State v. Lynch

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-06-0220-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2001-092032
SHAWN PATRICK LYNCH, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable David M. Talamante, Judge

CONVICTIONS AFFIRMED; REMANDED IN PART
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Deborah A. Bigbee, Assistant Attorney General
Attorneys for State of Arizona

DAVID GOLDBERG, ATTORNEY AT LAW Fort Collins, CO
By David Goldberg
Attorney for Shawn Patrick Lynch
________________________________________________________________

H U R W I T Z, Vice Chief Justice

¶1 Shawn Patrick Lynch was convicted of armed robbery,

burglary, kidnapping, and first degree murder. He was sentenced

to death for the murder and to lengthy prison sentences for the

other crimes. An automatic notice of appeal was filed under

Arizona Rules of Criminal Procedure 26.15 and 31.2. This Court

has jurisdiction under Article 6, Section 5(3) of the Arizona
Constitution and Arizona Revised Statutes (“A.R.S.”) §§ 13-755,

13-4031, and 13-4033 (2010).1

I. FACTS AND PROCEDURAL HISTORY2

¶2 James Panzarella lived in a guesthouse behind his

parents’ Scottsdale home. On March 24, 2001, James left his car

at his brother’s home and took a cab to a Scottsdale bar. He

was seen at the bar with two men later identified as Mike

Sehwani and Shawn Patrick Lynch. James, Sehwani, and Lynch went

to James’s guesthouse early in the morning of March 25.

¶3 At around 5:00 a.m., an escort service received a call

from Sehwani and dispatched an escort and bodyguard to the

guesthouse. The bodyguard collected a $175 fee from James.

¶4 The escort and Sehwani went into a bedroom, while

James and Lynch talked with the bodyguard in the kitchen.

Sehwani wrote two checks from James’s checkbook to the escort

totaling $300. The bodyguard and escort left around 6:00 a.m.

¶5 About 7:15 a.m. Lynch and Sehwani went to a

supermarket, where Sehwani bought cigarettes with James’s

American Express card. Ten minutes later, the card was reported

as lost and invalidated. Sehwani nonetheless shortly thereafter

1
This opinion cites the current version of statutes unless
there has been a material change in the relevant law since the
offenses.
2
We view the facts in the light most favorable to sustaining
the guilty verdicts. State v. Garza, 216 Ariz. 56, 61 n.1, 163
P.3d 1006, 1011 n.1 (2007).

2 
used the card to buy gas at a convenience store. Lynch then

entered the store to get matches. Later that morning, Sehwani,

accompanied by Lynch, unsuccessfully attempted to use the card

at a department store.

¶6 Around noon, Sehwani used James’s Bank One credit card

at a restaurant. This credit card was also used twice that day

at a convenience store. That afternoon, Lynch and Sehwani

checked into a motel. Lynch registered in his name and paid

with cash; Sehwani presented James’s credit card to rent movies.

That evening, Lynch and Sehwani checked into another motel,

again registering in Lynch’s name and paying cash.

¶7 On the afternoon of March 25, James was found bound to

a metal chair in the guesthouse kitchen. His throat was slit

and blood was pooled on the tile floor.

¶8 The guesthouse was in disarray. In a bedroom, police

found a large hunting knife. In the kitchen, they found a knife

block with a missing knife. American Express receipts from the

March 25 supermarket and convenience store purchases were also

found in the guesthouse.

¶9 Early in the morning of March 26, James’s Bank One

debit card was used to withdraw cash from an ATM. A later

attempted withdrawal was unsuccessful. The debit card was also

used later that morning to buy clothing and Everlast shoes, and

at least twice otherwise that same day.

3 
¶10 Police arrested Lynch and Sehwani that afternoon as

they entered a truck in the motel parking lot. Sehwani wore

white Everlast sneakers and had James’s credit cards and checks

in his wallet. Matches from the convenience store and the keys

to James’s car were in the truck. A black sweater with James’s

blood on it was behind the seats. A .45 caliber pistol

belonging to James was later found in the motel room. Blood on

Lynch’s shoes tested positive for James’s DNA.3

¶11 Lynch and Sehwani were charged with first degree

murder (both felony and premeditated), armed robbery, burglary,

and kidnapping. Lynch was tried first. The jury found him

guilty on all counts, but did not reach a unanimous verdict on

premeditated murder.

¶12 In the aggravation phase of the trial, the jury could

not agree on whether the murder was committed in expectation of

pecuniary gain. See A.R.S. § 13-751(F)(5) (2010). The jury

made separate findings that the murder was both especially

heinous and cruel, but could not decide whether the murder was

also especially depraved. See A.R.S. § 13-751(F)(6). In the

penalty phase, the jury could not reach a unanimous verdict.

¶13 A second jury was impaneled. That jury found both the

(F)(5) aggravator and the depravity prong of the (F)(6)

3
The murder weapon could not be positively identified. The
handle of the hunting knife found in the guesthouse bedroom
contained Sehwani’s DNA, but there was no blood on the blade.
4 
aggravator. The second jury then unanimously determined that

Lynch should be sentenced to death for the murder.4

II. ISSUES ON APPEAL

A. GUILT PHASE

1. Competence to Stand Trial

¶14 Before trial,  the court ordered a Rule 11 examination

after Lynch refused to meet with his lawyers. See Ariz. R.

Crim. P. 11. Based on that evaluation, the court found Lynch

incompetent to stand trial and ordered restoration services.

Five months later, after considering a psychologist’s report

that was stipulated into evidence, the court found Lynch

restored to competency.

¶15 Six months later, defense counsel requested a second

Rule 11 evaluation, alleging that Lynch suffered from delusions

and therefore could not assist in his defense. He offered no

other support for this motion, which the court denied.

¶16 Lynch argues that the trial court erred in finding

that he had been restored to competency and refusing to order a

second Rule 11 examination. We review these rulings for abuse

of discretion. State v. Glassel, 211 Ariz. 33, 44 ¶ 27, 116

P.3d 1193, 1204 (2005); State v. Romero, 130 Ariz. 142, 147, 634

P.2d 954, 959 (1981).

4
Sehwani later pleaded guilty to first degree murder and
theft. He received consecutive sentences of natural life and
one year, respectively.
5 
¶17 The psychologist’s report amply supports the trial

court’s finding that Lynch had been restored to competency. The

psychologist concluded that Lynch understood the nature of the

proceedings against him and could assist in his defense.

Although acknowledging that Lynch suffered from various

delusions and idiosyncratic thought processes, the psychologist

noted that these “errant thoughts . . . do not appear to

significantly affect his ability to deal with relevant issues

pursuant to his alleged crime and pursuant to a possible trial.”

The expert concluded that Lynch “can cooperate with his

attorney, should he choose to do so.”

¶18 Nor did the court err in refusing to order a second

competency hearing. Lynch proffered no new information to call

into question the court’s previous finding of competency. The

earlier expert report had noted Lynch’s delusions but concluded

that they did not render him incompetent to assist in his

defense. In the absence of any new evidence, the court did not

abuse its discretion in continuing to rely on that report. See

State v. Kuhs, 223 Ariz. 376, 380 ¶ 16, 224 P.3d 192,

196 (2010).

2. Description of Capital Case Process to First Jury

¶19 Lynch argues that during voir dire of the first jury,

the trial court “gave no details regarding what an aggravating

or mitigating circumstance might entail or how a juror would

6 
factor such information into the penalty decision.” He

maintains that the State was thus able to pack the first jury

with pro-death penalty jurors. No objection was raised below,

so we review only for fundamental error. Id. at 386 ¶ 52, 224

P.3d at 202.

¶20 Because the first jury did not return a death

sentence, Lynch was not prejudiced by the trial court’s

description of the capital sentencing process. But in any

event, we find no error.

¶21 The superior court properly told the panel that “[n]ot

every murder contains aggravating factors and only those that

are found to have aggravating factors are eligible for

consideration for the death penalty.” See A.R.S. §§ 13-752(D)

(2010), 13-751(E). The court also correctly defined a

“mitigating circumstance” as “any factor relevant in determining

whether to impose a sentence less than death, including any

aspect of the defendant’s character, propensities, record or

circumstances of the offense.” See A.R.S. § 13-751(G). The

court accurately explained that each juror should consider any

mitigating factors found by that juror in determining whether a

death or life sentence was appropriate. See A.R.S. § 13-751(C).

3. Refusal to Conduct Sequestered Voir Dire

¶22 Lynch maintains that the trial court erred by denying

sequestered voir dire of the first jury. We review for abuse of

7 
discretion. State v. Bible, 175 Ariz. 549, 570, 858 P.2d 1152,

1173 (1993).

¶23 Lynch does not claim that sequestered voir dire was

necessary because of “unusually sensitive subjects” or extensive

pretrial publicity. See id. (noting that in camera voir dire is

“most useful” in such cases). Rather, Lynch argues that

separate voir dire is required in every capital case. We

expressly rejected that proposition in Bible. Id.

¶24 Lynch also fails to identify any “contaminating”

statement by a prospective juror that “might color the entire

jury’s outlook.” Ariz. R. Crim. P. 18.5(d), cmt.; see Bible,

175 Ariz. at 570, 858 P.2d at 1173 (noting absence of such a

statement in finding no error in group voir dire). On this

record, the trial court did not abuse its discretion in

declining to order sequestered voir dire.

4. Striking Juror 119 for Cause

¶25 Lynch argues the trial court erred by striking Juror

119 from the first jury for cause over his objection. “Because

a trial judge has the best opportunity to assess whether a juror

can be fair and impartial, appellate courts review such

decisions only for abuse of discretion.” State v. Hickman, 205

Ariz. 192, 201 ¶ 39, 68 P.3d 418, 427 (2003); see also Uttecht

v. Brown, 551 U.S. 1, 22 (2007) (requiring appellate “deference

8 
to the trial court, which is in a superior position to determine

the demeanor and qualifications of a potential juror”).

¶26 Jurors cannot be excluded “simply because they voiced

general objections to the death penalty or expressed

conscientious or religious scruples against its infliction.”

Witherspoon v. Illinois, 391 U.S. 510, 522 (1968); accord State

v. Anderson (Anderson I), 197 Ariz. 314, 324 ¶ 23, 4 P.3d 369,

379 (2000). A juror may properly be excused, however, if his

views would “prevent or substantially impair the performance of

his duties as a juror.” Wainwright v. Witt, 469 U.S. 412, 424

(1985) (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)).

“[J]urors who state unequivocally that they could never impose

the death penalty regardless of the facts of the particular

case” are properly excluded. Anderson I, 197 Ariz. at 318 ¶ 7,

4 P.3d at 373.

¶27 Juror 119 stated several times during voir dire that

she was not certain she could sentence someone to death. During

questioning by defense counsel, however, she stated, “[w]hen you

were asking [another juror] the questions, I thought to myself

if the circumstances – if I would hear that it were a

particularly brutal or heinous murder, yes. I might be able to

vote for the death penalty in that case.”

¶28 Lynch contends that this statement demonstrated that

Juror 119 could fairly consider the death penalty. However,

9 
after making this statement, Juror 119 said that “[i]t would be

very difficult to make that decision to take someone’s life. It

would be very, very difficult.” The trial judge excused the

juror only after considering the entirety of her answers and

demeanor. Given Juror 119’s statements and the deference we owe

to the trial court, we cannot conclude that the judge abused his

discretion.

5. Admission of Crime Scene Photographs

¶29 During the guilt phase, the trial court admitted six

crime scene photographs over Lynch’s objection. We review

rulings admitting evidence in general, and photographs in

particular, for abuse of discretion. State v. McGill, 213 Ariz.

147, 154 ¶ 30, 140 P.3d 930, 937 (2006).

¶30 “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, and

(3) the probative value versus potential to cause unfair

prejudice.” State v. Cruz, 218 Ariz. 149, 168-69 ¶ 125, 181

P.3d 196, 215-16 (2008) (internal quotation marks omitted).

Although photographs may not be introduced solely to inflame the

jury, State v. Anderson (Anderson II), 210 Ariz. 327, 340 ¶ 40,

111 P.3d 369, 382 (2005), “[t]here is nothing sanitary about

murder,” and we do not “require[] a trial judge to make it so,”

10 
State v. Rienhardt, 190 Ariz. 579, 584, 951 P.2d 454, 459

(1997).

¶31 The photographs depict blood spatter and blood pools

in relation to the victim’s body and thus corroborate the

opinion of the State’s expert that the person who slit James’s

throat stood behind the chair. Although the photographs are

disturbing, none is overly gruesome. The probative value of the

photographs is not substantially outweighed by any prejudicial

effect, see Ariz. R. Evid. 403, and the trial court did not

abuse its discretion in admitting them.

6. Refusal to Give an Instruction on Second Degree Murder

¶32 Lynch requested an instruction on second degree

murder. The trial court denied the request because it found no

evidence that the murder was not premeditated.

¶33 A trial court must give an instruction on lesser-

included offenses when warranted to reduce the risk that a jury,

faced only with a choice between convicting for a capital crime

and setting a violent criminal free, might be unduly pressured

to opt for the conviction on the capital offense. Beck v.

Alabama, 447 U.S. 625, 637 (1980). However, Beck “does not

require a trial court to instruct on a lesser offense that is

unsupported by the evidence.” State v. Bearup, 221 Ariz. 163,

170 ¶ 29, 211 P.3d 684, 691 (2009) (quoting State v. Landrigan,

176 Ariz. 1, 6, 859 P.2d 111, 116 (1993)).

11 
¶34 In this case, the jury agreed only that Lynch

committed felony murder; it did not reach a unanimous verdict on

premeditated murder. Second degree murder is not a lesser

included offense of felony murder. State v. Jackson, 186 Ariz.

20, 27, 918 P.2d 1038, 1045 (1996). Therefore, even if we

assume that the record warranted such an instruction, Lynch

suffered no prejudice from the trial court’s refusal to give it.

B. AGGRAVATION PHASE

1. Exclusion of Jurors 25 and 49 (Second Jury) For Cause

¶35 During voir dire of the second jury, Juror 25 stated

that she was Catholic and did not believe in the death penalty,

but would “go against” those views in a case involving children.

When informed that this was not such a case, she stated that she

“could not do the death penalty because of my beliefs.”

¶36 The court excluded Juror 25 for cause over Lynch’s

objection. Citing State v. Johnson, 212 Ariz. 425, 434-35 ¶¶

29-35, 133 P.3d 735, 744-45 (2006), Lynch argues that the trial

court erred in telling the juror about the specific facts of

this case. Lynch did not raise this argument below, so

fundamental error review applies. Kuhs, 223 Ariz. at 386 ¶ 52,

224 P.3d at 202.

¶37 Contrary to Lynch’s argument, Johnson does not

prohibit telling jurors about the particular facts of the case

during voir dire. Rather, Johnson only held that the trial

12 
court may refuse to permit parties to ask jurors to speculate on

or commit to how they would assess specific mitigation. 212

Ariz. at 435 ¶ 33, 133 P.3d at 745; see also State v. Smith, 215

Ariz. 221, 231 ¶ 42, 159 P.3d 531, 541 (2007) (“[T]he same is

true of voir dire focused on the assessment of specific

aggravators.”).

¶38 The trial judge’s statement to Juror 25 that children

were not involved in the case was appropriate to determine

whether the juror’s views would “prevent or substantially impair

the performance of [her] duties.” Witt, 469 U.S. at 424

(quoting Adams, 448 U.S. at 45). And, given Juror 25’s

responses, the judge reasonably concluded that her religious

beliefs would substantially impair her ability to impose death.

¶39 We also find no error in excluding Juror 49. In her

questionnaire, Juror 49 stated, “I am ADAMANTLY anti death

penalty and absolutely could not sit on a jury that would

possibly be responsible for killing anyone, even a guilty

person.” She said that she could not vote for death “under any

circumstances,” that she did not know whether she would be able

to follow the law, and that she likened the death penalty to

“murder.”

2. Failure to Clarify Theory of First Degree Murder

¶40 Lynch requested that prospective jurors for the second

aggravation phase be told that he had not been convicted of

13 
premeditated murder, but only felony murder. The trial court

instead initially informed the panel that Lynch had been

convicted of “first degree murder.” Citing Morgan v. Illinois,

504 U.S. 719 (1992), Lynch argues the court erred by not

instructing the second jury that the first panel had unanimously

found only felony murder.

¶41 Morgan held that a defendant must be allowed to ask

prospective jurors if they would automatically vote for death

after a guilty verdict. 504 U.S. at 729. Lynch was not

prevented from so inquiring. Rather, he unsuccessfully urged

the trial court to describe the theory underlying the murder

conviction. In any event, the second jury was told after

selection that Lynch had been convicted of felony murder. Thus,

no sitting juror was under any misapprehension that Lynch had

been convicted of premeditated murder.

3. Reckless Indifference Instruction

¶42 The first jury found that Lynch was a major

participant in the crime and acted with reckless indifference to

the grave risk of death. See Tison v. Arizona, 481 U.S. 137,

157-58 (1987) (requiring such findings for imposition of death

sentence in felony murder cases). Lynch contends the trial

court improperly instructed the jury as to what constitutes

reckless indifference.

14 
¶43 Tison defined reckless indifference as “knowingly

engaging in criminal activities known to carry a grave risk of

death.” 481 U.S. at 157. The standard is subjective – whether

the defendant “subjectively appreciated that [his] acts were

likely to result in the taking of innocent life.” Id. at 152.

¶44 Lynch requested the following “reckless indifference”

instruction:

In order to find that Shawn Lynch acted with reckless
indifference to human life, it must be proven that he
subjectively knew his acts were likely to result in
the taking of innocent life, yet nonetheless engaged
in criminal activities known to carry a high
probability of death.

The court instead instructed the jury that “[a] defendant acts

with reckless indifference when the defendant knowingly engages

in criminal activities that he is aware will likely create a

grave risk of death to others.” Lynch acknowledges that the

court’s instruction correctly required subjective awareness, but

argues that it was “not as clear” as his proposed instruction.

¶45 The trial court’s reckless indifference instruction

clearly and correctly stated the law. Nothing in the

instruction even remotely suggests an objective or “reasonable

person” standard.

4. Sufficiency of the Evidence on the Tison Findings

¶46 Lynch contends that the jury’s Tison findings were not

supported by the evidence. We determine “whether substantial

15 
evidence supports the jury’s finding, viewing the facts in the

light most favorable to sustaining the jury verdict.” State v.

Roque, 213 Ariz. 193, 218 ¶ 93, 141 P.3d 368, 393 (2006).5

Substantial evidence is “proof that reasonable persons could

accept as adequate and sufficient to support a conclusion of

defendant’s guilt beyond a reasonable doubt.” Id. (internal

quotations omitted).

¶47 Substantial evidence supported the jury’s finding that

Lynch was a major participant in the predicate felonies. The

American Express receipts found at the guesthouse show that

Lynch and Sehwani returned to the guesthouse after discovering

that James had deactivated the American Express card. James’s

car keys, credit cards, checks, sweater, and pistol were found

in the truck that Lynch was entering when arrested. See State

v. Lacy, 187 Ariz. 340, 351, 929 P.2d 1288, 1299 (1996) (finding

substantial participation in predicate burglary when defendant

stole property).

¶48 Reasonable jurors could also conclude from the

evidence that Lynch and Sehwani acted in concert to bind James

to the chair and that Lynch was thus a major participant in the

kidnapping. Lynch probably helped tie James to the chair

5
Tison findings are not aggravating circumstances and
therefore not subject to independent review under A.R.S. § 13-
755(A). State v. Garcia, 224 Ariz. 1, 20 ¶ 88 n.3, 226 P.3d
370, 389 n.3 (2010).
16 
because Sehwani likely could not have done it alone. See State

v. Robinson, 165 Ariz. 51, 62, 796 P.2d 853, 864 (1990) (finding

that actions of defendant who “was at least present” when

victims’ hands and feet were bound and when the murder occurred

met Tison standard).

¶49 Substantial evidence also supports the jury’s finding

that Lynch acted with reckless indifference toward James’s life.

See State v. Ellison, 213 Ariz. 116, 135 ¶ 73, 140 P.3d 899, 918

(2006) (finding reckless indifference when defendant bound

victims and held pillow over one victim’s face). A State expert

opined that James’s throat was slit by someone standing behind

the chair and that the blood on Lynch’s shoes was consistent

with his having been in that position.6

5. “Retrial” of Tison Predicates

¶50 Lynch contends that the second jury improperly

“retried” the Tison predicates. The trial court, however, never

submitted any Tison issues to the second jury. That jury

appropriately heard evidence about Lynch’s participation in the

crime, because it was entitled to consider the circumstances of

the offense in evaluating mitigation. See A.R.S. § 13-751(G);

State v. Garza, 216 Ariz. 56, 68 ¶ 57, 163 P.3d 1006,

1018 (2007).

6
Another expert testified that Lynch’s left shoe was a
“highly probable” match for footwear impressions in the bathroom
and living room of the guesthouse.
17 
 6. Admission of Autopsy Photos

¶51 During the first aggravation phase, the court admitted

three autopsy photographs over Lynch’s objections. During the

second aggravation phase, the court admitted two of those

photographs over Lynch’s objections. We review for abuse of

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

¶52 The photographs are close-ups of the victim’s neck

wound. One depicts a cut jugular vein. Another shows a

completely severed carotid artery. The third, admitted only in

the first penalty phase, depicts the victim’s torso covered in

dried blood and his head tilted back, exposing a severed larynx.

¶53 The photographs were properly admitted to illustrate

the testimony of the medical examiner. Moreover, before seeing

the images, both juries heard expert testimony about the neck

injuries without objection. See State v. Pandeli, 215 Ariz.

514, 529 ¶ 56, 161 P.3d 557, 572 (2007) (finding jurors were

likely not shocked by photographs in light of medical examiner’s

prior testimony). Although these photographs were undoubtedly

disturbing, the superior court did not abuse its discretion in

admitting them. See Anderson II, 210 Ariz. at 340 ¶¶ 41-42, 111

P.3d at 382 (upholding admission of graphic photographs of

murder victim).

18 
 7. Prosecutorial Misconduct

¶54 Lynch alleges a litany of prosecutorial misconduct,

arguing that either the individual instances or the cumulative

effect of the purported misconduct requires a retrial of the

aggravation phases. “Because the trial court is in the best

position to determine the effect of a prosecutor’s comments on a

jury, we will not disturb a trial court’s denial of a mistrial

for prosecutorial misconduct in the absence of a clear abuse of

discretion.” State v. Newell, 212 Ariz. 389, 402 ¶ 61, 132 P.3d

833, 846 (2006). “Reversal on the basis of prosecutorial

misconduct requires that the conduct be so pronounced and

persistent that it permeates the entire atmosphere of the

trial.” State v. Hughes, 193 Ariz. 72, 79 ¶ 26, 969 P.2d 1184,

1191 (1998) (citations and internal quotation marks omitted);

see also Anderson II, 210 Ariz. at 340-41 ¶ 45, 111 P.3d at 382-

83 (requiring a showing that the misconduct likely denied the

defendant a fair trial).

a. References to Lynch as the “Murderer”

¶55 In his opening statement in the second aggravation

phase, the prosecutor said “the person sitting here in court has

already been convicted of first degree murder. Shawn Patrick

Lynch is a murderer.” He further stated, “[James] was murdered,

and the person who murdered him is sitting right here.” Lynch

moved for a mistrial.

19 
¶56 The court denied the motion, noting that “Mr. Lynch

has been convicted of first degree murder” and that referring to

him “as a murderer is an accurate statement.” In any event, the

court later informed the second jury that Lynch had been

convicted of felony murder, thus negating any suggestion that

the first jury had found Lynch to be the actual killer.

Therefore, the trial court did not abuse its discretion in

denying the mistrial motion.

b. Testimony about Hunting Knife

¶57 In his second aggravation phase opening statement, the

prosecutor said a witness would testify that the hunting knife

found at the murder scene was “not consistent with that being

the murder weapon.” Lynch moved for a mistrial, arguing that

the expert in question would not rule out the knife as the

murder weapon but rather would only testify that no DNA was

detected on the blade. The trial court denied the mistrial

motion without prejudice to renewal if the expert testimony did

not support the prosecutor’s statement. The court then

instructed the jury that opening statements are not evidence.

¶58 Lynch did not renew his mistrial motion after the

expert’s testimony. Even assuming that this omission did not

waive any argument of misconduct, we find no impropriety in the

prosecutor’s statement. The expert testified that because he

could find neither blood nor DNA on the blade, he could not

20 
conclude that it was the murder weapon. Although not

conclusive, that testimony supported the prosecutor’s assertion.

c. Opening Statements

¶59 Lynch argues the prosecutor misstated the evidence in

his opening statements in the guilt and second aggravation

phases.

¶60 In the guilt phase, the prosecutor stated that Lynch

and Sehwani “rode around in a truck that Mr. Sehwani – that the

defendant drove.” Because Lynch was entering the passenger side

of a truck when he was arrested, he contends this statement was

false. The identity of the truck’s driver, however, was

immaterial and, given that Lynch was riding in the truck, we can

perceive no prejudice from any technical misstatement.

¶61 The prosecutor also asserted that Lynch and Sehwani

“render[ed James] helpless” and that “there are some bruises as

[James] attempted to get up.” The evidence supported this

statement. The medical examiner testified that James was tied

to a chair and that a bruise on his shoulder may have been

caused by “bang[ing] against the surface” of the chair.

¶62 The prosecutor later stated that “[t]here are keys,

car keys to a Lexus. [James] owns a Lexus and they also took

that.” Although not a model of clarity, this statement can be

construed as meaning that Lynch and Sehwani took the car keys,

not the car. Moreover, given the trial testimony that James had

21 
left his car at his brother’s house on March 24 and never

retrieved it, the jury could not have understood the statement

to mean that Lynch and Sehwani stole the car.

¶63 Lynch argues that the prosecutor also suggested that

Lynch arranged the escort service transaction by stating that

“the financial terms are taking place at that table . . . and

they take place between the [bodyguard]; James . . . and the

individual, the defendant, that’s just sitting there.” This

statement is reasonably understood, however, as meaning that the

bodyguard and James participated in the negotiations, while

Lynch was “just sitting there.” This statement is supported by

the testimony.

¶64 In the second aggravation phase, the prosecutor

asserted that the bodyguard would testify that Lynch was “acting

as if he owned the place . . . kind of like he was in charge”

and that a knife was on the kitchen table. Lynch did not

object. Moments later, the prosecutor stated that Lynch was

“kind of being the boss of things.” The evidence at least

peripherally supported the prosecutor’s statements. The

bodyguard testified that a knife was on the table, Lynch did

most of the talking, and he offered the bodyguard a beer.

d. Cumulative Misconduct

¶65 Lynch contends that even if each instance of alleged

misconduct is individually harmless, reversal is warranted for

22 
cumulative misconduct. Reversal is required “if the cumulative

effect of the incidents shows that the prosecutor intentionally

engaged in improper conduct and did so with indifference, if not

a specific intent, to prejudice the defendant.” Roque, 213

Ariz. at 228 ¶ 155, 141 P.3d at 403 (internal quotation marks

and citations omitted). However, “[a]bsent any finding of

misconduct, there can be no cumulative effect of misconduct

sufficient to permeate the entire atmosphere of the trial with

unfairness.” State v. Bocharski, 218 Ariz. 476, 492 ¶ 75, 189

P.3d 403, 419 (2008). Even assuming that one of the cited

incidents technically involved a misstatement, we find no

misconduct and nothing approaching pervasive unfairness in this

case.

8. (F)(5) Aggravator

a. Retrial of the (F)(5) Aggravator

¶66 Lynch argues that the trial court improperly permitted

the second jury to reconsider the pecuniary gain aggravator. We

find neither statutory nor constitutional error.

¶67 The governing statutes, A.R.S. §§ 13-752(F) and (K),

permit resubmission of the pecuniary gain aggravator to the

second jury. Section 13-752(F) mandates that the trial proceed

directly to the penalty phase if the first jury finds at least

one aggravating circumstance, even if that jury cannot reach a

unanimous decision on another aggravator. If the jury cannot

23 
reach a unanimous decision in the penalty phase, the court must

impanel a new jury. A.R.S. § 13-752(K). The second jury is

only precluded from retrying “the defendant's guilt or the issue

regarding any of the aggravating circumstances that the first

jury found by unanimous verdict to be proved or not proved.”

Id. (emphasis added). The statute thus contemplates submission

to the second jury of those aggravating circumstances that were

not unanimously found by the original jury.

¶68 Contrary to Lynch’s arguments, such a procedure did

not subject him to double jeopardy. Failure to unanimously find

an aggravator is not an acquittal for Fifth Amendment purposes,

Poland v. Arizona, 476 U.S. 147, 155-56 (1986), nor does it

collaterally estop a new trier of fact from considering the

issue, Yeager v. United States, 129 S. Ct. 2360, 2368 (2009).

b. Sufficiency of Evidence on the (F)(5) Aggravator

¶69 Lynch contends that the evidence was insufficient to

support the second jury’s finding that “[t]he defendant

committed the offense as consideration for the receipt, or in

expectation of the receipt, of anything of pecuniary value.”

A.R.S. § 13-751(F)(5). Because the murder occurred before

August 1, 2002, we independently review the jury’s aggravation

findings. A.R.S. § 13-755(A); Anderson II, 210 Ariz. at 354

¶119 & n.21, 111 P.3d at 396 & n.21.

24 
¶70 A felony murder conviction predicated on robbery or

burglary does not automatically establish the (F)(5) aggravator.

Anderson II, 210 Ariz. at 351 ¶ 103, 111 P.3d at 393. Rather,

the murder must itself be “prompted by the desire for pecuniary

gain.” Id. at 351 ¶ 105, 111 P.3d at 393.

¶71 The evidence here establishes the (F)(5) aggravator

beyond a reasonable doubt. After the murder, James’s gun and

magazine clip were found in a motel room used by Lynch. James’s

Bank One debit and credit cards were repeatedly used after the

murder, among other things to secure charges at a motel room

registered in Lynch’s name. Property belonging to James was

found in the passenger compartment of the truck that Lynch was

entering at the time of his arrest.

¶72 The evidence also strongly supports the conclusion

that the killers returned to the guesthouse intending to steal

further from James and that he was murdered to avoid detection

of both the initial theft of the American Express card and the

subsequent robbery and burglary. See Ellison, 213 Ariz. at 143

¶ 125, 140 P.3d at 926 (finding (F)(5) aggravator established

when defendant planned a burglary and killed victims to escape

and avoid identification). The record does not suggest that

pecuniary gain was an originally unintended consequence of the

murder. See State v. Gillies, 135 Ariz. 500, 512, 662 P.2d

1007, 1019 (1983) (finding (F)(5) aggravator not established

25 
when defendant confessed that purpose of murdering rape victim

was to eliminate her as a witness to her own rape, not to steal

credit cards and cash).

¶73 Lynch argues that an (F)(5) finding is inappropriate

because the evidence is not conclusive as to who controlled

James’s car keys and gun and because Sehwani used James’s credit

cards. But a lack of subsequent control over robbery proceeds

does not bar an (F)(5) finding; the aggravator requires only

that the desire for pecuniary gain motivated the murder. State

v. LaGrand, 153 Ariz. 21, 36, 734 P.2d 563, 578 (1987).

Similarly, we reject Lynch’s argument that upholding the (F)(5)

aggravator would require imputing Sehwani’s motivations to

Lynch. The evidence sufficiently establishes that Lynch acted

with his own pecuniary motivations.

9. (F)(6) Aggravator

a. Absence of “Vicarious Liability” Instruction

¶74 Lynch contends the trial court erred in giving the

following instruction in the first aggravation phase:

Cruelty involves the infliction of physical pain
and/or mental anguish on a victim before death. A
crime is committed in an especially cruel manner when
a defendant either knew or should have known that the
manner in which the crime is committed would cause the
victim to experience physical pain and/or mental
anguish before death.

Lynch argues that the instruction allowed the jury to impute

cruelty to him solely because of Sehwani’s actions. Because

26 
Lynch neither objected to this instruction nor requested an

alternative, we review for fundamental error. Kuhs, 223 Ariz.

at 386 ¶ 52, 224 P.3d at 202.

¶75 “There is no vicarious liability for cruelty in

capital cases absent a plan intended or reasonably certain to

cause suffering.” State v. Carlson, 202 Ariz. 570, 583 ¶ 49, 48

P.3d 1180, 1193 (2002). If the defendant neither committed the

murder nor knew or should have known that the victim would

suffer, the cruelty aggravator cannot be found on a “tort theory

of culpability.” Id.

¶76 Carlson involved a defendant who “was not present

during commission of the crime, did not supply the murder

weapon, and was not involved in planning the details or method

of murder.” 202 Ariz. at 583 ¶ 47, 48 P.3d at 1193. In

contrast, a reasonable inference from the evidence in this case

is that Lynch, at a minimum, helped bind the victim before his

throat was slit. Given the evidence that Lynch’s own actions

caused the victim mental anguish, the instruction given was not

fundamental error.

b. Sufficiency of Evidence on the (F)(6) Aggravator

¶77 First degree murder is aggravated when conducted “in

an especially heinous, cruel or depraved manner.” A.R.S. § 13-

751(F)(6). Although worded in the disjunctive, this subsection

describes but one aggravating circumstance. State v. Djerf, 191

27 
Ariz. 583, 595 ¶ 44, 959 P.2d 1274, 1286 (1998). If the

evidence supports one of the statutory grounds, we will uphold

the (F)(6) finding. See State v. Cromwell, 211 Ariz. 181, 189

¶ 43, 119 P.3d 448, 456 (2005) (declining to consider alleged

errors related to heinousness or depravity because cruelty was

established).

¶78 A murder is especially cruel when “the victim

consciously experienced physical or mental pain prior to death,

and the defendant knew or should have known that suffering would

occur.” State v. Trostle, 191 Ariz. 4, 18, 951 P.2d 869, 883

(1997) (internal citation omitted). That standard was met here.

The evidence showed that James would have felt physical pain as

his throat was cut. He would have continued to feel pain

thereafter for at least a minute until he lost consciousness.

¶79 The evidence also establishes that James experienced

mental anguish. He was almost surely conscious when bound to

the chair, as “[t]here is no reason to bind an unconscious

person who offers no resistance.” Djerf, 191 Ariz. at 596 ¶ 49,

959 P.2d at 1287. Ligatures, abrasions, and bruising on James’s

wrists, hands, forearm, shoulder blade, back, and chest wall

establish that he struggled. See State v. Sansing, 206 Ariz.

232, 236 ¶ 10, 77 P.3d 30, 34 (2003) (inferring mental anguish

from victim’s defensive wounds). Moreover, the number and

complexity of the knots suggest that James had ample time to

28 
suffer “significant uncertainty as to [his] ultimate fate.”

State v. Van Adams, 194 Ariz. 408, 421 ¶ 44, 984 P.2d 16, 29

(1999).

¶80 It was also “reasonably foreseeable” that James would

suffer physical or mental pain. Djerf, 191 Ariz. at 595 ¶ 45,

959 P.2d at 1286. Lynch argues that physical pain was not

foreseeable because the fatal wound was designed to lead to a

quick death. But it is not obvious that cutting a throat will

always lead to instantaneous death. In any event, it was surely

foreseeable that James would suffer significant mental anguish

while being bound to the chair.

¶81 The evidence supports the jury’s finding that the

murder was especially cruel. Because the (F)(6) aggravator was

therefore established on that ground, we need not determine

whether the evidence also supports the findings of heinousness

or depravity. Cromwell, 211 Ariz. at 189 ¶ 43, 119 P.3d at 456.7

C. PENALTY PHASE

¶82 Lynch requested an instruction stating that the three

separate jury findings of especial heinousness, cruelty, and

depravity constituted only one aggravating circumstance. The

7
Similarly, we need not consider any allegations of error
relating to the jury’s findings of heinousness or depravity.
Even if those findings were vacated, the (F)(6) aggravator would
remain established.
29 
court instead instructed the second penalty phase jury as

follows:

The following aggravating circumstances have been
found to exist:

1. The defendant committed the murder in an
especially cruel manner.

2. The defendant committed the murder in an
especially heinous manner.

3. The defendant committed the murder in an
especially depraved manner.

4. The defendant committed the murder in expectation
of the receipt of anything of pecuniary value.

¶83 In his closing argument, the prosecutor cited this

instruction and characterized the (F)(6) prongs as “three

aggravating factors.” After the argument, Lynch unsuccessfully

moved for a new trial.

¶84 Our decisions make plain that the (F)(6) aggravator is

a single aggravating circumstance that can be established in

alternative ways: “Because this subsection is stated in the

disjunctive, a finding of either cruelty or

heinousness/depravity will suffice to establish this factor.”

Djerf, 191 Ariz. at 595 ¶ 44, 959 P.2d at 1286. The court

therefore erred in instructing the jury that three separate

(F)(6) aggravating circumstances were proved. State v. Miles,

186 Ariz. 10, 19, 918 P.2d 1028, 1037 (1996) (finding error in

counting cruelty and heinousness as two separate factors).

30 
¶85 The State argues that any error in the instruction was

cured because the court also instructed the jury that “you shall

not consider twice any fact or aspect of the murder.” But this

general statement did not clarify that the especially heinous,

cruel, and depraved findings constituted a single aggravating

circumstance, because, as the jury here was instructed, each

(F)(6) theory requires proof of different facts. Especial

cruelty requires proof that the victim was conscious, suffered

physical pain or mental anguish, and the defendant knew or

should have known the victim would suffer. Trostle, 191 Ariz.

at 18, 951 P.2d at 883. In contrast, under the only theory

proffered by the State that would support finding heinousness or

depravity – gratuitous violence - proof is required that the

defendant inflicted more violence than was necessary to kill and

either knew or should have known that he had done so.

Bocharski, 218 Ariz. at 494 ¶¶ 85-87, 189 P.3d at 421.

¶86 Nor was the trial court’s instructional error

harmless. An error is harmless only when the State proves

beyond a reasonable doubt that the jury’s decision “was surely

unattributable to the error.” State v. Valverde, 220 Ariz. 582,

585 ¶ 11, 208 P.3d 233, 236 (2009) (quoting State v. Anthony,

218 Ariz. 439, 446 ¶ 39, 189 P.3d 366, 373 (2008)). The State

has not met that burden here. The jury was told incorrectly

that there were four aggravating factors rather than two, and

31 
the prosecution emphasized this incorrect instruction in urging

the death penalty. See A.R.S. §§ 13-751(E) (requiring penalty

phase jury to “take into account the aggravating . . .

circumstances that have been proven”); 13-751(F) (requiring jury

to “consider . . . aggravating circumstances in determining

whether to impose a sentence of death”).

¶87 When an “error was made regarding a finding of

aggravation” we are required to “independently determine if the

mitigation . . . is sufficiently substantial to warrant leniency

in light of the existing aggravation.” A.R.S. § 13-755(B).

When we conclude that the jury has erroneously found an

aggravating circumstance, we use this extraordinary statutory

power of independent reweighing to determine whether a death

sentence nonetheless remains appropriate. See, e.g., State v.

Tucker, 215 Ariz. 298, 320-23 ¶¶ 96-120, 160 P.3d 177, 199-202

(2007); State v. Carreon, 210 Ariz. 54, 73 ¶¶ 96-98, 107 P.3d

900, 919 (2005).

¶88 The statute, however, only requires independent

reweighing when “an error was made regarding a finding of

aggravation.” A.R.S. § 13-755(B) (emphasis added). This is not

such a case. The jury here properly found both the (F)(5) and

(F)(6) aggravators. The error in this case arises not from an

improper aggravation finding, but rather from the trial court’s

faulty instruction in the penalty phase that the jury should

32 
treat the case as involving four aggravators and the

prosecutor’s highlighting of that instruction during arguments

exacerbated the error. Under these circumstances, § 13-755(B)

does not authorize independent reweighing. Rather, we are

constrained to remand for a new penalty phase trial before a

properly instructed jury.8

III. CONCLUSION

¶89 For the reasons above, we affirm the convictions and

non-capital sentences, but remand for a new penalty phase

proceeding on the murder conviction. Any new penalty phase jury

should be instructed that the (F)(5) and (F)(6) aggravators have

been previously found and that it is not to retry those issues.

See A.R.S. § 13-752(K).

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Michael D. Ryan, Justice

8
We therefore need not address Lynch’s other arguments
regarding imposition of the death penalty, including the twenty-
seven arguments submitted to avoid preclusion in future federal
proceedings.
33 
_____________________________________
W. Scott Bales, Justice

_____________________________________
A. John Pelander, Justice

34