his

lawyer’s advice when making his decision. He also cautioned

that if Tucker chose to testify, the State could cross-examine

him about information that may not present him in a positive

light and introduce witnesses to rebut his testimony. The trial

4

judge told Tucker that, in his opinion, such rebuttal evidence

would make Tucker “look very bad” and reveal to the jury

information that his lawyer did not want disclosed.

¶9 During the penalty phase, the trial judge again

advised Tucker of his right to testify and asked if his comments

had coerced or impaired Tucker’s decision. In response, Tucker

stated: “Not at all, Your Honor. I choose to remain silent. .

. . With all due respect to you and to your court, Your Honor,

it has nothing to do with you.”

¶10 The record confirms that Tucker understood and

voluntarily relinquished his right to testify. The trial

judge’s comments simply informed Tucker of the consequences of

testifying. Moreover, Tucker cannot complain that the judge’s

comments prevented the jury from hearing mitigation evidence

during the aggravation phase. Such evidence is not proper at

this phase of a capital sentencing proceeding. See State v.

Anderson (Anderson II), 210 Ariz. 327, 348 ¶ 86, 111 P.3d 369,

390 (2005) (“The only issue at the aggravation phase is whether

any aggravating circumstances have been proved . . . .”).

B. Juror Challenge

¶11 Tucker contends that the trial judge improperly

dismissed prospective Juror 147 off the record and excluded this

juror based on her general opposition to the death penalty. We

review Tucker’s claim for fundamental error because Tucker did

5

not object to the juror’s dismissal. State v. Roseberry, 210

Ariz. 360, 366 ¶ 26, 111 P.3d 402, 408 (2005), cert. denied, 126

S. Ct. 444 (2005).

¶12 Juror 147 was not improperly dismissed. Arizona Rule

of Criminal Procedure 18.5(f) requires challenges for cause to

“be of record,” but that rule was not violated here. Nor does

the record suggest that Juror 147 was excused because of her

opposition to the death penalty.

¶13 During voir dire, Juror 147 described herself as an

eighty-one year old cancer survivor and “walking miracle” who

tired easily and who often “unknowingly” passed out. When asked

about her health, she gave a rambling answer and then

volunteered, “I have qualms about the death penalty, and yet I

don’t because, you know, the Lord said that if you use the sword

you perish by the sword.” The trial judge noted that the

question concerned her health and asked if there was any health

reason she could not sit as a juror. She replied, “No. I think

that I can. I am going to go ahead with it, yes.” Neither the

prosecutor nor Tucker’s counsel questioned Juror 147 further.

¶14 When the trial judge later reviewed the list of

prospective jurors with counsel, there was an off-the-record

discussion of Juror 147, and the judge then stated, on the

record, that Juror 147 was being excused “by agreement of

counsel.” Rule 18.5(f) did not require the trial judge to make

6

a further record regarding the dismissal of this juror. Given

that the record reflects that Juror 147 was dismissed by

agreement of counsel, Tucker has not shown that she was excused

because of her opposition to the death penalty or that her

dismissal otherwise involved fundamental error.

C. Stipulation

¶15 Tucker argues that the trial judge failed to properly

instruct the jury regarding the parties’ stipulation to Tucker’s

conviction of an offense for which a life sentence was imposable

and improperly commented on the evidence. This stipulation

provided the factual basis for the A.R.S. § 13-703(F)(1)

aggravator. Because Tucker did not object to any aspect of the

stipulation, we review for fundamental error. Henderson, 210

Ariz. at 567 ¶ 19, 115 P.3d at 607.

¶16 During the aggravation phase, the trial judge read

several stipulations to the jury, including one concerning

Tucker’s previous conviction. Before reading the stipulations,

the judge instructed the jurors that the stipulations were facts

agreed upon by the parties. He also told the jurors that they

could consider these facts, but that the individual stipulations

were not exhibits. The disputed stipulation stated: “On

September 15, 2000, the defendant Eugene Robert Tucker was found

guilty by a jury and convicted of the sexual assault of Ann

Marie [Merchant]. . . . Under Arizona law, a sentence of life

7

imprisonment was imposable for this offense.” After discussing

whether the stipulation or the guilt-phase verdicts should be

admitted as an exhibit, the judge told counsel that he would not

admit the stipulation as an exhibit.

¶17 The trial judge properly instructed the jury on the

significance of the stipulation. Moreover, the final

aggravation phase instructions told the jurors that, for the

(F)(1) aggravator, they had to find beyond a reasonable doubt

that Tucker had been convicted of an offense for which a

sentence of life imprisonment was imposable. Thus, the trial

judge did not improperly instruct the jury to find the (F)(1)

aggravator as a matter of law. The trial judge also did not

improperly comment on the evidence by clarifying whether the

stipulation should be admitted or whether the guilt-phase

verdicts should be read to the jury. There was no error

regarding the stipulation, much less fundamental error.

D. Grave Risk of Death

1. Validity

¶18 Tucker argues that the (F)(3) aggravator is arbitrary

and capricious because it renders him death eligible even though

he is less culpable than a defendant who intended to harm a

third party victim but is not death eligible. He therefore

contends that this aggravator does not appropriately narrow the

class of persons eligible for death. We review this issue de

8

novo. State v. Roque, 213 Ariz. 193, 217 ¶ 89, 141 P.3d 368,

392 (2006).

¶19 We rejected a similar claim in Roque. There we noted

that the (F)(3) aggravator adequately distinguishes between

those defendants who deserve the death penalty and those who do

not because it “applies only if the defendant knowingly engaged

in conduct that created a real and substantial risk of death to

another person who, while not an intended target, was also not

an unaffected bystander.” Id. at 218 ¶ 91, 141 P.3d at 393.

The Roque jury instructions clarified the meaning of the (F)(3)

aggravator by noting, in addition to the statutory language,

that a third party’s “mere presence” is not sufficient. Id. ¶

92.

¶20 Consistent with Roque and the statutory language, the

trial judge instructed the jury that the (F)(3) aggravator

requires proof that, “[i]n the commission of this 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 this offense.” Without objection by Tucker, the

judge further clarified that the aggravator required the State

to prove that the “third person was so close in proximity that

there was a real and substantial likelihood that the third

person might suffer fatal injuries[,] . . . the Defendant was

aware of the risk to the third person[,] and . . . the Defendant

9

did not intend to kill the third person.” Although the

instructions did not include a statement that the “mere

presence” of the third person is insufficient (a statement given

in Roque), the instructions did not permit the jury to find the

(F)(3) factor based on a person’s presence as an unaffected

bystander. The instructions therefore sufficiently narrowed the

class of defendants eligible for death based on the (F)(3)

aggravator.

2. Sufficiency of the Evidence

¶21 Tucker contends that there was insufficient evidence

for the jury to find beyond a reasonable doubt that (1) the

murderous act created a grave risk of death to Anothy; (2) he

knowingly created such a risk; and (3) there was a “real and

substantial likelihood” that the infant would be killed. We

agree that the evidence was not sufficient because the infant

was not in the zone of danger during Tucker’s murderous acts,

but we conclude that any error in submitting this aggravator to

the jury was harmless.

¶22 At the close of the aggravation phase, Tucker asked

the court to enter judgment that the State had not proved the

(F)(3) aggravator. See Ariz. R. Crim. P. 20(a). The State

conceded that the shots fired at Roscoe and Cindy did not

themselves put Anothy at risk. Instead, the State argued that

Tucker created a grave risk of death to Anothy because he knew

10

the infant was in the room and that he had killed Anothy’s

caretakers. The trial judge denied the Rule 20 motion.

¶23 The jury found the (F)(3) aggravator for each of the

victims. After the penalty phase verdict, the trial judge gave

the jury a special interrogatory to determine if it would still

impose death without the (F)(3) aggravator. The jury affirmed

each of the death sentences.

¶24 In addition to the requirements discussed in ¶¶ 19-20

supra, the (F)(3) aggravator requires the state to prove beyond

a reasonable doubt that the “person who was not the intended

victim was within the zone of danger created by the defendant’s”

murderous act. Roque, 213 Ariz. at 218 ¶ 94, 141 P.3d at 393

(emphasis added). In State v. Carreon, we clarified that the

bystander must be subjected to the grave risk of death as a

direct result of the defendant’s “murderous act.” 210 Ariz. 54,

67 ¶ 63, 107 P.3d 900, 913 (2005) (emphasis added), cert.

denied, 126 S. Ct. 122 (2005). There we found that the two

children, who were not in the same room when the victim was

killed, were not in the zone of danger. Id. ¶ 64. As in

Carreon, Anothy was not in the same room as Ann Marie when she

was killed, and there was no evidence that Anothy was otherwise

in the zone of danger during Tucker’s murderous acts upon Ann

Marie.

¶25 Although Anothy’s crib was within five or six feet of

11

Roscoe and Cindy’s bed when they were killed, Tucker fired away

from Anothy’s crib when he shot Roscoe and Cindy. Anothy’s mere

presence in the room did not put him in the zone of danger

because Tucker’s murderous acts upon Roscoe and Cindy were aimed

in the opposite direction.

¶26 Thus, the evidence was not sufficient to establish the

(F)(3) aggravator for any of the murders, and we need not

determine whether there was sufficient evidence of Tucker’s

mental state or a “real and substantial likelihood” that Anothy

would be killed. Nonetheless, the error is harmless because the

jury in the special interrogatory affirmed the death sentences

without the (F)(3) aggravator. See Henderson, 210 Ariz. at 567

¶ 18, 115 P.3d at 607 (stating that harmless error requires “the

state to prove beyond a reasonable doubt that the error did not

contribute to or affect the verdict or sentence”).

E. Heinous, Cruel, or Depraved

1. Validity

¶27 Tucker contends that the jury instructions on the

(F)(6) aggravator were vague, incapable of principled

application, and, as applied, arbitrary and capricious. Tucker

objected on this basis during the aggravation phase. We review

de novo whether jury instructions adequately state the law.

State v. Johnson, 212 Ariz. 425, 431 ¶ 15, 133 P.3d 735, 741

(2006), cert. denied, 127 S. Ct. 559 (2006).

12

¶28 The (F)(6) aggravator is facially vague but may be

remedied with appropriate narrowing instructions, whether a

judge or a jury makes the sentencing determination. State v.

Ellison, 213 Ariz. 116, 138 ¶ 96, 140 P.3d 899, 921 (2006),

cert. denied, 127 S. Ct. 506 (2006). We therefore must

determine whether the instructions sufficiently narrowed the

terms “especially heinous, cruel or depraved.” Id.

a. Especially Cruel

¶29 Tucker argues that the “especially cruel” instruction

was deficient because it did not require “conclusive evidence”

that the victim was conscious or experienced “significant

uncertainty” about her ultimate fate. He argues that it should

have stated that “murder is especially cruel when there has been

the infliction of pain and suffering in an especially wanton and

insensitive or vindictive manner.” We have, however, approved

instructions without such language.

¶30 The trial judge gave the following instruction on the

“especially cruel” prong:

Concerning this aggravating circumstance, all
first-degree murders are to some extent heinous, cruel
or depraved. However, this 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. “Especially”
means beyond the norm, standing above or apart from
others.

13

The terms “cruel”, [“]heinous”, or “depraved” are
to be considered separately, but proof of any one of
these factors is sufficient to establish this
aggravating circumstance.

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 intended or knew 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.

¶31 We have approved “especially cruel” narrowing

instructions that required the jury to find that the victim was

conscious during the mental anguish or physical pain and also

that the defendant knew or should have known that the victim

would suffer. E.g., Ellison, 213 Ariz. at 139 ¶¶ 98-99, 140

P.3d at 922; State v. Cromwell, 211 Ariz. 181, 189 ¶ 42, 119

P.3d 448, 456 (2005), cert. denied, 126 S. Ct. 2291 (2006);

Anderson II, 210 Ariz. at 352 n.19 ¶ 111, 111 P.3d at 394 n.19.

Tucker’s instructions contained these essential narrowing

factors.

¶32 Although the court’s instruction in Anderson II

required “conclusive evidence” of consciousness, 210 Ariz. at

352 n.19 ¶ 111, 111 P.3d at 394 n.19, we have approved

instructions on the meaning of cruelty that referenced a general

consciousness requirement, see Ellison, 213 Ariz. at 138-39 ¶¶

97-98, 140 P.3d at 921-22; Cromwell, 211 Ariz. at 189 ¶ 42, 119

14

P.3d at 456. We have also approved instructions that referenced

“mental and physical anguish suffered by the victim,” and did

not require the victim’s pain and suffering to be especially

wanton and insensitive or vindictive. Cromwell, 211 Ariz. at

189 ¶ 42, 119 P.3d at 456.

¶33 Finally, a victim’s significant uncertainty about his

or her ultimate fate is one way in which the mental anguish

aspect of the “especially cruel” prong can be fulfilled. State

v. Poyson, 198 Ariz. 70, 78 ¶ 25, 7 P.3d 79, 87 (2000). Yet,

our narrowing instructions require only that “the victim

consciously experience[] physical or mental pain . . . and the

defendant knew or should have known that” the victim would

suffer. Anderson II, 210 Ariz. at 352 n.18 ¶ 109, 111 P.3d at

394 n.18 (quoting State v. Trostle, 191 Ariz. 4, 18, 951 P.2d

869, 883 (1997)). Tucker’s instructions contained these

essential narrowing factors and did not suffer from vagueness.

b. Especially Heinous or Depraved

¶34 Tucker argues that the instructions failed to define

gratuitous violence as violence “clearly beyond that necessary”

to kill and to state that the heinous or depraved aggravator

cannot be based solely on a finding of witness elimination. We

reject these arguments.

¶35 The State focused on the gratuitous violence of Ann

Marie’s murder and the witness elimination aspect of Roscoe’s

15

and Cindy’s murders. In addition to the general instructions on

the (F)(6) aggravator, supra ¶ 30, the trial judge provided the

following instruction:

The terms “heinous” and “depraved” focus upon a
Defendant’s state of mind at the time of the offense,
as reflected by his words and acts. A murder is
especially heinous if it is hatefully or shockingly
evil; grossly bad. A murder is especially depraved if
it is marked by debasement, corruption, or perversion.
In order to find heinousness or depravity, you must
find that the Defendant had such a mental state as
exhibited by engaging in at least one of the following
actions:

1. Infliction of gratuitous violence on the
victim;

2. Killing to eliminate a witness of another
crime[.]

In this context, “gratuitous violence” refers to
violence committed upon the victim beyond that
necessary to kill.

To assist you in determining whether the murder
is heinous or depraved, you may consider whether:

1. The murder was senseless; or

2. Helplessness of the victim.

All murders are “senseless” because of their
brutality and finality. Yet not all are senseless as
the term is used to distinguish those first-degree
murders that warrant a death sentence from those that
do not. Rather, a “senseless” murder is one that is
unnecessary to achieve the Defendant’s criminal
purpose[.]

“Helplessness” is proven when the victim is unable
to resist.

Neither “senselessness” nor “helplessness”, [sic]
standing alone, are sufficient to prove that this
murder was heinous or depraved.

16

¶36 The gratuitous violence instruction was consistent

with our case law because it defined the term as violence beyond

that necessary to kill. E.g., State v. Antoin Jones (Antoin

Jones II), 205 Ariz. 445, 449 ¶ 16, 72 P.3d 1264, 1268 (2003).

Contrary to Tucker’s argument, we have defined the term without

the word “clearly.” E.g., State v. Sansing, 206 Ariz. 232, 237

¶ 18, 77 P.3d 30, 35 (2003).

¶37 The witness elimination instruction was also

consistent with our case law because, while witness elimination

alone is typically not sufficient to satisfy the heinous or

depraved aggravator, “when a capital defendant eliminates the

witness to a crime other than the murder to prevent that witness

from testifying,” witness elimination may, by itself, “justify a

finding of heinousness or depravity.” Johnson, 212 Ariz. at 439

¶ 58, 133 P.3d at 749. Here, the State argued only that Roscoe

and Cindy were killed to eliminate them as “witnesses of another

crime.”

2. Sufficiency of the Evidence

¶38 Tucker argues that the evidence was not sufficient to

prove beyond a reasonable doubt that Roscoe’s and Cindy’s

murders involved witness elimination. We agree because there

was no evidence that Roscoe or Cindy witnessed the attack upon

Ann Marie.

¶39 The Court considers six factors when determining

17

whether a defendant’s acts are especially heinous or depraved:

(1) relishing, (2) gratuitous violence, (3) mutilation, (4)

senselessness of the crime, (5) helplessness of the victim, and

(6) witness elimination. State v. Ross, 180 Ariz. 598, 605, 886

P.2d 1354, 1361 (1994). Witness elimination is a factor if (1)

“the murder victim is a witness to some other crime, and is

killed to prevent that person from testifying about the other

crime”; (2) the defendant states that the motive for the murder

is witness elimination; or (3) “extraordinary circumstances of

the crime show, beyond a reasonable doubt, that witness

elimination is a motive.” Johnson, 212 Ariz. at 439 ¶ 57, 133

P.3d at 749 (quoting Ross, 188 Ariz. at 606, 886 P.2d at 1362).

The first category of witness elimination, the only type alleged

here by the State, is sufficient on its own to satisfy the

heinous or depraved prong. Id. ¶ 58. The second and third

types of witness elimination require an additional factor, such

as senselessness or helplessness, to support a heinous or

depraved finding. See id. ¶ 59.

¶40 We have not sustained the first type of witness

elimination when there is no evidence that the victim witnessed

another crime. For instance, in State v. Danny Jones, the

defendant attacked three victims at a residence, one in the

garage and two inside the residence. 185 Ariz. 471, 477, 917

P.2d 200, 206 (1996). We concluded that the case did “not fall

18

within the first category [of witness elimination] because there

[was] no clear evidence of the sequence of the homicides.” Id.

at 488, 917 P.2d at 217. That is, we could not “determine

conclusively” whether one victim inside the home witnessed the

attack upon the other victim inside the home. Id.

¶41 Likewise, there was no evidence that either Roscoe or

Cindy witnessed any part of the attack upon Ann Marie. Indeed,

they were asleep when they were shot. Thus, there was not

sufficient evidence to establish witness elimination for

Roscoe’s and Cindy’s murders, and, as in Danny Jones, we leave

open the question of whether the first category of witness

elimination may be established when the “other crime . . . was

committed before the murder at issue but . . . occurred during

the same time period as the murder at issue, such as in a case

involving multiple homicides,” id. (internal quotations

omitted).

F. Double Jeopardy

¶42 Tucker contends that it violates double jeopardy for

him to have been retried on the (F)(3) aggravator for all three

victims and the (F)(6) aggravator for Roscoe’s and Cindy’s

murders because in Tucker I the Court held that the evidence was

insufficient for these aggravators. Tucker mischaracterizes our

decision in Tucker I.

¶43 The Double Jeopardy Clause prevents a defendant from

19

being tried twice for the same offense. U.S. Const. amend. V;

Ariz. Const. art. 2, § 10. In Ring III, we rejected the

argument that resentencing a defendant under the amended capital

sentencing scheme violates double jeopardy. 204 Ariz. at 547-48

¶ 25, 65 P.3d at 928-29. A defendant originally sentenced to

death may be resentenced to death on remand, even if the

evidence underlying the original aggravating circumstance was

insufficient. Id. at 550 ¶ 36, 65 P.3d at 931.

¶44 In Tucker I we held that reasonable jurors could have

reached a different conclusion than had the trial court with

regard to the existence of the (F)(3) aggravator for each victim

and the (F)(6) aggravator for Roscoe’s and Cindy’s murders. 205

Ariz. at 169-70 ¶ 68, 68 P.3d at 122-23. We did not hold that

insufficient evidence had been offered to support findings of

these aggravators. Id.

G. Photographs

¶45 Tucker contends that the trial judge committed

reversible error when he allowed the State, over Tucker’s

objection, to admit a montage of forty-four photographs

discovered on Tucker’s bedroom wall. The photographs depicted

corpses and autopsies of deceased celebrities and historical

figures. Some of the photographs also contained written

descriptions of the images.

¶46 We review a trial court’s ruling on the admissibility

20

of evidence for an abuse of discretion. State v. McGill, 213

Ariz. 147, 154 ¶ 30, 140 P.3d 930, 937 (2006), cert. denied, 127

S. Ct. 1914 (2007). At trial, Tucker argued only that the

photographs were irrelevant and did not object to the admission

of any particular photograph. He now contends that they were

inflammatory and prejudicial and argues that the written

descriptions in certain photographs were inadmissible hearsay.

Because Tucker did not raise these objections below, however, we

review only for fundamental error. Henderson, 210 Ariz. at 567

¶ 19, 115 P.3d at 607.

¶47 Pursuant to A.R.S. § 13-703(B) (Supp. 2004), the rules

of evidence apply to the aggravation phase. Under Arizona Rule

of Evidence 401, evidence is relevant if it has “any tendency to

make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than

it would be without the evidence.” Photographs may be relevant

to aid the jury in resolving an issue of the case. State v.

Antoin Jones (Antoin Jones I), 203 Ariz. 1, 10 ¶ 31, 49 P.3d

273, 282 (2002).

¶48 Here, the State argued that the photographs were

relevant to show the cruelty of Ann Marie’s murder because some

of them depicted “people who have bondage, handcuffs, and . . .

[a] duct tape mask” and therefore they indicated that Tucker

knew that the manner in which he killed Ann Marie would cause

21

her to suffer. The photographs, however, primarily depicted

gunshot wounds, none of which particularly resembled Ann Marie’s

injuries; only one photograph contained a bound victim; and the

commentary describing some of the images stated that the victims

died instantaneously. Nonetheless, the photographs had some

minimal relevance to the cruelty prong.

¶49 The State also argued that the photographs were

relevant to prove the gratuitous violence of Ann Marie’s murder

because some depicted victims that were bound or gagged.

Possession of photographs depicting gruesome, violent images of

death may indicate that Tucker had some knowledge about the

force required to kill Ann Marie. Although the photographs were

seized more than one month after the murders and were not dated,

the jury could have inferred that Tucker had displayed the

photographs on his wall at the time of the murders.

¶50 Contrary to Tucker’s argument, the written

descriptions on the photographs did not constitute hearsay

because the photographs and their commentary were not introduced

to prove the truth of their contents, but rather to show what

Tucker displayed on his bedroom wall. See Ariz. R. Evid. 801

(defining hearsay as “a statement . . . offered in evidence to

prove the truth of the matter asserted”).

¶51 Given the low threshold for relevance and Tucker’s

failure to object to the prejudicial nature of the photographs,

22

the judge did not abuse his discretion. In any event, any error

in admitting the photographs was harmless because even without

the photographs there was overwhelming evidence that Ann Marie’s

murder was “especially cruel,” see infra ¶¶ 100-03. Cf. State

v. Spreitz, 190 Ariz. 129, 142, 945 P.2d 1260, 1273 (1997)

(stating that court need not remand if abuse of discretion in

admitting photograph was harmless).

H. Expert Testimony

¶52 Tucker contends that the trial judge admitted hearsay

when he permitted the State’s testifying materials expert to

reveal the content of a non-testifying expert’s statements. He

also argues that this admission violates the Confrontation

Clause under Crawford v. Washington, 541 U.S. 36 (2004). We

reject these arguments because a testifying expert witness may,

for the limited purpose of showing the basis of his or her

opinion, reveal the substance of a non-testifying expert’s

statements. Such statements do not violate the Confrontation

Clause because they are not admissible for their truth.

1. Facts

¶53 The State’s materials expert, John Knell, testified

that the duct tape used to gag Ann Marie was consistent with a

roll of duct tape discovered at Tucker’s home and a duct tape

sheath found on a knife in Tucker’s bedroom. During cross-

examination, Tucker’s counsel questioned Knell with the evident

23

goal of showing that many duct tape rolls are distributed.

Tucker’s counsel asked Knell whether he had “any idea how many

rolls go out a year.” Knell responded that he had “an idea”

because he had talked to representatives from Sure Tape, the

brand name visible on the roll of duct tape recovered from

Tucker’s home. Tucker’s counsel moved to strike Knell’s answer

based on hearsay, but the motion was overruled. Knell then

provided information about Sure Tape’s distribution, but

conceded that he was not an expert in duct tape distribution or

manufacturing.

¶54 On redirect, the State’s questions targeted whether

the tape was destined for retail or industrial use. Tucker’s

father worked as a school maintenance worker, and, presumably,

the State was trying to link the duct tape found on Ann Marie to

the Tucker family. The State elicited that Knell had “reason to

believe” that the duct tape found at Tucker’s home was not

purchased at a retail store. Tucker’s counsel objected to

foundation. Outside the presence of the jury, Knell said that

he had talked with Sure Tape employees and that this “type of

research and direct contact with the actual company” was

typically performed by other analysts in the field when making

comparisons and exclusions and otherwise forming opinions.

¶55 As part of his research, Knell spoke to Karl

McFarland, a duct tape expert at Sure Tape’s headquarters in

24

North Carolina, and two customer sales representatives at Sure

Tape’s Phoenix distribution warehouse. Knell’s opinion that the

duct tape found at Tucker’s home was industrial was based on his

conversation with McFarland, his own research, and his

composition analysis. Knell acknowledged that without speaking

to the Sure Tape employees, he would not have been able to reach

this conclusion.

¶56 During argument on the objection, Tucker also raised

hearsay and confrontation arguments and stated that Knell could

not testify about retail or industrial distribution because he

lacked personal knowledge. The trial judge recognized that

Tucker’s counsel had “opened the door on distribution,” and

overruled Tucker’s objection. He permitted Tucker to further

cross-examine Knell “on that point to show the flakey nature of

the information.”

¶57 When redirect resumed with the jury present, Knell

testified that McFarland told him that the tape labeled Sure

Tape was destined for industrial use, that such tape differed in

its composition from Manco tape distributed to retail stores,

and that the physical characteristics of the tape found in

Tucker’s home were consistent with a certain type of industrial

Sure Tape. Tucker’s counsel declined to further cross-examine

Knell and did not request a limiting instruction regarding the

basis of Knell’s opinion.

25

2. Admissibility of the Statements

a. Rule 703

¶58 We review a trial court’s admission of evidence for an

abuse of discretion. Ellison, 213 Ariz. at 129 ¶ 42, 140 P.3d

at 912. Under Arizona Rule of Evidence 703, “[t]he facts or

data in the particular case upon which an expert bases an

opinion or inference may be those perceived by or made known to

the expert at or before the hearing.” If the facts or data are

“of a type reasonably relied upon by experts in the particular

field in forming opinions or inferences upon the subject, the

facts or data need not be admissible in evidence.” Id. An

expert may, therefore, disclose otherwise inadmissible evidence,

including the substance of a non-testifying expert’s opinion, if

such evidence forms the basis of the expert’s opinion and is

reasonably relied upon by experts in the field. See State v.

Lundstrom, 161 Ariz. 141, 145-47, 776 P.2d 1067, 1071-73 (1989).

Once disclosed, however, the facts or data relied upon are

admissible for the limited purpose of showing the basis of the

expert’s opinion. Id. at 146, 776 P.2d at 1072.

¶59 It is evident that Knell relied, in part, on

McFarland’s information. Based on our case law and Knell’s

testimony that other experts in the field would have researched

and directly contacted the company, it was not an abuse of

discretion for the judge to conclude that such information is

26

reasonably relied upon by other experts in the field. See

Joseph M. Livermore et al., Arizona Practice: Law of Evidence §

703, at 294 (4th ed. 2000) (stating that Arizona courts “have

permitted physicians to rely on the patient’s medical history,

an appraiser to rely on an official schedule of average

reproduction costs of billboards, and a researcher to rely on

the social science data he gathered”) (footnotes omitted).

¶60 Because an expert witness may testify about the

substance of a non-testifying expert’s opinion or factual

information gleaned from other sources, it was permissible for

Knell to reveal the substance of McFarland’s statements.

Lundstrom, 161 Ariz. at 145-47, 776 P.2d at 1071-73. By doing

so, McFarland did not reveal hearsay because the information was

offered, not for its truth, but for the limited purpose of

showing the basis of Knell’s opinion. Contrary to Tucker’s

argument, Knell was not a “mere conduit” for McFarland’s

statements because McFarland’s information, though integral,

constituted only part of the information upon which Knell relied

in forming his opinion. See id. at 148, 776 P.2d at 1074

(discussing improper “mere conduit” testimony).

b. Confrontation Clause

¶61 We review de novo evidentiary rulings that implicate

the Confrontation Clause. See Ellison, 213 Ariz. at 129 ¶ 42,

140 P.3d at 912. A defendant has a right to confront hearsay

27

introduced to establish an aggravating circumstance. McGill,

213 Ariz. at 159 ¶ 51, 140 P.3d at 942; State v. Greenway, 170

Ariz. 155, 161 n.1, 823 P.2d 22, 28 n.1 (1991). Yet, testimony

that is not admitted to prove its truth is not hearsay and does

not violate the Confrontation Clause. Crawford, 541 U.S. at 59

n.9 (stating that the Confrontation Clause “does not bar the use

of testimonial statements for purposes other than establishing

the truth of the matter asserted”); Roque, 213 Ariz. at 214 ¶

70, 141 P.3d at 389 (same).

¶62 Because the facts underlying an expert’s opinion are

admissible only to show the basis of that opinion and not to

prove their truth, an expert does not admit hearsay or violate

the Confrontation Clause by revealing the substance of a non-

testifying expert’s opinion. State v. Rogovich, 188 Ariz. 38,

42, 932 P.2d 794, 798 (1997) (stating that defendant has right

to confront testifying expert witness, but not individuals

“whose findings or research merely form the basis for the

witness’s testimony”); 4 Weinstein’s Federal Evidence § 703.06

(Joseph M. McLaughlin ed., 2d ed. 2006) (noting that “courts

have generally held that the Confrontation Clause is satisfied

if the expert witness is available for cross-examination” and

“is not violated by an expert’s reliance on out-of-court

sources”). Thus, Tucker had a right to confront Knell, the

testifying expert, but he did not have a right to confront

28

McFarland, the non-testifying expert, because Knell’s statements

about his conversation with McFarland were admissible only to

show the basis of Knell’s opinion.

II. Penalty Phase Issues

A. Jury Instructions

¶63 Tucker contends the jury instructions were

inconsistent with our opinion in State ex rel. Thomas v.

Granville (Baldwin), 211 Ariz. 468, 473 ¶ 21, 123 P.3d 662, 667

(2005). The instructions, he argues: (1) incorrectly assigned

him the burden of proving that the mitigation evidence was

sufficiently substantial to call for leniency, and (2)

incorrectly adopted a “presumption of death” by directing the

jurors to impose a death sentence if no juror found mitigation

sufficiently substantial to warrant leniency. Tucker did not

object to these instructions below, and we conclude there was no

fundamental error.

¶64 A sentencing juror must be allowed to consider and

give independent effect to any mitigating evidence that is

relevant to the decision to impose the death penalty. Kansas v.

Marsh, 126 S. Ct. 2516, 2523 (2006). This constitutional

requirement of individualized sentencing was met here. At the

close of the penalty phase, the jurors were properly instructed

that mitigating circumstances were any factors “relevant in

determining whether to impose a sentence of less than death” and

29

that they should consider any circumstances presented by Tucker

and the State as well as other information admitted as evidence.

Finally, the jurors were instructed that, based upon all the

evidence presented in the aggravation and penalty phases, they

must individually decide whether there was mitigation, the

weight to be given to the mitigation, and whether the mitigation

was sufficiently substantial to call for leniency.

1. The Baldwin Error

¶65 The trial court also instructed the jurors that “the

defendant has the burden to prove that the mitigation evidence

is sufficiently substantial to call for leniency.” This

instruction, as the State concedes, conflicts with Baldwin’s

holding that “A.R.S. § 13-703(E) does not impose an affirmative

duty on the defendant to prove that mitigation is sufficiently

substantial to call for leniency.” 211 Ariz. at 472 ¶ 12, 123

P.3d at 666. Tucker contends that this error is structural or,

at the very least, fundamental.

¶66 A structural error is one that “affect[s] the entire

conduct of the trial from beginning to end, and thus taint[s]

the framework within which the trial proceeds.” Henderson, 210

Ariz. at 565 ¶ 12, 115 P.3d at 605 (quoting State v. Anderson

(Anderson I), 197 Ariz. 314, 323 ¶ 22, 4 P.3d 369, 378 (2000)

(internal quotations omitted)). It “deprive[s] defendants of

basic protections without which a criminal trial cannot reliably

30

serve its function as a vehicle for guilt or innocence.” Id.

(quoting Ring III, 204 Ariz. at 552 ¶ 45, 65 P.3d at 933

(internal quotations omitted)); see also State v. Glassel, 211

Ariz. 33, 53 ¶ 74, 116 P.3d 1193, 1213 (2005) (noting in dicta

that instruction that improperly reduces state’s burden of proof

in penalty phase of capital trial is structural error), cert.

denied, 126 S. Ct. 1576 (2006). We have recognized structural

error in only a few instances. See Ring III, 204 Ariz. at 552-

53 ¶ 46, 65 P.3d at 933-34 (noting structural error when trial

judge biased; defendant denied counsel, access to counsel, self-

representation, and public trial; reasonable doubt instructions

defective; and jurors excluded because of race or views on death

penalty).

¶67 In assessing the nature of the Baldwin error, we find

relevant the recent decision of the Supreme Court in Marsh.

There, the Supreme Court stated that as long as the “method of

allocating the burdens of proof does not lessen the State’s

burden to prove every element of the offense charged” or

aggravating circumstances alleged, the state may place on the

defendant “the burden of proving mitigating circumstances

sufficiently substantial to call for leniency.” 126 S. Ct. at

2523 (quoting Walton v. Arizona, 497 U.S. 639, 650 (1990),

overruled on other grounds by Ring v. Arizona (Ring II), 536

U.S. 584, 609 (2002)).

31

¶68 The Baldwin error now challenged by Tucker was

therefore not of constitutional magnitude, but instead misstated

the statutory requirements of A.R.S. § 13-703(E). We do not

find the error structural because it did not reduce the State’s

burden of proof or preclude the jurors from considering relevant

mitigation evidence during the penalty phase. Instead, the

instruction indicated that Tucker had a burden with respect to

an issue (the propriety of a death sentence) on which Baldwin

stated that neither party bears a burden, but that the Supreme

Court held could be placed on the defendant.

¶69 We also reject Tucker’s argument that the error is

fundamental. Although assigning such a burden to Tucker was

inconsistent with A.R.S. § 13-703(E), this case does not qualify

as one of the “rare cases” in which the error goes to the

foundation of the case or the defendant was denied his right to

a fair trial or a right essential to his defense. See Henderson,

210 Ariz. at 567 ¶ 19, 115 P.3d at 607.

2. The Four-Points Instruction

¶70 Tucker argues that the trial court’s “four-points”

instruction impermissibly created a presumption of death. The

instruction stated:

You can reach a verdict in any of the following ways:

1. If no jurors find the defendant proved any
mitigation by a preponderance of the evidence, you
must return a verdict of death.

32

2. If some jurors find the defendant proved
mitigation, the jurors who found mitigation must weigh
the mitigation they found against the aggravating
factors already found. The jurors who found
mitigation may disagree about what mitigation exists.
If all the jurors who found mitigation find the
mitigation is not sufficiently substantial to call for
leniency and all the remaining jurors continue to find
no mitigation exists, you must return a verdict of
death.

3. If all jurors find mitigation exists, all must
weigh the mitigation they found against the
aggravating factors already found. The jurors may
disagree about what mitigation exists. If all the
jurors find the mitigation is not sufficiently
substantial to call for leniency, you must return a
verdict of death.

4. If all jurors find mitigation exists and all find
the mitigation they found is sufficiently substantial
to call for leniency, you must return a verdict of
life imprisonment.

¶71 The first paragraph of the four-points instruction,

Tucker contends, is flawed because it told the jurors that they

must impose death if no juror found Tucker had proved any

mitigation, while Baldwin recognized that the jurors may return

a verdict of life in prison even if the defendant presents no

mitigation evidence. 211 Ariz. at 471 ¶ 12, 123 P.3d at 665.

He also argues that the first, second, and third paragraphs of

the four-points instruction are incorrect because Baldwin allows

jurors to vote not to impose death even in the absence of any

mitigation. These arguments misapprehend Baldwin.

¶72 Under our statutory scheme, the defendant bears the

33

burden of proving the existence of mitigating circumstances, see

A.R.S. § 13-703(C), but the jurors are not restricted to only

facts presented by the defendant in finding mitigation. This

point is reflected in Baldwin’s statement that a juror could

consider mitigating circumstances “proved by the defendant or

present in the record.” 211 Ariz. at 473 ¶ 18, 123 P.3d at 667.

Consistent with Baldwin, the jurors were instructed that they

should consider “any . . . information admitted as evidence that

is relevant in determining whether to impose a sentence less

than death so long as it relates to an aspect of the Defendant’s

character , [sic] propensities, or record and any of the

circumstances of the offense.” Thus, the jurors were allowed to

consider all relevant evidence, and not merely evidence

presented by Tucker, in determining if any mitigating

circumstances existed.

¶73 The four-points instruction also did not create an

impermissible “presumption” of death by instructing the jurors

to impose a death sentence if none of them found mitigation

sufficiently substantial to warrant leniency. Section 13-703(E)

provides that the trier of fact, having found one or more

aggravating factors, “shall impose a sentence of death if the

trier of fact . . . determines that there are no mitigating

circumstances sufficiently substantial to call for leniency.”

Such a directive does not violate the Eighth Amendment so long

34

as jurors are allowed to consider any mitigating evidence. See

Marsh, 126 S. Ct. at 2525-26; Blystone v. Pennsylvania, 494 U.S.

299, 306-07 (1990).

¶74 Baldwin noted that § 13-703(E) allows a juror to vote

to impose death only if he or she concludes that there is no

mitigation sufficiently substantial to warrant leniency. 211

Ariz. at 473 ¶ 21, 123 P.3d at 667. This does not imply,

however, that a juror may vote for leniency even if he or she

finds there is no mitigation or no mitigation sufficiently

substantial to warrant a sentence of less than death. Under our

sentencing scheme, a juror must vote against death if he or she

individually determines there are any mitigating circumstances

sufficiently substantial to warrant leniency; conversely, given

the findings of one or more aggravators, a juror must vote to

impose a sentence of death if he or she determines there is no

mitigation at all or none sufficiently substantial to warrant a

sentence of less than death.

¶75 Finally, we reject Tucker’s contention that the four-

points instruction confusingly directed the jurors to weigh

mitigating and aggravating factors. Baldwin discouraged the use

of instructions informing jurors that they must find that

mitigating circumstances "outweigh" aggravating circumstances

before they can impose a sentence other than death. Id. Such

an instruction was not used here, although the four-points

35

instruction did direct the jury to "weigh" mitigating and

aggravating circumstances. The language used here did not

constitute fundamental error.

¶76 We reaffirm our statement in Baldwin that jury

instructions prospectively should avoid “outweighing” language

and should clearly explain “that a juror may not vote to impose

the death penalty unless he or she finds, in the juror’s

individual opinion, that ‘there are no mitigating circumstances

sufficiently substantial to call for leniency.’” Id. (quoting

A.R.S. § 13-703(E)).

B. Allocution

¶77 Tucker contends that he could not knowingly,

voluntarily, or intelligently waive his right of allocution

because it was ambiguously defined by the trial judge. Because

Tucker did not object below, we review for fundamental error.

Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.

¶78 During the penalty phase, the judge informed Tucker

that he was uncertain whether or not Tucker could be cross-

examined during allocution. Tucker’s counsel told Tucker that

he could be cross-examined. Tucker declined to allocute.

¶79 In Anderson II, we held that even if a defendant is

denied the right to allocute at sentencing, “there is no need

for resentencing unless the defendant can show that he would

have added something to the mitigating evidence already

36

presented.” 210 Ariz. at 350 ¶ 100, 111 P.3d at 392 (internal

quotations and citations omitted). Tucker concedes that he

cannot show what he would have added to the mitigation evidence

already presented, even had his right of allocution been more

effectively described. Although Tucker’s counsel speculates

that Tucker could have maintained his innocence or made

statements supporting residual doubt, Tucker does not have an

Eighth Amendment right to introduce such evidence at the penalty

phase. See Oregon v. Guzek, 126 S. Ct. 1226, 1232 (2006)

(stating that defendant does not have constitutional right to

present evidence of residual doubt during sentencing). Thus,

Tucker’s claim fails under Anderson II, regardless of whether he

could have been cross-examined during allocution.

C. Jury Admonition

¶80 Tucker argues that the trial judge did not follow the

proper procedural safeguards when he failed to determine on the

record whether an alternate juror had followed the admonition

before the penalty phase deliberations and to instruct the jury

to begin deliberations anew. Tucker did not object at trial

and, therefore, we review for fundamental error. Henderson, 210

Ariz. at 567 ¶ 19, 115 P.3d at 607.

¶81 Juror 15 was designated an alternate juror at the

close of the aggravation phase. When the jury retired to

deliberate during the aggravation phase, the alternate jurors

37

were told that they would not participate, but that they should

continue to follow the admonition until they were discharged.

Before the penalty phase began, the judge excused a sick juror

and instructed the returning alternate jurors to continue to

observe the admonition. At the close of the penalty phase,

Juror 15 was selected to deliberate.

¶82 The trial judge complied with Arizona Rule of Criminal

Procedure 18.5(i) when he instructed Juror 15 to follow the

admonition before excusing Juror 15 for the aggravation phase

deliberations and renewed the admonition when Juror 15 rejoined

the panel for the penalty phase. Indeed, Rule 18.5(i) requires

the trial judge to instruct an alternate juror not selected for

deliberation in either the aggravation or penalty phase to

observe the admonition until discharged. The rule does not,

however, prescribe any additional procedure that must be

followed when an alternate juror is substituted between the

aggravation and penalty phases.

¶83 The trial judge was not required to instruct the jury

to begin deliberations anew because such an instruction is

required only where a substitution is made after deliberations

have begun. Ariz. R. Crim. P. 18.5(i); see Roseberry, 210 Ariz.

at 372-73 ¶ 71, 111 P.3d at 414-15 (concluding that judge’s

failure to instruct jury to begin deliberations anew was not

error because the juror was substituted before penalty phase

38

deliberations).

D. Mitigation Verdict Form

¶84 Tucker argues that the trial judge’s failure to

provide the jury a mitigation verdict form prevents this Court

from conducting a meaningful review. We rejected this claim in

Roque, 213 Ariz. at 226 ¶ 141, 141 P.3d at 401. See also

Roseberry, 210 Ariz. at 373 n.12 & ¶ 74, 111 P.3d at 415 & n.12.

E. Prosecutorial Misconduct

¶85 Tucker contends that the prosecutor committed

misconduct during the penalty phase closing arguments by stating

that Tucker’s crimes would “go down in history as some of the

worst.” We disagree.

¶86 Before the penalty phase closing arguments, the trial

judge instructed the jurors that the lawyers’ statements during

closing arguments were neither law nor evidence. During the

arguments, the prosecutor discussed Tucker’s lack of a criminal

record as a mitigating circumstance and stated that “every

criminal has a first conviction. And the severity of this

defendant’s first conviction, the severity of the crimes for

which he has been convicted or found guilty beyond a reasonable

doubt of will go down in history as some of the worst.” Tucker

promptly objected, but the judge overruled the objection and

again instructed the jurors that the lawyers’ comments during

closing arguments were not law or evidence.

39

¶87 The following day, Tucker moved for a mistrial,

arguing that the statement improperly interjected the

prosecutor’s opinion and was irrelevant and prejudicial. The

trial judge denied the motion.

¶88 This Court will reverse a conviction based on

prosecutorial misconduct when there is misconduct by the

prosecutor and “a reasonable likelihood . . . that the

misconduct could have affected the jury’s verdict, thereby

denying [the] defendant a fair trial.” Anderson II, 210 Ariz.

at 340 ¶ 45, 111 P.3d at 382 (internal quotations and citations

omitted). Because the trial court is in the best position to

determine whether an attorney’s remarks require a mistrial, we

will not disturb its judgment absent an abuse of discretion.

State v. Robert Jones, 197 Ariz. 290, 305 ¶ 37, 4 P.3d 345, 360

(2000). The same principles apply to review of a trial court’s

denial of a mistrial in a capital sentencing proceeding. See

Roque, 213 Ariz. at 228 ¶ 152, 141 P.3d at 403.

¶89 Read in context, the prosecutor’s statement was a

comment on the weight the jurors should give the criminal

history mitigating circumstance, rather than an improper

personal comment on Tucker’s criminal history. In any event,

the statement was not unduly prejudicial and did not contribute

to the jury’s verdict because the trial judge advised the jury

both before and after the closing arguments that the comments

40

made during the closing were not law or evidence. See State v.

Newell, 212 Ariz. 389, 403 ¶ 68, 132 P.3d 833, 847 (2006)

(stating that the trial judge properly instructed the jury that

statements during closing arguments were not evidence), cert.

denied, 127 S. Ct. 663 (2006). We presume that jurors follow

the judge’s instructions. Id. Moreover, Tucker challenges the

propriety of only a single statement, and there was substantial

evidence supporting the aggravating circumstances and minimal

mitigating evidence. See infra ¶¶ 97-119. Thus, the challenged

statement does not warrant a reversal of the jury’s verdicts.

F. Victim Impact Statements

¶90 Tucker contends that the admission of victim impact

statements violates Blakely v. Washington, 542 U.S. 296 (2004),

and Crawford, 541 U.S. 36, and that one of the statements here

was unduly prejudicial.

¶91 During the penalty phase, five victims made

statements. Three of the victims read their own statements in

court, while third parties read the written statements of two of

the victims. Because Tucker did not object to the alleged

errors at trial, we review for fundamental error. Henderson,

210 Ariz. at 567 ¶ 19, 115 P.3d at 607.

¶92 Evidence about the victim and the effect of the crime

on the victim’s family is admissible during the penalty phase as

rebuttal to the defendant’s mitigation evidence. A.R.S. § 13-

41

703.01(R) (Supp. 2004); see Roque, 213 Ariz. at 221 ¶ 114, 141

P.3d at 396; Ellison, 213 Ariz. at 140 ¶ 111, 140 P.3d at 923.

The evidence may not, however, be so unduly prejudicial that it

renders the trial fundamentally unfair. Payne v. Tennessee, 501

U.S. 808, 825 (1991).

¶93 In Roque, we rejected the claim that the admission of

victim impact statements violates Blakely because the statements

have the “effect” of an aggravating circumstance. 213 Ariz. at

221-22 ¶ 115, 141 P.3d at 396-97.

¶94 Tucker’s Crawford claim also fails. “[T]he

Confrontation Clause does not apply to rebuttal testimony at a

sentencing hearing because (1) the penalty phase is not a

criminal prosecution, (2) historical practices support the use

of out-of-court statements in sentencing, and (3) the sentencing

body requires complete information to make its determination.”

McGill, 213 Ariz. at 159 ¶ 52, 140 P.3d at 942; see id. at 158

¶¶ 47, 49, 140 P.3d at 941 (stating that a criminal defendant

does not have a right to confront witness at the penalty phase

under either the Arizona or Federal Constitution).

¶95 Finally, the victim impact statement challenged as

unduly prejudicial stated: “I know that Eugene probably honed

in on my sister’s insecurities to have his way with her.” The

statement, which addressed Ann Marie’s insecurity, was not

unduly prejudicial under Payne.

42

III. Independent Review

¶96 Because Tucker committed his crimes before August 1,

2002, and was later resentenced, this Court must independently

review the aggravating and mitigating circumstances and the

propriety of the death sentences. A.R.S. § 13-703.04(A) (Supp.

2004); 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 7(B).

A. Aggravating Circumstances

¶97 The State identified four aggravating circumstances

for each of the three victims. As noted supra ¶¶ 26 and 41, the

(F)(3) aggravator for each victim and the (F)(6) aggravator for

Roscoe’s and Cindy’s murders were not proven beyond a reasonable

doubt.

1. Prior Conviction Subject to a Life Sentence

¶98 To establish the (F)(1) aggravator, the state must

prove beyond a reasonable doubt that “[t]he defendant has been

convicted of another offense in the United States for which

under Arizona law a sentence of life imprisonment or death was

imposable.” A.R.S. § 13-703(F)(1). As long as the prior

conviction is entered before the sentencing hearing, the

conviction may support the (F)(1) aggravator even if it is

committed before, contemporaneous with, or after the capital

homicide. State v. Moody, 208 Ariz. 424, 470 ¶ 215, 94 P.3d

1119, 1165 (2004); State v. Gretzler, 135 Ariz. 42, 57 n.2, 659

P.2d 1, 16 n.2 (1983).

43

¶99 Tucker was found guilty of sexual assault pursuant to

A.R.S. § 13-1406 (Supp. 1999) and sentenced to twenty-five years

to life imprisonment. We affirmed this conviction and sentence

in Tucker I. 205 Ariz. at 159 ¶ 1, 170 ¶ 69, 68 P.3d at 112,

123. Thus, the (F)(1) aggravator was proven beyond a reasonable

doubt.

2. Especially Heinous, Cruel, or Depraved

¶100 The “especially cruel” prong of the (F)(6) aggravator

focuses on the victim’s state of mind. Danny Jones, 185 Ariz.

at 487, 917 P.2d at 216. To establish this prong, the state

must prove beyond a reasonable doubt that the defendant knew or

should have known that the victim would experience mental

anguish or physical pain and that the victim was conscious

during some part of the violence. Ellison, 213 Ariz. at 141-42

¶ 119, 140 P.3d at 924-25; Trostle, 191 Ariz. at 18, 951 P.2d at

883.

¶101 Ann Marie was discovered partially clothed and face

down with her hands behind her back on her bedroom floor. She

was lying in a pool of blood. There was evidence of a struggle

in the bedroom, as well as blood spatter and cast-off on the

walls. Ann Marie had been bound around the wrists, most likely

with handcuffs, and she had been gagged with duct tape. Ann

Marie also had ligature marks consistent with a phone cord

around her neck. The medical examiner opined that the ligature

44

was likely used to control Ann Marie’s consciousness.

¶102 Testimony established that Ann Marie suffered trauma

caused by a blunt object to the back of the head, resulting in

at least four separate and deep lacerations. She also sustained

“painful” bruises and abrasions on the exterior and interior of

her vagina and rectum. Ann Marie was alive when these injuries

were inflicted, but the medical examiner could not definitively

state whether she was conscious. Ann Marie was fatally shot at

close range in the jaw and behind the left ear. One of the

bullets lacerated her brain stem. After she was shot, Ann Marie

was rolled into the position in which she was discovered.

¶103 In our independent review we find that Ann Marie was

conscious when she was bound and strangled. See Ellison, 213

Ariz. at 142 ¶ 121, 140 P.3d at 925 (finding victim conscious

when bound in order to prevent struggle). We also find that Ann

Marie’s injuries indicate that she suffered extreme physical

pain when she was bludgeoned, sexually assaulted, and strangled.

Accordingly, the State established beyond a reasonable doubt

that Ann Marie’s murder was “especially cruel,” and we need not

also determine whether her murder is “especially heinous or

depraved.” McGill, 213 Ariz. at 155 n.1 ¶ 32, 140 P.3d at 938

n.1 (recognizing that the (F)(6) aggravator is disjunctive).

3. Multiple Murders

¶104 To establish the (F)(8) multiple murders aggravator,

45

the state must prove beyond a reasonable doubt that “[t]he

defendant has been convicted of one or more other homicides, as

defined in [A.R.S.] § 13-1101 [Supp. 1999], which were committed

during the commission of the offense.” A.R.S. § 13-703(F)(8)

(Supp. 1999). “[T]he homicides must be temporally, spatially,

and motivationally related, taking place during ‘one continuous

course of criminal conduct.’” State v. Prasertphong, 206 Ariz.

167, 170 ¶ 15, 76 P.3d 438, 441 (2003) (quoting Rogovich, 188

Ariz. at 45, 932 P.2d at 801); see also Anderson II, 210 Ariz.

at 351-52 ¶ 108, 111 P.3d at 393-94 (finding spatial requirement

satisfied when three victims killed on same property); State v.

Dann, 206 Ariz. 371, 373 ¶ 9, 79 P.3d 58, 60 (2003) (finding

temporal requirement satisfied when there was a “short,

uninterrupted span of time in which” victims were killed and

motivational requirement satisfied when defendant went to a

residence to kill one victim and killed two additional victims

merely because they were present or witnesses). If proven, the

(F)(8) aggravator applies to each of the homicides. State v.

Djerf, 191 Ariz. 583, 597 ¶ 57, 959 P.2d 1274, 1288 (1998).

¶105 The record demonstrates that all three murders

occurred on the same day and in the same apartment. And, as we

recognized in Tucker I, “it is difficult to imagine a motive for

the killings [of Roscoe and Cindy] unrelated to the murder of

AnnMarie [sic].” 205 Ariz. at 169 ¶ 66, 68 P.3d at 122.

46

Accordingly, the State proved the (F)(8) aggravator beyond a

reasonable doubt.

B. Mitigating Circumstances

¶106 The defendant has the burden to prove mitigating

circumstances by a preponderance of the evidence. A.R.S. § 13-

703(C); Baldwin, 211 Ariz. at 472 ¶ 14, 123 P.3d at 666. Any

relevant mitigation evidence that supports a sentence less than

death is admissible. Ellison, 213 Ariz. at 144 ¶ 132, 140 P.3d

at 927. While there need not be a causal nexus between the

mitigation evidence and the crime, id., such a relationship may

impact “the quality and strength of the mitigation evidence,”

Newell, 212 Ariz. at 405 ¶ 82, 132 P.3d at 849.

¶107 Tucker proffered five mitigating circumstances: (1)

age; (2) no prior criminal record; (3) good behavior while in

prison; (4) good family and interpersonal relationships; and (5)

a narcissistic personality disorder.

¶108 The defendant’s age is a statutory mitigating

circumstance, A.R.S. § 13-703(G)(5), which may be “substantial

and relevant,” Poyson, 198 Ariz. at 80 ¶ 37, 7 P.3d at 89. In

considering the defendant’s chronological age, we also examine

the defendant’s “level of intelligence, maturity, past

experience, and level of participation in the killings.” Id.

¶109 Tucker’s father, Tucker Sr., testified that Tucker was

born on July 5, 1981. Tucker therefore turned eighteen years

47

old just ten days before the murders, yet Tucker’s counsel did

not stress this fact.

¶110 Tucker Sr. insisted that his son did not have a

learning disability, but Dr. Thomas Gaughn, a defense

psychiatrist, stated that Tucker had a learning disability and

received special education services in school. There was no

significant testimony about Tucker’s level of maturity, other

than the fact that he lived at home, took law enforcement

courses, and desired to join the military after school.

Although there was minimal additional evidence, Tucker’s

chronological age is sufficient to establish this mitigating

circumstance by a preponderance of the evidence.

¶111 With respect to the second proffered circumstance,

this Court has found that a defendant’s lack of a prior criminal

record may be a mitigating circumstance. See State v. Davolt,

207 Ariz. 191, 216 ¶ 113, 84 P.3d 456, 481 (2004); Prasertphong,

206 Ariz. at 171 ¶ 20, 76 P.3d at 442. Tucker established that

he had no prior criminal record by a preponderance of the

evidence.

¶112 For the third mitigating circumstance, Tucker’s good

behavior while in prison, Tucker Sr. testified that his son was

adapting and behaving well in prison. Dr. Gaughn confirmed that

Tucker had “an absence of problems” while in prison.

¶113 Because all prisoners are expected to behave and adapt

48

to prison life, we typically do not give much weight to a

defendant’s good behavior while in prison. E.g., State v.

Harrod, 200 Ariz. 309, 319 ¶ 53, 26 P.3d 492, 502 (2001)

(stating that trial court need not give this circumstance much

weight because all prisoners are expected to behave), rev’d on

other grounds, 536 U.S. 953 (2002); State v. White, 194 Ariz.

344, 355 ¶ 47, 982 P.2d 819, 830 (1999) (recognizing that

defendant’s good behavior in prison may be mitigating). We

therefore afford this mitigating circumstance minimal weight.

¶114 On the fourth mitigating circumstance, Tucker’s good

relationships with family and friends, Tucker Sr. testified that

his son had friends in grade and middle school and was a

“normal” child. He said that his son had to change high schools

after being “jumped” by a gang, but insisted that Tucker’s

grades improved and he made friends after changing schools.

Tucker Sr. further stated that Tucker had “excellent”

interactions with his family and Tucker’s sisters had visited

him in prison.

¶115 The State countered by introducing evidence that

Tucker got into fights during elementary school and once injured

another student with a pencil sharpener or eraser.

Additionally, Tucker Sr. acknowledged that he “had very little

contact with” his son in the years preceding his arrest and had

to place dead bolt locks on the interior doors of the family’s

49

home after his children accused each other of stealing.

¶116 A defendant’s relationship with his or her family and

friends may be a mitigating circumstance, yet the Court has

often found that this circumstance should be given little

weight. E.g., State v. Cañez, 202 Ariz. 133, 164 ¶ 120, 42 P.3d

564, 595 (2002); State v. Carriger, 143 Ariz. 142, 162, 692 P.2d

991, 1011 (1984). Thus, in light of the conflicting testimony,

we afford this circumstance minimal significance.

¶117 With respect to the final mitigating circumstance, Dr.

Gaughn testified that Tucker suffers from a narcissistic

personality disorder. According to Dr. Gaughn, individuals with

this disorder tend to inflate their abilities, become easily

emotional, and have difficulty interacting with others and

adapting to their surroundings. They may also have “unrealistic

belief[s]” about their own accomplishments and “unreasonable

expectation[s]” of favorable treatment. Dr. Gaughn did not

believe that Tucker had an anti-social personality disorder and

opined that a narcissistic personality disorder may be treatable

in certain cases. On cross-examination, he speculated that

Tucker could have had an intensely negative emotional reaction

to Ann Marie’s rejection, consistent with a narcissistic

personality disorder.

¶118 Under A.R.S. § 13-703(G)(1), it is a statutory

mitigating circumstance if “[t]he defendant’s capacity to

50

appreciate the wrongfulness of his conduct or to conform his

conduct to the requirements of law was significantly impaired,

but not so impaired as to constitute a defense to prosecution.”

Personality or character disorders, however, typically do not

satisfy this mitigator, State v. Kayer, 194 Ariz. 423, 437 ¶ 49,

984 P.2d 31, 45 (1999), and the absence of a causal connection

between the disorder and the crime diminishes the weight that

this Court affords such disorders, see Roque, 213 Ariz. at 231 ¶

169, 141 P.3d at 406 (recognizing that defendant need not

establish causal connection between mental capacity and crime,

but court may consider such connection in evaluating mitigation

evidence). Although there was testimony that Tucker may have

had an intensely negative emotional reaction to Ann Marie’s

rejection consistent with a narcissistic personality disorder,

such testimony did not establish a causal connection. Moreover,

Dr. Gaughn did not state that Tucker’s disorder impaired his

ability to appreciate the wrongfulness of his conduct or to

conform it to the law at the time of the murders. Thus,

Tucker’s disorder does not rise to the level of a statutory

mitigating circumstance, and we give it little weight as a non-

statutory mitigating circumstance.

¶119 In sum, the most compelling mitigating circumstances

were Tucker’s age and lack of a prior criminal record.

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C. Propriety of the Death Sentences

¶120 Although we have set aside the (F)(3) aggravator for

all three murders and the (F)(6) aggravator for Roscoe’s and

Cindy’s murders, we will independently review the propriety of

Tucker’s death sentences to determine whether the mitigation is

sufficiently substantial to call for leniency. See A.R.S. § 13-

703.04(B). In doing so, we will “consider the quality and the

strength, not simply the number, of aggravating and mitigating

factors.” State v. Greene, 192 Ariz. 431, 443 ¶ 60, 967 P.2d

106, 118 (1998). We conclude that Tucker’s mitigation evidence

is not sufficiently substantial to warrant leniency in light of

the three aggravators that remain for Ann Marie’s murder and the

two aggravators that remain for Roscoe’s and Cindy’s murders.

Thus, we uphold Tucker’s three death sentences.

IV. Arguments Preserved for Federal Review

¶121 Tucker raises eleven other constitutional challenges

to preserve for federal review. These arguments are set forth

in the Appendix.

V. Conclusion

¶122 For the reasons stated above, we affirm each of

Tucker’s three death sentences.

_______________________________________
W. Scott Bales, Justice

52

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Jon W. Thompson, Judge2

2
Pursuant to Article 6, Section 3, of the Arizona
Constitution, the Honorable Jon W. Thompson, Judge of the
Arizona Court of Appeals, Division One, was designated to sit in
this matter.

53

APPENDIX

Tucker raises the following claims to preserve them for

federal review:

(1) The death penalty is an irreversible denial of human
rights and violates the Eighth Amendment and international
law. The Court found it unnecessary to consider whether the
death penalty violates international law in State v.
Richmond, 136 Ariz. 312, 322, 666 P.2d 57, 67 (1983), and
rejected the argument that the death penalty violates the
Eighth Amendment in State v. Towery, 186 Ariz. 168, 190, 920
P.2d 290, 312 (1996).

(2) The indictment violated the Fifth, Sixth, Eighth, and
Fourteenth Amendments because it failed to allege the
aggravating factors. The Court rejected this argument in
McKaney v. Foreman ex rel. County of Maricopa, 209 Ariz. 268,
271 ¶¶ 13, 15, 100 P.3d 18, 21 (2004).

(3) Tucker’s sentences constitute an impermissible violation
of the Ex Post Facto application of the law offending the
Eighth and Fourteenth Amendments. This Court rejected this
argument in Ellison, 213 Ariz. at 146 app. A, 140 P.3d at
929.

(4) Arizona’s death penalty statute is unconstitutional under
all circumstances because it is cruel and unusual. This
Court and the United States Supreme Court have rejected this
argument. Gregg v. Georgia, 428 U.S. 153, 186-87 (1976);
State v. Salazar, 173 Ariz. 399, 411, 844 P.2d 566, 578
(1992).

(5) The death penalty is arbitrarily and irrationally imposed
in Arizona in violation of the Eighth and Fourteenth
Amendments and Article 2, Sections 1, 4, and 15, of the
Arizona Constitution. The Court rejected this argument in
State v. Beaty, 158 Ariz. 232, 247, 762 P.2d 519, 534 (1988).

(6) The prosecutor’s discretion to seek the death penalty has
no standards and thereby violates the Eighth and Fourteenth
Amendments and Article 2, Sections 1, 4, and 15, of the
Arizona Constitution. The Court rejected this argument in
Cromwell, 211 Ariz. at 192 ¶ 58, 119 P.3d at 459.

54

(7) The death penalty discriminates against the poor, young,
and male. The Court rejected this argument in State v.
Stokley, 182 Ariz. 505, 516, 898 P.2d 454, 465 (1995).

(8) The absence of proportionality review denies capital
defendants rights guaranteed by the Fifth, Eighth, and
Fourteenth Amendments and Article 2, Section 15, of the
Arizona Constitution. The Court has rejected this argument.
State v. Gulbrandson, 184 Ariz. 46, 73, 906 P.2d 579, 606
(1995) (citing Salazar, 173 Ariz. at 416, 844 P.2d at 583).

(9) A.R.S. § 13-703.01 is unconstitutional because it does
not require that aggravators are found beyond a reasonable
doubt to outweigh the mitigators. The Court has rejected
this argument. White, 194 Ariz. at 355-56 ¶ 49, 982 P.2d at
830-31.

(10) Execution by lethal injection is cruel and unusual
punishment. The Court rejected this claim in State v.
Hinchey, 181 Ariz. 307, 315, 890 P.2d 602, 610 (1995).

(11) The failure to instruct on residual doubt violates due
process. The United States Supreme Court rejected this claim
in Guzek, 126 S. Ct. at 1232.

55