State v. Isiah Patterson

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0342-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2006-114651-001 DT
ISIAH PATTERSON, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Janet E. Barton, Judge

AFFIRMED
________________________________________________________________

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

STEPHEN M. JOHNSON Phoenix
By Stephen M. Johnson
Attorney for Isiah Patterson
________________________________________________________________

B R U T I N E L, Justice

¶1 In 2009, a jury found Isiah Patterson guilty of the

first degree murder of Consquelo Barker, and he was sentenced to

death. We have jurisdiction over this automatic appeal under

Article 6, Section 5(3) of the Arizona Constitution and A.R.S.

1 
§ 13-4031 (2010).1

I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 At approximately 1:30 a.m. on March 17, 2006,

Patterson and Consquelo, his girlfriend, were in his Mesa

apartment with their three-year-old son when they began

fighting.2 A downstairs neighbor heard loud crashes and things

rolling on the floor. After about ten minutes, the noises

stopped. After another ten minutes or so had passed, Consquelo

ran from the apartment, naked and screaming for help.

¶3 Patterson chased Consquelo through the outdoor common

areas of the apartment complex. He caught her at a sand

volleyball pit, sat over her, and stabbed her thirteen times in

the face, torso, and arm. The wounds perforated her lungs,

diaphragm and spleen, and fractured her arm. Patterson

continued stabbing Consquelo until a neighbor, awakened by her

screams, yelled for him to stop. Consquelo then stumbled from

the volleyball pit, asking for help before collapsing beneath a

bush, where she died. Patterson walked back toward his

apartment, telling neighbors, “That’s what happens when you try

to turn a whore into a housewife.”

¶4 Patterson was arrested and indicted for Consquelo’s

1
This opinion cites the current version of statutes, unless
otherwise noted.
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 
murder. The State sought the death penalty. Finding Patterson

guilty and that the crime was especially cruel, see A.R.S. § 13-

751(F)(6), the jury determined he should be sentenced to death.

II. ISSUES ON APPEAL

A. Voir Dire Questioning

¶5 Patterson contends the trial court restricted his

questioning of prospective jurors contrary to Morgan v.

Illinois, 504 U.S. 719 (1992). Morgan held that due process

requires a trial court to allow inquiry into whether a potential

juror would automatically impose the death penalty. Id. at 733.3

Patterson challenges the trial court’s refusal to let him

question potential jurors about specific aggravating and

mitigating factors and its requirement that he mention the

mitigation phase of the trial in a hypothetical question he

asked jurors. We review a trial court’s ruling on voir dire for

an abuse of discretion. See State v. Glassel, 211 Ariz. 33, 45

¶ 36, 116 P.3d 1193, 1205 (2005). Patterson is not entitled to

relief on these claims.

3
Although Patterson purports to base this and all his other
constitutional claims on both the federal and the Arizona
constitutions, his arguments relate solely to the federal
constitution. Because he has not separately argued any state
constitutional claims, we consider only his federal claims. See
State v. Dean, 206 Ariz. 158, 161 ¶ 8 n.1, 76 P.3d 429, 432 n.1
(2003).

3 
 1. Specific Aggravator and Mitigator Questions

¶6 Before trial, the State moved to preclude Patterson

from asking prospective jurors what factors they would find

aggravating or mitigating. Patterson did not oppose the motion.

Accordingly, we review this issue only for fundamental error.

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

607 (2005).

¶7 During voir dire, Patterson asked one juror what kind

of circumstances she would find mitigating. The court sustained

the State’s objection.

¶8 The trial court did not err by granting the State’s

motion or sustaining its objection. Defendants are not entitled

to “ask potential jurors what types of evidence they will

consider to be mitigating.” Glassel, 211 Ariz. at 47 ¶ 44, 116

P.3d at 1207; see also State v. Johnson, 212 Ariz. 425, 434

¶ 31, 133 P.3d 735, 744 (2006) (noting that “[e]xtant authority

unanimously rejects” the argument that a defendant is entitled

to voir dire jury panel about specific mitigating factors).

Similarly, neither the state nor the defense is entitled to ask

jurors about specific aggravators. See State v. Smith, 215

Ariz. 221, 231 ¶ 42, 159 P.3d 531, 541 (2007).

¶9 This restriction did not prevent Patterson from

sufficiently investigating the beliefs of potential jurors.

Although precluding him from questioning on specific aggravating
4 
and mitigating circumstances, the trial judge allowed Patterson

to probe jurors “on their basic beliefs, views, biases and

prejudices concerning the death penalty, as well as their

general views concerning aggravating and mitigating

circumstances that must be considered in determining whether to

impose a sentence of life or death.” As the trial court

suggested, a defendant may legitimately ask what mitigation

means to that juror. He could also ask whether the juror can

imagine a situation where the totality of a defendant’s

character, including things he has endured or accomplished,

could warrant mercy despite his crimes. See, e.g., State v.

Velazquez, 216 Ariz. 300, 307 ¶ 20, 166 P.3d 91, 98 (2007);

Glassel, 211 Ariz. at 46 ¶ 41, 116 P.3d at 1206 (allowing

defendant to ask potential jurors what “sufficiently substantial

to call for leniency” meant to them). And the record here shows

that Patterson did, in fact, ask these types of questions.

2. Hypothetical Question

¶10 The trial court also did not abuse its discretion by

requiring Patterson to mention mitigation in a hypothetical

question he asked. During the first voir dire session,

Patterson’s counsel asked four jurors whether they thought death

is an appropriate sentence if the jury finds a defendant guilty

of premeditated first degree murder and also finds at least one

aggravator. They agreed that it is. The trial court
5 
interjected to clarify that a fair and impartial juror is one

who, even after finding guilt and aggravation, would be able to

begin the sentencing phase without leaning toward or against the

death penalty.

¶11 When questioning concluded, Patterson moved to strike

three of the jurors who had been questioned before the trial

court’s clarification.4 The State objected, arguing that

Patterson’s counsel had intentionally “bait[ed]” them into

suggesting they would not consider mitigation. It then

requested that, prospectively, if counsel used this

hypothetical, she be required to mention mitigation. The trial

court agreed.

¶12 On appeal, Patterson notes that defendants are

entitled to impartial juries, but he has not explained how the

trial court erred in its ruling. Error does not result from the

court’s correctly instructing prospective jurors on the law.

See State v. Kreutzer, 928 S.W.2d 854, 864-65 (Mo. 1996)

(finding no error when court required counsel to conform

questions “to the dictates of existing law” and “allowed

sufficient latitude in determining whether each venireperson

could fairly and impartially follow the court’s instructions”);

see also State v. Riggins, 111 Ariz. 281, 285, 528 P.2d 625, 629

4
None of these jurors was ultimately chosen for the jury
panel.

6 
(1974) (noting that, under the Arizona Rules of Criminal

Procedure, trial court has discretion to forbid confusing voir

dire questions).

¶13 Here, the trial court clarified that the appropriate

inquiry was whether a juror could be impartial at the beginning

of the penalty phase. It did not curtail questions tending to

reveal a prospective juror’s predisposition to vote for death

after finding guilt and an aggravator, but before hearing

mitigation. Because the court interfered only minimally with

Patterson’s voir dire questioning in order to avoid juror

confusion and allowed him wide latitude to discover death-biased

jurors, it did not abuse its discretion. See Kreutzer, 928

S.W.2d at 864-65.

B. Juror Strike

¶14 Patterson next argues that the trial court abused its

discretion by striking for cause a juror who worked for the

Maricopa County Public Defender’s Office and had expressed

strong opposition to the death penalty. We review for an abuse

of discretion, giving great deference to the trial court, which

was in the best position to personally observe the juror.

Glassel, 211 Ariz. at 47 ¶ 46, 116 P.3d at 1207.

¶15 Juror Twelve stated in her juror questionnaire that

she was an “Initial Services Specialist” for the Maricopa County

Public Defender’s Office, who “conduct[ed] initial interviews”
7 
and “jail visits.” She knew that Patterson’s lead attorney had

once worked for the Public Defender’s Office and also knew two

other members of Patterson’s defense team. Juror Twelve further

reported that “it would be hard for [her]” to participate in a

capital case because she had “worked close to death penalty

cases in [her] office,” she did not believe in the death

penalty, and she has always held anti-death penalty views. She

marked a box stating that her “position against the death

penalty [was] so strong that [she] could not vote for the death

penalty under any circumstances” and added that she did not

believe she has “the right to be part of taking someone’s life.”

¶16 During voir dire, Juror Twelve initially reiterated

these positions, but on further questioning by the State, she

responded that she was able to be fair and impartial and that

she thought she would be able to serve on this jury. She

further stated that she would be able to sentence someone to

death if she felt that it was the appropriate sentence.

¶17 The State moved to strike Juror Twelve, pointing out

that in her questionnaire, she had “repeatedly and clearly

pointed out her absolute objection” to the death penalty and

“indicated she cannot follow the law.” Yet, the State noted,

during questioning she provided answers “completely different

and contrary” to those in her questionnaire. Over Patterson’s

objection, the trial court struck Juror Twelve, explaining:
8 
 I have concerns, as I said before, over that juror’s
veracity. I have the ability to observe her here,
to review the question[naire]. This is not a
situation where this juror was wishy-washy in her
questionnaire as to what she could or could not do,
nor is this a situation where she was rehabilitated.
This is a situation where this juror, who works for
the Public Defender’s office and says she has worked
on death-penalty cases, totally flip-flopped her
answers.

¶18 The trial court did not abuse its discretion.

Although a juror may not be excluded merely for voicing

objection to the death penalty, Witherspoon v. Illinois, 391

U.S. 510, 520 (1968), the trial court is entitled to remove

potential jurors whose views and biases would interfere with the

performance of their duties, Glassel, 211 Ariz. at 47-48 ¶ 47,

116 P.3d at 1207-08. “[E]ven if a juror is sincere in his

promises to uphold the law, a judge may still reasonably find a

juror’s equivocation ‘about whether he would take his personal

biases in the jury room’ sufficient to substantially impair his

duties as a juror, allowing a strike for cause.” State v.

Ellison, 213 Ariz. 116, 137 ¶ 89, 140 P.3d 899, 920 (2006)

(quoting Glassel, 211 Ariz. at 48 ¶¶ 49-50, 116 P.3d at 1208).

C. Denial of Mistrial

¶19 Patterson maintains that the trial court erred by

denying his request for a mistrial based on prosecutorial

misconduct. He contends that the prosecutor’s unprofessional

behavior, combined with the State’s failure to timely disclose a
9 
PowerPoint presentation, which itself contained a misstatement

of law, amounted to misconduct warranting a mistrial. We review

the trial court’s ruling for an abuse of discretion, see State

v. Lehr, 227 Ariz. 140, 150 ¶ 43, 254 P.3d 379, 389 (2011), and

will not reverse unless misconduct occurred and there is a

reasonable likelihood it could have affected the jury’s verdict

and denied Patterson a fair trial, see State v. Prince, 226

Ariz. 516, 537 ¶ 84, 250 P.3d 1145, 1166 (2011).

¶20 Patterson contends that “[d]uring jury selection[,]

the defense was constantly pointing out” that the prosecutor had

“sighed inappropriately, smirked at the questions proposed by

the defense, and constantly called attention to [her]self by

head nodding, and other unprofessional conduct.” This conduct,

if it occurred, would certainly deserve disapprobation even if

it did not rise to the level of misconduct. But the record does

not support Patterson’s contention that the prosecutor’s

courtroom demeanor and behavior amounted to misconduct.

¶21 Patterson points to a single motion accusing the State

of unprofessionalism during voir dire. In denying this motion,

the trial court did not confirm that any of the alleged behavior

actually occurred.5 And even if it did, Patterson has not shown

5
The record does suggest that some jurors might have
perceived the prosecutor’s behavior as inappropriate at times.
On a jury question form, one juror asked the trial court to tell
10 
that it amounted to “persistent and pervasive misconduct” that

denied him a fair trial. Prince, 226 Ariz. at 539 ¶ 92, 250

P.3d at 1168 (considering cumulative effect of prosecutor’s

actions without first concluding any misconduct had occurred)

(internal quotation omitted).

¶22 We next consider Patterson’s claim that the State’s

belated disclosure of a PowerPoint presentation that misstated

the law amounted to prosecutorial misconduct. The State first

disclosed the presentation on the day of its guilt-phase closing

argument. Patterson moved to preclude the presentation.

Although displeased with the late disclosure, the trial court

denied Patterson’s request, while remaining open to specific

objections to the presentation’s contents. During the State’s

argument, Patterson objected to a slide explaining the law on

second degree murder.

¶23 During a break, Patterson moved for a mistrial based

on both the late disclosure and a diagram in one of the State’s

slides.6 The trial court denied the motion, but reconsidered

the prosecutor to stop rolling her eyes and talking during
testimony, describing the conduct as “distracting” and
“unprofessional.” The juror appears to have concluded that,
rather than prejudicing Patterson, the prosecutor’s behavior
reflected poorly on the State.
6
Although Patterson recounts his objection to this slide, he
makes no argument based on it. And, in any event, we would
decline to address any such argument because Patterson has not
11 
Patterson’s previous objection to the State’s description of

second degree murder, noting that the prosecutor had incorrectly

stated that to find Patterson guilty of second degree murder,

the jury would “have to find [the murder] was the instant result

of sudden quarrel or heat of passion.” The court instructed the

prosecutor to “straighten[] [it] out in front of the jury.”

Upon resuming its argument, the State cured the misstatement,

explaining that the distinction between first and second degree

murder is premeditation. Patterson did not object to the

State’s revised statement of the law.

¶24 We find no abuse of discretion. The choice of a

sanction for late disclosure is a matter within the discretion

of a trial court, and we will not reverse its ruling absent a

showing of prejudice. See State v. Rienhardt, 190 Ariz. 579,

586, 951 P.2d 454, 461 (1997). Patterson has not explained how

the State’s late disclosure prejudiced him, and no prejudice is

evident from the record.

¶25 Similarly, the State’s misstatement of law in its

preserved the slide as part of the record. See State v.
Herrera, 174 Ariz. 387, 396, 850 P.2d 100, 109 (1993) (declining
to address trial court’s exclusion of hearsay evidence when
defendant did not offer it into evidence and no copy of it made
part of the record); see also State v. Hargrave, 225 Ariz. 1, 16
¶ 61, 234 P.3d 569, 584 (2010) (stating that appellate court
needs a sufficient record “to allow adequate consideration of
the errors assigned”) (internal quotation omitted).

12 
argument and on the slide did not require a mistrial. The slide

was not admitted into evidence. Although the prosecutor

misstated the law, it corrected the misstatement. And the trial

court properly defined second degree murder in its jury

instructions. These actions cured any error resulting from the

prosecutor’s initial misstatement. See Prince, 226 Ariz. at 538

¶¶ 89-90, 250 P.3d at 1167 (concluding that jury instructions

and prosecutor’s correction of his own statements cured

misstatements of law).

D. Denial of Manslaughter Instruction

¶26 Patterson contends that the trial court abused its

discretion by denying his requested jury instruction on the

lesser included offense of manslaughter. See State v. Wall, 212

Ariz. 1, 3 ¶ 12, 126 P.3d 148, 150 (2006) (reviewing denial of

lesser included offense instruction for abuse of discretion).

He contends that evidence that he and Consquelo fought in the

apartment supported such an instruction. See A.R.S. § 13-

1103(A)(2) (defining manslaughter as “[c]ommitting second degree

murder . . . upon a sudden quarrel or heat of passion resulting

from adequate provocation by the victim”).

¶27 The trial court correctly rejected Patterson’s request

for a manslaughter instruction because the evidence did not

support one. See State v. Gomez, 211 Ariz. 494, 501 ¶ 32, 123

P.3d 1131, 1138 (2005) (finding no error in refusing
13 
manslaughter instruction when defendant presented no evidence of

adequate provocation for killing). Testimony reflected that any

mutual combat, if it occurred at all, ended at least ten minutes

before Consquelo fled the apartment. No reasonable juror could

find that the unarmed Consquelo had done anything constituting

“adequate provocation” for Patterson to chase her from the

apartment, run her down, and stab her to death.

E. Inclusion of Dangerousness Allegation in Guilt-Phase Verdict
Forms and Jury Instructions

¶28 Patterson argues, and the State concedes, that the

trial court erred by instructing the jury at the guilt phase on

the State’s allegation of dangerousness and by including a

finding on this issue in the verdict forms. We conclude that

the error was harmless.

¶29 When the State alleges a non-capital sentencing

aggravator such as dangerousness, see A.R.S. § 13-704, the

aggravator should not be mentioned in jury instructions or

otherwise during the guilt phase of the trial. Ariz. R. Crim.

P. 19.1(b). The non-capital sentencing aggravator should be

tried only if a guilty verdict is returned unless the defendant

has admitted the allegation. Id. Ariz. R. Crim. P. 19.1(b)(2).

¶30 Contrary to Rule 19.1(b)(1), the trial court included

the dangerousness allegation in its guilt-phase verdict forms

and instructed the jury that a dangerous offense is one that

14 
“involved the discharge, use or threatening exhibition of a

‘deadly weapon’ or ‘dangerous instrument’ or the ‘intentional’

or ‘knowing’ infliction of ‘serious physical injury’ upon

another.” It also instructed the jury on the definitions of the

terms “deadly weapon,” “dangerous instrument,” “intent,”

“knowingly,” and “serious physical injury.”

¶31 This error was undoubtedly harmless. Patterson never

disputed that he killed Consquelo with a butcher knife, which

any reasonable jury would find to be a dangerous instrument. As

the State correctly noted, the evidence of dangerousness was the

same as the evidence of the underlying murder. The jury was

instructed not to decide dangerousness unless it first found

Patterson guilty of first degree murder. Accordingly, the

dangerousness finding was implicit in the guilty verdict and,

under these circumstances, failing to bifurcate the trial could

not have influenced the verdict.

F. Exclusion of Defense Witnesses During Aggravation Phase

¶32 Patterson contends that the trial court abused its

discretion by excluding defense mitigation witnesses from the

courtroom during the aggravation phase of trial. A trial court

must, at the request of a party, “exclude prospective witnesses

from the courtroom during opening statements and the testimony

of other witnesses.” Ariz. R. Crim. P. 9.3(a). This rule

applies during the aggravation and penalty phases, and the trial
15 
court did not err in granting the State’s motion to exclude

prospective witnesses under Rule 9.3. See id. cmt. (“Section

(a) extends the language of the 1956 Arizona Rules of Criminal

Procedure . . . to all proceedings.”)

G. Denial of Right to Allocute

¶33 Patterson claims that the trial court

unconstitutionally denied him the opportunity to allocute by not

asking him if he wanted to do so before the jury began

deliberating. The court discussed allocution with the parties

on the record before the penalty phase. A few days later, the

trial court asked defense counsel whether Patterson intended to

allocute, and counsel responded that she did not know. On the

last day of the penalty phase, the court again inquired whether

Patterson intended to allocute. Patterson declined through

counsel. After the jury had retired, however, the trial judge

spoke with Patterson to assure that he was knowingly and

willingly foregoing allocution. When the judge asked if he knew

he had the right to allocute and whether it was his decision not

to, Patterson responded equivocally, ultimately failing to

answer.

¶34 Although the better practice would have been to

confirm Patterson’s waiver of allocution before the jury

retired, we see no error on this record. The judge explained

allocution and Patterson was advised by his counsel on his
16 
decision. Patterson declined through counsel and, moreover,

never claimed — and does not now claim — that he wanted to

allocute.

H. Review of the Death Sentence

¶35 Because Patterson committed the murder after August 1,

2002, we review the jury’s aggravation finding and death

sentence for abuse of discretion. A.R.S. § 13-756(A).

¶36 Patterson does not dispute that his murder of

Consquelo was  especially cruel. “A murder is especially cruel

under A.R.S. § 13-751(F)(6) when the victim consciously suffered

physical pain or mental anguish during at least some portion of

the crime and the defendant knew or should have known that the

victim would suffer.” State v. Dixon, 226 Ariz. 545, 556 ¶ 61,

250 P.3d 1174, 1185 (2011) (internal quotation omitted).

¶37 The record supports a finding that Consquelo suffered

both mental anguish and physical pain during the crime. She

remained conscious while Patterson repeatedly stabbed her.

Although mortally wounded, she attempted to escape and seek

help. The jury did not abuse its discretion in finding the

(F)(6) “especially cruel” aggravating factor.

¶38 Patterson maintains, however, that the mitigation he

presented supports a life sentence. Patterson presented

evidence regarding thirteen mitigating circumstances: (1) his

mother’s lack of mental stability; (2) mental illness; (3)
17 
abandonment by his father at a young age; (4) strong family

support from his children and grandchildren; (5) consistent

employment despite poor education; (6) ongoing separation from

his siblings; (7) a family history of severe mental illness; (8)

childhood bed wetting; (9) his father forcing him to leave the

family home at age fourteen; (10) lack of education; (11) that

he loves and is loved by his family; (12) that he is the father

of many children; and (13) remorse. The State presented

rebuttal evidence with respect to much of Patterson’s mitigation

evidence and otherwise argued that it was not substantial.

¶39 Patterson chased down a helpless woman, sat over her,

and then brutally murdered her by stabbing her repeatedly. The

(F)(6) especially cruel aggravating circumstance was clearly

established. On this record, even if we assume that Patterson

met his burden of establishing the existence of mitigating

circumstances by a preponderance of the evidence, we cannot

conclude that the jury abused its discretion in determining that

the mitigating circumstances, taken as a whole, were not

sufficiently substantial to call for leniency. See State v.

Villalobos, 225 Ariz. 74, 85 ¶ 51, 235 P.3d 227, 238 (2010). We

therefore affirm the death sentence.

III. CONCLUSION

¶40 For the foregoing reasons, we affirm Patterson’s

18 
conviction and sentence.7

_____________________________________
Robert M. Brutinel, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Scott Bales, Vice Chief Justice

_____________________________________
A. John Pelander, Justice

APPENDIX

1. The death penalty is cruel and unusual under any
circumstances and violates the Eighth and Fourteenth
Amendments to the United States Constitution and
Article 2, § 15 of the Arizona Constitution. State v.
Harrod, 200 Ariz. 309, 320, 26 P.3d 492, 503 (2001).

2. The death penalty is imposed arbitrarily and
irrationally in Arizona in violation of the Eighth and
Fourteenth Amendments to the United States
Constitution and Article 2, § 15 of the Arizona

7
Patterson raises twenty-two issues to avoid preclusion on
federal review. His statements of those issues and the cases he
cites as rejecting his contentions are presented verbatim in the
Appendix. Some of these contentions, however, do not appear to
apply to Patterson; we have included footnotes denoting which
are inapplicable.

19 
 Constitution, as well as Patterson’s right to due
process under the Fifth and Fourteenth Amendments to
the United States Constitution and Article 2, § 4 of
the Arizona Constitution. State v. Beaty, 158 Ariz.
232, 762 P.2d 519 (1988).

3. Application of the death penalty on the facts of this
case would constitute cruel and unusual punishment in
violation of the Eighth and Fourteenth Amendments to
the United States Constitution and Article 2 §§ 1, 4,
and 15 of the Arizona Constitution.

4. 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, §§ 1, 4, and 15 of the
Arizona Constitution. State v. Sansing, 200 Ariz.
347, 361, 26 P.3d 1118, 1132 (2001).

5. Aggravating factors under A.R.S. § 13-703(F) are
elements of capital murder and must be alleged in an
indictment and screened for probable cause. Arizona’s
failure to require this violates a defendant’s right
to due process and a fair trial under the Sixth and
Fourteenth Amendments to the United States
Constitution and Art. 2, §§ 4 and 24 of the Arizona
Constitution. McKaney v. Foreman, 209 Ariz. 268, 100
P.3d 18 (2004). Recently, although not mandating
aggravators to be screened for probable cause on
constitutional grounds, this Court found that
defendants had a right under the rules of criminal
procedure to have the aggravators screened for
probable cause. See Chronis v. Steinle, 220 Ariz.
559, 208 P.3d 210 (2009).8

6. The absence of proportionality review of the death
sentences by Arizona courts denies capital defendants
due process of law and equal protection and amounts to
cruel and unusual punishment in violation of the
Fifth, Eighth, and Fourteenth Amendments to the United
States Constitution and Article 2, § 15 of the Arizona
Constitution. Harrod, 200 Ariz. at 320, 26 P.3d at

8
This claim does not appear to apply to Patterson because
the record reflects he did receive a Chronis hearing.

20 
 503. Proportionality review serves to identify which
cases are “above the norm” of first degree murder thus
narrowing the class of defendants who are eligible for
the death penalty.

7. Arizona’s capital sentencing scheme is
unconstitutional because it does not require that the
State prove that the death penalty is appropriate.
Failure to require this proof violates the Fifth,
Eighth, and Fourteenth Amendments to the United States
Constitution and Article 2, § 15 of the Arizona
Constitution. State v. Ring, 200 Ariz. 267, 284, 25
P.3d 1139, 1156 (2001) (Ring I), rev’d on other
grounds by Ring II.

8. A.R.S. § 13-703 provides no objective standards to
guide the sentencer in weighing the aggravating and
mitigating circumstances and therefore violates the
Eighth and Fourteenth Amendments of the United States
Constitution and Article 2, § 15 of the Arizona
Constitution. State v. Pandeli, 200 Ariz. 365, 382,
26 P.3d 1136, 1153 (2001).

9. Arizona’s death penalty scheme is unconstitutional
because it does not require the sentencer to find
beyond a reasonable doubt that the aggravating
circumstances outweigh the accumulated mitigating
circumstances, in violation of the Fifth, Eighth, and
Fourteenth Amendments to the United States
Constitution and Article 2, §§ 4 and 15 of the Arizona
Constitution. State v. Poyson, 198 Ariz. 70, 83, 7
P.3d 79, 92 (2000).

10. A.R.S. § 13-703 does not sufficiently channel the
sentencer’s discretion. Aggravating circumstances
should narrow the class of persons eligible for the
death penalty and reasonably justify the imposition of
a harsher penalty. The broad scope of Arizona’s
aggravating factors encompasses nearly anyone involved
in a murder, in violation of the Eighth and Fourteenth
Amendments to the United States Constitution and
Article 2, § 15 of the Arizona Constitution. Pandeli,
200 Ariz. at 382, 26 P.3d at 1153.

21 
 11. Execution by lethal injection is cruel and unusual
punishment in violation of the Eighth and Fourteenth
Amendments to the United States Constitution and
Article 2, § 15 of the Arizona Constitution. State v.
Hinchey, 181 Ariz. 307, 315, 890 P.2d 602, 610 (1994).

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

13. Arizona’s death penalty unconstitutionally requires
imposition of the death penalty whenever at least one
aggravating circumstance and no mitigating
circumstances exist, in violation of the Eighth and
Fourteenth Amendments to the United States
Constitution and Aritcle 2, § 15 of the Arizona
Constitution. State v. Miles, 186 Ariz. 10, 19, 918
P.2d 1028, 1037 (1996).

14. A.R.S. § 13-703, (now 13-751, et. seq.)
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).

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

16. Death sentences have been applied arbitrarily and
irrationally and in a discriminatory manner against
impoverished males whose victims have been Caucasian.
State v. West, 176 Ariz. 432, 455, 862 P.2d 192, 215
(1993).9

9
Although the record suggests that Patterson was not well-
to-do at the time of the murder, neither the State nor Patterson
presented any evidence that he was actually impoverished.
Additionally, his victim was not Caucasian. This claim does not
appear to apply to Patterson.

22 
 17. Subjecting Appellant to a second trial on the issue of
aggravation and punishment before a new jury violates
the double jeopardy clause of the Fifth Amendment.
State v. Ring, 204 Ariz. 534, 550, 65 P.3d 915, 931
(2003) (Ring III).10

18. The reasonable doubt jury instruction at the
aggravation trial lowered the state’s burden of proof
and deprived Appellant of his right to a jury trial
and due process under the Sixth and Fourteenth
Amendments. State v. Dann, 205 Ariz. 557, 575-76, 74
P.3d 231, 249-50 (2003) (Dann I).

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

20. The introduction of victim impact evidence is improper
because a defendant does not receive pretrial notice
or an opportunity to confront and cross examine the
victim witness. Lynn v. Reinstein, 205 Ariz. 186,
191, 68 P.3d 412, 417 (2003).

21. The trial court improperly omitted penalty phase
instructions that the jury could consider mercy or
sympathy in evaluating the mitigation evidence and
determining whether to sentence the defendant to
death. State v. Carreon, 210 Ariz. 54, 70-71, 107
P.3d 900, 916-917 (2005).

22. The jury instruction requiring 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, 139, 140 P.3d 899, 922 (2006).

10
This case is not a Ring remand and the same jury found
guilt, aggravation, and imposed the death sentence. This claim
clearly does not apply to Patterson.

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