State of Arizona v. Steven John Parker

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0196-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2006-129786
STEVEN JOHN PARKER, )
) O P I N I O N
Appellant. )
_________________________________ )

Appeal from the Superior Court in Maricopa County
The Honorable Roland J. Steinle, Judge

AFFIRMED
________________________________________________________________

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

DAVID GOLDBERG ATTORNEY AT LAW Fort Collins, CO
By David Goldberg
Attorney for Steven John Parker
________________________________________________________________

B E R C H, Chief Justice

¶1 Steven John Parker was sentenced to death for two

murders, and this automatic appeal followed. We have

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

Constitution and A.R.S. § 13–4031.

I. FACTS AND PROCEDURAL HISTORY1

¶2 Wayne and Faye Smith were found murdered in their home

on September 26, 2005. Faye’s ankles were bound, and she had

been stabbed to death. Wayne also had been stabbed several

times, but died from blunt force trauma to his head. The

medical examiner could not determine the time of death for

either victim, but they were last seen alive two days earlier,

on September 24.

¶3 Wayne’s wallet and Faye’s purse were missing from the

home. On September 24, 2005, between 4:50 and 5:30 p.m.,

someone used the Smiths’ credit and bank cards at several

locations near their home. The next day, the cards were used at

an ATM in Quartzsite, Arizona, and at a gas station in Temecula,

California.

¶4 At the time of the murders, Parker lived next door to

the Smiths with a roommate, Tasha Uhl. On September 24, the

likely day of the murders, Uhl could not find Parker around 2:30

or 3:00 in the afternoon, despite calling for him both inside

and outside the house. Parker later came in and told Uhl he had

been doing yard work and had not heard her call. Uhl left

around 5:00 p.m., and Parker’s girlfriend picked him up from the

1
“We view the facts in the light most favorable to
sustaining the verdict.” State v. Dann, 205 Ariz. 557, 562 ¶ 2,
74 P.3d 231, 236 (2003).
2

house just over an hour later. The two were together until the

morning of Sunday, September 25.

¶5 That day, Parker left in Uhl’s car without her

permission. At the time, Parker owed money to his employer. He

drove to Mexico and then to California. He abandoned the car in

San Diego and hitched a ride to Chino, California, where friends

told him he was a “person of interest” in the Smiths’ murders.

Parker then took a bus to Las Vegas, where he remained for four

days until he was arrested and jailed on October 13, 2005.

Police questioned Parker about the murders, but charged him only

with stealing Uhl’s car and his employer’s money. Parker

eventually pleaded guilty to stealing from his employer and was

sentenced to probation.

¶6 Shortly after Parker’s release from jail, testing

revealed that Parker’s DNA matched DNA from a drop of blood

found on the Smiths’ kitchen sink and DNA from a napkin found on

the kitchen counter. Police arrested Parker again on May 26,

2006, and charged him with the murders, first degree burglary,

and kidnapping.

¶7 At trial, Parker testified that he was not involved in

the crimes and asserted that another man killed the Smiths. The

jury found him guilty of all charges. The jury also found three

aggravating factors: pecuniary gain, A.R.S. § 13-751(F)(5);

especial cruelty, id. § 13-751(F)(6); and multiple homicides,

3

id. § 13-751(F)(8). After finding no mitigation sufficient to

call for leniency, the jury determined that Parker should be

sentenced to death for each murder.

II. DISCUSSION

A. Speedy Trial

¶8 Parker argues that he was denied his right to a speedy

trial in violation of the Sixth Amendment.2 We review issues of

constitutional law de novo and related factual determinations

for abuse of discretion. State v. Smith, 215 Ariz. 221, 233

¶ 57, 159 P.3d 531, 543 (2007).

¶9 The Sixth Amendment’s guarantee of a speedy trial

protects a defendant’s right to be brought to trial without

undue delay. There is no bright line rule for how quickly a

trial must occur. In evaluating such claims, courts weigh (1)

the length of the delay, (2) the reason for the delay, (3) the

defendant’s assertion of the right to a speedy trial, and (4)

the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514,

530 (1972); State v. Spreitz, 190 Ariz. 129, 139, 945 P.2d 1260,

1270 (1997). Parker’s trial began on March 15, 2010, three

years and nine months after his May 26, 2006 arrest and June 6,

2006 indictment. Under the first Barker factor, this delay is

sufficient to trigger the full Barker analysis.

2
Parker waived his state speedy trial claim under Rule 8 of
the Arizona Rules of Criminal Procedure and has not asserted a
speedy trial right under the Arizona Constitution.
4

¶10 The second Barker factor requires examination of the

reasons for the delay. See Vermont v. Brillon, 129 S. Ct. 1283,

1290 (2009) (analyzing “whether the government or the criminal

defendant is more to blame for th[e] delay”) (alteration in

original).

¶11 During the first year of the case, the defense spent

significant time pursuing a motion to remand the case to the

grand jury, seeking special action review of the denial of that

motion at the court of appeals, and petitioning for review to

this Court. On August 15, 2007, the State and defense counsel

agreed to exclude 305 days from the time calculation, and Parker

waived all applicable time limits.

¶12 Parker is also responsible for an eleven-month delay in

2008 and 2009. He asked to delay his trial date because his

lead defense attorney had another trial and needed more time to

investigate. The trial court rescheduled Parker’s trial and

excluded this time, with Parker’s consent.

¶13 Parker’s lead attorney then retired at the end of 2008.

This caused an additional ten-month delay until March 15, 2010.

The State is not responsible for defense counsel’s decision to

retire and the resulting delay. Cf. Dies v. State, 926 So. 2d

910, 916-17 ¶ 15 (Miss. 2006) (“original judge’s retirement and

his replacement by the assistant district attorney who was

5

prosecuting this case was [not attributable to] either the State

or [the defendant]”).

¶14 Parker argues that the delays occasioned by defense

counsel’s trial schedule should not be attributed to him because

they were caused by underfunding of the criminal justice system

and the high number of capital cases in Maricopa County at the

time. Delays caused by systemic breakdowns can be charged to

the state in certain cases. See Brillon, 129 S. Ct. at 1292.

This case, however, does not rise to that level. In State v.

Hanger, for example, the county refused to pay defense counsel.

146 Ariz. 473, 474, 706 P.2d 1240, 1241 (App. 1985). And in

Doggett v. United States, the government was negligent in

tracking down the defendant and took eight years to prosecute

the case. 505 U.S. 647, 652-53 (1992). Comparable

circumstances are not present here.

¶15 The third Barker factor requires the defendant to

assert his right to a speedy trial in order to establish a

constitutional violation. State v. Schaaf, 169 Ariz. 323, 327,

819 P.2d 909, 913 (1991) (stating that speedy trial violation

“is waived unless asserted promptly”). Parker did not assert

his right to a speedy trial until February 24, 2009, two years

and nine months after his arrest. Parker’s delay in asserting

his right weighs against him. See, e.g., State v. Henry, 176

Ariz. 569, 579, 863 P.2d 861, 871 (1993) (fourteen-month delay

6

in asserting right weighed against defendant); Phan v. State,

723 S.E.2d 876, 883 (Ga. 2012) (same, for three-and-a-half-year

delay). Parker clearly consented to delays through June 2008,

and once he began asserting his speedy trial right, his case

went to trial within a year.

¶16 The fourth and most important Barker factor is whether

the delay prejudiced the defendant. State v. Soto, 117 Ariz.

345, 348, 572 P.2d 1183, 1186 (1977). We assess prejudice in

light of the interests that the speedy trial right protects

against: (1) “oppressive pretrial incarceration,” (2) “anxiety

and concern of the accused,” and (3) “the possibility that the

defense will be impaired” by diminishing memories and loss of

exculpatory evidence. Barker, 407 U.S. at 532. Of these forms

of prejudice, “the most serious is the last, because the

inability of a defendant adequately to prepare his case skews

the fairness of the entire system.” Id.; see Soto, 117 Ariz. at

348, 572 P.2d at 1186.

¶17 The trial court found that Parker failed to show any

prejudice other than pretrial incarceration. The court allowed

Parker to supplement the record to show prejudice, but he did

not do so. Instead, Parker argues that he did not need to show

prejudice given the lengthy delay and the anxiety he suffered

from his pre-trial incarceration.

7

¶18 Trial occurred almost four years after Parker was

charged with the murders. But like the defendant in Spreitz,

Parker asserted no prejudice except that arising from his pre-

trial incarceration. See Spreitz, 190 Ariz. at 140, 945 P.2d at

1271 (noting that five years’ incarceration “may have increased

defendant’s anxiety[,] . . . [but] the delay did not prejudice

his ability to defend against the state’s claims”); Phan, 723

S.E.2d at 883-84. For these reasons, Parker has not established

a violation of his Sixth Amendment right to a speedy trial.

B. Voir Dire

¶19 Parker argues that the trial court abused its

discretion by limiting his questions during voir dire. Over

Parker’s objection, the trial judge refused to include in juror

questionnaires a question on whether prospective jurors would

automatically vote for the death penalty. The judge did,

however, ask each panel of potential jurors this question and

excused those who said they would automatically vote for death.

Defense counsel sought to probe further the remaining jurors’

views on the death penalty, but the judge precluded questions

about the jurors’ feelings on the death penalty and what types

of mitigation they would consider, characterizing them as

“stakeout questions.”

¶20 We review restrictions on the scope of voir dire for

abuse of discretion. State v. Johnson, 212 Ariz. 425, 434 ¶ 29,

8

133 P.3d 735, 744 (2006). Prohibiting any inquiry whatsoever

about whether prospective jurors would automatically impose a

death sentence, however, is structural error. State v. Moore,

222 Ariz. 1, 9 ¶ 33, 213 P.3d 150, 158 (2009) (citing Morgan v.

Illinois, 504 U.S. 719, 729-30, 735-36 (1992)).

¶21 In Morgan v. Illinois, the United States Supreme Court

held that defendants are entitled to discover through voir dire

“whether a potential juror will automatically impose the death

penalty once guilt is found.” State v. Jones, 197 Ariz. 290,

303 ¶ 27, 4 P.3d 345, 358 (2000) (discussing Morgan). Morgan

does not, however, require a trial court to permit open-ended

questions about jurors’ general views on the death penalty and

mitigation, or whether jurors would impose the death penalty if

they found specific aggravators. Smith, 215 Ariz. at 230-31

¶¶ 40-43, 159 P.3d at 540-41. We have repeatedly rejected

invitations to expand Morgan’s holding. See id.; Johnson, 212

Ariz. at 434-35 ¶¶ 31, 33, 133 P.3d at 744-45 (as to specific

mitigating factors that would warrant leniency); State v.

Glassel, 211 Ariz. 33, 45-46 ¶¶ 37, 39, 116 P.3d 1193, 1205-06

(2005) (as to jurors’ understandings of the phrase “sufficiently

substantial to call for leniency”). We similarly decline to do

so here.

¶22 Although he denied Parker’s request to include the

Morgan question in the questionnaire, the trial judge did ask

9

that question of each panel of prospective jurors and dismissed

those potential jurors who indicated they would automatically

vote for death. We find no abuse of discretion.

C. Excluded Testimony

¶23 Parker argues that the trial court erred by precluding

some testimony as hearsay. At trial, Parker argued that a third

party, Jason Randall, committed the murders. Parker attempted

to use testimony from Casandra Manery to place Randall in the

Smiths’ home around the time of the murders.

¶24 A few years after the murders, police discovered that

Manery had fraudulently accessed the Smiths’ bank accounts. She

testified at trial that she obtained the Smiths’ bank

information from Randall, who lived near the Smiths’ house. At

trial, Manery testified that she had told police during an

earlier interview that “It was almost like [Randall] was going

back to the house to try and get something out.” She also

recalled that Randall had taken the Smiths’ bank records from

their trash and had given them to her in late September or early

October of 2005.

¶25 In an earlier interview, however, Manery had told a

detective: “Really the way I remember it is that [Randall] told

me that he got the information through the trash. But I thought

at some point that he had told me that he had also gone inside

the house to look for other things.” Parker tried to elicit

10

this second statement from Manery as a statement against

Randall’s interest under Arizona Rule of Evidence 804(b)(3)

(2010),3 but the trial court excluded the statement.

¶26 During Parker’s offer of proof, Parker asked Manery

whether Randall said that he had gone into the Smiths’ house.

Manery stated, “I know I said that in these [police

interrogation transcripts]. I’ve read that.” She continued,

“But I don’t today remember if [Randall] told me that or not.”

The trial court excluded the prior statement, finding it “not

inherently reliable” because Manery “ha[d] no independent

recollection” of Randall having made the statement, and further

noting that even in the police interview Manery was never clear

that Randall had actually made the statement. We review a trial

court’s ruling on the admissibility of evidence under a hearsay

exception for abuse of discretion. State v. Tucker, 205 Ariz.

157, 165 ¶ 41, 68 P.3d 110, 118 (2003).

¶27 Even if we assume Randall’s statement qualified as a

statement against his interest under Rule 804(b)(3), Manery’s

prior statement about Randall’s statement is hearsay. Ariz. R.

Evid. 801(c). She does not remember making the statement and

cannot be examined about it. Further, during the police

3
We cite the Arizona Rules of Evidence in effect during
Parker’s trial, recognizing that the Rules were amended
effective January 1, 2012. See Ariz. R. Evid. prefatory cmt. to
2012 amends.
11

interview, Manery could not even say for sure that Randall ever

made such a statement, in part, she said, because her extensive

drug use affected her memory. And at trial, she had no memory

whatsoever of Randall making the statement or of telling police

about it.4 Given the deficient indicia of reliability

surrounding Manery’s statement and the fact that Manery was

allowed to testify that she had previously told police, “It was

almost like [Randall] was going back to the house to try and get

something out,” we cannot conclude that the trial judge abused

his discretion in precluding Manery’s similar statement, “I

thought at some point that he had told me that he had also gone

inside the house to look for other things.”

D. Admitted Business Records

¶28 Parker asserts that the trial court improperly admitted

a report of the Smiths’ credit card transactions and Wayne’s

handwritten timesheets under the business records exception to

the hearsay rule, Arizona Rule of Evidence 803(6). We review

these rulings for abuse of discretion. Tucker, 205 Ariz. at 165

¶ 41, 68 P.3d at 118. The business records exception requires

that the record be made at or near the time of the entry by or

from information transmitted by someone with knowledge, be kept

in the ordinary course of business, be made as a regular

4
Parker did not argue at trial that Manery’s prior statement
was admissible under Rule 803(5), the recorded recollection
exception to the hearsay rule.
12

practice, and be testified to by a qualified witness. Ariz. R.

Evid. 803(6).

1. Credit card report

¶29 At trial, the State introduced evidence of transactions

on the Smiths’ Capital One credit cards through videotaped

deposition testimony of Keri Ward, a Capital One fraud

investigator. The State also introduced a report Ward prepared

by copying and pasting the Smiths’ credit card transaction

information from Capital One’s database. Parker objected to the

report, arguing that it was not prepared in the regular course

of business. The trial court overruled the objection.

¶30 Documents prepared solely for purposes of litigation

generally are not made in the regular course of business. See

Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1258-59 (9th

Cir. 1984) (discussing Federal Rule of Evidence 803(6)). If

documents prepared for litigation are mere reproductions of

regularly kept database records, however, such documents may

qualify as business records. See U-Haul Int’l, Inc. v.

Lumbermens Mut. Cas. Co., 576 F.3d 1040, 1043-44 (9th Cir. 2009)

(discussing federal rule 803(6)); see also Jack B. Weinstein and

Margaret A. Berger, Federal Evidence § 901.08[2], at 901-84

(Joseph M. McLaughlin ed., 2d ed., rev. 2012) (“[P]rintouts

prepared specifically for litigation from databases that were

compiled in the ordinary course of business are admissible as

13

business records to the same extent as if the printouts were,

themselves, prepared in the ordinary course of business.”).

This is the case with the records at issue here.

¶31 Ward testified that Capital One regularly makes and

keeps records of all credit card transactions. She described

how merchants and other third parties transmit the information

used to create the records. Although the records aid in fraud

and police investigations, Ward indicated that the records serve

several other business purposes, including billing, tracking

spending habits, and resolving customer disputes. These facts

qualify the entries in Ward’s report as business records.

¶32 Further, Ward’s report did not change the character of

the records. Ward testified that she accessed the Smiths’

account information in Capital One’s computer and copied and

pasted that information into a document she faxed to the police.

Although Ward made the report at the request of the police, the

information provided was identical to Capital One’s business

records. Because the report simply repeated information that

was admissible as a business record, the report itself was

likewise admissible. See Ariz. R. Evid. 1006; U-Haul Int’l,

Inc., 576 F.3d at 1043-44 (noting that “evidence that has been

compiled from a computer database is also admissible as a

business record” under corresponding federal rule 803(6)).

14

¶33 Parker argues that there is a double hearsay problem

because Ward did not know who transmitted the information into

Capital One’s database. But courts regularly admit business

records even when the testifying witness did not assemble the

complete record. See, e.g., United States v. Langford, 647 F.3d

1309, 1326 (11th Cir. 2011) (records of credit card transactions

properly admitted under federal rule 803(6) despite custodial

witness “not hav[ing] personal knowledge of each of the

records”); State v. Veres, 7 Ariz. App. 117, 125, 436 P.2d 629,

637 (1968) (to same effect), overruled on other grounds by State

v. Osborn, 107 Ariz. 295, 295, 486 P.2d 777, 777 (1971); see

also Weinstein’s Federal Evidence § 803.08[8][a], at 803-84 to

803-86 (“The witness need not have . . . personally assembled

the records . . . [,] [and t]here is no requirement that the

records have been prepared by the entity that has custody of

them . . . .”). Trustworthiness and reliability stem from the

fact that Capital One regularly relies on the information that

third parties submit as part of their ordinary course of

business. See, e.g., United States v. Adefehinti, 510 F.3d 319,

326 (D.C. Cir. 2007) (listing cases that permit business records

of one entity to be admitted as a business record of another

entity if the latter entity relies on those records and keeps

them in the ordinary course of business). The trial court did

15

not abuse its discretion in admitting this evidence as a

business record.

2. Handwritten timesheets

¶34 The State introduced Wayne’s handwritten timesheets to

impeach Parker’s testimony about when he left the spot of blood

on the Smiths’ kitchen faucet and the DNA on the napkin. Parker

testified that he cut his finger while helping Wayne with yard

work around 2:00 p.m. on September 22, 2005. He further

testified that he went to the Smiths’ kitchen sink to clean the

wound but saw dirty dishes in the sink, so he went to the

bathroom to wash his hands. He said Faye gave him a napkin and

a bandage for his cut.

¶35 Wayne’s handwritten timesheets, however, showed that

Wayne was at work until 4:30 p.m. on September 22, 2005. To lay

the foundation for the timesheets, the State called Wayne’s co-

worker, Sean Kirk, who testified that Wayne routinely kept track

of his work hours on such timesheets. Kirk testified that he

saw Wayne write the week’s first entry for Monday, September 19,

2005, and it was Wayne’s habit to record or log his work hours

each day. Kirk also testified that he was familiar with Wayne’s

handwriting and that the writing on the timesheets was Wayne’s.

Parker objected, arguing that the State failed to lay adequate

foundation because Kirk did not actually see Wayne write the

16

entry on September 22. The trial court overruled this

objection.

¶36 Even though Kirk did not see Wayne write the record on

the day in question, his familiarity with Wayne’s handwriting

and process of writing timesheets was sufficient to allow him to

lay foundation. Kirk testified that he had worked alongside

Wayne for about a year and a half, he and Wayne performed the

same job, they used the same system to create timesheets, he had

seen Wayne fill out timesheets, and they prepared the records in

the course of business at about the time they performed the

work. This provides sufficient foundation. Cf. State v.

McCurdy, 216 Ariz. 567, 571-72 ¶¶ 8-10, 169 P.3d 931, 935-36

(App. 2007) (finding jail supervisor qualified to lay foundation

based on testimony that he had supervised new inmates, was

familiar with process for filing property receipts, and knew

that such receipts were a part of the jail’s normal course of

business).

¶37 Parker argues that Standard Chartered PLC v. Price

Waterhouse, 190 Ariz. 6, 945 P.2d 317 (App. 1996), shows that

the foundation was not adequate. But that case is inapposite.

There, the trial court excluded a memorandum because the author

did not prepare it “at or near” the time the events took place.

Id. at 46, 945 P.2d at 357. Here, the timesheets were admitted

based on Kirk’s testimony that, among other things, Wayne

17

recorded his work hours close to the time he performed the work.

The trial court did not abuse its discretion in admitting the

timesheets as business records.

E. Confrontation Clause

¶38 Parker argues that admission of the credit card

transaction information and timesheets violated his right to

confrontation under the Sixth Amendment. We “independently

review whether the government’s proffered guarantees of

trustworthiness satisfy the demands of the Clause.” Lilly v.

Virginia, 527 U.S. 116, 137 (1999). The Confrontation Clause

bars admission of out of court testimonial evidence unless the

defense has had an opportunity to cross-examine the declarant.

Crawford v. Washington, 541 U.S. 36, 68 (2004). Testimonial

evidence is “ex parte in-court testimony or its functional

equivalent – that is, material such as affidavits, custodial

examinations, prior testimony that the defendant was unable to

cross-examine, or similar pretrial statements that declarants

would reasonably expect to be used prosecutorially.” Id. at 51.

¶39 By their nature, business records ordinarily are not

testimonial. See id. at 56 (noting that most “hearsay

exceptions cover[] statements that by their nature [a]re not

testimonial – for example, business records”). This is so

because business records are generally “created for the

administration of an entity’s affairs and not for the purpose of

18

establishing or proving some fact at trial.” Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 324 (2009).

¶40 Parker argues that admission of the credit card

transaction information violated the Confrontation Clause

because Ward’s report, having been created at the request of

police, was testimonial, and he did not have the opportunity to

cross-examine the sources who transmitted the transaction

information to Capital One’s database. Although Ward created

the report at the request of the police, the transaction

information in the report is not testimonial. The credit card

records in Capital One’s database are maintained to facilitate

its business, not to aid police. The third parties who transmit

transaction information to Capitol One similarly do so to

facilitate their own businesses, not to aid police

investigations. Parker’s Confrontation Clause rights with

respect to Ward were not violated because Ward was subject to

cross-examination by Parker about the preparation of the report.

¶41 The Confrontation Clause does not require every person

who participated in compiling information to testify in court.

See id. at 311 n.1 (noting that gaps in the chain of custody go

to the weight, not the admissibility, of the evidence, and not

“everyone who laid hands on the evidence must be called”).

Thus, admitting the Capital One credit card evidence did not

violate the Confrontation Clause.

19

¶42 Parker also contends that admitting Wayne’s timesheets

violated the Confrontation Clause because Wayne was not

available as a witness and had not previously been cross-

examined. Wayne prepared his timesheets as part of a routine

business practice, not to aid a police investigation. This type

of record is nontestimonial because it is “created for the

administration of an entity’s affairs and not for the purpose of

establishing or proving some fact at trial.” Id. at 324; accord

United States v. Yeley-Davis, 632 F.3d 673, 679 (10th Cir.

2011). The admission of Wayne’s timesheets thus did not violate

the Confrontation Clause.

F. Flight Instruction

¶43 Parker argues that the trial court erred by instructing

jurors that they could consider flight as evidence of

consciousness of guilt. At trial, he testified that he left

Phoenix on Sunday, September 25, 2005, because his girlfriend

broke up with him that morning, and he had a history of leaving

when faced with personal troubles.

¶44 We review the trial court’s decision to give a flight

instruction for abuse of discretion. State v. Dann (Dann II),

220 Ariz. 351, 363-64 ¶ 51, 207 P.3d 604, 616-17 (2009). The

trial court may give a flight instruction if the state presents

evidence from which jurors may infer “consciousness of guilt for

20

the crime charged.” State v. Edwards, 136 Ariz. 177, 184, 665

P.2d 59, 66 (1983).

¶45 The record reflects that the murders probably occurred

the afternoon of Saturday, September 24, 2005. Sometime before

2:00 p.m. on Sunday, September 25, without notice to anyone and

without permission, Parker drove his housemate’s car to Mexico,

where he remained for several days before driving to San Diego

and abandoning the car. Parker then went to Chino, California,

where friends told him Phoenix police wanted to speak with him.

Instead of returning to Phoenix or contacting law enforcement,

Parker took a bus to Santa Barbara. A few days later, he took

another bus to Las Vegas, where police arrested him for theft on

October 13.

¶46 Parker first argues that the trial court should not

have given the flight instruction because he did not leave until

the day after the murders ostensibly occurred. But this delay

goes to the weight of the flight evidence; it does not preclude

the trial court from giving a flight instruction. Dann II, 220

Ariz. at 363-64 ¶ 51, 207 P.3d at 616-17; State v. Bible, 175

Ariz. 549, 592, 858 P.2d 1152, 1195 (1993). This Court has

approved flight instructions when the flight was more than one

day removed from the commission of the crime. E.g., Edwards,

136 Ariz. at 184, 665 P.2d at 66 (approving a flight instruction

21

where defendant fled fifteen months after the crime). The short

delay here did not make giving a flight instruction improper.

¶47 Parker next argues that the trial court should not have

given the flight instruction because law enforcement was not

pursuing him when he left, and he did not attempt to conceal his

identity. At least in part, this is not correct. While in

Mexico, Parker gave a false name to a hitchhiker. Additionally,

once he heard that police were looking for him, he did not

return to Phoenix or contact authorities, but instead went to

Santa Barbara and then Las Vegas.

¶48 In any event, neither pursuit by law enforcement nor

complete concealment is required to support a flight

instruction. See State v. Noleen, 142 Ariz. 101, 108, 688 P.2d

993, 1000 (1984) (approving flight instruction where defendant

left the state and abandoned his car, even though police were

not pursuing him and he used his own name when checking in at a

motel). Rather, “[l]eaving the state justifies a flight

instruction as long as it invites some suspicion of guilt.”

State v. Thornton, 187 Ariz. 325, 334, 929 P.2d 676, 685 (1996).

Such an inference is reasonable here.

¶49 Parker cites State v. Bailey, 107 Ariz. 451, 489 P.2d

261 (1971), which held a flight instruction unwarranted on the

unique facts presented. In Bailey, however, the defendant

presented unrefuted evidence that he was near the crime when it

22

occurred only because he was driving home to Texas from Los

Angeles, and he simply proceeded home. Id. at 451-52, 489 P.2d

at 261-62. Here, by contrast, Parker fled from his residence

rather than toward it and had no previous plans to leave the

state.

¶50 Finally, Parker’s explanation for his flight did not

preclude the trial court from giving a flight instruction. See

State v. Hunter, 136 Ariz. 45, 49, 664 P.2d 195, 199 (1983)

(defendant’s alternative explanation for flight does not make

instruction improper). It simply created a fact question for

the jury to decide.

G. Third-Party Culpability Instruction

¶51 Parker argues that the trial court erred by not

instructing the jury on third-party culpability at the close of

the guilt phase of the trial. The judge declined to give

Parker’s requested instruction because it commented on the

evidence. See Ariz. Const. art. 6, § 27 (instructions may not

comment on the evidence); State v. Roque, 213 Ariz. 193, 213

¶ 66, 141 P.3d 368, 388 (2006) (same). The judge suggested an

alternative instruction, but Parker objected because he believed

it incorrectly stated the law.

¶52 Parker then requested the following instruction:

Steven Parker contends that he did not kill Wayne
Smith or Faye Smith.

23

In order for you to consider a third-party culpability
defense, Defendant must show some evidence concerning
a third person or third persons that tends to create
reasonable doubt as to his guilt. Defendant does not
need to prove beyond a reasonable doubt that the third
party is guilty of the charged offenses. The evidence
need only tend to show that a third person or persons
committed the offenses and thus tend to create
reasonable doubt as to Defendant’s guilt.

You may also consider that Mr. Randall was served with
a subpoena, that he is under court order to appear,
that he has failed to appear, and that a warrant has
been issued for his arrest for the failure to appear.
Mr. Randall’s flight is not sufficient in itself to
establish guilt, but it is a fact which you may
consider in the light of all other facts concerning
Mr. Randall.

The judge declined to give this instruction because, among other

things, it set forth the standard for admitting third-party

culpability evidence, not the standard for the jury to use in

evaluating such evidence. Noting that other instructions

adequately dealt with the substance of the requested

instruction, the judge invited Parker to submit a modified

instruction, but the record does not reflect that Parker ever

did so. The judge also invited the parties to argue third-party

culpability in closing.

¶53 On appeal, Parker concedes that his proposed

instruction improperly comments on the evidence, but now argues

that the trial court should have given just the middle paragraph

from his instruction. We review a trial court’s decision to

24

refuse a jury instruction for abuse of discretion. State v.

Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995).

¶54 A trial judge must instruct the jury “on any theory

reasonably supported by the evidence.” State v. Moody, 208

Ariz. 424, 467 ¶ 197, 94 P.3d 1119, 1162 (2004). A trial judge,

however, need not give a proposed jury instruction when its

substance is adequately covered by other instructions or it

incorrectly states the law. State v. Rodriguez, 192 Ariz. 58,

61 ¶ 16, 961 P.2d 1006, 1009 (1998). Moreover, a trial judge

has no duty to parse the proposed instruction for the accurate

portions. Hammels v. Britten, 53 Ariz. 112, 120, 85 P.2d 992,

995 (1939).

¶55 In arguing that a third-party culpability instruction

was required, Parker cites State v. Gibson, 202 Ariz. 321, 44

P.3d 1001 (2002), and State v. Prion, 203 Ariz. 157, 52 P.3d 189

(2002). But Gibson and Prion dealt with the admissibility of

third-party culpability evidence, not third-party culpability

jury instructions. See Prion, 203 Ariz. at 161-62 ¶¶ 19-27, 52

P.3d at 193-94; Gibson, 202 Ariz. at 323-24 ¶¶ 11-19, 44 P.3d at

1003-04. No Arizona case has required a third-party culpability

instruction.

¶56 Nor was such an instruction required here. Although

Parker contends that the proposed instruction was needed to

prevent the jury from improperly shifting the burden of proof

25

from the State, the court instructed the jury on the presumption

of innocence and the State’s burden of proving beyond a

reasonable doubt all elements of the crimes charged. See People

v. Abilez, 161 P.3d 58, 91-92 (Cal. 2007) (finding any error in

failure to give third-party culpability instruction harmless

where jury was instructed on presumption of innocence and burden

of proof); State v. Berger, 733 A.2d 156, 168 (Conn. 1999)

(holding third-party culpability instruction unnecessary where

jury was instructed on presumption of innocence and burden of

proof). Thus, the substance of the instruction was adequately

covered, and we find no reversible error.

H. Fifth Amendment

¶57 Parker argues that his Fifth Amendment rights were

violated by the admission of his videotaped interviews with

police and by the prosecutor’s comments on his statements in

those interviews.

¶58 Before trial, Parker sought to exclude two recorded

interviews with police on the grounds that his statements were

involuntary. After a hearing, the trial judge declined to

preclude the admission of either interview. At trial, both

interviews were admitted into evidence by stipulation and played

for the jurors. Parker ended each interrogation by invoking his

right to counsel, and both invocations were played to the jury

without objection.

26

¶59 In closing argument, the prosecutor commented on the

fact that Parker ended the first interview. The trial court

sustained Parker’s objection and granted his motion to strike.

¶60 The following morning, Parker moved for a mistrial,

arguing that the prosecutor had improperly commented on his

invocation of his Fifth Amendment rights. The trial court

denied the motion, noting that the jury had seen Parker end the

interview on the videotape.

¶61 Parker’s stipulation to admit the videotaped interviews

precludes him from asserting on appeal that their admission was

error. See State v. Pandeli, 215 Ariz. 514, 528 ¶ 50, 161 P.3d

557, 571 (2007) (discussing invited error doctrine).

¶62 Parker argues, however, that the voluntariness hearing

preserved his objection to the admissibility of the videos and

that the State had agreed to redact the invocations. But the

voluntariness hearing addressed whether Parker’s statements in

the videos were voluntary and did not involve objections to the

admissibility of the videos on other grounds. On appeal, Parker

does not challenge the voluntariness finding and cannot now

press objections to the admissibility of the videos that were

not made at or before trial. Moreover, the record does not

reflect that the State agreed to redact the invocations or that

Parker ever requested that they be redacted. As such, any error

in admitting the videotaped interviews was not fundamental.

27

¶63 We therefore review the trial court’s denial of

Parker’s motion for mistrial based on the prosecutor’s allegedly

improper comments. We review that ruling for abuse of

discretion. State v. Nelson, 229 Ariz. 180, 189 ¶¶ 35-36, 273

P.3d 632, 641 (2012).

¶64 A prosecutor may not comment on a defendant’s

invocation of his Fifth Amendment rights. Doyle v. Ohio, 426

U.S. 610, 618-19 (1976); State v. Carrillo, 156 Ariz. 125, 128,

750 P.2d 883, 886 (1988). On appeal, Parker argues that three

of the prosecutor’s statements during closing argument commented

on his invocation. The first two statements are as follows:

(1) But most importantly, why didn’t the Defendant
answer Detective Branch’s questions about those
credit cards?

(2) Because the person that took those credit cards
murdered these people, and the only person that
did that was this defendant. And this defendant
when he had the chance to deny it, didn’t.

¶65 Neither statement improperly commented on Parker’s

invocations of his Fifth Amendment rights. Rather, when viewed

in context, these statements highlighted Parker’s evasive

answers to questions about use of the Smiths’ credit cards. As

evidence of evasiveness, the prosecutor noted that, when asked

about the credit cards, Parker stated, “I don’t have them now,”

instead of denying having taken or used them. In addition,

instead of denying taking or using the cards, Parker said “[i]f

28

I tell you that I took them, if I tell you that I used them

. . . [t]hen you’re going to think I did it.” The prosecutor’s

statements were permissible comments on Parker’s statements, not

comments on his invocation of his Fifth Amendment rights. See

Anderson v. Charles, 447 U.S. 404, 408 (1980) (stating that

“[a]s to the subject matter of his statements, the defendant has

not remained silent at all”); State v. Anaya, 170 Ariz. 436,

441-42, 825 P.2d 961, 966-67 (App. 1991) (admitting co-

defendant’s failure to claim self-defense post-arrest because

statements were made).

¶66 The prosecutor’s third statement is more troubling. In

the first interview played to the jury, Parker asked to end the

interview until he could speak with counsel. During closing

arguments, defense counsel asserted that investigators had not

thoroughly interviewed Parker. In rebuttal, the prosecutor

said:

And [defense counsel] . . . accuses Detective Branch
of not doing a good enough interview of the defendant.
Watch that interview again, that first one, and take
account of who stopped that interview. Who terminated
it?

The trial court sustained Parker’s objections and granted his

motion to strike.

¶67 While the prosecutor arguably was responding to

Parker’s claim that the interview was not adequate, the

statement could also be interpreted as asking the jury to draw a

29

negative inference from Parker’s invocation of his Fifth

Amendment rights, and thus was improper. See Doyle, 426 U.S. at

618-19; State v. Bowie, 119 Ariz. 336, 341, 580 P.2d 1190, 1195

(1978). When a defendant in custody initially speaks with the

police but then asks to remain silent, the prosecutor may

comment on the statements made, but not on the defendant’s

invocation of his rights. State v. Guerra, 161 Ariz. 289, 296,

778 P.2d 1185, 1192 (1989). We have held similar comments to be

improper and have reversed convictions for improper comments on

a defendant’s invocation of his Fifth Amendment rights.5 See

State v. Sorrell, 132 Ariz. 328, 329-30, 645 P.2d 1242, 1243-44

(1982).

¶68 Here, however, the comment does not constitute

reversible error. Parker stipulated to the admission of the

videotapes and they were played for the jury; thus, the jurors

already knew that Parker had invoked his right to counsel in the

interviews. Although we urge prosecutors to refrain from

venturing even close to commenting on a defendant’s exercise of

the significant rights protected by the Fifth Amendment, the

prosecutor here was not suggesting that Parker was guilty or

lying because he invoked his right to counsel. Cf. id. at 329,

5
Parker argues that we should review this issue under the
cumulative prosecutorial misconduct analysis from State v.
Hughes, 193 Ariz. 72, 79 ¶¶ 26-27, 969 P.2d 1184, 1191 (1998).
This standard is inapplicable, however, where, as here, the
prosecutor made only one improper statement.
30

645 P.2d at 1243 (reversing where prosecutor suggested defendant

was lying because he invoked his right to remain silent for an

hour before telling police his story). Rather, the prosecutor

was responding to defense counsel’s charge that the police did

not thoroughly interview Parker, suggesting that detectives

might have asked more questions had Parker not terminated the

interview. Moreover, the trial court sustained Parker’s

objection to the statement and granted his motion to strike. In

these circumstances, the trial judge did not abuse his

discretion by striking the comment and denying Parker’s mistrial

motion.

I. Motion for Judgment of Acquittal

¶69 Parker contends that he was entitled to a judgment of

acquittal because the State failed to present substantial

evidence to support a conviction. See Ariz. R. Crim. P. 20(a).

We review the trial court’s denial of a Rule 20 motion de novo.

Bible, 175 Ariz. at 595, 858 P.2d at 1198.

¶70 On a Rule 20 motion for a judgment of acquittal, “the

relevant question is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979); State v. West, 226 Ariz. 559, 562 ¶ 16, 250 P.3d 1188,

1191 (2011). Substantial evidence is “such proof that

31

reasonable persons could accept as adequate and sufficient to

support a conclusion of defendant’s guilt beyond a reasonable

doubt.” West, 226 Ariz. at 562 ¶ 16, 250 P.3d at 1191.

¶71 The following circumstantial evidence links Parker to

the crime: DNA from a napkin and a drop of blood found in the

Smiths’ house, the latter of which also contained DNA consistent

with Faye; Parker’s trip to Mexico the day after the murders;

the use of the Smiths’ credit cards near Parker’s home,

including at a bar that Parker had visited, and on one route to

Mexico at the time Parker was driving there; Tasha Uhl’s

statements placing Parker near the Smiths’ home around the time

of the murders; and Parker’s evasive answers to police questions

regarding whether he had taken or used the Smiths’ credit cards.

Parker also admitted owing money to his employer at the time of

the crimes, making financial difficulties a potential motive.

We have held similar circumstantial evidence sufficient to

support a jury’s finding of guilt beyond a reasonable doubt.

See State v. Atwood, 171 Ariz. 576, 599, 832 P.2d 593, 616

(1992), overruled on other grounds by State v. Nordstrom, 200

Ariz. 229, 241 ¶ 25, 25 P.3d 717, 729 (2001).

¶72 Although Parker offered an explanation for the presence

of his blood and DNA in the Smiths’ home, other evidence

undercut that explanation, particularly Wayne’s timesheets and

phone records showing that Faye called Wayne’s cell phone during

32

the time Parker was allegedly helping Wayne work at the Smiths’

house. The same is true regarding Parker’s flight; a reasonable

juror could have rejected Parker’s explanations. Viewed in the

light most favorable to upholding the jury’s verdicts, this

evidence is sufficient to support the guilty verdicts.

¶73 Parker argues that substantial doubt exists concerning

his guilt because evidence shows that Jason Randall might have

had a motive to kill the Smiths and might have been inside the

Smiths’ home around the time of their murders, and Randall

failed to respond to a subpoena. The jurors heard most of this

evidence, but rejected it. They heard that Randall absconded

despite having been served with a subpoena. And although the

trial court did not permit Casandra Manery to testify that

Randall might have told her he had gone inside the Smiths’

house, Manery was permitted to confirm that she had previously

said, “It was almost like [Randall] was going back to the house

to try and get something out.” The jury also heard that hairs

found in Wayne’s mouth did not match either Parker or the

Smiths. Finally, Parker testified at trial and offered his

alternative explanations for his flight, the presence of his

blood and DNA in the home, and Randall’s potential role in the

murders. The jury rejected Parker’s defense. See State v.

Clemons, 110 Ariz. 555, 556-57, 521 P.2d 987, 988-89 (1974)

(noting that it is the jury’s exclusive role to weigh the

33

credibility of testimony, including the defendant’s). In sum,

the State presented substantial evidence to support the jury’s

verdicts.

J. Motion for New Trial

¶74 Parker argues that his convictions are contrary to the

weight of the evidence and that the trial judge applied the

wrong standard in reviewing his motion for a new trial. See

Ariz. R. Crim. P. 24.1(c)(1). A motion for new trial should be

granted “only if the evidence was insufficient to support a

finding beyond a reasonable doubt that the defendant committed

the crime.” State v. Landrigan, 176 Ariz. 1, 4, 859 P.2d 111,

114 (1993). We review the trial court’s decision for abuse of

discretion. Id. As explained, supra ¶¶ 71-73, sufficient

evidence supported the verdicts.

¶75 Further, there is no indication that the trial judge

applied an incorrect standard. The trial court denied the

motion “[b]ased upon [its] review, and for the reasons stated in

the responses filed by the State.” Parker’s motion for a new

trial did not raise any new issues or cite new legal authority.

We cannot say that the trial judge abused his discretion in

denying the motion.

K. Motion to Vacate the Judgment

¶76 Parker argues that the trial judge abused his

discretion by denying Parker’s motion to vacate the judgment

34

because newly discovered evidence undermined the verdicts. See

Ariz. R. Crim. P. 24.2(a)(2). During jury deliberations, Jason

Randall reappeared and Parker deposed him on May 21, 2010. At

the deposition, Randall repeatedly invoked his privilege against

self incrimination and stated that, if called to testify at

trial, he would refuse. Randall provided a hair sample for

testing to compare it to hairs found in Wayne’s mouth and hand.

¶77 Based on these developments, Parker filed a motion to

vacate the judgment, arguing that newly discovered material

facts existed that would have changed the verdict. After

briefing, the trial court denied this motion.

¶78 We review a trial court’s denial of a motion to vacate

a judgment for abuse of discretion. State v. Orantez, 183 Ariz.

218, 221, 902 P.2d 824, 827 (1995). We afford trial judges

great discretion given their “special perspective of the

relationship between the evidence and the verdict which cannot

be recreated by a reviewing court from the printed record.”

Reeves v. Markle, 119 Ariz. 159, 163, 579 P.2d 1382, 1386

(1978). To prevail on a motion to vacate the judgment based on

newly discovered evidence, the

[d]efendant must show that (1) the newly discovered
evidence is material; (2) the evidence was discovered
after trial; (3) due diligence was exercised in
discovering the material facts; (4) the evidence is
not merely cumulative or impeaching, unless the
impeachment evidence substantially undermines
testimony that was of critical significance at trial;

35

and (5) . . . the new evidence, if introduced, would
probably change the verdict or sentence in a new
trial.

Orantez, 183 Ariz. at 221, 902 P.2d at 827.

¶79 Parker asserts that Randall’s hair sample and the

opportunity to put Randall on the stand are newly discovered

evidence. Even if such evidence was newly discovered, material,

impeaching, and not cumulative, it is unlikely that the evidence

would have changed the result in this case. The jury already

heard that Randall absconded despite having been subpoenaed and

that the hairs in Wayne’s mouth did not match Parker or the

Smiths. Further, Parker’s counsel thoroughly argued during

closing argument that Randall could have been inside the Smiths’

house and that his hair could match the hair found in Wayne’s

hand and mouth. Given that the hairs were later found not to

match Randall’s, Parker actually benefitted from not being able

to test Randall’s hair earlier.

¶80 The trial court did not abuse its discretion in denying

the motion to vacate the judgment.

L. Cumulative Effect of Evidentiary Errors

¶81 Parker acknowledges that we have rejected the

cumulative error doctrine, but urges us to adopt the doctrine

and find that the cumulative effect of the evidentiary errors

here constitutes reversible error. We decline to revisit our

longstanding precedent. See Hughes, 193 Ariz. at 78-79 ¶ 25, 969

36

P.2d at 1190-91 (explaining that we do not recognize the

cumulative error doctrine).

III. ABUSE OF DISCRETION REVIEW

¶82 We review Parker’s death sentence to “determine whether

the trier of fact abused its discretion in finding aggravating

circumstances and imposing a sentence of death.” A.R.S. § 13-

756(A). The trier of fact did not abuse its 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

(2010).

A. Proper Standard of Review and Constitutionality of
A.R.S. § 13-756(A)

¶83 Parker argues that we have incorrectly applied abuse of

discretion review to capital cases and that abuse of discretion

review as now conducted violates the Eighth and Fourteenth

Amendments. Parker acknowledges that we have rejected these

arguments before. State v. Cota, 229 Ariz. 136, 153 ¶¶ 91-92,

272 P.3d 1027, 1044 (2012); Nelson, 229 Ariz. at 191 ¶ 50, 273

P.3d at 643. He argues, however, that we should reconsider

those holdings, because they misapply Clemons v. Mississippi,

494 U.S. 738 (1990), which requires “meaningful” appellate

review of death sentences. But in Cota, we observed that

“[m]eaningful appellate review requires only that an appellate

court ‘consider whether the evidence is such that the sentencer

37

could have arrived at the death sentence that was imposed,’ not

whether the appellate court itself would have imposed a death

sentence.” 229 Ariz. at 153 ¶ 92, 272 P.3d at 1044 (quoting

Clemons, 494 U.S. at 749). We decline to reconsider this

conclusion.

B. Aggravating Circumstances

¶84 In the aggravation phase, the jury found three

aggravators for each murder: pecuniary gain, especial cruelty,

and multiple homicides. A.R.S. § 13-751(F)(5), (6), (8). On

appeal, Parker contests these findings.

¶85 The jury did not abuse its discretion in finding the

pecuniary gain aggravator, § 13-751(F)(5). To prove this

aggravator, the state must show that “the expectation of

pecuniary gain is a motive, cause, or impetus for the murder and

not merely a result of the murder.” State v. Hyde, 186 Ariz.

252, 280, 921 P.2d 655, 683 (1996). Here, the State introduced

evidence that Wayne’s wallet and Faye’s purse were missing after

the murders. Their credit and bank cards were used several

times in the following days, including once at a bar that Parker

had visited for a poker tournament and possibly again during the

week of the murders, and on a route to Mexico at the time Parker

was driving there. In addition, the State introduced evidence

that Parker had financial problems when the murders occurred.

The evidence of Parker’s financial troubles, the use of the

38

Smiths’ credit and bank cards, and the inferences that can be

drawn from that evidence support the jury’s finding of the

pecuniary gain aggravator. Cf. State v. Lynch, 225 Ariz. 27, 40

¶¶ 69-73, 234 P.3d 595, 608 (2010) (finding on independent

review that use of the victim’s bank cards after the murder,

along with other evidence, was sufficient to establish the

(F)(5) aggravator).

¶86 The jury also did not abuse its discretion in finding

the especial cruelty aggravator, § 13-751(F)(6). To prove this

aggravator, the state must establish “that a victim was

conscious and suffered physical pain or mental anguish before

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

victim would suffer.” State v. Morris, 215 Ariz. 324, 341 ¶ 79,

160 P.3d 203, 220 (2007).

¶87 In this case, there was evidence that both Wayne and

Faye were conscious during the attack and that they suffered.

Wayne had several stab wounds, and the location of the wounds

and the blood spatter indicate that he was stabbed before

receiving the blunt force injury that killed him. Further, the

blood spatter expert testified that Wayne likely tried to come

to Faye’s aid after he was initially attacked, suggesting that

Wayne remained conscious and suffered physical pain and mental

anguish. See State v. Prince, 226 Ariz. 516, 540 ¶¶ 99-101, 250

P.3d 1145, 1169 (2011) (finding especial cruelty supported by

39

evidence that victim saw the assailant attack her mother

immediately before the murder).

¶88 As for Faye, her ankles were bound with speaker wire

and she had ligature marks and bruises, caused by blunt force

trauma likely inflicted before her death, on her leg and foot.

She also suffered knife wounds to her left hand and face.

Although she would have remained conscious only a short while

after her fatal injury — a stab wound to her chest that cut her

aorta — even this small period of suffering can establish

especial cruelty. See id. at 540 ¶ 98 n.7, 250 P.3d at 1169 n.7

(listing cases in which a finding of especial cruelty was upheld

based on time periods of suffering ranging from eighteen seconds

to three minutes). Further, that Faye was bound supports a

finding that she was conscious, and so would have suffered

mental anguish. See Lynch, 225 Ariz. at 41 ¶ 79, 234 P.3d at

609 (mental anguish proved by evidence that victim was bound and

showed signs of struggling). Given this evidence, the jury did

not abuse its discretion in finding the (F)(6) aggravator

proven.

¶89 Finally, the jury did not abuse its discretion in

finding the multiple homicides aggravator, § 13-751(F)(8). To

prove this aggravator, the state must show that the murders were

“temporally, spatially, and motivationally related, taking place

during one continuous course of criminal conduct.” Dann II, 220

40

Ariz. at 364 ¶ 57, 207 P.3d at 617. Parker argues that the

evidence suggesting that Wayne came to Faye’s aid indicates

that, even if Parker was the initial assailant, he killed Wayne

in self-defense and, thus, did not have the same motivation for

Wayne’s killing as for Faye’s. The jury, however, could have

inferred that both homicides were committed during the same

course of conduct and with the same motive, whether pecuniary

gain or another motive. In sum, the jury did not abuse its

discretion by finding the (F)(8) aggravator proven.

C. Death Sentence

¶90 Finally, we find that the jury did not abuse its

discretion in imposing the death sentence. Parker presented

mitigating evidence that “he is a highly intelligent, nonviolent

young man who loves his children and family and these acts are

diametrically opposed to his character, intellect and

psychology.” This evidence included IQ scores of 129 and 135,

grades in the top five percent of his class, participation in

high school sports, and attendance at the University of Arizona

where he worked in the library and residence halls. Friends and

family testified to Parker’s good character. The mitigation

specialist found no evidence of a troubled childhood, and a

forensic neuropsychologist testified that he found “no

indication of any psychiatric disturbance,” mental illness,

brain damage, or antisocial personality disorder in Parker.

41

Even if we assume that Parker proved all of his mitigating

factors, the jury did not abuse its discretion in concluding

that leniency was not warranted.

IV. CONCLUSION

¶91 We affirm Parker’s convictions and sentences.6

__________________________________
Rebecca White Berch, Chief Justice

CONCURRING:

_____________________________________
Scott Bales, Vice Chief Justice

_____________________________________
A. John Pelander, Justice

_____________________________________
Robert M. Brutinel, Justice

_____________________________________
Samuel A. Thumma, Judge*

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

6
Parker lists twenty-seven constitutional claims that he
states this Court has previously rejected, but he seeks to
preserve for federal review. We do not address those here.
42