State of Arizona v. Scott Douglas Nordstrom

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0266-AP
Appellee, )
) Pima County
v. ) Superior Court
) No. CR55947
SCOTT DOUGLAS NORDSTROM, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Pima County
The Honorable Richard D. Nichols, Judge

AFFIRMED
________________________________________________________________

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

SHARMILA ROY ATTORNEY AT LAW Laveen
By Sharmila Roy
Attorney for Scott Douglas Nordstrom
________________________________________________________________

B A L E S, Vice Chief Justice

¶1 This automatic appeal arises from Scott Douglas

Nordstrom’s 2009 death sentences for his 1996 murders of Thomas

Hardman and Carol Lynn Noel. We have jurisdiction under Article

6, Section 5(3) of the Arizona Constitution and A.R.S. § 13–4031

(2011). 
 FACTS AND PROCEDURAL BACKGROUND

¶2 On May 30, 1996, Scott Nordstrom and Robert Jones shot

and killed Thomas Hardman and Clarence O’Dell while robbing the

Moon Smoke Shop in Tucson. State v. Nordstrom (Nordstrom I),

200 Ariz. 229, 236-37 ¶¶ 1-4, 25 P.3d 717, 724-25 (2001). Two

weeks later, Nordstrom and Jones shot and killed Carol Lynn Noel

and three others during a robbery at the Firefighters’ Union

Hall, a Tucson social club. Id. at 237-38 ¶¶ 5-7, 25 P.3d at

725-26.

¶3 Police arrested Nordstrom and his brother David in

connection with the murders. Id. at 239 ¶ 17, 25 P.3d at 727.

David admitted he had accompanied Nordstrom and Jones to the

Smoke Shop, but said he had stayed outside. Id. at 243 ¶ 35, 25

P.3d at 731. David entered a plea bargain regarding the Smoke

Shop robbery; the State dismissed the charges against him

related to the Union Hall robbery; and he testified as the

State’s key witness in the separate trials of Nordstrom and

Jones. Id. at 238, 244 ¶¶ 10, 37, 25 P.3d at 726, 732; State v.

Jones, 197 Ariz. 290, 298 ¶ 10, 4 P.3d 345, 353 (2000).1

¶4 At Nordstrom’s trial, eyewitness Carla Whitlock

identified Nordstrom as one of the men she saw run from the

1
A jury found Jones guilty on six counts of murder and other
charges, and he received a death sentence for each murder. See
Jones, 197 Ariz. at 297 ¶ 1, 4 P.3d 352.

2
Smoke Shop on the night of the robbery. David testified that he

had driven Nordstrom and Jones to the Smoke Shop; the pair

entered with handguns and he heard shots; Nordstrom and Jones

later told him they had each shot a person; and the three had

split the robbery money. David also testified that Nordstrom

told him about the Union Hall robbery. Nordstrom I, 200 Ariz.

at 238 ¶ 9, 25 P.3d at 726. Another witness, Michael Kapp,

testified that Nordstrom had solicited him to rob the Union Hall

two years earlier. Id. In his defense, Nordstrom presented

alibi evidence for the day of the Smoke Shop robbery and

evidence suggesting that David had committed the crimes and

implicated his brother to save himself. Id. ¶ 10.

¶5 Nordstrom was convicted of the first degree

premeditated murders of Hardman and Noel, of felony murder for

the other four homicides, and of attempted murder, armed

robbery, and first-degree burglary. Id. at 238-39 ¶ 12, 25 P.3d

at 726-27. At sentencing, the trial judge found three

aggravating circumstances under A.R.S. § 13-751 - (F)(1) (prior

conviction of another offense punishable by life imprisonment or

death), (F)(5) (pecuniary gain), and (F)(8) (multiple homicides)

- and sentenced Nordstrom to death for each murder. Id. at 239

¶ 13, 25 P.3d at 727. This Court affirmed on direct appeal.

Id. at 257 ¶ 99, 25 P.3d at 745.

¶6 Before our mandate issued, the Supreme Court decided
3
Ring v. Arizona, 536 U.S. 584 (2002). In light of Ring, this

Court vacated Nordstrom’s death sentences and remanded for

resentencing, concluding that a jury might have assessed the

mitigating circumstances differently than did the judge. State

v. Nordstrom (Nordstrom II), 206 Ariz. 242, 248 ¶¶ 26-28, 77

P.3d 40, 46 (2003). The State subsequently withdrew its death

penalty allegation for the four felony murder convictions and

its (F)(5) and (F)(8) aggravator allegations for the murders of

Hardman and Noel.2

¶7 At the new aggravation phase, the State argued that

the murder of Hardman established the (F)(1) aggravating factor

for Noel’s murder and vice-versa. The jury found the (F)(1)

aggravator for each murder. Nordstrom then waived the

presentation of mitigation evidence and declined to allocute.

At the penalty phase, the State presented details about the

2
After the remand, the parties extensively litigated issues
regarding the resentencing proceedings, resulting in several
special actions in the court of appeals. For example, although
Nordstrom II held it was harmless error for the trial judge,
rather than a jury, to have found the aggravating factors, 206
Ariz. at 247 ¶ 17, 77 P.3d at 45, the court of appeals ruled
that legislation enacted after Ring required the jury to find
aggravating factors. See Nordstrom v. Cruikshank, 213 Ariz.
434, 438 ¶ 10, 142 P.3d 1247, 1251 (App. 2006). The court of
appeals also ruled that Nordstrom could present alibi evidence
in rebuttal if the State sought the death penalty for the felony
murder convictions. See State v. Nichols (Nordstrom), 219 Ariz.
170, 177 ¶¶ 19-20, 195 P.3d 207, 214 (App. 2008).

4
Hardman and Noel murders and also introduced evidence of

Nordstrom’s convictions for the four other homicides and other

crimes at the Smoke Shop and Union Hall. The State also

established that Nordstrom was on parole when the offenses

occurred. The jury determined Nordstrom should receive death

sentences for both murders.

DISCUSSION

A. Penalty Phase Evidentiary Rulings

¶8 Nordstrom argues that the trial court erred by

allowing the State to offer evidence during the penalty phase of

the four felony murders when he did not present any mitigating

evidence. We review admission of evidence for an abuse of

discretion, State v. Lehr, 227 Ariz. 140, 147 ¶ 19, 254 P.3d

379, 386 (2011), and issues of constitutional and statutory

interpretation de novo, State v. Roque, 213 Ariz. 193, 217 ¶ 89,

141 P.3d 368, 392 (2006).

¶9 Section 13-751(G) states that “[t]he trier of fact

shall consider as mitigating circumstances any factors proffered

by the defendant or state that are relevant in determining

whether to impose a sentence less than death, including any

aspect of the defendant’s character, propensities or record and

any of the circumstances of the offense.” Similarly, A.R.S. §

13-752(G) states:

At the penalty phase, the defendant and the state may
5
 present any evidence that is relevant to the
determination of whether there is mitigation that is
sufficiently substantial to call for leniency. In
order for the trier of fact to make this determination,
the state may present any evidence that demonstrates
that the defendant should not be shown leniency.3

¶10 The provisions, taken together, evince a legislative

intent to permit the state to introduce relevant evidence

whether or not the defendant presents evidence during the

penalty phase. “Section 13-752(G) is framed broadly. . . .

Subject to overarching due process considerations, any evidence

that meets § 13-752(G)’s criterion is admissible, regardless of

whether the evidence was admissible at a prior stage of the

trial.” State v. Prince, 226 Ariz. 516, 526 ¶ 15, 250 P.3d

1145, 1155 (2011) (internal citation omitted). As we have

noted:

At the penalty phase, the jury must make “a reasoned,
individualized sentencing determination based on a death-
eligible defendant’s record, personal characteristics, and
the circumstances of his crime.” Kansas v. Marsh, 548
U.S. 163, 174 (2006) (citing Gregg v. Georgia, 428 U.S.
153, 189 (1976) (Stewart, J., plurality opinion)).
Construing § 13-752(G) as generally authorizing the
admission of evidence concerning the circumstances of the
crime and the aggravating factors thus preserves the

3
This opinion cites the current version of statutes unless
otherwise indicated. In 2012, the legislature amended § 13-
752(G) to read: “In order for the trier of fact to make this
determination, regardless of whether the defendant presents
evidence of mitigation, the state may present any evidence that
demonstrates that the defendant should not be shown leniency
including any evidence regarding the defendant’s character,
propensities, criminal record or other acts.” 2012 Ariz. Sess.
Laws ch. 207, § 3 (2nd Reg. Sess.). 
6
 entire statutory scheme’s constitutionality.

Prince, 226 Ariz. at 527 ¶ 20, 250 P.3d at 1156.

¶11 The trial court did not err by allowing the State to

introduce evidence of Nordstrom’s four felony murders or the

fact that he was on parole when he committed the murders. The

facts surrounding the two first degree murders, as well as

Nordstrom’s felony murders, were relevant to whether Nordstrom

deserved leniency. See State v. Pandeli, 215 Ariz. 514, 529

¶¶ 52-53, 161 P.3d 557, 571-72 (2007) (upholding admission of

evidence of a murder in a separate incident as relevant to

whether defendant deserved leniency); see also State v.

Armstrong, 218 Ariz. 451, 461 ¶ 38, 189 P.3d 378, 388 (2008).

¶12 The evidence, moreover, was not unduly prejudicial.

At the penalty phase, the State introduced photographs of the

victims and presented witnesses who described the crime scenes.

Testimony is not unduly prejudicial where “[t]he witnesses

simply provided details of the crime scene and described . . .

injuries.” Pandeli, at 529 ¶ 53, 161 P.3d at 571 (finding trial

court did not abuse its discretion by admitting evidence of

murder in separate incident).

¶13 Nordstrom also argues that admission of evidence about

the felony murders violated due process, contending that we have

held that “[e]vidence presented for rebuttal must be relevant to

the mitigation proffered.” State v. Boggs, 218 Ariz. 325, 339
7
¶ 65, 185 P.3d 111, 125 (2008); see also State v. Hampton, 213

Ariz. 167, 180 ¶ 51, 140 P.3d 950, 963 (2006). Although these

cases appropriately limit the scope of evidence that the state

may present to rebut mitigation presented by the defense,

neither their holdings nor the due process clause preclude the

state from offering evidence of the circumstances of the crime

when the defendant does not present any mitigation.

¶14 Nordstrom also contends the trial court erred by

barring him from introducing trial transcripts from his 1998

trial to rebut the State’s penalty phase evidence. Nordstrom

characterized the transcripts as “innocence related evidence”

and did not proffer guilt phase evidence for other purposes.

¶15 The trial court determined that the transcripts were

evidence of residual doubt. “[A] defendant has no

constitutional right to present residual doubt evidence at

sentencing.” State v. Moore, 222 Ariz. 1, 20 ¶ 109, 213 P.3d

150, 169 (2009); see also State v. Harrod (Harrod III), 218

Ariz. 268, 281 ¶ 46, 183 P.3d 519, 532 (2008).

¶16 Nordstrom attempts to distinguish Moore and similar

cases by arguing that they involved situations in which the

defendant sought to introduce residual doubt evidence at the

penalty phase that had not been presented at the guilt phase.

He also notes that his “innocence related evidence” concerned

not only the Noel and Hardman murders, but also the four felony
8
murders and other related crimes. These distinctions are not

persuasive. This Court has observed that “there is no

constitutional requirement that the sentencing proceeding jury

revisit the prior guilty verdict by considering evidence of

‘residual doubt’.” State v. Ellison, 213 Ariz. 116, 136 ¶ 82,

140 P.3d 899, 919 (2006). This observation applies equally to

guilt phase evidence offered solely to show the defendant’s

innocence of the crimes for which the death penalty is sought

and related crimes for which the defendant was concurrently

convicted.

B. Prosecutorial Misconduct

¶17 Nordstrom argues that the trial court violated his

rights under the Double Jeopardy Clauses of the Fifth Amendment

to the United States Constitution and Article 2, Section 10 of

the Arizona Constitution by refusing to grant a pretrial

evidentiary hearing on his motion to dismiss on grounds of

prosecutorial misconduct. We review constitutional issues de

novo. Roque, 213 Ariz. at 217 ¶ 89, 141 P.3d at 392.

¶18 In 2006, Nordstrom moved to dismiss the indictment or,

alternatively, to preclude the death penalty, based on

prosecutorial misconduct discovered after the former prosecutor

died. The alleged misconduct principally concerned that

prosecutor’s failure to disclose information that Nordstrom

contends would have impeached testimony by David Nordstrom or
9
other witnesses. The State opposed the motion, disputing many

of Nordstrom’s allegations. The State also argued that

Nordstrom had already litigated some of the issues and that he

could raise others only in a Rule 32 petition for post-

conviction relief. The trial court ruled that it lacked

jurisdiction to consider the merits of Nordstrom’s arguments and

that the Double Jeopardy Clauses did not bar the resentencing.

¶19 The trial court did not have jurisdiction on remand to

consider Nordstrom’s attacks on the validity of his convictions.

This Court affirmed Nordstrom’s convictions on direct appeal in

Nordstrom I, later vacated only his death sentences, and

remanded the case solely for resentencing by a jury. See

Nordstrom II, 206 Ariz. at 248 ¶ 28, 77 P.3d at 46. The remand

order did not encompass consideration of guilt phase issues.

¶20 Nor did the resentencing violate double jeopardy. “A

capital defendant whose original sentence is vacated on appeal

can be resentenced to death so long as the defendant has not

been ‘acquitted’ of the death sentence.” State v. Ring (Ring

III), 204 Ariz. 534, 551 ¶ 40, 65 P.3d 915, 932 (2003).

¶21 Nordstrom relies on State v. Minnitt, 203 Ariz. 431,

55 P.3d 774 (2002), to argue that double jeopardy prevents him

from being resentenced to death because his convictions were

obtained by intentional prosecutorial misconduct. Minnitt,

however, is not apposite. In that case, we held that the Double
10
Jeopardy Clause barred a retrial of the guilt phase after the

state had intentionally used perjured testimony in a trial

ending with a hung jury. Id. at 440 ¶ 45, 55 P.3d at 783. In

contrast, Nordstrom did not face a retrial of the guilt phase,

and the record does not establish that the prosecution knowingly

used perjured testimony.

¶22 The trial court correctly ruled that Nordstrom would

need to seek relief under Rule 32 to pursue his claims that

prosecutorial misconduct discovered after his direct appeal

should invalidate his convictions. Cf. Nordstrom I, 200 Ariz.

at 255 ¶¶ 89-91, 25 P.3d at 743 (affirming trial court’s denial

of Rule 24.4 motion to vacate and noting that claims of newly

discovered impeachment evidence could be raised in Rule 32

proceeding). We of course do not address the merits of those

claims or whether any of them may be precluded under Rule 32.2.

C. Denial of Rule 24 Motion

¶23 Nordstrom argues that, after the jury determined he

should receive death sentences, the trial court erred by

declining to rule on his motion to vacate the judgment.

¶24 In September 2009, after the jury resentencing

verdicts, the trial court entered judgment and sentenced

Nordstrom to death. Nordstrom filed a Rule 24.2 motion to

vacate the judgment, arguing that evidence of prosecutorial

misconduct was “newly discovered material evidence” that
11
rendered his previous convictions invalid. The trial court

denied this motion, concluding that it was untimely.

¶25 Rule 24.2 provides:

Upon motion made no later than 60 days after the entry
of judgment and sentence but before the defendant’s
appeal, if any, is perfected, the court may vacate the
judgment on any of the following grounds:
(1) That it was without jurisdiction of the action;
(2) That newly discovered material facts exist, under
the standards of Rule 32.1; or
(3) That the conviction was obtained in violation of
the United States or Arizona Constitutions.

Ariz. R. Crim. P. 24.2(a) (2012); see also id. cmt. (“Rule 24.2

sets the time limit of 60 days for such motions; after that the

defendant may only petition for relief under Rule 32.”).

¶26 Judgment was entered on Nordstrom’s convictions in May

1998. We affirmed his convictions in Nordstrom I and later

vacated only the death sentences. When the trial court entered

a judgment resentencing Nordstrom in 2009, it did not enter new

judgments on the convictions, but only imposed new sentences.

Thus, the validity of the convictions was not before the trial

court in 2009, and Nordstrom’s Rule 24.2 motion to vacate was

untimely. See State v. Dann, 220 Ariz. 351, 360 ¶ 26, 207 P.3d

604, 613 (2009) (refusing to address on appeal from resentencing

whether defendant’s murder convictions were void after

convictions were affirmed).

D. Due Process Rights

¶27 Nordstrom makes several interrelated arguments that
12
the trial court erred by preventing him from challenging the

convictions that served as the (F)(1) aggravators for the two

murders. We review constitutional claims de novo. Roque, 213

Ariz. at 217 ¶ 89, 141 P.3d at 392. Exclusion of evidence is

reviewed for an abuse of discretion. Lehr, 227 Ariz. at 147

¶ 19, 254 P.3d at 386.

¶28 Nordstrom first argues that Rule 13.5(c) entitled him

to have a neutral magistrate adjudicate the “legal sufficiency”

of the (F)(1) aggravators. Under Rule 13.5(c), a defendant is

entitled to require the state to establish probable cause for an

alleged aggravating factor before it is submitted to a jury.

Chronis v. Steinle, 220 Ariz. 559, 562 ¶¶ 15, 18, 208 P.3d 210,

213 (2009). Here, on remand, the trial court reviewed the

evidence and found probable cause to try Nordstrom on the (F)(1)

aggravators, noting that this Court had affirmed Nordstrom’s

premeditated murder convictions and the original findings of the

(F)(1) aggravators on direct appeal in Nordstrom I and later in

Nordstrom II. Thus, Rule 13.5 was satisfied.

¶29 Nordstrom also alleges that his underlying convictions

were constitutionally invalid because they were obtained by

prosecutorial misconduct, and therefore the (F)(1) aggravators

based on these convictions were also invalid. But when the case

was remanded for resentencing of the capital murder convictions,

Nordstrom was not entitled to collaterally attack the validity
13
of the convictions that were affirmed on direct appeal.

“[W]here . . . the conviction is valid on its face, the

defendant is precluded from attempting to undermine the validity

of the conviction by collateral attack.” State ex rel. Collins

v. Superior Court, 157 Ariz. 71, 75, 754 P.2d 1346, 1350 (1988);

see also State v. Gretzler (Gretzler I), 128 Ariz. 583, 585-86,

627 P.2d 1081, 1083-84 (1981) (prior convictions not void

because no violation of Boykin v. Alabama, 395 U.S. 238 (1969),

was apparent in acceptance of guilty pleas).

¶30 Nordstrom alternatively argues that the trial court

should have permitted him to rebut the State’s case during the

aggravation phase by allowing him to present evidence of his

alibi and prosecutorial misconduct (that is, the alleged non-

disclosure of impeachment material). This argument, however,

merely recasts his arguments that he should have been allowed,

on re-sentencing, to introduce residual doubt evidence.

¶31 Finally, Nordstrom argues that the trial court abused

its discretion by declining to strike the first panel of

prospective jurors after the court revealed to them that

Nordstrom had been convicted of four murders in addition to the

two for which the State was pursuing death sentences.

Nordstrom, however, does not identify how the jury was

prejudiced, given that the four felony murder convictions were

properly admitted as evidence in the penalty phase. Moreover,
14
to determine if the prospective jurors could be fair and

impartial, the trial judge needed to apprise them about the

facts of the case, which included Nordstrom’s convictions for

four murders in addition to the Hardman and Noel murders.

E. Contemporaneous Convictions

¶32 The (F)(1) aggravating circumstance exists when the

“defendant has 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. § 13-751(F)(1).

Nordstrom argues that this Court should strike the (F)(1)

aggravating circumstance for the Hardman and Noel murders

because the legislature did not intend that contemporaneous

convictions would establish this aggravator. We review matters

of statutory interpretation de novo. Roque, 213 Ariz. at 217

¶ 89, 141 P.3d at 392.

¶33 In 2003, the legislature amended A.R.S. § 13-751(F)(2)

to explicitly allow “offenses committed on the same occasion” or

offenses “not committed on the same occasion, but consolidated

for trial with the homicide” to establish the (F)(2) aggravating

circumstance. 2003 Ariz. Sess. Laws, ch. 255, § 1 (1st Reg.

Sess.) The legislature did not similarly amend A.R.S. § 13-

751(F)(1). Nordstrom infers that the legislature therefore

intended that contemporaneous convictions could not establish

the (F)(1) aggravating circumstance.
15
¶34 We disagree. “As long as the prior conviction is

entered before the sentencing hearing, the conviction may

support the (F)(1) aggravator even if it is committed before,

contemporaneously with, or after the capital homicide.” State

v. Tucker, 215 Ariz. 298, 320 ¶ 98, 160 P.3d 177, 199 (2007);

see also State v. Gretzler (Gretzler II), 135 Ariz. 42, 57 n.2,

659 P.2d 1, 16 n.2 (1983). Relying in part on the (F)(1)

aggravating circumstance, we previously upheld six death

sentences for Nordstrom’s co-participant in the Smoke Shop and

Union Hall murders. Jones, 197 Ariz. at 314 ¶ 82, 4 P.3d at

369. Although the six murders did not occur in one incident, we

concluded that “because each set of murders provides a

sufficient basis for finding the factor as to the other set of

murders, we find the F.1 factor proven beyond a reasonable

doubt.” Id. at 311 ¶ 63, 4 P.3d at 366. Similar reasoning

applies here.

¶35 Although the legislature amended the (F)(2) aggravator

in 2003 to explicitly include contemporaneous convictions, the

amendment does not reflect an intent to exclude contemporaneous

convictions from serving as an (F)(1) aggravator. Instead, the

2003 amendment evidently was intended to displace our ruling in

State v. Rutledge, 206 Ariz. 172, 175-78 ¶¶ 15–25 & n.3, 76 P.3d

443, 446–49 & n.3 (2003), which held that crimes occurring

during the same course of events as the murder could not serve
16
as (F)(2) qualifying serious offenses. The legislature did not

need to similarly amend (F)(1) because this Court had previously

approved the use of concurrent convictions to establish the

(F)(1) aggravator. See Jones, 197 Ariz. at 310-11 ¶¶ 60-63, 4

P.3d at 365-66.

F. Rule 20 Motion

¶36 Nordstrom argues that the trial court erroneously

denied his Rule 20 motion for judgment of acquittal after the

State failed to present evidence that life imprisonment or death

were imposable sentences for the murders of Hardman and Noel.

The trial court instructed the jury that these murders were

subject to such penalties. Nordstrom contends that the judge

erroneously relieved the State of its duty to prove every

element of the (F)(1) aggravator. The trial court’s denial of a

Rule 20 motion is reviewed de novo. State v. West, 226 Ariz.

559, 562 ¶ 15, 250 P.3d 1188, 1191 (2011).

¶37 The statutory sentencing range for crimes is a matter

of law rather than fact and does not require a jury finding.

See State v. Moody, 208 Ariz. 424, 470 ¶ 216, 94 P.3d 1119, 1165

(2004). The State was not obligated to present testimony or

other evidence proving matters of law such as statutory

sentencing ranges. Thus, the court appropriately instructed the

jury that Nordstrom’s convictions for premeditated murder were

punishable by sentences of life imprisonment or death.
17
 G. Individualized Sentencing

¶38 Nordstrom argues that he was denied his right to an

individualized sentencing because the trial court did not allow

him to present any of the guilt phase evidence, including the

trial transcripts consisting of alibi and innocence-related

evidence, to the new sentencing jury. We review constitutional

claims de novo. Roque, 213 Ariz. at 217 ¶ 89, 141 P.3d at 392.

¶39 In challenging the exclusion of evidence from the

aggravation and penalty phases, Nordstrom does not identify any

guilt phase evidence other than the residual doubt evidence. As

discussed above, the trial court properly precluded Nordstrom

from presenting guilt phase evidence to show residual doubt.

“During the aggravation and penalty phase, a jury may not

revisit its initial guilty verdict. The only issue at the

aggravation phase is whether any aggravating circumstances have

been proved; the only issue during the penalty phase is whether

death is the appropriate sentence.” Anderson, 210 Ariz. at 348

¶ 86, 111 P.3d at 390.

H. Victim Photographs

¶40 Nordstrom argues that the trial court abused its

discretion in allowing the State to introduce photographs of the

crime scenes showing the victims’ bodies. He claims the

photographs were irrelevant because he did not present

mitigation. Nordstrom also claims they were unduly prejudicial
18
because they served only to inflame the jurors. We review the

admissibility of evidence for an abuse of discretion. See State

v. Spreitz, 190 Ariz. 129, 141, 945 P.2d 1260, 1271 (1997).

¶41 Photographs of the crime scenes showing the victims’

bodies were relevant to show the circumstances of the two

capital murders. As explained above, supra ¶ 12, the State was

entitled to present evidence regarding those circumstances

during the penalty phase even though Nordstrom chose not to

present mitigation evidence. Nor does the record show that the

photographs were offered only to inflame the jury or were

otherwise unduly prejudicial. The photographs merely described

the layout of each crime scene and identified the victims.

I. Independent Review

¶42 Because Nordstrom committed the murders before August

1, 2002, we must independently review his death sentences. See

A.R.S. § 13-755(A).

1. Aggravating Circumstances

¶43 The State proved the (F)(1) aggravator beyond a

reasonable doubt for each murder. Witnesses testified that

Nordstrom was convicted at his original trial of murdering

Hardman and Noel, and the State also introduced copies of the

jury verdicts. Each conviction was punishable by a sentence of

life imprisonment or death, and each established the (F)(1)

aggravator for the other premeditated murder.
19
 2. Mitigating Circumstances

¶44 Nordstrom presented no mitigation evidence and did not

allocute. Although mitigation evidence may be found anywhere in

the record, there is little evidence before this Court to

suggest that Nordstrom is entitled to leniency.

¶45 When Nordstrom was originally sentenced to death in

1998, the trial judge found that he had not proved any statutory

mitigating circumstances, but had proved two non-statutory

mitigators: “employment history” and “caring family and parent

relationships.” The trial court also noted that Nordstrom had

no prior convictions for serious offenses, but did not find this

mitigating given Nordstrom’s convictions in this case for

multiple murders on different occasions. Nordstrom I, 200 Ariz.

at 256-57 ¶ 97, 25 P.3d at 744-45.

¶46 The State argues that we should not consider

mitigation evidence that was not introduced at the 2009

resentencing. “In our independent review of aggravating

circumstances, we have declined to consider evidence that the

sentencing jury did not hear,” Lehr, 227 Ariz. at 155 ¶ 80, 254

P.3d at 394, and the State argues that we should treat

mitigating evidence similarly. Even if we consider the evidence

from the 1998 sentencing, however, we find it is not

significantly mitigating.

20
 3. Propriety of Death Sentence

¶47 In reviewing the propriety of the death sentence, we

consider the quality and the strength, not simply the number, of

aggravating and mitigating factors. State v. Greene, 192 Ariz.

431, 443 ¶ 60, 967 P.2d 106, 118 (1998). Nordstrom murdered

Hardman in a robbery in which he killed another person, and he

was eligible for a death sentence because he was previously

convicted of the premeditated murder of Noel in a different

robbery. He was on parole when he committed the murders, and he

presented no mitigation at the resentencing. Under the

circumstances, “the mitigation is not sufficiently substantial

to warrant leniency.” A.R.S. § 13-755(B). The same conclusion

applies with respect to the murder of Noel, which Nordstrom

committed in a robbery in which three others were murdered.

J. Preservation of Issues for Federal Review

¶48 To avoid preclusion, Nordstrom lists twenty additional

constitutional claims that he states have been rejected in

previous decisions. The appendix lists these claims and the

decisions Nordstrom identifies as rejecting them.

CONCLUSION

¶49 We affirm Nordstrom’s sentences.

__________________________________
Scott Bales, Vice Chief Justice

21
CONCURRING:

__________________________________
Rebecca White Berch, Chief Justice

__________________________________
A. John Pelander, Justice

__________________________________
Robert M. Brutinel, Justice

__________________________________
Maurice Portley, Judge*

* Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable Maurice Portley, Judge of the Arizona Court of
Appeals, Division One, was designated to sit in this matter.

22
 APPENDIX

Nordstrom raises twenty issues to preserve them for

federal review. This Appendix lists verbatim his claims and the

decisions he identifies as rejecting them.

1. The prosecutor’s discretion to seek the death penalty
has no standards and therefore violates the Eighth and
Fourteenth Amendments to the United States Constitution and
Article 2, Sections 1, 4, and 15 of the Arizona
Constitution. See State v. Cromwell, 211 Ariz. 181, 192,
119 P.3d 449, 459 (2005).

2. Arizona’s death penalty is applied so as to
discriminate against poor, young, and male defendants whose
victims have been Caucasian, in violation of the Eighth and
Fourteenth Amendments and Article 2, Sections 1, 4, and 13
of the Arizona Constitution. See State v. West, 176 Ariz.
432, 455, 862 P.2d 192, 215 (1993).

3. The death penalty is cruel and unusual under any
circumstances and violates the Eighth and Fourteenth
Amendments to the United States Constitution and Article 2,
Section 15 of the Arizona Constitution. See State v.
Harrod, 200 Ariz. 309, 26 P.3d 492 (2001).

4. Execution by lethal injection is per se cruel and
unusual punishment. State v. Van Adams, 194 Ariz. 408,
422, 984 P.2d 16, 30 (1999); State v. Hinchey, 161 Ariz.
307, 315, 890 P.2d 602, 610 (1996).

5. Arizona’s death penalty statute unconstitutionally
requires defendants to prove that their lives should be
spared. State v. Fulminante, 161 Ariz. 237, 258, 779 P.2d
602, 623 (1988).

6. Arizona’s death penalty statute unconstitutionally
requires imposition of the death penalty whenever at least
one aggravating circumstance and no mitigating
circumstances exist. State v. Miles, 186 Ariz. 10, 19, 918
P.2d 1028, 1037 (1996).

7. The statute unconstitutionally fails to require the
cumulative consideration of multiple mitigating factors or
require specific findings to be made as to each factor.
23
 State v. Gulbrandson, 184 Ariz. 46, 69, 906 P.2d 579, 602
(1995).

8. The death penalty is unconstitutional because it
permits jurors unfettered discretion to impose death
without adequate guidelines. State v. Johnson, 212 Ariz.
425, 133 P.3d 735, 750 (2006).

9. The statute is unconstitutional because there are not
statutory standards for weighing. State v. Atwood, 171
Ariz. 576, 645-46, 832 P.2d 693, 662-63 (1992).

10. The statute insufficiently channels the sentencer’s
discretion in imposing the death sentence. State v.
Greenway, 170 Ariz. 151, 164, 823 P.2d 22, 31 (1991).

11. Appellant claims that a proportionality review of a
defendant’s death sentence is constitutionally required.
State v. Gulbrandson, 184 Ariz. 46, 73, 906 P.2d 579, 606
(1995).

12. Appellant claims that the State’s failure to allege an
element of a charged offense, the aggravating factors that
made the defendant death eligible, is a fundamental defect
that renders the indictment constitutionally defective.
McKaney v. Foreman, 209 Ariz. 268, 271, 100 P.3d 18, 21
(2004).

13. Appellant asserts that the application of the new
death penalty statute passed in response to Ring v.
Arizona, 536 U.S. 584 (2002), violates a defendant’s right
against ex post facto application of new laws. State v.
Ring, 204 Ariz. 534, 547, 65 P.3d 915, 928 (2003).

14. Subjecting Appellant to a new trial on the issues of
aggravation and punishment before a new jury violated the
double jeopardy clause of the Fifth Amendment. State v
Ring, 204 Ariz. 534, 547, 65 P.3d 915, 928 (2003).

15. Arizona’s statutory scheme for considering mitigating
evidence is unconstitutional because it limits full
consideration of that evidence. State v. Mata, 215 Ariz.
233, 242, 609 P.3d 48, 57 (1980).

16. The absence of notice of aggravating factors prior to
Appellant’s guilt phase trial violates the Sixth, Eighth,
and Fourteenth Amendments. State v. Anderson, 210 Ariz.
24
 327, 347, 111 P.3d 369, 389 (2005).

17. The reasonable doubt jury instruction at the
aggravation phase lowered the 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, 205 Ariz. 557, 575, 74 P.3d 231, 249 (2003).

18. Subjecting Appellant to a new trial on the issues of
aggravation and punishment before a new jury violated the
due process clause of the Fourteenth Amendment. State v.
Ellison, 213 Ariz. 116, 137, 140 P.3d 899, 920 (2006).

19. Requiring the jury to unanimously determine whether
the mitigating factors were sufficiently substantial to
call for leniency violated the Eighth Amendment. State v.
Ellison, 213 Ariz. 116, 137, 140 P.3d 899, 920 (2006).

20. Arizona’s death statute creates an unconstitutional
presumption of death and places an unconstitutional burden
on Appellant to prove that mitigation is sufficiently
substantial to call for leniency. State v. Glassel, 211
Ariz. 33, 52, 116 P.3d 1193, 1212 (2005).

25