State of Arizona v. Dale Shawn Hausner

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0077-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) Nos. CR2006-012721-001 DT
DALE SHAWN HAUSNER, ) CR2006-048493-002 DT
) CR2007-006031-001 DT
Appellant. ) CR2008-006364-001 DT
) CR2008-007313-002 DT
)
)
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Roland J. Steinle, Judge

AFFIRMED IN PART; REVERSED IN PART
________________________________________________________________

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

BRUCE PETERSON, OFFICE OF THE LEGAL ADVOCATE Phoenix
By Thomas J. Dennis, Deputy Legal Advocate
Attorney for Dale Shawn Hausner
________________________________________________________________

B A L E S, Justice

¶1 This automatic appeal arises from Dale Shawn Hausner’s

convictions and death sentences for six murders; he also was

convicted and sentenced for seventy-four non-capital offenses.

We have jurisdiction under Article 6, Section 5(3) of the

Arizona Constitution and A.R.S. § 13-4031 (2011). We reverse

Hausner’s conviction for one count of animal cruelty and

otherwise affirm his convictions and sentences.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Between June 2005 and August 2006, Hausner engaged in

a series of random shootings in the Phoenix area. He murdered

six people, wounded eighteen others, and also shot several dogs

and a horse. The human victims were pedestrians or bicyclists;

the shootings largely occurred between 10 p.m. and 3 a.m.; and

the victims were shot from Hausner’s car with 12 gauge or .410

shotguns or a .22 caliber gun. Samuel Deiteman, Hausner’s

friend and roommate, participated in many of the crimes.

¶3 Hausner was identified through efforts of the Phoenix

Police Department. In spring 2006, the police set up an

investigative task force after concluding that a serial shooter

was involved in an accelerating crime spree. In May 2006, one

person (Claudia Gutierrez-Cruz) was killed and five others

wounded; eleven more people were wounded from June 1 to July 22.

In mid-July, an anonymous caller – later identified as Ron

Horton – left a message with the “Silent Witness” program that

his friend “Sammy” had said he was involved in the shootings.

Horton later met with a police detective, said “Sammy” was

Samuel Dieteman, and identified Dieteman in a video taken at a

Walmart store that had been set on fire. On July 30, Robin

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Blasnek was killed with a .410 shotgun while she was walking at

night in Phoenix.

¶4 At the request of police, Horton arranged to meet

Dieteman at a bar on August 1. Police saw Hausner, whom they

had not previously identified as a suspect, drop Dieteman off at

the bar around 6:30 p.m. Hausner was driving a Toyota Camry,

and witnesses had previously told police that a “Camry-type

vehicle” had been involved in certain shootings. The police

followed Hausner to a mall, where they placed a GPS tracking

device on his car. Hausner later returned to the bar, spoke

with Dieteman in the parking lot for about thirty minutes, and

then returned to Hausner’s apartment at about 8:20 p.m.

¶5 Shortly after 1 a.m. on August 2, Hausner drove from

his apartment and met Dieteman at a casino. Police officers

surreptitiously saw them open the trunk of Hausner’s car, wait

while a security guard drove past, and then remove a duffel bag

and place it on the back seat. They left the casino. Over the

next two hours, police followed them as they drove through

several cities in the southeastern Phoenix metropolitan area.

They appeared to drive aimlessly through business and

residential neighborhoods, but when they approached pedestrians

or bicyclists, they slowed and sometimes circled back to pass

the person again. At about 4 a.m., they returned to Hausner’s

3

apartment, where an officer overheard one of them say “it’s

probably because of the rain,” as they walked inside.

¶6 On the evening of August 2, detectives met with the

Maricopa County Attorney, who approved emergency wiretaps for

Dieteman’s phone and for Hausner’s apartment and car. (This

opinion, like the parties in their briefs and the trial court in

its rulings, refers to the electronic monitoring devices as

“wiretaps.”) That same night, detectives also obtained warrants

from a judge authorizing police to place the wiretaps in the car

and apartment.

¶7 From about 9:35 a.m. until midnight on August 3, the

police monitored conversations in the apartment. Hausner and

Dieteman made several statements implicating themselves in the

shootings, including comments boasting or joking about certain

killings and mocking their victims. Police also collected items

from a bag Dieteman put in the apartment dumpster, including a

map of the Phoenix area with markings near some of the

shootings. Hausner’s and Dieteman’s fingerprints were on the

map. The discarded items also included .410 shotgun shells; a

written note listing Robin Blasnek’s name, date, and time of

shooting; and newspaper articles and clippings related to the

shootings.

¶8 Near midnight on August 3, police arrested Hausner and

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Dieteman. Hausner later admitted owning shotguns, but told

detectives he was not involved in the shootings. He also

mentioned that a .410 shotgun had been used in the shootings, a

fact the police had not publicized. On August 7, Hausner held a

press conference and again denied involvement in the shootings.

¶9 After Hausner’s arrest, police searched his apartment

and found shotguns, ammunition, and news clippings and videos

about the shootings. In Hausner’s car, police found .22 shell

casings and bullets, as well as .410 shot and 20 gauge shotgun

shells. Hausner had once owned two .22 caliber rifles made by

the Marlin Company. Based on rifling patterns found on bullets,

a forensic expert determined that a .22 Marlin had been used in

six of the crimes. The expert also matched shell casings found

in Hausner’s car to guns used in some of the crimes.

¶10 The State filed eighty-eight charges against Hausner

in five indictments: eight counts of first degree, premeditated

murder; two counts of aggravated assault; twenty-six counts of

drive-by shooting; ten counts of animal cruelty; two counts of

discharging a firearm at a non-residential structure; one count

of discharging a firearm at a residential structure; one count

of discharging a firearm within Tempe city limits; two counts of

conspiracy to commit first degree murder; one count of

conspiracy to commit animal cruelty; and two counts of arson

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involving two Walmart stores.

¶11 The cases were consolidated for trial. Dieteman

entered a plea agreement and testified against Hausner, who

testified on his own behalf. A jury found Hausner guilty of

eighty offenses and acquitted him of seven. (The State

dismissed one.) During the aggravation phase, the State

presented evidence to prove that the murders of Gutierrez-Cruz

and Blasnek were “especially cruel” and thus death-eligible

under A.R.S. § 13-751(F)(6). (This opinion cites the current

version of criminal statutes unless they have materially changed

since the conduct at issue.) The State relied on guilt-phase

evidence to prove other aggravating factors.

¶12 With respect to Gutierrez-Cruz and Blasnek, the jury

found the (F)(6) aggravator because each murder was both

“especially cruel” and “heinous or depraved.” The jury found

the (F)(6) aggravator with respect to victims Jose Ortis and

Marco Carillo because their murders were “heinous or depraved.”

With respect to these four victims, the jury also found the

murders were committed in a “cold, calculated manner,” an

aggravating factor under § 13-751(F)(13). Finally, with respect

to these victims and victims David Estrada and Nathanial

Shoffner, the jury found both the (F)(1) (conviction of another

offense subject to sentence of life imprisonment or death) and

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(F)(2) (prior conviction of a “serious offense”) aggravators.

¶13 Hausner waived mitigation other than allocution. The

jury determined that death was the appropriate sentence for each

of the six murder convictions. The trial court also sentenced

Hausner to consecutive life terms for his two convictions for

conspiracy to commit first degree murder and various concurrent

and consecutive sentences for his other non-capital convictions.

This automatic appeal followed.

DISCUSSION

¶14 This opinion discusses issues that Hausner raised and

argued on appeal. An appendix lists seventeen other

constitutional claims that Hauser seeks to preserve for later

review, along with the prior decisions of this Court that he

identifies as rejecting them.

A. Dismissal of Prospective Jurors

¶15 Hausner argues that the trial court erred by granting

the State’s motion to strike potential jurors 235A and 164B, who

voiced hesitation, but said they could vote for the death

penalty. He maintains that the trial court dismissed these

jurors “merely to taper an over-abundance of qualified jurors”

and to make a “clean record through jury selection,” and thereby

violated Witherspoon v. Illinois, 391 U.S. 510 (1968), and

Wainwright v. Witt, 469 U.S. 412 (1985).

7

¶16 A potential juror may not be struck for cause merely

because he “voiced general objections to the death penalty.”

State v. Prince (Prince II), 226 Ariz. 516, 528 ¶ 27, 250 P.3d

1145, 1157 (2011) (quoting Witherspoon, 391 U.S. at 522).

However, a trial court “may strike a juror whose views about

capital punishment ‘would prevent or substantially impair the

performance of his duties as a juror in accordance with his

instructions and his oath.’” Prince II, 226 Ariz. at 528 ¶ 27,

250 P.3d at 1157 (quoting Witt, 469 U.S. at 433).

¶17 During voir dire, when the trial court denied motions

to strike certain jurors for cause, it placed them in a “pool”

for later reconsideration. The pool included jurors 235A and

164B and six jurors to whom Hausner objected. Subsequently, the

trial court – without objection by Hausner – reconsidered the

objections to these eight jurors and struck them all. The court

noted that there was “no issue” with respect to forty-one jurors

remaining on the clerk’s juror list (the list was in ascending

numeric order, first for “A” jurors and then “B” jurors). The

court drew a line after Juror 129B and struck jurors numbered

130B or higher. Having narrowed the field to forty jurors, the

court allowed each side to exercise ten peremptory strikes,

leaving twenty jurors for trial.

¶18 The trial court did not commit reversible error in

8

dismissing jurors 235A and 164B. Any error in dismissing Juror

164B was plainly harmless, as Hausner’s counsel acknowledged

during oral argument, because this juror was not among the first

forty on the clerk’s list and thus would not have been in the

final pool even if not dismissed for cause.

¶19 During voir dire, Juror 235A said she did not think

she could choose between life and death, and did not want to be

placed in that situation, but could follow the law and vote to

impose death. She stated that she felt “a little intimidated to

make that choice.” The State moved to strike Juror 235A because

“she obviously doesn’t want to be placed in this situation.”

¶20 By granting the State’s motion, the trial court

apparently struck the juror based on her reluctance to serve

rather than her opposition to the death penalty. We have upheld

dismissal when a juror is conflicted about imposing the death

penalty, Prince II, 226 Ariz. at 528 ¶ 29, 250 P.3d at 1157, and

we defer to the trial judge’s determination that “a prospective

juror would be unable to faithfully and impartially apply the

law.” Witt, 469 U.S. at 424-26; see also State v. Ellison, 213

Ariz. 116, 137 ¶ 89, 140 P.3d 899, 920 (2006). Given Juror

235A’s desire not to serve and her conflicting statements, the

trial judge did not abuse his discretion in striking her.

9

B. Admission of Wiretap Conversations

¶21 Hausner argues that the trial court erred in failing

to suppress recorded conversations obtained by the wiretap in

his apartment on August 3. The County Attorney approved the

wiretap under Arizona’s “emergency wiretap” statute, A.R.S.

§ 13-3015. This statute allows the Arizona Attorney General, a

county attorney, or other designated prosecutors to authorize

temporary wiretaps if he or she “reasonably determines that an

emergency situation exists involving immediate danger of death

or serious physical injury to any person, and that such death or

serious physical injury may be averted by interception of wire,

electronic or oral communications before an order authorizing

such interception can be obtained.” Id. Within forty-eight

hours, the prosecutor must apply for a court order authorizing

the interception in accordance with the general wiretap statute,

A.R.S. § 13-3010. If such authorization is not obtained, the

prosecutor must “immediately terminate” the interception, and

“any communications intercepted without judicial authorization

may not be used as evidence.” A.R.S. § 13-3015(C).

¶22 Hausner argues that the wiretap was illegal because

(1) there was not an “emergency situation” under § 13-3015; (2)

the wiretap failed otherwise to satisfy statutory requirements;

and (3) Article 2, Section 8 of Arizona’s Constitution forbids

10

the warrantless intrusion into a home absent exigent

circumstances, and police inaction (here, the failure of the

police to arrest Dieteman or otherwise intercede) cannot create

such circumstances. We reject these arguments.

1. Factual and Statutory Background

¶23 We review the denial of a motion to suppress wiretap

evidence for an abuse of discretion, State v. Ring, 200 Ariz.

267, 273 ¶ 14, 25 P.3d 1139, 1145 (2001), rev’d on other

grounds, Ring v. Arizona, 536 U.S. 584 (2002), and review

questions of constitutional and statutory interpretation de

novo, State v. Armstrong, 218 Ariz. 451, 463 ¶ 54, 189 P.3d 378,

390 (2008). We consider the evidence presented at the

suppression hearing and view the facts in the light most

favorable to sustaining the trial court’s ruling. State v.

Manuel, 229 Ariz. 1, 4 ¶ 11, 270 P.3d 828, 831 (2011).

¶24 On July 28 and 29, Ron Horton told detectives that

Dieteman, his former roommate, had said he was involved in the

shootings and had used a .410 shotgun. Police had not

publicized information about the weapon. Horton also said

Dieteman referred to the crimes as “RRV’ing,” which stood for

random, recreational violence. On July 30, Robin Blasnek was

killed with a .410 shotgun while walking at night.

¶25 When police followed Dieteman on the evening of August

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1 and early morning of August 2, they saw him meet Hausner,

transfer a duffel bag from the trunk to the back seat of

Hausner’s car, and then drive around in a manner suggesting that

Dieteman and Hausner could be looking for victims. Around 4:30

or 5 p.m. on August 2, detectives briefed the County Attorney,

who approved emergency wiretaps for Hausner’s home and car.

That evening, detectives sought and obtained warrants to place

the wiretaps.

¶26 On August 3, conversations between Hausner and

Dieteman in the apartment were recorded from approximately 9:35

a.m. until 11:55 p.m., when the two were arrested. At around 2

p.m. on August 3, police sought and obtained warrants to search

Hausner’s apartment and car; the warrants were to be executed

that evening between 10 p.m. and 6 a.m. Consistent with A.R.S.

§ 13-3015, at 4:15 p.m. on August 4, the afternoon after Hausner

and Dieteman were arrested, the police submitted an affidavit

applying for a court order approving the emergency wiretaps, and

the superior court granted the order that day.

¶27 Arizona law generally prohibits the interception of

wire, oral, or electronic communications. See A.R.S. § 13–3005.

Upon proper application, however, a judge may issue an ex parte

order authorizing an interception pursuant to A.R.S. § 13–3010:

[I]f the judge determines on the basis of the facts
submitted by the applicant that:
12

1. There is probable cause to believe that a person is
committing, has committed or is about to commit a
particular crime.

2. There is probable cause to believe that particular
communications concerning that offense will be
obtained through the interception.

3. Normal investigative procedures have been tried and
have failed or reasonably appear to be unlikely to
succeed if tried or to be too dangerous.

4. There is probable cause to believe any of the
following:

(a) Wire or electronic communications concerning the
offense are being made or are about to be made by the
person over the communication facilities for which
interception authority is granted.

(b) Oral communications concerning the offense are
being made or are about to be made by the person in
the location for which interception authority is
granted.

(c) Communications concerning the offense are being
made or are about to be made by the person in
different and changing locations, or from different
and changing facilities.

A.R.S. § 13-3010(C).

¶28 In 1984, we held that Arizona’s wiretap scheme

substantially complied with federal law, which allows states to

adopt more, but not less, restrictive limits on electronic

surveillance than are imposed by 18 U.S.C. §§ 2510-2520, the

federal wiretap statute colloquially known as “Title III.” See

State v. Gortarez, 141 Ariz. 254, 259 ¶ 4, 686 P.2d 1224, 1229

13

(1984). In 1988, the legislature enacted § 13-3015, the

emergency wiretap provision, as part of legislation intended to

conform Arizona law to amendments to Title III. 1998 Ariz. Sess.

Laws, ch. 149, § 13 (2d Reg. Sess.).

¶29 Arizona’s emergency wiretap statute largely tracks

federal law, but has some different language. The federal

statute applies when an emergency situation “requires” an

interception before a court order authorizing it “can, with due

diligence, be obtained.” 18 U.S.C. § 2518(7)(a). Without

explicitly referring to due diligence, Arizona’s statute allows

interception if an emergency “may be averted . . . before an

order authorizing such interception can be obtained.” A.R.S.

§ 13-3015(A). Arizona’s statute requires that an application

for an ex parte order be made “as soon as practicable, and in no

event later than forty-eight hours” after the emergency

interception begins. Id. § 13-3015(B).

2. Existence of an Emergency Situation

¶30 Hausner argues that an emergency situation did not

exist. He contends that the State was not faced with an

“immediate danger of death or serious physical injury to any

person,” § 13-3015(A), because the immediate danger must be

“clear and present, not speculative and too distant.”

¶31 Citing United States v. Crouch, 666 F. Supp. 1414

14

(N.D. Cal. 1987), Hausner argues that an emergency wiretap is

permissible only if the emergency is “imminent” and not merely

because “serious criminal activity is planned for some

unspecified date in the future.” Id. at 1417. He contends

there was no emergency here because police had no idea whether a

criminal act would occur, they did not have any information

about “when or where or who might be victimized in a future

criminal act,” and there was no “immediate danger” because

police had him and Dieteman under constant surveillance.

¶32 These arguments ignore the trial court’s findings. In

denying the motion to suppress, the court noted that there had

been a shooting only days before the emergency wiretap was

placed. Phoenix police observed Dieteman and Hausner drive as

if they might be “trolling for victims” on the night of August

1. Crediting the detectives’ testimony, the trial court

concluded that police could not have prevented another shooting

merely by surveillance because the random shootings were made

from a car. Instead, the court found that the police “needed

the emergency intercept in order to prevent another random

shooting.” These findings, which Hausner has not challenged,

establish that there was an immediate danger of death or serious

physical injury.

¶33 Hausner’s argument that “the entire emergency could

15

have been avoided by simply arresting Dieteman, whom police

clearly had probable cause to arrest,” is also unconvincing.

The trial court specifically found that the information the

officers had on August 2 was insufficient to support a finding

of probable cause to arrest. Even though the police had

sufficient information to obtain a warrant to install the

wiretaps on August 2, whether probable cause existed to support

a wiretap or a search is a different question from whether the

officers had probable cause to arrest an individual for having

committed a particular crime. See A.R.S. § 13-3010(C)(1)

(authorizing interception in certain circumstances when there is

probable cause to believe a person is about to commit a

particular crime).

¶34 Hausner also argues that even if the police did not

have probable cause to arrest Dieteman by 5 p.m. on August 2

(when the County Attorney was briefed on the emergency wiretap),

they did by 2 p.m. the next day, when they submitted search

warrant affidavits asserting they had probable cause to search

Hausner’s apartment. In this respect, Hausner contends that an

emergency wiretap must end if the emergency initially justifying

its implementation no longer exists. We disagree. Police “are

under no constitutional duty to call a halt to criminal

investigation the moment they have the minimum evidence to

16

establish probable cause” to arrest the suspect. Kentucky v.

King, 131 S. Ct. 1849, 1860–61 (2011) (internal quotation

omitted). Police instead may delay making an arrest “in the

hope of ferreting out any hitherto unknown individuals involved

in the illicit undertakings, gathering additional evidence

substantiating the crimes believed to have been committed, or

discovering any other offenses in which the suspects are

involved.” United States v. Hultgren, 713 F.2d 79, 87 (5th Cir.

1983).

3. Compliance with Other Statutory Requirements

¶35 Hausner argues that the trial court also misconstrued

A.R.S. § 13-3015 by failing (1) to recognize that an emergency

wiretap is only permitted in circumstances in which a court

could order a wiretap under § 13-3010; (2) to interpret the law,

like the federal statute, as permitting emergency wiretaps only

if a court order cannot be obtained with “due diligence” in time

to avert the emergency; and (3) to require the State to have an

“emergency purpose” for the wiretap.

¶36 None of these arguments suggests the trial court erred

in denying the motion to suppress. We agree that § 13-3015

authorizes emergency wiretaps only in factual circumstances

that, if time permitted, would support a court-approved wiretap.

As noted above, evidence from an emergency wiretap is admissible

17

only if an application for a court order authorizing the

interception “in accordance with the provisions of § 13-3010” is

submitted within forty-eight hours and granted. § 13-3015(B).

This conclusion, however, does not avail Hausner because he did

not argue below and has not demonstrated on appeal that the

superior court erred in approving the emergency wiretap on

August 4.

¶37 With respect to “due diligence,” although Arizona’s

statute does not expressly declare that an emergency wiretap is

permissible only when a court order approving a wiretap in

advance cannot be obtained by “due diligence,” such a

requirement is implicit. Section 13-3015(A) allows an emergency

wiretap only when it may avert an emergency situation that might

occur “before an order authorizing such interception can be

obtained.” Subsection (B) further provides that evidence from

an emergency wiretap is not admissible unless an application for

a court order is submitted “as soon as practicable, and in no

event later than forty-eight hours” after the wiretap’s

inception. A.R.S. § 13-3015(B). These statutory restrictions

on emergency wiretaps would not be satisfied if a court-approved

wiretap could, with due diligence, have been obtained to avert

the emergency.

¶38 Although the trial court did not recognize that § 13-

18

3015 effectively incorporates a “due diligence” requirement

similar to federal law, cf. Gortarez, 141 Ariz. at 259, 686 P.2d

at 1229 (concluding that Arizona’s conventional wiretap statute

was “sufficiently compatible with the federal one to ensure

compliance with the federal standards”), this does not mean the

court erred in denying Hausner’s motion to suppress. Evidence

at the suppression hearing established that a conventional

wiretap order could not have been obtained through due diligence

on the night of August 2. Detective Richard Lebel, who prepared

the affidavit for a post-wiretap order under § 13-3015,

testified that “[i]n terms of a conventional wiretap, there’s no

way I could have had that prepared for [the judge] that

evening.” He also said that, once the emergency wiretap was

approved, he had to work almost continuously to complete the

forty-one page affidavit to submit the application for a post-

wiretap order to the superior court by 5 p.m. on August 4. The

trial judge credited this testimony, noting that “Detective

Lebel was very clear that a conventional wiretap request could

not be obtained without more facts and in order to get it, would

have taken a great deal of time.” In short, the State

established that it could not have obtained a conventional

wiretap with due diligence when the emergency wiretap was

approved.

19

¶39 Finally, Hausner argues that the trial court should

have considered whether the County Attorney approved the wiretap

for investigative purposes rather than to avert an emergency.

This argument is irrelevant given the trial court’s finding that

“the State’s main focus was the safety of the citizens of

Maricopa County” and “the investigative nature of its action was

secondary to the main goal of public safety.” If a prosecutor

reasonably determines that an interception may avert an

“immediate danger of death or serious physical injury” before a

court order approving the interception can be obtained, see

§ 13-3015, the validity of the interception should not turn on

whether the prosecutor also subjectively has an investigative

purpose, see King, 131 S. Ct. at 1859 (noting that in Fourth

Amendment context, reasonableness of a search turns on objective

factors rather than officer’s subjective state of mind).

4. Article 2, § 8 of the Arizona Constitution

¶40 Hausner also argues that the wiretap violated Article

2, § 8 of the Arizona Constitution, which states that “[n]o

person shall be disturbed in his private affairs, or his home

invaded, without authority of law.” Citing State v. Ault, 150

Ariz. 459, 463 n.1, 724 P.2d 545, 549 (1986), he argues that

Article 2, § 8 forbids the warrantless intrusion into a home

absent exigent circumstances, the exigency cannot be created by

20

police inaction, and any exigency here resulted only because the

police chose not to arrest Dieteman or to execute the search

warrant they obtained at 2 p.m. on August 3.

¶41 This Court has recognized that Article 2, § 8 may

afford greater protections than the Fourth Amendment, at least

in the context of physical intrusions into a home. In Ault,

police officers had probable cause to arrest a suspect when he

met them at the door of his apartment. Id. at 463, 724 P.2d at

549. Rather than arrest him, they asked him to accompany them

to the station, which he agreed to do. They then followed him,

over his objection, when he went inside to get some clothes.

Rejecting arguments that the entry was justified because of the

danger that the suspect might retrieve a weapon, the Court noted

that “[t]he exigent circumstances . . . were created by the

arresting deputies” when they did not arrest the suspect when he

came to the door. Id. at 463, 724 P.2d at 549. The Court

concluded that it “cannot allow the creation of exigent

circumstances in order to circumvent the warrant requirement.”

Id.; see also State v. Cañez, 202 Ariz. 133, 152 ¶ 56, 42 P.3d

564, 583 (2002) (following Ault).

¶42 Ault, however, does not control our analysis here.

For reasons noted above, we reject Hausner’s argument that the

police had probable cause to arrest Dieteman when the County

21

Attorney approved the emergency wiretap on August 2. Inasmuch

as the police made a physical intrusion into Hausner’s apartment

to place the wiretap, that entry was supported by the warrant

issued on the evening of August 2. Finally, to the extent that

Hausner argues that exigent circumstances were also required to

justify the recording of conversations resulting from the

placement of the wiretap, we conclude that such circumstances

exist if the statutory requirements for an emergency wiretap

exist. Cf. State v. Bixby, 698 S.E.2d 572, 582 (S.C. 2010)

(upholding South Carolina emergency wiretap provision as

application of exigent circumstances exception), cert. denied,

131 S. Ct. 2154 (2011).

C. Joinder

¶43 Hausner argues that the trial court erred by denying

his motions to sever and by consolidating the offenses charged

in the five indictments for trial. The trial court made these

rulings after conducting a multi-day evidentiary hearing and

later denied Hausner’s renewed severance motions. We review

trial court rulings on joinder and severance for an abuse of

discretion. State v. Prince (Prince I), 204 Ariz. 156, 159

¶ 13, 61 P.3d 450, 453 (2003).

¶44 Two or more offenses may be joined in an indictment if

they “are alleged to have been part of a common scheme or plan.”

22

Ariz. R. Crim. P. 13.3(a)(3). Charges in separate indictments

that could have been joined in one indictment may be

consolidated “if the ends of justice will not be defeated

thereby.” Ariz. R. Crim. P. 13.3(c). If offenses are joined

under Rule 13.3(a)(3), a court need only order severance when

“necessary to promote a fair determination of the guilt or

innocence of any defendant.” Ariz. R. Crim. P. 13.4(a).

Because we conclude that the offenses were properly joined under

Rule 13.3(a)(3) or could have been joined under this Rule and

were properly consolidated, we do not address the parties’

arguments concerning joinder under Rules 13.3(a)(1) or (2).

¶45 For purposes of Rule 13.3(a)(3), a “common scheme or

plan” is a “particular plan of which the charged crime is a

part.” State v. Ives, 187 Ariz. 102, 109, 927 P.2d 762, 769

(1996) (internal quotation omitted). The analysis “focus[es] on

whether the acts are part of an over-arching criminal plan, and

not on whether the acts are merely similar.” Id. Hausner

contends that his crimes, although similar, were not part of a

common scheme or plan, citing State v. Lee, 189 Ariz. 590, 944

P.2d 1204 (1997).

¶46 In Lee, this Court ruled that charges arising from two

similar robberies could not be joined under Rule 13.3(a)(3)

because the crimes were not “part of an over-arching criminal

23

plan.” Id. at 598, 944 P.2d at 1212. Although the robberies

occurred near the same time and were similar in other respects

(for example, the victims were similarly employed and were shot

with a .22 caliber), the Court noted that “no testimony or

evidence suggests that the two robberies were part of a single

plan.” Id. at 599, 944 P.2d at 1213.

¶47 Here, in contrast to Lee, the State presented evidence

showing that Hausner’s crimes were part of an over-arching

criminal plan. A forensic psychiatrist testified that, after

reviewing information about the crimes, he concluded that this

scheme was “the seeking of thrills or excitement or relief of

boredom or relief of negative feelings.” Such a scheme could

include even the killing of animals because, as the psychiatrist

testified, “[w]ith respect to trying to make one’s self feel

better through violence, I think it makes no difference whether

the targeted victim is a human or some other animal.” Two

detectives also testified about similarities among the various

shootings. On this record, the trial court did not abuse its

discretion in finding a common scheme or plan based on a general

thrill-seeking scheme or by consolidating the charges in the

separate indictments.

¶48 Nor did the court abuse its discretion in denying the

motions to sever. “When a defendant challenges a denial of

24

severance on appeal, he must demonstrate a compelling prejudice

against which the trial court was unable to protect.” Prince I,

204 Ariz. at 159 ¶ 13, 61 P.3d at 453 (internal quotation

omitted). Hausner cannot show such prejudice because the trial

court instructed the jurors to consider each charged offense

separately and advised them that the State had to prove each

beyond a reasonable doubt. See id. at 160 ¶ 17, 61 P.3d at 454.

D. Sufficiency of Evidence on Animal Cruelty Charges

¶49 Hausner contends that the State presented insufficient

evidence to sustain his convictions for animal cruelty involving

the horse Apache and dogs Shep, Irving, Payton, and Martin, and

his conviction for discharging a firearm at a shed belonging to

Payton and Martin’s owner. A person may be found guilty of a

class 6 felony under Arizona law if he or she “[i]ntentionally

or knowingly subjects any animal to cruel mistreatment.” A.R.S.

§ 13-2910(A)(9). Hausner argues that the State did not present

sufficient evidence identifying him as the shooter for these

incidents.

¶50 We review the sufficiency of evidence presented at

trial only to determine if substantial evidence exists to

support the jury verdict. State v. Stroud, 209 Ariz. 410, 411

¶ 6, 103 P.3d 912, 913 (2005). Substantial evidence is evidence

that “reasonable persons could accept as sufficient to support a

25

guilty verdict beyond a reasonable doubt.” State v. Hughes, 189

Ariz. 62, 73, 938 P.2d 457, 468 (1997). We view the facts in

the light most favorable to sustaining the jury verdict. State

v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987).

¶51 Dogs Irving and Shep were shot outside their owners’

houses with a .22 caliber gun. Police later found .22 caliber

shell casings, guns, and live cartridges in Hausner’s apartment

and car. Irving and Shep were shot on November 11, 2005, within

a mile and an hour of each other. This was also the same night

that Hausner shot and killed Nathaniel Shoffner. Just before

Irving was shot, one of his owners saw a four-door car pull up

and a hand extend from the passenger window. Shep’s owner heard

a car outside his house, the discharge of a .22, and then his

dog’s yelp. Dieteman testified that Hausner and his brother

Jeff told him they had been “out targeting a dog” on the night

when they shot Shoffner. Sufficient evidence supported

Hausner’s convictions for shooting these two dogs.

¶52 Dogs Martin and Payton were shot outside their owner’s

house with a .22 on December 30, 2005. Their owner was inside

when they were shot, but he heard two pops that sounded like a

small caliber weapon firing, followed by a loud cry from one of

the dogs. This was the same night that Hausner shot a car at

the ABC Bartending School, shot victims Ortiz, Carillo, Timothy

26

Tordai and the dog Peanut with a .22, and also shot the dog

Cherokee and victim Clarissa Rowley. Martin and Payton were

shot just after midnight, three miles from where Hausner shot

the dog Peanut at 12:30 a.m. This is sufficient evidence to

support the jury’s conclusion that Hausner shot Martin and

Payton and discharged a firearm at a shed belonging to their

owner.

¶53 Apache, the horse, was shot with a .22 between 10:30

p.m. on July 19, 2005, and 5:30 a.m. on July 20. When shot,

Apache was in a pen outside his owner’s house in Tolleson. The

owner did not see or hear any gunshots. Just before midnight on

July 19, Hausner shot and killed the dog Whiskey with a .22 in

Phoenix, two miles from where Apache was shot. From this

evidence alone, a jury could not reasonably conclude beyond a

reasonable doubt that Hausner also shot Apache. Accordingly, we

reverse Hausner’s conviction and sentence for animal cruelty

with respect to the shooting of Apache.

E. Evidentiary Issues

¶54 Hausner challenges the admission of evidence of out-

of-court statements by attempted-murder victims Joseph Roberts,

David Perez, and Miguel Rodriguez. Hausner also contends the

trial court erred in admitting certain “other acts” evidence.

27

1. Roberts’ Statements

¶55 Joseph Roberts was shot while walking with his bike on

the night of July 2, 2006. Roberts spoke with Detective Clark

Schwartzkopf at a hospital the next morning, but Roberts could

not recall this meeting when he testified at the 2009 trial.

Roberts testified that, after he was shot, he saw a four-door,

silver car on the opposite side of the street, but he could not

see how many people were inside. He did not remember ever

describing the car’s driver.

¶56 Detective Schwartzkopf testified about contacting

Roberts at the hospital. Schwartzkopf said Roberts told him

that “as the vehicle slowed, he saw the driver’s window

completely down and he saw what he described as a barrel

protruding from the driver’s side of the vehicle. . . . [H]e

believed that it was a rifle or shotgun barrel,” and that he

thought the driver was Caucasian. Roberts described the car as

a “silver, passenger” vehicle, and said its headlights were

turned off just before the shooting.

¶57 Hausner objected to Schwartzkopf’s testimony about

Roberts’ statements as inadmissible hearsay. Overruling the

objection, the trial court ruled that the statements were

admissible as prior inconsistent statements under Arizona Rule

of Evidence 801(d)(1). Considering the factors identified in

28

State v. Allred, 134 Ariz. 274, 277, 655 P.2d 1326, 1329 (1982),

the trial court further found that the statements were not

unduly prejudicial. Alternatively, the trial court ruled that

the statements were sufficiently reliable to be admissible under

the residual hearsay exception in Arizona Rule of Evidence

803(24) (since renumbered Rule 807).

¶58 We review admission of evidence for an abuse of

discretion. See State v. Tucker, 205 Ariz. 157, 165 ¶ 41, 68

P.3d 110, 118 (2003). A statement is not hearsay if the

declarant testifies, the statement is inconsistent with the

declarant’s testimony, and the declarant is subject to cross-

examination about it. Ariz. R. Evid. 801(d)(1)(A). “A claimed

inability to recall, when disbelieved by the trial judge, may be

viewed as inconsistent with previous statements.” State v.

King, 180 Ariz. 268, 275, 883 P.2d 1024, 1031 (1994) (internal

quotation omitted).

¶59 Hausner argues that nothing suggests Roberts feigned

lack of memory about his statements in the hospital, and

therefore they could not be admitted as “inconsistent” with his

trial testimony. Cf. id. at 275, 883 P.2d at 1031 (concluding

that record supported trial court’s finding that witness feigned

loss of memory). Moreover, because Roberts could not recall

talking to Schwartzkopf, Hausner argues that the trial court

29

erred in finding the statements sufficiently reliable to be

admissible under the residual hearsay exception.

¶60 Although the trial “court has considerable discretion

in determining whether a witness's evasive answers or lack of

recollection may be considered inconsistent with that witness's

prior out-of-court statements,” State v. Salazar, 216 Ariz. 316,

319 ¶ 15, 166 P.3d 107, 110 (App. 2007), here the court did not

find and the record does not suggest that Roberts feigned his

lack of memory at trial. Roberts, as one of the shooting

victims, would have no apparent reason to do so. Cf. State v.

Robinson, 165 Ariz. 51, 59, 796 P.2d 853, 861 (1990) (finding

trial court did not abuse its discretion in admitting extrinsic

evidence of out-of-court statement under Rule 613(b) when court

could not tell if witness was being evasive or merely had poor

recollection, but record amply suggested reasons for witness to

be evasive). The trial court erred in concluding that Roberts’

statements at the hospital were “inconsistent” with his

testimony and admissible under Rule 801(d)(1).

¶61 We need not determine if the trial court properly

concluded that the statements were also admissible under the

residual hearsay exception. Roberts testified that he had seen

a four-door silver car across the street after he was shot. The

out-of-court hospital statements introduced through Schwartzkopf

30

provided the further details that Roberts was shot by the car’s

Caucasian driver, who pointed a rifle or shotgun from the

driver’s window and turned off the car’s headlights. Roberts

did not identify Hausner as the shooter in his testimony or the

hospital statements. Instead, Dieteman testified that Hausner

was driving and shot Roberts from the driver’s window with a

.410 shotgun. Because we conclude that the hospital statements

did not impact the jury’s verdict, any error in their admission

was harmless. See State v. Bocharski, 218 Ariz. 476, 486 ¶¶ 38-

41, 189 P.3d 403, 413 (2008) (applying harmless error analysis

to admission of hearsay).

2. Perez and Rodriguez Statements

¶62 Hausner also objected to testimony by two police

officers regarding statements made by victims Perez and

Rodriguez. Neither victim was available to testify at trial,

but the officers testified to statements made by each victim

when the officers arrived on the scenes. The trial court

admitted the statements as excited utterances. (Although

Hausner initially argued that admission of these statements

violated the Confrontation Clause, he abandoned that argument in

light of Michigan v. Bryant, 131 S. Ct. 1143 (2011), as it is

clear that the statements were not testimonial.)

¶63 An excited utterance is a statement “relating to a

31

startling event or condition, made while the declarant was under

the stress of excitement that it caused.” Ariz. R. Evid.

803(2). This exception to the rule generally barring the

admission of hearsay turns on three factors: there must be a

startling event, the words must be spoken soon afterwards, and

the words must relate to the startling event. State v. Cruz,

218 Ariz. 149, 161 ¶ 54, 181 P.3d 196, 208 (2008).

¶64 The first victim, Perez, was shot in the early morning

on July 7, 2006, and Officer Shoemaker was one of the first

officers to arrive at the scene. Shoemaker testified that he

asked Perez what happened, and that “[h]e told me he was

standing out into the street in front of the property using a

telephone when a car, which he described as a blue Contour,

drove from west to east in an eastbound manner on State Avenue

and fired, what he said, was a shot at me. He told me he didn’t

see a license plate of the car, he didn’t see any possible

suspect that may have fired the . . . the shot.” Shoemaker

explained that he had questioned Perez in order to secure the

scene and meet an on-going emergency.

¶65 The trial court did not abuse its discretion in

finding that Perez’s statements to Officer Shoemaker were

excited utterances. The shooting was a startling event; Perez

made the statements soon after he was shot; and the statements

32

related to the event.

¶66 Victim Rodriguez was shot on May 31, 2006, and Phoenix

Police Officer Baiardi was one of the first to arrive on the

scene. Baiardi testified that Rodriguez told him he was shot

and that “[h]e was in a lot of pain” and that “I tried to get as

much information as possible, because when the shooting

occurred, I wasn’t too far from the scene.” He also testified

that Rodriguez “told me that . . . the shot, he believed, came

from a white vehicle that was going westbound on Indian School

. . . [T]he one thing I do remember he said is that it was a

white imported car or white foreign vehicle.”

¶67 Rodriguez’ statements to Officer Baiardi were properly

admitted as excited utterances. Rodriguez was the victim of a

shooting and he made statements about the event soon after it

occurred.

3. Other Acts Evidence

¶68 Hausner also argues that the trial court erred in

allowing the State to submit “other acts” evidence that he (1)

is bisexual, (2) set fire to a tree, shoplifted, and slashed

tires at a casino, (3) was present when his brother, Jeff

Hausner, stabbed a man, (4) while in court, made obscene

gestures to victim Paul Patrick and Rebecca Estrada, the mother

of murder victim David Estrada, and (5) was physically violent

33

toward his ex-wife. We review a trial court’s decision to admit

evidence of other acts for an abuse of discretion. State v.

Villalobos, 225 Ariz. 74, 80 ¶ 18, 235 P.3d 227, 233 (2010).

¶69 Evidence of “other acts” generally “is not admissible

to prove the character of a person in order to show action in

conformity therewith.” Ariz. R. Evid. 404(b). But it is

admissible “for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.” Id. When the State seeks to

admit evidence of other acts of the defendant, it must prove by

clear and convincing evidence that the defendant committed the

other acts; they must be offered for a proper purpose; they must

be relevant; and, consistent with Rule 403, their probative

value must not be substantially outweighed by the danger of

unfair prejudice. See State v. Terrazas, 189 Ariz. 580, 583,

944 P.2d 1194, 1197 (1997).

a. Evidence of Hausner’s bisexuality

¶70 Hausner first challenges the trial court’s admitting

evidence of his alleged bisexuality. During the guilt phase,

Hausner testified on direct examination that Dieteman was

bisexual, that he was not, and that several sexually-themed text

messages between the two of them were intended to be humorous.

Over his objections, the court allowed the State to ask Hausner

34

on cross-examination about his sexuality and to introduce

testimony by his ex-wife that she had seen him kiss another man

on the neck and that he had once told her he thought he was gay.

The trial court ruled that Hausner had opened the door to the

issue of his sexual orientation by his own testimony and that

this evidence was relevant to his relationship with Dieteman,

who participated with Hausner in many of the crimes and whom

Hausner suggested was responsible for them. The trial court

also instructed the jury, before its deliberations, that:

“[a]person’s sexuality does not make it any more or
less likely that a person committed the crimes alleged
in the indictment. You are not to consider any
allegation of bisexuality to consider if Mr. Hausner
committed the crimes alleged in this indictment.”

¶71 The trial court did not clearly abuse its discretion

in admitting this evidence, particularly given that Hausner

himself placed his bisexuality at issue and attempted to

distance himself from Dieteman by characterizing their

respective sexual orientations. We underscore, however, that

trial courts must be cautious in admitting evidence of a

witness’s sexual orientation in cases in which it is not

directly relevant, given the danger that it may be unfairly

prejudicial. Any error in admitting evidence of Hausner’s

bisexuality, moreover, was harmless because the trial court

instructed the jurors not to consider such evidence in

35

determining if Hausner committed the alleged crimes. See State

v. Velazquez, 216 Ariz. 300, 307-08 ¶ 24, 166 P.3d 91, 98-99

(2007).

b. Acts of vandalism, arson, and shoplifting

¶72 Hausner also contends the trial court erred in

admitting evidence that he and Dieteman set a palm tree on fire,

shoplifted, and slashed tires in a casino parking lot. During

his direct examination, Hausner testified that he would never

harm a person or an animal, that he “would never harm anything,”

and that he was “not a violent person.” On cross-examination,

Hausner denied shoplifting or setting a tree on fire, but

admitted slashing tires. Dieteman subsequently testified that

he was with Hausner and Jeff when they set fire to a tree and

that he and Hausner regularly shoplifted alcohol, DVDs, and

games. The State also presented testimony from security guards

at the casino where the tires were slashed and from a Chandler

police officer regarding the tree burning.

¶73 The trial court did not abuse its discretion in

allowing other acts evidence tending to show Hausner’s violent

nature, including the tire slashing and the tree burning.

Hausner opened the door to such evidence, and thereby waived any

objection to its admission by testifying on direct that he was

not a violent person. See State v. Arriola, 99 Ariz. 332, 334-

36

35, 409 P.2d 37, 39-40 (1965). Evidence Rule 404(a)(1) allows

the admission of “[e]vidence of a pertinent trait of character

offered by an accused, or by the prosecution to rebut the same.”

This rule allowed the State to introduce evidence to rebut

Hausner’s testimony about his non-violent nature.

¶74 Dieteman’s testimony regarding shoplifting habits,

however, is not admissible to rebut Hausner’s assertions that he

is not violent. Such evidence was perhaps of some relevance in

rebutting Hausner’s assertion that he magnanimously allowed

Dieteman to live with him, inasmuch as both were earning money

by stealing. In any event, any error in admitting the

shoplifting evidence was harmless because the trial court

instructed the jury that it could not consider the evidence to

determine Hausner’s character or character trait or to determine

that he acted in conformity with the same and therefore

committed the charged offenses.

c. Evidence of stabbing

¶75 On direct examination, Hausner testified that he knew

that his brother Jeff had been arrested for stabbing a man, but

Hausner said he was not present at this stabbing. He further

testified that he had never been present with Jeff and Dieteman

at a stabbing and had not met Dieteman until several days after

the stabbing.

37

¶76 Over Hausner’s objection, the State subsequently

elicited testimony from Dieteman that he and Hausner were

present when Jeff committed the stabbing. Because Hausner

discussed the stabbing in direct examination, he cannot claim

error from the State’s introducing evidence to contradict his

denials. See Arriola, 99 Ariz. at 334-35, 409 P.2d at 39-40.

d. Obscene gestures in courtroom

¶77 During cross-examination, Hausner testified that he

thought the murders were tragic and had felt that way during the

entire trial. The prosecutor asked Hausner if he had made

obscene gestures in the courtroom to victim Paul Patrick and to

Roberta Estrada, mother of victim David Estrada. Hausner denied

doing so. Over Hausner’s objection, the State later presented

testimony by Patrick and Roberta Estrada, each of whom said that

Hausner had gestured to them by raising his middle finger.

¶78 The trial court did not err in admitting this evidence

of Hausner’s in-court demeanor, given Hausner’s assertion on

cross-examination that throughout the trial he had thought the

murders were tragic.

e. Acts of violence against ex-wife

¶79 The trial court permitted Hausner’s ex-wife to testify

to specific incidents of violence, including that, in 2001,

Hausner drove her to Wickenberg and held her at gunpoint in the

38

desert, and on another occasion, he chased her down in his car,

caught her, and ripped her clothing.

¶80 Hausner opened the door to this evidence by testifying

that he was non-violent and would never harm anyone or anything.

The court specifically found that the ex-wife’s testimony about

Hausner’s prior assaults was admissible under Rule 404(b) and

not unduly prejudicial under Rule 403. On the day his ex-wife

testified, the court gave the jury an appropriate 404(b)

limiting instruction, and the court in its final instructions

generally directed the jurors that they could not consider other

acts to show that Hausner acted in conformity with a character

trait and therefore committed the charged offenses. The trial

court did not abuse its discretion in admitting this evidence.

f. Denial of surrebuttal

¶81 Hausner contends that the trial court erred by

refusing to allow him to present surrebuttal evidence to the

other acts evidence.

¶82 Because trial courts must be able to limit the

presentation of witnesses and other evidence on collateral

issues, only rarely will a trial court abuse its discretion in

denying surrebuttal. State v. Steelman, 120 Ariz. 301, 319, 585

P.2d 1213, 1231 (1978); see Ariz. R. Crim. P. 19.1. Hausner had

an opportunity to deny the other acts during his testimony, and

39

the trial court did not abuse its discretion in refusing to

allow surrebuttal testimony.

F. Constitutionality of Abuse of Discretion Review

¶83 Under A.R.S. § 13-756(A), this Court reviews death

sentences to determine if the jury abused its discretion in

finding aggravating circumstances and imposing a sentence of

death. Hausner argues that the abuse of discretion standard

violates the Eighth Amendment or due process. Recognizing that

State v. Martinez, 218 Ariz. 421, 189 P.3d 348 (2008), rejected

arguments that the Eighth Amendment requires independent review

of death sentences, Hausner argues that Martinez did not

consider the importance of independent review in ensuring that

Arizona’s sentencing scheme “genuinely narrows the class of

persons eligible for the death penalty.”

¶84 We decline to reconsider Martinez. See State v. Cota,

229 Ariz. 136, 153 ¶ 92, 272 P.3d 1027, 1044 (2012) (citing

Martinez in observing “we have already determined that abuse of

discretion review is constitutional”).

G. Jury Findings that Four Murders were “Especially
Heinous, Cruel, or Depraved”

¶85 Under A.R.S. § 13–751(F)(6), a first degree murder is

aggravated when “[t]he defendant committed the offense in an

especially heinous, cruel or depraved manner.” Hausner argues

40

that the jury abused its discretion in finding the (F)(6)

aggravating factor with respect to the murders of victims Ortis,

Carillo, Gutierrez-Cruz, and Blasnek. The jury found that each

of these murders was committed in an especially heinous or

depraved manner; it also found the murders of Gutierrez-Cruz and

Blasnek were especially cruel.

¶86 “Heinousness and depravity go to a defendant’s mental

state as reflected in his words and actions at or near the time

of the offense.” State v. Johnson, 212 Ariz. 425, 439 ¶ 55, 133

P.3d 735, 749 (2006). Cruelty, in contrast, depends in part on

the victim’s mental state. To establish cruelty, the State must

prove beyond a reasonable doubt that “the victim consciously

experienced physical or mental pain prior to death, and the

defendant knew or should have known that suffering would occur.”

Martinez, 218 Ariz. at 436 ¶ 70, 189 P.3d at 363 (citation and

internal quotation marks omitted).

¶87 To establish that the murders were especially heinous

or depraved, the State presented evidence that Hausner had

relished the murders. “Relishing refers to words or actions

that show debasement or perversion,” State v. Greene, 192 Ariz.

431, 439 ¶ 34, 967 P.2d 106, 114 (1998) (internal quotation

omitted), and “requires that the defendant say or do something,

other than the commission of the crime itself, to show he

41

savored the murder.” State v. Doerr, 193 Ariz. 56, 67-68 ¶ 54,

969 P.2d 1168, 1179-80 (1998) (internal quotation omitted). A

defendant’s “post-murder statements suggesting indifference,

callousness, or lack of remorse” can constitute relishing, so

long as “they indicate, beyond a reasonable doubt, that the

killer savored or enjoyed the murder at or near the time of the

murder.” Greene, 192 Ariz. at 440-41 ¶ 39, 967 P.2d at 115-16.

¶88 The jury here was instructed as follows:

Defendant relished the murder if defendant, by words or
actions, savored the murders. These words or actions
must show debasement or perversion and not merely the
defendant had a vile state of mind or callous attitude.

Statements suggesting indifference as well as those
reflecting calculated plan to kill, satisfaction over
the apparent success of the plan, extreme callousness,
lack of remorse, or bragging after the murder are not
enough unless there is evidence that the defendant
fully relished the act of murder at or near the time of
the killing.

¶89 Hausner does not challenge the instructions with

respect to relishing, but instead argues that there was

insufficient evidence from which the jury could conclude that he

relished the act of killing “at the time he was doing it.”

¶90 In reviewing whether a jury has abused its discretion

in finding an aggravating factor, we “review[] the record to

determine whether substantial evidence supports the jury’s

finding, viewing the facts in the light most favorable to

sustaining the jury verdict.” State v. Roque, 213 Ariz. 193,
42

218 ¶ 93, 141 P.3d 368, 393 (2006). “Substantial evidence is

such proof that reasonable persons could accept as adequate and

sufficient to support a conclusion of [the] defendant’s guilt

beyond a reasonable doubt.” Id. (internal quotations omitted).

¶91 Substantial evidence supports the jury’s finding that

Hausner relished the four murders at or near the time he

committed them. Blasnek was his last victim; he killed her on

the night of July 30, 2006. In recorded conversations in his

apartment on August 3, Hausner joked with Dieteman about killing

Blasnek and other victims and declared, “I love shooting people

in the back, it’s so much fun.” He and Dieteman read each other

articles about the serial shooting investigation and Blasnek’s

murder. Responding to a police tally of six victims, Hausner

said, “It’s higher than that! What about the guy I fucking shot

at 27th Avenue in the yard?” When Dieteman told him that police

were looking for similar crimes in other states, Hausner

responded, “so we’re being copycatted, Sam? We’re pioneers,

Sam? We’re leading the way for a better life for everybody,

Sam?”

¶92 Hausner, after listening to Dieteman read an article

about the Blasnek shooting, said “She was on her knees. ‘Oh,

I’ve been shot!’ Blood pouring out, right.” He then said, in a

voice mimicking Blasnek’s, “I’ve been shot,” and he and Dieteman

43

mimicked crying, laughed, and referred to Blasnek scornfully.

Reading from an obituary, Dieteman later asked Hausner if he

knew a “Blasnek,” and Hausner responded “I know a ‘blast neck.’”

Hausner also recorded, on a piece of paper, Blasnek’s name and

the date and time of her murder.

¶93 Gutierrez-Cruz, the next-to-last victim, was shot by

Hausner and Dieteman with a .410 shotgun on May 2, 2006, and

died while in surgery. Two days after the shooting, Hausner,

according to Dieteman, came to their apartment in a “jovial”

mood, with a “big grin on his face,” and read Dieteman a

newspaper article describing the murder. Hausner told Dieteman,

“Oh, dude, you got the first murder of the year in Scottsdale.

I’m jealous.”

¶94 Hausner murdered Carillo and Ortis within two blocks

of each other in Phoenix on December 29, 2005. That same

evening, in the same area, he shot and attempted to kill another

pedestrian, who survived. The following night, Hausner shot and

attempted to kill yet another victim, who also survived. He

kept news clippings about each of the four murders.

¶95 Hausner argues that retaining news clippings and

bragging about a murder after the fact do not suffice to

establish relishing. The evidence showed, however, that Hausner

did not merely keep some news stories or brag about the murders.

44

Hausner demonstrated through his words and actions that, as he

said, he “loved shooting people in the back.” Words or actions

after a murder may prove the murderer savored the act of killing

at or near the time it occurred. See State v. West, 176 Ariz.

432, 437, 862 P.2d 192, 197 (1993) (defendant bragging to multiple

people about murdering older man and describing how he killed

him was relishing), overruled on other grounds by State v.

Rodriguez, 192 Ariz. 58, 961 P.2d 1006 (1998). The evidence

amply supported a jury finding that Hausner savored the murders

at or near the time he committed them.

¶96 Hausner also argues that the jury abused its

discretion in finding the murders of Gutierrez-Cruz and Blasnek

especially cruel. Because the finding that each of these

murders was heinous or depraved suffices to establish the (F)(6)

aggravator, we need not address the jury’s finding of cruelty.

See State v. Morris, 215 Ariz. 324, 341 ¶ 80, 160 P.3d 203, 220

(2007).

H. Jury Findings that Certain Murders were Committed in a
“Cold, Calculated Manner”

¶97 The (F)(13) aggravator qualifies a first degree murder

for the death penalty if “[t]he offense was committed in a cold,

calculated manner without pretense of moral or legal

justification.” A.R.S. § 13-751(F)(13). The jury found this

aggravator with respect to the murders of Ortis, Carillo,
45

Gutierrez-Cruz, and Blasnek.

¶98 Hausner contends that the (F)(13) aggravator is

unconstitutional on its face, the jury was erroneously

instructed as to its meaning, it does not sufficiently narrow

the application of the death penalty, and it was not supported

by the evidence.

¶99 We review constitutional issues de novo, and, when

possible, construe statutes to uphold their constitutionality.

State v. Hargrave, 225 Ariz. 1, 13 ¶ 42, 234 P.3d 569, 581

(2010). The death penalty may not be imposed under sentencing

procedures that create a substantial risk that the punishment

will be inflicted in an arbitrary and capricious manner. Furman

v. Georgia, 408 U.S. 238, 256 (1972). To pass constitutional

muster, then, an aggravator must meet two criteria: the

circumstance may not apply to every defendant convicted of a

murder, but only to a subclass, and the aggravating circumstance

may not be overly vague. Tuilaepa v. California, 512 U.S. 967,

972 (1994).

¶100 Vagueness is a difficult concept to analyze, but

sentencing factors that the Supreme Court has found to be

impermissibly vague have often been those that present a

“specific proposition that the sentencer had to find true or

false (e.g., whether the crime was especially heinous,

46

atrocious, or cruel).” Id. at 974. Where a sentencing factor

is a specific proposition, such as “cold and calculated,” the

concern is that it have some “common-sense core of meaning . . .

that criminal juries should be capable of understanding.” Id.

at 975 (internal quotation omitted).

¶101 Although this Court has never addressed the

constitutionality of the (F)(13) aggravator, state supreme

courts in Illinois and Florida have considered similar

aggravators. The Illinois Supreme Court upheld an aggravator

for murders that were “cold, calculated, and premeditated,”

finding that it was not unconstitutionally vague. People v.

Johnson, 609 N.E.2d 294, 372-73 (Ill. 1993). (Illinois has

since abolished the death penalty.) In contrast, the Florida

Supreme Court ruled that Florida’s cold, calculated and

premeditated (“CCP”) aggravator was unconstitutionally vague.

Jackson v. State, 648 So. 2d 85, 90 (Fla. 1994). The Florida

statute made murders death-eligible if they were “committed in a

cold, calculated, and premeditated manner without any pretense

of moral or legal justification.” Fla. Stat. Ann.

§ 921.141(5)(i). The court in Jackson concluded that “[w]ithout

the benefit of an explanation that some ‘heightened’ form of

premeditation is required to find CCP, a jury may automatically

characterize every premeditated murder as involving the CCP

47

aggravator.” 648 So. 2d at 89.

¶102 Jackson is instructive. Although Arizona’s statute

differs from Florida’s in that it omits the word “premeditated,”

and instead allows for death penalty eligibility if “[t]he

offense was committed in a cold, calculated manner without

pretense of moral or legal justification,” Arizona’s (F)(13)

aggravator otherwise tracks the language of Florida’s statute.

A.R.S. § 13-751(F)(13). In Jackson, the court found the jury

received “no instruction to illuminate the meaning of the terms

‘cold,’ ‘calculated,’ or ‘premeditated.’” 648 So. 2d at 89-90.

Without further instruction, the Jackson court noted, “[i]t

would also be reasonable for the general public to consider

premeditated first degree murder as ‘cold-blooded murder.’” Id.

at 89. On its face, Arizona’s (F)(13) aggravator suffers from

the same vagueness infirmity as Florida’s statute.

¶103 An aggravator that is vague on its face, however, can

be properly narrowed by a court to bring it within

constitutional bounds. State v. Chappell, 225 Ariz. 229, 237

¶ 26, 236 P.3d 1176, 1184 (2010), cert. denied, 131 S. Ct. 1485

(2011) (“vagueness. . . . may be remedied with appropriate

narrowing instructions.”) (internal quotation omitted); see also

State v. Tucker, 215 Ariz. 298, 310 ¶ 28, 160 P.3d 177, 189

(2007); Walton v. Arizona, 497 U.S. 639, 655 (1990), overruled

48

on other grounds by Ring, 536 U.S. 584. In Jackson, upon

remand, Florida’s CCP aggravator was narrowed through jury

instructions defining its terms, 648 So. 2d at 89-90, and

subsequent death sentences in Florida, under these narrowing

instructions, have been upheld. See, e.g., McWatters v. State,

36 So. 3d 613, 643 (Fla. 2010), cert. denied, 131 S. Ct. 510

(2010).

¶104 The trial court here gave narrowing instructions

substantially the same as those approved in Jackson. It

clarified to the jury that “all first degree premeditated

murders are, to some extent, committed in a cold, calculated

manner,” but distinguished this aggravator as one that “cannot

be found to exist unless . . . the defendant exhibited a cold

intent to kill and is more contemplative, more methodical, more

controlled than that necessary to commit premeditated first

degree murder.” The instruction further defined the term “cold”

as “a product of a calm and cool reflection” and “calculated” as

“having a careful plan or prearranged design to commit murder.”

The court emphasized that the jury must look to the defendant’s

state of mind at the time of the offense to determine whether

there exists any pretense of moral or legal justification that

rebuts cold and calculated, and that it must find beyond a

reasonable doubt that there is (1) a careful plan or prearranged

49

design before the murder, and (2) a cool and calm reflection for

a substantial period of time before the murder.

¶105 This instruction adequately narrowed the aggravator,

making it clear that it is not the cold and calculated nature of

every murder that will satisfy it, but that the jury must find

some degree of reflection and planning that goes beyond the

premeditation required to find first degree murder, channeling

the jury’s discretion by “clear and objective standards” that

provide “specific and detailed guidance.” Godfrey v. Georgia,

446 U.S. 420, 428 (1980).

¶106 Apart from arguing that the (F)(13) aggravator is

facially vague, Hausner also contends that the trial court

incorrectly defined particular terms in its narrowing

instructions. Specifically, he argues: the instructions

incorrectly defined “cold;” the term “calculated” was

superfluous; and the trial court’s explanation of “without

pretense of moral or legal justification” “makes no sense at all

in conjunction with Arizona’s law.”

¶107 “We review de novo whether jury instructions

adequately state the law.” State v. Gallardo, 225 Ariz. 560,

567 ¶ 30, 242 P.3d 159, 166 (2010) (internal quotation omitted).

Because Hausner did not object to the (F)(13) instructions on

these grounds below, however, he is not entitled to relief

50

unless he can show fundamental error.

¶108 The trial court did not incorrectly define the terms

of the (F)(13) aggravator. The court instructed the jury that

“[c]old means the murder was a product of a calm and cool

reflection. Calculated means having a careful plan or

prearranged design to commit murder.” Arizona cases have

previously used the terms “cold” or “cold-blooded” to describe

murders or crimes marked by a lack of emotion in the act of

killing. See, e.g., King, 180 Ariz. at 286, 883 P.2d at 1042

(describing the thought out, deliberate killing to eliminate a

witness as “cold-blooded”); State v. Schurz, 176 Ariz. 46, 56,

859 P.2d 156, 166 (1993) (describing the deliberate, careful

burning to death of a person who attempted to flee as “cold-

blooded”); Gretzler, 135 Ariz at 58, 659 P.2d at 17 (describing

the cold blooded murder of nine persons, including shooting

sleeping children as they lay in their beds). Nor did the trial

court’s definition make superfluous the term “calculated,” which

the instructions defined to mean “having a careful plan or

prearranged design to commit murder.”

¶109 Hausner also faults the trial court’s definition of

“without pretense of moral or legal justification.” The court

instructed the jury that this phrase means without “anything of

justification or excuse that, though insufficient to reduce the

51

degree of murder, nonetheless rebuts the otherwise cold,

calculated nature of the murder.” Hausner contends the court

should have explained to the jury the legal justifications that

exist under Arizona law. But this mistakenly presumes that the

jury could only consider legally recognized justifications. The

statute refers more broadly to a “pretense” of legal or moral

justification, and the trial court reasonably defined this as

“anything of justification or excuse.”

¶110 The trial court properly narrowed the (F)(13)

aggravator so that it was constitutional, despite its facial

vagueness, and it defined the terms to the jury in a permissible

manner that did not constitute fundamental error.

¶111 Hausner also argues the jury abused its discretion in

finding the (F)(13) aggravator, contending that his murders

could not have been “cold and calculated” because they were

“random.” We disagree. The fact that victims were randomly

targeted does not preclude a finding of the elements of the

(F)(13) aggravator. There is ample evidence that Hausner had a

careful plan or prearranged design for each of the four murders

even if he randomly identified the particular victim. The jury

could also find that he exhibited a cool and calm reflection for

a substantial period of time before killing and that he had no

pretense of moral or legal justification or excuse.

52

¶112 We note that Hausner has not argued that there was any

constitutional error based on the trial court adopting narrowing

instructions for (F)(13) that had not been approved by this

Court before he committed the relevant murders. Cf. State v.

Schmidt, 220 Ariz. 563, 566 ¶ 10, 208 P.3d 214, 217 (2009)

(holding that use of vaguely defined statutory aggravator as

sole factor to enhance sentence violated due process). We do

not address whether the trial court erred in this respect.

¶113 Finally, we conclude that any error by the trial court

in applying the (F)(13) aggravator - and we have not identified

any for reasons explained above - was harmless beyond a

reasonable doubt. This Court may apply “harmless-error analysis

when errors [regarding sentencing factors] have occurred in a

capital sentencing proceeding,” Clemons v. Mississippi, 494 U.S.

738, 754 (1990), so long as the errors do not permit the

sentencer to consider otherwise inadmissible evidence. Id. n.5;

see Brown v. Sanders, 546 U.S. 212, 220-21 (2006) (stating that

due process requires reversal of death sentence if invalid

sentencing factor allowed sentencer to consider evidence that

otherwise would not have been before it); cf. Jennings v.

McDonough, 490 F.3d 1230, 1249-50 (11th Cir. 2007) (approving

Florida Supreme Court’s harmless error analysis with regard to

vaguely defined aggravator).

53

¶114 The use of the (F)(13) aggravator did not allow the

jury to consider any evidence that otherwise would not have been

before it. The jury properly found three other aggravators –

the (F)(1), (2), and (6) – with respect to each of the four

victims for which it also found the (F)(13). Hausner presented

no mitigation evidence. In these circumstances, we conclude

that any error regarding the (F)(13) aggravator did not

influence the jury’s decision to impose death sentences. Cf.

State v. Sansing, 206 Ariz. 232, 241 ¶ 38, 77 P.3d 30, 39 (2003)

(affirming court-imposed death sentence upon concluding that any

reasonable jury would have found the mitigation was not

sufficiently substantial to call for leniency).

I. Waiver of Presentation of Mitigation

¶115 Hausner argues that the trial court should not have

allowed him, over his lawyers’ objection, to waive the

presentation of mitigation during the penalty phase.

¶116 A defendant may waive mitigation if he is competent

and makes the decision knowingly, intelligently, and

voluntarily. State v. Murdaugh, 209 Ariz. 19, 33-34 ¶¶ 70-71,

97 P.3d 844, 858-59 (2004). The trial court ordered Hausner to

undergo a competency examination when he stated that he wished

to waive the presentation of mitigating evidence. After the

examiner concluded that Hausner was competent, the trial court

54

confirmed with Hausner that he had discussed his decision and

its consequences with his counsel. The court then found that he

had knowingly, intelligently, and voluntarily waived mitigation.

Hausner does not challenge these findings.

¶117 During the penalty phase, Hausner’s lawyers did not

make an opening statement or closing argument. During

allocution, Hausner apologized to his family and to the victims,

but he also urged the jury to sentence him to death: “I’m

willing to take whatever punishment you guys give me, and I

firmly believe, to help the victims heal, that should be the

death penalty.” The trial court instructed the jury that it was

not limited to considering mitigating circumstances offered by

the defendant, that it must consider any relevant mitigating

evidence offered during any phase of the trial, and that each

juror must individually determine whether the mitigation was

sufficiently substantial to call for leniency.

¶118 Although the proceedings here complied with Murdaugh,

Hausner argues that we should reconsider that decision. He

contends that allowing a defendant to waive mitigation prevents

the jury from considering all relevant mitigation in determining

whether to impose a death sentence. He also argues that

Murdaugh misinterpreted Blystone v. Pennsylvania, 494 U.S. 299

(1990). These arguments are not convincing. Blystone rejected

55

an Eighth Amendment challenge to a death sentence imposed by a

jury that was instructed, as was the jury here, that it should

consider any mitigation evidence presented at trial in deciding

on the penalty. Although the defendant in Blystone waived the

presentation of mitigation, the Supreme Court held that the

sentencing procedures did not impermissibly preclude the jury

from considering all relevant mitigation evidence presented at

trial. See id at 307-08.

¶119 Hausner also has no viable argument that the Sixth

Amendment requires the defense to present mitigation despite the

defendant’s waiver. In Schriro v. Landrigan, the Court held

that a defendant could not establish the prejudice prong for a

claim of ineffective assistance of counsel related to counsel’s

failure to investigate mitigation evidence when the defendant

decided to not present any mitigation. 550 U.S. 465, 476, 481

(2007). Indeed, requiring the defense to present mitigating

evidence over the defendant’s opposition arguably would conflict

with the defendant’s Sixth Amendment right to self-

representation. See United States v. Davis, 285 F.3d 378, 384–

85 (5th Cir. 2002); People v. Blair, 115 P.3d 1145, 1177-78

(Cal. 2005).

¶120 Hausner notes that the New Jersey Supreme Court,

recognizing the state’s interest in a fair and reliable

56

sentencing determination, has held that mitigation must be

presented even over the defendant’s objection. State v.

Koedatich, 548 A.2d 939, 992-97 (N.J. 1988). We find more

persuasive the majority of courts that have declined to follow

Koedatich and instead have held that a capital defendant may

waive the presentation of mitigation. See, e.g., Blair, 115

P.3d at 1178-79 (citing state and federal cases); State v.

Jordan, 804 N.E.2d 1, 16-17 (Ohio 2004) (rejecting Koedatich as

inconsistent with autonomy of defendant and for its reliance on

subsequently repudiated California case law); State v.

Arguelles, 63 P.3d 731, 752-53 (Utah 2003) (noting that the

“vast majority” of courts have held that a capital defendant may

waive the presentation of mitigation and declining to follow

Koedatich).

¶121 The State correctly notes that the Supreme Court has

never imposed an “informed and knowing” requirement upon a

defendant’s decision to waive the presentation of mitigation,

see Landrigan, 550 U.S. at 47, but this Court has consistently

required a voluntary, knowing, and intelligent waiver of this

important constitutional right, see, e.g., State v. Delahanty,

226 Ariz. 502, 508 ¶ 34, 250 P.3d 1131, 1137 (2011) (affirming

capital sentence imposed after trial court ordered competency

evaluation and found defendant knowingly and intelligently

57

waived right to present mitigation); State v. Bearup, 221 Ariz.

163, 173 n.3, 211 P.3d 684, 694 (2009) (noting trial court had

conducted colloquies and determined defendant had knowingly,

intelligently, and voluntarily waived right to counsel and to

present mitigation during penalty phase). Here, the trial court

took steps to ensure that Hausner was competent and that he

knowingly, intelligently, and voluntarily waived mitigation.

¶122 We commend the approach adopted by the trial court

and, in our supervisory capacity, direct that similar procedures

be prospectively applied when a capital defendant elects to

waive the presentation of all mitigation. See Ariz. Const. art.

6, § 3; cf. State v. Ashworth, 706 N.E.2d 1231, 1237 (Ohio 1999)

(requiring trial court to inquire if the waiver of all

mitigating evidence in a capital case is knowing, voluntary, and

competent). The trial court should engage the defendant in a

colloquy to ensure that the defendant understands the penalty

phase process, the right to present mitigation, and the

consequences of waiving this right. Defense counsel should

confirm on the record that he or she has discussed with the

defendant the nature of the mitigation that could be presented

and the consequences of waiver. The court should confirm on the

record that the defendant is waiving the presentation of

mitigation knowingly, intelligently, and voluntarily. If the

58

circumstances present questions about the defendant’s

competence, the court should order an appropriate mental

examination before accepting the waiver. These procedures will

help ensure that waivers are made on an informed and voluntary

basis and, by avoiding subsequent questions on these issues,

also facilitate the review of any related capital sentences.

J. Denial of Counsel’s Motion to Withdraw

¶123 Hausner also argues that the trial court abused its

discretion by denying his counsel’s motion to withdraw after

allowing him to waive the presentation of mitigation evidence.

Defense counsel may move to withdraw in a criminal case if

counsel believes that continued representation will or is likely

to result in the violation of the Rules of Professional Conduct

or other law. See Rodriquez v. State, 129 Ariz. 67, 70, 628

P.2d 950, 953 (1981) (discussing motion to withdraw based on

violation of Disciplinary Rules); Ariz. Sup. Ct. R. 41, ER

1.16(a)(1), (c). We review a trial court’s ruling on a motion

to withdraw for abuse of discretion. State v. Jones, 185 Ariz.

471, 482, 917 P.2d 200, 211 (1996).

¶124 Hausner argues that, once he elected to waive the

presentation of mitigation and to prevent his lawyers from

arguing for leniency, the lawyers’ continued representation

violated Guideline 10.11(L) of the ABA Guidelines for the

59

Appointment of Defense Counsel in Death Penalty Cases (the “ABA

Guidelines”) and ER 1.16 of the Arizona Rules of Professional

Conduct. The ABA guideline requires counsel to fully

investigate mitigation and “to take advantage of all appropriate

opportunities to argue why death is not suitable punishment.”

ER 1.16 provides that a lawyer shall withdraw if continued

representation would result in a violation of law and may

withdraw if the client insists upon taking action that the

lawyer considers repugnant or with which the lawyer has a

fundamental disagreement.

¶125 The ABA Guidelines are, under our Criminal Rules,

guidelines and not requirements. By its terms, Criminal Rule

6.8(b)(1)(iii) states that trial counsel “shall be familiar with

and guided by the performance standards” of the 2003 ABA

Guidelines, and the 2006 comment to this Rule notes that “[s]ome

guidelines may not be applicable to Arizona practice or to the

circumstances of a particular case.” Moreover, ER 1.16 does not

mandate withdrawal any time continued representation may result

in a violation of an ethical rule or other law; instead ER

1.16(c) provides that “[w]hen ordered to do so by a tribunal, a

lawyer shall continue the representation notwithstanding good

cause for terminating the representation.”

¶126 Because Hausner was entitled to waive the presentation

60

of mitigation, his lawyers were ethically required to abide by

that decision. See ER 1.2 (noting that a lawyer generally

“shall abide by the client’s decisions concerning the objectives

of representation” and that, in criminal cases, the lawyer shall

“abide by the client’s decision, after consultation with the

lawyer, as to a plea to be entered, whether to waive jury trial

and whether the client will testify”). Hausner’s decision to

waive mitigation and to instruct his lawyers not to argue for a

life sentence unquestionably put them in a difficult position

and one they may have found morally repugnant. The trial court,

however, did not abuse its discretion in denying their motion to

withdraw.

K. Review of Death Sentences

¶127 Because the murders occurred after August 1, 2002,

this Court must review Hausner’s death sentences to “determine

whether the trier of fact abused its discretion in finding

aggravating circumstances and imposing a sentence of death.”

A.R.S. § 13–756(A). A finding of an aggravating circumstance is

not an abuse of discretion if there is “any reasonable evidence

in the record to sustain it.” Morris, 215 Ariz. at 341 ¶ 77,

160 P.3d at 220 (internal quotation omitted). The jury's

determination that death is the appropriate sentence will not be

reversed “so long as any reasonable jury could have concluded

61

that the mitigation established by the defendant was not

sufficiently substantial to call for leniency.” Id. ¶ 81.

1. Aggravating Circumstances

¶128 For reasons explained above, the jury did not abuse

its discretion in finding the (F)(6) and (F)(13) aggravating

factors with respect to victims Carillo, Ortis, Gutierrez-Cruz,

and Blasnek. Sufficient evidence also exists to support the

jury’s finding of the (F)(1) (conviction for other offense

subject to sentence of life imprisonment or death) and (F)(2)

(prior conviction of a “serious offense”) aggravators with

respect to each of these victims and victims David Estrada and

Nathanial Shoffner.

2. Mitigating Circumstances

¶129 Although Hausner did not present mitigation evidence

during the penalty phase, evidence admitted at the guilt phase

is admitted for purposes of the sentencing phase, A.R.S. § 13-

752(I), and the jury must “consider the mitigating

circumstances, whether proved by the defendant or present in the

record, in determining whether death is the appropriate

sentence.” State ex rel. Thomas v. Granville (Baldwin), 211

Ariz. 468, 473 ¶ 18, 123 P.3d 662, 667 (2005). The trial court

properly instructed the jury that it must consider relevant

mitigation presented at any phase of the trial.

62

¶130 Hausner contends that evidence at the guilt phase

established that he was a caring father for his daughter, who

was born in 2004, suffered from Von Gierke’s disease, and

required special care and feeding, and that he had two sons who

died in 1994 at ages two and three in a car crash in which he

was a passenger. He also states that he expressed sympathy for

his victims at his post-arrest press conference and during

allocution, that he had no felony convictions before this case,

and that he was using methamphetamine daily when he committed

the offenses and had overcome a prior addiction in 1994.

¶131 In response, the State notes that there was

conflicting evidence about the degree of Hausner’s concern for

his daughter; that he had tried to exploit the tragedy of his

sons’ deaths by falsely testifying that he visited their

gravesites one night of the shootings; that his remorse is

entitled to little weight because he maintained his innocence;

that the lack of prior convictions is not compelling given his

many convictions in this case; and that he presented no evidence

connecting his methamphetamine use to the crimes.

¶132 We will uphold a jury’s decision to impose death if

any “reasonable juror could conclude that the mitigation

presented was not sufficiently substantial to call for

leniency.” Gallardo, 225 Ariz. at 570 ¶ 52, 242 P.3d at 169.

63

In light of the several aggravating circumstances for each

murder, and the limited mitigation, the jury did not abuse its

discretion in imposing death sentences for the six murders.

L. Sentencing on Non-Capital Counts

¶133 Hausner argues that the trial court committed

fundamental error by enhancing several of his non-capital

sentences under A.R.S. § 13-702.02 (2006) (since amended and

renumbered A.R.S. § 13-703). This statute provides for enhanced

sentences for defendants who are convicted of multiple offenses

committed on separate occasions but consolidated for trial.

Hausner contends that “[d]ue process and fundamental fairness

under the Sixth and Fourteenth Amendments required the State to

give notice that it intended to seek enhanced sentencing for the

non-capital counts under A.R.S. § 13-702.02.”

¶134 At the relevant time, A.R.S. § 13-702.02(G) stated:

The court shall inform all of the parties before the
sentencing occurs of its intent to increase or
decrease the sentence pursuant to this section. If
the court fails to inform the parties, a party waives
the right to be informed unless the party timely
objects at the time of sentencing.

¶135 The State filed a sentencing memorandum asking the

trial court to enhance the sentences on most of the non-capital

counts under § 13-702.02. Hausner did not object, and the trial

court imposed enhanced sentences. On appeal, Hausner

acknowledges that this Court has never held that the state must
64

provide pretrial notice of its intent to seek enhanced sentences

under this statute.

¶136 We need not decide whether the state must specifically

provide notice before trial of its intent to seek an enhancement

under § 13-702.02. Hausner in fact received notice. The

consolidated trial indictment expressly alleged § 13-702.02 for

certain animal cruelty charges. With respect to the charges

more generally, the State filed notices of non-capital

aggravating factors with respect to each cause number, stating:

“[i]f the jury convicts the defendant of multiple felony counts

that are not used to enhance the sentence under A.R.S. § 13-

702.02 . . . the state intends to allege the multiple

convictions as an aggravating circumstance.”

¶137 No fundamental error occurred. The State indicated in

its pretrial filings that it might seek enhanced sentences under

A.R.S. § 13-702.02, and Hausner has not shown any prejudice from

the lack of more specific notice. Cf. State v. Tresize, 127

Ariz. 571, 574, 623 P.2d 1, 4 (1980) (finding sufficient notice

for enhancement for use of a deadly weapon or dangerous

instrument based on allegations in indictment, although there

was no separate allegation or statutory citation).

65

CONCLUSION

¶138 We reverse Hausner’s conviction on count eight for

animal cruelty and otherwise affirm his convictions and

sentences.

¶139

_____________________________________
Scott Bales, Vice Chief Justice

CONCURRING:

____________________________________
Rebecca White Berch, Chief Justice

____________________________________
A. John Pelander, Justice

____________________________________
Robert M. Brutinel, Justice

____________________________________
*

* Before his resignation on June 27, 2012, as a result of his
appointment to the United States Court of Appeals for the Ninth
Circuit, Justice Andrew D. Hurwitz participated in this case,
including oral argument, and concurred in this opinion’s
reasoning and result.

66

APPENDIX

Hausner raises seventeen issues to preserve them for
federal review. This Appendix lists his claims and the
decisions he identifies as rejecting them.

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 irrational and imposed arbitrarily,
and serves no other purpose that is not adequately addressed by
life in prison, in violation of Hausner’s due process under the
Fourteenth Amendment to the U.S. Constitution and Article 2, §§
1 and 4 of the Arizona Constitution. State v. Smith, 203 Ariz.
75, 82 ¶ 36, 50 P.3d 825, 832 (2002); State v. Beaty, 158 Ariz.
232, 762 P.2d 519 (1988).

3. 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 by Ring, 536
U.S. at 584.
4. Proportionality review serves to identify which cases are
above the norm of first degree murder, narrowing the class of
defendants who are eligible for the death penalty. Thus, 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. Harrod, 200 Ariz.
at 320 ¶ 65, 26 P.3d at 503.

5. The State‘s failure to allege an element of a charged
offense in the grand jury indictment – the aggravating factors
under A.R.S. § 13-703(F) (renumbered as A.R.S. § 13-751(F),
effective January 1, 2009) that made Defendant death eligible –
is a fundamental defect that renders the indictment
constitutionally defective under the Fifth, Sixth, Eighth, and
Fourteenth Amendments and Article 2, §§ 1, 4, 13, 15, 23 and 24
of the Arizona Constitution. See U.S. v. Chesney, 10 F.3d 641
(9th Cir. 1993); Apprendi v. New Jersey, 530 U.S. 466 (2000).
67

See McKaney v. Foreman, 209 Ariz. 268, 270-71 ¶¶ 11-13, 100 P.3d
18, 20-21 (2004).

6. The (F)(6) aggravating factor of “especially cruel,
heinous, or depraved” is unconstitutionally vague and overbroad
because the jury does not have enough experience or guidance to
determine when the aggravator is met, and 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 construction[s]” to draw from and give “substance” to
the otherwise facially vague law. See Walton v. Arizona, 497
U.S. 639, 654 (1990), overruled on other grounds by Ring, 536
U.S. 584. See also Chappell, 225 Ariz. at 337-38 ¶¶ 26-27, 236
P.3d at 1184-85; Hargrave, 225 Ariz. at 13-14 ¶¶ 42-46, 234 P.3d
at 581-82.

7. 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
(1976), and the trial court‘s limitation of the jury to
consideration of mitigation proven by a preponderance of the
evidence is unconstitutional under the Eighth and Fourteenth
Amendments. McGill, 213 Ariz. at 161 ¶ 59, 140 P.3d at 944
(citing Medina, 193 Ariz. at 514-15 ¶ 43, 975 P.2d at 104-05).

8. 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, or make specific findings
as to mitigation. Instead, Arizona‘s death penalty statute
requires defendants to prove their lives should be spared, in
violation of the Fifth, Eighth, and Fourteenth Amendments, and
Article 2, § 15 of the Arizona Constitution. Roque, 213 Ariz.
at 225-26, ¶¶ 138-141, 141 P.3d at 400-401.

9. 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; and Arizona’s death penalty statutes are
unconstitutional because they provide no objective standards to
guide the jury in weighing the aggravating and mitigating
circumstances. Rather, the broad scope of Arizona’s aggravating
factors encompasses nearly anyone involved in a murder, in
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violation of the Fifth, Eighth and Fourteenth Amendments, and
Article 2, § 15 of the Arizona Constitution. State v. White, 194 Ariz. 344, 355 § 49, 982 P.2d 819, 830 (1999).

10. Arizona’s death penalty statutes lack standards necessary
for the jury to find aggravation, to evaluate aggravation and
the mitigation, and to determine what “sufficiently substantial
to call for leniency” means, resulting in the arbitrary and
capricious imposition of the death penalty in Arizona, in
violation of Due Process, the Eighth and Fourteenth Amendments,
as well as Ariz. Const. art. 2, § 15.925. See Beaty, 158 Ariz.
at 247, 762 P.2d at 534.

11. Arizona’s death penalty laws unconstitutionally require
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, § 15 of the Arizona Constitution. Arizona’s death
penalty law cannot constitutionally presume that death is the
appropriate default sentence. State v. Miles, 186 Ariz. 10, 19,
918 P.2d 1028, 1037 (1996).

12. The death penalty is the irreversible denial of human
rights and the international community of nations has evolved to
a state of maturity that abolishes the death penalty. Today,
the majority of nations have abolished the death penalty.
Amnesty International, Facts and Figures on the Death Penalty
(January 1, 2006). The Universal Declaration of Human Rights,
GA Res. 217A (III), U.N. GAOR, 3d Sess. Art. 3, U.N. Doc. A/810
(1948), provides that “Everyone has the right to life, liberty,
and security of person.” The death penalty thus violates the
Universal Declaration of Human Rights, and is a violation of
international law. State v. Ross, 180 Ariz. 598, 602, 886 P.2d
1354, 1358 (1994) (citing State v. Richmond, 136 Ariz. 312, 322,
666 P.2d 57, 67 (1983)).

13. 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. Defendant
acknowledges that this argument was rejected in Van Adams, 194
Ariz. at 422 ¶ 55, 984 P.2d at 30, and State v. Hinchey, 181
Ariz. 307, 315, 890 P.2d 602, 610 (1995). See Koniaris, et al.,
Inadequate Anesthesia in Lethal Injection For Execution, 365
Lancet 1412-14 (April 16, 2005) (suggesting that protocols for
lethal injection are insufficient to assure painless death and
evidence of botched executions).
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14. The penalty-phase jury instructions incorrectly told the
jury that if the Defendant was not put to death, the judge could
sentence him to a sentence of natural life or to life with
release, and that this violated his constitutional due process
rights under the Fifth and Fourteenth Amendments because there
was no real possibility that Defendant would ever be released
from prison. See Simmons v. South Carolina, 512 U.S. 154
(1994)(reversible error to instruct jury that defendant could be
released when he could not); Hargrave, 225 Ariz. at 14-15 ¶¶ 50-
53, 234 P.3d at 582-83.

15. By allowing victim impact evidence at the penalty phase of
trial, the trial court violated Defendant‘s rights under the
Fifth, Sixth, Eighth and Fourteenth Amendments and Article 2,
§§ 1, 4, 13, 15, 23 and 24 of the Arizona Constitution. Lynn v.
Reinstein, 205 Ariz. 186, 68 P.3d 412 (2003).

16. The trial court improperly omitted from the penalty phase
jury instructions words to the effect that they may consider
mercy or sympathy in deciding the value to assign the mitigation
evidence, instead telling them to assign whatever value the jury
deemed appropriate and told the jury not to be influenced by
sentiment, passion, or 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, 70-72 ¶¶ 81-87,
107 P.3d 900, 916-18 (2005). See also State v. Kuhs, 223 Ariz.
376, 386-87 ¶¶ 51-56, 224 P.3d 192, 202-03 (2010).

17. The reasonable doubt instruction of State v. Portillo, 182
Ariz. 592, 898 P.2d 970 (1995), dilutes and shifts the burden of
proof in violation of the Sixth Amendment to the United States
Constitution. State v. Ellison, 213 Ariz. 116, 133 ¶ 63, 140
P.3d 899, 916 (2006).

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