State v. Cota

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0218-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) Nos. CR2004-006577-001 DT
BENJAMIN BERNAL COTA, ) CR2004-005648-001 DT
) (CONSOLIDATED)
Appellant. )
)
)
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Michael D. Jones, Judge

CONVICTIONS AND DEATH SENTENCE AFFIRMED; REMANDED FOR
RESENTENCING ON NON-CAPITAL COUNTS
________________________________________________________________

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

DAVID GOLDBERG, ESQ. Fort Collins, CO
By David Goldberg
Attorney for Benjamin Cota
________________________________________________________________

H U R W I T Z, Vice Chief Justice

¶1 A jury found Benjamin Bernal Cota guilty of two counts

of first degree murder, two counts of armed robbery, one count

of possession of narcotics, and one count of unlawful flight.

He was sentenced to death on one first degree murder count and

to prison terms for the other counts. We have jurisdiction over
this appeal under Article VI, Section 5(3) of the Arizona

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

I. FACTS AND PROCEDURAL BACKGROUND2

¶2 Victor Martinez and his wife, Guadalupe Zavala, lived

in Peoria. In late 2003, they hired Cota to assist with home

repair projects. Martinez and Zavala had jobs outside their

home and spoke with friends and family daily. But on December

30, 2003, both disappeared without explanation.

¶3 Martinez was last seen that afternoon. He told his

son that he was going to take a nap, and then drive Cota home

before going to work at 6:00 p.m. Martinez never arrived at

work. Zavala worked until 8:00 p.m. that night, but was never

heard from thereafter. Concerned friends, co-workers, and

family members called and went by the couple’s home repeatedly

in the following days. Cota sometimes answered the telephone

and gave inconsistent accounts about the couple’s whereabouts.

He also began driving the couple’s pickup truck and gave their

car to his son. He sold the couple’s water heater and tried to

sell jewelry he claimed the couple had given him.

1
We cite the current version of statutes that have not
materially changed since the events at issue.
2
“We view the facts in the light most favorable to upholding
the verdicts.” State v. Chappell, 225 Ariz. 229, 233 ¶ 2 n.1,
236 P.3d 1176, 1180 n.1 (2010).
2
¶4 On January 3, 2004, Cota pawned two of Zavala’s

bracelets. He withdrew money from the couple’s bank accounts on

January 5 and 6. He invited friends to stay with him at the

couple’s home, but told them not to enter the master bedroom or

answer the phones. After Cota allowed them to enter the master

bedroom, one friend saw a large pile of clothes in the closet.

¶5 On January 6, family members went to the home and

noticed items missing outside, including the water heater. They

called the police and gained entrance into the home. They found

the bodies of Martinez and Zavala wrapped in plastic in the

master bedroom closet beneath a pile of clothes.

¶6 Police located Cota at his mother’s home, where the

couple’s pickup truck was parked. During an ensuing chase, Cota

tossed items out of the truck, including drugs and his wallet.

Police apprehended him after he crashed the truck and fled on

foot. His wallet contained Zavala’s date of birth and social

security number, and pawn tickets dated January 3. Police

searched Cota’s mother’s home and found his shoes. DNA testing

of blood on the shoes revealed contributions from Cota,

Martinez, and Zavala.

¶7 Cota was charged in one indictment with two counts of

first degree murder and two counts of armed robbery, and in a

second with possession of narcotics and unlawful flight. The

indictments were joined for trial, and a jury found Cota guilty

3
on all counts. In the aggravation phase of the murder cases,

the jury found that Cota had been convicted of a serious offense

committed on the same occasion, A.R.S. § 13-751(F)(2), that Cota

committed the crime while on authorized release, § 13-751(F)(7),

and that Martinez was over the age of seventy, § 13-751(F)(9).

¶8 In the penalty phase, the jury returned a death

sentence for the murder of Zavala, but was unable to reach a

verdict as to the murder of Martinez. The trial court sentenced

Cota to natural life on that count and to prison terms for the

non-homicide counts, all but one consecutive to the others.

II. ISSUES ON APPEAL

A. Consolidation of Cases and Flight Evidence

¶9 Cota argues that the trial court erred by admitting

evidence of his flight from the police and by joining the two

indictments for trial. Cota, however, twice consented to the

joinder. He first did so months before trial and again early in

the trial when the judge entered a formal consolidation order.

¶10 Before joining the indictments, the trial court had

granted the State’s motion to admit evidence of Cota’s flight in

the murder case. When the indictments were formally

consolidated, defense counsel preserved an objection to the

flight evidence, but said that in light of the court’s previous

adverse ruling on that issue, Cota had decided to consent to the

joinder for strategic reasons. Thus, the only relevant question

4
is whether the flight evidence was properly admitted. We review

for abuse of discretion. State v. Bible, 175 Ariz. 549, 592,

858 P.2d 1152, 1195 (1993).

¶11 Evidence of flight is admissible to show consciousness

of guilt when the defendant flees “in a manner which obviously

invites suspicion or announces guilt.” State v. Weible, 142

Ariz. 113, 116, 688 P.2d 1005, 1008 (1984). Cota does not

dispute this general principle, but argues that the eight days

between the murders and his flight rendered the evidence

inadmissible. Remoteness of flight in relation to the

commission of the crime, however, goes to the weight of the

evidence, not its admissibility. Bible, 175 Ariz. at 592, 858

P.2d at 1195; see also State v. Edwards, 136 Ariz. 177, 184, 665

P.2d 59, 66 (1983) (holding flight evidence properly admitted

when defendant fled from police fifteen months after the crime

was committed).

¶12 Cota also contends that the flight evidence was

inadmissible because he may have been fleeing because he had

violated parole and had drugs in the car. But “[m]erely because

a defendant is wanted on another charge . . . does not make

evidence of flight per se inadmissible.” Bible, 175 Ariz. at

592, 858 P.2d at 1195. The circumstances here “justify an

inference that Defendant was fleeing from some other, more

serious crime.” Id. The trial court did not abuse its

5
discretion by admitting the flight evidence and instructing the

jury as to its limited use with respect to the murder counts.3

B. Exclusion of Non-English Speaking Jurors

¶13 A.R.S. § 21-202(B)(3) requires dismissal of

prospective jurors “not currently capable of understanding the

English language.” Cota moved to preclude the jury commissioner

from excluding non-English speakers from the master jury list.

Citing State v. Cordova, 109 Ariz. 439, 511 P.2d 621 (1973), the

trial court denied the motion. Cota argues that § 21-202(B)(3)

is unconstitutional. We review a statute’s constitutionality de

novo. State v. Stummer, 219 Ariz 137, 141 ¶ 7, 194 P.3d 1043,

1047 (2008).

¶14 “[T]he American concept of the jury trial contemplates

a jury drawn from a fair cross section of the community.”

Taylor v. Louisiana, 419 U.S. 522, 527 (1975). A defendant

alleging a fair cross-section violation of the Sixth Amendment

must show

(1) that the group alleged to be excluded is a
“distinctive” group in the community; (2) that the
representation of this group in venires from which
juries are selected is not fair and reasonable in
relation to the number of such persons in the
community; and (3) that this underrepresentation is

3
Contrary to Cota’s argument, Arizona Rule of Evidence
404(b) did not prohibit the admission of evidence of Cota’s
flight, because the evidence was not used “to prove the
character of a person in order to show action in conformity
therewith.” Ariz. R. Evid. 404(b).
6
 due to systematic exclusion of the group in the jury-
selection process.

Duren v. Missouri, 439 U.S. 357, 364 (1979). The Constitution

is not violated, however, if “a significant state interest” is

“manifestly and primarily advanced by those aspects of the jury-

selection process . . . that result in the disproportionate

exclusion of a distinctive group.” Id. at 367-68.

¶15 Cota contends that “non-English speaking Hispanic

citizens” are a “distinctive group.” Section 21-202(B)(3),

however, excuses all prospective jurors “not currently capable

of understanding the English language,” not just Hispanics.

“Non-English speakers” are not a “distinctive group” for Sixth

Amendment purposes. See, e.g., State v. Haugen, 243 P.3d 31,

39-40 (Or. 2010); Commonwealth v. Acen, 487 N.E.2d 189, 194

(Mass. 1986).

¶16 Moreover, the statute serves a significant state

interest. In rejecting a similar challenge, we noted that “[i]t

would be an undue burden upon the State court system to have to

translate for non-English speaking or reading jurors.” Cordova,

109 Ariz. at 441, 511 P.2d at 623. This state interest remains

compelling.4 See State v. Gibbs, 758 A.2d 327, 341 (Conn.

2000).5

4
Cota contends that Cordova is no longer valid in light of
Ruiz v. Hull, 191 Ariz. 441, 957 P.2d 984 (1998), which
concerned Article 28 of the Arizona Constitution, the “English
7
 C. Dismissal of Juror 46

¶17 Given Cota’s drug addiction and widespread drug use

among his friends and family, testimony at the guilt and penalty

phases focused on substance abuse. Questions regarding

addiction were therefore included in the juror questionnaire.

¶18 Juror 46 disclosed that two of her brothers had died

of heroin overdoses. When the prosecutor asked if she could set

aside her experiences and consider the evidence fairly, she

responded, “Honestly, no. It’s upsetting me right now thinking

about it.” When the trial judge asked if she could be fair to

both sides, Juror 46 said she didn’t know if she could be fair

to the prosecution. The judge excused her for cause.

¶19 Cota argues that the trial judge erred by excusing

Juror 46 and by not allowing Cota sufficient opportunity to

as the Official Language” amendment. But Ruiz was not based on
a classification of non-English speakers as a “distinctive”
class. Rather, the Court held that the amendment violated the
First and Fourteenth Amendments insofar as it “impinge[d] upon
both the fundamental right to participate equally in the
political process and the right to petition the government for
redress.” Id. at 459, 957 P.2d at 1002. Neither concern is at
issue here.
5
Cota also argues that his right to a jury selected in a
non-discriminatory manner was violated. The defendant’s burden
in establishing a prima facie violation of this Fourteenth
Amendment right is virtually identical to the burden in
establishing a Sixth Amendment fair cross-section claim. See
Castaneda v. Partida, 430 U.S. 482, 494 (1977). Cota’s
Fourteenth Amendment claim fails for the same reasons as his
Sixth Amendment claim.
8
rehabilitate her. We review for abuse of discretion. State v.

Lavers, 168 Ariz. 376, 390, 814 P.2d 333, 347 (1991).

¶20 A juror should be excused for cause “[w]hen there is

reasonable ground to believe that a juror cannot render a fair

and impartial verdict.” Ariz R. Crim. P. 18.4(b). The record

supports the trial court’s dismissal of this juror. The record

also demonstrates that, before the trial judge excused Juror 46,

defense counsel had a fair opportunity to examine her. See

State v. Cañez, 202 Ariz. 133, 148 ¶ 37, 42 P.3d 564, 579 (2002)

(“The method and scope of voir dire is left to the discretion of

the trial judge.”).6

D. Admissibility of Interrogation

¶21 Police arrested Cota on January 6, 2004, at about 5:30

p.m. Cota later told police that he had used drugs in the hour

before being arrested. Peoria Detectives Laing and Hickman

began interrogating Cota at approximately 9:20 p.m. After

approximately two hours, Cota invoked his right to counsel and

the interrogation ended. During the interrogation, Cota

appeared to fall asleep a few times.

6
Cota also argues that excusing Juror 46 violates the rule
of Witherspoon v. Illinois, 391 U.S. 510 (1968). Under that
case, a juror may not be removed for cause for mere misgivings
or general objections to the propriety of the death penalty, but
rather only if “irrevocably committed” to vote against death.
Id. at 520-23, 522 n.21. Juror 46’s removal, however, had
nothing to do with her views on the death penalty.
9
¶22 Cota contends that the trial court erred by admitting

his videotaped interrogation because (1) his statements were

involuntary as a result of drug intoxication, and (2) he invoked

his right to remain silent two times before the police finally

acknowledged the invocation of his right to counsel. In the

superior court, however, Cota objected to the introduction of

the interrogation only on voluntariness grounds. We review the

trial court’s voluntariness finding for abuse of discretion.

State v. Clabourne, 142 Ariz. 335, 342, 690 P.2d 54, 61 (1984).

We review the Miranda claim only for fundamental error. See

State v. Henderson, 210 Ariz. 561, 567 ¶¶ 19-20, 115 P.3d 601,

607 (2005).

1. Intoxication

¶23 The trial court found Cota’s statements voluntary

after an evidentiary hearing. We uphold factual findings as to

the “voluntary nature of a confession if the findings are

supported by adequate evidence in the record.” State v. Rhymes,

129 Ariz. 56, 57-58, 628 P.2d 939, 940-41 (1981).

¶24 Statements are not automatically inadmissible if given

under the influence of drugs or alcohol. Clabourne, 142 Ariz.

at 342, 690 P.2d at 61. But, if the defendant is so intoxicated

“that he could not understand the meaning of his statements,

then the statements were involuntary.” State v. Tucker, 157

Ariz. 433, 446, 759 P.2d 579, 592 (1988). “We look[] to the

10
totality of the circumstances to determine whether the accused

was able to reason, comprehend, or resist.” Id.

¶25 Our review of the videotape of the interrogation

confirms that Cota fully comprehended the questions posed and

gave appropriate answers. The record supports the trial court’s

finding that his statements were voluntary.

2. Miranda Issue

¶26 After being advised of his rights, “[i]f the

individual indicates in any manner, at any time prior to or

during questioning, that he wishes to remain silent, the

interrogation must cease.” Miranda v. Arizona, 384 U.S. 436,

473-74 (1966). Invocation of the right to remain silent need

not be made with precision. See, e.g., United States v.

Ramirez, 79 F.3d 298, 304 (2d Cir. 1996) (“A suspect need not

rely on talismanic phrases or any special combination of words

to invoke his Fifth Amendment right to remain silent.”).

However, the invocation must be unambiguous, Berghuis v.

Thompkins, 130 S. Ct. 2250, 2260 (2010), judged from the

perspective of a “reasonable police officer in the

circumstances,” Davis v. United States, 512 U.S. 452, 459

(1994).

¶27 Cota cites two alleged invocations of the right to

remain silent during the interrogation. We examine each in

turn.

11
 i. The Page 24 Statement

¶28 The first alleged invocation occurs at page 24 of the

interrogation transcript (the “Page 24 Statement”), after the

detectives had repeatedly told Cota (apparently inaccurately)

that they had discovered blood on his clothing:

Laing: That’s why we are asking you. The blood’s on
your clothing. I don’t see any big injuries on you to
get that kind of blood.

Cota: There ain’t no blood on my shirt.

Laing: Yes there is.

Cota: I’m not saying nothing no more[;] you guys are
fucking with me.

¶29 This statement was not an unambiguous invocation of

the right to remain silent. A reasonable officer could have

construed Cota’s comments as meaning that he knew the officers

were lying about blood on his shirt and that he no longer wished

to talk about this subject. See State v. Lawson, 144 Ariz. 547,

554-55, 698 P.2d 1266, 1273-74 (1985) (finding that statement,

“I’ve got nothing to say,” made in response to the question –

“You got anything to say to that?” - could fairly be read as a

refusal to talk about that specific question and not a general

invocation of the right to remain silent).

ii. The Page 40 Statement

¶30 The second alleged invocation occurs at page 40 (the

“Page 40 Statement”):

12
 Laing: Hey Benjamin we’re not lying to you man. We’ve
got your clothes and they’ve got blood on them. You’ve
got some explaining to do because you’re going to be
in a lot of shit of [sic] that blood comes back and it
belongs to Victor. You’re gonna have a lot of
explaining to do. If things just went crazy you need
to let us know. But I’ve been doing this job too long
Benjamin. Don’t . . . don’t sit there and play . . .
play me to be the fool, I know when you’re lying to
me, you’re not telling the truth now. What happened?

Cota: I’m sorry, what was your name?

Laing: Detective Laing . . . Bill Laing.

Cota: Laing I ain’t saying nothing no more.

¶31 The Page 40 Statement was an unambiguous invocation of

the right to remain silent, and questioning should have ceased

at this point. In contrast to the Page 24 Statement, Cota was

responding not to a specific question about blood on his

clothing, but to a very general question: “What happened?”

Cota’s answer was unequivocal, and more calm and thoughtful than

the Page 24 Statement, as evidenced by his demeanor, tone of

voice, and the additional step of asking the detective his name.

¶32 The Page 40 Statement is indistinguishable from those

we have previously found to be unambiguous invocations of the

right to remain silent. In State v. Finehout, for example, we

rejected the argument that the following exchange was ambiguous:

JONES: You might as well be honest with us, cause you
know-

DEFENDANT: I'm trying to be honest.

13
 JONES: No you're not 'cause everytime we ask you
something—

DEFENDANT: Well, I ain't going to say any more.

136 Ariz. 226, 227-29, 665 P.2d 570, 571-73 (1983); see also

State v. Castaneda, 150 Ariz. 382, 386, 724 P.2d 1, 5 (1986) (“I

have nothing to say” invoked right to remain silent.); State v.

Szpyrka, 220 Ariz. 59, 61-62 ¶ 5, 202 P.3d 524, 526-27 (App.

2008) (“I ain’t got nothin’ to say” invoked Fifth Amendment

rights.); Strayhand, 184 Ariz. at 585, 911 P.2d at 591 (“‘Well I

don’t want [to] answer anymore,’ could not have been clearer”

invocation of Fifth Amendment rights.).

iii. Fundamental Error Analysis

¶33 To warrant reversal, however, Cota must show

fundamental error. Fundamental error goes to the foundation of

the case, takes away a right essential to the defense, and is so

severe that the defendant could not have received a fair trial.

Henderson, 210 Ariz. at 567 ¶¶ 19-20, 115 P.3d at 607. No

fundamental error occurred here in admission of the

interrogation after page 40 because the continued questioning

did not prejudice Cota at any phase of the trial.

¶34 Cota did not admit to the murders, either before or

after page 40. Rather, he continued to maintain his innocence

even after invoking his right to remain silent. Thus, the only

prejudice Cota could have suffered from admission of statements

14
after page 40 was from a lack of credibility in his

protestations of innocence. However, virtually all of Cota’s

statements after page 40 mirrored others made earlier in the

interrogation.

¶35 The one significant exception is Cota’s claim after

page 40 that Martinez came back to the house at some point,

stating that Zavala was “dead in his heart.” But other evidence

on this point was properly admitted at trial. Cota’s drug

dealer testified that Cota had told her that the couple had gone

on vacation to Mexico, but that Martinez had returned and said

Zavala was “dead in his heart.”

E. Psychological Testing

¶36 After Cota gave notice of his intent to present mental

health experts in the penalty phase, the State moved for an

examination by its expert, which was to include the MMPI-II

personality inventory, or, alternatively, to preclude Cota’s

experts. Cota did not object to the examination, but objected

to testing because his experts had done none. The trial court

overruled the objection; we review for abuse of discretion.

State v. Newell, 212 Ariz. 389, 404-05 ¶ 78, 132 P.3d 833, 848-

49 (2006).

¶37 A defendant offering expert mental health testimony

must either submit to a state examination or forego introducing

his evidence. State v. Schackart, 175 Ariz. 494, 500-01, 858

15
P.2d 639, 645-46 (1993); Phillips v. Araneta, 208 Ariz. 280, 283

¶ 9, 93 P.3d 480, 483 (2004) (applying Schackart to the penalty

phase of a capital trial). The State’s examination need not

mirror that of the defense. Rather, the State is entitled to “a

meaningful opportunity to rebut the defendant’s expert

testimony.” Phillips, 208 Ariz. at 283 ¶ 9, 93 P.3d at 483.

Here, the State’s expert testified that mental health experts

commonly use the MMPI, which contains a validity scale

potentially helpful in evaluating the diagnoses made by Cota’s

experts. The judge did not abuse his discretion by ordering

Cota to submit to the MMPI. See Perkins v. State, 808 So. 2d

1041, 1128 (Ala. Crim. App. 1999) (concluding that use of MMPI

did not violate Fifth Amendment rights of defendant who put

mental health at issue), vacated on other grounds by Perkins v.

Alabama, 536 U.S. 953 (2002).

F. Various Juror Issues

¶38 Cota contends that the trial court erred by dismissing

Juror 2 and designating Jurors 5, 9, and 13 as alternates. He

also claims that the court erred by allowing Juror 10 to

deliberate in the penalty phase after not deliberating in the

guilt and aggravation phases.7

7
As the State points out, Cota’s argument regarding Juror 10
seemingly also applies to Juror 9, who deliberated in the
penalty phase after serving as an alternate in the first two
16
 1. Juror 2

¶39 On the second day of trial, a witness testified that

he had known Martinez for fifty years. The prosecutor later

incorrectly called the period “half a decade.” After Juror 2

submitted a clarifying question, the matter was clarified.

Later that day, the prosecutor stressed the term “half a

century.” Juror 2 took offense and reported to the bailiff that

she was “humiliated,” had missed several minutes of testimony

because she was upset, and wasn’t sure she could ever side with

the State thereafter. Questioning by the court confirmed that

she was upset. The next day, the State moved to strike Juror 2.

The trial court granted the State’s motion over Cota’s

objection, citing the juror’s statements to the bailiff, her

claim to be “offended,” and the fact that she missed testimony.

¶40 A trial court’s findings regarding a juror’s ability

to be fair and impartial and its dismissal of a juror are

reviewed for abuse of discretion. State v. Garcia, 224 Ariz. 1,

16 ¶ 66, 226 P.3d 370, 385 (2010); State v. Trostle, 191 Ariz.

4, 12, 951 P.2d 869, 877 (1997). The trial court should excuse

a juror “[w]hen there is reasonable ground to believe that a

juror cannot render a fair and impartial verdict.” Ariz. R.

Crim. P. 18.4(b). The “reasonable ground” may arise during

phases. Cota, however, does not raise a similar argument as to
Juror 9.
17
trial. Trostle, 191 Ariz. at 13, 951 P.2d at 878. The record

here supports the trial judge’s decision.

2. Juror 10

¶41 Cota argues that the trial court erred by allowing

Juror 10 to deliberate in the penalty phase after serving as an

alternate in the previous two phases. But we have repeatedly

rejected the argument that the same jurors must serve in all

phases of a capital trial. See State v. Prince, 226 Ariz. 516,

527-28 ¶¶ 21-25, 250 P.3d 1145, 1156-57 (2011); Garcia, 224

Ariz. at 17 ¶ 71, 226 P.3d at 386.

¶42 Cota argues that these cases are distinguishable

because the trial court here did not voir dire Juror 10 to see

if she accepted the previous verdicts. But this is not

required; the juror must simply be aware of her role in the

penalty phase. Garcia, 224 Ariz. at 17 ¶¶ 70-71, 226 P.3d at

386. Although it may be advisable for the trial court to

discuss this role with the juror individually, such discussion

is not necessary where the entire jury is instructed properly,

as it was here. Id.

3. Jurors 5, 9, and 13

¶43 During selection, jurors were told when the trial was

scheduled to end. Unfortunately, the trial did not proceed as

promptly as envisioned. Juror 9 had already made vacation plans

for the week in which guilt phase deliberations finally were to

18
begin. Jurors 5 and 13 both had already paid for tickets to

leave town when the penalty phase began. On each occasion, the

trial judge designated the jurors as alternates instead of

releasing them or continuing the trial.

¶44 Alternates are supposed to be selected by lot by the

clerk. Ariz. R. Crim. P. 18.5(h). However, designation of

alternates by the trial judge does not require reversal in the

absence of resulting prejudice. State v. Blackhoop, 162 Ariz.

121, 122, 781 P.2d 599, 600 (1989); State v. Martinez, 198 Ariz.

5, 9 ¶¶ 15-19, 6 P.3d 310, 314 (App. 2000). Cota has not shown

that he was deprived of a fair and impartial jury at any stage

of the trial, and therefore cannot demonstrate prejudice.

Blackhoop, 162 Ariz. at 122, 781 P.2d at 600.

G. Admission of Autopsy Photographs

¶45 The trial court admitted autopsy photographs over

Cota’s objection. The photographs depict both victims in the

condition the medical examiner received them and during the

autopsies. The trial court admitted three photographs only in

black and white to minimize any “gruesome effect.” We review

for abuse of discretion. State v. Lynch, 225 Ariz. 27, 37-38 ¶

51, 234 P.3d 595, 605-06 (2010).

¶46 Whether the trial court abused its discretion in

admitting a photograph turns on (1) the photograph’s relevance,

(2) its tendency to inflame the jury, and (3) its probative

19
value compared to its potential to cause unfair prejudice.

State v. Anderson (“Anderson II”), 210 Ariz. 327, 339 ¶ 39, 111

P.3d 369, 381 (2005). Photographs must not be introduced “for

the sole purpose of inflaming the jury,” State v. Gerlaugh, 134

Ariz. 164, 169, 654 P.2d 800, 805 (1982), but “[t]here is

nothing sanitary about murder” and sometimes gruesome

photographs properly will be introduced, State v. Rienhardt, 190

Ariz. 579, 584, 951 P.2d 454, 459 (1997).

¶47 “[T]he fact and cause of death are always relevant in

a murder prosecution.” State v. Chapple, 135 Ariz. 281, 288,

660 P.2d 1208, 1215 (1983). The photographs here also helped to

corroborate the State’s theory on the timing of the two deaths.

Admission of these exhibits was not an abuse of discretion.

H. Discovery Sanctions against the State

¶48 Cota contends that the trial court erred by denying

his motion for mistrial and imposing insufficient sanctions for

discovery violations by the State. We review for abuse of

discretion. State v. Kuhs, 223 Ariz. 376, 380 ¶ 18, 224 P.3d

192, 196 (2010).

1. Relevant Facts

¶49 Shannin Guy of the DPS crime lab performed DNA

testing. Her report and notes were disclosed before trial and

included the hand-written acronym “EDNA” in three locations.

After Guy left DPS, the State could not initially locate her, so

20
it notified Cota on March 12, 2009, that it would call Scott

Milne, another DPS analyst, who would conduct new testing.

¶50 Jury selection began on April 2. Milne’s report was

completed on April 3 and a copy provided to defense counsel the

next day. Milne was unable to retest some items consumed by

Guy’s testing. However, using a relatively new method, Milne

tested items on which previous tests were inconclusive,

including Cota’s tennis shoe. The State made additional

disclosure concerning Milne’s report and notes on April 24. His

notes also included one notation of “EDNA.”

¶51 On the eve of trial, the State located Guy. The State

notified Cota that it intended to call both witnesses and on

April 30 defense counsel interviewed Milne and Guy.

¶52 On May 11, Cota claimed that the State did not provide

him with all of Milne’s electronic data. The trial court found

no bad faith, but ordered the State to disclose the data. The

State provided Cota with electronic data that afternoon.

¶53 Guy testified on May 14 and May 18. She opined that

the sample from Cota’s shoe contained DNA from Cota and other

“unknown” contributors. Milne later testified that he had

identified both victims’ DNA in the sample.

¶54 On May 19, Cota filed a motion asking the State to

produce Guy’s electronic data and “the laboratory’s corrective

actions log and extraneous DNA [EDNA] log.” The trial court

21
granted the motion. On June 1, Cota still had not received

Guy’s electronic data. The court ordered that it be turned over

for use in cross-examining Milne. The trial court also ordered

Milne to provide additional data.

¶55 The EDNA log had been disclosed on May 21, and

contained a list of all contaminated samples. DPS procedure was

not to disclose the EDNA log unless it was specifically

requested. On June 8, Cota filed a motion to dismiss for Brady

violations. See Brady v. Maryland, 373 U.S. 83 (1963). Cota

argued that the EDNA log was clearly exculpatory and that he

could not have been expected to know what “EDNA” meant when it

was handwritten on the reports and no other explanation was

given.

¶56 The court found that DPS improperly withheld the EDNA

log and certain electronic data. The court found, however, that

any prejudice to Cota could be cured without a mistrial or

preclusion of all DNA evidence. Neither Guy nor Milne had

testified about any sample in the EDNA log. The court allowed

Cota to re-call Guy for additional cross-examination, re-

interview Milne before his testimony, interview another person

at the lab, and tour the lab. The court also granted a

continuance until June 22 to allow Cota’s experts to review the

materials.

22
¶57 On June 22, Cota filed another motion to dismiss,

alleging that some of Guy’s electronic data was still missing.

The trial court found that some data was missing because it had

been improperly backed up. It also found that some of Guy’s

files were either destroyed or not retrievable. The court

struck Guy’s testimony and instructed the jury not to consider

it.

¶58 The court, however, denied Cota’s request to preclude

Milne’s testimony. After Cota argued that striking Guy’s

testimony deprived him of the ability to demonstrate

deficiencies in the DPS lab, the court allowed Cota to re-call

her. Cota cross-examined Milne at length but did not re-call

Guy. At Cota’s request, the court instructed the jury that DPS

had a duty to disclose all relevant information to the defense

and ordered the State not to argue that the EDNA log need not

have been disclosed.

2. The trial court’s sanctions

¶59 Cota argues that a mistrial should have been granted

or, at the least, Milne’s testimony precluded. But preclusion

is required only when no less stringent sanction will suffice.

State v. Fisher, 141 Ariz. 227, 246, 686 P.2d 750, 769 (1984).

We apply a four factor test to determine whether preclusion is

appropriate: (1) “how vital the precluded witness is to the

proponent’s case,” (2) “whether the opposing party will be

23
surprised and prejudiced by the witness’ testimony,” (3)

“whether the discovery violation was motivated by bad faith or

willfulness,” and (4) “any other relevant circumstances.” State

v. Smith, 123 Ariz. 243, 252, 599 P.2d 199, 208 (1979).

¶60 The trial court appropriately considered these

factors. It found Milne’s testimony “extremely relevant and

important to the State’s case” and that there was no bad faith.

It also found that any prejudice to Cota could be cured by

additional disclosure, interviews, and continuances. Cota had

access to all relevant information before cross-examining Milne

and identifies no area in which the cross-examination would have

materially differed had he been granted more time.

¶61 Cota argues that a new trial is “ordinarily” the

remedy for a Brady violation. But many Brady violations are

discovered after trial, when no other remedy could suffice.

Here, the trial court had other options and did not abuse its

discretion by using them. The sanctions imposed sufficiently

protected Cota’s due process rights. Cf. State v. Jessen, 130

Ariz. 1, 4, 633 P.2d 410, 413 (1981) (finding no reversible

error when previously undisclosed exculpatory information is

revealed at trial and presented to the jury).

I. Denial of Motion for Judgment of Acquittal

¶62 Cota moved under Rule 20 for judgment of acquittal on

the armed robbery and felony murder charges. Cota argues that

24
the trial judge erred in denying these motions, contending that

the evidence was insufficient to support the conviction for

armed robbery and that the felony murder charge, for which armed

robbery was the predicate felony, must also therefore fail.

¶63 We review denial of a Rule 20 motion de novo, viewing

the evidence in the light most favorable to upholding the

ruling. State v. West, 226 Ariz. 559, 562 ¶ 15, 250 P.3d 1188,

1191 (2011). Acquittal is required “if there is no substantial

evidence to warrant a conviction.” Ariz. R. Crim. P. 20(a).

¶64 Cota argues that the State presented no evidence to

establish the necessary concurrence of intent to take the

victims’ property and use of force against the victims. See

State v. Murray, 184 Ariz. 9, 31, 906 P.2d 542, 564 (1995). Use

of force may precede the taking of property, but the State must

prove the coexistence of the intent and the use of force in

order to establish armed robbery. Id.

¶65 This is not, however, a case in which the evidence

could only be reasonably interpreted as showing that the intent

to steal was formed after the murders. See State v. Wallace,

151 Ariz. 362, 366, 728 P.2d 232, 236 (1986). Instead, as in

State v. Comer, substantial evidence was introduced that

25
“[a]ppellant’s financial condition provided the motive for [the]

killing.” 165 Ariz. 413, 421, 799 P.2d 333, 341 (1990).8

J. Failure to Give Manslaughter Instruction

¶66 Cota argues that the trial court erred in refusing a

lesser-included offense instruction on manslaughter. But the

jury was instructed on second degree murder, which it rejected.

By rejecting that lesser-included offense, it “necessarily

rejected all other lesser-included offenses.” State v. White,

144 Ariz. 245, 247, 697 P.2d 328, 330 (1985). Moreover, Cota

was convicted of both premeditated and felony murder, and

manslaughter is not a lesser-included offense of felony murder.

State v. Schad, 163 Ariz. 411, 417, 788 P.2d 1162, 1168 (1989).

K. Victim Impact Statement

¶67 Cota contends that A.R.S. § 13-752(R), which

authorizes victim impact statements in capital cases, is

unconstitutional. We have, however, previously found § 13-

752(R) constitutional. State v. Dann, 220 Ariz. 351, 369-70 ¶

101, 207 P.3d 604, 622-23 (2009); Lynn v. Reinstein, 205 Ariz.

186, 190-91 ¶¶ 13-17, 68 P.3d 412, 416-17 (2003). Cota presents

no compelling reason for us to abandon those holdings.

8
In any event, the first degree murder convictions were
premised on two theories, felony murder and premeditated murder.
Because the jury expressly found both felony and premeditated
murder on each count, the murder convictions would stand even if
the felony murder verdict were improper. See Anderson II, 210
Ariz. at 343 ¶ 59, 111 P.3d at 385.
26
¶68 In the alternative, Cota argues that the impact

statement from Martinez’s daughter was so inflammatory that the

trial judge should have granted a mistrial. We review for abuse

of discretion. State v. Gallardo, 225 Ariz. 560, 567 ¶ 26, 242

P.3d 159, 166 (2010).

¶69 Martinez’s daughter characterized the bodies as

“mutilated” and “tortured.” She said that Cota could still

“share pictures and visitation from his family,” but she could

no longer share anything with her father and Zavala. During her

statement, at least four members of the jury cried. The court

denied Cota’s motion for mistrial and offered a curative

instruction, which Cota declined.

¶70 A mistrial is required when victim impact testimony is

so “unduly prejudicial that it renders the trial fundamentally

unfair.” State v. Tucker, 215 Ariz. 298, 320 ¶ 92, 160 P.3d

177, 199 (2007). The trial is not unfair simply because jurors

were emotional during the statement. Gallardo, 225 Ariz. at 567

¶ 29, 242 P.3d at 166.

¶71 The trial judge did not abuse his discretion in

denying a mistrial. The judge correctly noted that the use of

the word “mutilated” was supported by the evidence. While

finding “tortured” more problematic, the court noted that Ms.

Martinez used the word as a lay person and that her use of the

word was not “out of line” given her observation of the two

27
bodies. Finally, the judge noted that Ms. Martinez’s comparison

of her situation to Cota’s was accurate and the jurors already

had that obvious information before the statement. The judge

properly rejected the argument that the statement was an

implicit sentencing recommendation.

¶72 We have upheld death sentences in cases involving

similar victim impact testimony, see, e.g., State v. Prince, 226

Ariz. 516, 534-36 ¶¶ 65-76, 250 P.3d 1145, 1163-65 (2011), and

find no reversible error here. The jurors were properly

instructed not to be swayed by passion, prejudice, or sympathy,

and that the statements could not be used as aggravation, but

only as rebuttal to mitigation. See Dann, 220 Ariz. at 369-70

¶¶ 100-101, 207 P.3d at 622-23. The trial judge offered to give

a further specific limiting instruction, which Cota declined.

L. Trial Court’s Failure to Investigate Allegedly Sleeping
Juror

¶73 During the penalty phase, defense counsel asked to

voir dire Juror 12 because “several people” said that his eyes

were closed during testimony. The trial judge noted that he had

watched Juror 12 closely after the allegations were brought to

his attention. Although he had seen Juror 12’s eyes closed on

occasion, the judge could tell Juror 12 was not asleep because

he was tapping his foot and moving his wrist. The judge denied

the request for voir dire and Cota’s subsequent motion for a new

28
trial. This ruling is reviewed for abuse of discretion. State

v. Hall, 204 Ariz. 442, 447 ¶ 16, 65 P.3d 90, 95 (2003).

¶74 When a trial court becomes aware of possible juror

misconduct, it should “conduct whatever investigation it deems

warranted.” State v. Cook, 170 Ariz. 40, 55, 821 P.2d 731, 746

(1991). Here, the judge chose personally to observe Juror 12

rather than conduct voir dire. “‘The conduct of the juror in

open court was a matter of which the trial court had judicial

knowledge and could take judicial notice.’” United States v.

Curry, 471 F.2d 419, 422 (5th Cir. 1973) (quoting United States

v. Carter, 433 F.2d 874, 876 (10th Cir. 1970)); see also Kuhs,

223 Ariz. at 380 ¶ 18, 224 P.3d at 196 (allowing trial judges to

rely on their observations of courtroom behavior in making

decisions). In light of his personal observations of Juror 12,

the trial judge did not abuse his discretion in declining to

excuse the juror or conduct further investigation.

M. Failure to Instruct Jury that Arizona Law Precluded Cota
From Being Considered for Parole

¶75 Cota argues that the trial court erred by instructing

the jury that a life sentence might allow for release after

twenty-five years, because he is not eligible for parole under

A.R.S. § 41-1604.09(I). This argument, however, conflates

parole and release. Cota would have been eligible for other

29
forms of release, such as executive clemency, if sentenced to

life with the possibility of release.

¶76 The instruction given accurately stated the law.

State v. Hargrave, 225 Ariz. 1, 15 ¶ 53, 234 P.3d 569, 583

(2010). Cota’s “argument that he is not likely to actually be

released does not render the instruction legally incorrect.”

Id.

N. Refusal to Instruct Jury on Presumption that Sentences Run
Consecutively

¶77 Cota argues that the trial court erred by refusing to

give his requested instruction that if sentenced to life, the

two sentences for murder would presumptively run consecutively.

We review de novo whether jury instructions “properly state the

law.” State v. Glassel, 211 Ariz. 33, 53 ¶ 74, 116 P.3d 1193,

1213 (2005).

¶78 Sentences “run consecutively unless the court

expressly directs otherwise.” A.R.S. § 13-711(A). But this

statute creates no presumption in favor of consecutive

sentences. State v. Garza, 192 Ariz. 171, 174 ¶ 10, 962 P.2d

898, 901 (1998). Thus, Cota’s proposed instruction was not an

accurate statement of the law.

O. Prosecutorial Misconduct in Closing Argument

¶79 Cota contends that the prosecutor improperly argued

“uncharged or unproven aggravating circumstances” and commented

30
on his invocation of the right to remain silent. He did not

object to the identified arguments at trial, so we review only

for fundamental error. State v. Bocharski, 218 Ariz. 476, 491-

92 ¶ 74, 189 P.3d 403, 418-19 (2008).

¶80 We find no reversible error. The prosecutor may argue

the facts and reasonable inferences from the evidence at the

penalty phase. State v. Harrod, 218 Ariz. 268, 278 ¶¶ 34-36,

183 P.3d 519, 529 (2008). The evidence supported her statements

that Cota “laid in wait” and “viciously” killed Zavala because

after killing Martinez, Cota apparently waited for Zavala to

return from work. Substantial evidence also supported the

characterization of Zavala’s murder as vicious and the

prosecutor’s statement that Cota intended to “get rid” of her.

None of these statements encouraged the jury to consider

unproven aggravators.

¶81 Slightly more troubling is the statement that Cota

committed the murders for money, because the aggravation phase

jury was unable to reach a verdict on the F(5) aggravator. But

the prosecutor did not argue in the penalty phase that the jury

should consider pecuniary gain as an aggravator. The statement

was in fair rebuttal of Cota’s argument that the murders may

have been committed in a methamphetamine-induced rage.

Moreover, the judge instructed the jury that closing arguments

were not evidence and explained the different functions of the

31
aggravation and penalty phases. See Prince, 226 Ariz. at 538 ¶

90, 250 P.3d at 1167.

¶82 Nor did the prosecutor improperly comment on Cota’s

right to remain silent. The prosecutor’s statements to which

Cota objects were fair rebuttal to Cota’s allocution. Most of

the statements at issue simply noted that Cota never expressed

remorse for committing the crime during the allocution. A

defendant may claim remorse in allocution, but if he does so the

State may rebut that statement. State v. Armstrong, 218 Ariz.

451, 463 ¶¶ 54-59, 189 P.3d 378, 390 (2008).

¶83 The prosecutor also said that if Cota “were truly

sorry and remorseful, wouldn’t he have told the police how sorry

he was? On that 107 minutes of video, what do you see? Angry,

combative man. He is not admitting.” This argument can fairly

be read, however, as contrasting Cota’s denials of

responsibility in the interrogation with his subsequent claim of

remorse. Such comments are permissible. Id.

P. Non-Capital Sentences

¶84 The trial judge sentenced Cota to natural life for

Martinez’s murder, twenty-eight years for each armed robbery

count, twelve years for drug possession, and six years for

unlawful flight. The judge used Cota’s prior felony convictions

to both enhance and aggravate these sentences. He also stated

that he believed Arizona law “required” him to make the

32
sentences consecutive, and he did so on all but the flight

count. Cota contends that these sentences were illegal and that

the trial court misapplied Arizona sentencing law by stating

that consecutive sentences were “required.”

1. The use of Cota’s prior felony convictions to both
enhance and aggravate Cota’s sentences

¶85 The legislature may authorize trial courts to use the

same circumstance for both aggravation and enhancement of a

sentence. State v. Bly, 127 Ariz. 370, 373, 621 P.2d 279, 282

(1980). “[T]he authorization must be explicit and the specific

factor expressly identified.” State v. Alvarez, 205 Ariz. 110,

113 ¶ 8, 67 P.3d 706, 709 (App. 2003). Use of a prior felony

conviction for aggravation and enhancement is expressly

authorized by A.R.S. §§ 13-701(D)(11) and 13-703.

2. The imposition of consecutive sentences

¶86 The trial judge stated that “consecutive sentence[s]

are required by Arizona law pursuant to A.R.S. 13-708.”9

Subsection A of that statute reads:

Except as otherwise provided by law, if multiple
sentences of imprisonment are imposed on a person at
the same time, the sentence or sentences imposed by
the court shall run consecutively unless the court
expressly directs otherwise, in which case the court
shall set forth on the record the reason for its
sentence.

9
Section 13-708 was renumbered as § 13-711 in 2009. See
2008 Ariz. Sess. Laws, ch. 301, § 27 (2d Reg. Sess.). Section
13-711 is identical to former § 13-708.
33
¶87 That section does not require that sentences run

consecutively and does “‘not constrict to any degree the trial

court’s discretion to impose [concurrent] sentences for the

defendant’s crimes.’” Garza, 192 Ariz. at 174 ¶ 12, 962 P.2d at

901 (quoting State v. Fillmore, 187 Ariz. 174, 184, 927 P.2d

1303, 1313 (App. 1996)). Rather, the statute “merely requires

the judge to set forth reasons for imposing concurrent rather

than consecutive sentences and creates a default designation of

consecutive sentences when the judge fails to indicate whether

the sentences are to run concurrently or consecutively.” Id. at

175 ¶ 12, 962 P.2d at 902.

¶88 The trial court was thus mistaken if it thought that

consecutive sentences were required. Garza remanded for

resentencing because “the judge wrongly felt himself confined by

a non-existent presumption.” Id. at 175 ¶ 14, 962 P.2d at 902.

“[I]f the record is unclear whether the judge knew he had

discretion to act otherwise, the case should be remanded for

resentencing.” Id. at 176 ¶ 17, 962 P.2d at 903. Although the

judge here imposed one concurrent sentence, we are not convinced

that he was aware of his discretion to do the same with all

other sentences. We therefore remand for resentencing on the

non-capital counts.

34
 Q. Issues Raised to Avoid Federal Preclusion

¶89 To avoid preclusion, Cota raises twenty-eight issues

that he states have been rejected in decisions by the Supreme

Court of the United States or this Court. These issues and the

decisions Cota identifies as rejecting them are listed in the

appendix to this opinion.

R. Review of the Death Sentence

¶90 Because the murder of Zavala occurred after August 1,

2002, we review the death sentence 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 aggravating circumstances or the

imposition of a death sentence is not an abuse of discretion if

‘there is any reasonable evidence in the record to sustain it.’”

State v. Delahanty, 226 Ariz. 502, 508 ¶ 36, 250 P.3d 1131, 1137

(2011) (quoting State v. Morris, 215 Ariz. 324, 341 ¶ 77, 160

P.3d 203, 220 (2007)).

1. Proper standard of review and constitutionality of
A.R.S. § 13-756(A)

¶91 Cota argues that the abuse of discretion standard is

“more deferential than . . . the standard ordinarily articulated

and applied by this Court.” He argues that the proper standard

was announced by this Court in Chapple, 135 Ariz. at 297 n.18,

660 P.2d at 1224 n.18. We reject this contention; the standard

35
cited in Delahanty and Morris is now mandated by § 13-756(A),

which was enacted after Chapple.

¶92 Cota also argues that the abuse of discretion standard

is unconstitutional because the Supreme Court has mandated

“meaningful” appellate review of death sentences. Clemons v.

Mississippi, 494 U.S. 738, 749 (1990). But we have already

determined that abuse of discretion review is constitutional.

State v. Martinez, 218 Ariz. 421, 434 ¶¶ 61-62, 189 P.3d 348,

361 (2008). Meaningful appellate review requires only that an

appellate court “consider whether the evidence is such that the

sentencer could have arrived at the death sentence that was

imposed,” not whether the appellate court itself would have

imposed a death sentence. Clemons, 494 U.S. at 749.

2. Aggravating Circumstances

¶93 The jury found that Cota had been convicted of another

serious offense, A.R.S. § 13-751(F)(2), and committed the murder

while on authorized release, A.R.S. § 13-751(F)(7)(a). Cota

does not contest these findings, which are amply supported by

the evidence.

3. Mitigating Circumstances

¶94 If an aggravating circumstance is established, the

jury must determine whether death is the appropriate penalty in

light of any mitigating circumstances proven by the defendant.

A.R.S. § 13-751(C). Here, Cota presented evidence on a variety

36
of mitigating factors, including intoxication at the time of the

murders, troubled family history, history of substance abuse,

lack of previous violence, and low risk of future violence in

prison. The State presented evidence to rebut many of these

mitigating factors.

¶95 We overturn the jury’s imposition of a death sentence

only if no “reasonable jury could have concluded that the

mitigation established by the defendant was not sufficiently

substantial to call for leniency.” Morris, 215 Ariz. at 341 ¶

81, 160 P.3d at 220. Even if we assume that Cota proved each of

his alleged mitigating factors, the jury still did not abuse its

discretion here by finding the mitigation insufficient to

warrant leniency.

III. CONCLUSION

¶96 For the foregoing reasons, we affirm Cota’s

convictions and death sentence, but remand for resentencing on

the non-capital counts.

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

37
_____________________________________
W. Scott Bales, Justice

_____________________________________
A. John Pelander, Justice

_____________________________________
Robert M. Brutinel, Justice

38
 APPENDIX

1. The death penalty is per se cruel and unusual punishment.
Gregg v. Georgia, 428 U.S. 153, 186-87 (1976); State v.
Harrod, 200 Ariz. 309, 320, 26 P.3d 492 (2001).

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 statutory scheme for considering mitigating
evidence is unconstitutional because it limits full
consideration of that evidence. State v. Mata, 125 Ariz.
233, 242, 609 P.2d 48, 57 (1980).

6. 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).

7. 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).

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. 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

39
 capital crime. McKaney v. Foreman, 209 Ariz. 268, 271, ¶
13, 100 P.3d 18, 21 (2004).

10. The reasonable doubt jury instruction 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).

11. 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).

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

13. Permitting the State to argue that Appellant’s mitigation
evidence should be given limited or no weight absent proof
of a causal nexus to the murder(s) violates the Eighth and
Fourteenth Amendments. State v. Anderson (Anderson II),
210 Ariz. 327, 350, ¶¶ 93-97, 82, 111 P.3d 369 (2005).

14. 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).

15. 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, ¶¶
101-102, 140 P.3d 899 (2006).

16. 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).

17. The State’s introduction of hearsay rebuttal testimony
violated Appellant’s rights to confrontation and cross

40
 examination under the Sixth Amendment. State v. McGill, 213 Ariz. 147, 158-59, 140 P.3d 930 (2006).

18. 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).

19. 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).

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

21. The refusal to permit evidence regarding a sentence of life
without parole and ineligibility of any future release
deprived Appellant of his rights under the Eighth and
Fourteenth Amendments. State v. Cruz, 218 Ariz. 149, 154-
55, ¶¶ 40-45, 181 P.3d 196 (2008).

22. Instructing the jury that Appellant might be eligible for
release after 25 years violates the Fifth, Sixth, Eighth
and Fourteenth Amendments. State v. Hargrave, 225 Ariz. 1,
¶¶ 50-53, 234 P.3d 569 (2010).

23. The failure to instruct the jury that the State bore the
burden of proving its rebuttal to mitigation evidence
beyond a reasonable doubt violated Appellant’s rights under
the Sixth, Eight and Fourteenth Amendments. State v.
Roque, 213 Ariz. 193, 225-26, ¶¶ 138-140, 141 P.3d 368
(2006).

24. 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).

41
25. 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).

26. 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).

27. 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).

28. The use of Appellant’s conviction that occurred
contemporaneous with the murder as an aggravating
circumstance under ARS § 13-751(F)(2) violates double
jeopardy under the Fifth and Fourteenth Amendments. State
v. Pandeli (Pandeli III), 215 Ariz. 514, 523, ¶ 16, 161
P.3d 557 (2007).

42