State of Arizona v. Manuel Ovante, Jr.

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0085-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2008-144114-001 DT
MANUEL OVANTE, JR., )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Warren J. Granville, Judge

AFFIRMED AS AMENDED
________________________________________________________________

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

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Thomas K. Baird, Deputy Public Defender
Tennie B. Martin, Deputy Public Defender
Attorneys for Manuel Ovante, Jr.
________________________________________________________________

B A L E S, Vice Chief Justice

¶1 This automatic appeal concerns Manuel Ovante, Jr.’s

2010 death sentence for murdering Damien Vickers. We have

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

Constitution and A.R.S. §§ 13–4031 and -4033(A)(1) (2010).

FACTS AND PROCEDURAL BACKGROUND

¶2 On June 11, 2008, Ovante and three friends drove to

Jordan Trujillo’s house, hoping she would give them

methamphetamine. Trujillo refused, but Ovante returned

repeatedly that day attempting to obtain drugs. When Ovante and

his friends entered Trujillo’s home the last time, they

encountered Trujillo, who was asleep on a living room couch,

Damien Vickers, and Gabriel Valenzuela. Without expressing

anger or distress, Ovante suddenly pulled out a gun.

¶3 Ovante pointed the gun at Valenzuela and yelled “[W]ho

left the safety on?” Ovante released the safety, pointed the

gun again at Valenzuela, and told him not to move. He then shot

the sleeping Trujillo twice in the head and began shooting at

Valenzuela and Vickers, wounding both of them. Trujillo

appeared to die almost instantly, but Vickers begged for help

and Valenzuela called the police.

¶4 After the shooting, Ovante and two of his friends got

into a truck and tried to convince the third friend, Nathan

Duran, to leave Vickers behind. Duran instead dragged Vickers

into the back of the truck. Vickers was bleeding from his

bullet wounds, holding onto Duran, and asking to be taken to a

hospital. Ovante refused to do so. After Vickers died in the

truck, Ovante decided to abandon his body in an alley.

Valenzuela, who remained in the apartment, survived the attack.

¶5 The State charged Ovante with two counts of first

degree murder and one count of aggravated assault. The State

2

sought the death penalty, alleging as aggravating circumstances

that Ovante had been previously convicted of a serious offense

(the aggravated assault of Valenzuela), see A.R.S. § 13-

751(F)(2) (2008), and had been convicted of one or more other

homicides committed during the commission of the offense, see

id. § 13-751(F)(8). Ovante pleaded guilty to all charges and

admitted both aggravating circumstances.

¶6 At the conclusion of the penalty phase, the jury

determined Ovante should be sentenced to life in prison for the

murder of Trujillo and sentenced to death for Vickers’ murder.

Accordingly, the trial court entered sentences of life with a

possibility of parole after twenty-five years for Trujillo’s

murder, death for Vickers’ murder, and a mitigated term of six

years in prison for the aggravated assault on Valenzuela.

DISCUSSION

A. Ability to Challenge the Guilty Pleas on Appeal

¶7 The State argues that Ovante cannot challenge the

validity of his guilty pleas as part of this Court’s mandatory

direct review in a capital case, and that he, like a noncapital

defendant seeking to challenge a guilty plea, must instead seek

post-conviction relief under Rule 32. We reject this argument.

¶8 Our criminal rules expressly provide that a defendant

who pleads guilty in a noncapital case waives direct appeal and

can seek review only by petitioning for post-conviction relief

3

under Rule 32. Ariz. R. Crim. P. 17.1(e) see also id. 17.2(e)

(requiring court to advise defendant that guilty plea will

“waive the right to have the appellate courts review the

proceedings by way of direct appeal”).

¶9 The rules addressing capital cases, in contrast, do

not distinguish between capital defendants who plead and those

who are convicted after trial. Instead, if a death sentence is

imposed, the superior court clerk files an automatic notice of

appeal that suffices “with respect to all judgments entered and

sentences imposed in the case.” Id. 31.2(b). Thus, regardless

of any plea, this Court automatically reviews a death sentence.

¶10 Accepting the State’s argument that any judgment of

guilt entered as result of a plea can only be reviewed in a Rule

32 proceeding would unnecessarily bifurcate appellate review in

capital cases. The State conceded this point at oral argument.

In death penalty cases, consistent with Rule 31.2(b), this Court

will review the validity of a plea on direct appeal, before it

reviews the capital sentence.

B. Adequate Factual Basis for the Guilty Pleas

¶11 Ovante contends that because he did not understand the

difference between first and second degree murder, his

statements at the plea hearing did not establish premeditation,

and thus there was not an adequate factual basis for his first

degree murder guilty pleas.

4

¶12 We review the trial court’s acceptance of a guilty

plea for abuse of discretion. State v. Djerf, 191 Ariz. 583,

594 ¶ 35, 959 P.2d 1274, 1285 (1998). Before accepting a plea,

a court must establish a factual basis for each element of the

crime. Ariz. R. Crim. P. 17.3; State v. Carr, 112 Ariz. 453,

455, 543 P.2d 441, 443 (1975). This Court may examine the

entire record on appeal but must vacate the plea if the record

does not support “strong evidence of guilt” for every element.

State v. Wallace, 151 Ariz. 362, 365, 728 P.2d 232, 235 (1986)

(quoting State v. Hamilton, 142 Ariz. 91, 93, 688 P.2d 983, 985

(1984)); State v. Diaz, 121 Ariz. 16, 18, 588 P.2d 309, 311

(1978) (holding that a reviewing court can consider the record,

and not only plea colloquy, to determine if there is a factual

basis for a plea).

¶13 To support a plea to first degree, premeditated

murder, a court must find that facts support a conclusion that

the accused (1) intended to cause the death of another, (2)

caused the death of another, and (3) acted with premeditation.

See A.R.S. § 13-1105(A)(1) (2008). “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.” A.R.S. § 13-1101 (2008).

¶14 There is no prescribed period of time which must

5

elapse between the formation of the intent to kill and the act

of killing, but the record must at least circumstantially

support that a defendant considered his act and did not merely

react to an instant quarrel or in the heat of passion. State v.

Thompson, 204 Ariz. 471, 479 ¶¶ 31-32, 65 P.3d 420, 428 (2003).

“[T]hreats made by the defendant to the victim, a pattern of

escalating violence between the defendant and the victim, or the

acquisition of a weapon by the defendant before the killing” are

circumstances that can establish premeditation. Id. at ¶ 31.

¶15 Ovante argues that the record is ambiguous or leaves

to “guesswork” whether he actually reflected before killing.

But he acknowledged in the plea colloquy that he had given “some

thought to [killing Trujillo] before [he] committed the act.”

Ovante then agreed with defense counsel’s statement that, if the

case proceeded to trial, the evidence would show Ovante had

pointed the gun at Valenzuela but had to stop and release the

safety before he could actually shoot. When the judge asked

whether Ovante had given some thought to murdering the second

victim, Vickers, Ovante took a moment to confer with his counsel

before answering, “Yes.” Evidence presented in the penalty

phase corroborated Ovante’s admissions.

¶16 Circumstantial evidence further shows Ovante’s

premeditation. Ovante carried a loaded gun into Trujillo’s

house, paused to disengage the gun’s safety, targeted only

6

persons who had not accompanied him, and shot each murder victim

multiple times. Combined with his statements at the plea

hearing, this evidence amply supports a finding that Ovante

reflected on the killings before pulling the trigger.

¶17 Ovante might not have fully understood that

premeditation distinguishes first degree murder from second

degree murder, compare A.R.S § 13-1104(A) (2008) (second degree

murder does not require premeditation), with id. § 13-1105(A)(1)

(first degree murder is premeditated), but his understanding of

the legal terminology is not determinative. “Arizona courts

have consistently held that it is sufficient that the court, not

the defendant, satisfy itself of the factual basis for the

plea.” State v. Herndon, 109 Ariz. 147, 148, 506 P.2d 1041,

1042 (1973). The trial court was not required to explain the

distinction between first and second degree murder and was free

to accept the guilty plea if it was satisfied that the record

established premeditation. See State v. DeGrate, 109 Ariz. 143,

144, 506 P.2d 1037, 1038 (1973).

C. Prosecution’s Decision to Seek the Death Penalty

¶18 Ovante next contends that Arizona lacks statewide

standards to identify when the death penalty will be sought,

leaving the decision to individual county attorneys. He also

asserts that he did not have a fair opportunity to enter a plea

agreement, alleging that in 2009 he offered to plead guilty in

7

exchange for life sentences but the Maricopa County Attorney,

who allegedly refused to enter plea agreements while seeking

reelection in 2008, rejected this offer. This exercise of

“[u]nbridled charging discretion,” Ovante argues, violates due

process, equal protection, and the Eighth Amendment. We review

Ovante’s developed constitutional claims de novo. State v.

Smith, 215 Ariz. 221, 228 ¶ 20, 159 P.3d 531, 538 (2007).1

¶19 “Arizona’s death penalty scheme [is] designed to

narrow, in a constitutional manner, the class of first degree

murderers who are death-eligible,” and prosecutors may seek the

death penalty only in the limited cases that qualify under the

scheme. State v. Carlson, 202 Ariz. 570, 582 ¶ 45, 48 P.3d

1180, 1192 (2002) (quoting State v. Soto-Fong, 187 Ariz. 186,

202, 928 P.2d 610, 626 (1996)); see also State v. Sharp, 193

Ariz. 414, 426 ¶ 49, 973 P.2d 1171, 1183 (1999) (holding the

discretion afforded to prosecutors under Arizona’s capital

sentencing scheme does not violate the Eighth Amendment).

¶20 We reject Ovante’s challenge to the discretion

generally afforded prosecutors under Arizona’s death penalty

statutes. See State v. Salazar, 173 Ariz. 399, 411, 844 P.2d

566, 578 (1992); see also Gregg v. Georgia, 428 U.S. 153, 199

1
Although Ovante alleges violations of several federal and
state constitutional provisions, he fails to develop arguments
for most of them. This Court does not consider or address

8

(1976) (upholding a statutory scheme that narrows the types of

defendants eligible for death and affords a prosecutor the

option to seek or not seek the death penalty at various stages

in the criminal process). Our holding comports with opinions by

many other courts recognizing that prosecutorial discretion is

appropriately constrained by death penalty statutes and

appellate review. See, e.g., State v. Rizzo, 31 A.3d 1094,

1163-64 (Conn. 2011) (citing cases rejecting constitutional

challenges); Wade v. State, 41 So.3d 857, 875-76 (Fla. 2010);

State v. Banks, 271 S.W.3d 90, 154-55 (Tenn. 2008); State v.

Yates, 168 P.3d 359, 400-01 (Wash. 2007).

¶21 The record also does not show that the death penalty

was sought in Ovante’s case for a discriminatory or otherwise

improper reason. Ovante contends that defendants in Maricopa

County are more likely to receive the death penalty than

defendants similarly situated in other locations. To show a

violation of the Equal Protection Clause of the Fourteenth

Amendment, however, “the defendant must show purposeful

discrimination that had a discriminatory effect on him and in

his particular case.” State v. Roque, 213 Ariz. 193, 226 ¶ 143,

141 P.3d 368, 401 (2006) (citing McCleskey v. Kemp, 481 U.S. 279,

292 (1987)). Because our criminal justice system affords

unsupported constitutional claims. State v. Hardy, 230 Ariz.
281, 285 ¶ 12 n.3, 283 P.3d 12, 16 n.3 (2012).

9

prosecutors wide discretion to decide which crimes to prosecute

and which sentences to pursue, “a defendant must show

‘exceptionally clear proof’ of discrimination for the Court to

infer discriminatory purpose. Any legitimate explanation for a

state’s decision to seek the death penalty precludes a finding

of a Fourteenth Amendment violation.” Id. (internal citations

omitted).

¶22 “In Arizona, the state may seek the death penalty if

it can prove beyond a reasonable doubt that a defendant

committed first degree murder and can also prove the existence

of at least one aggravating factor.” Id. at 227 ¶ 144, 141 P.3d

at 402. Ovante committed two murders and admitted two

aggravating circumstances, rendering him eligible for a death

sentence. That the County Attorney sought this sentence in many

qualifying cases in Maricopa County, or rejected Ovante’s offers

to plead guilty in exchange for a life sentence, does not make

the decision to seek death in his case unconstitutional. See

id. ¶ 143.

D. Prosecutor’s Closing Argument

¶23 Ovante argues that, in closing argument, the

prosecutor (1) impermissibly suggested that Ovante had failed to

take responsibility for his actions by implying Ovante’s

presentation of mitigation and request for mercy were negative

conduct, and (2) made “an overly emotional play coloring Mr.

10

Ovante as a poisoned seed from a bad family.” Because Ovante

did not object at trial, we review the statements for

fundamental error. See State v. Henderson, 210 Ariz. 561, 567

¶ 19, 115 P.3d 601, 607 (2005).

¶24 Prosecutors are given “wide latitude” when presenting

arguments. State v. Morris, 215 Ariz. 324, 336 ¶ 51, 160 P.3d

203, 215 (2007). They are permitted to suggest reasonable

inferences from the facts presented, but their statements should

not “call[] the jurors’ attention [to] matters [the jury] should

not consider.” Id. Although highly misleading statements might

sometimes taint a trial, “cautionary instructions by the court

generally cure any possible prejudice” from statements by

counsel because juries are presumed to follow the trial court’s

instructions. State v. Manuel, 229 Ariz. 1, 6 ¶ 24, 270 P.3d

828, 833 (2011)

¶25 Here, the trial court instructed the jurors that

statements by the lawyers should not be interpreted as evidence

and should only be used as tools to help the jury “understand

the evidence and apply the law.” Given these instructions, we

evaluate Ovante’s claim presuming that the jury recognized that

the lawyers’ statements were not evidence and that the jury

sought to reach a “reasoned, moral judgment about which sentence

[was] justified and appropriate.” See State v. Newell, 212

Ariz. 389, 403 ¶¶ 67–68, 132 P.3d 833, 847 (2006) (holding that

11

jury instructions negated improper comments of

prosecutor); State v. Anderson, 210 Ariz. 327, 342 ¶ 50, 111

P.3d 369, 384 (2005) (holding that jury instructions cured the

prosecutor's misstatement of the law).

i. Failure to take responsibility

¶26 Ovante argues that, by telling the jury that Ovante

failed to take responsibility for his actions, the prosecutor

improperly suggested “that the presentation of mitigation

evidence constitutes a failure to own up to the [criminal]

conduct.” He argues the prosecutor directly attacked the

process of mitigation instead of specific mitigating factors,

permitting the jury to unfairly conclude that Ovante’s “plea for

his life [during the mitigation process] was nothing more than a

failure to take responsibility.”

¶27 The record does not support Ovante’s claim that the

State improperly argued that the presentation of mitigation was

itself a failure to accept responsibility. During the penalty

phase, the defense contended that Ovante’s negative childhood

and background played a large part in his predicament,

repeatedly making statements like “our choices are the product

of our backgrounds,” and “[w]hat goes into the recipe bowl is

oftentimes what comes out.” In response, the State argued that

Ovante had a choice in all of the decisions he made but was

attempting to deflect responsibility.

12

¶28 Although the State is prohibited from telling a

capital jury that it cannot consider mitigating evidence, the

State may argue that mitigating evidence should not be given

much weight. See State v. Pandeli, 215 Ariz. 514, 526 ¶¶ 35–

36, 161 P.3d 557, 569 (2007). Because the prosecutor was

rebutting mitigation evidence presented about Ovante’s troubled

childhood and dysfunctional family, the prosecutor’s comments

did not create fundamental error.

ii. Overly Emotional Argument

¶29 Ovante next argues that the prosecutor’s closing

argument made “an overly emotional play coloring [him] as a

poisoned seed from a bad family.” He asserts that the

prosecutor focused heavily on the “generational violence”

present in Ovante’s family and allowed the jury to speculate

that, if it did not impose the death sentence, other murders

could occur during this or future generations.

¶30 The prosecutor’s comments about generational violence

responded to defense arguments that Ovante’s conduct partially

resulted from his dysfunctional family. The prosecutor said,

“But what happens down the line? When does it stop? When does

anyone in the Ovante family have to stand up and say, I made

choices? I am responsible for what I did. Instead of poisoning

further generations of Ovantes . . . .” Viewed in context,

these statements militated against the notion that one

13

generation of a family “poisons” the next, and did not urge the

jury to sentence Ovante to death to prevent such “poisoning.”

Even if the prosecutor’s words were susceptible to

misunderstanding, we presume the trial court’s admonition

negated any improper statements. See, e.g., Newell, 212 Ariz.

at 403 ¶¶ 67–68, 132 P.3d at 847 (holding that jury instructions

negated prosecutor’s comments). Ovante has not shown that the

prosecutor’s closing comments were fundamental error.

E. Evidence of Circumstances of the Murders

¶31 Ovante argues that the trial court abused its

discretion by allowing the State, at the beginning of the

penalty phase, to present evidence of the circumstances of his

crimes. Noting that he pleaded guilty to the charges and

stipulated to the alleged aggravating factors, Ovante argues

that this evidence was irrelevant to the thrust of his

mitigation and unfairly prejudicial.

¶32 This argument is meritless. This Court recently

reaffirmed that the State may offer evidence in the penalty

phase about the circumstances of the murder regardless of

whether the defendant presents any mitigation. See State v.

Nordstrom, 230 Ariz. 110, 114-115 ¶¶ 10, 13, 280 P.3d 1244,

1248–49 (2012). Ovante has not established that any of the

State’s evidence regarding the circumstances of the murders and

the aggravated assault (or the related (F)(2) and (F)(8)

14

aggravating circumstances) was unduly prejudicial. Cf. id. at

115 ¶ 11, 280 P.3d at 1249 (holding that evidence of

circumstances of crime was not unduly prejudicial).

F. Final Jury Instructions

¶33 Ovante argues that the trial court erred in its final

jury instructions by stating that Ovante had admitted two

statutory aggravating factors and then failing to identify the

particular aggravators for the jurors. He contends that the

applicable aggravating factors had to be identified in order for

jurors to assess whether the mitigating factors called for

leniency. Because Ovante did not object to the instructions at

trial, we review this claim for fundamental error. State v.

Kuhs, 223 Ariz. 376, 386 ¶ 52, 224 P.3d 192, 202 (2010).

¶34 In the preliminary instructions before the penalty

phase, the trial court explained that Ovante had admitted two

aggravating factors and then briefly described those factors.

Both parties received a copy of the final jury instructions

before they were read to the jury and neither party objected to

how the aggravating and mitigating circumstances were handled.

In the final jury instructions, the court said, “The defendant

has admitted that statutory aggravating circumstances exist,

which make the defendant eligible for the death sentence,” but

the court did not specifically identify which aggravating

factors Ovante had admitted. The prosecution, however, did

15

explain the two aggravating factors in its closing statement.

¶35 “In assessing the adequacy of jury instructions, the

instructions must be viewed in their entirety to determine

whether they adequately reflect the law.” State v. Garcia, 224

Ariz. 1, 18 ¶ 75, 226 P.3d 370, 387 (2010). A court is not

required to give a separate instruction if its substance has

already been covered by other instructions, id., and “[a]

conviction will not be reversed based on the instructions

unless, taken as a whole, they misled the jurors.” State v.

Zaragoza, 221 Ariz. 49, 53 ¶ 15, 209 P.3d 629, 633 (2009).

¶36 The jury instructions, taken as a whole, were accurate

and not misleading. The preliminary instructions specifically

identified the applicable aggravating circumstances. At the

beginning of the penalty phase, the prosecution presented

evidence regarding the crimes and aggravating factors that

Ovante had admitted. Although it would have been better

practice for the trial court to have again identified the

particular aggravating factors in the final instructions, the

failure to do so here was not fundamental error.

G. Discrepancy between the Minute Entry and Oral Pronouncement
of the Sentence

¶37 Ovante argues his sentence must be remanded for

clarification because the trial judge orally pronounced that his

sentences would run consecutively but entered a minute entry

16

ordering two of them to run concurrently. In pronouncing the

sentences, the trial court observed that the victims’ suffering

warranted separate sentences. Accordingly, the court gave

Ovante a six-year prison term for the aggravated assault charge,

to begin on February 24, 2010, and stated that Ovante would

“then be sentenced to life” in prison for count 1 and death for

count 2. The court also announced that Ovante’s life sentence

for count 1 would run consecutively to his death sentence for

count 2. Although the corresponding minute entry states that

the sentence on count 1 will run consecutively to that for count

2, it states that all sentences will begin on February 24, 2010.

¶38 When a discrepancy between the trial court’s oral

pronouncement of a sentence and the written minute entry can be

clearly resolved by looking at the record, the “[o]ral

pronouncement in open court controls over the minute entry.”

State v. Whitney, 159 Ariz. 476, 487, 768 P.2d 638, 649 (1989).

This Court can order the minute entry corrected if the record

clearly identifies the intended sentence. Id. at 487, 768 P.2d

at 649.

¶39 Here, the trial court clearly stated its intent that

the sentence on the aggravated assault count would begin on

February 24, 2010, and the life sentence on count 1 would run

consecutively to the death sentence on count 2. By stating that

Ovante’s death sentence would be concurrent with his sentence

17

for the aggravated assault, the minute entry is not inconsistent

with the oral pronouncement of the sentences. The minute entry,

however, incorrectly states that the sentence of life with

possible parole after twenty-five years will also begin on

February 24, 2010. Accordingly, we correct the minute entry to

delete this statement, leaving the sentence on count 1 to run

consecutively to the sentence on count 2, and affirm the trial

court’s oral pronouncement of the sentences.

H. Abuse of Discretion Review

¶40 Because Ovante murdered Vickers after August 1, 2002,

we review the jury’s imposition of a death sentence for abuse of

discretion. A.R.S. § 13-756(A) (2008) State v. Chappell, 225

Ariz. 229, 242 ¶ 56, 236 P.3d 1176, 1189 (2010).

1. Aggravating Circumstances

¶41 Ovante admitted the (F)(2) aggravator based on his

conviction of aggravated assault with a handgun against

Valenzuela and the (F)(8) aggravator based on his premeditated

murder of Trujillo. After Ovante pleaded guilty, the court

conducted a second colloquy to confirm that he was knowingly,

voluntarily, and intelligently admitting the aggravators and

that he understood that death was a possible sentence.

¶42 Nothing prevents a defendant from waiving his Sixth

Amendment right to have a jury determine aggravating

circumstances. State v. Brown, 212 Ariz. 225, 231 ¶ 26, 129

18

P.3d 947, 953 (2006) (citing Blakely v. Washington, 542 U.S.

296, 310 (2004)). The record amply supports the (F)(2) and

(F)(8) aggravators admitted by Ovante.

2. Mitigating Circumstances

¶43 At the penalty phase, each juror must determine

whether mitigating circumstances exist and whether death is the

appropriate penalty. See A.R.S. § 13-751(C). “The defendant

must prove the existence of the mitigating circumstances by a

preponderance of the evidence,” but “the jurors do not have to

agree unanimously that a mitigating circumstance has been proven

to exist.” Id.

¶44 Ovante presented several mitigation witnesses. The

days of testimony detailing Ovante’s childhood drew a bleak

picture of a life filled with poverty, violence, crime,

molestation, and drug use. The defense discussed his

longstanding substance abuse, and Ovante expressed remorse

during allocution, but there was little evidence showing a

strong connection between the mitigation and the murders.

3. Propriety of death sentence

¶45 We must uphold a jury’s decision that death is

appropriate if any “reasonable juror could conclude that the

mitigation presented was not sufficiently substantial to call

for leniency.” State v. Gallardo, 225 Ariz. 560, 570 ¶ 52, 242

P.3d 159, 169 (2010). In the context of independent review, the

19

Court has given “extraordinary weight” to the multiple murders

aggravating circumstance. State v. Hampton, 213 Ariz. 167, 185

¶ 90, 140 P.3d 950, 968 (2006). Here, in light of the (F)(2)

and (F)(8) aggravators and the mitigation evidence in the

record, a reasonable juror could conclude that the mitigating

circumstances were not “sufficiently substantial to call for

leniency.” Id.; see also A.R.S. § 13-751(C).

I. Additional Issues

¶46 Stating that he seeks to preserve certain issues for

federal review, Ovante lists thirty-one additional

constitutional claims that he acknowledges have been rejected in

previous decisions. We decline to revisit these claims.

CONCLUSION

¶47 We affirm Ovante’s convictions and his sentences as

corrected.

__________________________________
Scott Bales, Vice Chief Justice

CONCURRING:

__________________________________
Rebecca White Berch, Chief Justice

__________________________________
A. John Pelander, Justice

__________________________________
Robert M. Brutinel, Justice

20

__________________________________
Ann A. Scott Timmer, Justice

21