State v. Dann

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-07-0153-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR1999-003536
BRIAN JEFFREY DANN, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Boyd T. Johnson, Visiting Judge from Pinal County

AFFIRMED
________________________________________________________________

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

DAVID GOLDBERG, ATTORNEY AT LAW Fort Collins, CO
By David Goldberg
Attorney for Brian Jeffrey Dann
________________________________________________________________

M c G R E G O R, Chief Justice

¶1 In 2001, a jury convicted Brian Jeffrey Dann of three

counts of first degree murder and one count of first degree

burglary. The trial judge imposed death sentences for each

murder after finding one aggravating circumstance beyond a

reasonable doubt. See Ariz. Rev. Stat. (A.R.S.) § 13-751.F.8

1

(Supp. 2008).1 The judge concluded that the mitigating

circumstances were not “sufficiently substantial to call for

leniency” and sentenced Dann to death. See § 13-751.E.

¶2 On appeal, we reversed Dann’s convictions for two of

the premeditated murders, but affirmed one conviction of

premeditated first degree murder, three convictions of first

degree felony murder, and the conviction and sentence for first

degree burglary. State v. Dann (Dann I), 205 Ariz. 557, 576 ¶

76, 74 P.3d 231, 250 (2003).

¶3 Dann was sentenced under a procedure later found

unconstitutional in Ring v. Arizona (Ring II), 536 U.S. 584

(2002). In reviewing Dann’s death sentences, we considered

whether it was harmless error for the trial judge, rather than a

jury, to have found the aggravating factor and to have

determined that death sentences were appropriate. State v. Dann

(Dann II), 206 Ariz. 371, 373-74 ¶¶ 5-11, 79 P.3d 58, 60-61

(2003). We found harmless the trial judge’s finding of the F.8

multiple murders aggravator. Id. at 374 ¶ 11, 79 P.3d at 61.

1
At the time the murders were committed, capital sentencing
provisions were found in A.R.S. § 13-703 (1993). Before Dann’s
resentencing, the legislature amended § 13-703.01, which also
applied to Dann’s resentencing. 2002 Ariz. Sess. Laws, ch. 1, §
3 (5th Spec. Sess.). The statutes were reorganized and
renumbered to §§ 13-751 to -759. 2008 Ariz. Sess. Laws, ch. 301
§§ 26, 36, 39-41 (2d Reg. Sess.). Because the former and
current statutes do not differ in any respect material to this
decision, we cite to the current version of the statute, unless
otherwise noted.

2

We concluded, however, that resentencing was required because a

reasonable jury could have reached a different conclusion

regarding the significance of the mitigating circumstances. Id.

at 374 ¶ 14, 79 P.3d at 61.

¶4 In 2007, a new jury found the F.8 aggravator and

determined that the mitigation was not sufficiently substantial

to warrant leniency and that the death penalty was appropriate.

¶5 Pursuant to Arizona Rule of Criminal Procedure 31.2.b,

Dann’s appeal to this Court is automatic. We exercise

jurisdiction pursuant to Article 6, Section 5.3, of the Arizona

Constitution and A.R.S. § 13-4031 (2001). For the reasons

discussed below, we affirm Dann’s death sentences.

I.2

¶6 On the evening of Saturday, April 3, 1999, Dann

stopped at the home of his former girlfriend, Tina Pace-Morrell,

to borrow a gun. He told Tina that Andrew Parks had fired a gun

at him earlier in the day and he needed a gun for protection

because he wanted to go to Andrew’s apartment to pick up some of

his belongings. Andrew Parks is the brother of Shelly Parks,

then Dann’s girlfriend. Tina loaned Dann a .38 caliber

revolver.

¶7 That same night, Dann went to a bar he frequented in

2
A more detailed account of the facts appears in Dann I, 205
Ariz. at 562-64 ¶¶ 2-10, 74 P.3d at 236-38.

3

Phoenix. Dann told his friend George Thomas, who was also at

the bar that evening, that he and Shelly were having problems.

He related that Shelly’s brother, Andrew, had shot at him

earlier that day. Dann showed George the revolver he had

borrowed from Tina, stating that he intended to “straighten out

the problem.” When George asked Dann what he intended to do

with the gun, Dann said he intended to use it to kill Andrew.

Dann also asked George for an unlicensed, untraceable “throw-

away” gun. George refused Dann’s request and spent the next two

hours attempting to talk Dann out of his plan. By the end of

the conversation, Dann seemed calmer and told George he was

going home to go to bed. The bar’s owner saw the men talking in

the parking lot at 2:00 a.m. as she left the bar.

¶8 Tina testified that Dann called between 2:00 a.m. and

3:00 a.m. on Sunday, April 4, and told her that he had just shot

three people. He asked what he should do. Tina advised Dann to

turn himself in, but he refused. About thirty minutes later, he

arrived at Tina’s home and gave her the gun and five spent

rounds. While there, he described how he had forced his way

into Andrew’s apartment, “leveled the gun,” and shot Andrew,

then Shelly, and then Eddie Payan, a friend who was visiting at

the time. Dann recounted that he shot Andrew and Shelly because

they laughed at him, and he shot Eddie because he witnessed the

shootings of Andrew and Shelly. Dann asked Tina to tell the

4

police he was with her throughout the night, thus providing him

an alibi. Before leaving, he washed his hands and borrowed some

clothes.

¶9 At about six a.m. on Sunday morning, Dann returned to

Andrew’s apartment and called 911. He reported that he had just

discovered three bodies in the apartment. During the next few

days, police interviewed Tina and George and located the

revolver Dann had borrowed from Tina. Ballistics analysis of

the gun and the bullets recovered at the scene indicated that

the bullets that killed Andrew, Shelly, and Eddie were fired

from the revolver. The medical examiner testified that Andrew

was shot twice, once in the chest and once in the right temple;

that Shelly was shot once, in the top of her head above the

right ear; and that Eddie was shot twice, once behind the left

ear and once in his right forehead. On April 7, 1999, Dann was

arrested for the triple homicide.

II.

A.

¶10 Dann waived counsel and chose to represent himself at

his resentencing. Dann’s first argument on appeal is that he

did not knowingly, intelligently, and voluntarily waive his

right to counsel. “Whether an accused has made an intelligent

and knowing waiver of counsel is a question of fact.” State v.

Doss, 116 Ariz. 156, 160, 568 P.2d 1054, 1058 (1977). A waiver

5

finding is based substantially on the trial judge’s observation

of the defendant’s appearance and actions. See id.

¶11 Shortly after we issued the mandate in this case, the

trial judge held a status conference at which Dann moved for a

change of judge and stated that he did not recognize James

Logan, his 2001 trial counsel, as his attorney. The court

granted Dann’s motion for a change of judge and advised him that

the new judge would decide whether to appoint new counsel.

¶12 On January 14, 2004, the new trial judge appointed

Robert Storrs to represent Dann, but Storrs moved to withdraw on

February 24, 2004. Dann argued that any attorney from the

Office of Court Appointed Counsel from Maricopa County would

have a conflict of interest because Dann’s father had served as

a Maricopa County Superior Court judge for twenty years. The

court allowed Storrs to withdraw.

¶13 On February 25, 2004, the court appointed contract

attorneys Michael Villareal and James Soslowsky. Villareal

declined the appointment, but Soslowsky continued as co-counsel,

and the court appointed John Schaus as lead counsel on March 9,

2004.

¶14 At the time of their appointment, Schaus and Soslowsky

were preparing for another capital case and could not

immediately work on Dann’s case. Dann filed several motions

alleging that counsel had a “conflict of interest” because they

6

were not consulting him or actively representing him, and Dann

requested a Faretta hearing. See Faretta v. California, 422

U.S. 806, 807 (1975). At the hearing, Dann informed the court

he had reviewed the waiver of counsel form with Schaus and

Soslowsky. Soslowsky explained the background of his

appointment and recounted that he had informed Dann that he and

Schaus were working on another capital case when appointed to

this case. Both lawyers reiterated that they had no ethical

basis for moving to withdraw. Dann stated that he wished to

waive his right to counsel and defend himself.

¶15 The court then followed the waiver of counsel

procedure set forth in Arizona Rule of Criminal Procedure 6.1.c.

Dann avowed that he (1) had read the waiver form, (2) had no

question about it, (3) understood the charges and potential

penalties, and (4) understood the responsibilities and duties of

defending himself. He also stated that he understood that his

was a complex case and that he could change his mind and accept

counsel at any time, but could not repeat completed proceedings.

The court found that Dann had not shown counsel to have an

actual conflict and, over Dann’s protest, appointed Schaus and

Soslowsky as advisory counsel. The court found a knowing,

intelligent, and voluntary waiver of counsel.

¶16 The federal and state constitutions guarantee the

right to waive counsel and to represent oneself. U.S. Const.

7

amend. VI; id. amend. XIV; Ariz. Const. art. 2, § 24. Self-

representation is a “fundamental constitutional right.”

Montgomery v. Sheldon, 181 Ariz. 256, 259, 889 P.2d 614, 617

(1995) (citing Faretta, 422 U.S. at 836). In Edwards v.

Arizona, the United States Supreme Court stated that a waiver of

counsel “must not only be voluntary, but must also constitute a

knowing and intelligent relinquishment or abandonment of a known

right or privilege, a matter which depends in each case ‘upon

the particular facts and circumstances surrounding that case,

including the background, experience, and conduct of the

accused.’” 451 U.S. 477, 482 (1981)(quoting Johnson v. Zerbst,

304 U.S. 458, 464 (1938)). A trial court may also consider

evidence of a defendant’s knowledge and understanding when he

waived counsel. State v. Martin, 102 Ariz. 142, 146, 426 P.2d

639, 643 (1967).

1.

¶17 Dann asserts that “the lack of any meaningful contact

with appointed counsel, lack of work on his case, and additional

conflicts revealed during a brief meeting with counsel, prompted

[him] to request that his counsel withdraw.” He requested that

his appointed counsel be replaced with “competent conflict free

counsel.”

¶18 Dann’s argument that a defendant is entitled to

competent counsel is, of course, correct. A defendant forced to

8

choose between incompetent or unprepared counsel and appearing

pro se faces “a dilemma of constitutional magnitude.” Maynard

v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976).

¶19 Contrary to Dann’s assertion, no cognizable conflict

existed here. Dissatisfaction with counsel does not, of itself,

warrant a hearing to determine counsel’s competence and does not

affect whether the waiver was voluntary, knowing, and

intelligent. State v. Djerf, 191 Ariz. 583, 591-92 ¶ 24, 959

P.2d 1274, 1282-83 (1998). In fact, Dann did not claim his

appointed counsel were ineffective. He stated, “I noticed the

Court of an actual conflict of interest with counsel who had

been appointed, from my position, incapable of providing not—I’m

sorry, just so it’s very clear—not ineffective, but competent

prompt, diligent assistance of counsel.” Accordingly, Dann’s

“conflict” focused on counsel’s failure to communicate with him

as quickly and frequently as he wished, not on their

effectiveness or ability to represent him. Those assertions do

not describe a cognizable conflict. See id.

¶20 In addition, Dann has failed to show prejudice. No

trial date was set when Soslowsky and Schaus were appointed to

represent Dann in February and March, 2004. Although Soslowsky

and Schaus could not immediately work on Dann’s case, no

prejudicial delay resulted. In addition, Dann was not prevented

from presenting arguments to the court regarding any potential

9

conflict of interest. We find no error.

2.

¶21 Dann also asserts that an irreconcilable conflict

existed because the presence of appointed counsel affected

Dann’s ability to decide which arguments to make to support his

claims of innocence. In deciding whether to appoint new

counsel, a court should consider several factors:

[W]hether an irreconcilable conflict exists between
counsel and the accused, and whether new counsel would
be confronted with the same conflict; the timing of
the motion; inconvenience to witnesses; the time
period already elapsed between the alleged offense and
trial; the proclivity of the defendant to change
counsel; and quality of counsel.

State v. LaGrand (LaGrand I), 152 Ariz. 483, 486-87, 733 P.2d

1066, 1069-70 (1987). “Although irreconcilable conflict is not

permitted, conflict between counsel and a criminal defendant is

but one factor a court should consider in deciding whether to

substitute counsel.” State v. Bible, 175 Ariz. 549, 591, 858

P.2d 1152, 1194 (1993). In addition, we do not regard

disagreement over defense strategy as an “irreconcilable

conflict.” See State v. Cromwell, 211 Ariz. 181, 186 ¶ 29, 119

P.3d 448, 453 (2005) (“A single allegation of lost confidence in

counsel does not require the appointment of new counsel, and

disagreements over defense strategies do not constitute an

irreconcilable conflict.”).

¶22 Here, Dann explicitly told the court that his counsel

10

were not incompetent; he based his motion instead on their

perceived failure to provide prompt, diligent assistance of

counsel. In addition, Dann had a history of asserting

“irreconcilable conflicts” with counsel that amounted not to

conflicts but rather to disagreements about strategy or concern

about lack of attention. Accordingly, no “irreconcilable

conflict” developed between Dann and his appointed counsel.

3.

¶23 Dann’s final argument regarding his counsel centers on

alleged inadequacies of the Faretta hearing. Dann argues the

court failed to conduct a “penetrating and comprehensive”

inquiry of Dann before accepting his waiver of counsel.

¶24 A prospective pro se litigant must understand (1) the

nature of the charges against him, (2) the dangers and

disadvantages of self-representation, and (3) the possible

punishment upon conviction. See State v. Cornell, 179 Ariz.

314, 323-24, 878 P.2d 1352, 1361-62 (1994). “Although a court

should warn of the dangers and disadvantages generally inherent

in self-representation, . . . it is not reversible error to fail

to warn of every possible strategic consideration.” Id. at 324,

878 P.2d at 1362 (citing Faretta, 422 U.S. at 835).

¶25 Here, the court explained to Dann that attorneys can

be of great value and assistance in a criminal case. The trial

court conducted a complete waiver of counsel proceeding,

11

following the procedure described in Rule 6.1.c. The trial

court did not abuse its discretion in finding that Dann

knowingly, intelligently, and voluntarily waived counsel.

B.

¶26 Dann contends that his murder convictions are void

because the original trial judge improperly ruled on a motion

for recusal and because the State presented perjured testimony

to the grand jury. We will not address the merits of this

argument because we affirmed Dann’s convictions in Dann I, 205

Ariz. at 576 ¶ 76, 74 P.3d at 250; Dann cannot challenge his

convictions in this appeal from his resentencing.

C.

¶27 Dann makes two arguments related to the composition of

the jury. He contends that because the trial court death-

qualified his jury, his constitutional right to a trial by a

fair and impartial jury was violated and that because he was

sentenced by a jury different from the one that decided his

guilt, he did not receive a reliable sentencing proceeding. We

review constitutional issues de novo. State v. Pandeli (Pandeli

III), 215 Ariz. 514, 522 ¶ 11, 161 P.3d 557, 565 (2007).

¶28 Arizona has upheld death qualification of jurors.

See, e.g., State v. Bocharski, 218 Ariz. 476, 483 ¶¶ 19-20, 189

P.3d 403, 410 (2008); State v. Moody (Moody II), 208 Ariz. 424,

449 ¶¶ 83-84, 94 P.3d 1119, 1144 (2004) (rejecting, post-Ring,

12

defendant’s argument that he was denied an impartial and

representative jury by the trial judge’s decision to death

qualify the jurors and declining to revisit earlier holdings

upholding the constitutionality of death qualification of

juries); State v. Hoskins, 199 Ariz. 127, 141 ¶¶ 49-50, 14 P.3d

997, 1011 (2000) (rejecting, pre-Ring, defendant’s claim that

death qualification of jurors violates due process).

¶29 Dann also claims that using a different jury for the

resentencing proceeding improperly shifted responsibility

between the two juries with respect to the ultimate decision to

impose death. See Caldwell v. Mississippi, 472 U.S. 320, 328-29

(1985) (stating that a jury should not be led to believe that

responsibility for determining appropriateness of defendant’s

death rests elsewhere).

¶30 We have previously rejected similar arguments. See

State v. Hampton, 213 Ariz. 167, 175 ¶ 31, 140 P.3d 950, 958

(2006) (finding that jury instruction made it clear that the

penalty phase jury was responsible for the sentencing decision);

State v. Ellison, 213 Ariz. 116, 136 ¶ 83, 140 P.3d 899, 919

(2006) (rejecting defendant’s argument that A.R.S. § 13-703.01

(2001) violates the Eighth Amendment by allowing the guilt-phase

jury to shift responsibility to the sentencing-phase jury).

Here, the resentencing jury received clear instruction that it

alone would determine the appropriate sentence for Dann.

13

D.

¶31 Dann contends that subjecting him to a second trial

seeking the death penalty violated the prohibition against

double jeopardy. See U.S. Const. amend. V. We review de novo

whether a second trial violates double jeopardy. State v.

McGill, 213 Ariz. 147, 153 ¶ 21, 140 P.3d 930, 936 (2006).

¶32 Dann claims that double jeopardy barred resentencing

him to death because the trial court impliedly acquitted him of

the § 13-751.F.8 aggravator at the first sentencing proceeding.

Following the guilt trial, the trial court found as a matter of

fact that the State had failed to prove the § 13-751.F.63

aggravator but had proved the F.8 aggravator as to each murder,

based solely upon its finding that the jury convicted Dann of

three counts of murder. On appeal, we held that the judge

improperly analyzed the aggravating circumstance, but

nevertheless found “that given the uncontroverted evidence on

these points, no jury could have found other than that the three

murders in this case were temporally, spatially, and

motivationally related.” Dann II, 206 Ariz. at 374 ¶ 11, 79

P.3d at 61.

¶33 Although we have held that capital sentencing

3
A murder committed in an “especially heinous, cruel or
depraved manner” is also an aggravating circumstance considered
in determining whether to impose a sentence of death. A.R.S. §
13-751.F.6.

14

proceedings are trials for purposes of double jeopardy, we have

also held that absent an acquittal of the death penalty, double

jeopardy does not bar again imposing the death penalty after a

new trial. State v. Poland, 144 Ariz. 388, 403-04, 698 P.2d

183, 198-99 (1985). Poland held that even when this Court

concluded that the only aggravating circumstance that was found

in support of the death penalty in the first trial had not been

established, the death penalty could still be imposed following

a new trial if the defendant was sentenced to death, rather than

to imprisonment, at the end of his first trial. Id.

¶34 Dann was sentenced to death by the trial court at the

previous sentencing. In addition, the trial court found that

the State had established the F.8 aggravating factor. Although

the court erred in its legal analysis, we found any error to be

harmless beyond a reasonable doubt. The prohibition against

double jeopardy did not bar the State from seeking the death

penalty at the resentencing proceeding.

E.

¶35 Dann contends that the trial court’s decision to

excuse two jurors for cause denied him his constitutional right

to a fair and impartial jury. We review for an abuse of

discretion a trial court’s decision whether to strike a juror

for cause. Ellison, 213 Ariz. at 137 ¶ 88, 140 P.3d at 920.

¶36 After the potential jurors filled out questionnaires,

15

the prosecutor asked the panel members during voir dire whether

they could follow the instructions and impose the death penalty.

Two prospective jurors were excused based on their answers to

these follow-up questions.

¶37 Prospective juror 64 indicated that she did not “feel

comfortable with playing God and deciding who lives and who

dies.” The trial judge asked her if she could, under any

circumstances, vote for or impose the death sentence. She

stated, “No . . . I would not be able to have that on my

conscience.” The judge excused her.

¶38 Prospective juror 73 stated she could not ever vote to

impose the death penalty. The judge also asked her if she would

be “able to vote in favor of the death penalty in a case such as

this”; she responded, “No.” The judge also excused her.

¶39 In a capital case, the judge may exclude for cause

those jurors who would never vote for the death penalty, but not

those who have “conscientious or religious scruples” against the

infliction of the death penalty that they could set aside.

Witherspoon v. Illinois, 391 U.S. 510, 522 (1968). A juror

whose views on the death penalty would “‘prevent or

substantially impair the performance of his duties as a juror’”

may be removed for cause. Wainwright v. Witt, 469 U.S. 412, 424

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

v. Anderson (Anderson I), 197 Ariz. 314, 318-19 ¶ 9, 4 P.3d 369,

16

373-74 (2000). The State need not prove a juror’s opposition to

the death penalty with “unmistakable clarity,” Wainwright, 469

U.S. at 424, but follow-up questions should be asked if written

responses do not show that the juror will be able to follow the

law. Anderson I, 197 Ariz. at 319 ¶ 10, 4 P.3d at 374.

¶40 Here, the two prospective jurors’ answers clearly

indicated that their views on the death penalty would prevent or

substantially impair them from being fair and impartial in

sentencing Dann. In light of their answers about their ability

to disregard personal feelings and impose the death penalty, the

trial court did not abuse its discretion in excluding these two

jurors for cause.

F.

¶41 Dann contends that the trial court abused its

discretion by permitting the State to offer evidence not

presented during the first trial in support of the F.8

aggravating circumstance. We review a trial court’s decision

whether to preclude evidence not presented at the first trial

for an abuse of discretion. Moody II, 208 Ariz. at 439 ¶ 27, 94

P.3d at 1134.

¶42 In Moody II, we addressed whether the State’s ability

to present a better case on retrial violated double jeopardy

principles. Id. at 438-39 ¶¶ 24-27, 94 P.3d at 1133-34. We

held that “[w]hen a case is reversed for any reason but

17

insufficient evidence, ‘the original conviction has been

nullified and the slate wiped clean.’” Id. at 439 ¶ 26, 94 P.3d

at 1134 (quoting Bullington v. Missouri, 451 U.S. 430, 442

(1981)). It follows that “if the slate is ‘wiped clean,’ the

state is not limited to using evidence presented at the first

trial.” Id.

¶43 Here, the trial judge limited neither the State nor

Dann to evidence presented in the first trial. The judge did

not abuse his discretion in denying Dann’s motion to preclude

the State from presenting evidence in support of the F.8

aggravator that had not been presented at the original trial and

sentencing proceeding.

G.

¶44 Dann contends that the trial court abused its

discretion and denied him his right to a fair trial when it

admitted irrelevant, gruesome autopsy photographs. We review a

trial court’s rulings on the admissibility of photographic

evidence for an abuse of discretion. McGill, 213 Ariz. at 154 ¶

30, 140 P.3d at 937.

¶45 Five autopsy photographs were admitted when Dr. Keen,

the medical examiner, testified during the aggravation phase.

Dann moved for a mistrial, arguing that the admitted photographs

were not relevant to prove the F.8 aggravator because, on cross-

examination, Dr. Keen testified that the photographs did not

18

show the relationship of the victims. The court denied the

motion, stating the photographs illustrated Keen’s testimony,

including showing “trajectories and other things which certainly

relates to the spatial . . . [and] temporal relationship of the

murders.”

¶46 Relevant evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair
4
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. 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 cannot be introduced, however, “for the sole purpose

of inflaming the jury.” State v. Gerlaugh, 134 Ariz. 164, 169,

654 P.2d 800, 805 (1982).

¶47 The photographs here were relevant and not unduly

prejudicial. Although Dr. Keen could not definitively explain

the temporal, spatial, and motivational relationship among the

murders, his testimony, combined with other evidence, provided

4
Pursuant to A.R.S. § 13-751.B, the rules of evidence apply
to the aggravation phase.

19

relevant information as to the relationships among the murders.

Tina Pace-Morrell testified that Dann related the sequence of

the murders and how he had shot the victims. Her testimony, in

light of the autopsy photographs, gave the jurors a clear

picture of the temporal, spatial, and motivational

relationships. In addition, the trial court carefully examined

all the crime scene and autopsy photographs of the victims and

excluded the most gruesome ones. Each of the four autopsy

photographs shown to the jury illustrated a different wound of

the three victims; none was cumulative or duplicative. See

Reinhardt, 190 Ariz. at 584, 951 P.2d at 459 (noting that each

photograph conveyed different, relevant information about the

crime and, thus, were not unduly prejudicial). The trial court

did not abuse its discretion by admitting photographs that were

relevant and minimally prejudicial to prove the F.8 aggravating

circumstance.

H.

¶48 Dann contends that the trial court abused its

discretion by denying his motion for a mistrial after the court

ruled inadmissible gruesome photographs shown to the jury during

the State’s opening statement. We will not overturn a trial

judge’s decision to deny a motion for mistrial unless we find an

abuse of discretion. State v. Jones, 197 Ariz. 290, 304 ¶ 32, 4

P.3d 345, 359 (2000).

20

¶49 The prosecutor asked the court’s permission to use

photographs contained in a PowerPoint presentation during his

opening statement. The judge allowed the presentation but

warned of the potential grounds for a mistrial if the court did

not later admit the photographs. The court later precluded as

cumulative three photographs included in the opening

presentation. Dann moved for a mistrial but the court denied

the motion, explaining that “ultimately equivalent or even more

graphic photos were admitted with Dr. Keen’s testimony,” and

indicating that the photographs were relevant.

¶50 “A declaration of a mistrial is the most dramatic

remedy for trial error and should be granted only when it

appears that justice will be thwarted unless the jury is

discharged and a new trial granted.” State v. Adamson, 136

Ariz. 250, 262, 665 P.2d 972, 984 (1983). Although a

prosecutor’s opening statement should not refer to inadmissible

evidence, State v. Bracy, 145 Ariz. 520, 526-27, 703 P.2d 464,

470-71 (1985), nothing indicates that the prosecutor here

deliberately attempted to prejudice the jury. The court

admitted several autopsy photographs that showed the victims’

wounds. Three of the photographs contained in the opening

PowerPoint were later excluded because they were cumulative, not

because they were irrelevant or too gruesome. Other photographs

just as graphic as those precluded were admitted into evidence,

21

so there is no reasonable likelihood that the three photographs

affected the jury’s verdict on the F.8 aggravator. Accordingly,

the trial court did not abuse its discretion by denying Dann’s

motion for a mistrial.

I.

¶51 Dann contends that errors involving jury instructions

at his sentencing trial violated his constitutional rights. We

consider the jury instructions as a whole to determine whether

the jury received the information necessary to arrive at a

legally correct decision. State ex rel. Thomas v. Granville

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

review for abuse of discretion “whether the trial court erred in

giving or refusing to give requested jury instructions.” Id.

We review de novo, however, whether the jurors were properly

instructed. State v. McCray, 218 Ariz. 252, 258 ¶ 25, 183 P.3d

503, 509 (2008). If a defendant fails to object at trial, we

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

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

error goes to the foundation of the case, being “error that

takes from the defendant a right essential to his defense, and

error of such magnitude that the defendant could not possibly

have received a fair trial.” Id.

1.

¶52 The trial court gave a preliminary jury instruction

22

advising that resentencing was required because Dann was

previously sentenced to death following “an unconstitutional

hearing.” Dann did not object to the instruction, so we review

for fundamental error. Id.

¶53 Relying on Caldwell v. Mississippi, 472 U.S. at 333,

Dann asserts that the preliminary instruction violates the

Eighth Amendment and constitutes fundamental error because it

improperly shifted the sense of responsibility for the

sentencing decision from the present jury to the previous jury.

We have noted that “Caldwell applies ‘only to certain types of

comment[s]—those that mislead the jury as to its role in the

sentencing process in a way that allows the jury to feel less

responsible than it should for the sentencing decision.’” State

v. Martinez, 218 Ariz. 421, 429 ¶ 33, 189 P.3d 348, 356 (2008)

(alteration in original) (quoting Romano v. Oklahoma, 512 U.S.

1, 9 (1994)); State v. Anderson (Anderson II), 210 Ariz. 327,

337 ¶ 22, 111 P.3d 369, 379 (2005)(same).

¶54 The preliminary instruction given by the trial court

in this case did not undermine the jury’s sense of

responsibility. The jury was instructed that it would make the

final decision as to life or death and that its decision was

binding. Dann has failed to show that any error resulted from

this preliminary instruction.

23

2.

¶55 Dann argues that the jury instruction defining the F.8

aggravator failed to comply with Arizona and federal

constitutional law and is facially vague.

¶56 The trial court instructed the jury regarding the F.8

aggravator in relevant part as follows:

To determine whether the state has proven this
allegation, you must determine whether the murders
were committed during the same course of conduct. In
order to find this factor, the state must prove beyond
a reasonable doubt that there is a temporal, spatial,
and motivational relationship between the murders.

Dann requested an additional limiting instruction that stated:

“The conviction of multiple murders alone is not sufficient to

meet this aggravator.” The trial court denied his request for

the limiting language, noting that, under the existing

instruction, the State had to prove a temporal, spatial, and

motivational relationship between the murders.

¶57 Section 13-751.F.8 provides that an aggravating

circumstance exists if “[t]he defendant has been convicted of

one or more other homicides . . . which were committed during

the commission of the offense.” We have interpreted the F.8

aggravator as requiring more than the existence of multiple

homicides; the homicides also must be temporally, spatially, and

motivationally related, taking place during one continuous

course of criminal conduct. Dann II, 206 Ariz. at 373 ¶ 6, 79

24

P.3d at 60.

¶58 The instruction in this case cured any potential

vagueness by using language from case law interpreting the F.8

aggravator, specifically that the murders be temporally,

spatially, and motivationally related. Accordingly, the F.8

aggravator is not unconstitutionally vague.

3.

¶59 Dann contends that the preliminary jury instructions

violated his rights to the presumption of innocence, proof

beyond a reasonable doubt, an impartial jury, and due process.

¶60 The trial court’s preliminary jury instructions

stated:

In this aggravation phase, you are not to retry the
issue of defendant’s guilt. Your sole duty in this
phase is to determine whether the State has proven
beyond a reasonable doubt that the first-degree murder
of either Shelly Parks, Andrew Parks and Ed Payan, or
all three, was or were committed with the existence of
the aggravation factor alleged.

¶61 Another instruction stated that “the defendant [has]

been properly found guilty of first-degree murder. You are to

accept that fact and not revisit the issue of guilt.” The court

advised the jury it could find Dann eligible for the death

penalty only if it found beyond a reasonable doubt that “[t]he

defendant has been convicted of one or more homicides that were

committed during the commission of the offense.”

¶62 Dann argues that the trial court directed a verdict on

25

the first element of the F.8 aggravating circumstance when it

informed the jurors that Dann had already been convicted of

multiple homicides.

¶63 Dann makes no convincing argument that a

constitutional violation occurred. The trial court did not

establish the first element of the F.8 aggravator, as Dann

asserts. The jury found that “element” in the first trial. The

instruction then informed the sentencing jury of the additional

findings needed to establish the F.8 aggravator. Accordingly,

the trial court did not direct a verdict on the F.8 aggravator,

and we find no error.

4.

¶64 Dann claims that the jury instruction setting forth

the burden of proof for aggravating factors violated his right

to a fair trial before an impartial jury. During both the

preliminary and final jury instructions in the aggravation

phase, the court advised the jury over Dann’s objection that

“[i]f[,] based upon your consideration of the evidence, you’re

firmly convinced that the alleged aggravating factor has been

proven, then you must so find.” Dann argued that the

instruction violated traditional constitutional guarantees

regarding the jury by usurping the jury’s function because it

directed the jurors that they must find the F.8 aggravator if

they were “firmly convinced” of it.

26

¶65 In State v. Portillo, we approved a uniform jury

instruction on reasonable doubt and “instruct[ed] that in every

criminal case, trial courts shall give the reasonable doubt

instruction” we set forth. 182 Ariz. 592, 596, 898 P.2d 970,

974 (1995). The relevant part of the Portillo instruction

provides that “[i]f[,] based on your consideration of the

evidence, you are firmly convinced that the defendant is guilty

of the crime charged, you must find him/her guilty.” Id. As

Dann acknowledges, we have repeatedly rejected challenges to the

Portillo instruction. See, e.g., Ellison, 213 Ariz. at 133 ¶

63, 140 P.3d at 916; State v. Van Adams, 194 Ariz. 408, 417-18

¶¶ 29-30, 984 P.2d 16, 25-26 (1999). Because an aggravating

circumstance is analogous to an element of a crime, it must be

found beyond a reasonable doubt and the instruction was,

therefore, mandatory. If the instruction adequately describes

reasonable doubt as to the crime charged, it is difficult to

argue it is not adequate for an element of the crime. The trial

court properly instructed the jurors on the burden of proof

regarding the aggravating circumstance.

J.

¶66 Dann asserts that the trial court abused its

discretion by refusing to accept the stipulations entered

between the parties during the first trial or to permit the

introduction of additional evidence of innocence. We review a

27

trial court’s rulings on the admission of evidence for an abuse

of discretion. State v. Boggs, 218 Ariz. 325, 334 ¶ 38, 185

P.3d 111, 120 (2008).

¶67 During the guilt phase of Dann’s trial, the prosecutor

and defense counsel stipulated that the police developed

nineteen latent fingerprints from Andrew’s apartment that did

not match Dann’s fingerprints. After remand, the trial court

ordered the State to disclose the nineteen prints, along with

previously undisclosed palm prints from the gun, to a latent

print examiner. Dann wanted to submit two stipulations to the

sentencing jury: (1) that latent prints were taken from the

crime scene and determined not to be Dann’s (admitted during

guilt phase) and (2) that latent prints taken from the revolver

did not match Dann’s (not admitted during guilt phase). The

court inquired into the relevance of the fingerprint evidence in

relation to the F.8 aggravator and ultimately concluded that the

fingerprint evidence applied only to the question of residual

doubt and was irrelevant to determining how the murders occurred

in relationship to each other.

¶68 In addition, Dann asked permission to argue residual

doubt as a mitigating circumstance. The court precluded counsel

from making a residual doubt argument during the penalty phase.

¶69 The rules of evidence govern the aggravation phase.

See § 13-751.B. The question then is whether the evidence Dann

28

wanted to present was relevant. According to A.R.S. § 13-752.L,

“the jury impaneled in the aggravation phase shall not retry the

issue of the defendant’s guilt.” Accordingly, the trial court

correctly determined that if Dann intended to use the

fingerprint evidence only to re-litigate or cast doubt upon his

guilt, the evidence was irrelevant to the sentencing

proceedings. The trial court did not abuse its discretion in

precluding the fingerprint evidence.5

K.

¶70 Dann raises three issues regarding the verdict forms.

We review de novo whether the trial court’s verdict forms were

adequate. State v. Woods, 141 Ariz. 446, 456, 687 P.2d 1201,

1211 (1984).

1.

¶71 Dann first contends that the trial court’s refusal to

provide the jury with separate special verdict forms regarding

the Enmund/Tison finding violated Arizona law, his right to a

unanimous verdict, and due process.

¶72 A defendant cannot be sentenced to death for felony

murder unless he personally killed, attempted to kill, or

intended that lethal force be employed, Enmund v. Florida, 458

5
We address infra ¶¶ 117-122 additional constitutional
challenges to the preclusion of residual doubt evidence in
Dann’s resentencing.

29

U.S. 782, 798 (1982), or was a major participant in the

underlying felony and acted with reckless indifference to human

life, Tison v. Arizona, 481 U.S. 137, 157-58 (1987). The

relevant Arizona statute now requires the jury to make any such

finding. A.R.S. § 13-752.P.

¶73 Here, the jury found Dann guilty of the premeditated

murder of Andrew Parks, and we upheld this verdict on appeal.

See Dann I, 205 Ariz. at 576 ¶ 76, 74 P.3d at 250. Accordingly,

given this premeditated murder verdict, no further Enmund/Tison

finding was necessary to support the capital sentence imposed

for this murder conviction.

¶74 In addition, no evidence at the guilt trial pointed to

an accomplice to the murders. We have recognized that the

constitution does not bar the death penalty for a defendant who

is convicted under a felony murder theory and who, acting alone,

actually killed. See State v. Atwood, 171 Ariz. 576, 649, 832

P.2d 593, 666 (1992), disapproved on other grounds by State v.

Nordstrom, 200 Ariz. 229, 25 P.3d 717 (2001).

¶75 Finally, the jurors necessarily made the Enmund/Tison

finding. The preliminary and final instructions included the

Enmund/Tison test and informed the jury that it could not find

Dann eligible for a death sentence for the murders of Shelly

Parks and Eddie Payan unless they first made the Enmund/Tison

finding. Jurors are presumed to have followed their

30

instructions. See Weeks v. Angelone, 528 U.S. 225, 234 (2000);

Richardson v. Marsh, 481 U.S. 200, 211 (1987). Accordingly, no

violation of Arizona law or denial of due process resulted when

the court did not submit a separate Enmund/Tison verdict form to

the jury.

2.

¶76 Next, Dann claims that the disjunctive form of verdict

given to the jury violated his rights to a unanimous verdict and

due process. Because Dann did not object to this alleged trial

error, we review for fundamental error. See Henderson, 210

Ariz. at 567 ¶ 19, 115 P.3d at 607.

¶77 The trial court gave the jury three verdict forms

related to the F.8 aggravator. For each murder, the verdict

form asked if the State proved beyond a reasonable doubt that

the murder of either of the other victims “or both” was

committed during the murder at issue. Dann argues the jury

erroneously believed that it could find the circumstance “as

long as 12 of them agreed that one of the murders was spatially,

temporally, and motivationally related to another.” The court,

however, required the finding as to each murder and specifically

stated in the final instructions that “you must make this

decision separate[ly] as to each murder uninfluenced by your

decisions as to the other two murders.”

¶78 Dann also argues that as to each F.8 finding, the

31

jurors might have found either one other murder, but not

necessarily one involving the same victim, or both other

murders, resulting in “non-unanimous” verdicts.

¶79 The Arizona Constitution requires that “[t]he right of

trial by jury shall remain inviolate. . . . In all criminal

cases the unanimous consent of the jurors shall be necessary to

render a verdict.” Ariz. Const. art. 2, § 23. Jurors may,

however, reach a verdict based on a combination of alternative

findings. See State v. Gomez, 211 Ariz. 494, 498 n.3 ¶ 16, 123

P.3d 1131, 1135 n.3 (2005) (reaffirming the principle that “[a]

jury need not be unanimous as to the theory of first degree

murder as long as all agree that the murder was committed”)

(citing Schad v. Arizona, 501 U.S. 624, 645 (1991); State v.

Tucker, 205 Ariz. 157, 167 ¶ 51, 68 P.3d 110, 120 (2003)). The

instructions here required unanimous agreement that at least one

other murder occurred during the murder at issue.

¶80 The jury verdict mirrors the F.8 statutory language,

which is in the disjunctive. See § 13-751.F.8 (“The defendant

has been convicted of one or more other homicides . . . .”).

Accordingly, either all or one other homicide could constitute

an aggravating circumstance. See State v. Clark, 126 Ariz. 428,

436, 616 P.2d 888, 896 (1980) (“The statutory expression is in

the disjunctive, so either all or one could constitute an

aggravating circumstance.”).

32

¶81 “It is only when the instructions taken as a whole are

such that it is reasonable to suppose the jury would be misled

thereby that a case should be reversed for error therein.”

Macias v. State, 36 Ariz. 140, 153, 283 P. 711, 716 (1929). The

verdict forms for the F.8 aggravator were not misleading and did

not create fundamental error.

3.

¶82 Dann asserts that the trial court violated the Eighth

and Fourteenth Amendments and the Ex Post Facto Clause because

the court did not provide the jury special verdict forms or

interrogatories on which the jury could indicate its reasons for

imposing the death sentence. We have rejected this argument.

See State v. Roque, 213 Ariz. 193, 226 ¶ 141, 141 P.3d 368, 401

(2006); State v. Roseberry, 210 Ariz. 360, 373 & n.12 ¶ 74, 111

P.3d 402, 415 & n.12 (2005).

¶83 As to Dann’s ex post facto argument, we have held that

jury sentencing is a procedural change from prior law, not a

substantive change. See Roseberry, 210 Ariz. at 364-65 ¶ 18,

111 P.3d at 406-07; State v. Towery, 204 Ariz. 386, 390 ¶ 11, 64

P.3d 828, 832 (2003). Accordingly, it does “not resemble the

type of after-the-fact legislative evil contemplated by

contemporary understandings of the ex post facto doctrine.”

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

928.

33

L.

¶84 Dann contends that the trial court abused its

discretion by answering a jury question without first consulting

the parties.

¶85 On April 26, 2007, the jury requested definitions of

the words “motivation” and “motivational relationship.” The

court responded in writing, “You must give the words their usual

and accepted meaning.” The record is silent, however, on

whether the court notified the parties before submitting this

answer. The State concedes that the better practice would have

been for the judge to make a contemporaneous record with counsel

about any jury question and the proposed response.

¶86 The general rule in Arizona is that reversible error

occurs when a trial judge communicates with jurors after they

have retired to deliberate unless the defendant and counsel have

been notified and given an opportunity to be present. State v.

Mata, 125 Ariz. 233, 240-41, 609 P.2d 48, 55-56 (1980).

Erroneous jury communications do not require reversal, however,

if it can be said beyond a reasonable doubt that the defendant

was not prejudiced by the communication. Id. at 241, 609 P.2d

at 56.

¶87 Because Dann and counsel were not notified of the

jurors’ request, the judge’s communication was error. The

communication did not cause Dann prejudice, however, because the

34

court’s answer to the jury question was legally correct and

appropriate. See State v. Sammons, 156 Ariz. 51, 57, 749 P.2d

1372, 1378 (1988) (holding that there was no prejudice when the

court sent a written note stating, “You have received all the

instructions relevant to this case”).

¶88 Here, the judge merely told the jurors to give

“motivation” and “motivational” their “usual and accepted

meaning.” When a word in a statute is undefined, courts apply

the ordinary meaning of the term. State v. Korzep, 165 Ariz.

490, 493, 799 P.2d 831, 834 (1990). This holds true when the

term is part of a jury instruction based on a statute, and

jurors are usually instructed to apply the ordinary meaning of

any word or phrase not defined by the court. See State v.

Barnett, 142 Ariz. 592, 594, 691 P.2d 683, 685 (1984) (holding

that the court need not define a word if it is one commonly

understood by those familiar with the English language). The

court did not define the words without the input of counsel.

Rather, it correctly informed the jurors to give the words their

ordinary meaning. Although error occurred, it caused Dann no

prejudice.

M.

¶89 Dann contends that the trial court’s decision to allow

the State to present mitigation evidence compiled against his

wishes violated his constitutional rights. We review the trial

35

court’s decision to admit evidence for an abuse of discretion.

Moody II, 208 Ariz. at 439 ¶ 27, 94 P.3d at 1134.

¶90 Dr. Jill Hayes, the State’s expert witness during the

penalty phase, testified that Dann did not suffer from

borderline personality disorder after considering her interviews

of Dann, his father, and his sister; the report by Dr. Gomez,

Dann’s expert witness; Dann’s medical and mental health records;

and the medical reports from the first sentencing, including

those by the mental health experts and the mitigation expert.

Dann argues that allowing Dr. Hayes to use the mitigation

evidence from the first trial violated his Fifth Amendment right

against self-incrimination because he was not cautioned before

the examinations that led to those reports that his statements

could be used against him.

¶91 The United States Supreme Court has held that a

defendant “who neither initiates a psychiatric evaluation nor

attempts to introduce any psychiatric evidence, may not be

compelled to respond to a psychiatrist if his statements can be

used against him at a capital sentencing proceeding.” Estelle

v. Smith, 451 U.S. 454, 468 (1981).

¶92 Here, Dr. Gomez testified on behalf of Dann that Dann

suffered from borderline personality disorder. This testimony

opened the door to rebuttal from Dr. Hayes. See State v.

Schackart, 175 Ariz. 494, 500, 858 P.2d 639, 645 (1993) (“[A]

36

defendant who places his or her mental condition in issue and

gives notice of an intention to rely on psychiatric testimony

has ‘opened the door’ to an examination by an expert appointed

on motion of the state.”). Accordingly, no Fifth Amendment

violation occurred.

¶93 Dann apparently asserts that because he was

represented by appointed counsel during the initial proceedings,

he could not control the presentation of the mitigation

evidence, resulting in a violation of his Sixth Amendment right

to counsel. The State correctly argues, however, that Dann

cannot present this Sixth Amendment claim on appeal; he must

present this claim in a post-conviction relief proceeding. See

State v. Spreitz, 202 Ariz. 1, 3 ¶ 9, 39 P.3d 525, 527 (2002)

(holding that ineffective assistance of counsel claims are to be

brought in Rule 32 proceedings).

N.

¶94 Dann argues that § 13-751.E is unconstitutional

because it does not require that once a defendant proves that

mitigating circumstances exist, the State must prove that the

evidence is not sufficiently substantial to call for leniency.

We review legal and constitutional questions de novo. McGill,

213 Ariz. at 156, 159 ¶¶ 40, 53, 140 P.3d at 939, 942.

¶95 We have rejected this argument. See Baldwin, 211

Ariz. at 471-72 ¶¶ 9-17, 123 P.3d at 665-66 (holding that

37

“neither party bears the burden” of persuading the jurors that

mitigation is sufficiently substantial to warrant leniency).

O.

¶96 Dann contends that admitting inflammatory victim

impact testimony after the presentation of his mitigation case

violated Arizona Rule of Criminal Procedure 19.1.d and his

rights under the Eighth Amendment. We review a trial court’s

admission of victim impact evidence for an abuse of discretion.

State v. Garza, 216 Ariz. 56, 69 ¶ 60, 163 P.3d 1006, 1019

(2007). Dann also asserts that A.R.S. § 13-752.R violates the

Eighth Amendment. Issues of statutory or constitutional

interpretation are reviewed de novo. McGill, 213 Ariz. at 156,

159 ¶¶ 40, 53, 140 P.3d at 939, 942.

¶97 Dann’s opening statement at the mitigation phase

informed the jurors that they would hear from the victims during

that phase. After an unrecorded bench conference, the State

informed the court that it would call the victim witnesses as

rebuttal witnesses, subject to cross-examination, rather than

present the victim impact statements referred to in Rule

19.1.d(3). Dann objected to the procedure, although he did not

argue that the victims should be precluded from giving the

impact statements.

¶98 Arizona law permits victim impact evidence to rebut

the defendant’s presentation of mitigation evidence. Ariz.

38

Const. art. 2, § 2.1(A)4 (entitling a victim to be heard at

sentencing); § 13-752.R (granting a victim the right to be heard

at the penalty phase); A.R.S. § 13-4426 (2001) (allowing the

victim to address the sentencing authority and present any

information or opinions that concern the victim or the victim’s

family). Victim impact evidence should not be allowed, however,

if it is “so unduly prejudicial that it renders the trial

fundamentally unfair.” Payne v. Tennessee, 501 U.S. 808, 825

(1991).

¶99 Dann raises two challenges regarding the victim impact

evidence. He asserts that Rule 19.1 requires victim information

be presented after the opening statements in the penalty phase

of the trial, not as rebuttal evidence, and that § 13-752.R

violates the Eighth Amendment by infusing irrelevant emotions

into the proceeding.

1.

¶100 As to Dann’s timing argument, Rule 19.1 does not

prohibit a trial court from allowing presentation of victim

testimony after a defendant presents mitigation evidence,

particularly if the State offers the testimony as part of the

State’s rebuttal. The timing in this case was not unusual, and

we have rejected similar challenges. See State v. Carreon, 210

Ariz. 54, 72 ¶¶ 90-93, 107 P.3d 900, 918 (2005).

39

2.

¶101 Dann argues that § 13-752.R violates the Eighth

Amendment by infusing irrelevant emotions into the proceeding.

We rejected this argument in Lynn v. Reinstein, 205 Ariz. 186,

191 ¶ 17, 68 P.3d 412, 417 (2003). Here, the three victim

witnesses explained the impact the murders had on their families

and did not make a recommendation regarding sentencing. In

addition, the trial court gave a limiting instruction regarding

the jurors’ use of the content of the victims’ statements,

cautioning that the jurors could not rely upon the statements

for a “purely emotional response” and that they were not to make

comparative judgments about the value of human lives. If any

prejudice occurred, it was cured by the instructions. See

Bocharski, 218 Ariz. at 488 ¶ 53, 189 P.3d at 415; Carreon, 210

Ariz. at 72 ¶¶ 90-93, 107 P.3d at 918.

P.

¶102 Dann contends that the trial court erred in conducting

multiple unrecorded bench conferences. Dann did not request

that these conferences be recorded, so we review for fundamental

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

¶103 Unrecorded bench conferences involving the trial

court, Dann, advisory counsel, and the prosecutor took place

during the resentencing. Dann occasionally made a later record

about what was said at the conferences, but many of the

40

unrecorded conferences did not result in later comments on the

record.

¶104 We have often disapproved the practice of not

recording bench conferences. See, e.g., Gosewisch v. Am. Honda

Motor Co., 153 Ariz. 400, 402, 737 P.2d 376, 378 (1987); State

v. Bay, 150 Ariz. 112, 115, 722 P.2d 280, 283 (1986); State v.

Fletcher, 149 Ariz. 187, 189, 717 P.2d 866, 868 (1986). A

defendant who does not object to proceeding without a reporter,

however, waives his right to complain that the proceedings were

not recorded. State v. Zuck, 134 Ariz. 509, 512-13, 658 P.2d

162, 165-66 (1982). Here, Dann did not object but instead

proceeded with unrecorded bench conferences.

¶105 Moreover, Dann cannot show prejudice. He argues that

during an unrecorded bench conference on the final day of the

penalty phase, he alerted the court to potential juror

misconduct and argues that he was prejudiced because the bench

conference would have revealed “why the trial court refused to

take action on the misconduct prior to the completion of trial.”

The trial court, however, addressed Dann’s allegations at a

special hearing, discussed in the next section. As that

discussion reveals, no prejudice resulted from the fact that the

bench conference was not recorded.

Q.

¶106 Dann contends that the trial court abused its

41

discretion and violated his right to a fair and impartial jury

when it refused to conduct an evidentiary hearing or replace

jurors who may have violated the admonition not to discuss the

evidence during trial. We review the trial court’s ruling

regarding alleged jury misconduct for an abuse of discretion.

See State v. Hall, 204 Ariz. 442, 447 ¶ 16, 65 P.3d 90, 95

(2003).

¶107 The judge admonished the jurors not to talk with each

other or form opinions about the case until they began

deliberating at the end of the trial. On Friday, May 4, 2007,

the final day of the penalty phase, Dr. Hayes testified for the

State during rebuttal. Much of Dr. Hayes’ testimony concerned

Dann’s childhood and the absence of any impact it had on Dann’s

conduct in this case. Following Dr. Hayes’ testimony, the court

adjourned for the noon recess and advised the jurors to remember

the admonitions. After the noon recess, Dann and the State made

closing arguments and final instructions were read. The jury

decided to begin deliberations on Tuesday, May 8, 2007.

¶108 On Monday, May 7, 2007, Dann’s advisory counsel stated

that Dann had informed the court, during an unrecorded bench

conference at the close of trial, of possible juror misconduct.

Advisory counsel admitted he could not describe the misconduct

in detail, but identified two potential witnesses: Nancy and

Jordan Sloan. Counsel believed four jurors had discussed the

42

testimony of Dr. Hayes during their lunch on May 4, before

deliberations began.

¶109 The court decided to question the Sloans before

determining whether to talk to the four jurors. On Tuesday, May

8, 2007, the trial court conducted a hearing outside the

presence of the jury to take testimony from the Sloans. Before

the hearing, the judge instructed the jurors not to discuss the

case and not to deliberate until further notice. The jurors

were not aware of the jury misconduct hearing or the

circumstances surrounding the hearing.

¶110 Nancy Sloan testified that she had joined her son at a

lunch table next to a table being used by four of the jurors in

Dann’s case. She indicated the jurors “seemed” to be talking

about the case. She interpreted one juror’s statements as

referring to “what a bad childhood [the juror] had had” and

“that nothing compared to what [the juror] experienced.” She

could not distinguish who was talking and did not know if all

four jurors joined the conversation. She also heard someone

talking about “people having choices.” She did not hear the

jurors talk about Dann’s childhood, hear them mention his name,

or hear specific discussions about the case. Ms. Sloan

indicated that she interpreted the jurors’ statements as

referring to Dr. Hayes’ testimony about choices and inferred

that they were not being sympathetic to the defense’s mitigation

43

argument. She could identify only two of the four jurors. She

reported the matter to Dann’s family and Dann’s advisory

counsel.

¶111 Jordan Sloan, Nancy Sloan’s son, testified that he

overheard the lunch conversation. He told the court that he

chose the table so he could be close to the jurors. After he

sat down, he heard “something to the effect of, that it was

interesting to hear how events in one’s childhood could or would

lead to . . . specific events or certain behaviors as you got

older.” He could not distinguish who was speaking (including

whether it was a male or female voice) and because of the wind,

did not hear anything further. He did not hear specific

references to Dann, to events that Dr. Hayes had described, or

any comments about choices, any specific individual, or anything

involved in the case. He did identify two jurors who were part

of the general conversation.

¶112 Finally, Jonell Dann testified that she joined Nancy

and Jordan Sloan at the lunch table and did not overhear any

conversation by the jurors. She testified that neither Nancy

nor Jordan told her what they had heard. She thought three

jurors, all male, were together, and identified two of them.

¶113 Advisory counsel stated, “We are not completely sure

exactly what was said.” He further stated that he did not know

whether the conversations were specifically related to reaching

44

conclusions about Dann but that discussions did occur. Advisory

counsel proposed that the judge talk to jurors 1, 7, 11, and 12

(two of whom were alternates) and, if the judge determined they

were involved in the conversation, he should excuse them. The

State opposed talking to the jurors because the defense had not

presented any specific information to show any juror violated

the admonition.

¶114 The court concluded that nothing had occurred other

than discussion of topics that are part of everyday

conversation. Nothing in the conversations indicated that any

juror attempted to influence the other jurors before

deliberations. Accordingly, the court denied the defense

request to strike, also noting the general “nature of the

comments” and Dann’s failure to bring the issue to the court

when he found out about it shortly after the May 4 lunch recess.

¶115 Dann argues that we should vacate his sentences and

remand for a new trial because the trial court abused its

discretion by denying Dann’s motion to strike the jurors who

allegedly violated the admonition against discussing the case

prior to deliberations. He claims the jurors’ action violated

the Sixth Amendment guarantee of the right to trial “by an

impartial jury.” See Turner v. Louisiana, 379 U.S. 466, 471-72

(1965). To protect the right to an impartial jury and to due

process, a jury must refrain from premature deliberations.

45

United States v. Gianakos, 415 F.3d 912, 921 (8th Cir. 2005).

When there are premature deliberations without evidence of

external influence, however, “there is no reason to doubt that

the jury based its ultimate decision only on evidence formally

presented at trial.” Id. at 921-22. Accordingly, “juror

misconduct warrants a new trial [only] if the defense shows

actual prejudice or if prejudice may be fairly presumed from the

facts.” State v. Miller, 178 Ariz. 555, 558, 875 P.2d 788, 791

(1994) (emphasis removed).

¶116 Although we regard any case-related discussion among

jurors as troubling, the record shows that Ms. Sloan, Dann’s

strongest witness, did not hear the jurors specifically discuss

Dann’s childhood or mention Dann’s name, the case, or any

testimony from Drs. Hayes or Gomez. Indeed, Jordan Sloan

admitted he could not hear anything specific and Jonell Dann did

not hear any conversations at all. Dann presented little

evidence of what was said or who said it. Cf. State v. Cruz,

218 Ariz. 149, 163-64 ¶¶ 69-82, 181 P.3d 196, 210-11 (2008)

(questioning specific jurors about specific conversation heard

by other jurors). Moreover, the trial judge heard the witnesses

testify and could assess their credibility. On balance, we hold

that the trial court did not abuse its discretion by declining

to conduct additional hearings or strike the four jurors.

46

R.

¶117 Dann contends that the trial court’s preclusion of

evidence and argument regarding residual doubt violated his

rights to present a complete defense and to have his jury

consider all relevant mitigation and also violated the

prohibition against ex post facto laws. We review a trial

court’s ruling on the admission of evidence at a capital

sentencing for an abuse of discretion. Garza, 216 Ariz. at 68 ¶

56, 163 P.3d at 1018.

¶118 The trial court precluded evidence of Dann’s innocence

(or doubt regarding his guilt). Dann asserts, in essence, that

the trial judge should have allowed him to present evidence of

actual innocence. We have stated that “there is no

constitutional requirement that the sentencing proceeding jury

revisit the prior guilty verdict by considering evidence of

‘residual doubt.’” Ellison, 213 Ariz. at 136 ¶ 82, 140 P.3d at

919; see also Garza, 216 Ariz. at 70 ¶ 67, 163 P.3d at 1020;

State v. Andriano, 215 Ariz. 497, 506-07 ¶ 45, 161 P.3d 540,

549-50 (2007). We have also held that “[t]he plain language of

provisions J through L of section 13-7[52] . . . makes residual

doubt evidence irrelevant to capital resentencing proceedings.”

State v. Harrod (Harrod III), 218 Ariz. 268, 280 ¶ 44, 183 P.3d

519, 531 (2008). This issue has been resolved.

¶119 Dann argues that preclusion of residual doubt evidence

47

violates the prohibition against ex post facto legislation

because such evidence was admissible and considered by the

sentencing judge before Ring II, but now cannot be considered by

the sentencing jury.6

¶120 Ex post facto clauses prohibit both the federal

government and the states from enacting laws with certain

retroactive effects. See U.S. Const. art. I, § 9, cl. 3

(federal government); id. § 10, cl. 1 (states); Ariz. Const.

art. 2, § 25. In Dobbert v. Florida, the Supreme Court held

that ex post facto prohibitions reach only those legislative

enactments that affect substantive criminal law. 432 U.S. 282,

293 (1977). We have held that Arizona’s statutory changes

following Ring II were procedural, not substantive, and ex post

facto principles therefore do not apply. See Bocharski, 218

Ariz. at 492 ¶¶ 76-78, 189 P.3d at 419; Ring III, 204 Ariz. at

547 ¶¶ 23-24, 65 P.3d at 928.

¶121 We have also previously rejected Dann’s argument that

preclusion of residual doubt evidence violates the Eighth or

Fourteenth Amendments. Harrod III, 218 Ariz. at 278-79 ¶ 37-40,

183 P.3d at 529-30; see also Oregon v. Guzek, 546 U.S. 517, 523

6
Following Ring II, the legislature enacted A.R.S. § 13-
703.01 (2002) (renumbered at § 13-752), which requires the jury
to find and consider the effect of aggravating and mitigating
circumstances and decide whether the defendant should receive a
sentence of death.

48

(2006) (“We can find nothing in the Eighth or Fourteenth

Amendments that provides a capital defendant a right to

introduce new [residual doubt] evidence . . . at sentencing.”).

Accordingly, the trial court did not abuse its discretion in

precluding Dann from presenting residual doubt evidence at the

sentencing phase.

S.

¶122 Dann asserts that the trial court abused its

discretion by refusing to admit evidence informing the jury that

if it did not impose a death sentence, Dann would stipulate to

being sentenced to life without parole. We review evidentiary

decisions for an abuse of discretion, giving deference to the

trial court’s determination regarding relevance. State v.

Smith, 215 Ariz. 221, 232 ¶ 48, 159 P.3d 531, 542 (2007).

¶123 Dann filed a pretrial “waiver” of his statutory right

to parole and stipulated that, should he receive a sentence less

than death, he would agree to be sentenced to life without

parole. Dann requested that the jury be advised of this

“waiver” during the penalty phase. The court denied his request

and gave a preliminary jury instruction that the possible

sentences for Dann were “death, imprisonment for the remainder

of his natural life, or imprisonment without the possibility of

release until at least twenty-five calendar years have been

served.” The instructions also stated that if Dann did not

49

receive a death sentence, the trial court would choose between

the other possible sentences. Similarly, in the penalty phase,

the trial judge instructed the jury that if Dann were not

sentenced to death, the court would determine, on each

conviction, whether he would serve a term of natural life or

life without the possibility of release for twenty-five years,

and would determine if the sentences would be concurrent or

consecutive.

¶124 Dann may not “presentence” himself. The statute gives

the trial court discretion to decide what penalty Dann should

receive if spared the death penalty. See A.R.S. §§ 13-751.A,

752.Q. Moreover, only speculation supports the notion that

Dann’s attempted waiver would have any effect on a future

decision of the Arizona Board of Executive Clemency. See Cruz,

218 Ariz. at 160 ¶¶ 44-45, 181 P.3d at 207. The trial court did

not abuse its discretion by refusing Dann’s request to inform

the jury he would waive parole if spared the death penalty.

T.

¶125 Dann contends that the cumulative effect of the

State’s prosecutorial misconduct deprived him of his right to

due process. We will reverse a conviction because of

prosecutorial misconduct if misconduct is present and “a

reasonable likelihood exists that [it] could have affected the

jury’s verdict, thereby denying defendant a fair trial.”

50

Atwood, 171 Ariz. at 606, 834 P.2d at 623. When a defendant

objects to an alleged act of prosecutorial misconduct, we review

the issue for harmless error; when a defendant fails to object,

we engage in fundamental error review. See State v. Velazquez,

216 Ariz. 300, 311 ¶ 47, 166 P.3d 91, 102 (2007). Even if the

alleged acts of misconduct do not individually warrant reversal,

we must determine whether the acts “contribute to a finding of

persistent and pervasive misconduct.” Roque, 213 Ariz. at 228 ¶

155, 141 P.3d at 403. We will reverse a conviction because of

prosecutorial misconduct if the cumulative effect of the alleged

acts of misconduct “shows that the prosecutor intentionally

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

a specific intent, to prejudice the defendant.” Id. (citation

omitted) (internal quotation marks omitted).

¶126 Dann argues that during the aggravation phase, the

State committed misconduct in its opening argument, to which he

objected and during the closing argument, to which he did not

object. He also argues that the prosecutor committed misconduct

in the penalty phase during the State’s closing argument, to

which he did not object. Our review of the record, however,

reveals no individual acts of misconduct sufficient to warrant

reversal or cumulative misconduct that permeated the entire

atmosphere of the trial with unfairness. See Bocharski, 218

Ariz. at 492 ¶ 75, 189 P.3d at 419.

51

U.

¶127 Dann contends that Arizona’s death penalty scheme

violates equal protection principles because, unlike the

sentencing scheme for Arizona’s non-capital defendants and

federal capital defendants, it fails to require that the jury

make specific findings of fact and conclusions of law reviewable

by an appellate court. We review constitutional issues de novo.

Pandeli III, 215 Ariz. at 522 ¶ 11, 161 P.3d at 565.

¶128 Criminal defendants do not constitute a suspect class

and thus we need find only a rational basis for requiring that

findings of fact and reasoning be stated on the record by the

judge in non-capital cases, but not by the jury in capital

cases. See State v. LaGrand (LaGrand II), 153 Ariz. 21, 30, 734

P.2d 563, 572 (1987). Several reasons justify the distinction.

Perhaps the most important involves the traditional role of the

jury. Although jurors serve as the arbiter of facts, Pfeiffer

v. State, 35 Ariz. 321, 325, 278 P. 63, 65 (1929), we have never

required them to state their factual findings. In contrast, we

have a long history of requiring in some proceedings that judges

who serve as triers of fact state their factual findings. See,

e.g., Ariz. R. Civ. P. 52(a) (requiring the court, sitting

without a jury, to state findings of fact and conclusion of law

separately). A rational basis exists for this distinction.

52

III.

¶129 Because Dann’s offenses occurred before August 1,

2002, we independently review the aggravating and mitigating

factors, as well as the “propriety of the death sentence.”

A.R.S. § 13-755.A; see also Roseberry, 210 Ariz. at 373 ¶ 77,

111 P.3d at 415 (stating that this Court “independently reviews

the jury’s findings of aggravation and independently determines

‘if the mitigation is sufficiently substantial to warrant

leniency in light of existing aggravation’”(quoting State v.

Greene, 192 Ariz. 431, 443-44 ¶ 60, 967 P.2d 106, 118-19

(1998))).

A.

¶130 On remand, the jury found one aggravating factor

proved beyond a reasonable doubt: that Dann committed multiple

murders during the commission of the offense. § 13-751.F.8. To

satisfy this factor, the State must prove that the homicides

were “temporally, spatially, and motivationally related, taking

place during ‘one continuous course of criminal conduct.’”

State v. Prasertphong, 206 Ariz. 167, 170 ¶ 15, 76 P.3d 438, 441

(2003) (quoting State v. Rogovich, 188 Ariz. 38, 45, 932 P.2d

794, 801 (1997)).

¶131 It is uncontested that Dann’s victims were killed in

close proximity to one another. All died in the same room of

Andrew’s apartment, where they had been seated near one another.

53

This satisfies the spatial relationship required to sustain the

F.8 aggravating factor. Dann II, 206 Ariz. at 373 ¶ 8, 79 P.3d

at 60.

¶132 Similarly, the evidence shows that all victims were

killed within moments of one another. Tina Pace-Morrell, Dann’s

former girlfriend, testified that immediately after the

killings, Dann came to her apartment and told her that he shot

Andrew Parks, his intended victim, then Shelly Parks, and then

Eddie Payan. The short, uninterrupted time within which these

actions occurred satisfies the temporal relationship required to

sustain the F.8 aggravating factor. Id. at 373 ¶ 9, 79 P.3d at

60.

¶133 Finally, the State established the motivational

requirement through evidence that Dann went to the apartment

intending to kill Andrew. George Thomas testified that Dann

showed him a gun and said he was going to shoot Andrew because

Andrew had shot at him. Tina Pace-Morrell also testified that

Dann told her that he had murdered three people and later

explained that he killed Andrew and Shelly because they laughed

at him, and killed Eddie because he was a witness. The State

proved the F.8 aggravator beyond a reasonable doubt.

B.

¶134 The next issue is whether the mitigation evidence was

sufficiently substantial to call for leniency in light of the

54

F.8 aggravator. See A.R.S. § 13-755.B. In conducting our

independent review, we do not require that a nexus between the

mitigating factors and the crime be established before we

consider the mitigation evidence. See Tennard v. Dretke, 542

U.S. 274, 287 (2004). We may consider a failure to establish

such a causal connection, however, in assessing the quality and

strength of the mitigation evidence. See Anderson II, 210 Ariz.

at 350 ¶¶ 96-97, 111 P.3d at 392.

¶135 Dann asserted six non-statutory mitigating

circumstances: (1) residual doubt, (2) difficult childhood

(abandonment, physical abuse, and overmedication leading to drug

abuse), (3) new goals on death row, amenability to

rehabilitation, and lack of future dangerousness, (4) drug and

mental health issues impairing his judgment, (5) remorse, and

(6) family support and impact of execution on his family. Dann

must prove mitigating circumstances by a preponderance of the

evidence. A.R.S. § 13-751.C.

1.

¶136 Once a person is found guilty beyond a reasonable

doubt, claims of residual doubt do not constitute mitigation for

sentencing purposes. See Harrod III, 218 Ariz. at 280 ¶¶ 42-43,

183 P.3d at 531.

2.

¶137 A difficult family background may be a mitigating

55

circumstance in determining whether a death sentence is

appropriate. Dann asserts that the death of his mother,

physical abuse by his father, and his overmedication for

attention deficit hyperactivity disorder (ADHD) should receive

consideration.

a.

¶138 Dann’s mother died when he was five years old, and he

claims he suffers from pervasive abandonment issues. After

Dann’s mother died, his father remarried. In closing arguments,

Dann admitted he “had a great family” that was “not

dysfunctional.” We therefore give this factor little mitigating

weight.

b.

¶139 Dann’s father disciplined him by spanking him,

including with a belt as he grew older, acts that his father

later viewed as child abuse. There was no evidence, however, of

other physical abuse beyond the spanking, and we give this

mitigation evidence little weight.

c.

¶140 Dann was diagnosed with ADHD as a child and prescribed

Ritalin. Dr. Hayes testified that Dann nevertheless did well in

school and enjoyed learning, despite some behavior problems.

Dann’s father testified that he obtained professional help for

Dann, including counseling and treatment for his ADHD and other

56

drug problems, and sent him to private schools. Dann did not

prove overmedication for ADHD as a mitigating factor.

3.

¶141 Dann presented mitigating evidence of his behavior and

rehabilitation efforts while in prison. We typically give

little weight to a defendant’s good behavior while in prison

because prisoners are expected to behave and adapt to prison

life. See, e.g., State v. Armstrong (Armstrong II), 218 Ariz.

451, 466 ¶ 80, 189 P.3d 378, 393 (2008); Pandeli III, 215 Ariz.

at 533 ¶ 82, 161 P.3d at 576.

¶142 Dann also claims that he is a good candidate for

rehabilitation and lacks future dangerousness. A defendant’s

potential for rehabilitation may be considered a mitigating

factor. See State v. Murray, 184 Ariz. 9, 40, 906 P.2d 542, 573

(1995).

¶143 Dr. Gomez testified that past behavior and drug abuse

are indicators of future dangerousness. He also testified that

protective factors, those that would decrease someone’s risk for

future violence, include a sufficient IQ, social support, and

involvement in a structured work environment while incarcerated.

Dr. Gomez also testified that past significant violence,

specifically a triple homicide, is one factor indicating future

dangerousness.

¶144 The record shows other acts of violence in Dann’s

57

past. Dann’s ex-wife testified that during their year of

marriage, Dann used drugs and was very violent. On balance, the

evidence does not establish a lack of future dangerousness.

4.

¶145 Next, Dann argues that his history of drug and alcohol

use is mitigating on its own and because it impaired him on the

night of the murders. Dann’s father testified about Dann’s

history of drug abuse. Dann attended a residential alcohol

abuse program at the age of eighteen and received counseling and

treatment. He also participated in a hospital drug program

during his year-long marriage when he was twenty-five.

¶146 Dr. Gomez concluded that Dann suffered from poly-

substance abuse. Dr. Hayes testified that Dann indicated to her

that he drank almost every day and had drunk a great deal since

1993. Dr. Hayes further testified that Dann may have been using

alcohol and/or drugs when he committed the murders, based on

reports from George Thomas and police reports. She also

testified, however, that if Dann consumed alcohol every day, he

would have developed a tolerance for the effects of the alcohol,

making it difficult to ascertain whether his drinking affected

his actions on the night of the murders.

¶147 Even assuming Dann was intoxicated at the time of the

murders, however, “a defendant’s claim of alcohol or drug

impairment fails when there is evidence that the defendant took

58

steps to avoid prosecution shortly after the murder, or when it

appears that intoxication did not overwhelm the defendant’s

ability to control his physical behavior.” Reinhardt, 190 Ariz.

at 591-92, 951 P.2d at 466-67. Dr. Hayes testified that Dann

was able to function effectively the morning of the murders and

returned to Andrew’s apartment after the shootings and called

police. The evidence does not support a finding that

intoxication overwhelmed Dann’s ability to control his behavior.

¶148 Dann claims that his long history of borderline

personality disorders and ADHD impaired his judgment and caused

him to “become very aggressive and act without thinking, but

impulsively.” Witnesses presented conflicting evidence as to

whether Dann suffers from borderline personality disorder. For

example, Dr. Gomez diagnosed Dann with borderline personality

disorder and poly-substance abuse. Dr. Gomez could not testify

about Dann’s judgment at the time of the murder.

¶149 Dr. Hayes, however, testified that Dann was not

mentally disturbed when he committed the murders and that his

capacity to appreciate the wrongfulness of his conduct was not

impaired. EEGs and MRIs showed no neurological impairment or

brain damage, and Dr. Hayes concluded there was no brain damage.

We give this mitigation evidence minimal weight.

5.

¶150 Dann alleges remorse as a mitigating circumstance. We

59

have recognized remorse as a non-statutory mitigating

circumstance. We give little weight to remorse, however, when

the defendant denies responsibility for his conduct. See

Andriano, 215 Ariz. at 512 ¶ 76, 161 P.3d at 555 (noting that

defendant continued to deny responsibility in finding that she

had not proven remorse as a mitigating circumstance); State v.

Gulbrandson, 184 Ariz. 46, 70-71, 906 P.2d 579, 603-04 (1995)

(same); cf. Velazquez, 216 Ariz. at 315 ¶ 74, 166 P.3d at 106

(finding mitigating factor of remorse when, in allocution,

defendant expressed remorse for the murder, apologized to the

victim’s family, and accepted responsibility for his conduct).

¶151 Dann maintained throughout the resentencing trial that

he is actually innocent and that someone else killed the

victims. Dann did not prove this mitigating factor by a

preponderance of the evidence.

6.

¶152 Dann’s father and sister testified that he has family

support and that his execution would negatively affect them.

Dann established this factor by a preponderance of the evidence.

C.

¶153 After evaluating each aggravating and mitigating

factor, we independently review the propriety of the death

sentence. § 13-755.A. In our independent reweighing of the

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

60

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

Ariz. at 230 ¶ 166, 141 P.3d at 405 (quoting Greene, 192 Ariz.

at 443 ¶ 60, 967 P.2d at 118). The State proved one aggravating

factor, but that aggravating factor, multiple murders, “is

entitled to ‘extraordinary weight.’” Garza, 216 Ariz. at 72 ¶

81, 163 P.3d at 1022 (quoting Hampton, 213 Ariz. at 185 ¶ 90,

140 P.3d at 968). In light of the significant aggravator, we

must determine whether Dann’s mitigating evidence is

“sufficiently substantial to warrant leniency.” See § 13-755.B.

¶154 Based on the foregoing evidence, Dann established only

minimal mitigating evidence. Considered against the weighty

aggravating factor, the mitigation evidence is not sufficiently

substantial to warrant leniency.

IV.

¶155 Dann raises twenty-two other constitutional challenges

to preserve them for federal review. These arguments are set

forth verbatim in the Appendix.

V.

¶156 For the foregoing reasons, we affirm Dann’s death

sentences.

_______________________________________
Ruth V. McGregor, Chief Justice

61

CONCURRING:

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
W. Scott Bales, Justice

_______________________________________
Philip Hall, Judge*

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

62

APPENDIX

(1) The death penalty is per se cruel and unusual
punishment. Gregg v. Georgia, 428 U.S. 153, 186-87 (1976);
State v. Salazar, 173 Ariz. 399, 411, 844 P.2d 566, 578
(1992).

(2) Execution by lethal injection is per se cruel and
unusual punishment. State v. Hinchey, 181 Ariz. 307, 315,
890 P.2d 602, 610 (1995).

(3) The statute unconstitutionally requires imposition of
the death penalty whenever at least one aggravating
circumstance and no mitigating circumstances exist. Walton
v. Arizona, 497 U.S. 639, 648 (1990); State v. Miles, 186
Ariz. 10, 19, 918 P.2d 1028, 1037 (1996).

(4) The death penalty is unconstitutional because it permits
jurors unfettered discretion to impose death without adequate
guidelines to weigh and consider appropriate factors and
fails to provide principled means to distinguish between
those who deserve to die or live. State v. Johnson, 212
Ariz. 425, 440 ¶ 69, 133 P.3d 735, 750 (2006).

(5) Arizona’s death statute unconstitutionally requires
defendants to prove that their lives should be spared. State
v. Fulminante, 161 Ariz. 237, 258, 778 P.2d 602, 623 (1988).

(6) The statute unconstitutionally fails to require the
cumulative consideration of multiple mitigating factors or
require that the jury make specific findings as to each
mitigating factor. Gulbrandson, 184 Ariz. at 69, 906 P.2d at
602.

(7) Arizona’s statutory scheme for considering mitigating
evidence is unconstitutional because it limits full
consideration of that evidence. Mata, 125 Ariz. at 242, 609
P.2d at 57.

(8) The statute is unconstitutional because there are no
statutory standards for weighing. Atwood, 171 Ariz. at 645-
46 n.21(4), 832 P.2d at 662-63 n.21(4).

(9) Arizona’s death statute insufficiently channels the
sentencer’s discretion in imposing the death sentence. State
v. Greenway, 170 Ariz. 151, 164, 823 P.2d 22, 31 (1991).

63

(10) The prosecutor’s discretion to seek the death penalty
unconstitutionally lacks standards. Cromwell, 211 Ariz. at
192 ¶ 58, 119 P.3d at 459.

(11) Death sentences in Arizona have been applied arbitrarily
and irrationally and in a discriminatory manner against
impoverished males whose victims have been Caucasian. State
v. West, 176 Ariz. 432, 455, 862 P.2d 192, 215 (1993).

(12) The Constitution requires a proportionality review of a
defendant’s death sentence. Gulbrandson, 184 Ariz. at 73,
906 P.2d at 606.

(13) Subjecting Appellant to a second trial on the issue of
aggravation and punishment before a new jury violates the
double jeopardy clause of the Fifth Amendment. Ring III,
204 Ariz. at 550 ¶ 39, 65 P.3d at 931.

(14) Appellant’s death sentence is in violation of his rights
to a jury trial, notice and due process the Fifth, Sixth and
Fourteenth Amendments since he was not indicted for a capital
crime. McKaney v. Foreman, 209 Ariz. 268, 271 ¶ 13, 100 P.3d
18, 21 (2004).

(15) Imposition of a death sentence under a statute not in
effect at the time of Appellant’s trial violates due process
under the Fourteenth Amendment. Ellison, 213 Ariz. at 136 ¶
85, 140 P.3d at 919.

(16) The absence of notice of aggravating circumstance prior
to Appellant’s guilt phase violated the Sixth, Eighth and
Fourteenth Amendments. Anderson II, 210 Ariz. at 347 ¶¶ 79-
80, 82, 111 P.3d at 389.

(17) The reasonable doubt jury instruction at the aggravation
trial lowered the state’s burden of proof and deprived
Appellant of his right to a jury trial and due process under
the Sixth and Fourteenth Amendments. Dann I, 205 Ariz. at
575-76 ¶ 74, 74 P.3d at 249-50.

(18) Arizona’s death statute creates an unconstitutional
presumption of death and places an unconstitutional burden on
Appellant to prove mitigation is “sufficiently substantial to
call for leniency.” State v. Glassel, 211 Ariz. 33, 52 ¶ 72,
116 P.3d 1193, 1212 (2005).

(19) The introduction of victim impact evidence is improper

64

because a defendant does not receive pretrial notice or an
opportunity to confront and cross examine the victim witness.
Lynn, 205 Ariz. at 191 ¶ 16, 68 P.3d at 417.

(20) The trial court improperly omitted penalty phase
instructions that the jury could consider mercy or sympathy
in evaluating the mitigation evidence and determining whether
to sentence the defendant to death. Carreon, 210 Ariz. at
70-71 ¶¶ 81-87, 107 P.3d at 916-17.

(21) Arizona’s current protocols and procedures for execution
by lethal injection constitute cruel and unusual punishment
in violation of the Eighth and Fourteenth Amendments.
Andriano, 215 Ariz. at 510 ¶¶ 61-62, 161 P.3d at 553.

(22) The jury instruction that required the jury to
unanimously determine that the mitigating circumstances were
“sufficiently substantial to call for leniency” violated the
Eighth Amendment. Ellison, 213 Ariz. at 139 ¶¶ 101-102, 140
P.3d at 922.

65