State v. Dixon

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-08-0025-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2002-019595
CLARENCE WAYNE DIXON, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Andrew G. Klein, Judge

AFFIRMED
________________________________________________________________

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Jeffrey A. Zick, Assistant Attorney General
Attorneys for State of Arizona

BRUCE PETERSON, OFFICE OF THE LEGAL ADVOCATE Phoenix
By Consuelo M. Ohanesian, Deputy Legal Advocate
Attorneys for Clarence Wayne Dixon
________________________________________________________________

H U R W I T Z, Vice Chief Justice

¶1 Clarence Wayne Dixon was convicted of first degree

murder and sentenced to death. We have jurisdiction over his

automatic appeal under Article VI, Section 5(3) of the Arizona

Constitution and A.R.S. §§ 13-4031 and 13-4033(A)(1) (2011).1

1
This opinion cites the current version of statutes that
have not materially changed since the events at issue.

I. FACTUAL AND PROCEDURAL BACKGROUND2

¶2 On January 6, 1978, Deana Bowdoin, a 21-year-old

Arizona State University senior, had dinner with her parents and

then went to a nearby bar to meet a female friend. The two

arrived at the bar at 9:00 p.m. and stayed until approximately

12:30 a.m., when Deana told the friend she was going home and

drove away alone.

¶3 Deana and her boyfriend lived in a Tempe apartment.

He returned to their apartment at about 2:00 a.m. after spending

the evening with his brother and found Deana dead on the bed.

She had been strangled with a belt and stabbed several times.

¶4 Investigators found semen in Deana’s vagina and on her

underwear, but could not match the resulting DNA profile to any

suspect. In 2001, a police detective checked the profile

against a national database and found that the profile matched

that of Clarence Dixon, an Arizona prison inmate. Dixon had

lived across the street from Deana at the time of the murder.

None of Deana’s friends or family knew of previous contact

between her and Dixon.

¶5 Dixon was charged with first degree murder and chose

to represent himself. The jury found that he had committed both

premeditated and felony murder. In the aggravation phase, the

2
We view the facts “in the light most favorable to upholding
the verdicts.” State v. Chappell, 225 Ariz. 229, 233 ¶ 2 n.1,
236 P.3d 1176, 1180 n.1 (2010).
2

jury found that Dixon had previously been convicted of a crime

punishable by life imprisonment, A.R.S. § 13-751(F)(1), and that

the murder was especially cruel and heinous, A.R.S. § 13-

751(F)(6). In the penalty phase, the jury determined that Dixon

should be sentenced to death.

II. ISSUES ON APPEAL

A. Prosecutorial Misconduct

¶6 A woman testified at trial that Dixon sexually

assaulted her in 1985 while she was a 21-year-old student at

Northern Arizona University. The court admitted this testimony

under Arizona Rule of Evidence 404(c) after conducting a pre-

trial evidentiary hearing. Dixon does not deny that he

committed the 1985 rape, but claims that because the medical

examiner could not conclusively opine that Deana had also been

raped, the prosecutor committed misconduct by offering the

testimony of the 1985 victim.

1. Standard of review

¶7 A defendant seeking reversal of a conviction for

prosecutorial misconduct must establish that “(1) misconduct is

indeed present; and (2) a reasonable likelihood exists that the

misconduct could have affected the jury’s verdict, thereby

denying [the] defendant a fair trial.” State v. Velazquez, 216

Ariz. 300, 311 ¶ 45, 166 P.3d 91, 102 (2007) (alteration in

original) (internal quotation marks omitted). Because Dixon

3

made no claim of prosecutorial misconduct below, we review for

fundamental error. See State v. Henderson, 210 Ariz. 561, 567

¶ 19, 115 P.3d 601, 607 (2005).

2. The prosecutor did not commit misconduct

¶8 The trial judge ruled the 1985 victim’s testimony

admissible after conducting a pre-trial evidentiary hearing. At

trial, the prosecutor offered only the evidence that the judge

expressly permitted in his pre-trial order. This is plainly not

misconduct.

¶9 Dixon nonetheless argues that the prosecutor committed

misconduct because he knew that the State could not prove that

Deana had been raped, and the prior acts therefore could not

demonstrate “an aberrant sexual propensity to commit the crime

charged,” as Rule 404(c)(1)(B) requires. The jury, however,

convicted Dixon of felony murder, and rape was the charged

predicate felony. On appeal, Dixon has not directly challenged

the sufficiency of the evidence to support that verdict.

¶10 In any event, the record does not support Dixon’s

argument. Although the testifying medical examiner could not

independently verify that Deana had been raped, he refused to

rule out a sexual assault. Rather, he affirmed that “rape can

occur with no injuries.”

¶11 There was ample evidence from which the jury could

conclude that Deana had been raped. She had left a bar alone at

4

12:30 a.m. and was found dead in her apartment, with a belt

tightly cinched around her neck, only 90 minutes later. Dixon’s

semen was found on her underpants (which she had first put on

that evening) and in her vagina. Deana had no known previous

acquaintance with Dixon. She had indentations on her right

wrist, indicating she had been restrained. Her clothing was

disheveled, and she had urinated on the bed. Dixon’s claim that

the prosecutor “misled the trial court” as to whether Deana had

been raped finds no support in the record.

B. Admissibility of the Rule 404(c) Evidence

¶12 Although Dixon does not directly argue that the other

acts evidence was improperly admitted, that argument underpins

his misconduct allegations. Assuming that the argument is

before us, we find it unavailing.

¶13 To admit evidence of another sexual offense, the trial

court must find:

(A) The evidence is sufficient to permit the trier of
fact to find that the defendant committed the
other act.

(B) The commission of the other act provides a
reasonable basis to infer that the defendant had
a character trait giving rise to an aberrant
sexual propensity to commit the crime charged.

(C) The evidentiary value of proof of the other act
is not substantially outweighed by danger of
unfair prejudice, confusion of issues, or other
factors mentioned under Rule 403. . . .

5

Ariz. R. Evid. 404(c)(1). As required by State v. Aguilar, 209

Ariz. 40, 49 ¶ 30, 97 P.3d 865, 874 (2004), the trial court made

specific findings on each of the three Rule 404(c)(1)

requirements before admitting the 1985 victim’s testimony.

Those findings are well supported by the record.

¶14 Dixon was convicted of the 1985 sexual assault. As he

conceded below, this conviction satisfies the requirement of

Rule 404(c)(1)(A) that the evidence be sufficient to allow the

trier of fact to conclude that the defendant committed the other

act.

¶15 The evidence also provided the superior court a

reasonable basis for concluding pursuant to Rule 404(c)(1)(B)

that Dixon “has a character trait giving rise to an aberrant

sexual propensity to commit the crime charged (sexual assault

against non-consenting adult females).” A psychologist and

expert on sex offenders testified at the pre-trial hearing about

important similarities between the 1985 rape and this case.

Both victims were 21-year-old college students with brown hair,

brown eyes, and similar height and weight. In each case, a

knife was used, the victim was restrained, and homicide was

either threatened or occurred. Both victims had apparently been

re-dressed after the rape. The expert opined that Dixon had an

aberrant propensity to commit sexual assault. Given the expert

testimony and the substantial similarities between the two

6

crimes, the trial court’s propensity determination was

appropriate. See Ariz. R. Evid. 404(c)(1)(B), cmt. to 1997

Amend. (finding can be based on “expert testimony” or other

facts).

¶16 Rule 404(c)(1)(C) requires that the evidentiary value

of the other sexual conduct not be substantially outweighed by

the danger of unfair prejudice. The trial judge did not abuse

his discretion in concluding that Rule 404(c)(1)(C) was

satisfied. In finding the other act not unduly remote, the

judge noted that Dixon was out of custody for only about a year

between the incidents. Sexual intercourse plainly occurred

between Dixon and Deana, so the real question – at least for

determining whether the predicate felony of rape occurred – was

whether the sex was consensual. Dixon repeatedly intimated

during trial that Deana had consented to sex. His 1985 sexual

assault of another victim of the same age under strikingly

similar circumstances had significant probative value in

refuting that claim and establishing that a rape occurred in

this case.

C. Physical Restraints

¶17 At trial, Dixon was required to wear a stun belt and a

leg brace under his clothing. Citing Deck v. Missouri, 544 U.S.

622 (2005), he argues that these restraints violated his right

to a fair trial.

7

1. Relevant facts

¶18 When Dixon was tried, the Maricopa County Sheriff’s

Office required in-custody defendants who were dressed in

civilian clothing to wear a leg brace and a stun belt while in

court. Before trial, Dixon moved only to “exclud[e] the leg

brace,” arguing that “[t]he wearing of the stun waist belt

security device would allow [him] the freedom of expression

before the jury that the State will enjoy.”

¶19 The trial judge denied the motion, stating that “there

are [jail] security policies for all in-custody defendants who

dress out in civilian clothes” and refusing to “mak[e] an

exception.” The court initially instructed Dixon to remain

seated at counsel table in the jury’s presence to avoid any

possibility that the security devices would be visible to them.

Dixon instead sought to move about the courtroom during trial.

Expressing concern that the leg brace might cause Dixon to walk

awkwardly, the judge said “if you want to make a motion to allow

you to stand up or to approach and you waive your right to have

the jury not see you walking in a stilted fashion, I’ll consider

it.”

¶20 A week later, Dixon demanded use of a podium to

question witnesses. After Dixon acknowledged the risk that a

jury might draw an inference from his movement, the judge

acceded, stating “[t]he Court finds your decision to approach

8

the podium even though you have leg braces on and even though

there is a possibility a jury could draw inferences is a

knowing, voluntary, and intelligent one.”

¶21 The judge nonetheless repeatedly took steps to prevent

the jury from seeing the leg brace and stun belt. The court

arranged for Dixon to be standing at the podium when the jury

entered the courtroom and reminded Dixon outside the jury’s

presence not to allow the jury to “see him walk.” The court

instructed advisory counsel to approach for bench conferences

and to show evidence to witnesses, and told Dixon not to

approach the bench. The court also told Dixon several times to

not turn his back to the jury and bend over, as doing so might

show the outline of the stun belt under Dixon’s shirt.

2. Standard of review

¶22 Generally, “[m]atters of courtroom security are left

to the discretion of the trial court.” State v. Davolt, 207

Ariz. 191, 211 ¶ 84, 84 P.3d 456, 476 (2004). “We will uphold a

trial court’s decision concerning trial security measures when

the decision is supported by the record.” Id. However, “courts

cannot routinely place defendants in shackles or other physical

restraints visible to the jury” during a trial absent a case

specific finding of a security concern. Deck, 544 U.S. at 633

9

(emphasis added).3

¶23 Dixon argues that the trial judge erred by not making

the requisite finding. The State contends that this argument

was waived because it was not made at trial. Dixon’s pre-trial

motion, however, sufficiently preserved the objection to the leg

brace. See State v. Anthony, 218 Ariz. 439, 446 ¶ 38, 189 P.3d

366, 373 (2008).

¶24 Dixon, however, never objected to the stun belt, and

indeed suggested that the belt would not impair his opportunity

to defend himself. Therefore, we review the stun belt issue for

fundamental error. Cf. State v. Mills, 196 Ariz. 269, 272-73

¶ 13, 995 P.2d 705, 708-09 (App. 1999) (issue waived when

defendant initially questioned the use of shackles, but did not

further object after switching to a concealed leg brace). Dixon

must prove “both that fundamental error exists and that the

error in his case caused him prejudice.” Henderson, 210 Ariz.

at 567 ¶ 20, 115 P.3d at 607.

3. Alleged Deck error

a. Case specific determination

¶25 Before authorizing visible restraints, the trial court

3
During the guilt phase, Deck wore “leg braces that
apparently were not visible to the jury.” 544 U.S. at 624.
Deck did not challenge the leg braces on appeal. Deck v. State,
68 S.W.3d 418 (Mo. 2002). After his first sentence was set
aside on unrelated grounds, id., Deck wore handcuffs, leg irons,
and a belly chain at his resentencing, Deck, 544 U.S. at 625.
10

must make a “case specific” determination reflecting “particular

concerns, say, special security needs or escape risks, related

to the defendant on trial.” Deck, 544 U.S. at 633. “A decision

based solely on a general jail policy of shackling defendants

who wear jail garb or exercise their constitutional right to

represent themselves is clearly not the kind of ‘case specific’

determination of ‘particular concerns’ that Deck requires.”

State v. Gomez, 211 Ariz. 494, 504 ¶ 49, 123 P.3d 1131, 1141

(2005) (footnote omitted). A trial judge “must have grounds for

ordering restraints and should not simply defer to the

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

security personnel’s preference for the use of restraints.

Rather, the judge should schedule a hearing at the defendant’s

request regarding the need for the restraints.” State v. Cruz,

218 Ariz. 149, 168 ¶ 119, 181 P.3d 196, 215 (2008).

¶26 The trial judge here cited only jail policy and made

no particularized finding of the need for security measures. We

reiterate that judges should not simply defer to jail policy in

ordering restraints of defendants. Rather, they should

determine on a case-by-case basis whether security measures are

required as to the particular defendant before them.

¶27 Deck, however, requires reversal only if restraints

are “visible to the jury.” Deck, 544 U.S. at 633; Gomez, 211

Ariz. at 504 ¶ 50, 123 P.3d at 1141; see also Mills, 196 Ariz.

11

at 272-73 ¶ 13, 995 P.2d at 708-09 (observing that “an unseen

restraint could not have affected the presumption of innocence”

(internal quotation marks omitted)). The central issue here is

thus whether the restraints were visible.

b. Leg brace

¶28 In Gomez, we rejected the State’s argument that “leg

irons” and “chains” were not visible, in large part because the

trial judge offered to instruct the jury not to consider “the

chains.” 211 Ariz. at 504 ¶ 50, 123 P.3d at 1141. Unlike leg

irons or shackles, however, leg braces and stun belts are

typically worn under a defendant’s clothes, as they were here.

¶29 Dixon cites no case holding that concealed leg braces

violate the rule announced in Deck. Rather, the reported

decisions correctly treat a leg brace worn under clothing as not

visible in the absence of evidence to the contrary. See, e.g.,

State v. Ninci, 936 P.2d 1364, 1387 (Kan. 1997); Zink v. State,

278 S.W.3d 170, 186 (Mo. 2009). There is no evidence here that

the jury either saw the brace or inferred that Dixon wore one.

Cf. State v. Wassenaar, 215 Ariz. 565, 576 ¶ 44, 161 P.3d 608,

619 (App. 2007) (“While Defendant contends that several jurors

did see the restraints at some unspecified time, he provided no

admissible evidence to support his contention.”).

c. Stun belt

¶30 Because Dixon did not object to the stun belt below,

12

under fundamental error review he must show that it was visible

to the jury. He has not met that burden. Although the trial

judge, in warning Dixon not to bend over or turn his back to the

jury, speculated that jurors might be able to see the outline of

the belt beneath Dixon’s clothing, Dixon has not established

that the jury actually saw the belt or inferred its presence.

¶31 Dixon cites United States v. Durham, 287 F.3d 1297,

1305 (11th Cir. 2002), which suggests that even a non-visible

stun belt might violate the right to a fair trial. But the

Durham court was primarily concerned about the defendant’s

argument that the threat of electric shock would inhibit his

ability to communicate with counsel and participate in his

defense. Id. at 1305-06. In contrast, Dixon did not object to

the stun belt, expressly conceding that the non-visible belt

would allow him to freely express himself in court. Under these

circumstances, we find no fundamental error.

d. Harmless error

¶32 Even when visible restraints are improperly imposed,

“[w]hen it is clear beyond a reasonable doubt that a rational

jury would have found the defendant guilty absent the error, the

error is harmless.” Hymon v. State, 111 P.3d 1092, 1099 (Nev.

2005); see also Deck, 544 U.S. at 635 (noting applicability of

harmless error doctrine). Given the DNA evidence implicating

Dixon and the circumstances of the crime, this is such a case.

13

To conclude that Dixon had not committed the murder, the jury

would have had to accept that Deana agreed, in the ninety

minutes between the time she left the bar and was found dead, to

have had sex with Dixon, apparently a complete stranger, and

that after Dixon left her apartment, another person entered the

apartment, strangled and stabbed her.

D. Admission of Dr. Keen’s Testimony

¶33 Dr. Heinz Karnitschnig, the Maricopa County medical

examiner at the time of the murder, conducted the autopsy and

prepared a report. He did not testify at trial. Instead, Dr.

Philip Keen, who had more recently served as the medical

examiner, testified based on his review of the autopsy report

and photographs. Neither the report nor the photographs were

admitted into evidence.

¶34 Citing Crawford v. Washington, 541 U.S. 36 (2004),

Dixon contends that Dr. Keen’s testimony violated the Sixth

Amendment’s Confrontation Clause. Dixon did not raise this

argument below, so we review only for fundamental error. State

v. Womble, 225 Ariz. 91, 96 ¶ 10, 235 P.3d 244, 249 (2010). We

find no error, fundamental or otherwise.

¶35 Because the State does not argue to the contrary, we

assume arguendo that the autopsy report itself was testimonial

hearsay. But see United States v. De La Cruz, 514 F.3d 121, 133

(1st Cir. 2008) (autopsy reports not testimonial hearsay under

14

Crawford); United States v. Feliz, 467 F.3d 227, 230 (2d Cir.

2006) (same). But that assumption avails Dixon not at all,

because the autopsy report was not admitted into evidence.

Rather, Dixon argues that Dr. Keen’s testimony, which relied on

the objective data in the report, was testimonial hearsay and

thus violated the Confrontation Clause.

¶36 We have previously rejected this very argument. See,

e.g., State v. Snelling, 225 Ariz. 182, 187 ¶ 21, 236 P.3d 409,

414 (2010); State v. Smith, 215 Ariz. 221, 228 ¶ 23, 159 P.3d

531, 538 (2007). Our cases teach that a testifying medical

examiner may, consistent with the Confrontation Clause, rely on

information in autopsy reports prepared by others as long as he

forms his own conclusions. Smith, 215 Ariz. at 228 ¶ 23, 159

P.3d at 538; State v. Gomez, 226 Ariz. 165, 169-70 ¶ 22, 244

P.3d 1163, 1167-68 (2010) (“[A] medical examiner may offer an

expert opinion based on review of reports and test results

prepared by others, as long as the testifying expert does not

simply act as a conduit for another non-testifying expert’s

opinion.” (internal quotation marks omitted)); cf. Ariz. R.

Evid. 703 (allowing testifying expert to rely on data not

admitted into evidence).

¶37 Dr. Keen’s testimony is indistinguishable from that

upheld in our prior cases. The medical examiner offered his

independent conclusions, relying on the factual findings of the

15

prior autopsy. He neither parroted the report nor recited Dr.

Karnitschnig’s opinions.

E. Denial of Hybrid Representation

¶38 When Dixon elected before trial to represent himself,

the judge warned him that he would have “sole responsibility for

his defense,” including “examining and cross-examining

witnesses.” Dixon nonetheless later requested that advisory

counsel cross-examine the State’s DNA experts. Dixon sought,

however, to continue to represent himself in all other respects.

The trial court rejected “hybrid representation,” stating that

Dixon could elect to have counsel represent him at any point in

the trial, but would not then be allowed to revert to self-

representation. We review the decision to deny hybrid

representation for abuse of discretion. State v. Cornell, 179

Ariz. 314, 325, 878 P.2d 1352, 1363 (1994).

¶39 There is no constitutional right to hybrid

representation. Id.; see also State v. Roscoe, 184 Ariz. 484,

498, 910 P.2d 635, 649 (1996) (characterizing hybrid

representation as “disfavored”). In Cornell, the defendant

sought to have advisory counsel cross-examine an expert. 179

Ariz. at 324-25, 878 P.2d at 1362-63. As here, the trial judge

gave the defendant the option of continuing to represent himself

or having counsel take over completely. Id. at 325, 878 P.2d at

1363. The defendant chose self-representation and we upheld the

16

trial judge’s order, noting that a request to resume pro per

status during trial is “uniformly held” untimely, and that the

denial of an untimely motion is not an abuse of discretion. Id.

at 326, 878 P.2d at 1364. Similarly, the trial court here did

not abuse its discretion in denying Dixon’s motion for hybrid

representation.

F. Exclusion of Diary Evidence

¶40 Dixon argues that the trial court erroneously excluded

an entry from Deana’s diary, which he claims stated that she had

been sexually assaulted in Europe and would fight back if

assaulted again. Dixon argues that the evidence should have

been admitted under Arizona Rule of Evidence 803(3) to show that

his sexual contact with her was consensual, as she likely would

have forcibly resisted an assault.

¶41 Before trial, Dixon moved in limine to allow evidence

that Deana was sexually active. This motion did not mention the

diary or the trip to Europe. The court denied the motion,

citing the rape shield law, A.R.S. § 13-1421(A) (2010).

¶42 At trial, after Dixon asked Deana’s mother about the

diary, the prosecutor sought to exclude evidence from the diary

on relevance and hearsay grounds. Dixon responded that he

wanted to elicit the information from Deana’s boyfriend, and

added, “I doubt seriously I will use the diary itself.” The

court ruled that Dixon could inquire about a witness’s first-

17

hand knowledge of Deana’s state of mind, but not about what was

in the diary.

¶43 Dixon then claimed for the first time that the diary

referred to a sexual assault in Europe, and the court stated

that it had

ruled under the rape shield law that her sexual
activity or conduct is irrelevant, immaterial, and
specifically excluded by statute unless you can fit it
into one of the narrowly defined exceptions under the
rule. You haven’t given me a reason why this should
now come in. Whether you call it an experience, a
rape, a molestation, whether you call it consensual
activity, whatever you call it, it’s still sexual
conduct under the statute.
The judge subsequently allowed Dixon to ask Deana’s boyfriend if

she carried a knife for personal protection.

¶44 The State contends that Dixon did not preserve any

objection to exclusion of evidence from the diary because the

record does not disclose what the document actually says. See

Ariz. R. Evid. 103(a)(2) (requiring offer of proof to preserve

objection to exclusion of evidence); State v. Towery, 186 Ariz.

168, 179, 920 P.2d 290, 301 (1996) (requiring, “[a]t a minimum,

an offer of proof stating with reasonable specificity what the

evidence would have shown”). We agree. Although Dixon and

counsel discussed what they claimed was in the diary, no offer

of proof was made, nor was the diary marked for identification.

We thus have no basis for determining precisely what evidence

was excluded.

18

¶45 Even had the issue been properly preserved for appeal,

and assuming the contents of the diary were as Dixon claimed,

however, we would find no abuse of discretion in the trial

court’s ruling. See State v. Villalobos, 225 Ariz. 74, 82 ¶ 33,

235 P.3d 227, 235 (2010) (rulings excluding evidence are

reviewed for abuse of discretion). The alleged statements had

minimal probative value. Deana’s state of mind years before the

murder hardly establishes that she surely would or could have

used a knife or other weapon to prevent this assault.

¶46 The diary evidence was also properly excluded under

the rape shield law, which categorically prohibits evidence of

“a victim’s reputation for chastity,” and allows evidence of

“instances of the victim’s prior sexual conduct” only in limited

circumstances not applicable here. A.R.S. § 13-1421(A).

¶47 Dixon argues that a prior sexual assault is not “prior

sexual conduct” because a sexual assault is a crime of violence,

and thus also does not reflect on the victim’s “chastity.” The

majority view, however, is that sexual assaults qualify as

sexual conduct under rape shield laws. See Grant v. Demskie, 75

F. Supp. 2d 201, 211-12 (S.D.N.Y. 1999) (collecting cases). We

agree; it would be anomalous to protect rape victims from

questions about prior consensual conduct, but subject them to

cross-examination about assaults. Cf. State v. Oliver, 158

Ariz. 22, 27, 760 P.2d 1071, 1076 (1988) (applying common law

19

rape shield doctrine to child molestation victims).

G. Denial of Motion for a Continuance

¶48 Dixon was arraigned in January 2003; the State filed a

notice of intent to seek the death penalty in March of that

year. In July 2003, defense counsel suggested that it might

take longer than usual to compile mitigation evidence because

Dixon spent his early life on the Navajo reservation. After

counsel stated that the mitigation specialist would need “a

year,” the judge set the trial date for June 15, 2004.

¶49 Over the next few years, the court repeatedly granted

defense requests to continue the trial. In April 2004, the

public defender estimated that if a new specialist were

assigned, the mitigation investigation could be completed in

five months. The court granted a defense motion for a

continuance and vacated the June trial date. After the case was

reassigned to a new specialist, the deadline for disclosure of

mitigation evidence was accordingly extended to January 2005.

That deadline was not met, and after Dixon was granted

permission to represent himself in March 2006, the trial date

was set for October 18, 2006. In September 2006, however, Dixon

estimated that his mitigation evidence would not be ready for

“nine months or a year.” The court continued the trial to June

25, 2007, “a date certain.”

¶50 In May 2007, however, Dixon told the court his

20

mitigation was still not ready and sought another continuance.

The trial was reset for August 2007. Two months later, Dixon

requested another continuance. Although he expressed

frustration, the judge reset the trial date for September 13,

2007. At a subsequent hearing, the trial date was moved back to

November 13, 2007.

¶51 A week before trial was scheduled to begin, Dixon

asked for a three-month continuance. The court denied the

motion, noting in a minute entry that “[t]he defense mitigation

work-up in this case has been ongoing for well over four years.”

Dixon claims that the court erred in denying this last

continuance request.

¶52 At all times relevant to this case, Arizona Rule of

Criminal Procedure 8.2(a)(4) provided that capital cases “shall

be tried” within eighteen months of arraignment.4 Continuances

are governed by Rule 8.5(b), which states, in pertinent part:

A continuance of any trial date shall be granted only
upon a showing that extraordinary circumstances exist
and that delay is indispensable to the interests of
justice. A continuance may be granted only for so
long as is necessary to serve the interests of
justice. In ruling on a motion for continuance, the
court shall consider the rights of the defendant and
any victim to a speedy disposition of the case.
¶53 We review denials of continuances for “clear abuse of

discretion,” State v. Schackart, 190 Ariz. 238, 254, 947 P.2d

4
The rule now requires capital cases to be tried within
twenty-four months of arraignment. Ariz. R. Crim. P. 8.2(a)(4).
21

315, 331 (1997), as the trial judge is “the only party in a

position to determine whether there are ‘extraordinary

circumstances’ warranting a continuance and whether ‘delay is

indispensable to the interests of justice,’” State v. Hein, 138

Ariz. 360, 368, 674 P.2d 1358, 1366 (1983).

¶54 We find no abuse of discretion here. Dixon was given

more than four years to develop mitigation. The trial court

found that the particular circumstances of this case, including

Dixon’s decision to represent himself and request a new

mitigation expert, justified repeatedly continuing the original

trial date. Indeed, the judge granted continuances even after

cautioning Dixon that he had set “a date certain for trial.”

¶55 Dixon’s requests for continuances were premised on the

alleged need to develop more mitigation evidence. However, in

the penalty phase, Dixon presented virtually no evidence, even

though advisory counsel advised the court that witnesses, both

expert and percipient, were prepared to present substantial

amounts of mitigation. In deciding to forego this available

mitigation evidence, Dixon rejected the explicit advice of

advisory counsel and the strong suggestions of the trial court.

Instead, he chose to call only an expert to testify about his

prison history.

¶56 In rejecting Dixon’s final continuance request, the

trial court appropriately considered not only Dixon’s interests,

22

but also the rights of Deana’s parents, the crime victims. Rule

8.5(b) expressly directs the trial judge to consider the rights

of victims, who, like the defendant, are entitled under our

Constitution to a speedy disposition of criminal charges. See

Ariz. Const. art. 2, § 2.1(A)(10). Deana’s parents repeatedly

asserted that right and the superior court did not abuse its

discretion, after granting numerous continuances, in finally

honoring their request that the trial proceed.

H. Issues Raised to Avoid Federal Preclusion

¶57 Dixon raises twenty-one issues that he claims have

been rejected in decisions by the Supreme Court of the United

States or this Court. The claims and the decisions he

identifies as rejecting them are reprinted in the appendix to

this opinion.

I. Independent Review of the Death Sentence

¶58 Because the murder in this case occurred before August

1, 2002, we independently review the aggravation and mitigation

findings, as well as the propriety of the death sentence.

A.R.S. § 13-755; 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1,

§ 7(B). We “do not defer to the findings or decision of the

jury, with respect to aggravation or mitigation, when

determin[ing] the propriety of the death sentence.” State v.

Newell, 212 Ariz. 389, 405 ¶ 82, 132 P.3d 833, 849 (2006)

(alteration in original) (internal quotation marks omitted). We

23

consider the quality and strength, not merely the quantity, of

aggravating and mitigating circumstances. Id. If “the

mitigation is sufficiently substantial to warrant leniency,” we

must impose a life sentence. Id. at ¶ 81 (internal quotation

mark omitted).

1. Aggravation phase

¶59 The jury found two aggravating factors: a previous

conviction of a crime for which life imprisonment or death was

imposable, A.R.S. § 13-751(F)(1), and that the murder was

especially cruel and heinous, A.R.S. § 13-751(F)(6). Both

statutory factors were established beyond a reasonable doubt.

¶60 Dixon was convicted of seven crimes stemming from the

1985 rape of an NAU student and seven life sentences were

imposed. Dixon thus correctly concedes that the A.R.S. § 13-

751(F)(1) aggravator was proved.

¶61 A murder is especially cruel under A.R.S. § 13-

751(F)(6) when the victim consciously “suffered physical pain or

mental anguish during at least some portion of the crime and []

the defendant knew or should have known that the victim would

suffer.” State v. Morris, 215 Ariz. 324, 338 ¶ 61, 160 P.3d

203, 217 (2007). We find especial mental cruelty here. Deana

surely must have suffered mental anguish while being raped, hit,

and strangled, and Dixon should have known that the victim would

suffer such anguish. See State v. McCray, 218 Ariz. 252, 259

24

¶¶ 32-33, 183 P.3d 503, 510 (2008) (finding mental anguish under

similar facts); see also State v. Gallardo, 225 Ariz. 560, 565-

66 ¶¶ 17-19, 242 P.3d 159, 164-65 (2010) (finding mental anguish

when the defendant bound the victim and covered his head with a

pillowcase before shooting him).5

2. Penalty phase

¶62 Dixon presented only one witness in the penalty phase

– an expert who testified about Dixon’s behavior in prison and

the ability of the prison system to manage him. The State

presented a witness challenging that testimony. But even

assuming that the testimony of Dixon’s expert was accurate, we

give it little mitigating weight, as prisoners are expected to

behave properly. See State v. Pandeli, 215 Ariz. 514, 533 ¶ 82,

161 P.3d 557, 576 (2007). After reviewing the entire record, we

find that any mitigation established is not sufficiently

substantial to call for leniency. We therefore affirm the death

sentence.

III. CONCLUSION

¶63 For the foregoing reasons, we affirm Dixon’s

conviction and death sentence.

5
Especial mental cruelty alone establishes the A.R.S. § 13-
751(F)(6) aggravator. Gallardo, 225 Ariz. at 565 ¶ 16, 242 P.3d
at 164. Because we find mental cruelty, we need not determine
whether the murder was also either especially physically cruel
or heinous. Id. at 265 ¶ 16, 242 P.3d at 164.
25

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
W. Scott Bales, Justice

_____________________________________
A. John Pelander, Justice

_____________________________________
Robert M. Brutinel, Justice

APPENDIX

1. The fact-finder in capital cases must be able to
consider all relevant mitigating evidence in deciding
whether to give the death penalty. See Woodson v.
North Carolina, 428 U.S. 280, 304 96 S. Ct. 2978
(1976). The trial court’s failure to allow the jury to
consider and give effect to all mitigating evidence in
this case by limiting its consideration to that proven
by a preponderance of the evidence is unconstitutional
under the Eighth and Fourteenth Amendments. State v.
McGill, 213 Ariz. 147, 161, ¶ 59, 140 P.3d 930, 944
(2006); see also State v. Medina, 193 Ariz. 504, 514–
15, ¶ 43, 975 P.2d 94, 104–05 (1999).

2. Arizona’s death penalty law unconstitutionally
fails to require the cumulative consideration of
multiple mitigating factors or require that the jury
make specific findings as to each mitigating factor.
State v. Gulbrandson, 184 Ariz. 46, 69, 906 P.2d 579,
602 (1995).

26

3. The (F)(6) “especially heinous, cruel or depraved”
aggravating factor is unconstitutionally vague and
overbroad because the jury does not have enough
experience or guidance to determine when the
aggravator is met. The finding of this aggravator by a
jury violates the Eighth and Fourteenth Amendments
because it does not sufficiently place limits on the
discretion of the sentencing body, the jury, which has
no “narrowing constructions” to draw from and give
“substance” to the otherwise facially vague law. State
v. Cromwell, 211 Ariz. 181, 188-90, ¶¶ 38–45, 119 P.3d
448, 455–57 (2005), and State v. Anderson, 210 Ariz.
327, 353, ¶ 114, 111 P.3d 369, 395 (2005).

4. The court also instructed the jury that they “must
not be influenced by mere sympathy or by prejudice in
determining these facts.” These instructions limited
the mitigation the jury could consider in violation of
the Fifth, Sixth, Eighth and Fourteenth Amendments and
Article 2, §§ 1, 4, 15, 23, and 24 of the Arizona
Constitution. State v. Carreon, 210 Ariz. 54, 70–71,
¶¶ 81–87, 107 P.3d 900, 916–17 (2005).

5. The death penalty is cruel and unusual under any
circumstances and violates the Eighth and Fourteenth
Amendments, and Article 2, § 15 of the Arizona
Constitution. Gregg v. Georgia, 428 U.S. 153, 186–87,
96 S. Ct. 2909 (1976); State v. Harrod, 200 Ariz. 309,
320, ¶ 59, 26 P.3d 492, 503 (2001), vacated on other
grounds, 536 U.S. 953, 122 S. Ct. 2653 (2002)(mem.);
see also Salazar, 173 Ariz. at 411, 844 P.2d at 578.

6. The death penalty is irrational and arbitrarily
imposed; it serves no purpose that is not adequately
addressed by life in prison, in violation of the
defendant’s right to due process under the Fourteenth
Amendment to the United States Constitution and
Article 2, §§ 1 and 4 of the Arizona Constitution.
State v. Smith, 203 Ariz. 75, 82, ¶¶ 35–36, 50 P.3d
825, 832 (2002), and State v. Beaty, 158 Ariz. 232,
247, 762 P.2d 519, 534 (1988).

7. There is no meaningful distinction between capital
and non-capital cases, making each crime the product
of an unconstitutionally vague statute. Salazar, 173
Ariz. at 411, 844 P.2d at 578.

27

8. Arizona’s capital sentencing scheme
unconstitutionally serves no deterrent purpose,
exceeds any legitimate retributive aim, is without
penological justification, and results in the
gratuitous infliction of suffering. Gregg, 428 U.S. at
183.

9. The prosecutor's discretion to seek the death
penalty has no standards and therefore violates the
Eighth and Fourteenth Amendments, and Article 2, §§ 1,
4, and 15 of the Arizona Constitution. State v.
Sansing, 200 Ariz. 347, 361 ¶ 46, 26 P.3d 1118, 1132
(2001), vacated on other grounds, 536 U.S. 954, 122 S.
Ct. 2654 (mem.); see also Cromwell, 211 Ariz. at 181,
§58, 119 P.3d at 459; State v. Finch, 202 Ariz. 410,
419, ¶ 50, 46 P.3d 421, 430 (2002).

10. Arizona’s death penalty is applied so as to
discriminate against poor, young, and male defendants,
particularly when the victim is a Caucasian, in
violation of Article 2, §§ 1, 4, and 13 of the Arizona
Constitution. Sansing, 200 Ariz. at 361, ¶ 46, 26 P.3d
at 1132; see also State v. Stokley, 182 Ariz. 505,
516, 898 P.2d 454, 465 (1995); State v. West, 176
Ariz. 432, 455, 862 P.2d 192, 215 (1993).

11. 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. 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, and Article 2, § 15 of the
Arizona Constitution. Gulbrandson, 184 Ariz. at 73,
906 P.2d at 606; see also Salazar, 173 Ariz. at 417,
844 P.2d at 584.

12. Arizona’s capital sentencing scheme is
unconstitutional because it does not require the State
to prove the death penalty is appropriate or require
the jury to find beyond a reasonable doubt that the
aggravating circumstances outweigh the accumulated
mitigating circumstances. Instead, Arizona's death
penalty statute requires defendants to prove their

28

lives should be spared, in violation of the Fifth,
Eighth, and Fourteenth Amendments, and Article 2, § 15
of the Arizona Constitution. State v. Fulminante, 161
Ariz. 237, 258, 778 P.2d 602, 623 (1988); see also
Carreon, 210 Ariz. at 76 ¶ 122, 107 P.3d at 922.

13. Arizona’s death penalty scheme does not
sufficiently channel the sentencing jury's discretion.
Aggravating circumstances should narrow the class of
persons eligible for the death penalty and reasonably
justify the imposition of a harsher penalty. A.R.S. §
13–703.01 is unconstitutional because it provides no
objective standards to guide the jury in weighing the
aggravating and mitigating circumstances 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). The
broad scope of Arizona's aggravating factors
encompasses nearly anyone involved in a murder, in
violation of the Eighth and Fourteenth Amendments, and
Article 2, § 15 of the Arizona Constitution. State v.
Pandeli, 200 Ariz. 365, 382 ¶ 90, 26 P.3d 1136, 1153
(2001), vacated on other grounds, 536 U.S. 953, 122 S.
Ct. 2654 (2002)(mem.); see also State v. Greenway, 170
Ariz. 155, 164, 823 P.2d 22, 31 (1991).

14. 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.

15. The failure to instruct the jury that only murders
that are “above the norm” may qualify for the death
penalty violates the Sixth, Eighth and Fourteenth
Amendments. State v. Bocharski, 218 Ariz. 476, 487–88,
¶¶ 47–50, 189 P.3d 403, 414–15 (2008).

16. The refusal to permit voir dire of prospective
jurors regarding their views on specific aggravating
and mitigating circumstances violates Appellant’s
rights under the Sixth and Fourteenth Amendments.
Johnson, 212 Ariz. at 440, ¶¶ 29–35, 133 P.3d at 750.

17. Refusing to instruct the jury or permit the
introduction of evidence and argument regarding
residual doubt violated Appellant’s rights under the

29

Sixth, Eighth and Fourteenth Amendments and Arizona
law. State v. Harrod, 218 Ariz. 268, 278–79, ¶¶ 37–39,
183 P.3d 519, 529–30 (2008); State v. Garza, 216 Ariz.
56, 70 ¶ 67, 163 P.3d 1006, 1020 (2007).

18. Execution by lethal injection is cruel and unusual
punishment in violation of the Eighth and Fourteenth
Amendments, and Article 2, § 15 of the Arizona
Constitution. State v. Van Adams, 194 Ariz. 408, 422,
¶ 55, 984 P.2d 16, 30 (1999); State v. Hinchey, 181
Ariz. 307, 315, 890 P.2d 602, 610 (1995).

19. Arizona’s current protocols and procedures for
execution by lethal injection constitute cruel and
unusual punishment in violation of the Eighth and
Fourteenth Amendments. State v. Andriano, 215 Ariz.
497, 510, ¶¶ 61–62, 161 P.3d 540, 553 (2007).

20. Arizona’s death penalty scheme 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, and Article 2, Section 15 of
the Arizona Constitution. Arizona’s death penalty law
cannot constitutionally presume that death is the
appropriate default sentence. Walton v. Arizona, 497
U.S. 639, 648, 110 S. Ct. 3047 (1990); State v. Miles, 186 Ariz. 10, 19, 918 P.2d 1028, 1037 (1996).
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).

21. The failure to provide the jury with a special
verdict on Appellant’s proffered mitigation deprived
him of his rights to not be subject to ex post facto
legislation and right to meaningful appellate review.
State v. Roseberry, 210 Ariz. 360, 373 74 & n. 12, 111
P.3d 402, 415 (2005).

30