State v. KUHS

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-07-0301-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR 2005-138481
RYAN WESLEY KUHS, )
)
Appellant. ) O P I N I O N
_________________________________ )

Appeal from the Superior Court in Maricopa County
The Honorable Paul J. McMurdie, Judge

AFFIRMED
________________________________________________________________

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

MICHAEL S. REEVES, ESQ. Phoenix
By Michael S. Reeves

And

STEPHEN M. JOHNSON, P.C. Phoenix
By Stephen M. Johnson
Attorneys for Ryan Wesley Kuhs
________________________________________________________________

B E R C H, Chief Justice

¶1 A jury convicted Ryan Wesley Kuhs of first degree

burglary and first degree murder and determined that he should

be sentenced to death. In this automatic appeal, Kuhs raises
seven issues.1 Ariz. R. Crim. P. 31.2(b). We have jurisdiction

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

and Arizona Revised Statutes (A.R.S.) § 13-4031 (2001).

I. FACTUAL AND PROCEDURAL BACKGROUND2

¶2 In 2005, Ryan Kuhs entered Enrique Herrera’s apartment

and stabbed him while he slept. Herrera awoke and attempted to

defend himself. During the struggle, Kuhs stabbed Herrera

twenty-one times.

¶3 Three residents of the apartment complex saw Kuhs leave

Herrera’s apartment with blood on his shirt and arms. They

entered Herrera’s apartment, saw Herrera lying in a pool of

blood, and called 911. Herrera died later that day after being

taken to the hospital.

¶4 Kuhs went to another apartment, cleaned himself up,

changed clothes, and left the apartment complex with his bloody

clothes in a bag. When he returned later that afternoon, he was

arrested.

¶5 After being given Miranda warnings, Kuhs agreed to talk

to the police and eventually confessed to the killing. Kuhs

said that he went to Herrera’s apartment to confront him about

1
He lists thirteen additional challenges to the
constitutionality of Arizona’s death penalty scheme to avoid
preclusion. Those thirteen claims are appended to this opinion.
2
We view the facts in the light most favorable to sustaining
the verdict. State v. Moore, 222 Ariz. 1, 5 n.1 ¶ 2, 213 P.3d
150, 154 n.1 (2009).
- 2 -
an argument between the two the previous night.

¶6 The jury convicted Kuhs of first degree burglary and

first degree murder. The jury found five aggravating factors:

(1) a prior conviction for a serious offense based on the first

degree burglary from this prosecution, A.R.S. § 13-751(F)(2)

(Supp. 2009); (2) a second prior conviction for a serious

offense based on a second degree burglary, A.R.S. § 13-

751(F)(2); (3) the especially heinous, cruel, or depraved manner

of the murder, A.R.S. § 13-751(F)(6); (4) the commission of the

murder while on release from prison, A.R.S. § 13-751(F)(7)(a);

and (5) the commission of the murder while on probation for a

prior felony, A.R.S. § 13-751(F)(7)(b).

¶7 The jury found that the mitigation was not

sufficiently substantial to call for leniency and that the death

penalty should be imposed. The court sentenced Kuhs to death

for the first degree murder and to a concurrent term of twenty-

eight years for the burglary.

II. DISCUSSION

A. Guilt Phase

1. Kuhs’s competency

¶8 Kuhs argues that the trial court erred by finding him

competent to stand trial without holding an evidentiary hearing.

We review the trial court’s determination of whether to require

an evidentiary hearing on competency for abuse of discretion.
- 3 -
See State v. Amaya-Ruiz, 166 Ariz. 152, 162, 800 P.2d 1260, 1270

(1990).

¶9 In January 2006, Kuhs requested a prescreening

examination pursuant to Arizona Rule of Criminal Procedure

11.2(c), alleging that he was experiencing hallucinations.

After that preliminary examination, the court ordered a full

Rule 11 evaluation. See Ariz. R. Crim. P. 11.2(d).

¶10 During the evaluation process, Drs. Jack Potts and

Scott Sindelar independently examined Kuhs and both found him

incompetent to stand trial. They noted that he claimed to

experience auditory and visual hallucinations in which God spoke

to him. They opined, however, that Kuhs could be restored to

competency.

¶11 Based on the doctors’ reports, the trial court found

Kuhs incompetent to stand trial and ordered him committed to the

Maricopa County Correctional Health Services Restoration

Program. The trial court ordered a written report on Kuhs’s

“progress and prognosis.”

¶12 While in the restoration program, Kuhs was evaluated by

Dr. Jason Lewis, who submitted a report concluding that Kuhs had

feigned his earlier reported psychosis and was competent to

stand trial. Dr. Lewis’s report detailed Kuhs’s understanding

of the charges against him as well as the trial process and its

participants. The prosecutor and defense counsel stipulated
- 4 -
that the court could assess Kuhs’s competency based on Dr.

Lewis’s report. At a July 11, 2006 hearing, the judge found

Kuhs competent to stand trial based on “a review of that [July

4] final report as well as the pleadings filed pursuant to Rule

11.”

¶13 A defendant has a due process “right not to be tried or

convicted while incompetent.” Amaya-Ruiz, 166 Ariz. at 161, 800

P.2d at 1269 (quoting Drope v. Missouri, 420 U.S. 162, 172

(1975)). Arizona Rule of Criminal Procedure 11.2 protects that

right by providing for a prescreening examination and hearing if

reasonable grounds exist to question the accused’s competence.

“Reasonable grounds exist when ‘there is sufficient evidence to

indicate that the defendant is not able to understand the nature

of the proceeding against him and to assist in his defense.’”

Id. at 162, 800 P.2d at 1270 (quoting State v. Borbon, 146 Ariz.

392, 395, 706 P.2d 718, 721 (1985)); see also Ariz. R. Crim. P.

11.1 (prohibiting trial of a person who “is unable to understand

the proceedings against him or her or to assist in his or her

own defense”).

¶14 If the court has determined that an incompetent

defendant is restorable to competency, the court must “order the

person supervising defendant’s court-ordered restoration

treatment to file a report with the court.” Ariz. R. Crim. P.

11.5(d). When the court receives a report that the defendant
- 5 -
has become competent to stand trial, “[t]he court shall hold a

hearing to redetermine the defendant’s competency” at which the

parties may “introduce other evidence regarding the defendant’s

mental condition” or “submit the matter on the experts’

reports.” Id. R. 11.6(a), 11.5(a).

¶15 Kuhs complains that he was denied the hearing required

by Rules 11.5 and 11.6 because the court allowed “the parties

[to] stipulate[] to competency,” and by doing so, the court

violated its duty “to conduct a competency hearing” and “to make

an independent inquiry to determine [whether Kuhs] was competent

to stand trial.”

¶16 Counsel, however, did not stipulate to competency.

Instead, they stipulated to the admissibility of Dr. Lewis’s

report and presented no other evidence regarding Kuhs’s

competency. In finding that Kuhs had been restored to

competency, the trial court stated that it had reviewed Dr.

Lewis’s “final report as well as the pleadings filed pursuant to

Rule 11.” Because the same judge had presided over the initial

Rule 11 proceeding, the court was familiar with the reports

previously submitted by Drs. Potts and Sindelar. On this

record, we conclude that the trial court did not abuse its

discretion in making its competency determination without

holding an evidentiary hearing.

- 6 -
 2. Denial of motion for mistrial

¶17 During the State’s guilt phase closing argument, the

victim’s stepmother cried audibly. After the prosecutor

concluded her closing argument, Kuhs moved for a mistrial, which

the court denied. Kuhs now claims that the court erred in

denying his motion.

¶18 We review the denial of a motion for mistrial for abuse

of discretion. State v. Hoskins, 199 Ariz. 127, 142 ¶ 52, 14

P.3d 997, 1012 (2000). “This deferential standard of review

applies because the trial judge is in the best position to

evaluate ‘the atmosphere of the trial, the manner in which the

objectionable statement was made, and the possible effect it had

on the jury and the trial.’” State v. Bible, 175 Ariz. 549,

598, 858 P.2d 1152, 1201 (1993) (quoting State v. Koch, 138

Ariz. 99, 101, 673 P.2d 297, 299 (1983)).

¶19 Although Kuhs characterizes the disruption as a

“raucous outburst,” the record does not contain any direct

evidence of the disruptiveness of the incident. During the

State’s closing argument, the court asked the prosecutor to

pause, apparently in reaction to the occurrence. The only other

reference to the event in the record is the discussion between

the court and counsel held outside the jury’s presence after the

- 7 -
prosecutor’s closing argument.3

3
After the State’s closing argument, the following exchange
took place:

DEFENSE COUNSEL: I think we need to address what
happened right at the tail end of the State’s close,
their first close. I think we fought a pretty clean
trial, but that outburst at the end of the State’s
close — I know we tell the jury not to be swayed by
sympathy or passion, but then we have a wailing woman
at the end of the State’s close.

I think a mistrial is in order now. If the Court
is not inclined to grant that mistrial, then I would
ask that you instruct the victims — I understand this
is a trying time for them, but if they cannot control
themselves, that they need to leave the courtroom.

THE COURT: All right. Does the State wish to be
heard?

THE STATE: Your Honor, obviously the State didn’t
know that was going to happen.

The victims [the deceased’s father and
stepmother] have generally come to trial. They have
not shown one iota of inappropriate or even emotion at
all, including when [the stepmother] testified.

So it’s not too hard to understand why Ricky’s
stepmother would become extremely upset upon seeing
this. . . . [M]y victim advocate[] has spoken to the
family, and they understand the importance of keeping
their composure and have agreed if they cannot do
that, they will leave the court.

THE COURT: All right. Just so the record is clear, I
agree with the assessment that the next of kin, who
were in my line of sight throughout the entire
proceedings, have not acted in any inappropriate
fashion whatsoever.

There was a point towards the end of the State’s
opening argument where one of them burst into tears.
I immediately instructed the bailiff to escort the
- 8 -
¶20 On this record, we cannot conclude that the trial court

inaccurately assessed the situation or abused its discretion in

denying Kuhs’s motion for mistrial. We previously have found

that more substantial emotional outbursts in the jury’s presence

did not mandate a mistrial. In State v. Bible, 175 Ariz. at

597, 858 P.2d at 1200, for example, as the father of a murdered

girl walked out of the courtroom, he referred to the defendant

as “[t]hat f[***]ing asshole” within earshot of the judge and

jury. The judge admonished the jury to disregard the outburst,

id., and denied the defendant’s motion for mistrial, explaining:

“I don’t think it’s really the substance for a mistrial. I

don’t think there is any doubt in the jury’s mind about how [the

victim’s father] feels about [the defendant].” Id. at 597–98,

858 P.2d at 1200–01 (first alteration in original). We

emphasized that “the victim’s father had taken no action at

trial warranting reprimand or comment prior to his outburst” and

“[n]o information was conveyed other than the father’s animosity

toward Defendant, a feeling that could hardly have surprised the

jurors.” Id. at 599, 858 P.2d at 1201.

¶21 Similarly, Herrera’s stepmother’s tears did not convey

any new information to the jury. When she “burst into tears,”

she was immediately escorted from the courtroom. The court had

woman out of the courtroom, which she did. I don’t
think a mistrial is appropriate at this point, so the
motion for mistrial is denied.
- 9 -
no indication before the incident that she would respond in such

a fashion. She had behaved appropriately throughout the trial,

even during her own testimony. Finally, the trial court took

immediate and appropriate action to prevent repetition of the

incident by addressing the gallery outside the jury’s presence

and directing observers to avoid future outbursts that might

cause a mistrial. Under these circumstances, the trial court

did not abuse its discretion in denying Kuhs’s motion for

mistrial.

3. Sufficiency of the evidence to support the felony-
murder conviction

¶22 The jury found Kuhs guilty of felony murder, for which

first degree burglary served as the predicate offense. See

A.R.S. § 13-1105(A)(2) (2001) (defining felony murder as

occurring when “in the course of and in furtherance of [a

defined burglary] offense . . . , the person . . . causes the

death of any person”). The burglary charge was predicated on

Kuhs’s entry of the apartment with the intent to assault Herrera

with a knife. See A.R.S. § 13-1508(A) (defining first degree

burglary as occurring if a person commits second or third degree

burglary “and knowingly possesses . . . a deadly weapon or a

dangerous instrument in the course of committing any theft or

any felony”).

¶23 Kuhs contends that the State presented insufficient

- 10 -
evidence that he entered Herrera’s apartment with the intent to

commit aggravated assault. Instead, Kuhs argues, he entered

Herrera’s apartment intending to commit murder.4

¶24 We review the sufficiency of the evidence by

determining whether substantial evidence supports the jury’s

finding, “viewing the facts in the light most favorable to

sustaining the jury verdict.” State v. Roseberry, 210 Ariz.

360, 368–69 ¶ 45, 111 P.3d 402, 410–11 (2005). “Substantial

evidence is proof that ‘reasonable persons could accept as

adequate . . . to support a conclusion of defendant’s guilt

beyond a reasonable doubt.’” State v. Bearup, 221 Ariz. 163,

167 ¶ 16, 211 P.3d 684, 688 (2009) (alteration in original)

(quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53

(1980)).

¶25 The State introduced evidence that Kuhs entered

Herrera’s apartment uninvited and armed with a knife. In his

statement to police, Kuhs said he went to the apartment to talk

4
Kuhs argues that he “only entered the apartment to commit
murder,” not to assault Herrera. He asserts that “one cannot
commit felony murder when one committed burglary in order to
commit murder.” We rejected this argument in State v. Moore,
reasoning that it would “be anomalous to conclude that first-
degree murder occurs if a burglary with intent to assault
results in death but not if the burglary is based on the more
culpable intent to murder.” 222 Ariz. at 13-14 ¶¶ 57–63, 213
P.3d at 162–63 (concluding that proof of entering with intent to
commit murder suffices to establish felony murder through
burglary). Thus, even if Kuhs’s factual argument were correct,
his legal argument would fail.
- 11 -
to Herrera about an altercation they had the preceding night.

Kuhs explained that he thought Herrera wanted to fight him and

that Herrera was “calling [him] weak.” In a prolonged struggle,

Kuhs inflicted several non-fatal stab wounds before delivering

the wound that caused Herrera to collapse. Thus, although Kuhs

claims to have entered with the intent to murder Herrera, the

evidence amply supported the jury’s finding that he entered

Herrera’s apartment intending to commit aggravated assault.

4. Denial of motion to strike jurors for cause

¶26 Kuhs argues that the trial court erred by failing to

strike two potential jurors for cause. Neither juror was seated

on the jury. Because the State peremptorily struck one juror,

Kuhs suffered no prejudice from the trial court’s refusal to

strike that juror for cause. We therefore address only the

juror struck by Kuhs.

¶27 In State v. Hickman, 205 Ariz. 192, 201 ¶¶ 39, 41, 68

P.3d 418, 427 (2003), this Court held that when defense counsel

peremptorily strikes a juror, we will not find reversible error

based on the trial court’s refusal to remove that juror for

cause unless the resulting jury was not fair and impartial.

Kuhs does not claim that the jury that decided his case was not

fair and impartial. We therefore conclude, as we did in

Hickman, that no prejudicial error has occurred. Id.; see also

State v. Medina, 193 Ariz. 504, 510–11 ¶¶ 16–19, 975 P.2d 94,
- 12 -
100–01 (1999) (on facts similar to those in Kuhs, finding no

error in judge’s refusal to strike juror).

B. Penalty Phase

1. Jury coercion

¶28 Kuhs makes two jury coercion arguments. First, he

argues that the trial judge erred in rejecting the jury’s

“verdict” that it could not unanimously decide on a sentence of

life or death. Second, he argues that the trial court coerced

the jury verdict by giving an impasse instruction after the jury

had twice indicated that it was deadlocked.

¶29 At the beginning of the penalty phase, the court

instructed the jury as follows:

If you unanimously find that the mitigation is
not sufficiently substantial to call for leniency, you
must return a verdict of death.

Any verdict of death or life imprisonment must be
unanimous.

If you unanimously find that no mitigation
exists, then you must return a verdict of death. If
you unanimously find that mitigation exists, each one
of you must individually weigh that mitigation in
light of the aggravating circumstances already found
to exist, and if you unanimously find that the
mitigation is not sufficiently substantial to call for
leniency, you must return a verdict of death.

If you unanimously find that mitigation exists
and that it is sufficiently substantial to call for
leniency, you must return a verdict of life. If you
cannot unanimously agree on the appropriate sentence,
your foreperson shall tell the judge.

¶30 After receiving the case, the jury deliberated for less
- 13 -
than an hour before being excused for the day. The jury

deliberated for several hours on the second day and during the

morning of the third day. On returning from lunch, the jury

sent a note to the judge stating: “We, the jury, cannot

unanimously agree on the appropriate sentence.”

¶31 The trial court immediately called counsel. Both

agreed that the judge should give the following instruction,

which was given to the jury within five minutes of receiving the

jury’s note: “Please continue to deliberate until four o’clock.

. . . If you’re still deadlocked, we’ll bring you back in the

courtroom at 10 tomorrow morning.”5

¶32 The jury then deliberated until the end of the court

day. When the jury recessed, the bailiff delivered a second

note to the judge that stated, “We are still deadlocked

following our deliberation.” The court dismissed the jury for

the day.

¶33 The next morning, the trial court discussed the second

impasse note with counsel. The court suggested giving the

impasse “instruction suggested by [Rule 22.4], and approved by

the Arizona Supreme Court in [State v.] Andriano,” 215 Ariz.

5
The judge initially wanted the jurors to continue to
deliberate and return to the courtroom at 4:00 p.m. if they
remained deadlocked. One of Kuhs’s attorneys, however, could
not return that afternoon. After additional discussion with
counsel, it was agreed to address the jury the next morning at
10:00 a.m.

- 14 -
497, 508-09 ¶ 54, 161 P.3d 540, 551-52 (2007).6 Neither the

State nor defense counsel objected. Defense counsel stated as

follows: “Judge, not that I have an objection, but I just don’t

want this to be a battle in futility. If they’re locked now, I

don’t want them to go back there and get into a fist fight. If

it’s going to be a situation where it’s just not going to

happen, I think we should know that now.”

The court agreed:

And I don’t disagree with what you said. The
instruction actually asks them to write us a kind of a
note, a detailed note, to say, “How could we help
you?” And if they send me back a note, that says,
“You can’t,” then it’s over.

. . . .

I really want them to try to see if there’s
something we can’t do to help them break. . . . I
don’t know what the split is, I don’t know anything
about it. My suggestion is, we send the instruction
in, see what we get out. I don’t disagree with you.
I’m not going to let them sit there for a week.

Defense counsel approved the court’s approach.

¶34 At 10:35 a.m., the court delivered the impasse

instruction to the jury and deliberations continued. At 3:28

that afternoon, the jury announced its death penalty verdict.

6
The instruction is not in the record. Both parties agree,
however, that the court delivered an instruction that followed
the language of the sample instructions suggested in Rule 22.4
and approved by this Court in Andriano, 215 Ariz. at 508-09
¶ 54, 161 P.3d at 551-52 (instruction); id. at 510 ¶ 60, 161
P.3d at 553 (court approval of instruction). Kuhs concedes that
the language of the impasse instruction given was not coercive.
- 15 -
 a. Initial penalty-phase instruction

¶35 Kuhs argues that the instruction to the jury at the

beginning of the penalty phase gave the jurors three distinct

choices: (1) return a unanimous verdict calling for a life

sentence; (2) return a unanimous verdict calling for a death

sentence; or (3) inform the judge that the jury could not

unanimously agree on the appropriate sentence. Kuhs bases his

argument on the last sentence of the initial instruction, which

read, “[i]f you cannot unanimously agree on the appropriate

sentence, your foreperson shall tell the judge.”

¶36 Kuhs maintains that by sending two notes stating that

they were deadlocked, the jurors were informing the court that

they had chosen the third option and made a final decision that

they could not unanimously agree on a sentence. Kuhs therefore

contends that sending the jurors back twice to deliberate — once

directing them to deliberate until 4:00 p.m. and once with an

Andriano instruction — constituted coercion.

¶37 We review de novo whether the court misinstructed the

jurors. See State v. Zaragoza, 221 Ariz. 49, 53 ¶ 15, 209 P.3d

629, 633 (2009). We will not reverse a conviction unless the

instructions, taken as a whole, misled the jurors. Id.

¶38 Kuhs focuses entirely on one sentence from an

instruction given at the beginning of the penalty phase. After

closing arguments in the penalty phase, just before the start of
- 16 -
deliberations, however, the court again instructed the jury.

This time the trial court focused on how the jury should decide

on a verdict:

Ladies and gentlemen of the jury, the case is now
submitted to you for decision. . . .

You will be given one form of verdict. It reads
as follow[s] . . . :

We, the jury, duly empaneled and sworn in the
above-entitled action, upon our oaths, do unanimously
find, having considered all of the facts and
circumstances, that the defendant should be sentenced
to, and there’s a line for life or a line for death.

(Emphasis added.) Thus, just before deliberations, the jurors

were clearly instructed they had two choices: a life sentence

or a death sentence.

¶39 Kuhs contends that, to avoid confusion, the court

should have also instructed the jurors that, “if you cannot

agree, then we will give you further instructions.” But Kuhs

did not request such an instruction, so the question is whether

the instructions given so misstated the law or misled the jury

as to constitute fundamental error. We do not find that the

initial instruction either misled the jury as to its duty or

required the court to discharge the jury, without giving any

further instruction, once the jurors indicated that they could

not unanimously agree on a sentence. After reviewing all of the

penalty-phase instructions, including the specific guidance

provided just before the jury retired to deliberate, we conclude
- 17 -
that the instructions appropriately informed the jury of the

verdict and sentencing options.

b. Sending the jury back to deliberate after two
separate impasse or deadlock notes

¶40 Kuhs argues that the trial court also erred in giving

the Andriano instruction after receiving a second impasse note.

Although he made no contemporaneous objection, Kuhs now argues

that the court should instead have released the jury. Kuhs

relies on A.R.S. § 13-752(K) (Supp. 2009), which requires that,

“[a]t the penalty phase, if . . . the jury is unable to reach a

verdict, the court shall dismiss the jury and shall impanel a

new jury.”

¶41 The judge, however, need not blindly accept the jury’s

indication of an impasse. The trial judge retains authority to

assist a jury that has reached an impasse. Rule 22.4 of the

Arizona Rules of Criminal Procedure, for example, explicitly

permits the trial court to assist a deadlocked jury. It

provides that, “[i]f the jury advises the court that it has

reached an impasse,” the court may ask the jurors if the court

or counsel can assist them. Id.; see also Andriano, 215 Ariz.

at 508-09 ¶ 60, 161 P.3d at 551-52 (noting that court may assist

jury that has indicated a need for help).

¶42 We review a trial court’s response to jurors for an

abuse of discretion. See, e.g., State v. Ramirez, 178 Ariz.

- 18 -
116, 126, 871 P.2d 237, 247 (1994). In determining whether an

abuse has occurred and whether the abuse coerced the jury’s

verdict, we examine “the actions of the judge and the comments

made to the jury based on the totality of the circumstances and

attempt[] to determine if the independent judgment of the jury

was displaced.” State v. Huerstel, 206 Ariz. 93, 97 ¶ 5, 75

P.3d 698, 702 (2003).

¶43 In reviewing coercion claims, we have focused on

whether the judge knew the numerical split among the jurors.

See, e.g., State v. McCrimmon, 187 Ariz. 169, 172, 927 P.2d

1298, 1301 (1996) (calling knowledge of the jury’s numerical

division “an important factor when considering the totality of

the circumstances”); State v. McCutcheon, 150 Ariz. 317, 320,

723 P.2d 666, 669 (1986) (noting that “[w]hen the numerical

division is known, particularly if the division is lopsided,

encouraging the jury to decide can amount to coercion”). We

have also found the length of time that the jury has deliberated

when the trial court delivers an impasse instruction to be

important in determining coercion. See Huerstel, 206 Ariz. at

99 ¶ 17, 75 P.3d at 704 (determining that three days of

deliberations following a three-week trial “did not clearly

signal that this jury had reached an impasse”).

¶44 In this case, these factors do not indicate coercion.

The trial judge did not know the numerical division of the jury
- 19 -
or ask the cause of the deadlock. And the time the jury had

deliberated before sending its impasse note was relatively

brief. When the jury sent its first impasse note to the court,

it had deliberated for approximately twelve hours, including

lunch periods. Approximately three hours after being instructed

to continue deliberations, the jury delivered the second impasse

note to the court. The impasse instruction was given because

the jury had indicated that it was deadlocked, not as an

anticipatory measure motivated by the jury split or the length

of the deliberations.

¶45 Kuhs argues that this case is governed by State v.

Huerstel, in which we stated that a trial court may violate

Arizona Rule of Criminal Procedure 22.4 by giving an impasse

instruction before the jury has given an “affirmative

indication” that it needs help. 206 Ariz. at 99 ¶ 17, 75 P.3d

at 704. Kuhs argues that, as in Huerstel, the jury here never

affirmatively indicated a need for assistance.

¶46 In Huerstel, after the jury deliberated for

approximately three days without giving any indication that it

was at an impasse, the trial judge, over counsel’s objection,

gave the jury an impasse instruction. Id. at 97-98 ¶ 8, 75 P.3d

at 702-03. In contrast, Kuhs’s jury sent two notes

affirmatively indicating that it was at an impasse, and counsel

did not object to the instruction or to the court’s proposed
- 20 -
course of action.

¶47 Huerstel is distinguishable in other ways as well. In

Huerstel, our conclusion that the court coerced the jury verdict

was based not only on the trial court’s issuance of an impasse

instruction without an affirmative indication from the jury that

it had reached an impasse.7 We also relied heavily on the fact

that the trial court knew the numerical division of the jurors

and asked the holdout juror for clarification, which we found

improperly pressured one juror to reconsider his position. Id.

at 98, 101 ¶¶ 12, 25, 75 P.3d at 703, 706. In Kuhs’s case, no

such circumstances occurred.

¶48 We review the trial court’s actions by examining the

totality of the circumstances. See id. at 97–101 ¶¶ 5–25, 75

P.3d at 702–06. The record reflects that the experienced trial

judge communicated with and sought approval from counsel each

time before interacting with the jury. During these

communications, not only did neither party object, but both the

prosecutor and defense counsel affirmatively approved the trial

court’s proposed instructions and course of action. Immediately

after receiving the first note from the jury, the judge

7
In Huerstel, after finding that the trial court’s premature
issuance of an impasse instruction violated Rule 22.4, we
concluded that “standing alone, the court’s premature giving of
the instruction recommended by the comment to Rule 22.4 does not
rise to the level of reversible error.” 206 Ariz. at 100 ¶ 18,
75 P.3d at 705.
- 21 -
contacted all counsel and suggested that he would tell the jury

to “[p]lease continue to deliberate until four o’clock. . . .

If you’re still deadlocked, we’ll bring you back in the

courtroom at 10 tomorrow morning.” The prosecutor responded,

“Sure, that’s fine, Judge,” and defense counsel replied, “I

don’t have any problem with that.”

¶49 The next day, after the judge had received a second

note from the jury indicating deadlock, he told counsel that he

intended to give the jurors “the instruction suggested by Rule

[22.4] and approved by the Arizona Supreme Court in Andriano.”

The State did not object, nor did Kuhs’s counsel, who responded,

“not that I object . . . to the instruction, but if it’s going

to be a . . . futile attempt, I would hate to send them back in

there and get things even more cantankerous.” The trial court

agreed with defense counsel and acknowledged that if, upon

receiving the impasse instruction, the jury decided there was

nothing that the court could do to help, then the court would

declare the case “over.” Defense counsel then approved the

court’s proposed course of action.

¶50 On this record, we cannot find an abuse of discretion.

Although we do not find the trial court’s actions coercive in

this case, we caution that, with less careful instruction and

absent defense counsel’s approval of the court’s proposed

actions, impermissible coercion might well be found when a jury
- 22 -
twice indicates a deadlock. The penalty phase of a capital case

is unique. Unlike any other part of the trial, the jury’s

determination that a particular mitigating circumstance exists

need not be unanimous, A.R.S. § 13-751(C) (Supp. 2009), and

whether to impose the death penalty is based on “each juror’s

individual, qualitative evaluation of the facts of the case, the

severity of the aggravating factors, and the quality of any

mitigating evidence.” State ex rel. Thomas v. Granville, 211

Ariz. 468, 472 ¶ 17, 123 P.3d 662, 666 (2005). Because of the

individual nature of the penalty determination, there is more

cause for concern that jurors may be coerced rather than

convinced to change their views. Therefore, we caution trial

courts to exercise special care, as did the court here, when

faced with circumstances similar to those presented in this

case.

2. Jury instructions regarding sympathy

¶51 During the guilt phase of the trial, the jury was

instructed that it “must not be influenced by sympathy or

prejudice.” At the aggravation phase, the court instructed that

“[i]n deciding whether an aggravating circumstance exists,

you’re not to be swayed by mere sentiment, conjecture, sympathy,

passion, prejudice, public opinion, or public feeling.”

¶52 Kuhs contends that these guilt- and aggravation-phase

instructions resulted in an improperly instructed penalty-phase
- 23 -
jury because these earlier instructions could have led the jury

to disregard sympathy during its penalty-phase deliberations.

Because Kuhs did not object at trial, we review Kuhs’s claim for

fundamental error. See State v. Valenzuela, 194 Ariz. 404, 405

¶ 2, 984 P.2d 12, 13 (1999).

¶53 To avoid confusing the jury regarding the applicable

instructions, at the penalty phase the court destroyed all of

the earlier jury instructions, without objection by either side.

The court then issued new instructions, which included the

following:

You must not be influenced at any point in these
proceedings by conjecture, passion, prejudice, public
opinion, or public feeling. Do not be swayed by mere
sympathy not related to the evidence presented during
the penalty phase.

. . . .

Mitigating circumstances are any factors that are a
basis for a life sentence instead of a death sentence,
including any sympathetic or other aspect of the
defendant’s character, propensity, history or record, or
circumstances of the offense.

Mitigating circumstances are not an excuse or
justification for the offense, but are factors that, in
fairness or mercy, may be considered by you as
extenuating or reducing the degree of defendant’s moral
culpability or blameworthiness.

. . . You must consider and give effect to all
mitigating circumstances that have been raised by any
aspect of the evidence. You must disregard any jury
instruction given to you at any other phase of this
trial that conflicts with this principle.

(Emphasis added.)
- 24 -
¶54 “The Eighth and Fourteenth Amendments of the United

States Constitution require that the sentencer in a capital case

‘not be precluded from considering, as a mitigating factor, any

aspect of a defendant’s character or record and any of the

circumstances of the offense that the defendant proffers as a

basis for a sentence less than death.’” State v. Carreon, 210

Ariz. 54, 70 ¶ 83, 107 P.3d 900, 916 (2005) (emphasis omitted)

(quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)). Kuhs

argues that if the jurors remembered the guilt- and aggravation-

phase instructions and focused on them rather than the penalty-

phase instructions they had just been given, they might have

thought they were precluded from considering sympathy.

¶55 We presume that the jurors follow instructions. See

State v. Velazquez, 216 Ariz. 300, 312 ¶ 50, 166 P.3d 91, 103

(2007) (citing State v. Newell, 212 Ariz. 389, 403 ¶ 68, 132

P.3d 833, 847 (2006)). Kuhs does not provide any reason for us

to conclude that the jurors chose to follow the earlier jury

instructions, especially in light of the court’s destruction of

the earlier instructions, provision of new written instructions

for the penalty phase, and direction to the jurors to disregard

any “jury instructions given to you at any other phase of this

trial that conflict [with each juror’s duty to consider all

mitigating evidence].” The penalty-phase instructions

- 25 -
appropriately instructed the jury.

¶56 But even if the court had not informed the jurors at

the penalty phase to disregard the guilt-phase instructions on

sympathy, such inaction would not constitute fundamental error.

See Carreon, 210 Ariz. at 71 ¶ 87, 107 P.3d at 917.

3. Constitutionality of Arizona’s death-by-lethal-
injection statute

¶57 The death penalty in Arizona is “inflicted by an

intravenous injection of a substance or substances in a lethal

quantity sufficient to cause death, under the supervision of the

state department of corrections.” A.R.S. § 13-757(A) (Supp.

2009). Kuhs argues that § 13-757(A) is unconstitutionally vague

because it “does not establish a detailed protocol of chemicals

to be used . . . [or] standards for the training and expertise

of persons . . . conducting the executions.”

¶58 We have previously found that Arizona’s death penalty

statute is not unconstitutionally vague in prescribing lethal

injection as the method for imposing the death sentence.

Andriano, 215 Ariz. at 510 ¶¶ 61-62, 161 P.3d at 553. We have

also held that a challenge to the protocol to be used during a

lethal injection must be made by petition filed pursuant to

Arizona Rule of Criminal Procedure 32. Id. ¶ 62.

III. REVIEW OF SENTENCE

¶59 Because Kuhs’s offense occurred after August 1, 2002,

- 26 -
we review the jury’s finding of aggravating circumstances and

verdict of death for abuse of discretion. A.R.S. § 13-756

(Supp. 2009). Although Kuhs did not argue that the jury abused

its discretion, our review is mandatory. State v. Morris, 215

Ariz. 324, 340 ¶ 76, 160 P.3d 203, 219 (2007).

A. Aggravating Circumstances

¶60 We first consider the jury’s finding of aggravating

circumstances. We will uphold a jury decision “if there is ‘any

reasonable evidence in the record to sustain it.’” Id. at 341

¶ 77, 160 P.3d at 220 (quoting State v. Veatch, 132 Ariz. 394,

396, 646 P.2d 279, 281 (1982)).

¶61 The jury found five aggravating circumstances beyond a

reasonable doubt: (1) Kuhs was convicted of the first degree

burglary from this prosecution, A.R.S. § 13-751(F)(2) (Supp.

2009); (2) he had a previous conviction for a serious offense —

a second degree burglary charge, A.R.S. § 13-751(F)(2); (3) he

committed the murder in an especially heinous, cruel, or

depraved manner, A.R.S. § 13-751(F)(6); (4) he committed the

murder while on release from prison, A.R.S. § 13-751(F)(7)(a);

and (5) he committed the murder while on probation for a prior

felony, A.R.S. § 13-751(F)(7)(b).

¶62 The only aggravator that Kuhs contested at trial was

- 27 -
whether the murder was especially cruel.8 To prove cruelty, the

State must prove “that the manner of death caused the victim to

suffer mental and physical anguish and the defendant knew or

should have known that suffering would occur.” State v. Cañez,

205 Ariz. 620, 624 ¶ 14, 74 P.3d 932, 936 (2003) (internal

citation and quotation marks omitted). The State established

special cruelty by showing that Herrera suffered significant

pain before his death. Not only was he stabbed several times,

but he ultimately died by bleeding to death while choking on his

own blood. Herrera had ample opportunity not only to feel pain,

but also to contemplate his impending death. After the final

stab wound to the head, Herrera was not immediately unconscious,

but lay immobile in a pool of his blood. Kuhs left Herrera

alive and dying after the fight and took no action to alleviate

his suffering. We conclude that the jury did not abuse its

discretion in finding that the State proved the (F)(6)

aggravator beyond a reasonable doubt.

B. Propriety of the Death Sentence

¶63 We also must consider whether the jury abused its

discretion in determining that death is the appropriate

8
The jury plainly did not abuse its discretion in finding
the (F)(2) or (F)(7) aggravators. The State properly used the
burglary conviction from this case and a prior burglary
conviction to establish the (F)(2) aggravating factors, see
A.R.S. § 13-751(F)(2), and proved that Kuhs committed this
murder while on release from prison and serving probation for a
prior offense, see A.R.S. § 13-751(F)(7).
- 28 -
sentence. Although Kuhs presented mitigation evidence, the jury

found the mitigation not sufficiently substantial to call for

leniency. See A.R.S. § 13-751(E). “[W]e will not reverse the

jury’s decision so long as any reasonable jury could have

concluded that the mitigation established by the defendant was

not sufficiently substantial to call for leniency.” Morris, 215

Ariz. at 341 ¶ 81, 160 P.3d at 220.

¶64 Kuhs contended that the crime resulted from poor

impulse control caused by ADHD or antisocial personality

disorder. Kuhs was relatively young (twenty-one) when the

murder occurred, he grew up in a poor family, and he was abused

at least once at age nine by his mother’s boyfriend. The record

also contains some evidence of remorse and testimony from which

the jury could have found that Kuhs was under the influence of

methamphetamine, marijuana, or alcohol during the attack,

although he was not so impaired as to preclude criminal

responsibility.

¶65 The mitigation in this case, however, was not

compelling. Kuhs’s alleged mental disorder is linked to the

incident itself only insofar as it might have made Kuhs more

impulsive. And Kuhs’s childhood was not so difficult or abusive

that it mitigates his actions in committing this murder.

Moreover, there was evidence that Kuhs possessed average or

above average intelligence. Under the highly deferential
- 29 -
standard of review, we cannot conclude that the jury abused its

discretion in not finding the mitigation sufficiently

substantial to call for leniency and instead rendering a verdict

of death in this case.

IV. CONCLUSION

¶66 For the foregoing reasons, we affirm Kuhs’s conviction

and death sentence.

_______________________________________
Rebecca White Berch, Chief Justice

CONCURRING:

_______________________________________
Andrew D. Hurwitz, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
W. Scott Bales, Justice

_______________________________________
A. John Pelander, Justice

- 30 -
 APPENDIX9

Issues Raised to Avoid Federal Preclusion

For purposes of federal review, Kuhs raises the following

thirteen challenges to the constitutionality of Arizona’s death

penalty scheme to avoid preclusion:

1. The death penalty is cruel and unusual under any

circumstances and violates the Eighth and Fourteenth Amendments

to the United States Constitution and Article 2, § 15 of the

Arizona Constitution. State v. Harrod, 200 Ariz. 309, 320, 26

P.3d 492, 503 (2001).

2. The death penalty is imposed arbitrarily and

irrationally in Arizona in violation of the Eighth and

Fourteenth Amendments to the United States Constitution and

Article 2, § 15 of the Arizona Constitution, as well as

Appellant’s right to due process under the Fourteenth Amendment

to the United States Constitution and Article 2, § 4 of the

Arizona Constitution. State v. Beaty, 158 Ariz. 232, 762 P.2d

519 (1988).

3. Application of the death penalty on the facts of this

case would constitute cruel and unusual punishment in violation

of the Eighth and Fourteenth Amendments to the United States

Constitution and Article 2, §§ 1, 4, and 15 of the Arizona

9
The Appendix is taken verbatim from Kuhs’s list of issues
raised to avoid preclusion.
- 31 -
Constitution.

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

has no standards and therefore violates the Eighth and

Fourteenth Amendments to the United States Constitution and

Article 2, §§ 1, 4, and 15 of the Arizona Constitution. State

v. Sansing, 200 Ariz. 347, 361, 26 P.3d 1118, 1132 (2001).

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

discriminate against poor, young, and male defendants in

violation of Article 2, §§ 1, 4, and 13 of the Arizona

Constitution. Sansing, 200 Ariz. at 361, 26 P.3d at 1132.

6. The absence of proportionality review of death

sentences by Arizona courts denies capital defendants due

process of law and equal protection and amounts to cruel and

unusual punishment in violation of the Fifth, Eighth, and

Fourteenth Amendments to the United States Constitution and

Article 2, § 15 of the Arizona Constitution. Harrod, 200 Ariz.

at 320, 26 P.3d at 503. Proportionality review serves to

identify which cases are above the “norm” of first-degree murder

thus narrowing the class of defendants who are eligible for the

death penalty.

7. Arizona’s capital sentencing scheme is

unconstitutional because it does not require that the State

prove that the death penalty is appropriate. Failure to require

this proof violates the Fifth, Eighth, and Fourteenth Amendments
- 32 -
to the United States Constitution and Article 2, § 15 of the

Arizona Constitution. State v. Ring, 200 Ariz. 267, 284, 25

P.3d 1139, 1156 (2001) (Ring I), rev’d on other grounds by Ring

v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 2443 (2002).

8. A.R.S. § 13-703.01 provides no objective standards to

guide the sentencing judge in weighing the aggravating and

mitigating circumstances and therefore violates the Eighth and

Fourteenth Amendments of the United States Constitution and

Article 2, § 15 of the Arizona Constitution. State v. Pandeli,

200 Ariz. 365, 382, 26 P.3d 1136, 1153 (2001).

9. Arizona’s death penalty scheme is unconstitutional

because it does not require the sentencer to find beyond a

reasonable doubt that the aggravating circumstances outweigh the

accumulated mitigating circumstances, in violation of the Fifth,

Eighth, and Fourteenth Amendments to the United States

Constitution and Article 2, §§ 4 and 15 of the Arizona

Constitution. State v. Poyson, 198 Ariz. 70, 83, 7 P.3d 79, 92

(2000).

10. A.R.S. § 13-703.01 does not sufficiently channel the

sentencer’s [sic]. Aggravating circumstances should narrow the

class of persons eligible for the death penalty and reasonably

justify the imposition of a harsher penalty. The broad scope of

Arizona’s aggravating factors encompasses nearly anyone involved

in a murder, in violation of the Eighth and Fourteenth
- 33 -
Amendments to the United States Constitution and Article 2, § 15

of the Arizona Constitution. Pandeli, 200 Ariz. at 382, 26 P.3d

at 1153.

11. Execution by lethal injection is cruel and unusual

punishment in violation of the Eighth and Fourteenth Amendments

to the United States Constitution and Article 2, § 15 of the

Arizona Constitution. State v. Hinchey, 181 Ariz. 307, 315, 890

P.2d 602, 610 (1994).

12. Arizona’s death penalty unconstitutionally requires

imposition of the death penalty whenever at least one

aggravating circumstance and no mitigating circumstances exist,

in violation of the Eighth and Fourteenth Amendments to the

United States Constitution and Article 2, § 15 of the Arizona

Constitution. State v. Miles, 186 Ariz. 10, 19, 918 P.2d 1028,

1037 (1996).

13. Arizona’s death penalty statute is unconstitutional in

that it requires defendants to prove their lives should be

spared, in violation of the Eighth and Fourteenth Amendments to

the United States Constitution and Article 2, § 15 of the

Arizona Constitution. State v. Fulminante, 161 Ariz. 237, 258,

778 P.2d 602, 623 (1988).

- 34 -