State v. Cruz

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-05-0163-AP
Appellee, )
) Pima County
v. ) Superior Court
) No. CR2003-1740
JOHN MONTENEGRO CRUZ, )
)
Appellant. ) O P I N I O N
_________________________________ )

Appeal from the Superior Court in Pima County
The Honorable Theodore B. Borek, Judge

AFFIRMED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Capital Litigation Section
Amy Pignatella Cain, Tucson
Assistant Attorney General
Attorneys for State of Arizona

LAW OFFICE OF DAVID ALAN DARBY Tucson
By David Alan Darby
Attorneys for John Montenegro Cruz
________________________________________________________________

B E R C H, Vice Chief Justice

¶1 John Montenegro Cruz was convicted of one count of

first degree murder and sentenced to death. This automatic

appeal followed. This Court has jurisdiction pursuant to

Article 6, Section 5(3) of the Arizona Constitution and Arizona

Revised Statutes (“A.R.S.”) section 13-4031 (2004).
 I. FACTUAL AND PROCEDURAL BACKGROUND1

¶2 On May 26, 2003, Tucson Police Officers Patrick

Hardesty and Benjamin Waters responded to a hit-and-run

accident. The investigation led the officers to a nearby

apartment.

¶3 The apartment was occupied by two women and Appellant

Cruz, who fit the description of the hit-and-run driver. The

officers asked Cruz to step outside and identify himself. Cruz

said he was “Frank White.” Officer Hardesty contacted police

dispatch to verify the identity and was told that no Frank White

with the birthdate given by Cruz was licensed in Arizona.

Hardesty asked Cruz for identification and Cruz replied that he

had left it in the car.

¶4 As Hardesty and Cruz approached the car, Cruz leaned

in as if retrieving something, then “took off running.” Officer

Hardesty chased Cruz on foot, while Waters drove his patrol car

around the block in an attempt to cut Cruz off.

¶5 When Waters turned the corner, he saw Cruz throw a gun

on the ground. Officer Hardesty was nowhere in sight. Waters

radioed Hardesty that Cruz had a gun, then got out of his car

and drew his service weapon on Cruz, who stated, “Just do

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 -
it . . . . Just go ahead and kill me now. Kill me now. Just

get it over with.” Waters apprehended Cruz after a brief

struggle.

¶6 Officer Hardesty’s body was discovered immediately.

He had been shot five times: Two bullets were stopped by his

protective vest, two bullets entered his abdomen below the vest,

and a fifth bullet entered his left eye, killing him almost

instantly. Four of the five shots were fired from no more than

twelve inches away.

¶7 The handgun thrown down by Cruz, a .38 caliber Taurus

revolver, holds five cartridges. All five cartridges had been

fired, and forensic examiners determined that the five slugs

recovered from Hardesty’s body and vest were fired from that

Taurus revolver. Five unfired .38 cartridges that matched the

cartridges fired from the Taurus were found in Cruz’s pocket

when he was apprehended.

¶8 Cruz was indicted on one count of first degree murder.

The State filed its notice of intent to seek the death penalty

alleging a single aggravating factor: “The murdered person was

an on duty peace officer who was killed in the course of

performing the officer’s official duties and the defendant knew,

or should have known, that the murdered person was a peace

officer.” A.R.S. § 13-703(F)(10) (2003).

¶9 A jury convicted Cruz of first degree murder and found
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the (F)(10) aggravating factor. It found the mitigation

insufficient to call for leniency and determined that Cruz

should be put to death.

II. DISCUSSION

¶10 Cruz raises twenty-two issues on appeal and lists an

additional twenty-one issues to avoid preclusion.2

A. Jury Issues

1. Change of venue

¶11 Much publicity surrounded the death of Officer

Hardesty. He was the first officer from the Tucson Police

Department killed in the line of duty in twenty-one years. In

light of the media attention, Cruz filed several motions to

change venue. All were denied. Cruz claims that the publicity

was so pervasive and prejudicial that the court’s refusal to

move the trial was an abuse of discretion.

¶12 A party seeking a change of venue must show that the

prejudicial pretrial publicity “will probably . . . deprive[]

[the party] of a fair trial.” Ariz. R. Crim. P. 10.3(b). We

review a trial court’s ruling on a motion for change of venue

based on pretrial publicity for an abuse of discretion. State

v. Nordstrom, 200 Ariz. 229, 239, ¶ 14, 25 P.3d 717, 727 (2001).

¶13 When evaluating pretrial publicity, we determine

2
These twenty-one issues are listed in an appendix to this
opinion.
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“whether, under the totality of the circumstances, the publicity

attendant to defendant’s trial was so pervasive that it caused

the proceedings to be fundamentally unfair.” State v. Blakley,

204 Ariz. 429, 434, ¶ 13, 65 P.3d 77, 82 (2003) (quoting State

v. Atwood, 171 Ariz. 576, 630, 832 P.2d 593, 647 (1992)). We

consider the effect of pretrial publicity, not merely its

quantity. Nordstrom, 200 Ariz. at 239, ¶ 14, 25 P.3d at 727.

¶14 The analysis of pretrial publicity involves two

inquiries: “(1) did the publicity pervade the court proceedings

to the extent that prejudice can be presumed?; if not, then (2)

did defendant show actual prejudice among members of the jury?”

State v. Murray, 184 Ariz. 9, 26, 906 P.2d 542, 559 (1995); see

also State v. Bible, 175 Ariz. 549, 563, 566, 858 P.2d 1152,

1166, 1169 (1993). The mere fact that jury members have been

exposed to the facts of the case through media coverage does not

create a presumption of prejudice if the jurors can lay aside

that information and render a verdict based on the evidence.

Atwood, 171 Ariz. at 630-31, 832 P.2d at 647-48, overruled on

other grounds by Nordstrom, 200 Ariz. at 241, ¶ 25, 25 P.3d at

729. Even knowledge of the case or an opinion concerning the

defendant’s guilt will not disqualify a juror if the juror can

“set aside such knowledge or opinion in evaluating the evidence

presented at trial.” State v. Gretzler, 126 Ariz. 60, 77, 612

P.2d 1023, 1040 (1980).
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 a. Presumed prejudice

¶15 For prejudice to be presumed, the publicity must be

“so unfair, so prejudicial, and so pervasive that [the court]

cannot give any credibility to the jurors’ answers during voir

dire.” State v. Bolton, 182 Ariz. 290, 300, 896 P.2d 830, 840

(1995) (quoting Bible, 175 Ariz. at 565, 858 P.2d at 1168)

(alteration in Bolton). In other words, we will presume

prejudice only if the “media coverage was so extensive or

outrageous that it permeated the proceedings or created a

‘carnival-like’ atmosphere.” Atwood, 171 Ariz. at 631, 832 P.2d

at 648.

¶16 The media extensively covered the death of Officer

Hardesty and Cruz’s apprehension. Hundreds of television

broadcasts and newspaper articles reported the crime and Cruz’s

suspected guilt. Local radio stations and grocery stores raised

money for Hardesty’s family; a billboard was erected on a major

Tucson street that proclaimed, “Officer Patrick K. Hardesty,

Your service to Tucson will never be forgotten”; flags were

flown at half staff; and a local police substation was named for

Hardesty.

¶17 Although the publicity was extensive, it was not

“outrageous” and did not create a “carnival-like atmosphere.”

In Bible, this Court upheld the conviction and death sentence

for a defendant who raped and murdered a nine-year-old girl in
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Flagstaff, despite similarly pervasive and even more

inflammatory pretrial publicity. 175 Ariz. at 560-62, 858 P.2d

at 1163-65. In that case, “nearly all potential jurors had some

knowledge of the case.” Id. at 563, 858 P.2d at 1166. Local

newspapers reported several pieces of inadmissible evidence,

including that Bible had “flunked a lie detector test,” and

false reports, such as that Bible was a convicted “child

molester” who had committed “child rape.” Id. at 564, 858 P.2d

at 1167. This Court nonetheless found that Bible failed to meet

the heavy burden of establishing that the court should apply a

presumption of prejudice because the reports were separated from

the trial by months. Id. at 564-66, 858 P.2d at 1167-69.

¶18 In the case before us, the information disseminated to

the public was not nearly as sensational as that circulated

before the Bible trial, and it was almost entirely accurate.

Moreover, most of the coverage occurred more than a year before

trial.

¶19 As evidence that the trial court should have presumed

prejudice, Cruz points to an opinion poll of 100 potential Pima

County jurors. Seventy-nine percent of those polled had heard

of Hardesty’s murder. Of that group, fifty-one percent thought

that Cruz was likely guilty of the crime.

¶20 The poll data, however, fail to create a presumption

of prejudice. The poll was conducted a year before the start of
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the trial and showed that, even among the seventy-nine percent

of those polled who had heard of the case, nearly half had no

opinion regarding Cruz’s guilt. Cruz did not show that

potential jurors could not set aside their initial impression of

guilt. Cruz failed to meet the “very heavy” burden of

establishing that prejudice should be presumed.

b. Actual prejudice

¶21 In the absence of presumed prejudice, a defendant may

demonstrate “that the pretrial publicity was actually

prejudicial and likely deprived him of a fair trial.” State v.

Davolt, 207 Ariz. 191, 206, ¶ 49, 84 P.3d 456, 471 (2004). “The

relevant inquiry for actual prejudice is the effect of the

publicity on the objectivity of the jurors” actually seated.

Murray, 184 Ariz. at 26, 906 P.2d at 559 (citing Bible, 175

Ariz. at 566, 858 P.2d at 1169).

¶22 Aside from reasserting the findings of the poll, Cruz

presents no evidence of actual prejudice and we see none. The

record shows that the voir dire of the jury pool was extensive;

it lasted seven days and included individual questioning by

counsel of each prospective juror to weed out potentially biased

jurors. Cruz offers no example of an actually prejudiced juror

who served on this panel. The trial court did not abuse its

discretion by declining to move the trial.

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 2. Sequestration of the jury

¶23 Cruz moved three times to sequester the jury. He

argues that the trial court abused its discretion in denying

these motions. Sequestration of a jury falls within the

discretion of the trial court, Ariz. R. Crim. P. 19.4; we will

not disturb a trial court’s ruling on sequestration absent “an

abuse of discretion and resulting prejudice to the defendant.”

Murray, 184 Ariz. at 33, 906 P.2d at 566 (citing State v. Schad,

129 Ariz. 557, 568, 633 P.2d 366, 377 (1981)).

¶24 “When publicity is not sensational [or] inflammatory,

there is no need to sequester the jury[,] particularly when the

jury has been cautioned not to read the newspapers, listen to

the radio or watch television during the trial and there is no

indication that the court’s instructions were violated.”

Gretzler, 126 Ariz. at 79, 612 P.2d at 1042 (quoting Collins v.

State, 589 P.2d 1283, 1291 (Wyo. 1979)). In this case, the

publicity, while extensive, was not inflammatory.

¶25 Moreover, when the jury was empanelled, the trial

judge carefully instructed the jurors not to “read any news

stories or articles or listen to any radio or television reports

about this case or about anyone who has anything to do with it”

and to immediately report any exposure to outside information.

The judge reminded the jury of the admonition at every break

during the seven-week trial and instructed the jury to re-read
- 9 -
the admonition. The jury is presumed to have followed the

court’s many instructions on this issue. State v. Morris, 215

Ariz. 324, 337, ¶ 55, 160 P.3d 203, 216 (2007).

¶26 Cruz has not shown that the jury violated the

admonition. Indeed, jurors took the admonition seriously enough

that even innocuous matters were reported to the judge, who

carefully reviewed each report and questioned jurors when

appropriate. Given the court’s careful and frequent admonitions

to the jury and the lack of sensational media coverage or

prejudice to Cruz, the trial court did not abuse its discretion

in refusing to sequester the jury.

3. Striking jurors for cause

¶27 Cruz contends that the trial court abused its

discretion and caused him prejudice by failing to excuse Jurors

62, 123, 127, 136, 150, 169, 178, and 193 for cause. Cruz used

peremptory strikes to remove Jurors 136, 150, 169, and 178.

Jurors 62, 123, 127, and 193 eventually sat on the jury.

¶28 We review a trial court’s refusal to strike jurors for

cause for an abuse of discretion. State v. Glassel, 211 Ariz.

33, 47, ¶ 46, 116 P.3d 1193, 1207 (2005); State v. Medina, 193

Ariz. 504, 511, ¶ 18, 975 P.2d 94, 101 (1999). Even if a

defendant is forced to use a peremptory challenge to remove a

juror who should have been excused for cause, however, an

otherwise valid criminal conviction will not be reversed unless
- 10 -
prejudice is shown. State v. Hickman, 205 Ariz. 192, 196-97,

¶¶ 20-21, 68 P.3d 418, 422-23 (2003).

¶29 Cruz moved to strike Jurors 62, 123, 127,3 136, 150,

169, and 178 for cause on various grounds, including that they

had friends or relatives in law enforcement, tended to favor the

prosecution, or held initial opinions as to Cruz’s guilt. Upon

questioning, however, all of these jurors unequivocally stated

that they could fairly evaluate the evidence, follow the court’s

instructions, and set aside any preconceived notions of guilt.

The trial court did not abuse its discretion by refusing to

strike these jurors for cause.

a. Juror 193

¶30 Cruz argues that Juror 193, who became the jury

foreperson, was prejudiced against him because her husband was a

former police officer and because she stated during voir dire

that “[Cruz] probably would not want me” sitting on the jury.

¶31 Cruz did not move to strike Juror 193 for cause. We

therefore review for fundamental error. See State v. Garza, 216

Ariz. 56, 64, ¶ 28, 163 P.3d 1006, 1014 (2007). We see no

fundamental error. When questioned, she stated that she could

be fair and impartial to both sides. Cruz’s concerns that

3
Cruz’s briefs set forth no reason to strike Juror 127.
This argument is therefore waived. See State v. Carver, 160
Ariz. 167, 175, 771 P.2d 1382, 1390 (1989).

- 11 -
sympathies based on her husband’s former job might influence her

decisions exemplify why a defendant is given peremptory strikes:

to remove a qualified juror whom the defendant does not wish to

have on the jury.

¶32 Cruz also asks us to consider a statement Juror 193

gave to the press following the entry of the penalty phase

verdict that, if the sentence “deters a criminal and saves a

peace officer’s life in the future, then the message we sent in

our decision is positive. The message is, ‘It is not OK to take

a peace officer’s life.’”

¶33 Subject to only a few exceptions, a juror’s out of

court statement is not admissible to contradict the verdict.

State v. Dickens, 187 Ariz. 1, 15, 926 P.2d 468, 482 (1996); 8

WIGMORE ON EVIDENCE § 2352(c) (McNaughton rev. 1961). None of the

exceptions applies here. Ariz. R. Crim. P. 24.1(c)(3). The

trial court did not fundamentally err by not excusing Juror 193.

b. State v. Hickman

¶34 Cruz argues that we should overrule State v. Hickman,

205 Ariz. 192, 68 P.3d 418 (2003), and return to the rule

established in State v. Huerta, 175 Ariz. 262, 262, 267, 855

P.2d 776, 776, 781 (1993), that an erroneous failure to excuse a

juror for cause always constitutes reversible error, regardless

of prejudice. In overruling Huerta, we observed that the Huerta

rule “forces trial courts to retry cases previously decided by
- 12 -
fair juries. It is costly to the victims and to the judicial

system, and it generates public cynicism and disrespect for the

judicial system.” Hickman, 205 Ariz. at 200, ¶ 35, 68 P.3d at

426.

¶35 Cruz argues that because “death is different,” this

Court should apply the Huerta standard in capital cases rather

than the Hickman standard. We have, however, cited Hickman in

several capital cases. See, e.g., Garza, 216 Ariz. at 65, ¶ 32,

163 P.3d at 1015; Glassel, 211 Ariz. at 46-47, ¶ 41, 116 P.3d at

1206-07; State v. Anderson, 210 Ariz. 327, 338, ¶ 29 & n.7, 111

P.3d 369, 380 & n.7 (2005). We now expressly hold that Hickman

applies in both capital and non-capital cases. As the United

States Supreme Court stated in United States v. Martinez-

Salazar, “[s]o long as the jury that sits is impartial, . . .

the fact that the defendant had to use a peremptory challenge to

achieve that result does not mean the Sixth Amendment was

violated.” 528 U.S. 304, 313 (2000) (quoting Ross v. Oklahoma,

487 U.S. 81, 88 (1988)). Cruz presents no reason for requiring

a new trial when a case was heard by an impartial jury.

4. Refusal to grant additional peremptory strikes

¶36 Cruz argues that, in light of the extensive pretrial

publicity in this case, the trial court should have awarded him

five extra peremptory strikes. We rejected this argument in

Gretzler, 126 Ariz. at 78, 612 P.2d at 1041. There we held that
- 13 -
the court’s failure to give additional peremptory strikes does

not constitute reversible error unless the defendant shows

prejudice. Id. As discussed above, Cruz has not shown

prejudice.

B. Pretrial Issues

1. Constitutionality of Rule 20

¶37 Cruz argues that Rule 20 of the Arizona Rules of

Criminal Procedure, which governs judgments of acquittal, is

unconstitutional in light of the United States Supreme Court’s

opinions in Apprendi v. New Jersey, 530 U.S. 466 (2000); Ring v.

Arizona (Ring II), 536 U.S. 584 (2002); and Blakely v.

Washington, 542 U.S. 296 (2004). He therefore asked the trial

court to hold Rule 20 unconstitutional. We review the trial

court’s denial of the motion de novo. See State v. Casey, 205

Ariz. 359, 362, ¶ 8, 71 P.3d 351, 354 (2003).

¶38 Rule 20 permits a court to enter a judgment of

acquittal on one or more offenses at the close of evidence by

either side if no substantial evidence warrants a conviction.

Cruz argues that because a jury, and not a judge, must make

factual determinations that would subject a defendant to

increased or aggravated punishment, having a judge decide a Rule

20 motion is unconstitutional.

¶39 Cruz’s argument is meritless. A judge’s ruling either

granting or denying a Rule 20 motion does nothing to subject a
- 14 -
defendant to increased or aggravated punishment without a jury

determination of relevant facts. Indeed, Rule 20 motions raise

issues of law, not fact. Moreover, a court’s grant of a Rule 20

motion resolves the case in favor of the defendant. Denial of a

Rule 20 motion permits the case to go to the jury, the precise

result Cruz claims is required by the Court’s opinions in

Apprendi, Ring II, and Blakely.

2. Failure to make pretrial ruling on sentence

¶40 Cruz argues that the trial court erred by refusing to

make a pretrial ruling on whether, if the jury decided against

the death penalty, the court would sentence him to life or

natural life in prison. By refusing to rule before trial, Cruz

argues, the court “deprived the jury of a reason to impose a

sentence other than death.”

¶41 In support of this argument, Cruz cites Simmons v.

South Carolina, 512 U.S. 154 (1994) (plurality opinion). In

Simmons, a defendant charged with capital murder was ineligible

for parole because of his previous convictions for violent

offenses. Id. at 156. Because the state argued that the death

penalty was appropriate based on Simmons’ propensity for future

violence, Simmons asked the judge to inform the jury that a life

sentence would mean life without parole. Id. at 158. The trial

court refused to do so, and Simmons was sentenced to death. Id.

at 159-60. The United States Supreme Court reversed, stating
- 15 -
that “where the defendant’s future dangerousness is at issue,

and state law prohibits the defendant’s release on parole, due

process requires that the sentencing jury be informed that the

defendant is parole ineligible.” Id. at 156; see also Shafer v.

South Carolina, 532 U.S. 36, 49 (2001) (affirming Simmons).

¶42 Cruz’s case differs from Simmons. No state law would

have prohibited Cruz’s release on parole after serving twenty-

five years, had he been given a life sentence. See A.R.S. § 13-

703(A) (2004). The jury was properly informed of the three

possible sentences Cruz faced if convicted: death, natural

life, and life with the possibility of parole after twenty-five

years.

¶43 Cruz also failed to explain how the trial court could

opine on a defendant’s sentence before any evidence is offered

or a verdict is rendered. The trial court did not err by

refusing to “presentence” Cruz.

¶44 In a related argument, Cruz alleges that the trial

court abused its discretion by precluding the testimony of the

Chairman of the Arizona Board of Executive Clemency, who would

have testified about how life sentences are handled in Arizona

and a defendant’s chances of being released on parole.

¶45 The trial court did not abuse its discretion. The

witness would have been asked to speculate about what the Board

might do in twenty-five years, when Cruz might have been
- 16 -
eligible for parole had he been sentenced to life. The trial

court could reasonably have concluded that testimony on what the

Board might do in a hypothetical future case would have been too

speculative to assist the jury.

3. Cruz’s precustodial statement

¶46 Cruz’s next argument centers on the statement he made

to Officer Waters immediately before being taken into custody:

“Just do it . . . . Just go ahead and kill me now. Kill me

now. Just get it over with.” Cruz argues that these statements

should have been excluded.

¶47 We review a trial court’s ruling on a motion to

suppress evidence for an abuse of discretion. See State v.

Prion, 203 Ariz. 157, 160, ¶ 14, 52 P.3d 189, 192 (2002).

¶48 Cruz alleges that the State had agreed that the

statements would not be used and that he “relied upon the

state’s agreement.” The record simply does not support Cruz’s

assertion that there was such an agreement.

¶49 Cruz moved to suppress any statements he made to

Tucson police officers “on May 26th, 2003, during the

interrogation of defendant Cruz” (emphasis added). Cruz

supplemented that motion on January 5, 2004, requesting that the

court “suppress any and all statements made by defendant during

the investigation of this case.” Both the supplement and the

initial motion, however, referred only to statements Cruz made
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after his arrest and were based on possible violations of

Miranda v. Arizona, 384 U.S. 436 (1966). During a pretrial

hearing, defense counsel confirmed that the motion related to a

post-custody statement made to Detective Filipelli, who briefly

interrogated Cruz at the police station after the shooting. The

State responded by indicating that it would not seek to

introduce that statement into evidence.

¶50 Nothing in the motions requested suppression of the

pre-custody statements, nor was any legal basis cited for doing

so. Thus, when Cruz objected to the introduction of his pre-

custody statement during trial, he was incorrect in stating that

the State had agreed not to use any of Cruz’s statements; the

State had agreed only regarding post-custody statements.

¶51 Cruz also argues that the court abused its discretion

by allowing the pre-custody “just shoot me” statement, but he

does not explain why the statement is inadmissible. Cruz was

not in custody when the statement was volunteered. To the

extent that the statement acknowledges guilt, it qualifies as a

party admission under Rule 801(d)(2) of the Arizona Rules of

Evidence. The trial court did not err by allowing its

admission.

4. “Arturo Sandoval” statement

¶52 Soon after he was detained at the crime scene, Cruz

complained of chest pains, and paramedics were called. During
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the trip to the hospital, Cruz told a paramedic that “Arturo

Sandoval” had shot the police officer. Cruz argues that his

exculpatory statement should have been admitted either as an

excited utterance or under the “rule of completeness.”

a. Excited utterance

¶53 Cruz asserts that the trial court erred in precluding

the paramedic from testifying that Cruz said, “Arturo Sandoval

is the person who shot the officer.” Cruz argues that the

statement falls within the excited utterance exception set forth

in Rule 803(2) of the Arizona Rules of Evidence.

¶54 Rule 803(2) excepts from the hearsay rule a statement

“relating to a startling event or condition made while the

declarant was under the stress of excitement caused by the event

or condition.” In analyzing the excited utterance exception, we

apply the following three-part test:

1) There must be a startling event,
2) The words spoken must be spoken soon after the
event so as not to give the person speaking the
words time to fabricate (or reflect), and
3) The words spoken must relate to the startling
event.

State v. Rivera, 139 Ariz. 409, 411, 678 P.2d 1373, 1375 (1984)

(citing 6 WIGMORE ON EVIDENCE § 1750 (Chadbourn rev. 1978)).

¶55 The shooting of a police officer is a startling event,

and the words spoken related to that event: thus, the first and

third parts are satisfied. Regarding the second part, the

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requirement that the words be spoken “soon” after the event, “no

precise time limits after the event can be established within

which a statement will qualify as an excited utterance.” Joseph

M. Livermore, Robert Bartels & Anne Holt Hammeroff, 1 Arizona

Practice: Law of Evidence § 803.2, at 348 (2000). “Lapse of

time is only one factor to be considered.” State v. Barnes, 124

Ariz. 586, 589, 606 P.2d 802, 805 (1980).

¶56 In this case, the paramedic came to the scene thirty

to forty minutes after the shooting and remained with Cruz until

an hour after the shooting. The trial court held that the

statement did not qualify as an excited utterance because Cruz

had ample opportunity for conscious reflection and had so

reflected before making his exculpatory statement. The trial

court did not base its decision solely on the lapse of time,

although it considered that factor. We cannot say that the

trial court abused its discretion.

b. Rule of completeness

¶57 Cruz also urges that the trial court should have

admitted the exculpatory “Arturo Sandoval” statement because it

admitted the inculpatory “just shoot me” statement. Cruz bases

his argument on the “rule of completeness” derived from Rule 106

of the Arizona Rules of Evidence:

When a writing or recorded statement or part
thereof is introduced by a party, an adverse party may
require the introduction at that time of any other
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 part or any other writing or recorded statement which
ought in fairness to be considered contemporaneously
with it.

¶58 Under the rule of completeness, however, only the

portion of a statement “necessary to qualify, explain or place

into context the portion already introduced” need be admitted.

State v. Prasertphong, 210 Ariz. 496, 499, ¶ 15, 114 P.3d 828,

831 (2005) (quoting United States v. Branch, 91 F.3d 699, 728

(5th Cir. 1996)). Rule 106 does not create a rule of blanket

admission for all exculpatory statements simply because an

inculpatory statement was also made. Because Cruz’s statement

does not “qualify, explain or place into context” the “just

shoot me” statement, the trial court did not abuse its

discretion by excluding it.

5. Lisa L.’s statement

¶59 Cruz argues that the trial court improperly precluded

a statement by Lisa L. that suggested the culpability of a third

party. Lisa L. was killed in a car accident and so was

unavailable to testify.

¶60 Before trial, the State moved to exclude Lisa L.’s

statement as hearsay. Cruz countered that, while clearly

hearsay, the statement was admissible under Arizona Rule of

Evidence 804(b)(5), the “residual hearsay exception.” The trial

court disagreed and excluded the statement. We review this

evidentiary ruling for an abuse of discretion. Tucker, 205
- 21 -
Ariz. at 165, ¶ 41, 68 P.3d at 118.

¶61 An otherwise inadmissible hearsay statement may be

admitted under Rule 804(b)(5) if the statement has “equivalent

circumstantial guarantees of trustworthiness” that make it “at

least as reliable as evidence admitted under a firmly rooted

hearsay exception.” State v. Luzanilla, 179 Ariz. 391, 394, 880

P.2d 611, 614 (1994) (quoting Idaho v. Wright, 497 U.S. 805, 821

(1990)). Lisa L.’s statement fails this test for several

reasons.

¶62 First, the trial court found that Lisa L. had

motivation to lie because of her close relationship with Cruz

and his family. Cruz and Lisa L. had lived together on several

occasions and she had dated Cruz’s cousin.

¶63 Second, Lisa L. had a significant criminal history,

including prior convictions for car theft and credit card fraud,

a probation violation, and, at the time the statement was made,

she was facing a subsequent charge of car theft. She also

admitted being a drug addict. This history would have made her

easily impeachable.

¶64 Third, the statement contains several levels of

hearsay. Lisa L. stated that “the rumor on the street was that

[the] cop [had been] shot by another gun” by a man named

“Shorty.” She could not, however, attribute this information to

a source.
- 22 -
¶65 Finally, her alternate version of the Hardesty

shooting, including the existence of a second gun, does not fit

the evidence.

¶66 In short, Lisa L.’s statement contains no indicia of

reliability. The trial court did not abuse its discretion by

excluding it.

C. Trial Issues

¶67 Cruz made several mistrial motions during trial and

after the guilt phase verdict was rendered. We review these

motions for an abuse of discretion. State v. Moody, 208 Ariz.

424, 456, ¶ 124, 94 P.3d 1119, 1151 (2004). This standard

applies to sections C(1) through C(6) of this opinion, ¶¶ 69-

103.

1. Juror conversations and witness “hugging”

¶68 Regarding the first of the mistrial motions, Cruz

argues that the trial court abused its discretion by failing to

grant a mistrial based on several episodes of alleged “juror

misconduct” and an incident in which a witness hugged members of

the victim’s family. “[J]uror misconduct warrants a new trial

[only] if the defense shows actual prejudice or if prejudice may

be fairly presumed from the facts.” State v. Miller, 178 Ariz.

555, 558, 875 P.2d 788, 791 (1994).

a. Juror conversations

¶69 At the end of the second day of testimony, Juror 118
- 23 -
complained to the jury commissioner that another juror was

speaking about the case, in violation of the admonition. The

following morning, the judge questioned each juror in the

presence of counsel.

¶70 In chambers, Juror 118 stated that she had five

concerns. First, she recounted a conversation that she

overheard in the elevator:

When we were leaving the courtroom [yesterday] we
got on the elevator with a bunch of jurors . . . .
They just started talking about — I don’t know if this
is bad or not, but I just thought it was a really
inappropriate conversation in an elevator with a bunch
of jurors . . . . We don’t know if . . . people from
the public are allowed in the courtroom. And [Juror
7] said, oh, yeah, anyone can go in the courtroom,
it’s open to the public.

And then [Juror 123] said, oh because my son —
she said either he’s in criminal justice or he’s a
student in criminal justice, I don’t recall. I’d like
him to come down here. It would be good for him to
observe, something like that, not word for word. And
then [Juror 7] said oh, well, then you’re going to
have to ask the Judge about that because I don’t know
if that would be okay. And I just walked out of
there[.] I can’t believe these people.

¶71 Second, Juror 118 reported that, when returning from

lunch, she thought that Juror 7 and some others might have been

discussing the trial because they “got kind of quiet” when she

walked into the room. Juror 118 thought they might have been

discussing the testimony earlier that day from the two young

women who had been involved in the hit-and-run accident with

Cruz that began the series of events that led to Officer
- 24 -
Hardesty’s death.

¶72 Third, Juror 118 complained that Juror 7 had

identified Officer Hardesty’s wife to other jurors. Fourth,

Juror 118 said that Juror 7 had told other members of the jury

that 92 witnesses would testify at the trial. Finally, Juror

118 complained that Juror 7 had told other jury members how the

alternate jurors would be selected.

¶73 The trial judge asked the other jurors about these

allegations. Juror 7 recalled the elevator conversation as

follows:

[W]e were going down the elevator, one of the gals
asked if the — if the trials are open. I said, yeah,
I believe all trials are open. Then she said
something about her son wanted to come see this one.
I said, well, you better talk to the Judge about that,
and that’s the only thing I can recall that was being
said.

Juror 7 did not recall any of the other conversations reported

by Juror 118.

¶74 When Juror 123 was asked about the elevator

conversation, she described the conversation in more detail:

I asked somebody if my son could come watch because
he’s taking a class at Pima, has to come to court and
they thought that was the problem, but we didn’t
discuss the case, I just said, does anybody know is he
allowed to come into the courtroom.

Juror 123 made it clear that no discussion had taken place

regarding the case. Erring on the side of caution, the trial

judge asked the juror not to have her son attend, to which the
- 25 -
juror agreed.

¶75 As these statements indicate, there was nothing

inappropriate about the conversation in the elevator; nothing

was said about the case.

¶76 As for the conversation regarding the two witnesses,

Juror 127 clarified that someone expressed sympathy that the

young women seemed nervous. She confirmed that nothing was said

about the substance of their testimony.

¶77 Other jurors similarly recounted the comments about

the witnesses. They confirmed that no discussion took place

regarding the testimony itself and that only brief mention was

made that the witnesses seemed scared to be testifying. Because

the jurors did not discuss the substance of the testimony and

the witness’s testimony related only to tangential matters, we

conclude that these comments did not affect the jury or the

fairness of the trial.

¶78 As to the alleged statements by Juror 7 identifying

Mrs. Hardesty, stating (incorrectly) that there would be 92

witnesses in the trial, and describing (incorrectly) how

alternates would be selected, no other juror recalled having

heard the statements. Thus, these statements, if made, had no

effect on the other jurors.

¶79 The other jurors uniformly stated that they were

unaware of any inappropriate conversations, and all jurors
- 26 -
affirmed that they were assiduously following the admonition.

¶80 After all jurors had been questioned, counsel for both

Cruz and the State expressed concern about Juror 118’s

overreaction to innocuous conversations and Juror 7’s seemingly

authoritative yet often incorrect statements. Defense counsel

stated that nothing in the jurors’ statements would cause him to

move for a mistrial. Cruz and the State jointly moved to excuse

Jurors 7 and 118, and the court granted the motion.

¶81 Later that day, Juror 118 contacted a Tucson

television station and gave an interview regarding the trial

that largely repeated her allegations to the judge. Parts of

that interview were broadcast the following day, during the 5:00

p.m., 6:00 p.m., and 10:00 p.m. local news.

¶82 The transcripts of both the television broadcasts and

in-camera juror interviews reveal that Juror 118 had a distorted

view of what constituted a violation of the admonition. Nothing

in the record on these issues demonstrates a violation of the

admonition.

b. Witness “hugging” incident

¶83 In addition to the juror misconduct allegation, Cruz’s

first motion for mistrial included an allegation that the jury

was prejudiced by seeing a witness hug Hardesty family members

after testifying.

¶84 Alejandro Ruiz lived at the residence where Officer
- 27 -
Hardesty was killed and was the first person to see Officer

Hardesty’s body. He directed police officers to it when they

arrived. Ruiz also observed parts of Officer Waters’ struggle

with Cruz. At the conclusion of his testimony, Ruiz left the

stand and met with Hardesty’s family, who shook his hand and

hugged him. Accounts conflict on whether this occurred in view

of the jury.

¶85 We conclude that even if the jury observed this

incident, Cruz suffered no undue prejudice from it. The State’s

counsel took steps to ensure that no similar incidents would

occur.

¶86 Nothing about either the “jury misconduct” or the

“hugging” incident warranted a mistrial. The trial court did

not abuse its discretion by refusing to grant one.

2. Jury misconduct involving newspapers

¶87 Cruz moved for a mistrial on February 24, 2005, based

on Juror 118’s allegation that some jurors were reading a

newspaper in the jury room. Defense counsel obtained the

statement on February 10, but did not object based on it until

February 24. The trial court denied the motion as untimely.

¶88 Following Juror 118’s dismissal from the jury and

subsequent interview with the television station, defense

investigators interviewed her and she stated:

Just, um, the second day we were there when we first
- 28 -
 got in there, uh, into the jury room. Um, one of the
men said I saw it in the paper and I immediately said
I don’t want to hear it, uh, I was plugging my ears.
And, and then he said oh, but I turned it – the paper
over.

Nothing in this statement indicates that the paper contained any

information about the case. Thus, not only was the motion

untimely, but Cruz has not shown that he was prejudiced.

¶89 Other than the bailiff’s discovery of an issue of the

Green Valley News in the jury room, no other evidence was

presented indicating that a juror might have been reading a

newspaper. That Green Valley paper contained nothing about the

trial, and counsel did not object when the trial court suggested

throwing it away. There was no abuse of discretion in denying

the motion for mistrial.

3. Murder weapon DNA evidence

¶90 On February 23, 2005, Cruz moved for a mistrial,

claiming that he was denied a fair trial by “the State’s ever-

changing theory of prosecution,” in violation of State v.

Blakley, 204 Ariz. 429, 65 P.3d 77 (2003). The trial court

denied the motion.

¶91 In 2003, Nora Rankin, senior criminalist and DNA

analyst for the Tucson Police Department, tested the Taurus

revolver used to kill Officer Hardesty for DNA evidence. She

concluded that Cruz was excluded as a DNA contributor to the

sample recovered from the Taurus. In 2004, the head of the
- 29 -
crime lab reviewed Rankin’s notes and disagreed with her

conclusions. The State promptly informed defense counsel of

this issue. Rankin maintained her opinion that Cruz was

excluded as a DNA donor. The State promptly informed defense

counsel that Rankin’s initial position would not change.

¶92 After learning of the conflicting opinions, Cruz

retained two experts, Brian Wraxall, a DNA expert, and Joe

Collier, a crime scene expert, to support Rankin’s initial

analysis that Cruz was excluded as a DNA donor. When Cruz was

informed that Rankin’s testimony would be unchanged, he did not

withdraw Wraxall and Collier as witnesses.

¶93 Cruz did not call either witness: Wraxall, because he

disagreed with Rankin that Cruz was excluded as a DNA donor, and

Collier, because he had reviewed Rankin’s notes and might also

have discredited Rankin’s conclusions. Based on this state of

facts, Cruz moved for a mistrial, arguing that the possible

change in Rankin’s testimony constituted an “ever-changing

theory of prosecution” that violated his right to notice of the

State’s theory under Blakley.

¶94 In Blakley, this Court held that the state’s change in

the predicate felony on which its felony murder case was based

during closing arguments violated the defendant’s right to a

fair trial. Id. at 440, ¶ 55, 65 P.3d at 88. Such a situation

is not presented here. Although the state may not change its
- 30 -
theory of the case after the close of evidence, nothing requires

“that the defendant receive notice of how the State will prove

his responsibility for the alleged offense.” State v. Arnett,

158 Ariz. 15, 18, 760 P.2d 1064, 1067 (1988).

¶95 Additionally, the record simply does not support the

assertion that the State changed theories. The State said that

it would call Nora Rankin to testify and it did so. Her

testimony never changed. Moreover, because Rankin testified

that Cruz’s DNA was not on the murder weapon, it is difficult to
4
see how Cruz was prejudiced. The trial court did not abuse its

discretion by denying the motion for a mistrial.

4. Tara White testimony5

¶96 After the jury had found Cruz guilty of murder and had

found the (F)(10) aggravator, Cruz’s wife, Tara White, testified

on his behalf during the penalty phase. Following her

testimony, the court declared a recess. White informed defense

counsel that, as the jury left the room, she overheard jurors

saying, “I can’t believe they’re keeping us this long. They

don’t have a chance.” The defense moved for a mistrial.

4
Cruz arguably benefitted from this situation: Rankin was
the only expert who testified regarding DNA, and her testimony
excluded Cruz from the sample taken from the gun.
5
Although White’s testimony occurred during the penalty
phase of the trial, Cruz’s briefs raised his challenge relating
to it in his list of mistrial motions. We therefore address the
motion here.
- 31 -
¶97 The trial court conducted an inquiry, individually

questioning every person who was seated near the witness stand

when White testified. None of the six people, including the

court’s bailiff, had heard what White claimed to have heard.

Out of an abundance of caution, the trial court submitted a

written interrogatory to each juror asking if anyone had heard

any such statement. Each juror replied in the negative. The

court denied the motion for mistrial.

¶98 The trial court fully investigated the matter and

responded appropriately. Because it found no support for

White’s assertions, the trial court did not abuse its discretion

by denying Cruz’s motion for a mistrial.

5. The gun expert’s testimony

¶99 Cruz moved for a mistrial based on testimony by

firearms expert Frank Powell that the spur on the hammer of the

Taurus revolver used to kill Officer Hardesty had been removed

and that the removal may have been done to facilitate

concealment.

¶100 Cruz did not object to Powell’s statement. The

following day, he moved for mistrial, claiming that Powell’s

testimony “implies bad character, bad conduct, a bad act, and

that the person that possessed this weapon was engaging in

criminal behavior.” The trial court denied the motion based on

waiver and lack of merit.
- 32 -
¶101 Although we generally review the failure to grant a

mistrial for an abuse of discretion, Moody, 208 Ariz. at 456,

¶ 124, 94 P.3d at 1151, when a defendant fails to

contemporaneously object to testimony and later moves for

mistrial based on that testimony, we review only for fundamental

error, id. at 441, ¶ 40, 94 P.3d at 1136.

¶102 Cruz has failed to show that the snippet of testimony

rendered his trial fundamentally unfair. It is unlikely that

the jury concentrated on the filed-off hammer on the Taurus when

no evidence was presented that Cruz modified the gun and the

trial was focused on other, more serious issues. The mistrial

motion was properly denied; no fundamental error occurred.

6. Post-verdict mistrial motion

¶103 Cruz moved for a mistrial after the guilt-phase

verdict was read. This motion simply restated his earlier

arguments for mistrial, change of venue, and sequestration of

the jury. As addressed above, nothing in those motions merited

a mistrial. The trial court did not abuse its discretion by

denying this renewed motion for a mistrial.

7. Intoxicated witness

¶104 On February 3, 2003, the State called Myra M. to

testify. She was visibly intoxicated. Cruz’s counsel initially

objected to having her testify, but after discussion with the

court and the prosecutor, withdrew his objection. Cruz now
- 33 -
argues that the trial court erred by not postponing her

testimony.

¶105 We review a trial court’s ruling on the competency of

a witness for an abuse of discretion. Selby v. Savard, 134

Ariz. 222, 227, 655 P.2d 342, 347 (1982). An objection that is

withdrawn is waived, see State v. Eastlack, 180 Ariz. 243, 255,

883 P.2d 999, 1011 (1994), and we thus review only for

fundamental error, State v. Henderson, 210 Ariz. 561, 567, ¶ 19,

115 P.3d 601, 607 (2004).

¶106 We presume that a witness is competent to testify.

See Ariz. R. Evid. 601. “[A] witness is not rendered

incompetent to testify merely because [s]he was under the

influence of drugs . . . at the time [s]he testifies.” State v.

Jeffers, 135 Ariz. 404, 420, 661 P.2d 1105, 1121 (1983).

Although Myra M.’s testimony was somewhat rambling, it was

coherent. Cruz has not shown that she was so intoxicated as to

be incompetent to testify or that fundamental error occurred.

8. Coercion of the jury verdict

¶107 Cruz argues that the trial court coerced the penalty-

phase jury verdict by giving an instruction that overbore the

will of a holdout juror.

¶108 On March 8, 2005, after only three hours of

deliberation on the penalty-phase verdict, the judge received a

question from the jury foreperson, which read:
- 34 -
 If one person’s decision remains unchanged against the
other 11 jurors [i]s this a hung jury? If so what
happens next?

¶109 Because the jury and counsel had already left for the

day, the trial judge consulted with counsel telephonically, and

suggested the following response:

1- Yes.
2- At this time I would ask you to continue your
deliberations to attempt to resolve any differences.

¶110 Both attorneys initially agreed, but defense counsel

soon called back expressing reservations regarding the answer to

the second question. Before responding to the jury, the judge

held a hearing the next morning. Ultimately, despite the

objection, defense counsel eventually agreed that both answers

were “at least a fair response” to the jurors’ questions. The

court decided to give the responses quoted above, reasoning that

the initial question was hypothetical.

¶111 On appeal, Cruz asserts that the jury impermissibly

revealed the numerical breakdown and, as a result, any

instruction suggesting further deliberation was impermissibly

coercive. He argues that the court should instead have asked

the jurors whether further deliberations would be fruitful.

¶112 “In determining whether a trial court has coerced the

jury’s verdict,” we examine the judge’s actions and instructions

in light of the “totality of the circumstances and attempt[] to

determine if the independent judgment of the jury was
- 35 -
displaced.” State v. Huerstel, 206 Ariz. 93, 97, ¶ 5, 75 P.3d

698, 702 (2003). If a defendant objects to a further jury

instruction, we review the trial judge’s decision for an abuse

of discretion, State v. Ramirez, 178 Ariz. 116, 126, 871 P.2d

237, 247 (1994), but reversible error occurs if a judge

improperly coerces a verdict, State v. McCrimmon, 187 Ariz. 169,

172, 927 P.2d 1298, 1301 (1996).

¶113 We have addressed the propriety of jury instructions

in possible deadlock situations several times. In Huerstel, we

found error in a capital murder trial when the trial court gave

the instruction suggested in the comment to Arizona Rule of

Criminal Procedure 22.4 to a jury that had been deliberating

only three days and had given no indication that it was

deadlocked. 206 Ariz. at 97-98, 101, ¶¶ 6-9, 25, 75 P.3d at

702-03, 706. The prematurely given instruction, while error,

did not, in itself, require reversal. Id. at 99-100, ¶ 18, 75

P.3d at 704-05. We found that additional circumstances,

including two suggestions from the trial judge that a holdout

juror should reconsider, together with the erroneous

instruction, had “displaced the independent judgment of the

jurors.” Id. at 101, ¶ 25, 75 P.3d at 706 (quoting McCrimmon,

187 Ariz. at 172, 927 P.2d at 1301).

¶114 Caution must be used when instructing a jury if the

court knows of the numerical split between juror groups. State
- 36 -
v. Lautzenheiser, 180 Ariz. 7, 9-10, 881 P.2d 339, 341-42 (1994)

(suggesting that a single holdout juror may need to be “checked

for bruises”); State v. Roberts, 131 Ariz. 513, 517-18, 642 P.2d

858, 862-63 (1982) (Feldman, J., dissenting).

¶115 Assuming, as the trial judge did, that the jurors in

this case were still deliberating, asking them to continue

deliberating does not constitute reversible error. Even

assuming the jury was deadlocked, no reversible error occurred

in this case. The instruction given did not improperly coerce

or influence the jury. It neither asks the jury to reach a

verdict nor suggests that any juror should change his or her

views. The circumstances here thus differ from the overt

pressuring of the holdout jurors in Huerstel and Lautzenheiser.

9. Shock belt

¶116 Cruz argues that his constitutional rights to due

process and a fair trial were violated by requiring him to wear

a “shock belt” under his shirt that enabled security personnel

to deliver an electric shock if he attempted to escape or became

violent. Cruz does not claim that the belt was visible to

jurors, but rather objects that it impeded his ability to

communicate with counsel during proceedings.

¶117 In response to the objection, the court reviewed two

reports detailing a possible escape attempt involving Cruz.

When Cruz challenged the accuracy of the reports, the trial
- 37 -
judge offered to conduct an evidentiary hearing that afternoon

to determine the necessity for the restraint, but Cruz’s counsel

was not prepared to proceed at that time. Finding a legitimate

concern that Cruz presented an escape risk, the trial court

denied Cruz’s motion to have the belt removed. The judge

informed Cruz that he would schedule an evidentiary hearing on

the issue at Cruz’s request, but Cruz never asked for a hearing.

¶118 Although a defendant generally has the right to be

free from restraints in the courtroom, concerns for courtroom

safety and security may make the use of restraints appropriate.

Courtroom security procedures are left to the discretion of the

trial court. Davolt, 207 Ariz. at 211, ¶ 84, 84 P.3d at 476.

We will not disturb a trial court’s decision on security

measures unless an abuse of discretion is shown. See id.

(citing State v. McKinney, 185 Ariz. 567, 576, 917 P.2d 1214,

1223 (1996)).

¶119 Nonetheless, a judge must have grounds for ordering

restraints and should not simply defer to the prosecutor’s

request, a sheriff’s department’s policy, or security

personnel’s preference for the use of restraints. Rather, the

judge should schedule a hearing at the defendant’s request

regarding the need for the restraints. See State v. Stewart,

139 Ariz. 50, 54, 676 P.2d 1108, 1112 (1984) (noting that when a

defendant objects to restraints, “there must be support in the
- 38 -
record for the trial court’s decision”). If such a need is

shown, the restraints ordered should not be disproportionate to

the security risk posed.

¶120 Cruz urges us to adopt instead the heightened standard

employed in Gonzalez v. Pliler, 341 F.3d 897 (9th Cir. 2003).

The court explained in that case that “[t]he fear of receiving a

painful and humiliating shock for any gesture that could be

perceived as threatening likely hinders a defendant’s

participation in the defense of the case, chilling [that]

defendant’s inclination to make any movements during trial —

including those movements necessary for effective communication

with counsel.” Id. at 900 (quoting United States v. Durham, 287

F.3d 1297, 1305 (11th Cir. 2002)) (internal quotation marks

omitted). The court therefore stated that, before a shock belt

may be employed, the government must show not only compelling

circumstances that one is necessary, but also that a less

restrictive alternative will not suffice to ensure courtroom

security. Id.

¶121 Although we share these concerns about the use of

shock belts, we decline to adopt the standard articulated in

Pliler. We adhere to settled Arizona law that leaves

determinations regarding courtroom security to the trial judge’s

discretion. See Davolt, 207 Ariz. at 211, ¶ 84, 84 P.3d at 476.

A trial judge’s independent determination that use of the belt
- 39 -
is appropriate and supported by the record will not be disturbed

absent an abuse of discretion. Id.

¶122 Given the constitutional ramifications of the use of

shock belts, courts should provide a hearing — evidentiary if

necessary — at which the defendant may contest the use of shock

belts or other restraints. In this case, the trial court

properly offered Cruz an evidentiary hearing, but Cruz declined.

The court’s decision was based on a documented threat of escape,

not merely on security personnel’s preference for the shock

belt. There was no abuse of discretion.

10. Autopsy photograph

¶123 Cruz argues that the trial court abused its discretion

by admitting into evidence Exhibit 58, a large autopsy

photograph of Hardesty’s head wound. He claims the photograph

was “gruesome” and inflammatory.

¶124 The photograph shows the entrance wound in Hardesty’s

left eye and demonstrates the “stippling” effect that supported

the pathologist’s conclusion that, when fired, the murder weapon

was approximately twelve inches from Hardesty. Photographs

depicting Hardesty’s other wounds were admitted without

objection.

¶125 The admissibility of a potentially inflammatory

photograph is determined by examining (1) the relevance of the

photograph, (2) its “tendency to incite or inflame the jury,”
- 40 -
and (3) the “probative value versus potential to cause unfair

prejudice.” State v. Spreitz, 190 Ariz. 129, 141, 945 P.2d

1260, 1272 (1997) (quoting Murray, 184 Ariz. at 28, 906 P.2d at

561). We review the trial court’s decision to admit a

photograph for an abuse of discretion. Id.; Gretzler, 126 Ariz.

at 86, 612 P.2d at 1049.

¶126 In murder cases, “[n]otwithstanding an offer to

stipulate to the cause of death, photographs of a murder victim

are relevant if they help to illustrate what occurred.” State

v. Rienhardt, 190 Ariz. 579, 584, 951 P.2d 454, 459 (1997). The

photograph here was relevant to assist the jury “because the

fact and cause of death are always relevant in a murder

prosecution.” Spreitz, 190 Ariz. at 142, 945 P.2d at 1273

(quoting State v. Chapple, 135 Ariz. 281, 288, 660 P.2d 1208,

1215 (1983)).

¶127 Exhibit 58 itself was not particularly inflammatory.

The photograph shows the wound “cleaned up,” and we agree with

the trial judge that “it doesn’t show a lot more than a person

with a black eye.” “There is nothing sanitary about murder, and

there is nothing in Rule 403, Ariz. R. Evid., that requires a

trial judge to make it so.” Rienhardt, 190 Ariz. at 584, 951

P.2d at 459. The trial court did not abuse its discretion by

admitting the photograph.

- 41 -
D. Penalty Phase Issues

1. Double counting an element of the crime

¶128 Cruz argues that the victim’s status as a police

officer was “double counted” because that fact was used to

elevate the murder from second to first degree murder and also

to render the Defendant death eligible.

¶129 This case is unique in that the State did not allege

premeditation or felony murder; the only first degree murder

theory charged was the (A)(3) murder:

Intending or knowing that the person’s conduct
will cause death to a law enforcement officer, the
person causes the death of a law enforcement officer
who is in the line of duty.

A.R.S. § 13-1105(A)(3) (2004). The only aggravating

circumstance was the (F)(10) aggravator:

The murdered person was an on duty peace officer
who was killed in the course of performing the
officer’s official duties and the defendant knew, or
should have known, that the murdered person was a
peace officer.

A.R.S. § 13-703(F)(10) (2004).6 Despite their different wording,

§§ 13-1105(A)(3) and 13-703(F)(10) require proof of nearly

identical facts. To commit first degree murder, a defendant

6
The Legislature added § 13-1105(A)(3) in 1996. 1996 Ariz.
Sess. Laws, ch. 343, § 2 (2d Reg. Sess.). In the only other
case this Court has reviewed since 1996 concerning the murder of
a police officer, an additional aggravator was proved. See
State v. Martinez, 196 Ariz. 451, 461, ¶ 39, 999 P.2d 795, 805
(2000).

- 42 -
must intend to kill a person he knows to be a law enforcement

officer who is acting in the line of duty. Nothing more is

required to prove the (F)(10) aggravating circumstance, which

renders a defendant eligible for a death sentence.

a. State v. Lara

¶130 Cruz fails to articulate how applying the (F)(10)

aggravating factor violates the constitution, aside from urging

us to overrule State v. Lara, 171 Ariz. 282, 830 P.2d 803

(1992). He presents no compelling rationale for doing so. In

Lara, we held that an element of a crime may also be used to

aggravate a sentence. Id. at 284-85, 830 P.2d at 805-06. We

have repeatedly applied the Lara rule in the capital context.

See State v. Greene, 192 Ariz. 431, 444, ¶ 62, 967 P.2d 106, 119

(1998); State v. Lee, 189 Ariz. 608, 620, 944 P.2d 1222, 1234

(1997). We decline Cruz’s invitation to overrule Lara.

b. Presumptive death sentence

¶131 Cruz argues that any defendant who is convicted of

murder under A.R.S. § 13-1105(A)(3) will also have committed the

§ 13-703(F)(10) aggravating factor because one cannot satisfy

§ 13-1105(A)(3) without also satisfying the elements of the

(F)(10) aggravating circumstance. From this, Cruz concludes

that the “presumptive sentence” for violating A.R.S. § 13-

1105(A)(3) is death.

¶132 We addressed a similar “presumption of death” claim in
- 43 -
State ex rel. Thomas v. Granville (Baldwin), which held that no

presumption of death arises when an aggravating circumstance is

found because a jury may sentence a death-eligible defendant to

life in prison “even if the defendant decides to present no

mitigation evidence at all.” 211 Ariz. 468, 471, ¶ 12, 123 P.3d

662, 665 (2005). The same is true here. A conviction under

A.R.S. § 13-1105(A)(3) makes a defendant death eligible (if the

(F)(10) aggravating factor has been alleged and found), but, as

with all cases in which an aggravating circumstance is found, no

presumption arises that a capital sentence should be imposed.

Moreover, Cruz cites no authority suggesting that the

legislature may not provide that any intentional killing of an

on-duty peace officer should make a defendant death eligible.

Killing a person one knows to be a peace officer who is acting

in the line of duty adequately narrows the class of persons

subject to the death penalty. Lowenfield v. Phelps, 484 U.S.

231, 244 (1988) (holding that “a capital sentencing scheme must

‘genuinely narrow the class of persons eligible for the death

penalty’”). Cruz has shown no inherent constitutional problem

with the (A)(3) murder and (F)(10) aggravating factor.

2. Residual doubt jury instruction

¶133 Cruz argues that Arizona law requires the trial court

to give a requested jury instruction on residual doubt. We have

- 44 -
previously held, however, that a residual doubt instruction is

not required by Arizona law. See State v. Garza, 216 Ariz. 56,

70, ¶ 67, 163 P.3d 1006, 1020 (2007). In this case, the jury

was adequately instructed regarding mitigation. The trial court

did not abuse its discretion by refusing to give the requested

instruction.

III. REVIEW OF SENTENCE

¶134 For crimes committed after August 1, 2002, we review

death sentences to determine whether the jury abused its

discretion. A.R.S. § 13-703.05 (2004).

¶135 Aside from the matters addressed earlier in this

opinion, Cruz does not challenge anything that occurred at the

aggravation and penalty phases of his trial. We nonetheless

review the sentence for an abuse of discretion. See A.R.S. §

13-703.05 (requiring Court to review all capital sentences for

abuse of discretion); Morris, 215 Ariz. at 340, ¶ 76, 160 P.3d

at 219 (requiring review even if defendant raises no claims).

¶136 The only aggravating factor in this case was the

(F)(10) factor, murder of a peace officer. Cruz never contested

that he knew Officer Hardesty was a police officer and that

Hardesty was acting in the line of duty when he was killed. The

jury did not abuse its discretion by finding the (F)(10)

aggravator.

¶137 Cruz alleged seventeen mitigating factors: (1)
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impaired capacity to appreciate the wrongfulness of his conduct,

(2) impaired capacity to conform his conduct to the law, (3)

unusual and substantial duress, (4) unforseeability that the

acts would cause death, (5) dysfunctional family, (6)

deprivation of “necessary nurturing and love” from family, (7)

family history of mental disorders, (8) post-traumatic stress

disorder (“PTSD”), (9) drug addiction, (10) mental state

affected by family history of mental disorders, PTSD, and drug

addiction, (11) unfavorable impact on Cruz’s family, (12)

existence of family support, (13) compliance with prison rules,

(14) lack of propensity for future violence, (15) capability to

adapt to prison life, and (16) lack of plan to commit the

murder. Finally, he asserts that his “upbringing, life-style

and subculture all made it far more likely that he would find

himself in this position.” The jury did not find the proffered

mitigation sufficiently substantial to call for leniency.

¶138 Although Cruz’s early life was certainly not ideal,

absent is the type of horrible abuse often found in our capital

jurisprudence. Cruz was neither suffering from any significant

mental illness nor under the influence of drugs at the time of

the crime. The evidence presented on most of these mitigating

circumstances was weak, and Cruz established little or no causal

relationship between the mitigating circumstances and the crime.

Moreover, much of the mitigating evidence offered by Cruz was
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effectively rebutted by the State. The jury did not abuse its

discretion by determining that Cruz should be sentenced to

death.

IV. CONCLUSION

¶139 Cruz’s conviction and death sentence are affirmed.

_______________________________________
Rebecca White Berch, Vice Chief Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

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 APPENDIX

Issues Raised to Avoid Preclusion

Cruz raises the following twenty-one 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 State v. Harrod, 200 Ariz. 309,

320, ¶ 59, 26 P.3d 492, 503 (2001), vacated on other grounds by

Harrod v. Arizona, 536 U.S. 953 (2002).

2. Aggravating factors under A.R.S. § 13-703(F) are

elements of capital murder and must be alleged in an indictment

and screened for probable cause. This Court rejected this

argument in McKaney v. Foreman, 209 Ariz. 268, 271, ¶ 13, 100

P.3d 18, 21 (2004).

3. Victim impact evidence is unconstitutional because of

the lack of prior notice and inability to cross examine the

evidence. In Lynn v. Reinstein, 205 Ariz. 186, 188, ¶ 6, 68

P.3d 412, 414 (2003), this Court found it permissible under the

Victim’s Bill of Rights to allow victims to offer testimony

regarding the victim and the impact of the crime on the victim

and the victim’s family.

4. The trial court erred by refusing to instruct the jury
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that it may consider mercy or sympathy in deciding mitigation.

This Court rejected this claim in State v. Andriano, 215 Ariz.

497, 507, ¶¶ 47-49, 161 P.3d 540, 550 (2007), and State v.

Carreon, 210 Ariz. 54, 70-71, ¶¶ 81-87, 107 P.3d 900, 916-17

(2005).

5. The death penalty is imposed arbitrarily and

irrationally in Arizona. This Court rejected this argument in

State v. Beaty, 158 Ariz. 232, 247, 762 P.2d 519, 534 (1988).

6. 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.

7. The prosecutor’s discretion to seek the death penalty

is not channeled by standards. This Court rejected this

argument in State v. Sansing, 200 Ariz. 347, 361, ¶ 46, 26 P.3d

1118, 1132 (2001), vacated on other grounds by Sansing v.

Arizona, 536 U.S. 954 (2002).

8. Arizona’s death penalty is applied so as to

discriminate against poor, young, and male defendants in

violation of the Arizona Constitution. This argument was

rejected in Sansing, 200 Ariz. at 361, ¶ 46, 26 P.3d at 1132,

vacated on other grounds by Sansing v. Arizona, 536 U.S. 954

(2002).

9. The absence of proportionality review of death

sentences by Arizona courts denies capital defendants due
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process of law and equal protection and amounts to cruel and

unusual punishment. This Court rejected this argument in

Harrod, 200 Ariz. at 320, ¶ 65, 26 P.3d at 503, vacated on other

grounds by Harrod v. Arizona, 536 U.S. 953 (2002), and State v.

Gulbrandson, 184 Ariz. 46, 73, 906 P.2d 579, 606 (1995).

10. Arizona’s capital sentencing scheme is

unconstitutional because it does not require that the State

prove that the death penalty is appropriate. This Court

rejected this argument in State v. Ring (Ring I), 200 Ariz. 267,

284, ¶ 64, 25 P.3d 1139, 1156 (2001), rev’d on other grounds by

Ring II, 536 U.S. at 584.

11. Arizona Revised Statutes § 13-703 provides no

objective standards to guide the sentencer in weighing the

aggravating and mitigating circumstances. This Court rejected

this argument in State v. Pandeli (Pandeli I), 200 Ariz. 365,

382, ¶ 90, 26 P.3d 1136, 1153 (2001), vacated on other grounds

by Pandeli v. Arizona (Pandeli II), 536 U.S. 953 (2002).

12. 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. This Court rejected this

argument in State v. Poyson, 198 Ariz. 70, 83, ¶ 59, 7 P.3d 79,

92 (2000).

13. Arizona Revised Statutes § 13-703 does not
- 50 -
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. This

Court rejected this argument in Pandeli I, 200 Ariz. at 382,

¶ 90, 26 P.3d at 1153, vacated on other grounds by Pandeli II,

536 U.S. at 953.

14. Execution by lethal injection is cruel and unusual

punishment. This Court rejected this argument in State v.

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

15. 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. This Court

rejected this argument in State v. Miles, 186 Ariz. 10, 19, 918

P.2d 1028, 1037 (1996).

16. Arizona’s death penalty statute is unconstitutional

because it requires defendants to prove that their lives should

be spared, in violation of the United States and Arizona

Constitutions. The Court rejected this argument in State v.

Fulminante, 161 Ariz. 237, 258, 778 P.2d 602, 623 (1988).

17. Arizona’s death penalty is unconstitutional because it

fails to require the sentencer to consider the cumulative nature
- 51 -
of mitigation, nor does it require the sentencer to make

specific findings as to each mitigating factor, in violation of

the Eighth and Fourteenth Amendments of the United States

Constitution. This Court rejected this argument in State v. Van

Adams, 194 Ariz. 408, 423, ¶ 55, 984 P.2d 16, 31 (1999).

18. Arizona’s statutory scheme for considering mitigation

evidence is unconstitutional because it limits full

consideration of that evidence. This Court rejected this

argument in State v. Mata, 125 Ariz. 233, 241-42, 609 P.2d 48,

56-57 (1980).

19. Section 13-7037 is unconstitutional because there are

no statutory standards for weighing. This Court rejected this

argument in Atwood, 171 Ariz. at 645-46 n.21, 832 P.2d at 662-63

n.21.

20. Arizona’s death penalty provides no meaningful

distinction between capital and non-capital cases. This Court

rejected this argument in State v. Salazar, 173 Ariz. 399, 411,

844 P.2d 566, 578 (1992).

21. 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 required at the time of

7
Cruz does not specify the statute to which he refers, but
we assume that it is A.R.S. § 13-703.
- 52 -
the offense. This Court rejected this argument in State v. Ring

(Ring III), 204 Ariz. 534, 547, ¶ 23, 65 P.3d 915, 928 (2003).

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