State of Arizona v. Eric Boyston

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0052-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2004-007442-001
ERIC BOYSTON, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable John R. Ditsworth, Judge
The Honorable Joseph C. Welty, Judge

AFFIRMED
________________________________________________________________

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

DAVID GOLDBERG ATTORNEY AT LAW Fort Collins, CO
By David Goldberg
Attorney for Eric Boyston
________________________________________________________________

P E L A N D E R, Justice

¶1 A jury found Eric Boyston guilty of three first degree

murders and one count each of attempted first and second degree

murder. He was sentenced to death for the murders and to prison

terms on the attempt convictions. We have jurisdiction over

this automatic appeal under Article 6, Section 5(3) of the

Arizona Constitution and A.R.S. § 13-4031.1

I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 On the evening of February 1, 2004, Boyston was

staying with his cousin, Shante.2 Boyston was unemployed and

living alternately with Shante and his grandmother, Mary

Boyston. He argued that night with Shante and another cousin,

Tonisha, about his living situation and was “very mad” that he

had to live with his grandmother. The next morning, Boyston’s

girlfriend, Alexandria Kelley, dropped him off at Mary’s

apartment. Boyston saw Tonisha there and told her, “I’m hurt.

I can’t believe you did me like this. You all going to regret

this.”

¶3 Alexandria returned to Mary’s apartment complex later

that day. While sitting in Alexandria’s car in a nearby parking

lot, Boyston received a phone call, argued with the caller, and,

after ending the call, told Alexandria to take him to meet the

caller. When she refused, Boyston said he should shoot her,

pulled out a revolver, and shot at her but missed. Alexandria

got out of the car and asked him “what was going on, what was

wrong with him. And he just told [her] that he was going to

1
We cite the current version of statutes that have not
materially changed since the events at issue.
2
The facts are presented in the light most favorable to
sustaining the jury’s verdicts. State v. Hardy, 230 Ariz. 281,
284 ¶ 2 n.2, 283 P.3d 12, 15 n.2 (2012).

2

kill [her].” She tried to run away, but Boyston pulled out a

different handgun and shot her in the chest, back, and side.

She survived but is paralyzed from the waist down.

¶4 Boyston then jogged to Mary’s apartment. Announcing

that it was “time to take care of everyone who did me wrong,”

Boyston entered and shot Mary’s son, Alexander Boyston, in the

arm. After Alexander came out of the apartment and fell face

down, Boyston fired two more shots into his back, killing him.

Boyston also shot Mary three times inside the apartment, once in

the side and twice in the back, killing her.

¶5 Boyston’s great-aunt, Shirley Jones, came out of her

nearby apartment unit and asked Boyston what he was doing. He

responded, “Oh, I better get you, too,” and then said, “You

mother f***ers crossed me too many times.” Boyston chased

Shirley inside her apartment and shot her in the back. She

eventually recovered from the gunshot wound.

¶6 After using his last bullet to shoot Shirley, Boyston

returned to Mary’s apartment and began fist fighting with

Timothy Wright, a family friend. Just outside the apartment,

Boyston took out a knife and stabbed Timothy nine times, one a

fatal chest wound. Boyston fled but was arrested later that

night.

¶7 Boyston was charged with three counts of first degree

murder and two counts of attempted first degree murder. A jury

3

returned guilty verdicts on the first degree murder counts and

on the charge of attempted first degree murder of Shirley. The

jury found him not guilty of attempted first degree murder of

Alexandria, but guilty of the lesser-included offense of

attempted second degree murder.

¶8 The State alleged the serious offense conviction and

multiple homicides aggravators, A.R.S. § 13-751(F)(2), (8), for

the murders of Mary, Alexander, and Timothy, and the especial

cruelty aggravator for the latter two, id. § 13-751(F)(6). The

jury found each of those aggravators and determined that Boyston

should be sentenced to death for each murder. The trial court

also sentenced Boyston to consecutive prison terms for the

attempted murder convictions.

II. ISSUES ON APPEAL

A. Mental retardation3

¶9 “Arizona law defines mental retardation as a condition

bearing three hallmarks: ‘[1] significantly subaverage general

intellectual functioning, existing concurrently with

[2] significant impairment in adaptive behavior, [3] where the

onset of the foregoing conditions occurred before the defendant

3
After Boyston’s trial, the legislature amended the
pertinent statute, A.R.S. § 13-753, changing “mental
retardation” to “intellectual disability.” See 2011 Ariz. Sess.
Laws, ch. 89, § 5 (1st Reg. Sess.). We use “mental retardation”
in this opinion because that is the term employed by the parties
and doctors in this case.

4

reached the age of eighteen.’” State v. Grell (Grell III), 231

Ariz. 153, 154-55 ¶ 5, 291 P.3d 350, 351-52 (2013) (alterations

in original) (quoting A.R.S. § 13-753(K)(3)). Under A.R.S.

§ 13-753(G), Boyston was required to prove all three aspects of

mental retardation by “clear and convincing evidence.”

¶10 Before trial, Boyston’s mitigation expert, Dr. Myla

Young, administered the Wechsler Adult Intelligence Scale III

(WAIS-III) and measured Boyston’s intelligence quotient (IQ) at

65. On Boyston’s motion, the superior court appointed Dr. D.J.

Gaughan as a mental retardation prescreening expert pursuant to

§ 13-753(B). Dr. Gaughan administered the WAIS-III and measured

Boyston’s IQ at 59. Because the prescreen IQ was 75 or lower,

the court, pursuant to § 13-753(D), appointed Dr. Denis Keyes as

Boyston’s expert and Dr. James Seward as the State’s expert.

¶11 Dr. Keyes administered the Reynolds Intelligence

Assessment Scales and measured Boyston’s IQ at 64, in the

“mentally defective range.” Dr. Keyes made no finding on

Boyston’s adaptive skills “due to [Boyston’s] fruitless attempts

to malinger.” Dr. Seward did not personally administer an IQ

test, but relied on other assessments and collateral information

to conclude that Boyston was “malingering intellectual deficit.”

Dr. Seward also determined that Boyston’s adaptive functioning

was not impaired and opined that he did not have mental

retardation.

5

¶12 After holding a two-day evidentiary hearing and

reviewing the parties’ memoranda, the superior court accepted as

credible Dr. Seward’s opinions on both points and expressly

determined that Boyston had “failed to satisfy his burden of

proving by clear and convincing evidence that he has significant

impairment in adaptive behavior with an onset prior to age 18.”

The court thus concluded that Boyston had not established mental

retardation.

¶13 In challenging that determination, Boyston argues the

superior court abused its discretion in three respects.

Specifically, Boyston contends: (1) the State’s mental

retardation expert, Dr. Seward, was not qualified under § 13-

753(K)(2); (2) Dr. Seward failed to use currently accepted

intellectual testing procedures, as required by § 13-753(E); and

(3) Boyston proved by clear and convincing evidence that he is

mentally retarded, and is thus ineligible for the death penalty

under Atkins v. Virginia, 536 U.S. 304 (2002), and § 13-753(H).

1. Qualifications of State’s expert

¶14 Boyston argues the superior court erred in admitting

the testimony of the State’s expert, Dr. Seward, because he did

not meet § 13-753(K)(2)’s requirements. This Court interprets

statutes de novo. State v. Arellano, 213 Ariz. 474, 477 ¶ 9,

143 P.3d 1015, 1018 (2006). “We review the decision to admit or

exclude [expert testimonial] evidence for abuse of discretion.”

6

State v. Grell (Grell II), 212 Ariz. 516, 528 ¶ 55, 135 P.3d

696, 708 (2006).

¶15 After a prescreening evaluation indicates a need for

further assessment of mental retardation, § 13-753(D) directs

the trial court to “appoint one expert in intellectual

disabilities nominated by the state and one expert in

intellectual disabilities nominated by the defendant.” An

“expert in intellectual disabilities” is defined as “a

psychologist or physician licensed pursuant to title 32, chapter

13, 17 or 19.1 with at least five years’ experience in the

testing or testing assessment, evaluation and diagnosis of

intellectual disabilities.” A.R.S. § 13-753(K)(2) (footnote

omitted).

¶16 Boyston does not contest that Dr. Seward was properly

licensed, but contends that he lacked the requisite experience.

The record, however, rebuts this contention:

[PROSECUTOR]: So during the time you have been in
Arizona, have you been doing testing and assessments
and diagnoses of retardation?

[DR. SEWARD]: Yes. It came up -- it would come
up occasionally with my employment in the county for
the Rule 11 process.

. . . .

[PROSECUTOR]: How long have you been doing
testing, testing/assessment, evaluation, diagnosis of
mental retardation?

[DR. SEWARD]: Well, on and off since I was
licensed in 1991.

7

. . . .

[DEFENSE COUNSEL]: So what you said on direct is,
that in your capacity as an appointed psychologist to
determine competency and even state of mind of an
accused at the time of the offense, you have, as part
of that evaluation, considered possible mental
retardation as an Axis II diagnosis. Is that what your
testimony is?

[DR. SEWARD]: That’s correct. Although more
competency than state of mind at the time of the
offense.

. . . .

[DEFENSE COUNSEL]: The only experience . . . you
have with evaluating children . . . with mental
retardation was when you were doing consulting work
with the St. Edmond’s home for children in 1991 [to
2002]?

[DR. SEWARD]: Correct.

¶17 Viewed in the light most favorable to upholding the

superior court’s ruling, the record supports a finding that Dr.

Seward had at least five years’ experience not only in testing,

but also in evaluation and diagnosis of intellectual

disabilities. See State v. Keener, 110 Ariz. 462, 465-66, 520

P.2d 510, 513-14 (1974) (“Whether a witness is qualified as an

expert witness rests in the sound discretion of the trial court,

and that decision will not be reviewed unless there is a showing

of abuse of discretion.”).

¶18 Boyston suggests that § 13-753(K)(2) requires not only

five years’ experience, but also regular — as opposed to

occasional — testing, evaluation, and diagnosis during the five-

8

year period. But the statute only requires “five years’

experience” and does not specify any additional requirements for

establishing a minimum level of expertise. Consistent with the

general standard for admissibility of expert testimony, we find

that the extent of Dr. Seward’s experience goes to the weight of

his testimony, not its admissibility. State v. Davolt, 207

Ariz. 191, 210 ¶ 70, 84 P.3d 456, 475 (2004); see also Ariz. R.

Evid. 702 (2009).4

¶19 Dr. Seward indicated that he had occasionally

performed testing, evaluation, and diagnoses of mental

retardation for at least fifteen years, and on average did so at

least once a week from 1991 to 2002. Although he acknowledged

that this was his first mental retardation evaluation in a

capital case, the statute does not require prior experience in

capital cases. Dr. Seward’s level of experience satisfies § 13-

753(K)(2).

2. Evaluation methods used by State’s expert

¶20 Boyston next argues the superior court erred in

admitting Dr. Seward’s testimony because he failed to use

currently accepted intellectual testing procedures. We

disagree.

4
We express no opinion on what procedural or substantive
effect, if any, current Evidence Rule 702, as amended effective
January 1, 2012, might have had on Dr. Seward’s qualifications
or permissible testimony.

9

¶21 Section 13-753(B) requires a prescreening expert “to

determine the defendant’s intelligence quotient using current

community, nationally and culturally accepted intelligence

testing procedures.” See State ex rel. Thomas v. Duncan, 222

Ariz. 448, 451 ¶ 17, 216 P.3d 1194, 1197 (App. 2009) (holding

that § 13-753(B) requires a prescreening expert to personally

conduct an IQ test and not solely rely on one previously

administered). In contrast, later-appointed experts such as Dr.

Seward must “examine the defendant using current community,

nationally and culturally accepted physical, developmental,

psychological and intelligence testing procedures, for the

purpose of determining whether the defendant has an intellectual

disability,” and then submit to the trial court a written report

“that includes the expert’s opinion as to whether the defendant

has an intellectual disability.” A.R.S. § 13-753(E).

¶22 Boyston concedes that no statute expressly required

Dr. Seward to administer an IQ test, but argues that currently

accepted testing procedures required Dr. Seward to either

personally conduct a valid IQ test or, at a minimum, rely on a

valid IQ test. He asserts that the only IQ test Dr. Seward

relied on was the discredited Culture Fair test that Boyston

took in 2000.

¶23 Dr. Seward acknowledged that the Diagnostic and

Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)

10

states that individualized testing is always required “to make

the diagnosis of mental retardation.” But he testified that he

did not need to personally administer additional IQ testing

because Boyston had recently been given three individualized IQ

tests. Dr. Seward further opined that “interpret[ing] the tests

that others had given . . . [was] satisfactory with respect to

the requirement of individualized testing.” Boyston did not

introduce any evidence to rebut Dr. Seward’s testimony that he

had followed currently accepted testing procedures related to IQ

testing.

¶24 Regarding the results of the various IQ tests

administered by others, Dr. Seward gave the most credence to the

Culture Fair test, which Boyston argues is not a valid IQ test.

On that test, Boyston obtained a weighted IQ score of 85, “a

level of functioning” described in the testing notes as “dull

normal intelligence.” Dr. Seward considered the results of the

Culture Fair test “noteworthy” because Boyston “did not have the

same incentive to appear impaired” when that test was

administered in 2000, before he committed the crimes at issue

here.

¶25 Dr. Seward acknowledged that he did not know the

details of the Culture Fair testing and that he was unable to

review any raw data from that test. But Boyston did not

introduce any evidence below to show that the Culture Fair test

11

deviated from currently accepted tests or that Dr. Seward

inappropriately relied on it. On appeal, Boyston cites several

cases in which courts gave minimal weight to that test and other

similar tests, but those cases do not hold that an expert falls

below currently accepted standards by relying on such tests.5

Moreover, the records in those cases, unlike this one, contained

expert testimony that generally explained the limitations of

such tests.

¶26 Although Dr. Seward relied on the Culture Fair test,

he also referred to and analyzed the underlying data from the IQ

tests administered by Dr. Young and Dr. Gaughan, with whose

opinions he disagreed. Given his conclusions that Boyston was

malingering on those IQ tests and that no other information

5
Boyston quotes from Goetsch v. State, 172 N.W.2d 688, 692
(Wis. 1969), which recites an expert’s description of the
Culture Fair test. Boyston also inappropriately quotes an
unreported federal district court case in which the experts who
testified had agreed that the Culture Fair test was not a
reliable measure of intellectual function. But Boyston cannot
establish through case law matters on which no expert testimony
was offered below.

Boyston also quotes from Rivera v. Quarterman, 505 F.3d
349, 362 (5th Cir. 2007), which explained that the lower court
had rejected screening tests used in the prison system. But the
weighing of evidence by the trial court in that case is
irrelevant to our review of whether the trial court in this case
abused its discretion, as “[t]he trial judge has broad
discretion in determining the weight and credibility given to
mental health evidence.” Grell II, 212 Ariz. at 528 ¶ 58, 135
P.3d at 708 (quoting State v. Doerr, 193 Ariz. 56, 69 ¶ 64, 969
P.2d 1168, 1181 (1998)).

12

revealed that Boyston had subaverage intellectual functioning,

Dr. Seward determined that no additional IQ testing was

necessary. Boyston failed to show that Dr. Seward’s

determination was invalid or suspect because he did not adhere

to currently accepted testing procedures. Accordingly, the

superior court did not abuse its discretion by admitting and

relying on Dr. Seward’s testimony that Boyston did not

demonstrate significantly subaverage intellectual functioning.

See A.R.S. § 13-753(K)(5).

¶27 Boyston also argues that Dr. Seward failed to follow

currently accepted testing procedures by not performing formal

evaluations of Boyston’s adaptive functioning and by focusing on

his strengths rather than his deficits. As with intellectual

functioning, however, Boyston introduced no evidence to rebut

Dr. Seward’s testimony that he followed currently accepted

testing procedures related to adaptive behavior. Although

Boyston’s mental retardation expert, Dr. Keyes, administered the

Adaptive Behavior Assessment System, Second Edition (ABAS-II)

test to Boyston, Dr. Seward explained that it is difficult to

measure adaptive functioning when the individual is

incarcerated, and pointed to the testing criteria in the ABAS-II

manual, which requires that the examiner have frequent, long-

term contact with the individual. Dr. Seward instead relied on

school and criminal records, interviews with those who knew

13

Boyston, and recorded jail telephone conversations.

¶28 In challenging Dr. Seward’s opinion on adaptive

behavior, Boyston relies heavily on information in the DSM-IV

and the American Association on Intellectual and Developmental

Disabilities (AAIDD, formerly AAMR) manual. Both manuals

suggest the examiner should investigate numerous sources over an

extended time frame, and the DSM-IV also recommends

consideration of adaptive functioning measures. But Boyston did

not present this evidence below or argue that it established

currently accepted procedures for assessing adaptive

functioning; and Dr. Seward considered information from a wide

variety of sources.

¶29 Boyston also points to various authorities, including

the DSM-IV, the AAIDD manual, and medical journal articles, that

indicate that those with mental disabilities have both strengths

and deficits, and that an evaluating expert should focus on the

presence of deficits. He takes issue with the weight Dr. Seward

gave to Boyston’s jail conversations and on his own interviews

with Alexandria and her father, arguing that Dr. Seward violated

current standards by focusing on strengths while ignoring

Boyston’s deficits. As with adaptive behavior testing, however,

Boyston did not introduce below the information to which he now

points as evidence of current standards; and again, Dr. Seward

analyzed Boyston’s adaptive behavior in many areas and from many

14

sources.

¶30 In sum, although Dr. Seward did not personally

administer an IQ test or an adaptive functioning assessment, he

testified without contradiction that he followed current

standards. No evidence showed that his evaluation methods

violated “current community, nationally and culturally accepted

physical, developmental, psychological and intelligence testing

procedures.” A.R.S. § 13-753(E). The superior court did not

abuse its discretion in admitting and relying on Dr. Seward’s

testimony.

3. Trial court’s ruling on mental retardation

¶31 Finally, Boyston challenges the superior court’s

ruling that he did not prove mental retardation, arguing that it

was proven by clear and convincing evidence. We have no basis

for overturning the court’s ruling, however, because Boyston

failed to establish mental retardation by even a preponderance

of the evidence. Cf. Grell III, 231 Ariz. at 160 ¶¶ 35-36, 291

P.3d at 357 (holding that Atkins barred the execution of a

defendant who established at the penalty phase his mental

retardation by a preponderance of the evidence).

a. Intellectual functioning

¶32 “Significantly subaverage general intellectual

functioning” is defined as “a full scale intelligence quotient

of seventy or lower.” A.R.S. § 13-753(K)(5). A rebuttable

15

presumption of intellectual disability arises when the trial

court determines that the defendant’s IQ is 65 or lower. Id.

§ 13-753(G). Boyston contends for the first time on appeal that

because the IQ tests administered by Drs. Young, Gaughan, and

Keyes all indicated his IQ was 65 or lower, he was entitled to

the rebuttable presumption. But even if such a presumption

arose, “[t]he presumption of mental retardation based on the IQ

scores vanishes . . . if the State presents evidence that calls

into question the validity of the IQ scores or tends to

establish that [the] defendant does not otherwise meet the

statutory definition of mental retardation.” Arellano, 213

Ariz. at 478 ¶ 13, 143 P.3d at 1019 (internal quotation marks

omitted). “At that point, the IQ scores serve as evidence of

mental retardation, to be considered by the trial court with all

other evidence presented.” Id.

¶33 The evidence relating to Boyston’s intellectual

functioning was conflicting. Dr. Seward’s opinion that Boyston

was malingering, Boyston’s school and prison records, and

testimony from his third-grade teacher (Merilee Wortham) and

maternal aunt (Romla Robinson) arguably “call[ed] into question

the validity of the IQ scores” on which Boyston relies. Id.

But even if Boyston established the intellectual deficit element

of mental retardation, it would not change the result unless he

also satisfied the other statutory prerequisites, discussed

16

below.

b. Adaptive behavior

¶34 “Adaptive behavior” is defined as “the effectiveness

or degree to which the defendant meets the standards of personal

independence and social responsibility expected of the

defendant’s age and cultural group.” A.R.S. § 13-753(K)(1).

Although the DSM-IV defines impairments in adaptive functioning

based on deficits in two areas, the DSM-IV definition is not the

same as the statutory definition. Grell II, 212 Ariz. at 529

¶ 62, 135 P.3d at 709. The statute, by contrast, “requires an

overall assessment of the defendant’s ability to meet society’s

expectations of him.” Id.; see also Grell III, 231 Ariz. at 155

¶ 7, 291 P.3d at 352.

¶35 Boyston contends that the superior court ignored

academic records and adaptive functioning measurements that

showed impairments in adaptive behavior and instead “cherry

picked” evidence that showed his strengths. The court gave

significant weight to jail telephone conversations in which

Boyston set up fraudulent “burn line” accounts for other

inmates, allowing callers to make collect calls without the call

recipient being charged. In other conversations, Boyston helped

his daughter with math homework, told his girlfriend he was

reading The Autobiography of Miss Jane Pitman, explained how to

do certain home repairs, and talked about keeping himself and

17

his cell clean. The court found that the phone conversations

“represent[ed] a true day to day picture of [Boyston’s]

cognitive abilities and behaviors,” and determined that “there

was no credible evidence in the record to establish mental

retardation.” Boyston cites a district court case that found

jail telephone calls largely irrelevant to a defendant’s

adaptive functioning. See United States v. Davis, 611 F. Supp.

2d 472, 494 (D. Md. 2009). But, as the finder of fact, the

trial court “has broad discretion in determining the weight and

credibility given to mental health evidence.” Grell II, 212

Ariz. at 528 ¶ 58, 135 P.3d at 708 (internal quotation marks

omitted).

¶36 The record here supports the conclusion that Boyston

did not prove substantial impairment in adaptive functioning by

even a preponderance of the evidence, let alone by clear and

convincing evidence, the statutory standard of proof the

superior court applied. Dr. Seward’s opinion was based on

Boyston’s school, health, and prison records, jail phone calls,

interviews of Boyston’s acquaintances, and other sources, and he

opined that Boyston “demonstrates an intact ability to adapt to

his current environment.” Significantly, Boyston’s own mental-

retardation expert, Dr. Keyes, declined to make a finding on

Boyston’s adaptive skills “due to his fruitless attempts to

malinger,” and the prescreening expert, Dr. Gaughan, did not

18

evaluate Boyston’s adaptive behavior.

¶37 Boyston relies heavily on portions of the testimony of

his aunt and third-grade teacher (Robinson and Wortham), but the

trial court determines how much weight and credibility to give

conflicting testimony. Because the record supports the superior

court’s factual findings, we defer to them. Given the paucity

of evidence, by expert testimony or otherwise, that Boyston had

significant impairments in adaptive behavior, we have no basis

for overturning the court’s determination that Boyston failed to

establish that prerequisite.

c. Onset before age eighteen

¶38 Boyston argues the superior court ignored the evidence

that Boyston’s mental retardation began before age eighteen,

pointing again to the testimony of Wortham and Robinson. But

sufficient evidence supported the court’s conclusion that

Boyston did not have substantial deficits in either intellectual

functioning or adaptive behavior before age eighteen.

Accordingly, the court did not abuse its discretion in rejecting

Boyston’s mental-retardation claim.

B. Exclusion of jurors for cause

¶39 Over Boyston’s objection, the trial court struck

Jurors 51 and 54 for cause. Boyston argues the trial court

erred in excluding those jurors because of their views on the

death penalty, violating his Sixth, Eighth, and Fourteenth

19

Amendment rights. This Court reviews a trial court’s decision

to strike a potential juror for cause for abuse of discretion,

State v. Jones, 197 Ariz. 290, 302 ¶ 24, 4 P.3d 345, 357 (2000),

because trial judges are in the best position to “assess the

demeanor of the venire, and of the individuals who compose it,”

Uttecht v. Brown, 551 U.S. 1, 9, 20 (2007).

¶40 “Under the Sixth and Fourteenth Amendments to the

United States Constitution, a criminal defendant is entitled to

an impartial jury.” State v. Velazquez, 216 Ariz. 300, 306

¶ 14, 166 P.3d 91, 97 (2007). Jurors who merely “voice[]

general objections to the death penalty or express[]

conscientious or religious scruples against its infliction” may

not be struck for cause. Witherspoon v. Illinois, 391 U.S. 510,

522 (1968) (finding Sixth Amendment violation). A trial court

may remove a prospective juror for cause when his or her views

about capital punishment “would prevent or substantially impair

the performance of his duties as a juror in accordance with his

instructions and his oath.” Wainwright v. Witt, 469 U.S. 412,

433 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)).

1. Juror 51

¶41 Juror 51 indicated on the initial questionnaire that

she was a Catholic who was “generally not for the death penalty”

and wrote that “[m]orally it is tough to execute or be part of a

process that kills a human soul.” But she also wrote that she

20

was “not strongly opinionated about it” and would be able to

consider the evidence and follow the law.

¶42 During voir dire, Juror 51 indicated that she was

“pretty strongly tied to church” and acknowledged that the

“Catholic Church is against the death penalty.” In describing

the extent to which her religious beliefs would influence her

ability to assess mitigation evidence, she stated, “I will be

influenced by the belief of having sanctity and reverence for

life.” She also acknowledged that it would be a “big struggle”

to disregard her religious beliefs in determining the

appropriate penalty.

¶43 Although Juror 51 indicated at times that she could

set aside her religious beliefs about the death penalty, the

judge must consider “the entirety of [the juror’s] answers.”

State v. Lynch, 225 Ariz. 27, 35 ¶ 28, 234 P.3d 595, 603 (2010).

The entirety of Juror 51’s answers indicates that she was highly

conflicted about imposing the death penalty. We have upheld

strikes for cause of similar jurors who “equivocat[e] about

whether [they] would take [their] personal biases in the jury

room sufficient to substantially impair [their] duties.” State

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

(internal quotation marks omitted). The trial court did not

abuse its discretion in striking Juror 51 for cause.

2. Juror 54

21

¶44 When asked on the initial questionnaire to list any

time she had been arrested, charged, or convicted of any crime

other than minor traffic violations, Juror 54 responded that she

had been convicted of counterfeiting. The prosecutor later

informed the court and Boyston’s counsel that a criminal records

check on Juror 54 revealed she had additional, and more recent,

arrests for drug possession and aggravated assault that she had

not disclosed.

¶45 The trial court granted the State’s motion to strike,

pointing to all the discrepancies in her disclosure and accounts

of her criminal history and stating that “[a]ll of this causes

the Court substantial concern about her credibility, her ability

to abide by the court’s instructions, and frankly my ability to

assess any of the answers she has provided in the voir dire

process in order that I and the parties may evaluate her as an

adequate juror.” In so ruling, the court did not mention Juror

54’s personal views on the death penalty.

¶46 Boyston contends the court “decided by inference that

her answers . . . on the death penalty . . . were not truthful

because she forgot to put down an arrest from 24 years earlier,”

and thus asserts that Juror 54 “was excused based upon the

court’s belief of her views on the death penalty.” Trial

courts, however, “are permitted to determine a potential juror’s

credibility when deciding whether to strike a juror for cause.”

22

State v. Glassel, 211 Ariz. 33, 48 ¶ 50, 116 P.3d 1193, 1208

(2005).

¶47 The trial court’s concern with Juror 54’s credibility,

and more broadly her ability to follow the court’s instructions,

created doubt that the juror could render a fair and impartial

verdict. See State v. Cota, 229 Ariz. 136, 147 ¶ 40, 272 P.3d

1027, 1038 (2012) (“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.’” (alteration in

original) (quoting Ariz. R. Crim. P. 18.4(b))). The trial court

did not abuse its discretion in striking Juror 54 for cause.

C. Precluding evidence of intoxication to rebut premeditation

¶48 Boyston contends the trial court erred by not allowing

him to present evidence of his alleged phencyclidine (PCP)

intoxication at the time of the murders to rebut the State’s

evidence of premeditation. He argues that A.R.S. § 13-503 does

not apply to premeditation or, to the extent it applies, it is

unconstitutional. We review de novo issues of statutory

interpretation and constitutionality. State v. Dann (Dann II),

220 Ariz. 351, 369 ¶ 96, 207 P.3d 604, 622 (2009).

¶49 Section 13-503 states that “[t]emporary intoxication

. . . does not constitute insanity and is not a defense for any

criminal act or requisite state of mind.” Boyston argues that

premeditation is neither a “criminal act” nor a “requisite state

23

of mind” under § 13-503, and therefore the statute does not

preclude consideration of voluntary intoxication on the issue of

premeditation. He points to A.R.S. § 13-105(10), which defines

“culpable mental state” as including “intentionally, knowingly,

recklessly or with criminal negligence,” but not premeditation.

Premeditation is defined separately in A.R.S. § 13-1101(1):

“Premeditation” means that the defendant acts with
either the intention or the knowledge that he will kill
another human being, when such intention or knowledge
precedes the killing by any length of time to permit
reflection. Proof of actual reflection is not
required, but an act is not done with premeditation if
it is the instant effect of a sudden quarrel or heat of
passion.

See also State v. Thompson, 204 Ariz. 471, 478-80 ¶¶ 26-33, 65

P.3d 420, 427-29 (2003).

¶50 Although premeditation is not included in the

statutory enumeration of “culpable” mental states under § 13-

105(10), it is a required element of first degree murder under

§ 13-1105(A)(1) and is part of the requisite mens rea of that

offense. See Schad v. Arizona, 501 U.S. 624, 637 (1991) (noting

that “under [Arizona] law, premeditation and the commission of a

felony are not independent elements of the crime, but rather are

mere means of satisfying a single mens rea element”); see also

A.R.S. § 13-101 (stating that one of the general purposes of the

criminal code is “[t]o define the act or omission and the

accompanying mental state which constitute each offense”).

24

¶51 Consistent with that view, several of our cases have

referred to premeditation as a mental state. In Thompson, we

stated that premeditation “is [the] mental state that

distinguishes between first and second degree murder.” 204

Ariz. at 478 ¶ 27 n.6, 65 P.3d at 427 n.6 (emphasis added); see

also Evanchyk v. Stewart, 202 Ariz. 476, 479 ¶ 10, 47 P.3d 1114,

1117 (2002) (“Any agreement with another to kill a third person

constitutes premeditation, the mental state that exists under

Arizona law whenever the intention to kill precedes the killing

by a length of time to permit reflection.” (internal quotation

marks omitted)); State v. Wood, 180 Ariz. 53, 62, 881 P.2d 1158,

1167 (1994) (“The disputed trial issues were Defendant’s motive

and mental state — whether Defendant acted with premeditation or

as a result of a sudden impulse.”).

¶52 Because premeditation is a mental state and part of

the mens rea element of premeditated first degree murder under

§ 13-1105(A)(1), it is thus a “requisite state of mind” of that

offense. Section 13-503 therefore precludes evidence of

voluntary intoxication when considering premeditation.6 Cf.

State v. Kiles, 222 Ariz. 25, 33 ¶ 29, 213 P.3d 174, 182 (2009)

(rejecting argument under former § 13-503 that defendant “may

6
Boyston also argues, in a footnote, that the trial court
erred in precluding evidence of his voluntary intoxication
during the aggravation phase. But he never sought to present
evidence of his intoxication during that phase.

25

not have reflected on his decision to [kill the victim] because

he was voluntarily intoxicated”).

¶53 Just as Boyston’s statutory analysis is flawed, so is

his reliance on State v. Christensen, 129 Ariz. 32, 628 P.2d 580

(1981). In that case, we held that the trial court erred by not

admitting under Evidence Rule 404(a)(1) relevant character-trait

testimony that the defendant reacted impulsively to stress,

evidence proffered to rebut the premeditation element of first

degree murder. Id. at 34-35, 628 P.2d at 582-83; see State v.

Mott, 187 Ariz. 536, 544, 931 P.2d 1046, 1054 (1997)

(“[Christensen] attempted to show that he possessed a character

trait of acting reflexively in response to stress.”).

Christensen is inapposite because no such character trait is at

issue here.

¶54 Boyston also asserts three reasons why § 13-503 is

unconstitutional if interpreted to preclude consideration of

voluntary intoxication on the issue of premeditation. We find

none persuasive.

¶55 First, Boyston argues § 13-503 deprives him of his

fundamental right to present a complete defense. “Whether

rooted directly in the Due Process Clause of the Fourteenth

Amendment, or in the Compulsory Process or Confrontation clauses

of the Sixth Amendment, the Constitution guarantees criminal

defendants a meaningful opportunity to present a complete

26

defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986)

(citations and internal quotation marks omitted).

¶56 But in Montana v. Egelhoff, the United States Supreme

Court squarely rejected the argument that a state law violated

due process by providing that voluntary intoxication “may not be

taken into consideration in determining the existence of a

mental state which is an element of [a criminal] offense,” Mont.

Code Ann. § 45-2-203 (1995). 518 U.S. 37, 51 (1996) (Scalia,

J., plurality opinion); see id. at 58-59 (Ginsburg, J.,

concurring in judgment) (“Defining mens rea to eliminate the

exculpatory value of voluntary intoxication does not offend a

‘fundamental principle of justice,’ given the lengthy common-law

tradition [prohibiting the voluntary intoxication defense], and

the adherence of a significant minority of the States to that

position today.”). Like Montana’s legislature, the Arizona

Legislature has defined the mens rea element of first degree

premeditated murder such that voluntary intoxication is not a

defense. That legislative decision does not violate Boyston’s

constitutional right to present a complete defense.

¶57 Second, Boyston asserts that excluding consideration

of voluntary intoxication violates his right to equal

protection. He seems to argue that applying § 13-503 to

premeditation eviscerates the distinction in the classifications

of those facing the “most severe punishment” of premeditated

27

first degree murder and those charged with lesser offenses.

This argument lacks merit, as § 13-503 does not relieve the

state of the burden to prove premeditation in premeditated first

degree murder cases, see Thompson, 204 Ariz. at 478-80 ¶¶ 26-33,

65 P.3d at 427-29, and there is a rational basis for imposing a

greater punishment on those who have reflected before committing

a murder, see United States v. LaFleur, 971 F.2d 200, 212 (9th

Cir. 1991) (rejecting equal protection challenge because

“[t]here clearly exist rational reasons for Congress to

prescribe different penalties” under two federal statutes that

each punish murder, as the statutes “address crimes with

different elements and different ranges of culpability”).

¶58 Finally, Boyston argues § 13-503 violates the Eighth

Amendment to the extent it precludes evidence of voluntary

intoxication. But the Eighth Amendment generally imposes

limitations on sentencing and the imposition of the death

penalty, not the determination of guilt. See McCleskey v. Kemp,

481 U.S. 279, 305-06 (1987). The notable exception is that a

jury, in determining guilt in a capital case, must be given the

option of convicting the defendant of a lesser offense than the

death-eligible offense. See Beck v. Alabama, 447 U.S. 625, 642-

43 (1980). Here, that option existed because the jury was

instructed on second degree murder. Beck’s reasoning does not

extend to this context, as precluding evidence of voluntary

28

intoxication does not raise concerns that a jury will improperly

find a defendant guilty of a death-eligible offense. In

addition, Boyston could and did present evidence of his

intoxication in the penalty phase. Therefore, the preclusion in

the guilt phase of voluntary intoxication evidence, as directed

by § 13-503, does not violate the Eighth Amendment.

D. Sufficiency of evidence of premeditation

¶59 Boyston argues that the trial court erroneously denied

his motion for a judgment of acquittal under Arizona Rule of

Criminal Procedure 20 because the State failed to present

substantial evidence that he killed Mary and Timothy with

premeditation. Boyston concedes there was sufficient evidence

that he killed Alexander with premeditation. We review de novo

a trial court’s ruling on a Rule 20 motion. State v. West, 226

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

¶60 A conviction for premeditated first degree murder must

be supported by substantial evidence of premeditation, State v.

Murray, 184 Ariz. 9, 32, 906 P.2d 542, 565 (1995), and this

Court views all evidence “in the light most favorable to

sustaining the conviction and [resolves] all reasonable

inferences . . . against the defendant,” State v. Guerra, 161

Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). To prove

premeditation, the state must establish actual reflection and

more than mere passage of time, but it may do so with “all the

29

circumstantial evidence at its disposal in a case.” Thompson,

204 Ariz. at 478-80 ¶¶ 29, 31, 33, 65 P.3d at 427-29.

¶61 Boyston asserts that “no one testified exactly what

occurred in the apartment or what they heard before or during

the shooting,” other than hearing the gunshots, thus leaving the

jury to speculate whether he killed his grandmother with

premeditation. The record, however, contains sufficient

evidence to support a finding of premeditation. Boyston was

upset the night before the murders because his cousin, Tonisha,

would not let him stay with her and he had to live with Mary.

While at Mary’s apartment the following morning, Boyston told

Tonisha, “I can’t believe you did me like this. You all going

to regret this.”

¶62 On this record, the jury reasonably could find that

Boyston formed his intent to kill Mary when he threatened

Tonisha personally and, by reference, others. His actions in

carrying weapons to the crime scene and jogging directly to

Mary’s apartment immediately after shooting Alexandria also

support an inference that he had decided to kill Mary. See

State v. Ovante, 231 Ariz. 180, 185 ¶ 16, 291 P.3d 974, 979

(2013) (carrying of a loaded gun to murder scene is

circumstantial evidence of premeditation). Finally, his

statement that “[i]t’s time to take care of everyone who did me

wrong” as he walked into Mary’s apartment supports a conclusion

30

that he reflected on his decision to kill.7

¶63 As for Timothy’s murder, Boyston contends that the

evidence supports only a conclusion that a fist fight escalated

to the point of his stabbing Timothy in the heat of the moment.

Viewed in the light most favorable to sustaining the jury’s

verdict, however, the record supports a reasonable inference

that Boyston intended, and had reflected on his decision, to

kill all those “who did [him] wrong.” Given that Timothy lived

with Alexander and Mary, where Boyston also at times stayed, and

that Boyston was unhappy about his living situation, the jury

could reasonably infer that Timothy was one of those Boyston

thought “did him wrong.”

¶64 Boyston counters that if that were true, he would have

killed Timothy when he killed Alexander and Mary, before he left

to shoot Shirley. But rather than relying on such speculation,

we must view the record and any reasonable inferences in the

light most favorable to sustaining the jury’s verdict. Given

7
Boyston’s reliance on State v. Moore, 222 Ariz. 1, 15 ¶ 70,
213 P.3d 150, 164 (2009), and State v. Dann (Dann I), 205 Ariz.
557, 566 ¶ 20, 74 P.3d 231, 240 (2003), is misplaced. Those
cases reversed convictions not because there was insufficient
evidence of reflection, but because the jury was improperly
instructed that premeditation could be shown by mere passage of
time and the evidence of premeditation was not so overwhelming
that we could find the error harmless. Moore, 222 Ariz. at 14-
15 ¶¶ 66-67, 70, 213 P.3d at 163-64; Dann I, 205 Ariz. 565-66
¶¶ 17, 20, 74 P.3d at 239-40. Here, the jury was properly
instructed on premeditation.

31

that Boyston returned to Mary’s apartment after shooting

Shirley, the jury could reasonably find that Boyston had planned

to kill Timothy, but was briefly interrupted when he saw and

chased Shirley. In sum, sufficient evidence supports the jury’s

finding that Boyston killed Timothy with premeditation.

E. Failure to give manslaughter instruction

¶65 For each of the three first degree murder counts, the

trial court also instructed the jury on the lesser-included

offense of second degree murder. Regarding the killing of

Timothy, Boyston argues the court erred by not also instructing

the jury on the lesser-included offense of manslaughter by

sudden quarrel or heat of passion. Boyston did not request a

manslaughter instruction, nor did he object to the absence of

one in the trial court’s proposed jury instructions. We

therefore review this issue for fundamental, prejudicial error.

State v. Bearup, 221 Ariz. 163, 168 ¶ 21, 211 P.3d 684, 689

(2009).

¶66 “When a jury is given a choice between first-degree

murder and second-degree murder and convicts on first-degree

murder, it has necessarily rejected manslaughter,” and “any

purported error in failing to give a manslaughter instruction

was harmless.” State v. Nelson, 229 Ariz. 180, 186 ¶ 24, 273

P.3d 632, 638 (2012); see also Cota, 229 Ariz. at 150 ¶ 66, 272

P.3d at 1041. Given the jury’s finding of guilt on the first

32

degree murder charges, no error, fundamental or otherwise,

resulted from the lack of an instruction on manslaughter.

F. Refusal to instruct on ineligibility for parole

¶67 Boyston requested a jury instruction that if sentenced

to life, he would be sentenced to natural life and would “never

be eligible to be released from prison for any reason for the

rest of his life.” The trial court denied that request and

instead instructed the jury that, if sentenced to life, Boyston

could either be sentenced to “natural life” or “life without the

possibility of release until 25 calendar years in prison are

served.”

¶68 Citing Simmons v. South Carolina, 512 U.S. 154 (1994),

Boyston argues the trial court violated his due process rights

by not instructing the jury that Arizona law precluded him from

being considered for parole after serving twenty-five years if

sentenced to life in prison. But Boyston’s proffered

instruction referred more broadly to any form of release or

commutation of sentence, and we have previously rejected

arguments similar to his. Cota, 229 Ariz. at 151 ¶ 75, 272 P.3d

at 1042 (“[The defendant’s] argument . . . conflates parole and

release. [He] would have been eligible for other forms of

release, such as executive clemency, if sentenced to life with

the possibility of release.”). The court’s instruction

accurately stated the law. State v. Hargrave, 225 Ariz. 1, 14-

33

15 ¶ 53, 234 P.3d 569, 582-83 (2010) (“[The defendant’s]

argument that he is not likely to actually be released does not

render the instruction legally incorrect.”).

III. REVIEW OF DEATH SENTENCES

¶69 We review the jury’s finding of aggravating

circumstances and the imposition of a death sentence for abuse

of discretion. 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)).

A. Applicable standard of review

¶70 Boyston first argues that we should apply a less

deferential abuse of discretion standard as set forth in State

v. Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18

(1983). We recently rejected the same argument in Cota, 229

Ariz. at 153 ¶ 91, 272 P.3d at 1044.

B. Constitutionality of A.R.S. § 13-756(A)

¶71 Boyston also contends that the abuse of discretion

standard under § 13-756(A) violates the Eighth and Fourteenth

Amendments because the United States Supreme Court mandates

“meaningful” appellate review of death sentences. See Clemons

v. Mississippi, 494 U.S. 738, 749 (1990). We have previously

34

rejected similar constitutional challenges to the statute.

Nelson, 229 Ariz. at 191 ¶ 50, 273 P.3d at 643.

C. Aggravating circumstances

¶72 The jury found as to each first degree murder that

Boyston had been convicted of a serious offense, A.R.S. § 13-

751(F)(2), and was convicted of one or more other homicides that

were committed during the commission of the offense, id. § 13-

751(F)(8). The jury also found, as to the murders of Alexander

and Timothy, that Boyston committed the offenses in an

especially cruel manner. Id. § 13-751(F)(6). Boyston does not

contest the (F)(2) finding, which was supported by his

convictions of attempted second degree murder of Alexandria and

attempted first degree murder of Shirley, but he challenges the

(F)(8) and (F)(6) findings.

1. (F)(8) Aggravator

¶73 To prove the (F)(8) aggravator, the state must

establish beyond a reasonable doubt that the homicides took

place during a “continuous course of criminal conduct” and were

“temporally, spatially, and motivationally related.” State v.

Armstrong (Armstrong III), 218 Ariz. 451, 464 ¶ 67, 189 P.3d

378, 391 (2008) (quoting State v. Prasertphong, 206 Ariz. 167,

170 ¶ 15, 76 P.3d 438, 441 (2003)).

¶74 The murders all occurred within minutes of each other

in or just outside Mary’s apartment; thus, they are temporally

35

and spatially related. Boyston, however, contends that there is

no evidence from which the jury could conclude the three murders

were motivationally related. We disagree.

¶75 The jury could reasonably conclude that Boyston

committed all three murders for the reason he expressed when he

entered Mary’s apartment immediately before the killings: “to

take care of everyone who did [him] wrong.” He also mentioned

this motivation earlier that day, exclaiming that all those he

thought had mistreated him would regret it. When he later saw

Shirley, he said, “Oh, I better get you, too,” and as he chased

and shot her, he further expressed his motivation for the

offenses, stating, “You mother f***ers crossed me too many

times.”

¶76 Boyston then returned to Mary’s apartment and stabbed

Timothy to death. The jury could reasonably conclude that

Boyston killed Timothy because he was among those Boyston

thought “did him wrong.” Boyston argues Timothy’s murder was

motivated by defending himself from Timothy, who was fighting

him. But the jury found Boyston guilty of premeditated first

degree murder, and thus necessarily rejected the theory that

Boyston was defending himself or acting in the heat of passion.

As such, the jury did not abuse its discretion in finding the

(F)(8) aggravator.

2. (F)(6) Aggravator

36

¶77 To show that a murder is especially cruel, the state

must “prove[] beyond a reasonable doubt that ‘the victim

consciously experienced physical or mental pain prior to death,

and the defendant knew or should have known that suffering would

occur.’” State v. Snelling, 225 Ariz. 182, 188 ¶ 25, 236 P.3d

409, 415 (2010) (quoting State v. Trostle, 191 Ariz. 4, 18, 951

P.2d 869, 883 (1997)). “The entire murder transaction, not just

the final act, may be considered.” State v. McCray, 218 Ariz.

252, 259 ¶¶ 31, 33, 183 P.2d 503, 510 (2008).

a. Boyston’s alleged PCP intoxication

¶78 As to both Alexander and Timothy, Boyston argues that

their suffering was not objectively foreseeable because he was

in a “PCP blackout” and a “dissociative state which resulted in

delusions, hallucinations and psychosis.” In support, Boyston

cites evidence of PCP intoxication introduced in the penalty

phase. But Boyston did not introduce any evidence of PCP

intoxication during the aggravation phase. Although some

evidence presented in the guilt phase suggested that Boyston was

“super high” from smoking PCP the night before the murders, and

the jury could properly consider that evidence in reaching its

aggravation-phase verdicts, see A.R.S. § 13-752(E), (I), several

witnesses testified that he seemed normal at the time of the

murders. We cannot conclude the jury abused its discretion in

finding the (F)(6) aggravator.

37

b. Murder of Alexander

¶79 George Newton testified that, after he heard gunshots

in Mary’s apartment, Alexander came outside and said of his

first gunshot wound, “George, it hurts.” Alexander walked about

ten feet from the door before falling on his face. Boyston

followed him outside and, saying “I might as well finish you

right now,” fired two shots into Alexander’s back.

¶80 The medical examiner, Dr. Vladimir Shvarts, testified

that Alexander had three through-and-through gunshot wounds:

two in the back that exited through the chest, and one through

the arm near the elbow. Each of the gunshot wounds was in an

area where there were pain receptors. Detective Olson, an

expert in bloodstain patterns, testified that blood drops found

inside the apartment and leading to bloodstains outside were

“consistent with [Alexander] dropping the blood from his right

arm.”

¶81 The jury could reasonably find that Boyston shot

Alexander in the arm at close range inside the apartment and

that Alexander suffered significant physical pain from that

wound. See State v. Herrera, 176 Ariz. 21, 34, 859 P.2d 131,

144 (1993) (finding victim endured physical pain when he lay on

the ground with a gash in his head for at least eighteen seconds

and possibly as long as two to three minutes before being

killed). The jury could also reasonably conclude that Boyston

38

knew or should have known that he had caused such pain, as he

followed the wounded and staggering victim outside, where he

shot him twice more in the back.8 Thus, the jury did not abuse

its discretion in finding the (F)(6) aggravator established for

the murder of Alexander.

c. Murder of Timothy

¶82 Witnesses described Boyston coming out of Mary’s

apartment fighting with Timothy, then pulling out a knife and

stabbing him several times. Two witnesses testified that they

heard Timothy yelling for help.

¶83 Dr. Shvarts testified that Timothy received nine stab

wounds and several abrasions in various parts of the body, each

of which would have caused pain. Three stab wounds to Timothy’s

chin and neck were non-fatal, as were two to the upper back.

Four stab wounds were to the chest, one of which was fatal. The

fatal wound was almost 3.5 inches deep and penetrated the

pericardium and the heart. Dr. Shvarts testified that the wound

likely would have been fatal within a few seconds to minutes,

but could possibly have taken up to twenty minutes to cause

Timothy’s death, depending on how quickly he lost blood. Dr.

8
Boyston’s argument that the state must present evidence
that the defendant actually knew the victims would suffer pain
misstates the law, as the state must prove merely that the
defendant “knew or should have known that the victim would
suffer.” McCray, 218 Ariz. at 259 ¶¶ 31, 33, 183 P.2d at 510
(emphasis added).

39

Shvarts could not opine how long it would have taken Timothy to

become unconscious. But Timothy’s hands were covered with

blood, which, as Dr. Shvarts testified, indicated he likely used

his hands to try to stop the bleeding.

¶84 From the evidence, the jury could reasonably conclude

that Timothy suffered physical pain while being stabbed to death

and that Boyston knew or should have known of that. Timothy

“had ample opportunity not only to feel pain, but also to

contemplate his impending death.” State v. Kuhs, 223 Ariz. 376,

388 ¶ 62, 224 P.3d 192, 204 (2010). Indeed, Timothy’s cries for

help and his attempts to stop his own bleeding show that he was

not only experiencing physical pain, but also mental anguish.

See id. (concluding that the jury did not abuse its discretion

in finding especial cruelty when the victim was stabbed twenty-

one times and died by bleeding to death while choking on his

blood). Thus, the jury did not abuse its discretion in finding

the (F)(6) aggravator established for Timothy’s murder.

D. Mitigation

¶85 Boyston alleged thirty-four mitigating circumstances,

including diminished mental capacity, troubled family

background, PCP intoxication, love and support of his family,

impact of execution on his family, and remorse. The State

presented evidence to rebut many of those mitigating factors.

The jury did not find the proffered mitigation sufficiently

40

substantial to call for leniency. See A.R.S. § 13-751(C), (E).

E. Evaluating penalty phase for abuse of discretion

¶86 We will overturn a 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.” Cota, 229 Ariz. at 153 ¶ 95,

272 P.3d at 1044 (quoting Morris, 215 Ariz. at 341 ¶ 81, 160

P.3d at 220) (internal quotation marks omitted). In the context

of independent review, we have said that “[t]he (F)(8) multiple

homicides aggravator is extraordinarily weighty.” State v.

Hampton, 213 Ariz. 167, 184 ¶ 81, 140 P.3d 950, 967 (2006). In

light of that aggravator as well as the (F)(2) and (F)(6)

findings, even if we assume Boyston proved each of his alleged

mitigating circumstances, the jury did not abuse its discretion

in finding the mitigation insufficient to warrant leniency. See

A.R.S. § 13-751(C).

IV. CONCLUSION

¶87 We affirm Boyston’s convictions and sentences.9

__________________________________
John Pelander, Justice

9
Boyston also raised in an appendix to his opening brief
twenty-four claims to avoid federal preclusion. We do not
address those here.

41

CONCURRING:

__________________________________
Rebecca White Berch, Chief Justice

__________________________________
Scott Bales, Vice Chief Justice

__________________________________
Robert M. Brutinel, Justice

__________________________________
Diane M. Johnsen, Judge*

*
Pursuant to Article 6, Section 3 of the Arizona
Constitution, the Honorable Diane M. Johnsen, Vice Chief Judge
of the Arizona Court of Appeals, Division One, was designated to
sit in this matter.

42