State of Arizona v. Gilbert Martinez

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0177-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2006-007790-001 DT
GILBERT MARTINEZ, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Rosa Mroz, Judge

AFFIRMED
________________________________________________________________

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

DROBAN & COMPANY, PC Anthem
By Kerrie M. Droban
Attorney for Gilbert Martinez
________________________________________________________________

B R U T I N E L, Justice

¶1 A jury found Gilbert Martinez guilty of one count of

first degree burglary, four counts of aggravated assault, four

counts of kidnapping, one count of theft, and one count of first

degree murder. After a mistrial in the penalty phase, a second

jury determined he should be sentenced to death. We have
jurisdiction over this automatic appeal under Article 6, Section

5(3) of the Arizona Constitution and A.R.S. § 13-4031 (2010).

I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 On March 31, 2006, Betty L.’s daughters, Karen B. and

Colleen J., and their husbands, Forest B. and Vern J., were

visiting Betty and her husband, Laurel L., at their home in Sun

City.1 Martinez and Robert Arbolida watched the home, planning

to burglarize it. They left to get a gun, returning to the

house after its six occupants had gone to bed.

¶3 Martinez broke a patio door at the back of the house,

went inside, and let Arbolida in through the kitchen door.

Hearing a loud noise, Betty and Laurel went to investigate. In

the hallway, they encountered the two intruders, who were

wearing masks and gloves. Martinez and Arbolida pushed Betty

and Laurel into the room where Karen and Forest were staying.

Martinez threatened them, yelling profanities and telling them

to cooperate or he would kill them. When Laurel moved too

slowly because of his age and asthma, Martinez became frustrated

and pushed him. When Forest attempted to help Laurel, Martinez

pistol-whipped Forest, permanently injuring his eye. Martinez

then directed Arbolida to bind the four victims with zip ties.

Apparently having seen a third woman earlier when casing the

1
“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

house, Martinez said to Arbolida, “Let’s go find the other

bitch.”

¶4 Colleen and Vern heard the commotion and Martinez’s

statement from their bedroom. Vern pushed Colleen into the

closet and closed the door. Vern, weaponless, went to the

bedroom door to stand between his wife and the intruders.

¶5 Martinez met Vern in the hallway, a scuffle ensued,

and Martinez fatally shot Vern. Martinez and Arbolida then fled

with various items belonging to the victims. They went to

Martinez’s sister’s house, where they cleaned blood off

themselves and divided the stolen property.

¶6 Martinez was later arrested and indicted on twenty-

three counts, including felony murder, stemming from this

burglary and six other burglaries and robberies in the same

area. The State sought the death penalty, alleging two

aggravating circumstances: Martinez previously had been

convicted of a serious offense, A.R.S. § 13-751(F)(2), and had

committed the murder for pecuniary gain, § 13-751(F)(5).

¶7 The trial court severed the charges by occurrence and,

after the State dismissed charges related to one of the

burglaries, ordered six separate trials. Martinez was acquitted

on one burglary (“the Krusenstjerna burglary”), but found guilty

on all other charges.

¶8 The jury in this case found Martinez guilty of eleven

3

charges, including felony murder, relating to the burglary of

Betty and Laurel’s home. The jury then found both alleged

aggravating circumstances proven beyond a reasonable doubt. It

also found that Martinez actually killed Vern and was a major

participant in his murder. The jury, however, hung in the

penalty phase, and the trial court declared a mistrial.

¶9 Following a second penalty-phase trial, a new jury

determined Martinez should be sentenced to death. The court

also sentenced him to 124 years’ imprisonment on the non-capital

charges.

II. ISSUES ON APPEAL

A. Denial of motions to strike potential jurors

¶10 Martinez challenges the trial court’s denial of his

motions to strike prospective jurors 2, 4, 15, 27, 44, and 59 in

the first trial and jurors 4, 10, and 105 in the second penalty

phase trial.2 Because none of those jurors served on either of

the juries that decided this case, “any error by the trial judge

in refusing to strike them [is] not reversible error absent

prejudice to [Martinez].” State v. Moore, 222 Ariz. 1, 18 ¶ 99,

213 P.3d 150, 167 (2009). Martinez is not entitled to relief

2
Martinez alleges violations of our state constitution on
this and other issues. Because he has not separately argued any
Arizona constitutional claims, however, we do not address them.
See, e.g., State v. Dean, 206 Ariz. 158, 161 ¶ 8 n.1, 76 P.3d
429, 432 n.1 (2003); State v. Altieri, 191 Ariz. 1, 2 ¶ 4 n.1,
951 P.2d 856, 867 n.1 (1997).

4

because he has not alleged or shown any prejudice, and “[n]o

evidence suggests that the sentencing jury was not fair and

impartial.” Id.; see also State v. Martinez, 218 Ariz. 421, 429

¶ 35, 189 P.3d 348, 356 (2008) (“We need not address this

argument because the juror in question was not seated and [the

defendant] makes no claim that any of the jurors who decided his

case should have been struck for cause.”).

B. Admission of bag with ammunition

¶11 Martinez asserts that the trial court, in the guilt

phase, abused its discretion by admitting exhibit 344, a brown

bag and its contents, and denying his subsequent motion for a

mistrial.

¶12 A detective testified that when officers executed a

search warrant at Martinez’s home, they found in the garage a

brown bag containing a gun case, a 9 mm handgun magazine, six

spent 9 mm casings, two boxes of .357 Magnum ammunition, a box

of .38 Special ammunition, an empty .22 caliber ammunition box,

loose .22 caliber rounds, a live 9 mm cartridge, an empty knife

scabbard, a pair of brown gloves, and ear plugs.

¶13 During the detective’s testimony, the State offered

into evidence the bag and its contents, along with zip ties,

labeled exhibit 345, also found in Martinez’s garage. Martinez

objected only to the admission of the zip ties. The court

admitted both exhibits. The State then had the detective remove

5

each item from the bag and describe it. Martinez objected on

relevance grounds to the bag’s contents. The trial court

overruled his objection, noting that the bag had already been

admitted. After a break, Martinez moved for a mistrial “based

on the prejudice of those items in that [bag].” The court

denied the motion, finding the contents of the bag “pretty

innocuous.”

¶14 Because Martinez did not object before the exhibit was

admitted into evidence, we review for fundamental error.3 State

v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005);

see Ariz. R. Evid. 103(a)(1). To prevail under this standard,

Martinez must first establish that an error occurred, then show

that the error was fundamental in nature and caused prejudice.

State v. Hargrave, 225 Ariz. 1, 8 ¶ 13, 234 P.3d 569, 576

(2010).

¶15 Evidence of ammunition other than 9 mm, the caliber

used to kill Vern, was irrelevant and should not have been

admitted. But even if the trial court erred in admitting the

contents of the bag, Martinez has not shown prejudice. As the

trial court stated, in context the evidence was innocuous, and

the State never suggested that these items were connected to the

3
The State noted that this exhibit had been marked and
available for Martinez to view for months, and Martinez did not
dispute that assertion.

6

crime or that they confirmed Martinez as the killer. See United

States v. King, 254 F.3d 1098, 1101-02 (D.C. Cir. 2001) (finding

admission of evidence that defendant possessed a knife harmless

because it was “tangential to the Government’s case”).

C. Admission of nineteen prior offenses to prove (F)(2)
aggravator

¶16 Martinez argues that the trial court erred in allowing

the State to use nineteen prior serious felony convictions to

prove the (F)(2) aggravator, contending this evidence was unduly

prejudicial and denied him due process. We review a trial

court’s admission of evidence in the aggravation phase for an

abuse of discretion. See State v. Tucker, 215 Ariz. 298, 313

¶ 46, 314-15 ¶ 58, 160 P.3d 177, 192, 193-94 (2007).

¶17 Before trial, the State noticed its intent to prove

the (F)(2) aggravating circumstance by using Martinez’s

convictions from the five prior trials, a burglary conviction

from 1999, and the non-murder convictions arising from the

burglary of Betty and Laurel’s home. Martinez filed a “Motion

to Preclude Extraneous (F)(2) Aggravator Evidence,” arguing that

evidence of any serious offenses extraneous to those that

occurred with the murder would be unduly prejudicial and

cumulative and thus barred by Arizona Rule of Evidence 403. The

trial court denied the motion.

¶18 The (F)(2) aggravator requires proof beyond a

7

reasonable doubt that:

The defendant has been or was previously convicted of
a serious offense, whether preparatory or completed.
Convictions for serious offenses committed on the same
occasion as the homicide, or not committed on the same
occasion but consolidated for trial with the homicide,
shall be treated as a serious offense under this
paragraph.

§ 13-751(F)(2). Although we have never squarely addressed

whether to limit the number of prior convictions the state can

use to prove this aggravating circumstance, we have upheld

without comment (F)(2) findings based on multiple prior

convictions. See, e.g., State v. Phillips, 202 Ariz. 427, 438-

39 ¶¶ 56-57, 46 P.3d 1048, 1059-60 (2002) (finding (F)(2)

aggravator supported by evidence of twenty-seven prior

convictions).

¶19 The trial court correctly observed that the “decision

to offer evidence of aggravation or not offer such evidence is

the responsibility of the prosecutor.” State v. Murphy, 113

Ariz. 416, 418, 555 P.2d 1110, 1112 (1976). But because § 13-

751(B) provides that the Arizona Rules of Evidence govern the

aggravation phase, the trial court must exclude evidence “if its

probative value is substantially outweighed by a danger of . . .

unfair prejudice.” Ariz. R. Evid. 403. Therefore, the

pertinent inquiry is whether the probative value of the evidence

of Martinez’s nineteen other convictions was substantially

8

outweighed by the danger of unfair prejudice or other factors

identified in Rule 403.

¶20 Martinez argues that evidence of only one prior

conviction is necessary to prove the (F)(2) aggravator.

Although that is true, we have never suggested that once

sufficient evidence is admitted to prove an aggravator, the

state cannot present further evidence in support of that

aggravator. Martinez has not challenged the validity of any of

the nineteen convictions or otherwise identified how the State’s

proving the (F)(2) aggravator with multiple convictions

unfairly prejudiced him in the aggravation phase.

¶21 Martinez’s claim of prejudice arises from the State’s

later use of the evidence in the penalty phase. Although the

rules of evidence do not apply to the penalty phase, A.R.S.

§ 13-751(C), trial courts, pursuant to the Due Process Clause of

the Fourteenth Amendment, must still exclude evidence that is

unfairly prejudicial. See State v. Pandeli, 215 Ariz. 514, 527-

28 ¶ 43, 161 P.3d 557, 570-71 (2007) (noting that the

determination of unfair prejudice in penalty phase “involves

fundamentally the same considerations” as prejudice

determinations under Arizona Rule of Evidence 403). “Not all

harmful evidence, however, is unfairly prejudicial.” State v.

Mott, 187 Ariz. 536, 555-56, 931 P.2d 1046, 1055-56 (1997).

“Unfair prejudice results if the evidence has an undue tendency

9

to suggest decision on an improper basis, such as emotion,

sympathy, or horror.” Id. at 545, 931 P.2d at 1055.

¶22 Here, as the trial court found, each conviction went

to the “severity of the (F)(2) aggravator.” Each was probative

in the penalty phase to show Martinez’s “character and

propensities” and to strengthen the weight of the aggravator.

See State v. Gretzler, 135 Ariz. 42, 54, 659 P.2d 1, 13 (1983)

(noting that “the purpose of an aggravation/mitigation hearing

is to determine the character and propensities of the defendant”

because “[t]he punishment should fit the offender” (internal

quotation omitted)); State v. Howell, 868 S.W.2d 238, 261 (Tenn.

1993) (“[T]he effect of the aggravating circumstance on sentence

may increase where there is proof of more than one prior violent

felony conviction.”). In Arizona, an aggravating circumstance

not only qualifies a defendant for the death penalty, but is

also considered “in determining whether to impose a sentence of

death.” A.R.S. § 13-751(F); see also id. § 13-752(D), (G).

Therefore, the trial court correctly found the prior convictions

to be highly probative.

¶23 Nor did the trial court abuse its discretion in

implicitly finding that the probative value of the evidence was

not substantially outweighed by the danger of unfair prejudice.

In death penalty sentencing, the trier of fact must make an

individualized decision based on the “character and record of

10

the individual offender and the circumstances of the particular

offense.” Romano v. Oklahoma, 512 U.S. 1, 7 (1994) (internal

quotation omitted); see also A.R.S. §§ 13-751(G), -752(G). Such

evidence will often be prejudicial, but evidence of prior

convictions is not unfairly prejudicial because it is highly

relevant to making an individualized sentencing decision.

D. Prosecutorial misconduct

¶24 Martinez argues that the prosecutor’s “pervasive

prosecutorial misconduct” mandates reversal of his death

sentence and that Double Jeopardy bars retrial. Prosecutorial

misconduct warrants reversal if “(1) misconduct is indeed

present; and (2) a reasonable likelihood exists that the

misconduct could have affected the jury’s verdict, thereby

denying [the] defendant a fair trial.” State v. Anderson, 210

Ariz. 327, 340 ¶ 45, 111 P.3d 369, 382 (2005) (internal

quotation omitted). “To prevail on a claim of prosecutorial

misconduct, a defendant must demonstrate that the prosecutor’s

misconduct ‘so infected the trial with unfairness as to make the

resulting conviction a denial of due process.’” State v.

Hughes, 193 Ariz. 72, 79 ¶ 26, 969 P.2d 1184, 1191 (1998)

(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).

¶25 This Court separately reviews “each instance of

alleged misconduct, and the standard of review depends upon

whether the defendant objected.” State v. Morris, 215 Ariz.

11

324, 335 ¶ 47, 160 P.3d 203, 214 (2007). If Martinez objected,

the Court reviews for harmless error; if he did not, we review

for fundamental error. State v. Gallardo, 225 Ariz. 560, 568

¶ 35, 242 P.3d 159, 167 (2010).

1. Courtroom conduct

¶26 The first allegation of misconduct concerns the lead

prosecutor’s courtroom conduct throughout both trials. During

voir dire in the guilt phase, the court warned the prosecutor to

watch her conduct because, she “tend[ed] to give a big sigh,

audible sigh, and throw up [her] hands and roll [her] eyes” when

the court ruled against her. But the judge also noted this

conduct was infrequent. Later, defense counsel noted on the

record that the same prosecutor continued to roll her eyes

during witness testimony. The trial court stated it had not

seen the prosecutor do this, but admonished all the attorneys to

“try to keep [their] facial expressions neutral as to not

influence the Jury one way or the other.”

¶27 After the first penalty phase ended in a mistrial,

Martinez moved to strike the notice of intent to seek the death

penalty based on the prosecutor constantly “rolling her eyes;”

“quipping,” “ad-libbing,” and her “running commentary on various

events as they occur during trial;” as well as her “propensity

to display irritation, displeasure or skepticism over rulings by

the Court adverse to her.” Defense counsel said a juror

12

mentioned this conduct during a “post-deadlock debriefing,” in

which the juror said the lead prosecutor’s eye-rolling was

“counter-productive and damaging to her credibility.” The trial

judge denied the motion, finding that the prosecutor did not

commit any intentional misconduct and that her behavior did not

prejudice the defendant. The judge noted that “the one juror

who did make a comment said it damaged [the prosecutor]’s

credibility. And, in fact, the jury deadlocked . . . on the

penalty for the Defendant.”

¶28 After the second penalty phase, Martinez moved for a

new trial, based in part on prosecutorial misconduct. He again

alleged that the prosecutor engaged in both “vouching and ex-

parte communication” with the jury throughout the trial by

making “various facial expressions.” He said he did not make a

motion during the trial because the conduct came to light only

after the verdict, when a juror likened the prosecutor’s facial

expressions to “a message board,” noting “that he could tell her

emotions throughout the trial.” The trial court denied the

motion.

¶29 Martinez argues that this misconduct constituted

“improper ‘vouching’ and ex-parte communication with jurors.”

“Prosecutorial vouching takes two forms: ‘(1) where the

prosecutor places the prestige of the government behind its

[evidence] [and] (2) where the prosecutor suggests that

13

information not presented to the jury supports the [evidence].’”

State v. Newell, 212 Ariz. 389, 402 ¶ 62, 132 P.3d 833, 846

(2006) (quoting State v. Vincent, 159 Ariz. 418, 423, 768 P.2d

150, 155 (1989)) (alterations in Newell). Any eye-rolling or

disapproving facial expressions signaled that the State did not

believe the evidence Martinez was presenting. Although

improper, this behavior does not amount to vouching. Nor did it

suggest that information outside the record supported the

witness’s testimony.

¶30 These allegations, however, are very troubling. It is

highly inappropriate for “[a] prosecutor . . . to convey his [or

her] personal belief about the credibility of a witness,” State

v. Lamar, 205 Ariz. 431, 441 ¶ 54, 72 P.3d 831, 841 (2003), and

to relay to the jury disagreement with trial court rulings by

facial expression. From the record, it is clear that this

prosecutor’s courtroom demeanor was inappropriate. However, the

conduct during the first trial was documented only twice, and

the trial judge was not certain it had occurred the second time.

The trial court’s firsthand observations and assessments are

entitled to substantial deference in this context. Although one

juror commented on the prosecutor’s behavior, the record does

not show reversible error based on this conduct.

¶31 Because Martinez did not object to any of the alleged

misconduct during the second penalty phase, we review those

14

matters for fundamental error. Gallardo, 225 Ariz. at 568 ¶ 35,

242 P.3d at 167. The trial court was in the best position to

assess the prosecutor’s courtroom demeanor and its effect on the

jury, Newell, 212 Ariz. at 402 ¶ 61, 132 P.3d at 846, and denied

Martinez’s motion for a new trial. Even if some misconduct

occurred during the second trial, Martinez has not shown

prejudice and is not entitled to relief on this ground. See

Henderson, 210 Ariz. at 567 ¶ 20, 115 P.3d at 607.

¶32 Martinez also argues that Pool v. Superior Court, 139

Ariz. 98, 677 P.2d 261 (1984), mandates reversal and bars

retrial in this case. But the misconduct in that case was

continuous and well-documented. Id. at 102-03, 677 P.2d at 265-

66. Here, although the prosecutor’s courtroom conduct was

inappropriate, it was confirmed only twice by the trial judge,

who did not think it amounted to such pervasive misconduct as to

bar retrial of the penalty phase.

¶33 Although the prosecutor’s conduct does not amount to

reversible error, we again strongly disapprove of such courtroom

behavior. Trial courts should promptly address this type of

misbehavior by warnings to counsel and other steps as may be

appropriate. Arizona attorneys pledge to “maintain the respect

due to courts of justice and judicial officers,” to “abstain

from all offensive conduct,” and to adhere to “a lawyer’s creed

of professionalism.” Ariz. R. Sup. Ct. 31 (The Oath of

15

Admission to the Bar). Eye-rolling, dramatic sighing, and other

expressions of displeasure in a courtroom violate these

standards. This is unacceptable behavior from any attorney, but

especially from a prosecutor, who serves as a “minister of

justice.” See Hughes, 193 Ariz. at 80 ¶ 33, 969 P.2d at 1192;

Ariz. R. Sup. Ct. 42, E.R. 3.8, cmt. 1.

2. Comparison between Martinez and the victims

¶34 The next alleged instance of misconduct occurred

during the prosecutor’s cross-examination of a defense expert

during the first penalty phase. The expert testified about the

effect on Martinez of the domestic violence that occurred in his

childhood home. In response, and without objection, the

prosecutor asked the witness about the impact on a widow of

“hearing your husband being shot.”

¶35 Because Martinez did not object to the prosecutor’s

question or move for a mistrial, we review for fundamental

error. Gallardo, 225 Ariz. at 568 ¶ 35, 242 P.3d at 167. The

question did not compare the victim to Martinez, but went to

victim impact. See id. at 567 ¶ 25, 242 P.3d at 166 (“Arizona

law generally allows victim impact evidence during the penalty

phase to rebut mitigation.”). The prosecutor did not later

attempt to argue any comparison, and even if the question was

objectionable, Martinez has failed to show the prejudice

necessary to establish fundamental error.

16

3. First penalty phase closing argument

¶36 Martinez further argues the prosecutor committed

misconduct during her first penalty phase closing argument when

she said:

Now Judge Mroz told you, quote, “that you are not
required to find a connection between a mitigating
circumstance and the crime committed in order to
consider the mitigating evidence,” but I suggest to
you a lack of any connection between the mitigating
circumstance and the murder is one thing to consider
in deciding how compelling any mitigating
circumstance[] you may find to have been proven really
is.

Martinez did not object.

¶37 Martinez argues that this statement improperly implied

that the jurors had to find a nexus between Martinez’s childhood

and the murder. But the prosecutor did not tell the jury that a

nexus was required; rather she said lack of a connection can be

considered in determining “how compelling any mitigating

circumstance[] you may find to have been proven really is.”

This is a proper statement of the law. “Although a connection

between a defendant’s proffered mitigation and the crime is not

required, the state may fairly argue that the lack of a nexus to

the crime diminishes the weight to be given alleged mitigation.”

State v. Prince, 226 Ariz. 516, 539 ¶ 91, 250 P.3d 1145, 1168

(2011) (internal quotation omitted).

17

4. Second penalty phase opening statement

¶38 The final alleged misconduct occurred during the

State’s opening statement in the second penalty phase. The

prosecutor discussed the circumstances of the murder and the

facts relating to each prior conviction used to support the

(F)(2) aggravating circumstance. One of the prior acts the

prosecutor discussed was a burglary of the Krustenstjernas’

home, and she acknowledged that Martinez was acquitted on that

charge. Later in her statement, she also talked about the

State’s expert who would testify and suggested Martinez

malingered on that expert’s test because he “will do anything,

say anything, use anyone to save his own skin.” After the

prosecutor finished, Martinez moved for a mistrial, which the

trial court denied.

¶39 Martinez argues that the prosecutor committed

misconduct by mentioning the burglary for which he was acquitted

and by insinuating that he had concocted his mental health

mitigation. Because he objected to both lines of argument, we

review for harmless error if prosecutorial misconduct occurred.

Gallardo, 225 Ariz. at 568 ¶ 35, 242 P.3d at 167.

¶40 Any error in the prosecutor’s mention of the

Krustenstjerna burglary was harmless. The jurors were

instructed that Martinez had been acquitted of that burglary and

they should not use it against him. We presume jurors follow

18

instructions. Tucker, 215 Ariz. at 319 ¶ 89, 160 P.3d at 198.

¶41 As for the insinuation that Martinez concocted his

mental health mitigation, the prosecutor’s statement was not

improper because it was supported by testimony from the State’s

expert that Martinez malingered on examinations. The trial

court correctly denied the motion for mistrial. See State v.

Hallman, 137 Ariz. 31, 37, 668 P.2d 874, 880 (1983) (noting

first prong of test to determine if trial court should grant

mistrial after improper remarks are made is whether it called

jurors’ attention to “matters that they would not be justified

in considering in determining their verdict”).

5. Cumulative effect

¶42 Martinez argues that the prosecutor’s misconduct

permeated the proceedings, rendering his trials fundamentally

unfair. When reviewing such claims, this Court considers

whether “the cumulative effect of the incidents shows that the

prosecutor intentionally engaged in improper conduct and ‘did so

with indifference, if not a specific intent, to prejudice the

defendant.’” State v. Roque, 213 Ariz. 193, 228 ¶ 155, 141 P.3d

368, 403 (2006) (quoting Hughes, 193 Ariz. at 80 ¶ 31, 969 P.2d

at 1192).

¶43 The record does not support Martinez’s argument.

Although Martinez contends the prosecutor continuously was

inappropriate in the courtroom, he objected only twice. Both

19

times, the trial court overruled the objections; it also denied

Martinez’s mistrial motions. The first penalty phase ended in a

hung jury, and the trial court noted that any misconduct seemed

to have prejudiced the jury against the State, not Martinez.

Although the record reflects a few instances in the second

penalty phase in which a witness and defense counsel noted that

the prosecutor was “making faces” and “rolling [her] eyes,”

Martinez did not object and has not shown prejudice.

E. Challenged rebuttal evidence

¶44 Martinez contends that, in the second penalty phase

trial, the trial court erred by admitting as rebuttal evidence

four photographs of stolen items connected to other burglaries

and testimony regarding his visit to a strip bar. “A trial

court’s ruling on the admission of evidence in the penalty phase

is reviewed for an abuse of discretion.” State v. Harrod, 218

Ariz. 268, 279 ¶ 38, 183 P.3d 519, 530 (2008). Because Martinez

objected at trial to the admission of this evidence, if we find

it was improperly admitted, we review for harmless error.

Henderson, 210 Ariz. at 567 ¶ 18, 115 P.3d at 607.

¶45 During the penalty phase, the prosecution “may present

any information that is relevant to any of the mitigating

circumstances,” A.R.S. § 13-751(C), and “any evidence that is

relevant to the determination of whether there is mitigation

that is sufficiently substantial to call for leniency,”

20

including “evidence that demonstrates that the defendant should

not be shown leniency,” § 13-752(G). Although our Rules of

Evidence do not apply to the penalty phase, § 13-751(C), trial

courts must exclude rebuttal “evidence that is either irrelevant

to the thrust of the defendant’s mitigation or otherwise

unfairly prejudicial.” State v. Hampton, 213 Ariz. 167, 180

¶ 51, 140 P.3d 950, 963 (2006). “A judge’s analysis in

determining the relevance of rebuttal evidence involves

fundamentally the same considerations as relevance and prejudice

determinations under Arizona Rules of Evidence 401 and 403.”

Pandeli, 215 Ariz. at 528 ¶ 43, 161 P.3d at 571.

1. Photographs

¶46 The State introduced photographs of some of the items

the police found in a search of Martinez’s sister’s house.

These items included a box that contained an empty zip tie bag,

a boom box connected to another burglary, and a wheelbarrow that

contained burnt items including a driver’s license connected to

the Krustenstjerna burglary. Because the zip tie bag, boom box,

and wheelbarrow were not directly connected to Martinez and did

not rebut his mitigation evidence, they were irrelevant and

should have been excluded. The burnt driver’s license should

have been excluded because it related to the burglary for which

Martinez was acquitted. Any probative value of that evidence

was outweighed by the danger of unfair prejudice.

21

¶47 But the error in admitting this evidence was harmless.

That Martinez’s sister had some stolen items at her house was

relatively minor compared to the strength of the aggravating

circumstances and certainly did not influence the jury’s

decision that the mitigation was not sufficiently substantial to

warrant leniency. Moreover, the jury was instructed to not use

evidence relating to the Krustenstjerna burglary against

Martinez. See Tucker, 215 Ariz. at 319 ¶ 89, 160 P.3d at 198.

2. Strip club

¶48 The State presented evidence that, during an

interrogation after his arrest, Martinez claimed to have been at

a strip club at the time of the murder. The State offered time-

stamped video-surveillance photographs from the club that showed

Martinez paying his entry fee at 1:28 a.m. the morning after the

murder. Martinez objected to the admission of his statement and

the photographs, arguing they were irrelevant and prejudicial.

The trial court overruled the objection.

¶49 The court did not err in admitting this evidence

during the penalty phase because it pertained to whether “the

mitigation was sufficiently substantial to call for leniency.”

See A.R.S. § 13-752(G). Because Martinez claimed he had a low

IQ and brain damage, the evidence that he claimed to have been

at a club when the murder occurred showed he was able to

fabricate an alibi. In addition, the trial court took the extra

22

precaution of precluding the State from referring to the club as

a “strip club” to minimize any unfair prejudice.

F. Admission of accomplice’s prior statements in second penalty
phase

¶50 Martinez argues that the trial court violated his

Sixth Amendment right to confrontation by allowing the State to

introduce in the second penalty phase his accomplice’s

statements through a detective’s testimony.

¶51 In the guilt phase, Martinez’s accomplice, Robert

Arbolida, testified for four days. He testified about the

burglary and murder, stating that Martinez was the shooter and

had attempted to dispose of evidence at his sister’s house.

Martinez’s counsel cross-examined Arbolida for two days,

eliciting testimony showing he had made inconsistent statements

to police.

¶52 Before the second penalty phase, the State noticed its

intent to introduce through Detective Acosta some of Arbolida’s

statements that implicated Martinez as the shooter and that

provided details about the burglary. Martinez objected, arguing

that this testimony violated his Sixth Amendment right to

confrontation under Crawford v. Washington, 541 U.S. 36 (2004).

The trial court overruled Martinez’s objection, citing State v.

McGill, 213 Ariz. 147, 140 P.3d 930 (2006).

¶53 During the second penalty phase, Detective Acosta

23

testified about the statements Arbolida had made to him,

including details of the burglary, the fact that Martinez shot

Vern, and subsequent events. Before completing its direct

examination, the State asked the trial court to limit cross-

examination and not allow defense counsel to “go over all the

inconsistencies that Arbolida ever said” because that would be

attacking the underlying conviction and would be irrelevant,

improper, and a “needless consumption of time.” Defense counsel

stated that he intended to probe the inconsistencies and that it

would not be “fair for the State to be able to present this

sanitized version” and to “cherry-pick the facts.” The trial

court precluded Martinez from revisiting all the inconsistent

statements Arbolida made because they were only relevant to

Martinez’s guilt and the Enmund/Tison4 finding, not Martinez’s

mitigation. But the court indicated that if the inconsistent

statements were relevant to mitigating factors, it would allow

Martinez to ask about them. Martinez protested the trial

court’s ruling, but did not make an offer of proof to show what

statements he would have offered.

¶54 Admission of Arbolida’s statements through the

detective’s testimony did not violate Martinez’s right to

confrontation. We held in McGill that “the Confrontation Clause

4
Enmund v. Florida, 458 U.S. 782 (1982); Tison v. Arizona, 481 U.S. 137 (1987).

24

does not apply to rebuttal testimony at a sentencing hearing.”

213 Ariz. at 159 ¶ 52, 140 P.3d at 942. We decline to revisit

that holding. See State v. Chappell, 225 Ariz. 229, 240 ¶¶ 40-

41, 236 P.3d 1176, 1187 (2010); State v. Martinez, 218 Ariz.

421, 431 ¶ 44, 189 P.3d 348, 358 (2008). Moreover, Martinez had

a full opportunity to confront Arbolida when he initially

testified. The trial court properly admitted this testimony.

¶55 On appeal, Martinez relies only on the Confrontation

Clause to challenge the admission of Arbolida’s statements and

does not now argue that he should have been permitted to impeach

those statements. See State v. Bolton, 182 Ariz. 290, 298, 896

P.2d 830, 838 (1995) (“Failure to argue a claim on appeal

constitutes waiver of that claim.”) Nonetheless we review the

preclusion of impeachment for fundamental error because if a

defendant is deprived of the chance to present relevant

mitigation, “[t]he resulting death sentence cannot stand.”

Skipper v. South Carolina, 476 U.S. 1, 8 (1986); see also

Tennard v. Dretke, 542 U.S. 274, 284-85 (2004) (noting that,

pursuant to the Eighth Amendment, the jury must be able to

consider and give effect to all relevant mitigation evidence

proffered by a defendant).

¶56 Although the trial court did not err in admitting the

detective’s hearsay testimony about Arbolida’s statements, it

should have allowed Martinez to present any inconsistent

25

statements for impeachment. When one party properly introduces

hearsay testimony, cross-examination that calls into question

the veracity of that testimony is relevant to the issue of

leniency. See A.R.S. § 13-752(G) (“At the penalty phase, the

defendant and the state may present any evidence that is

relevant to the determination of whether there is mitigation

that is sufficiently substantial to call for leniency.”); see

also Tennard, 542 U.S. at 284-85 (similarly defining relevant

mitigating evidence); State v. Prince, 226 Ariz. 516, 526-27

¶¶ 13-20, 250 P.3d 1145, 1155-56 (2011) (discussing relevant

evidence in penalty phase).

¶57 Because Martinez did not make an offer of proof,

however, we are unable to find prejudice. See Ariz. R. Evid.

103(a)(2); State v. Kaiser, 109 Ariz. 244, 246, 508 P.2d 74, 76

(1973) (“As a general rule evidence cannot be reviewed on appeal

in the absence of an offer of proof showing that the excluded

evidence would be admissible and relevant.”). We therefore

cannot find fundamental error. See Henderson, 210 Ariz. at 607

¶ 20, 115 P.3d at 567 (holding that fundamental error consists

of both fundamental error and a finding of prejudice).

¶58 In any event, we have reviewed Arbolida’s testimony in

the guilt phase and determined that his inconsistent statements

either concerned the sequence of events for the burglary, his

involvement, or whether a third person may have been involved.

26

These statements concerned matters that were already decided in

the guilt and aggravation phases, and the second penalty phase

jury was instructed to accept the previous findings that

Martinez was guilty of felony murder, that he actually killed

Vern, and that he was a major participant in the crime. None of

Arbolida’s allegedly inconsistent statements would have

constituted mitigating circumstances, nor were they relevant to

the jury determining whether to “impose a sentence less than

death.” § 13-751(G); see State v. Nordstrom, ___ Ariz. ___, ___

¶ 15, ___ P.3d ___ (2012) (“A defendant has no constitutional

right to present residual doubt evidence at sentencing.”)

(internal quotation omitted). No prejudice is apparent from the

record.

G. Alleged issues with a second penalty phase

¶59 Martinez raises two arguments with respect to holding

a second penalty phase before a different jury. He did not

object on either ground in the trial court, so we review for

fundamental error. Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d

at 607.

¶60 Because the first jury was unable to reach a verdict

in the penalty phase, the trial court discharged it and

impaneled a new jury to sentence Martinez pursuant to A.R.S.

§ 13-752(K). Martinez argues that because the court instructed

the jury to accept the aggravating circumstances as proven, it

27

encouraged the jury to abdicate its responsibility in imposing a

death sentence to the other jury in violation of Caldwell v.

Mississippi, 472 U.S. 320 (1985).

¶61 In Caldwell, the Supreme Court concluded “that it is

constitutionally impermissible to rest a death sentence on a

determination made by a sentencer who has been led to believe

that the responsibility for determining the appropriateness of

the defendant’s death rests elsewhere.” 472 U.S. at 328-29.

“We have previously concluded that Caldwell’s dictate is not

violated when different juries determine guilt and sentence if

the sentencing jury is not misled as to its role.” State v.

Moore, 222 Ariz. 1, 18 ¶ 93, 213 P.3d 150, 167 (2009). As long

as “the resentencing jury received clear instruction that it

alone would determine the appropriate sentence,” there is no

Caldwell violation. State v. Dann, 220 Ariz. 351, 361 ¶ 30, 207

P.3d 604, 614 (2009).

¶62 Here, the trial court twice instructed the jury in the

second penalty phase that it alone would determine whether to

impose a death sentence and that its decision would be binding.

Although the court told the jurors to accept the two aggravators

as proven, it also instructed them to separately assess the

severity of the aggravators in making their sentencing

determination. No Caldwell violation occurred. See People v.

Murtishaw, 773 P.2d 172, 183 & n.8 (Cal. 1989) (rejecting the

28

same argument and stating that “the prior jury was not

defendant’s ‘sentencer;’ . . . it merely resolved a factual

issue which rendered defendant eligible for the death penalty.

The normative function of deciding which penalty should actually

be imposed was entirely in the second jury’s hands.”).

¶63 Martinez also argues that § 13-752(K), as applied to

him, is unconstitutionally vague because it “does not establish

procedures governing the admission, to a new jury during the

second penalty phase, of evidence of the aggravating factors

previously found by the aggravation-phase jury.” In Prince, we

rejected this argument, finding that “the statutes governing the

second penalty phase provide sufficient guidance” and are not

vague. 226 Ariz. at 527 ¶ 20, 250 P.3d at 1156. Moreover, as

the State asserts, Martinez has not shown any prejudice because

all of the information presented to the aggravation phase jury

was also provided to the second penalty phase jury.

H. Motion to disqualify the Maricopa County Attorney’s Office

¶64 Martinez argues that the superior court abused its

discretion when it denied his motion to disqualify the Maricopa

County Attorney’s Office. We review a trial court’s ruling on a

motion to disqualify the prosecutor for an abuse of discretion.

State v. Williams, 136 Ariz. 52, 57, 664 P.2d 202, 207 (1983).

¶65 Before the second penalty phase, Martinez moved to

disqualify the Maricopa County Attorney’s Office based on its

29

filing of a RICO complaint against two Maricopa County Superior

Court judges, as well as its filing felony criminal charges

against one of those judges. But Martinez subsequently withdrew

his motion after it was assigned, along with similar motions in

other cases, to a judge from Cochise County.

¶66 A few days later, Martinez and thirty other defendants

filed a joint motion to disqualify the Maricopa County

Attorney’s Office, alleging that “[t]he appearance of judicial

impropriety caused by [former Maricopa County Attorney] Andrew

Thomas and [Maricopa County Sheriff] Joe Arpaio is supported by

overwhelming evidence that requires Thomas’ disqualification

under Arizona law.” While this motion was pending, Thomas

resigned from office. Subsequently, the Cochise County judge

dismissed the motion as moot.

¶67 There was no abuse of discretion. The thrust of

Martinez’s motion concerned Thomas and did not allege any

improper conduct by other members of his office. Once Thomas

resigned, the issue was moot. Martinez generally alleged that

judges in his case were intimidated into ruling unfairly when

Thomas was in office. But the only specific allegation of bias

was another judge’s denial of two of Martinez’s motions. In

ruling on both motions, that judge made detailed findings and

noted his dissatisfaction with the handling of capital cases in

Maricopa County. Although these rulings went against Martinez,

30

they clearly were not the product of fear of repercussions from

the County Attorney. Martinez generally alleges that Thomas

likely intimidated the other judges involved in his case. But

he provides no support for this allegation, and any intimidation

necessarily ended with Thomas’s resignation.

III. REVIEW OF DEATH SENTENCE

¶68 Martinez asks this Court to reduce his sentence to

life imprisonment. Because Martinez committed the murder after

August 1, 2002, we review “whether the trier of fact abused its

discretion in finding aggravating circumstances and imposing a

sentence of death.” A.R.S. § 13-756(A).

A. Aggravating circumstances

¶69 Martinez does not challenge the jury’s finding of the

(F)(2) and (F)(5) aggravating circumstances. Nonetheless, we

review whether the jury abused its discretion in finding them.

Morris, 215 Ariz. at 340-41 ¶ 77, 160 P.3d at 219-20. “Under

this standard of review, we uphold a decision if there is any

reasonable evidence in the record to sustain it.” Id. (internal

quotation omitted).

¶70 The jury did not abuse its discretion in finding each

aggravating circumstance. The State proved the (F)(2)

aggravator by showing Martinez had nineteen serious offense

convictions. See supra § II(C), ¶¶ 16-23.

¶71 The record also contains sufficient evidence

31

supporting the jury’s finding that Martinez committed the murder

for pecuniary gain. See § 13-751(F)(5). Martinez and Arbolida

“scoped out” Betty and Laurel’s home, left to retrieve a gun,

and then returned wearing gloves and masks to commit the

burglary and theft. They took various items from the home,

Martinez shot Vern, and then he and Arbolida fled with the

stolen property. Martinez went to the victims’ home expecting

pecuniary gain, and the murder allowed him “to keep the stolen

property and avoid capture.” See Martinez, 218 Ariz. at 435

¶ 68, 189 P.3d at 362; see also State v. Ellison, 213 Ariz. 116,

143 ¶ 125, 140 P.3d 899, 926 (2006) (finding pecuniary gain

aggravating circumstance proven when defendant went to victims’

home to commit burglary and committed the murders to “escape and

avoid identification”).

B. Propriety of death sentence

¶72 Martinez argues the jury abused its discretion by

finding a death sentence appropriate because he introduced

substantial mitigation warranting leniency. This Court “will

not reverse the jury’s decision [to impose the death penalty] so

long as any reasonable jury could have concluded that the

mitigation established by the defendant was not sufficiently

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

¶ 81, 160 P.3d at 220.

¶73 The jury did not abuse its discretion. Although

32

Martinez presented evidence of his low IQ and brain damage, the

State effectively rebutted it with evidence that he malingered,

lowering his performance on the tests. See State v. Cruz, 218

Ariz. 149, 170-71 ¶ 138, 181 P.3d 196, 217-18 (2008). Also,

because Martinez was forty-one years old when he committed the

murder, the jury was entitled to give less weight to mitigating

evidence stemming from his childhood. See Prince, 226 Ariz. at

541 ¶ 109, 250 P.3d at 1170 (“Difficult childhood circumstances

also receive less weight as more time passes between the

defendant’s childhood and the offense.”). Based on the facts of

the crime, the two strong aggravating factors, and the

Enmund/Tison finding that Martinez actually killed the victim, a

reasonable jury could find Martinez’s mitigation did not warrant

leniency. See State v. Cota, 229 Ariz. 136, ___ ¶ 95, 272 P.3d

1027, 1044 (2012) (“Even if we assume that Cota proved each of

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

discretion here by finding the mitigation insufficient to

warrant leniency.”); State v. Villalobos, 225 Ariz. 74, 85 ¶ 51,

235 P.3d 227, 238 (same).

CONCLUSION

¶74 For the foregoing reasons, we affirm Martinez’s

convictions and sentences.5

5
Martinez raises twelve issues to avoid preclusion on
federal review. His statements of those issues and the cases he
33

_____________________________________
Robert M. Brutinel, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Scott Bales, Vice Chief Justice

_____________________________________
A. John Pelander, Justice

APPENDIX

1. The fact-finder in capital cases must be able to consider
all relevant mitigating evidence in deciding whether to give
the death penalty. See Woodson v. North Carolina, 428 U.S.
280, 304, 96 S. Ct. 2978, 49 L.Ed.2d 944 (1976). The trial
court’s failure to allow the jury to consider and give
effect to all mitigating evidence in this case by limiting
its consideration to that proven by a preponderance of the
evidence is unconstitutional under the Eighth and Fourteenth
Amendments. This Court rejected this argument in McGill,
213 Ariz. at 161 ¶ 59, 140 P.3d at 944.

2. By allowing victim impact evidence at the penalty phase of
the trial, the trial court violated defendant’s
constitutional rights under the Fifth, Sixth, Eighth and
Fourteenth Amendments and Article 2, Sections 1, 4, 13, 15,
23, and 24 of the Arizona Constitution. This Court rejected
challenges to the use of victim impact evidence in Lynn v.
Reinstein, 205 Ariz. 186, 191 ¶ 16, 68 P.3d 412, 417 (2003).

3. The trial court improperly omitted from the penalty phase

cites rejecting his contentions are presented verbatim in the
Appendix.
34

jury instructions words to the effect that they may consider
mercy or sympathy in deciding the value to assign the
mitigation evidence, instead telling them to assign whatever
value the jury deemed appropriate. The court also
instructed the jury that they “must not be influenced by
mere sympathy or by prejudice in determining these facts.”
These instructions limited the mitigation the jury could
consider in violation of the Fifth, Sixth, Eighth and
Fourteenth Amendments and Article 2, Sections 1, 4, 15, 23,
and 24 of the Arizona Constitution. This Court rejected
this argument in State v. Carreon, 210 Ariz. 54, 70-71
¶¶ 81-87, 107 P.3d 900, 916-17 (2005).

4. The death penalty is cruel and unusual under any
circumstances and violates the Eighth and Fourteenth
Amendments, and Article 2, Section 15 of the Arizona
Constitution. This Court rejected this argument in State v.
Harrod, 200 Ariz. 309, 320 ¶ 59, 26 P.3d 492, 503 (2001),
vacated on other grounds, 536 U.S. 953, 122 S. Ct. 2653, 153
L.Ed.2d 830 (2002).

5. The death penalty is irrational and arbitrarily imposed; it
serves no purpose that is not adequately addressed by life
in prison, in violation of the defendant’s right to due
process under the Fourteenth Amendment to the United States
Constitution and Article 2, Sections 1 and 4 of the Arizona
Constitution. This Court rejected these arguments in State
v. Beaty, 158 Ariz. 232, 247, 762 P.2d 519, 534 (1988).

6. The prosecutor’s discretion to seek the death penalty lacks
standards and therefore violates the Eighth and Fourteenth
Amendments, and Article 2, Sections 1, 4, and 15 of the
Arizona Constitution. This Court rejected this argument in
State v. Sansing, 200 Ariz. 347, 361 ¶ 46, 26 P.3d 1118,
1132 (2001), vacated on other grounds, 536 U.S. 954, 122 S.
Ct. 2654, 153 L.Ed.2d 830 (2002).

7. Arizona’s death penalty is applied so as to discriminate
against poor, young, and male defendants in violation of
Article 2, Sections 1, 4, and 13 of the Arizona
Constitution. This Court rejected this argument in Sansing,
200 Ariz. at 361 ¶ 46, 26 P.3d at 1132.

8. 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.
The absence of proportionality review of death sentences by
35

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, and Article 2, Section 15 of the Arizona
Constitution. This Court rejected this argument in Harrod,
200 Ariz. 320 ¶ 65, 26 P.3d at 503.

9. 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,
and Article 2, Section 15 of the Arizona Constitution.
Arizona’s death penalty law cannot constitutionally presume
that death is the appropriate default sentence. This Court
rejected this argument in State v. Miles, 186 Ariz. 10, 19,
918 P.2d 1028, 1037 (1996).

10. Execution by lethal injection is cruel and unusual
punishment in violation of the Eighth and Fourteenth
Amendments, and Article 2 sec. 15 of the Arizona
Constitution. This argument was rejected in State v. Van
Adams, 194 Ariz. 408, 422, 984 P.2d 16, 30 (1999).

11. Arizona’s statutory scheme for considering mitigation
evidence is unconstitutional because it limits full
consideration of that evidence. State v. Mata, 125 Ariz.
233, 242, 609 P.3d 48, 57 (1980).

12. “If you unanimously find that no mitigation exists or that
mitigation is not sufficiently substantial to call for
leniency, you may impose the death penalty.” See e.g. State
v. Tucker, 215 Ariz. 298 (2007) (instructing juror that he
or she must vote to impose a death sentence if he or she
does not find any mitigation sufficiently substantial to
call for leniency does not create impermissible “presumption
of death”); State v. Harrod, 218 Ariz. 268 (2008); State v.
Cruz, 218 Ariz. 149 (2008).

36