State v. Lehr

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0095-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR1992-005731
SCOTT ALAN LEHR, )
)
Appellant. )
) O P I N I O N
__________________________________)

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

AFFIRMED
________________________________________________________________

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

DAVID GOLDBERG ATTORNEY AT LAW Fort Collins, CO
By David Goldberg
Attorney for Scott Alan Lehr
________________________________________________________________

B A L E S, Justice

¶1 This automatic appeal arises from Scott Alan Lehr’s

convictions and death sentences for murdering two women. We

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

Constitution and A.R.S. § 13–4031 (2011).

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Over the course of about a year, beginning in February

1991, Lehr separately attacked ten women in central and

northwest Phoenix, abducting and sexually assaulting his victims

and brutally murdering three of them. He was convicted of three

counts of first degree murder, three counts of attempted first

degree murder, two counts of aggravated assault, seven counts of

kidnapping, and twenty-two counts involving sexual assault. See

State v. Lehr (“Lehr I”), 201 Ariz. 509, 512 ¶ 1, 38 P.3d 1172,

1175 (2002). The trial court imposed death sentences for Lehr’s

murder convictions for victims M.M., M.C., and B.C.

¶3 This Court affirmed Lehr’s convictions and sentences

for the counts related to seven victims, but reversed his

convictions concerning M.M., M.C., and W.C. because the trial

court had improperly restricted Lehr’s cross-examination of the

State’s DNA expert. Id. at 518-20 ¶¶ 32-43, 38 P.3d at 1181-83.

On independent review, this Court affirmed Lehr’s death sentence

for B.C.’s murder. Id. at 522-24 ¶¶ 60-66, 38 P.3d at 1185-86.

¶4 The case was remanded for a retrial on the charges

concerning M.M., M.C., and W.C. See id. at 524 ¶ 67, 38 P.3d at

1186. Before the mandate issued, however, the Supreme Court

decided Ring v. Arizona, 536 U.S. 584 (2002). In light of Ring,

this Court also vacated Lehr’s death sentence for B.C.’s murder

and remanded the case for resentencing. State v. Lehr (“Lehr

II”), 205 Ariz. 107, 110 ¶ 10, 67 P.3d 703, 706 (2003).

¶5 The counts involving victims M.M., M.C., and W.C. were

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retried in 2009. After finding Lehr guilty on these counts, the

jury concluded that Lehr should be sentenced to death for the

murders of M.M. and M.C., but it could not reach a verdict on

the appropriate sentence for the murder of B.C. In lieu of

retrying the sentencing phase for B.C.’s murder, the State

withdrew its request for the death penalty, and the trial court

sentenced Lehr to life imprisonment to be served consecutively

to his other sentences. The trial court also sentenced Lehr to

seven-year consecutive terms of imprisonment for each non-

capital offense. This appeal followed.

DISCUSSION

¶6 Lehr raises eight issues on appeal and also urges the

Court, in its independent review, to vacate his death sentences

and impose terms of life imprisonment without parole.

A. Waiver of Right to Attend Trial

¶7 Lehr repeatedly told the trial court that he wanted to

waive his right to attend pretrial and trial proceedings. He

now contends that his waiver was involuntary and violated the

Fifth, Sixth, and Fourteenth Amendments because it was based on

the trial court’s adherence to a jail policy requiring him to

wear a stun belt in the courtroom. Not having made this

objection below, Lehr argues that the alleged error was both

fundamental and structural.

¶8 We review de novo whether a defendant knowingly and

3

voluntarily waived his right to be present at trial. See

Campbell v. Wood, 18 F.3d 662, 672 (9th Cir. 1994) (noting that

voluntariness is ultimately a legal question). When a defendant

does not object to a trial court’s requiring him to wear

restraints such as stun belts, we review for fundamental error.

State v. Dixon, 226 Ariz. 545, ¶ 24, 250 P.3d 1174, 1180 (2011).

¶9 Lehr has not established error, fundamental or

otherwise. Although he contends that he waived his right to be

present only because he did not want to wear a stun belt, the

record belies this assertion. Before trial, Lehr informed the

court several times that he desired to be absent from all court

proceedings. The trial court held lengthy discussions to

confirm that Lehr understood his right to be present and that he

knowingly, intelligently, and voluntarily waived this right.

The issue arose again during the trial, when Lehr agreed to

stipulate that W.C. had previously identified him in a photo

lineup. In discussing the stipulation, Lehr reaffirmed his

intent to absent himself during the entire trial, and the trial

court found his waiver knowing, intelligent, and voluntary.

¶10 On the eve of the penalty phase, the trial court again

discussed with Lehr his waiver of his right to be present. Lehr

said that he wanted to absent himself in order to increase his

chances of receiving the death penalty. When the trial court

told Lehr that he would need to be present for the reading of

4

the verdicts, Lehr for the first time voiced concerns about

wearing a stun belt – which he characterized as “that deadly

execution device” – and asked if he could instead appear dressed

in jail clothes and wearing chains.

¶11 Lehr contends that his waiver was invalid because the

trial court, before the eve of the penalty phase, did not ask

why he did not want to be present. Lehr cites United States v.

Mitchell, 502 F.3d 931, 986-87 (9th Cir. 2007), for the

proposition that a judge must inquire into a defendant’s reasons

for absenting himself from trial. Mitchell does not so hold.

Although the trial court in Mitchell did ask the defendant why

he wished to absent himself, the Ninth Circuit’s opinion does

not address whether such an inquiry is required, but instead

holds that a capital defendant may absent himself from the

penalty phase and the trial court need not hold a competency

hearing when the defendant elects to do so. Id. at 986-88.

¶12 Similarly unavailing is Lehr’s supplemental citation

to In re MH 2006-000749, 214 Ariz. 318, 324-25 ¶ 29, 152 P.3d

1201, 1207-08 (App. 2007). In that case, the court of appeals

observed that “[t]he better practice in cases in which a court

is called upon to assess whether a right has been voluntarily

waived is to make specific findings.” Id. Although judges may

sometimes appropriately inquire into a party’s reasons for

waiving a right, they are not constitutionally required to do so

5

for a waiver to be valid. Cf. State v. Hunnel, 873 P.2d 877,

880 (Idaho 1994) (holding that a trial court need not inquire

into the reasons for a defendant’s waiver of right to counsel so

“long as the record as a whole and inferences drawn therefrom

show the waiver is voluntary and knowing”).

¶13 We also reject Lehr’s belated assertion that he waived

his presence solely because he did not want to wear a stun belt.

The only time he expressed concern about a stun belt was when

the trial court told him he would be required to appear in the

courtroom for the return of the sentencing verdicts. But even

if his desire not to wear a stun belt influenced his waiver,

Lehr has not established any error by the trial court.

¶14 Lehr’s argument presumes that if he had not waived his

presence, the trial court would have required him to wear a stun

belt merely because of jail policy. We reject this presumption.

In fact, on the eve of opening statements for the guilt phase,

the trial court told counsel that if Lehr chose to appear in

court and objected to a stun belt, the court would require the

jail security officers to explain their policies and “why they

apply to [Lehr] in this case” and the court would then make a

ruling. When Lehr later appeared in court for the reading of

the sentencing verdicts, the trial court, consistent with Deck

v. Missouri, 544 U.S. 622 (2005), and State v. Gomez, 211 Ariz.

494, 503 ¶ 43, 123 P.3d 1131, 1140 (2005), made a case-specific

6

determination that security concerns warranted shackling Lehr.

¶15 Because the trial court here appropriately conducted

several hearings to verify Lehr’s continued desire to absent

himself from trial and correctly found that Lehr’s decision was

knowing, intelligent, and voluntary, Lehr has not established

error.

B. Joinder and Other Acts Evidence

¶16 Lehr makes several arguments regarding the joinder of

charges for trial and the use of other acts evidence.

1. Admission of Other Acts Evidence

¶17 Pursuant to Rules 404(b) and (c) of the Arizona Rules

of Evidence, the trial court allowed the State to present

evidence of conduct involved in convictions upheld in Lehr I to

show modus operandi, identity, and aberrant sexual propensity.

¶18 Rule 404(b) allows the admission of evidence of “other

crimes, wrongs, or acts” for purposes that include “proof of

motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.” In cases

involving sexual offense charges, Rule 404(c) allows courts to

admit evidence of “other crimes, wrongs, or acts . . . if

relevant to show that the defendant had a character trait giving

rise to an aberrant sexual propensity to commit the offense

charged.” To admit such evidence, a trial court must

specifically find, among other things, that the other acts

7

provide “a reasonable basis to infer that the defendant had a

character trait giving rise to an aberrant sexual propensity to

commit the crime charged” and that “[t]he evidentiary value of

proof of the other act is not substantially outweighed by danger

of unfair prejudice, confusion of issues, or other factors

mentioned in Rule 403.” Ariz. R. Evid. 404(c)(1).

¶19 Lehr argues that the acts involved in his other crimes

were not sufficiently similar to warrant admitting evidence of

them under Rule 404(b). He also argues that such evidence was

inadmissible under Rule 404(c) because its probative value was

substantially outweighed by its prejudicial effect. We review

the trial court’s admission of this evidence for an abuse of

discretion. See State v. Villalobos, 225 Ariz. 74, 79–80 ¶ 18,

235 P.3d 227, 232–33 (2010).

¶20 Before admitting the other acts evidence, the trial

court held an evidentiary hearing at which the State presented

expert testimony. The court found “that the information

presented . . . convincingly establish[ed] that evidence of

other acts provides a reasonable basis to infer that [Lehr] has

a character trait which gives rise to an aberrant sexual

propensity for violent and sexual acts against non-consenting

females.” Consistent with Rule 404(c)(1), the trial court also

found that “the probative value of the evidence is not

substantially outweighed by the danger of unfair prejudice.”

8

The trial court further found that the evidence of previous

crimes could be admitted to show “modus operandi and identity”

because the “attacks were strikingly similar in the way the

Defendant lured the victims and transported them to the area

where they were assaulted, how he assaulted them, where he

assaulted them, and how he left them.”

¶21 In arguing that the trial court erred in admitting the

other acts evidence, Lehr notes that the attacks occurred at

different times and on different days of the week, the victims

varied in age, and other differences. The trial court, however,

identified extensive similarities among Lehr’s crimes. Acts

need not be perfectly similar in order for evidence of them to

be admitted under Rule 404. State v. Roscoe, 145 Ariz. 212,

216, 700 P.2d 1312, 1317 (1984). The trial court did not abuse

its discretion by admitting the other acts evidence.

2. Joinder of Charges for Trial

¶22 The court denied Lehr’s motion to sever the trials on

the charges relating to victims M.M., M.C., and W.C. and to

separately resentence Lehr for the murder of B.C. “A denial of

a motion to sever under Rule 13.4(b) is reversible error only if

the evidence of other crimes would not have been admitted at

trial for an evidentiary purpose anyway.” State v. Aguilar, 209

Ariz. 40, 51 ¶ 38, 97 P.3d 865, 876 (2004) (quotation marks and

citations omitted). The trial court denied Lehr's motion to

9

sever the retrials and the resentencing because “evidence of the

other offense or offenses would be admissible under applicable

rules of evidence if the offenses were tried separately.” Ariz.

R. Crim. P. 13.4(b). The court properly applied Rule 13.4(b) in

denying Lehr's motion to sever.

3. Jury Instructions and State’s Closing

¶23 Lehr also argues that the trial court erred in

instructing the jury that it could consider the evidence of

other acts for all of the purposes listed in Rule 404(b).

Repeatedly during trial and at the close of the guilt phase, the

trial court gave limiting instructions to the jury about using

evidence for 404(b) and (c) purposes. The court instructed the

jury that it could consider the other acts evidence under Rule

404(b) only “to establish the Defendant’s motive, opportunity,

intent, preparation, plan, knowledge, and identity.” On the

third day of trial, Lehr asked the court to remove from the jury

instructions all reasons to consider Rule 404(b) evidence except

identity. The court denied Lehr's request.

¶24 Although trial courts should specify in their limiting

instruction the purposes for which Rule 404(b) evidence is being

admitted, the failure to do so here was harmless error. See

United States v. Wilson, 107 F.3d 774, 783 (10th Cir. 1997)

(holding that trial court’s failure to instruct jury on specific

purpose for admitting Rule 404(b) evidence “is harmless if its

10

purpose is apparent from the record and it was properly

admitted”). Here, the purposes for which the evidence was

admitted were apparent from the record. In closing arguments,

the State urged the jury to consider the evidence only for the

original purposes for which it had been offered: to show modus

operandi, identity, and an aberrant sexual propensity.

¶25 Relying on State v. Blakely, 204 Ariz. 429, 65 P.3d 77

(2003), Lehr next contends that the State's discussion of Rule

404(b) factors in its closing remarks changed the theory of

prosecution and violated due process because he did not have a

chance to respond to the expanded use of the other acts

evidence. Blakely, however, is inapposite. In that case, at

the close of the evidence, the State changed the predicate

felony used to charge the defendant with felony murder. Id. at

438-39 ¶¶ 42, 46, 65 P.3d at 86–87. We held that Blakely was

deprived of his right to a fair trial because “nothing in the

proceedings up to the eve of closing arguments gave him notice”

that the state was going to allege the predicate felony it

asserted at the close of evidence. Id. at 440 ¶¶ 53-54, 65 P.3d

at 88. Lehr, in contrast, was on notice well before the start

of trial that the State planned to use other acts evidence.

Additionally, as discussed above, the State urged the jury in

closing arguments to consider the evidence only for the original

purposes for which it had been offered.

11

4. Admission of Evidence of B.C.’s Murder

¶26 Lehr finally contends that admission of evidence of

B.C.’s murder was improper and exposed him to double jeopardy

because this Court held in Lehr I that there was insufficient

evidence to prove the aggravator under A.R.S. § 13-751(F)(6).

The fact that the State produced insufficient evidence at Lehr’s

original trial to establish the (F)(6) aggravator, however, does

not imply that evidence of the murder could not satisfy the

requirements for admissibility under Rules 404(b) and (c) at his

2009 trial. Double jeopardy concerns are also not implicated.

This Court’s 2002 ruling that there was insufficient evidence to

prove the (F)(6) aggravator was not an acquittal, see Poland v.

Arizona, 476 U.S. 147, 155–56 (1986), and, in any event,

admission of evidence of other acts for which a defendant has

been acquitted does not violate double jeopardy. See Dowling v.

United States, 493 U.S. 342, 348 (1990).

C. Right of Confrontation

¶27 Before the 2009 retrial, the State sought to have

victim T.H. declared unavailable under Arizona Rule of Criminal

Procedure 19.3(c) because she refused to testify against Lehr.

At the 1996 trial, T.H. testified that Lehr had abducted and

raped her and then threw rocks at her as she fled. The State

sought to introduce evidence of these other acts in the retrial.

¶28 At a hearing to determine her availability as a

12

witness, T.H. testified that she would not testify against Lehr

because she strongly opposed capital punishment and had

testified previously only because the prosecutor assured her

that her testimony would not be used to decide whether to impose

the death penalty. The trial court told T.H. that if she

refused to testify the court could find her in criminal

contempt, jail her for up to six months, fine her up to $300,

and force her to wake up early every morning in jail and return

to court to revisit whether she would testify. T.H. said she

accepted the possible consequences and reaffirmed her refusal to

testify.

¶29 The trial court found T.H. unavailable under Arizona

Rule of Evidence 804(a)(2). Noting that the State had “done

everything in its power to compel [T.H.'s] testimony,” the court

concluded that “putting her in jail or fining her is not going

to change her mind” and that T.H. would persist in refusing to

testify. Because her previous testimony was “given under oath

and subject to cross-examination,” the court allowed the State

to read her previous testimony into the record.

¶30 Lehr argues that the trial court abused its discretion

in admitting this evidence and violated his Sixth Amendment

right of confrontation. We review a trial court's finding of a

witness's unavailability for an abuse of discretion. State v.

Montaño, 204 Ariz. 413, 420 ¶ 25, 65 P.3d 61, 68 (2003).

13

¶31 Rule 19.3(c)(1) of the Arizona Rules of Criminal

Procedure allows “[s]tatements made under oath by a party or

witness during a previous judicial proceeding” to be admitted if

(i) The party against whom the former testimony is
offered was a party to the action or proceeding during
which a statement was given and had the right and
opportunity to cross-examine the declarant with an
interest and motive similar to that which the party now
has . . . and

(ii) The declarant is unavailable as a witness, or is
present and subject to cross-examination.

¶32 The definition of “unavailability” under the Arizona

Rules of Evidence includes situations in which the declarant

“persists in refusing to testify concerning the subject matter

of the declarant's statement despite an order of the court to do

so.” Ariz. R. Evid. 804(a)(2).

¶33 The Sixth Amendment’s Confrontation Clause provides

that “[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against

him.” U.S. Const. amend. VI. The Confrontation Clause allows

the admission of testimonial hearsay that satisfies the common

law requirements of “unavailability and a prior opportunity for

cross-examination.” Crawford v. Washington, 541 U.S. 36, 68

(2004). Lehr had an opportunity to cross examine T.H. at his

first trial. The only Confrontation Clause issue, therefore, is

whether T.H. was unavailable to testify.

¶34 A witness’s “refusal to testify . . . [makes] him

14

‘unavailable’ for Confrontation Clause purposes.” Jennings v.

Maynard, 946 F.2d 1502, 1505 (10th Cir. 1991); see also United

States v. Bourjaily, 781 F.2d 539, 543-44 (6th Cir. 1986)

(holding that a witness was “unavailable because he refused to

testify”); cf. United States v. Tirado-Tirado, 563 F.3d 117, 123

n.3 (5th Cir. 2009) (“Crawford did not change the definition of

'unavailability' for Confrontation Clause purposes; pre-Crawford

cases on this point remain good law.").

¶35 In admitting the prior testimony by T.H., the trial

court did not abuse its discretion or violate Lehr’s rights

under the Confrontation Clause.

D. DNA Testing That Consumed the Remaining Sample

¶36 Lehr argues that he was denied his right to due

process because the State, without consulting Lehr’s attorneys,

authorized DNA testing that consumed the swab sticks from which

DNA was extracted. The trial court admitted the DNA test

results over Lehr’s objection. “We review evidentiary rulings

for an abuse of discretion.” State v. Andriano, 215 Ariz. 497,

502 ¶ 17, 161 P.3d 540, 545 (2007).

¶37 In 1992, the State performed inconclusive DNA tests on

anal and vaginal swabs from M.M.'s body. This testing consumed

the cotton on the swabs but not the sticks, which were retained.

In 2002, the State asked the Phoenix Police Department Crime

Laboratory to perform DNA tests on the remaining sticks with

15

techniques not available in 1992. Without notifying the

defense, the prosecutor authorized the lab to complete the tests

even though doing so would consume the sticks. DNA extracted

from the anal swab matched Lehr's DNA. Although the test

consumed the sticks, DNA extractions obtained from the sticks

were preserved and were available to Lehr for testing. Lehr did

not elect to test the extractions.

¶38 Before trial, Lehr moved to preclude the DNA evidence

from the 2002 tests. After a hearing, the trial court found no

evidence of bad faith on the State’s part and no evidence that

retesting would have exonerated Lehr or had a tendency to

exonerate him. The court denied Lehr's motion, but permitted

him to “attack the manner in which the test was conducted and

argue to the jury that consumption of the initial sample

deprived [Lehr] of the ability to test the original sample.”

The court also noted that Lehr was “welcome to retest the

extraction.” In denying Lehr’s motion for reconsideration, the

court noted that he had “not challenged the test performed,

sought expert testimony concerning the extraction procedure or

test results, nor requested to have the extraction re-tested.”

The court found that “no showing can be made that any re-testing

was likely to exonerate the Defendant or produce different

results” and therefore Lehr was not prejudiced.

¶39 The Due Process Clause of the Fourteenth Amendment

16

requires that “criminal defendants be afforded a meaningful

opportunity to present a complete defense.” California v.

Trombetta, 467 U.S. 479, 485 (1984). “To safeguard that right,

the [Supreme] Court has developed what might loosely be called

the area of constitutionally guaranteed access to evidence.”

Id. (internal quotation marks and citation omitted).

¶40 In determining whether the state's failure to preserve

evidence violates a defendant's constitutional rights, “[t]he

critical distinction . . . is between material exculpatory

evidence and potentially useful evidence.” State v. Speer, 221

Ariz. 449, 457 ¶ 37, 212 P.3d 787, 795 (2009) (internal

quotation marks and citations omitted). Prosecutors have a duty

to disclose evidence that “is clearly supportive of a claim of

innocence.” United States v. Agurs, 427 U.S. 97, 107 (1976).

The state denies a defendant due process when it destroys

evidence that “both possess[ed] an exculpatory value that was

apparent before the evidence was destroyed, and [was] of such a

nature that the defendant would be unable to obtain comparable

evidence by other reasonably available means.” Trombetta, 467

U.S. at 488-89.

¶41 When evidence is merely potentially exculpatory,

however, the “failure to preserve potentially useful evidence

does not constitute a denial of due process of law” unless the

defendant “can show bad faith on the part of the police.”

17

Arizona v. Youngblood, 488 U.S. 51, 58 (1988). Absent bad

faith, “[t]he inference that the evidence may be exculpatory is

not strong enough to dismiss the case. It is enough to let the

jury decide whether to draw such an inference.” State v.

Youngblood, 173 Ariz. 502, 507, 844 P.2d 1152, 1157 (1993).

¶42 The trial court did not abuse its discretion in

denying Lehr's motion to preclude the DNA evidence. Because

there is no evidence that the swab sticks were exculpatory

(indeed, they proved to be inculpatory, because the DNA

extracted from them matched Lehr's), the key question is whether

the State acted in bad faith. Lehr argues that he has shown bad

faith because the State, without contacting his counsel,

authorized testing that consumed the sticks. This does not

establish bad faith, particularly because the State retained the

DNA extracted from the swab sticks and made it available to Lehr

for independent testing.

E. Juror Conduct

¶43 Several jurors stood and applauded after the State’s

DNA expert completed his testimony. Lehr argues that the trial

court’s refusal to grant a mistrial or to dismiss certain jurors

denied him his Sixth Amendment right to a fair and impartial

jury. Trial court rulings on motions for a mistrial or to

dismiss jurors are reviewed for abuse of discretion. State v.

Speer, 221 Ariz. 449, 462 ¶ 72, 212 P.3d 787, 800 (2009); State

18

v. Cook, 170 Ariz. 40, 54, 821 P.2d 731, 745 (1991).

¶44 The record reflects that after the State's DNA expert

finished two days of testimony and was excused, “the jury

applaud[ed].” Immediately after the applause, the following

exchange occurred:

THE COURT: I’m not going to ask if you are clapping
because of his performance or because he's done.

A JUROR: His performance.

THE WITNESS: I’m happy because I’m done. Unless, of
course, I’m recalled.

One or more jurors also apparently stood while they applauded.

¶45 Lehr's counsel argued that the applause indicated that

some jurors had “begun to make up their mind” and moved for a

mistrial. He also asked the trial court to discharge the juror

(Juror 5) who said she had clapped for the witness's

performance. Noting the jurors' obvious boredom during the

witness's testimony the previous day, the trial court remarked

that the jurors had likely applauded because “they were just

glad he was done.” The next day, the trial judge and the court

bailiff saw Juror 5 give a “thumbs up” sign to victim E.R. after

she testified. Another juror also observed that Juror 5 called

out E.R.'s name.

¶46 The court held a hearing that same day to question

each juror individually about the clapping and to question Juror

5 about her gesturing to E.R. During examination, Jurors 1, 3,

19

5, 8, and 9 admitted to clapping when the DNA witness finished

his testimony. Jurors 1, 3, and 5 admitted to saying that they

clapped because of the witness's performance. One juror later

stated that another juror said he or she had clapped because

“they were glad [the witness] was done.” Juror 5 admitted that

she called out E.R.'s name and gave a thumbs up to her,

explaining that she did it because it was apparent E.R. was

having a difficult time and she felt sorry for her. All jurors,

whether they clapped or not, affirmed that they could be fair

and impartial and had not made up their minds about Lehr’s

guilt.

¶47 In seeking a mistrial, Lehr argued that the applause

was an “act of bias” that “tainted the entire jury” and that at

the very least Jurors 1, 3, and 5 should be dismissed. The

court denied the motion for mistrial, recognizing that although

the applause was inappropriate, all jurors affirmed that “their

minds had not been made up,” “they could evaluate all witnesses

by the same standards,” and “they could continue to give Scott

Lehr a fair trial and remain open-minded.” The State stipulated

to Juror 5’s removal for cause, and the court accepted the

stipulation, stating “I did find her answers much more troubling

than anybody else's.”

¶48 After closing arguments, Jurors 3, 6, and 12 were

selected as alternate jurors. Therefore, of the jurors who

20

clapped, Jurors 1, 8, and 9 participated in the jury

deliberations.

¶49 Defendants have the right to “an impartial jury.”

U.S. Const. amend. VI; Ariz. Const. art. 2, § 24. “[E]ven a

single partial juror violates a defendant's constitutional right

to a fair trial.” United States v. Angulo, 4 F.3d 843, 848 (9th

Cir. 1993). Although a jury must refrain from premature

deliberations, “juror misconduct warrants a new trial [only] if

the defense shows actual prejudice or if prejudice may be fairly

presumed from the facts.” State v. Dann, 220 Ariz. 351, 371 ¶

115, 207 P.3d 604, 624 (2009) (internal quotation marks and

citation omitted).

¶50 The trial court carefully questioned all jurors to

verify that each remained unbiased and able to provide Lehr a

fair trial. The court dismissed the only juror about whom it

felt concern. The remaining jurors affirmed their ability to

remain fair and impartial and that they had not yet formed an

opinion as to Lehr's guilt, and the court accepted their

answers. The trial court did not abuse its discretion, and

there is no reason to conclude that the applause denied Lehr his

right to a fair trial.

F. Jury Instruction Defining Premeditation

¶51 Lehr argues that the trial court's jury instruction

defining premeditation, together with the prosecutor's closing

21

statement about premeditation, violated his Fourteenth Amendment

right to due process. “The Court reviews de novo whether a jury

instruction accurately reflects the law.” State v. Kiles, 222

Ariz. 25, 32 ¶ 27, 213 P.3d 174, 181 (2009).

¶52 The trial court here instructed the jury:

“Premeditation” means that the defendant intended to
kill another human being, or knew he would kill
another human being, and that after forming that
intent or knowledge, reflected on the decision before
killing. It is this reflection, regardless of the
length of time in which it occurs, that distinguishes
first-degree murder from second-degree murder. An act
is not done with premeditation if it is the instant
effect of a sudden quarrel or heat of passion. The
time needed for reflection is not necessarily
prolonged, and the space of time between the intent or
knowledge to kill and the act of killing may be very
short.

¶53 During the settling of jury instructions, Lehr

objected to the premeditation instruction, arguing that the last

sentence was impermissible under State v. Thompson, 204 Ariz.

471, 65 P.3d 420 (2003). The trial court found that the facts

warranted the final sentence and overruled Lehr's objection.

¶54 During closing argument, the prosecutor stated:

Premeditation only requires a short period of time to
reflect. When you’ve got a rock and you’re using that
to strike someone in the head, you have time to think
about what you’re doing before you strike somebody
with that rock. When you pick it up, you form the
intent in your mind that you’re going to kill someone.
And then you pick it up, and you go ahead and you do
it, that’s premeditation. That’s first-degree murder.
Once you pull that trigger in your mind that you’re
going to kill someone, everything else is easy,
because then all you have to do is pick it up and hit

22

them with it.

¶55 Lehr argues that the last sentence of the jury

instruction was inappropriate because there were no eyewitnesses

or other direct evidence of what happened during the murders.

He contends that the instruction, together with the State's

closing argument, allowed the jury to unconstitutionally convict

him without proof of actual reflection.

¶56 The trial court’s premeditation instruction was nearly

identical to the jury instruction mandated by this Court in

Thompson. We explained in Thompson, however, that courts may

use the sentence to which Lehr objected “[o]nly when the facts

of a case require it . . . . It is the act of premeditation and

not the length of time available that determines the question.”

204 Ariz. at 479-80 ¶ 32, 65 P.3d at 428-29. Thompson also held

that jury instructions on premeditation could not use “the

phrase 'proof of actual reflection is not required'” because it

“relieves the state of the burden of proving with direct

evidence that a defendant reflected.” Id. Instead, the State

must prove “reflection through direct evidence or through

circumstantial evidence.” Id.

¶57 In Thompson, we emphasized that the premeditation

instruction we approved

does not mean that the state must rely on direct
evidence of premeditation; as we have noted, such
evidence is rarely available. Nor does this

23

instruction mean that the state cannot rely on the
passage of time between the formation of intent and
the act of killing as a fact tending to show
premeditation. This instruction merely clarifies that
the state may not use the passage of time as a proxy
for premeditation. The state may argue that the
passage of time suggests premeditation, but it may not
argue that the passage of time is premeditation.

Id. at 480 ¶ 33, 65 P.3d at 429 (alterations in original).

“[I]f a court's instruction or a prosecutor's comment to the

jury signals that the mere passage of time will suffice to

establish the element of premeditation, those instructions or

comments constitute error.” Dann, 205 Ariz. at 565 ¶ 16, 74

P.3d at 239.

¶58 Given the facts of the case, the final sentence of the

trial court's jury instruction was appropriate. Lehr is correct

that the State offered no direct evidence of premeditation, but

the State presented substantial circumstantial evidence. M.C.

and M.M. were both killed by blunt force trauma to the head.

Near their bodies were bloody rocks, which likely were used to

kill the victims. The State did not impermissibly argue that

the passage of time was enough to show premeditation. Instead,

the State argued that the circumstantial evidence relating to

the murders supported a jury finding of premeditation.

¶59 We noted in Thompson that “the state may use all the

circumstantial evidence at its disposal in a case to prove

premeditation,” and that “[s]uch evidence might include, among

24

other things . . . the acquisition of a weapon by the defendant

before the killing.” 204 Ariz. at 479 ¶ 31, 65 P.3d at 428.

“The key is that the evidence, whether direct or circumstantial,

must convince a jury beyond a reasonable doubt that the

defendant actually reflected.” Id. The jury instruction on

premeditation and the State’s closing argument complied with

Thompson.

G. Amendment of Notice of Aggravating Factors

¶60 Lehr argues that the trial court violated A.R.S. § 13-

752 and Rules 13.5 and 15.1(i)(2) of the Arizona Rules of

Criminal Procedure by allowing the State to amend its notice of

aggravating factors on the eve of the penalty phase.

¶61 Arizona law requires the state to provide the

defendant notice, generally within sixty days after arraignment,

of its intent to seek the death penalty. Ariz. R. Crim. P.

15.1(i)(1). The state must also identify before trial the

particular aggravating circumstances it will rely on in seeking

the death penalty. See A.R.S. § 13-752(B) (providing that

“[b]efore trial, the prosecution shall notice one or more of the

aggravating circumstances under § 13-751, subsection F”); Ariz.

R. Crim. P. 15.1(i)(2) (directing that upon filing notice of

intent to seek the death penalty, “the prosecutor shall at the

same time provide the defendant with a list of aggravating

circumstances the state will rely on at the aggravating hearing

25

in seeking the death penalty”).

¶62 Rule 13.5 of the Rules of Criminal Procedure addresses

the amendment of charges. Under Rule 13.5(a), the prosecutor

may amend a charging document, subject to the time limits of

Rule 16.1(b), “to add an allegation of one or more prior

convictions or other non-capital sentencing allegations that

must be found by the jury.” The charges otherwise “may be

amended only to correct mistakes of fact or remedy formal or

technical defects, unless the defendant consents to the

amendment.” Ariz. R. Crim. P. 13.5(b). Capital sentencing

allegations are subject to Rule 13.5(c), which states that

“[t]he filing of a notice to seek the death penalty with noticed

aggravating circumstances shall amend the charging document, and

no further pleading needs to be filed.”

¶63 Here, after the case was remanded, the State in 2003

filed a “Notice of Aggravating Factors” with respect to each

first degree murder charge. This notice identified three

aggravating factors: (F)(2), because identified prior

convictions were “serious offenses”; (F)(6), because Lehr had

committed the offense in an especially heinous, cruel or

depraved manner; and (F)(8), because he would have been

convicted of one or more other homicides. (As in the 1996

trial, the State contended that each victim’s murder was

aggravated by the two other murders.) Before the 2009 trial,

26

the State withdrew the (F)(6) and (F)(8) aggravators.

¶64 In March 2009, after the guilt phase, Lehr objected to

the penalty phase, arguing that the State had incorrectly

characterized some of his prior convictions as “serious

offenses” for purposes of the (F)(2) aggravator, when the pre-

1993 version of the statute applied only to offenses “involving

the use or threat of violence.” He also argued that the State

had erred in identifying the other murders as a basis for the

(F)(8) aggravator. In response, the State acknowledged that it

had used incorrect language in referring to the (F)(2)

aggravator and incorrectly listed certain prior convictions

under (F)(2) or (F)(8) instead of (F)(1).

¶65 Over Lehr’s objection, the trial court allowed the

State to amend its notice to identify two of the prior

convictions listed in the 2003 notice (the aggravated assault

convictions regarding victim T.H.) as supporting the (F)(2)

aggravator because they involved “the use or threatened use of

violence,” and to identify some of the other convictions

referred to in the 2003 notice, including the other murders and

his crimes (which were classified as dangerous crimes against

children) against minor victims J.A., E.R., and J.T., as

supporting the (F)(1) aggravator because they were crimes

punishable by a sentence of death or life imprisonment. The

trial court specifically found that, over the preceding twelve

27

years, Lehr had received notice of all the prior convictions the

State intended to use as aggravators and that he was not

prejudiced by the amendment.

¶66 The State concedes that the amendment of its notice of

aggravating factors during trial did not comport with Rule

13.5(b). The mid-trial amendment also did not comply with

A.R.S. § 13-752 or Rule 15.1(i)(2). The State argues, however,

that the error was harmless, relying on State v. Freeney, 223

Ariz. 110, 219 P.3d 1039 (2009).

¶67 In Freeney, the trial court violated Rule 13.5(b) by

allowing the state to amend the indictment on the first day of

trial to change the nature of the charged offense. 223 Ariz. at

111 ¶ 2, 219 P.3d at 1040. This Court held, however, that a

violation of Rule 13.5(b) is neither structural error nor

prejudicial per se. Id. at 114 ¶ 26, 219 P.3d at 1043.

Instead, because Freeney had objected to the improper amendment,

the Court reviewed for harmless error. Id.

¶68 Lehr argues that Freeney’s harmless error analysis

should not be extended to an improper amendment regarding notice

of aggravating circumstances in a capital case. We disagree.

Most trial errors, including constitutional errors, are not

structural. Id. at 114 ¶ 23, 219 P.3d at 1043. Cf. State v.

Cropper, 205 Ariz. 181, 184 ¶ 15, 68 P.3d 407, 410 (2003)

(holding that State’s failure to provide written notice of

28

intended aggravating factor under prior version of Rule 15.1 was

not reversible error when defendant had timely actual notice and

was not prejudiced); State v. Ring, 204 Ariz. 534, 554 ¶ 50, 65

P.3d 915, 935 (2003) (holding that harmless error analysis

applies to failure to submit the aggravating circumstance

element of capital murder to a jury).

¶69 Under harmless error analysis, to avoid a reversal,

the state must establish that an error was harmless beyond a

reasonable doubt. Freeney, 223 Ariz. at 114 ¶ 26, 219 P.3d at

1143. The State has met its burden here. As the trial court

correctly concluded, Lehr had notice of the prior convictions

the State intended to use as aggravating circumstances. The

error in the 2003 notice was incorrectly identifying which

statutory aggravator would be supported by those convictions and

failing to quote the applicable version of the (F)(2)

aggravator.

¶70 Lehr also was not prejudiced by the amendment of the

notice of aggravating factors. He contends that the amendment

improperly allowed the murders to serve as an (F)(1) aggravator

when they could not have validly qualified as aggravators under

(F)(2). This argument, however, misperceives the prejudice

analysis. The issue is not whether the amendment subjects the

defendant to an aggravating factor (or, as in Freeney, a charged

offense) different from that alleged before the amendment, but

29

instead whether the amendment somehow prejudices the defendant’s

“litigation strategy, trial preparation, examination of

witnesses, or argument.” Freeney, 223 Ariz. at 115 ¶ 28, 219

P.3d at 1044. Given that Lehr had notice of the particular

offenses, including the other murders, that the State would

contend established aggravating circumstances, and never

suggested that the amendment affected his defense in the

sentencing phase, we conclude that the procedurally improper

amendment of the notice of aggravating factors was harmless

beyond a reasonable doubt. Nor did the amendment violate Lehr’s

rights under the Sixth Amendment. Cf. id. at 115 ¶¶ 29-30, 219

P.3d at 1044 (noting that same factors leading Court to find

Rule 13.5(b) violation harmless supported conclusion that Sixth

Amendment rights were not violated).

H. Victim Testimony Opposing Death Penalty

¶71 During the penalty phase, the trial court precluded

Lehr from offering testimony from one of his victims, T.H.,

about her opposition to the death penalty. Lehr argues that the

court prevented him from presenting all available mitigating

circumstances to the jury in violation of the Eighth Amendment.

¶72 We review “evidentiary rulings for an abuse of

discretion.” Andriano, 215 Ariz. at 502 ¶ 17, 161 P.3d at 545.

As noted above, in his 1996 trial, Lehr was convicted of two

counts of aggravated assault regarding victim T.H. At the 2009

30

retrial, T.H. refused to testify because she opposed the death

penalty. During the penalty phase, Lehr’s counsel sought to

introduce T.H.’s 2009 hearing testimony explaining her refusal

to testify. The trial court precluded Lehr from offering this

evidence.

¶73 The trial court did not err. “[A] victim's

recommendation of what sentence should be imposed in a capital

case, whether for or against the death penalty, is simply not

relevant.” State v. Glassel, 211 Ariz. 33, 55 ¶ 91, 116 P.3d

1193, 1215 (2005). We reject Lehr’s argument that although

sentencing recommendations by victims of the capital offense are

not admissible, such testimony should be allowed from victims of

non-capital offenses who oppose the death penalty. Such

testimony is not relevant for purposes of either A.R.S. § 13-

751(C) (allowing defendant to “present any information that is

relevant to any [] mitigating circumstances”) or the Eighth

Amendment. See Glassel, 211 Ariz. at 55 ¶ 91, 116 P.3d at 1215.

I. Independent Review

¶74 Because the murders occurred before August 1, 2002,

this Court independently reviews the “findings of aggravation

and mitigation and the propriety of the death sentence.” A.R.S.

§ 13-755(A); see 2002 Ariz. Sess. Laws, ch. 1, § 7(B) (5th Spec.

Sess.). We review the record de novo and do not defer to the

jury’s findings or decisions. State v. Newell, 212 Ariz. 389,

31

405 ¶ 82, 132 P.3d 833, 849 (2006).

1. Aggravating Circumstances

¶75 The jury found two aggravating circumstances for

M.M.’s and M.C.’s murders: Lehr had been “convicted of another

offense in the United States for which under Arizona law a

sentence of life imprisonment or death was imposable,” A.R.S.

§ 13-703(F)(1) (1991), and he had been “previously convicted of

a felony in the United States involving the use or threat of

violence on another person.” Id. § 13-703(F)(2).

¶76 These aggravators were proved beyond a reasonable

doubt. For each of the murder victims, Lehr's convictions for

murdering the other two victims establish the (F)(1) aggravator;

his prior convictions for kidnappings and sexual assaults of

victims J.A., J.T., and E.R. also establish the (F)(1)

aggravator. The (F)(2) aggravator is established based on

Lehr’s two aggravated assault convictions regarding victim T.H.

2. Mitigating Circumstances

¶77 Lehr presented evidence to show that a natural life

sentence would be a viable alternative to the death penalty

because he has been sentenced to at least 716 years imprisonment

for his non-capital convictions, he has been a well-behaved

inmate with few disciplinary problems, and he poses little risk

of violent conduct in prison.

¶78 That Lehr would remain imprisoned for his natural life

32

if he is not sentenced to death is of little mitigating weight.

We also accord minimal weight to the prospect that he will be a

“model prisoner.” All prisoners are expected to behave in

prison. Kiles, 222 Ariz. at 42 ¶ 89, 213 P.3d at 191.

¶79 Lehr also notes that the trial court in 1996 found

that he had proved several non-statutory mitigating

circumstances by a preponderance of the evidence. The court

found that Lehr “was a good father to his children, a good

husband to his wife, a good son to his mother; he had no prior

record of criminal behavior or accusations of violence of any

kind,” and he had been a “'model prisoner' while in custody.”

In Lehr I, this Court accepted and approved these findings. 201

Ariz. at 523-24 ¶ 65, 38 P.3d at 1186.

¶80 The State argues that we should not consider

mitigation evidence from the 1996 trial that was not introduced

at the 2009 retrial. In our independent review of aggravating

circumstances, we have declined “to consider evidence that the

sentencing jury did not hear,” State v. Ellison, 213 Ariz. 116,

142 ¶ 121 n.19, 140 P.3d 899, 925 n. 19 (2006), and the State

contends we should similarly limit our consideration of

mitigation evidence in the penalty phase. Even considering the

evidence identified by Lehr from the 1996 trial, however, we

find it is not significantly mitigating.

33

3. Propriety of Death Sentence

¶81 In reviewing the propriety of the death sentence, this

Court considers the quality and the strength, not simply the

number, of aggravating and mitigating factors. Glassel, 211

Ariz. at 55 ¶ 93, 116 P.3d at 1215. The (F)(1) and (F)(2)

aggravators were established beyond a reasonable doubt. The

mitigation is not sufficiently substantial to warrant leniency.

J. Preservation of Issues for Federal Review

¶82 To avoid preclusion, Lehr lists twenty-six additional

constitutional claims that he states have been rejected in

previous decisions. The appendix lists these claims and the

decisions Lehr identifies as rejecting them.

CONCLUSION

¶83 We affirm Lehr’s convictions and sentences.

__________________________________
W. Scott Bales, Justice

CONCURRING:

__________________________________
Rebecca White Berch, Chief Justice

__________________________________
A. John Pelander, Justice

34

__________________________________
Robert M. Brutinel, Justice

__________________________________
Patricia A. Orozco, Judge*

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

35

APPENDIX

Lehr raises twenty-six issues to preserve them for

federal appeal. This Appendix lists verbatim his claims and the

decisions he identifies as rejecting them.

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

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

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

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

(5) Arizona’s death statute is unconstitutional because
there are no statutory standards for weighing. State
v. Atwood, 171 Ariz. 576, 645-46 n. 21(4), 832 P.2d
593, 662-63 n. 21(4) (1992).

(6) The prosecutor’s discretion to seek the death penalty
unconstitutionally lacks standards. State v.
Cromwell, 211 Ariz. 181, 192, ¶ 58, 119 P.3d 448, 459
(2005).

(7) Death sentences in Arizona have been applied
arbitrarily and irrationally and in a discriminatory
manner against impoverished males whose victims have
been Caucasian. State v. West, 176 Ariz. 432, 455,
862 P.2d 192, 215 (1993); State v. Sansing, 200 Ariz.

36

347, 361, ¶ 46, 26 P.3d 1118 (2001).

(8) The Constitution requires a proportionality review of
a defendant’s death sentence. State v. Gulbrandson, 184 Ariz. 46, 73, 906 P.2d 579, 606 (1995).

(9) Subjecting Appellant to a second trial on the issue of
aggravation and punishment before a new jury violates
the double jeopardy clause of the Fifth Amendment.
State v. Ring (Ring III), 204 Ariz. 534, 550, ¶ 39, 65
P.3d 915 (2003).

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

(11) Imposition of a death sentence under a statute not in
effect at the time of Appellant’s trial violates due
process under the Fourteenth Amendment. State v.
Ellison, 213 Ariz. 116, ¶ 85, 140 P.3d 899 (2006).

(12) The absence of notice of aggravating circumstance
prior to Appellant’s guilt phase trial violated the
Sixth, Eighth and Fourteenth Amendments. State v.
Anderson (Anderson II), 210 Ariz. 327, 347, ¶¶ 79-80,
82, 111 P.3d 369 (2005).

(13) The reasonable doubt jury instruction at the
aggravation trial lowered the state’s burden of proof
and deprived Appellant of his right to a jury trial
and due process under the Sixth and Fourteenth
Amendments. State v. Dann (Dann I), 205 Ariz. 557,
575-76, ¶ 74, 74 P.3d 231 (2003).

(14) Arizona’s death statute creates an unconstitutional
presumption of death and places an unconstitutional
burden on Appellant to prove mitigation is
“sufficiently substantial to call for leniency.”
Walton v. Arizona, 497 U.S. 639, 648 (1990); State v.
Glassel, 211 Ariz. 33, 52, ¶ 72, 116 P.3d 1193, 1212
(2005).

(15) The failure to provide the jury with a special verdict
on Appellant’s proffered mitigation deprived him of
his rights to not be subject to ex post facto

37

legislation and right to meaningful appellate review.
State v. Roseberry, 210 Ariz. 360, 373, ¶ 74 & n.12,
111 P.3d 402 (2005).

(16) The trial court improperly omitted penalty phase
instructions that the jury could consider mercy or
sympathy in evaluating the mitigation evidence and
determining whether to sentence the defendant to
death. State v. Carreon, 210 Ariz. 54, 70-71, ¶¶ 81-
87, 107 P.3d 900, 916-17 (2005).

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

(18) The jury instruction that required the jury to
unanimously determine that the mitigating
circumstances were “sufficiently substantial to call
for leniency” violated the Eighth Amendment. State v.
Ellison, 213 Ariz. 116, ¶¶ 101-02, 140 P.3d 899
(2006).

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

(20) The refusal to permit voir dire of prospective jurors
regarding their views on specific aggravating and
mitigating circumstances violates Appellant’s rights
under the Sixth and Fourteenth Amendments. State v.
Johnson, 212 Ariz. 425, 440, ¶¶ 29-35, 133 P.3d 735,
750 (2006).

(21) The refusal to permit Appellant to argue or the jury
to consider whether his death sentence would be
proportional to other similarly situated defendants
violated his rights under the Eighth and Fourteenth
Amendments. State v. Johnson, 212 Ariz. 425, 431-32,
¶¶ 19-20, 133 P.3d 735, 750 (2006).

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

38

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

(23) The penalty phase jury instructions that advised the
jury they “must” return a death sentence in various
circumstances and forms of verdict impermissibly
shifted the burden of proof to the defendant and
created a presumption of death. State v. Tucker
(Tucker II), 215 Ariz. 298, 317, 160 P.3d 197 (2007).

(24) Arizona’s death penalty scheme violates Appellant’s
right to equal protection under the Fourteenth
Amendment since it fails to require the jury to make
specific findings of fact and conclusions of law
reviewable on appeal. State v. Dann (Dann III), 220
Ariz. 351, ¶¶ 127-28, 207 P.3d 604 (2009).

(25) Arizona’s death penalty scheme violates Appellant’s
rights under the Eighth and Fourteenth Amendments by
not requiring that once a defendant proves mitigating
circumstances exist that the State prove beyond a
reasonable doubt that the mitigation is not
sufficiently substantial to call for leniency and that
death is the appropriate sentence. State v. Dann
(Dann III), 220 Ariz. 351, ¶¶ 94-95, 207 P.3d 604
(2009).

(26) The death penalty is an irreversible denial of human
rights and international law. State v. Richmond, 136
Ariz. 312, 322, 666 P.2d 57 (1983).

39