State v. Pandeli

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-06-0143-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR93-08116
DARREL PETER PANDELI, )
) O P I N I O N
Appellant. )
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Robert L. Gottsfield, Judge

AFFIRMED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Capital Litigation Section
Lacey Alexandra Stover Gard,
Assistant Attorney General
Attorneys for State of Arizona

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kelley J. Morrissey, Assistant Attorney General
Attorney for Arizona Department of Corrections

DROBAN & COMPANY, P.C. Anthem
By Kerrie M. Droban
Attorney for Darrel Peter Pandeli
________________________________________________________________

B E R C H, Vice Chief Justice

¶1 Appellant Darrel Peter Pandeli was convicted of first

degree murder in 1997 and sentenced to death in 1998 for the

murder of Holly Iler. On appeal, we affirmed both his

conviction and his death sentence. State v. Pandeli (Pandeli

I), 200 Ariz. 365, 382-83, ¶ 94, 26 P.3d 1136, 1153-54 (2001).

In 2002, however, the United States Supreme Court remanded the

case for further consideration in light of Ring v. Arizona (Ring

II), 536 U.S. 584 (2002). Pandeli v. Arizona (Pandeli II), 536

U.S. 953 (2002) (mem.). We vacated Pandeli’s death sentence and

remanded the case to the trial court for a new sentencing

hearing. State v. Pandeli (Pandeli III), 204 Ariz. 569, 572,

¶ 11, 65 P.3d 950, 953 (2003) (supp. op.). On remand, a jury

determined that Pandeli should be sentenced to death. We have

jurisdiction over this capital appeal pursuant to Article 6,

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

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

I. FACTS AND PROCEDURAL BACKGROUND

¶2 Holly Iler’s nude body was found in a central Phoenix

alley on the morning of September 24, 1993. She had been

beaten, her throat had been slashed, and her nipples had been

excised after her death. During the course of the police

investigation, Pandeli confessed to murdering Iler. A more

detailed description of the Iler murder may be found in Pandeli

I, 200 Ariz. at 370-72, ¶¶ 6-15, 26 P.3d at 1141-43.

¶3 After confessing to the Iler murder, Pandeli admitted

that he had previously killed another woman. Teresa Humphreys’

body was found on a sidewalk in central Phoenix in January 1992.

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She had been stabbed several times in the chest and back, her

throat had been slashed, and she suffered extensive defensive

wounds to her hands. In 1996, Pandeli was convicted of second

degree murder for killing Humphreys and was sentenced to twenty

years in prison.

¶4 Pandeli’s resentencing for the Iler murder commenced

in February 2006. The State sought to prove two aggravating

circumstances: that Pandeli had been “previously convicted of a

serious offense,” see A.R.S. § 13-703(F)(2) (Supp. 1993), and

that he committed the murder in an “especially heinous . . . or

depraved manner,” see id. § 13-703(F)(6). In support of the

(F)(2) aggravating factor, the State produced evidence of the

Humphreys murder conviction. To prove the (F)(6) aggravating

factor, the State introduced evidence that Pandeli mutilated

Iler’s body and kept souvenirs of the murder. The jury found

both aggravating circumstances and rendered a verdict of death.

II. DISCUSSION

¶5 Pandeli raises eight issues on appeal and lists seven

additional issues to avoid preclusion. We address only those

issues argued to this Court and append a list of preserved

claims to this opinion.

A. Ability to Conduct Voir Dire

¶6 Pandeli claims that the trial court’s failure to rule

before trial on the scope of the State’s penalty phase rebuttal

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hindered his ability to conduct voir dire because he did not

know whether to question jurors about their feelings regarding

serial killers. Before trial, the State asked to introduce the

facts of Teresa Humphreys’ murder in rebuttal to Pandeli’s

proffered mitigation evidence to demonstrate that Pandeli should

not be shown leniency. The trial court deferred ruling on the

motion until after the defense presented its mitigation evidence

to allow the court to assess whether the Humphreys murder

evidence would be relevant.

¶7 At the oral argument on the motion, Pandeli did not

argue that the court’s failure to rule would hinder his ability

to conduct voir dire; he first made that argument in his motion

for a new trial, filed after he had been sentenced to death.

Because Pandeli did not object on these grounds at trial, we

review for fundamental error. State v. Henderson, 210 Ariz.

561, 567, ¶ 19, 115 P.3d 601, 607 (2005). To satisfy the

fundamental error standard, a defendant must demonstrate not

only “error going to the foundation of the case,” but also that

the error caused him prejudice. Id. at ¶¶ 19-20.

¶8 We conclude that the judge’s delay in ruling did not

deprive Pandeli of the ability to conduct voir dire. There was

no error, much less fundamental error. Despite the trial

court’s decision not to rule immediately on the State’s motion,

the defense had the opportunity to question the prospective

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jurors about their feelings toward serial killers. The

prospective jurors were informed that Pandeli had previously

been convicted of another murder and were asked in the Jury

Selection Questionnaire whether they thought the death penalty

was appropriate for serial murderers. Defense counsel then had

the opportunity to follow up on this issue. Several prospective

jurors were questioned about their beliefs regarding serial

killers.

¶9 Moreover, Pandeli has not identified any questions he

wanted to ask but was denied permission to ask. And, generally,

any overly specific questions would not have been allowed. A

defendant does not have the right to “commit [prospective

jurors] to certain positions prior to receiving the evidence.”

State v. Melendez, 121 Ariz. 1, 3, 588 P.2d 294, 296 (1978); cf.

State v. Smith, ___ Ariz. ___, ___, ¶ 42, 159 P.3d 531, 541

(2007) (holding that a trial court need not permit a defendant

to question jurors about their assessment of specific

aggravating factors).

¶10 Finally, to the extent that Pandeli complains about

the voir dire of prospective jurors 29, 42, and 77, those

individuals were dismissed and did not sit on the jury;

therefore, Pandeli cannot show any prejudice stemming from his

inability to question these jurors. See State v. Glassel, 211

Ariz. 33, 46-47, ¶ 41, 116 P.3d 1193, 1206-07 (2005), cert.

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denied, 126 S. Ct. 1576 (2006). In sum, Pandeli has not shown

that his ability to conduct voir dire was hindered by the trial

court’s delay in ruling or that he did not have a fair and

impartial jury.

B. Aggravation Phase Issues

1. (F)(2) aggravating circumstance

¶11 Pandeli next claims three separate errors with regard

to the (F)(2) “serious offense” aggravating factor: (1) The

trial court improperly allowed the State to introduce the

underlying facts of the Humphreys murder to prove the (F)(2)

aggravating factor; (2) the trial court should not have allowed

the State to present any evidence of the (F)(2) aggravating

factor to the jury and instead should have told the jury that

the aggravating circumstance was established; and (3) use of the

Humphreys murder conviction to support the (F)(2) aggravating

circumstance violated the Double Jeopardy Clause because it

allowed additional punishment to stem from a prior conviction.

We review evidentiary rulings of the trial court for abuse of

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

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

review legal and constitutional issues de novo, State v. Moody,

208 Ariz. 424, 445, ¶ 62, 94 P.3d 1119, 1140 (2004).

a. Evidence of prior conviction

¶12 “The proper procedure to establish [a] prior

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conviction is for the state to offer in evidence a certified

copy of the conviction . . . and establish the defendant as the

person to whom the document refers.” State v. Lee, 114 Ariz.

101, 105, 559 P.2d 657, 661 (1976). The State followed this

procedure and did not introduce any of the underlying facts of

the Humphreys murder to establish the (F)(2) aggravating

circumstance.1 Thus, there was no error.

b. Submission of (F)(2) aggravating factor to jury

¶13 Pandeli argues that submitting the (F)(2) aggravating

factor to the jury violated his Sixth Amendment right. We

disagree.

¶14 After receiving a new sentencing hearing to cure the

error caused by allowing the judge to find the aggravating

circumstances, Pandeli now claims that the jury should not have

been allowed to find the (F)(2) aggravating factor because the

Sixth Amendment to the United States Constitution does not

require a jury to determine the existence of a prior conviction.

See State v. Ring (Ring III), 204 Ariz. 534, 556, ¶ 55, 65 P.3d

915, 937 (2003). Arizona Revised Statutes § 13-703.01(P) (Supp.

2006), however, requires a jury to make all findings of fact in

a death penalty sentencing hearing, and the fact that the Sixth

1
The underlying facts of the Humphreys murder were
introduced in the penalty phase to rebut Pandeli’s mitigation
evidence. Pandeli raised the admission of this evidence as a
separate issue, addressed infra ¶¶ 51-59.

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Amendment allows a judge to find prior convictions does not

affect that statutory mandate. Nothing in the Constitution

requires that a judge find the prior serious offense aggravating

circumstance, and the Arizona statute affirmatively requires

that the finding be made by the jury. See A.R.S. § 13-

703.01(P).

¶15 Pandeli also argues that it was unnecessary for the

jury to find the existence of his prior conviction because a

trial judge’s finding in an earlier sentencing proceeding that a

prior conviction exists may not be disturbed at resentencing.

In support of this proposition, he cites State v. Montaño, 206

Ariz. 296, 77 P.3d 1246 (2003), and State v. Cropper, 206 Ariz.

153, 76 P.3d 424 (2003). The question in those cases differed

from the one now before us. In Montaño and Cropper, we were

analyzing whether the error in having a judge find aggravating

factors was harmless. For purposes of the harmless error

inquiry, we stated that we would not “disturb the trial judge’s

finding that the prior serious conviction aggravating

circumstance exists.” Montaño, 206 Ariz. at 299, ¶ 12, 77 P.3d

at 1249; Cropper, 206 Ariz. at 155, ¶ 9, 76 P.3d at 426. This

language did not establish the existence of the (F)(2)

aggravating circumstance as a matter of law because we vacated

the death sentences and remanded the cases for resentencing.

Montaño, 206 Ariz. at 301, ¶ 26, 77 P.3d at 1251; Cropper, 206

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Ariz. at 158, ¶ 24, 76 P.3d at 429. Because Pandeli’s death

sentence was vacated, the State was obligated to re-prove the

(F)(2) aggravating circumstance on resentencing. Arizona

Revised Statutes § 13-703.01(P) requires that the finding be

made by a jury.

c. Double jeopardy violation

¶16 Finally, Pandeli argues that the use of the Humphreys

murder conviction to establish the (F)(2) aggravating factor

violated double jeopardy by allowing additional punishment for a

prior crime. We have previously held that using a prior

conviction under a recidivist statute to enhance a sentence on a

new and separate charge does not violate double jeopardy. State

v. Mauro, 159 Ariz. 186, 209, 766 P.2d 59, 82 (1988). The

(F)(2) aggravating factor is a recidivist provision. See Ring

III, 204 Ariz. at 558, ¶ 66, 65 P.3d at 939. Therefore, use of

the Humphreys murder conviction to prove the (F)(2) factor did

not violate double jeopardy.

2. Constitutionality of (F)(6) aggravating circumstance

¶17 Pandeli asserts that the (F)(6) “especially heinous,

cruel or depraved” aggravating circumstance is

unconstitutionally vague and overbroad. He makes three separate

arguments in support of his assertion: (1) This Court has

failed to sufficiently define the factor through specific and

consistent guidelines; (2) Walton v. Arizona, 497 U.S. 639

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(1990),2 no longer saves the (F)(6) factor from unconstitutional

vagueness because juries, rather than judges, now find

aggravating circumstances; and (3) the jury instruction in this

case failed to cure the facial vagueness of the statutory

language because it used terms that are equally vague. The

Court reviews alleged constitutional violations de novo.

McGill, 213 Ariz. at 159, ¶ 53, 140 P.3d at 942.

a. Failure to sufficiently define the (F)(6) factor

¶18 In Walton v. Arizona, the Supreme Court of the United

States held that Arizona’s (F)(6) statutory aggravating

circumstance is facially vague. 497 U.S. at 654. That Court

ultimately held, however, that the (F)(6) aggravating

circumstance is constitutional because Arizona judicial opinions

have provided a narrowing construction that “gives meaningful

guidance to the sentencer.” Id. at 653-55. Pandeli’s first

argument thus does not provide a basis for reversal.

b. Jury sentencing renders instruction vague as
applied

¶19 Pandeli argues that Walton does not save the (F)(6)

factor from unconstitutional vagueness because juries, rather

than trial judges, now find the existence of aggravating

circumstances. We have rejected this argument several times.

2
Walton was overruled on other grounds by Ring II, 536 U.S.
at 609.

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

448, 455-56 (2005), cert. denied, 126 S. Ct. 2291 (2006); State

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

P.3d 369, 394-95 (2005). Cromwell and Anderson “hold that the

(F)(6) aggravator may be constitutionally applied if given

substance and specificity by jury instructions that follow this

Court’s constructions.” State v. Hampton, 213 Ariz. 167, 176,

¶ 36, 140 P.3d 950, 959 (2006), cert. denied, 127 S. Ct. 972

(2007). We next address the adequacy of the instructions given

in Pandeli’s case.

c. Sufficiency of the jury instructions

¶20 Pandeli argues that the jury instructions given at his

sentencing did not sufficiently define “heinous” and “depraved”

because those words were defined by equally vague terms. We

disagree. The terms heinous and depraved were properly defined

using terms that were themselves clearly defined. The

instructions stated, in relevant part:

The terms “heinous” or “depraved” focus upon a
defendant’s state of mind at the time of the offense,
as reflected by his words and actions at or near the
time of the offense. 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, perversion or deterioration.
To determine whether Defendant’s actions were
especially heinous or depraved, you should consider
whether Defendant’s behavior evidenced any of the
following:

1. Relishing the murder; or

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2. Inflicting gratuitous violence on the victim
beyond that necessary to kill; or

3. Mutilating the victim’s body.

In this context, “relishing” refers to
Defendant’s words or actions that demonstrate
debasement or perversion. In order to support a
finding of relishing, Defendant must say or do
something, other than committing the murder itself, to
show that he savored or reveled in the killing.

In this context, “gratuitous violence” refers to
violence committed upon the victim beyond that
necessary to kill. Gratuitous violence also may be
found if you determine that the circumstances evidence
that the murder could have been accomplished by less
violent manners.

In this context, “needless mutilation” means that
Defendant, in any act separate and distinct from the
killing itself, committed other acts with the intent
to mutilate the victim’s corpse, such as the
purposeful severing of body parts.

¶21 We conclude that the terms “heinous” and “depraved”

were defined using easily understood terms or terms that were

themselves defined. Moreover, the instructions are virtually

identical to the ones we approved in Anderson II, 210 Ariz. at

352-53 n.19, ¶ 111, 111 P.3d at 394-95 n.19. The only

significant difference between the two instructions is that the

Anderson II instructions included a paragraph explaining that

certain statements by a defendant cannot be considered

relishing. Id. It was unnecessary to provide a similar

instruction in this case, however, because the State did not

allege that Pandeli made any statements that demonstrated

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relishing. The jury instructions in this case properly narrowed

and defined the (F)(6) aggravating factor.

3. Photographs admitted to prove (F)(6) aggravating
circumstance

¶22 Pandeli next contends that the trial court erred when

it admitted photographs of Holly Iler’s body, photographs of a

Confederate flag found in Pandeli’s van, and a photograph of his

body that showed his tattoos. We review a trial court’s rulings

on the admissibility of photographic evidence for abuse of

discretion. McGill, 213 Ariz. at 154, ¶ 30, 140 P.3d at 937.

¶23 Relevant evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair

prejudice. Ariz. R. Evid. 403. When assessing the

admissibility of photographs, we “consider the photographs’

relevance, the likelihood that the photographs will incite the

jurors’ passions, and the photographs’ probative value compared

to their prejudicial impact.” McGill, 213 Ariz. at 154, ¶ 30,

140 P.3d at 937 (citing State v. Davolt, 207 Ariz. 191, 208,

¶ 60, 84 P.3d 456, 473 (2004)). Because “[t]here is nothing

sanitary about murder,” nothing “requires a trial judge to make

it so.” State v. Rienhardt, 190 Ariz. 579, 584, 951 P.2d 454,

459 (1997). Photographs, however, cannot be introduced “for the

sole purpose of inflaming the jury.” State v. Gerlaugh, 134

Ariz. 164, 169, 654 P.2d 800, 805 (1982).

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a. Photographs of Iler’s body

¶24 Pandeli specifically objects to the admission of

exhibits 40, 44, 100, 102, 103, and 105 because they were

“gruesome and inflammatory.” The State introduced the

photographs to support testimony establishing the “heinous” and

“depraved” prongs of the (F)(6) aggravating factor. The six

contested photographs depict the victim’s body at the scene of

the crime as well as during the autopsy. They illustrate all of

her wounds including the bruising to her face, her nipple

excision wounds, and her slashed throat. All of the contested

photographs are relevant. See Hampton, 213 Ariz. at 173, ¶ 20,

140 P.3d at 956 (finding photographs relevant that showed “the

nature and the placement of the victim[’s] injuries”).

¶25 Pandeli argues, however, that the photographs were

irrelevant and introduced to inflame the passions of the jury

because the defense did not contest, and indeed had offered to

stipulate to, the facts of the murder. On this issue, we have

stated that “[e]ven if a defendant does not contest certain

issues, photographs are still admissible if relevant because the

burden to prove every element of the crime is not relieved by a

defendant’s tactical decision not to contest an essential

element of the offense.” State v. Dickens, 187 Ariz. 1, 18, 926

P.2d 468, 485 (1996) (internal quotation marks omitted).

Moreover, in this case, while Pandeli was willing to stipulate

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to having killed Iler, he did not offer to stipulate that the

murder was heinous and depraved. The State thus still had to

prove this aggravating circumstance.

¶26 In addition to being relevant, the photographs are not

unduly prejudicial. Only one photograph, exhibit 40, is

gruesome. It shows the victim’s face, neck, and breasts,

covered with blood, dirt, and other debris. The trial judge,

however, carefully considered whether to admit exhibit 40 and

did not admit similar photographs of the victim that were more

gruesome. Although the judge acknowledged its gruesomeness, he

nonetheless found the probative value of exhibit 40 not

outweighed by unfair prejudice. We hold that the trial court

did not abuse its discretion in admitting the photographs of

Iler’s body.

b. Photographs of tattoos and Confederate flag

¶27 Pandeli asserts that exhibits 59, 64, and 65 were

irrelevant and prejudicial, and therefore were improperly

admitted. These photographs, like the photographs of Iler’s

body, were admitted to prove the (F)(6) aggravating

circumstance. Exhibit 65 depicts the side of Pandeli’s van and

shows that he used a Confederate flag as a window covering.

Exhibit 59 is a close-up photograph of the Confederate flag that

shows some blood spatter. Exhibit 64 shows Pandeli standing

shirtless, shortly after his arrest. It reveals tattoos on his

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upper arms and the upperleft side of his chest. The photograph

was taken from a distance so the viewer cannot discern what the

tattoos depict.

¶28 The photographs of the Confederate flag are relevant.

Exhibit 59 shows the victim’s blood on the flag, and exhibit 65

shows the van in which the murder took place. The photograph of

Pandeli is also relevant because it depicts Pandeli’s physical

condition at the time of the murder and shows no visible

injuries or defensive wounds resulting from the crime. Although

relevant, the photographs had minimal probative value. Pandeli

had already stipulated to the existence of blood on the flag,

and the facts that the murder took place in the van and the

absence of injuries to Pandeli were not contested.

¶29 The photographs, however, are also minimally

prejudicial. The Confederate flag photographs had little

prejudicial impact because the defense stipulated to the

existence of blood on the “Confederate flag taken from the rear

side window” of Pandeli’s van. We find it unlikely that the

photographs of the flag prejudiced the jury any more than the

stipulation. Cf. McGill, 213 Ariz. at 155, ¶ 32, 140 P.3d at

938 (“We consider it unlikely that the pictures added much to

any sense of shock the jurors experienced from hearing the

injuries described.”). The photograph of Pandeli was also

minimally prejudicial because his tattoos cannot be discerned

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and the mere presence of tattoos is not shocking or prejudice-

inducing. Therefore, although the photographs had little

probative value, the court did not abuse its discretion in

admitting them. See State v. Cañez, 202 Ariz. 133, 154, ¶ 67,

42 P.3d 564, 585 (2002) (finding no abuse of discretion in

admitting evidence that was both minimally probative and

minimally prejudicial).

C. Penalty Phase Issues

1. State prevented jury from considering mitigation
evidence

¶30 Pandeli claims that the State improperly limited the

type of mitigation the jury could consider by arguing in closing

that (1) there was no causal nexus between the mitigating

evidence and the crime, and (2) Pandeli knew right from wrong.

When an objection was made, we review a trial court’s ruling on

the scope of closing argument for abuse of discretion. See

State v. Roque, 213 Ariz. 193, 223, ¶ 123, 141 P.3d 368, 398

(2006).

a. Mitigating evidence has no causal nexus to crime

¶31 Pandeli claims that the State improperly suggested in

closing argument that the jurors could not find mitigation in

the absence of a causal nexus between the mitigating evidence

and the crime, in violation of Tennard v. Dretke, 542 U.S. 274,

287 (2004) (holding that jurors cannot be prevented from giving

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effect to mitigating evidence solely because the evidence is not

causally connected to the crime). He specifically complains

about the following statements: “[W]e’re not here to focus on

defendant’s childhood. . . . [Y]ou look at the last few years

of his life, that’s what we judge it on,” and “The natural rain

and facts of this case wash[] mitigation away.”

¶32 We addressed, and rejected, this precise claim in

Anderson II, stating:

Once the jury has heard all of the defendant’s
mitigation evidence, there is no constitutional
prohibition against the State arguing that the
evidence is not particularly relevant or that it is
entitled to little weight. The prosecutor’s various
comments and questions here simply went to the weight
of Anderson’s mitigation evidence and were not
improper.

210 Ariz. at 350, ¶ 97, 111 P.3d at 392. Similarly, in this

case the State never told jurors that they could not consider

mitigation unrelated to the crime; it merely suggested that such

mitigation was entitled to minimal weight.

¶33 Furthermore, any potential error was cured by the jury

instructions, which informed the jurors that they should

consider and give effect to all of Pandeli’s mitigation

evidence. The court specifically instructed the jurors that

“[t]he defendant need not prove that the mitigating

circumstances were the direct cause of the offense.” The court

also told the jurors to “consider and give effect to all

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mitigating circumstances that have been raised by any aspect of

the evidence.” These instructions remedied any potential error.

See Roque, 213 Ariz. at 223-24, ¶ 126, 141 P.3d at 398-99

(holding that jury instructions that required jurors to consider

“anything” as mitigation and enumerated specific mitigating

factors, including those that lacked a causal nexus to the

crime, cured any potential error).

b. Pandeli knew right from wrong

¶34 In Eddings v. Oklahoma, the Supreme Court of the

United States held that “[j]ust as the State may not by statute

preclude the sentencer from considering any mitigating factor,

neither may the sentencer refuse to consider, as a matter of

law, any relevant mitigating evidence.” 455 U.S. 104, 113-14

(1982). Thus, the State may not tell jurors that they cannot

consider relevant mitigating evidence.

¶35 Pandeli asserts that the State did just that when it

argued in its closing that Pandeli knew the difference between

right and wrong and that the jurors should put Pandeli’s

background and actions “in perspective.” The State, however,

did not direct the jurors to disregard the mitigation evidence;

it simply suggested that jurors should assign less weight to the

mental health mitigation presented by Pandeli’s expert

witnesses. Such argument is proper. See Anderson II, 210 Ariz.

at 350, ¶ 97, 111 P.3d at 392; cf. State v. Johnson, 212 Ariz.

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425, 440, ¶ 65, 133 P.3d 735, 750 (affording evidence of

defendant’s mental impairment “minimal value” because defendant

knew right from wrong), cert. denied, 127 S. Ct. 559 (2006).

¶36 Moreover, any potential error was remedied by the jury

instructions. See Roque, 213 Ariz. at 223-24, ¶ 126, 141 P.3d

at 398-99. The penalty phase jury instructions stated that

“[i]n order to prove the existence of a mitigating circumstance,

the defendant does not need to prove that he did not understand

the nature of his actions, was unable to control his actions, or

did not know his actions were wrong.” The court also instructed

the jury that “[m]itigating circumstances are not a defense,

excuse or justification for the offense.” Consequently, the

trial court did not err when it allowed the State to argue that

Pandeli knew the difference between right and wrong.

¶37 Pandeli also claims that the State’s argument that

Pandeli knew right from wrong was irrelevant. We have

previously held, however, that a defendant’s knowledge of right

and wrong decreases the weight given to mental health

mitigation. Johnson, 212 Ariz. at 440, ¶ 65, 133 P.3d at 750.

Thus, the State’s argument was relevant to the jury’s assessment

of the value of Pandeli’s mental health mitigation.

2. Presumption of death in jury instructions

¶38 Pandeli next asserts that the penalty phase jury

instructions were improper because they placed on him the burden

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of proving that the mitigation was sufficiently substantial to

call for leniency. We review de novo whether jury instructions

given by the trial court correctly state the law and are

constitutional. State ex rel. Thomas v. Granville (Baldwin),

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

¶39 The trial court issued the following instructions

regarding the consideration of mitigating circumstances:

The Defendant bears the burden of proving the
existence of any mitigating circumstance by a
preponderance of the evidence. That is, although the
Defendant need not prove its existence beyond a
reasonable doubt, the Defendant must convince you by
the evidence presented that it is more probably true
than not true that such a mitigating circumstance
exists. Proof by a preponderance of the evidence is a
lower burden than proof beyond a reasonable doubt.

You individually determine whether mitigation
exists. Considering the aggravating circumstances you
have found, you must then individually determine if
the total of the mitigation is sufficiently
substantial to call for leniency. “Sufficiently
substantial to call for leniency” means that
mitigation must be of such quality or value that it is
adequate, in the opinion of an individual juror, to
persuade that juror to vote for a sentence of life in
prison.

Even if a juror believes that the aggravating and
mitigating circumstances are of the same quality or
value, that juror is not required to vote for a
sentence of death and may instead vote for a sentence
of life in prison. A juror may find mitigation and
impose a life sentence even if the Defendant does not
present any mitigation evidence.

¶40 Nothing in the instructions suggests that the

Defendant bears the burden of proving that the mitigation is

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sufficiently substantial to call for leniency; to the contrary,

the instructions state that a juror in equipoise regarding

mitigating and aggravating circumstances is not required to vote

for death. The instructions make it clear that the sentencing

decision is not a “fact question” and that it must be “based

upon the juror’s assessment of the quality and significance of

the mitigating evidence that the juror has found to exist.” Id.

at 473, ¶ 21, 123 P.3d at 667. Moreover, the instructions did

not use the “outweighing” language this Court has discouraged.

Id. The instructions do not create a presumption of death or

place an improper burden on the defendant.

3. Scope of rebuttal

¶41 Pandeli argues that the trial court erred by allowing

the State to introduce irrelevant and prejudicial “dump-truck

aggravation” in rebuttal to the defense mitigation case.3 We

review for abuse of discretion evidentiary rulings to which an

objection was made. McGill, 213 Ariz. at 156, ¶ 40, 140 P.3d at

939.

¶42 The penalty phase relevance analysis differs from a

normal relevance analysis because the Rules of Evidence do not

3
We have previously rejected the “dump-truck aggravation”
argument; jurors may consider additional evidence presented in
the penalty phase that bears on whether the defendant should be
shown leniency. Hampton, 213 Ariz. at 178 n.10, ¶ 46, 140 P.3d
at 961 n.10 (quoting Zant v. Stephens, 462 U.S. 862, 878
(1983)).

- 22 -

apply in the penalty phase of a capital case. A.R.S. § 13-

703(C) (Supp. 2006). Instead, A.R.S. § 13-703.01(G) sets forth

the scope of rebuttal evidence: “[T]he state may present any

evidence that demonstrates that the defendant should not be

shown leniency.”

¶43 The Due Process Clause of the Fourteenth Amendment,

however, places limitations on rebuttal evidence. Hampton, 213

Ariz. at 179, ¶ 48, 140 P.3d at 962 (citing Payne v. Tennessee,

501 U.S. 808, 825 (1991) (holding that unfairly prejudicial

evidence may be excluded if it renders the proceeding

“fundamentally unfair”)). We have therefore cautioned trial

courts to exercise discretion in admitting penalty phase

evidence:

Trial courts can and should exclude evidence that is
either irrelevant to the thrust of the defendant’s
mitigation or otherwise unfairly prejudicial. Nothing
in our death penalty statutes strips courts of their
authority to exclude evidence in the penalty phase if
any probative value is substantially outweighed by the
prejudicial nature of the evidence. Trial courts
should not allow the penalty phase to devolve into a
limitless and standardless assault on the defendant’s
character and history. Rather, trial judges should
exercise their broad discretion in evaluating the
relevance of such bad acts evidence to any mitigation
evidence offered.

Id. at 180, ¶ 51, 140 P.3d at 963 (citing McGill, 213 Ariz. at

156-57, ¶ 40, 140 P.3d at 939-40). A judge’s analysis in

determining the relevance of rebuttal evidence involves

fundamentally the same considerations as relevance and prejudice

- 23 -

determinations under Arizona Rules of Evidence 401 and 403.

McGill, 213 Ariz. at 157, ¶ 40, 140 P.3d at 940.

a. Violent sex and fantasies

¶44 Pandeli argues that the trial court abused its

discretion by admitting the testimony of two of his former

girlfriends. Because he did not object below, we review for

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

at 607. Pandeli must show “error going to the foundation of the

case” and resulting prejudice. Id. at ¶¶ 19-20.

¶45 Both women testified about Pandeli’s aggressive sexual

behavior and violent fantasies. The State offered the evidence

to rebut testimony by Pandeli’s mental health experts that he

was impulsive as a result of mental impairment. Pandeli’s

former girlfriends’ testimony rebutted his mental health

mitigation because it tended to show that the murders were not

committed impulsively, but were instead part of a pattern of

escalating sexual violence.

¶46 Pandeli also introduced extensive testimony of his

good behavior in prison and his lack of future dangerousness.

The testimony of the girlfriends rebutted Pandeli’s future

dangerousness mitigation and tended to show that he should not

be shown leniency.

¶47 We conclude that the evidence was relevant and that

the prejudicial impact of the description of Pandeli’s sexual

- 24 -

behavior and violent fantasies did not outweigh the probative

value of the evidence. There was no fundamental error.

b. Child molestation

¶48 Pandeli also claims that the trial court improperly

allowed one former girlfriend to testify that Pandeli molested

her daughter. Pandeli’s counsel argued that this evidence was

admissible; therefore, we must review for fundamental error.

Id. at ¶ 19, 115 P.3d at 607.

¶49 The witness testified that one night, when Pandeli was

drunk, he crawled into her four-year-old daughter’s bed and

molested her. She also testified about the impact of that abuse

on her daughter’s life. This testimony was damaging.

¶50 We conclude that there was no reversible error,

however, because Pandeli invited the error. At trial, the court

asked whether Pandeli’s counsel objected to the child

molestation testimony and he explicitly stated that he did not.

He agreed that the testimony was admissible “other act”

evidence. “This court has long held that ‘a defendant who

invited error at trial may not then assign the same as error on

appeal.’” Moody, 208 Ariz. at 453, ¶ 111, 94 P.3d at 1148

(quoting State v. Endreson, 109 Ariz. 117, 122, 506 P.2d 248,

253 (1973)). Pandeli therefore may not assert error on this

point on appeal.

- 25 -

c. Humphreys murder testimony

¶51 Pandeli next argues that the trial court abused its

discretion when it allowed the State to introduce the underlying

facts of the Humphreys murder, because such evidence was

irrelevant, prejudicial, and cumulative. Evidence regarding the

Humphreys murder was presented through the testimony of Dr.

Keen, the county medical examiner, and Detectives Gregory and

Rea, to demonstrate that Pandeli did not deserve to be shown

leniency.

¶52 All of the testimony presented by the State was

relevant. The facts of Humphreys’ brutal murder demonstrated

that Pandeli was not entitled to leniency. See A.R.S. § 13-

703.01(G). Furthermore, the fact that Pandeli murdered two

women in a similar, savage fashion rebutted his mental health

mitigation by tending to show that he did not act impulsively.

Moreover, one of Pandeli’s experts, Dr. Cunningham, relied on

the facts of the Humphreys murder to support his opinion of

Pandeli’s mental health. Cf. Johnson, 212 Ariz. at 435-36, ¶¶

36-40, 133 P.3d at 745-46 (holding that trial court did not

abuse its discretion in allowing into evidence videotape that

assisted jury in determining the credibility and accuracy of an

expert’s diagnosis). Finally, none of the evidence was

cumulative because each witness provided different information

about the murder.

- 26 -

¶53 The fact that the evidence was relevant does not end

our analysis; we must also determine whether the evidence was

unfairly prejudicial. Smith, ___ Ariz. at ___, ¶ 54, 159 P.3d

at 542 (citing Hampton, 213 Ariz. at 179, ¶ 48, 140 P.3d at

962). Although damaging to Pandeli, none of the testimony was

unduly prejudicial. The witnesses simply provided details of

the crime scene and described Humphreys’ injuries. The trial

court therefore did not abuse its discretion in admitting this

testimony.

d. Humphreys murder photographs

¶54 Pandeli argues that photographs relating to the

Humphreys murder were improperly admitted because he did not

contest any of the facts of the murder, and thus the photographs

were irrelevant and unduly prejudicial.4 Pandeli objects to

exhibits 218-246, 248-250, and several photographs that were

never admitted into evidence. We do not address the photographs

that were not admitted. The photographs that were admitted into

evidence show where Humphreys’ body was found, her body at the

crime scene, the severe defensive wounds to her hands, her slit

throat, a moon-shaped knife wound on her chest, a different

wound on her chest, wounds on her back, and a photograph of the

folder in which the photographs were kept by the police.

4
This argument mirrors the argument regarding the Iler
photographs, addressed supra ¶¶ 24-26.

- 27 -

¶55 The photographs shown to the jury were relevant to

corroborate the testimony of the detectives and the medical

examiner concerning the Humphreys murder. See Hampton, 213

Ariz. at 173, ¶ 20, 140 P.3d at 956 (stating that photos

demonstrating “the nature and the placement of the victims’

injuries” were “relevant to corroborate the testimony of the

State’s witnesses”). They were also relevant because they

rebutted Pandeli’s mitigation evidence. The photographs allowed

the jury to see the similarities between the two murders, and

they assisted the jurors in deciding whether Pandeli was

entitled to a sentence more lenient than death. Additionally,

they tended to show that Pandeli did not commit the Iler murder

impulsively and that he might pose a future danger to others if

not sentenced to death.

¶56 The photographs were not so prejudicial as to render

Pandeli’s trial fundamentally unfair. Exhibits 218-219, 232-

234, and 246 do not show Humphreys’ body. And although the

photos of Humphreys’ body are somewhat gruesome, the jurors

likely were not unduly shocked in light of the detectives’ and

medical examiner’s testimony regarding Humphreys’ injuries and

the fact that the jurors had seen the photographs of Holly

Iler’s body during the aggravation phase. See McGill, 213 Ariz.

at 155, ¶ 32, 140 P.3d at 938. Moreover, the trial court

carefully examined the photographs and excluded photos that were

- 28 -

cumulative or unduly prejudicial. The trial court did not abuse

its discretion in admitting the Humphreys murder photographs.

e. Lavora Humphreys’ testimony

¶57 Pandeli also claims that the trial court abused its

discretion when it allowed Lavora Humphreys, Teresa Humphreys’

sister, to testify because her testimony was cumulative,

irrelevant, and improper “victim impact” testimony. Lavora

Humphreys testified about the clothing Teresa was wearing the

last time Lavora saw her, that Teresa never carried a knife,

that she did not know how to drive, and that she had no major

injuries before she was killed. Lavora also described the

position of Teresa’s body at the crime scene and stated that “we

didn’t want Teresa to leave and she left, and a couple

occurrences happened before she was walking out the door.”

¶58 With the exception of the statement that she “didn’t

want [Teresa] to leave,” none of Lavora’s testimony was “victim

impact” testimony. The single improper statement was

interrupted by defense counsel’s objection, and Lavora was not

allowed to describe the “occurrences” that she mentioned.

Lavora’s testimony was also not cumulative because the

information she provided was not previously given by Detectives

Gregory or Rea or by Dr. Keen. Her testimony was, however,

mostly irrelevant and did not provide any important facts of the

crime.

- 29 -

¶59 Although minimally probative, the trial court did not

abuse its discretion in admitting Lavora’s testimony because it

was also minimally prejudicial. See Cañez, 202 Ariz. at 154,

¶ 67, 42 P.3d at 585 (finding no abuse of discretion where

evidence was both minimally probative and minimally

prejudicial). We conclude that there was no error with regard

to Lavora Humphreys’ testimony.

f. “Battered Relationships” pamphlet

¶60 Pandeli also argues that the trial court abused its

discretion by allowing the State to admit a pamphlet entitled

“Battered Relationships.” This document, however, was neither

admitted into evidence nor discussed in front of the jury.

Consequently, no error occurred.

D. Severability of Death Penalty Statute

¶61 Pandeli asserts that the portion of the death penalty

statute struck down in Ring II is not severable from the rest of

the statute, rendering the whole statute unconstitutional.

Therefore, he argues, he should be sentenced to life in prison

in accordance with a provision of Arizona law that provides as

follows:

In the event the death penalty is held to be
unconstitutional on final appeal, a person convicted
of first degree murder or another offense punishable
by death who has been sentenced to die shall be
resentenced by the sentencing court to life
imprisonment without possibility of parole until the
person has served a minimum of twenty-five calendar

- 30 -

years.

1973 Ariz. Sess. Laws, ch. 138, § 10. We review constitutional

questions and questions of statutory interpretation de novo.

Roque, 213 Ariz. at 217, ¶ 89, 141 P.3d at 392.

¶62 In State v. Watson, this Court explained that

“[s]everability is a question of legislative intent.” 120 Ariz.

441, 445, 586 P.2d 1253, 1257 (1978). We noted that the test is

whether

the legislature would have enacted [the statute
without the unconstitutional portion], if it had known
of the invalidity, or, as otherwise stated, if the
valid or invalid parts are not so intimately connected
as to raise the presumption that the legislature would
not have enacted the one without the other.

Id. (quoting Millett v. Frohmiller, 66 Ariz. 339, 342-43, 188

P.2d 457, 460 (1948)). “[I]f part of an act is unconstitutional

and by eliminating the unconstitutional portion the balance of

the act is workable, only that part which is objectionable will

be eliminated and the balance left intact.” Id. at 452, 568

P.2d at 1264 (quoting State v. Coursey, 71 Ariz. 227, 236, 225

P.2d 713, 719 (1950)).

¶63 Applying these tests to the death penalty statute, we

conclude that the portion of the statute struck down in Ring II,

which allowed a judge to find aggravating circumstances, is not

so intimately connected to the rest of the statute as to raise

the presumption that the legislature would not have enacted the

- 31 -

statute without it. We doubt that the legislature enacted the

death penalty statute contingent upon judges serving as the

fact-finders for aggravating circumstances. Furthermore, the

statute, shorn of the unconstitutional provision, is still

workable.

¶64 We came to a similar conclusion in Watson. In that

case, the issue before the Court was whether the portion of the

death penalty statute limiting the type of mitigation evidence a

defendant could present was severable from the rest of the

statute. Id. at 445, 586 P.2d at 1257. After noting that

“[d]efendants in Arizona have always had the right to present

any evidence in mitigation at the time of sentencing,” we held

that “[w]e can presume that had the legislature been aware of

the unconstitutionality of the limitation on mitigating

circumstances, they [sic] would have enacted the remainder of

the statute without what is now the offending portion.” Id.

¶65 The right to trial by jury in criminal cases is

enshrined in two provisions of the Arizona Constitution,5 as well

as the Sixth Amendment of the United States Constitution. It is

reasonable to presume that had the legislature known that

5
Article 2, Section 23, states: “The right of trial by jury
shall remain inviolate.” Article 2, Section 24, states: “In
criminal prosecutions, the accused shall have the right to . . .
a speedy public trial by an impartial jury of the county in
which the offense is alleged to have been committed . . . .”

- 32 -

juries, not judges, had to find aggravating factors, it would

nonetheless have enacted the statute without the portion struck

down in Ring II. Moreover, the legislature’s decision to have

the death penalty is not inextricably intertwined with the

identity of the fact-finder for aggravating circumstances.

Because the portion of the death penalty statute struck down in

Ring II was severable, the unoffending portions remained

effective, and the provision requiring automatic conversion of a

death sentence to a life sentence does not apply. See 1973

Ariz. Sess. Laws, ch. 138, § 10.

¶66 Pandeli urges us to follow Woldt v. People, 64 P.3d

256 (Colo. 2003). In that case, decided after Ring II, the

Colorado Supreme Court held that Colorado’s death row inmates

should be resentenced to life imprisonment based on a Colorado

provision requiring those sentenced to death under an

unconstitutional statute to be resentenced to life in prison.

Id. at 267 (citing Colo. Rev. Stat. § 18-1.3-401(5) (2002)).

Because the Colorado Supreme Court did not engage in a

severability analysis, however, its decision is not helpful.

¶67 In sum, the provision of Arizona’s former death

penalty statute struck down in Ring II was severable from the

rest of the statute. Thus, Ring II did not render A.R.S. § 13-

703 unconstitutional.

- 33 -

E. Independent Review

¶68 Because the Iler murder occurred before August 1,

2002, we must independently review the aggravating and

mitigating circumstances and the propriety of the death

sentence. A.R.S. § 13-703.04(A) (Supp. 2006); see 2002 Ariz.

Sess. Laws, 5th Spec. Sess., ch. 1, § 7. In conducting our

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

the number, of aggravating and mitigating factors.” Roque, 213

Ariz. at 230, ¶ 166, 141 P.3d at 405 (quoting State v. Greene,

192 Ariz. 431, 443, ¶ 60, 967 P.2d 106, 118 (1998)).

1. Aggravating circumstances

¶69 We conclude, based on our independent review of the

record, that the State proved both aggravating factors found by

the jury beyond a reasonable doubt. The State proved the (F)(2)

factor by introducing Pandeli’s conviction for the second degree

murder of Teresa Humphreys, see A.R.S. § 13-703(H)(2) (Supp.

1993) (listing second degree murder as a serious offense), and

by establishing that he was the person convicted. The State

also proved the (F)(6) aggravating factor by demonstrating that

Pandeli mutilated Iler’s body and relished the murder by taking

souvenirs.

2. Mitigating circumstances

¶70 Pandeli presented evidence of five general types of

mitigation in the penalty phase. He first presented evidence of

- 34 -

his difficult childhood and family life, including physical and

sexual abuse. Pandeli’s father was physically abusive and left

the family when Pandeli was approximately two years old.

Following the divorce, Pandeli’s mother provided little

stability, structure, or supervision to Pandeli or his siblings.

¶71 In addition to general neglect and minor physical

abuse, Pandeli was extensively sexually abused throughout his

youth. He was first abused by a family friend when he was

approximately five or six years old. He was also repeatedly

sexually abused by at least four other men, including his uncle

and a convicted child molester. Dr. Cunningham, a defense

expert, characterized Pandeli’s sexual abuse as “extensive [and]

pervasive” and “as severe a case as I have ever seen.”

¶72 We find that Pandeli has proven by a preponderance of

the evidence that he had a dysfunctional childhood and was

emotionally neglected, physically abused, and extensively

sexually abused. But “a ‘difficult family background, in and of

itself, is not a mitigating circumstance’ sufficient to mandate

leniency in every capital case.” Hampton, 213 Ariz. at 185,

¶ 89, 140 P.3d at 968 (quoting State v. Wallace, 160 Ariz. 424,

427, 773 P.2d 983, 986 (1989)). Although “[w]e do not require

that a nexus between the mitigating factors and the crime be

established before we consider the mitigation evidence . . . the

failure to establish such a causal connection may be considered

- 35 -

in assessing the quality and strength of the mitigation

evidence.” State v. Newell, 212 Ariz. 389, 405, ¶ 82, 132 P.3d

833, 849, cert. denied, 127 S. Ct. 663 (2006). Pandeli’s

difficult childhood and extensive sexual abuse, while

compelling, are not causally connected to the crime. Moreover,

Pandeli murdered Iler when he was in his late twenties, reducing

the relevance of his traumatic childhood. See Hampton, 213

Ariz. at 185, ¶ 89, 140 P.3d at 968. We do not give this

mitigating evidence significant weight.

¶73 The second type of mitigation Pandeli presented was

that he began abusing drugs and alcohol when he was extremely

young, in conjunction with his sexual abuse. The substance

abuse continued throughout his childhood and into adulthood,

when he began using cocaine and acid. Pandeli proved by a

preponderance of the evidence that he was a drug and alcohol

abuser.

¶74 Pandeli attempted to tie his substance abuse to the

crime in two ways. First, he attempted to prove that he was

intoxicated on the night of the murder. Dr. Cunningham

testified that Pandeli told him that when the Iler murder took

place, Pandeli was intoxicated as a result of using alcohol and

methamphetamine. Pandeli’s friends who were with him on the

night of the murder, however, contradicted this assertion.

Pandeli failed to demonstrate by a preponderance of the evidence

- 36 -

that he was intoxicated on the night of the murder.

¶75 Dr. Cunningham and Dr. Walter, a neuropsychologist,

also attempted to tie Pandeli’s drug use to the murder by

arguing that it changed the way his brain functioned. Pandeli

did not, however, “provide[] any specific evidence that his

brain [functioning] was actually altered by his past alcohol and

drug abuse so as to cause or contribute to his participation in

the murder[].” State v. Ellison, 213 Ariz. 116, 145, ¶ 139, 140

P.3d 899, 928, cert. denied, 127 S. Ct. 506 (2006). Because he

failed to tie his alcohol and drug abuse to the crime or to his

mental functioning on the night of the murder, we give this

mitigating evidence minimal weight. See Newell, 212 Ariz. at

405, ¶ 82, 132 P.3d at 849.

¶76 The third type of mitigating evidence Pandeli

presented was of his mental impairment and learning

disabilities. Pandeli exhibited symptoms of a severe form of

Attention Deficit Hyperactivity Disorder (“ADHD”) when he was

young and it was suggested that there was a neurological basis

for his impairment. Pandeli participated in special education

classes from second grade until he quit school at age sixteen.

¶77 In addition to his learning disabilities and

neurological impairment, Pandeli also suffered from depression.

He first attempted to commit suicide in the third grade and

attempted to commit suicide twice more as an adult. Pandeli

- 37 -

also had a family history of learning disabilities and

depression.

¶78 The experts who testified in the penalty phase all

agreed that Pandeli suffered some mental impairment. Dr. Walter

diagnosed Pandeli as having “cognitive disorder not otherwise

specified” due to impairment in his frontal lobe and temporal

lobe, and testified that less than five percent of the

population is as impaired as Pandeli. Dr. Cunningham testified

that Pandeli’s impairments and experiences affected the choices

available to him. Dr. Bayless, the State’s expert, testified

that Pandeli suffered from depression and diagnosed him as

having depressive disorder not otherwise specified, learning

disorder not otherwise specified, and antisocial personality

disorder. Pandeli established by a preponderance of the

evidence that he suffered from some mental impairment.

¶79 Pandeli attempted to tie his mental impairment to the

crime. Dr. Walter testified that frontal lobe impairment makes

a person act impulsively, can cause violence, and could have led

to the murder of Iler. Similarly, Dr. Cunningham testified that

the murders of both Humphreys and Iler were disorganized,

demonstrating that Pandeli’s impairment may have played a role

in them. Dr. Walter, however, conceded that Pandeli was capable

of learning from past mistakes, and Dr. Cunningham admitted that

Pandeli had the ability to make choices and conform to the law.

- 38 -

Dr. Bayless testified that Pandeli knew the difference between

right and wrong.

¶80 Moreover, the State introduced evidence demonstrating

that Pandeli was not significantly hampered by his mental

impairment. Pandeli’s videotaped confession shows him

responding very carefully to the detectives’ questions and lying

to avoid responsibility. Pandeli does not have mental

retardation. His IQ of approximately 90 is average to low

average and two defense witnesses characterized him as “street

smart.”

¶81 Pandeli has not established a nexus between his

impairment and the crime, nor has he proved that he was impaired

to such a degree as to interfere with his ability to know the

difference between right and wrong or conform his conduct to the

law. We consider mental impairment mitigation in proportion “to

a defendant’s ability to conform or appreciate the wrongfulness

of his conduct.” State v. Trostle, 191 Ariz. 4, 21, 951 P.2d

869, 886 (1997); see also Johnson, 212 Ariz. at 440, ¶ 65, 133

P.3d at 750. Because Pandeli knew right from wrong, was not

significantly impaired, and did not demonstrate a causal nexus

between his mental impairments and the murder, we afford his

mental health mitigation minimal weight.

¶82 The fourth type of mitigation Pandeli presented was

that he behaved well in prison. He proved by a preponderance of

- 39 -

the evidence that he behaved well in prison and posed little

risk of future dangerousness while incarcerated. We give this

mitigating circumstance little weight, however, because

prisoners are expected to behave and adapt to prison life.

State v. Harrod, 200 Ariz. 309, 319, ¶ 53, 26 P.3d 492, 502

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

¶83 Finally, Pandeli presented evidence that he could

develop and maintain positive relationships. While he proved

this mitigating circumstance by a preponderance of the evidence,

this circumstance carries little weight. E.g., Cañez, 202 Ariz.

at 164, ¶ 120, 42 P.3d at 595.

3. Propriety of death sentence

¶84 The mitigation evidence presented by Pandeli is not

insubstantial. His history of neglect, sexual abuse, substance

abuse, and mental health problems demonstrates that he was an

extremely damaged individual. The aggravating circumstances

proved by the State, however, are also substantial, especially

the fact that Pandeli had previously been convicted of another

murder. Cf. Hampton, 213 Ariz. at 185, ¶ 90, 140 P.3d at 968

(giving “extraordinary weight” to (F)(8) multiple murders

aggravating circumstance). In light of the prior murder of

Humphreys and the brutality of the Iler murder, the mitigation

evidence presented by Pandeli is not sufficiently substantial to

call for leniency.

- 40 -

III. CONCLUSION

¶85 For the foregoing reasons, we affirm Pandeli’s death

sentence.

_______________________________________
Rebecca White Berch, Vice Chief Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
W. Scott Bales, Justice

_______________________________________
Patricia K. Norris, Judge*

*Justice Andrew D. Hurwitz recused himself from this case.
Pursuant to Article 6, Section 3, of the Arizona Constitution,
the Honorable Patricia K. Norris, Judge of the Arizona Court
Appeals, Division One, was designated to sit in this matter.

- 41 -

Appendix

Pandeli raises the following seven challenges to the
constitutionality of Arizona’s death penalty scheme to avoid
preclusion:

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

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

3. Arizona’s statutory scheme for considering mitigation
evidence is unconstitutional because it limits full
consideration of that evidence. We rejected this argument
in State v. Mata, 125 Ariz. 233, 241-42, 609 P.2d 48, 56-57
(1980).

4. The State’s discretion to seek the death penalty
unconstitutionally lacks standards. We rejected this
argument in State v. Sansing, 200 Ariz. 347, 361, ¶ 46, 26
P.3d 1118, 1132 (2001), vacated on other grounds, 536 U.S.
954 (2002).

5. Arizona’s death penalty provides no meaningful distinction
between capital and non-capital cases. We rejected this
argument in State v. Salazar, 173 Ariz. 399, 411, 844 P.2d
566, 578 (1992).

6. Arizona’s death penalty statute is unconstitutional because
it requires the imposition of death whenever at least one
aggravating circumstance and no mitigating circumstances
exist. We rejected this argument in State v. Miles, 186
Ariz. 10, 19, 918 P.2d 1028, 1037 (1996).

7. Arizona’s death penalty is unconstitutional because it
fails to require the sentencer to consider the cumulative
nature 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. We rejected this argument in
State v. Van Adams, 194 Ariz. 408, 423, 984 P.2d 16, 31
(1999).

- 42 -