State of Arizona v. Edward James Rose

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0362-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2007-149013
EDWARD JAMES ROSE, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Paul J. McMurdie, Judge

AFFIRMED
________________________________________________________________

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

THOMAS A. GORMAN ATTORNEY AT LAW Sedona
By Thomas A. Gorman
Attorney for Edward James Rose
________________________________________________________________

P E L A N D E R, Justice

¶1 After fatally shooting a police officer, Edward James

Rose pleaded guilty to two counts of first degree murder for

that killing and to eight other felony counts. He was sentenced

to death on the murder counts and to prison terms on the other

convictions. We have jurisdiction over his automatic appeal

1

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

A.R.S. §§ 13-4031 and -4033(A)(1).

I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 On July 25, 2007, Rose stole a truck that contained a

company’s checkbook. Over the next three days, Rose conspired

with others to forge and cash checks from the checkbook.

¶3 On July 27, Rose and his girlfriend smoked

methamphetamine and drank beer most of the day. That night,

they went out to cash forged checks. Rose had said earlier that

day he would shoot anyone who tried to stop him. Armed with a

gun, Rose entered a check cashing store and presented one of the

company’s checks to the cashier. She discovered the check was

forged and called the police.

¶4 Shortly thereafter, Officer George Cortez, Jr. of the

Phoenix Police Department arrived. The officer entered the

store, approached Rose, and began to handcuff him. After his

left hand was cuffed, Rose pulled out his gun and shot the

officer twice, killing him. Rose ran from the store with the

handcuffs dangling from his wrist. Surveillance cameras

captured the shooting.

¶5 Early the next morning, officers went to a house where

they suspected Rose was hiding. They eventually entered the

house, discovered Rose hiding in a closet, and arrested him.

¶6 The State charged Rose with first degree murder of a

2

law enforcement officer, first degree felony murder, and other

noncapital felonies. On the day Rose’s trial was to begin, he

pleaded guilty to all charges. After finding four aggravating

factors in the aggravation phase, and receiving evidence in the

penalty phase, the jury sentenced Rose to death.

II. ISSUES ON APPEAL

A. Arraignment and absence from jury prescreening

¶7 Rose argues that he was denied an arraignment and the

ability to participate in the first three days of jury selection

in violation of the Fifth, Sixth, and Fourteenth Amendments.

Because Rose did not object below, we review for fundamental

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

601, 607 (2005).

¶8 Contrary to Rose’s first contention, the record

indicates he was arraigned on August 17, 2007, when he entered a

plea of “not guilty to all charges.” A week earlier, he and his

counsel received notice of the indictment, including the two

first degree murder counts. He did not object below to any

alleged flaws in the arraignment process, and he has not

established any error in that process.

¶9 Rose’s argument regarding his absence from the initial

portions of jury selection is also meritless. A defendant is

entitled to be present at all phases of a trial, including jury

selection. Ariz. R. Crim. P. 19.2; State v. Garcia-Contreras,

3

191 Ariz. 144, 146 ¶ 8, 953 P.2d 536, 538 (1998). But a

defendant “may waive the right to be present at any proceeding

by voluntarily absenting himself or herself from it.” Ariz. R.

Crim. P. 9.1. And “a trial court may rely on counsel’s waiver

of a defendant’s right to be present” in certain circumstances;

“personal waiver by the defendant is not required.” State v.

Canion, 199 Ariz. 227, 234 ¶ 26, 16 P.3d 788, 795 (App. 2000);

see also State v. Collins, 133 Ariz. 20, 23, 648 P.2d 135, 138

(App. 1982) (“Unless the circumstances are exceptional, a

defendant is bound by his counsel’s waiver of his constitutional

rights.” (citing Henry v. Mississippi, 379 U.S. 443 (1965);

State v. Rodriguez, 126 Ariz. 28, 612 P.2d 484 (1980))).

¶10 The record reflects that Rose, through counsel, waived

his presence for the first two days of jury selection, which

involved the trial judge “time screening” potential jurors on

the anticipated length of trial and their availability. Rose

was under a medical quarantine for at least the first day, did

not object to his absence on either day, and presents no

exceptional circumstances that would render ineffective his

attorney’s waiver. On the third day, when the parties merely

stipulated to which jurors did not need to return for additional

questioning, the court granted defense counsel time to contact

Rose before proceeding. Rose specifically told his attorney

that he waived his presence. Rose was present on the next trial

4

day and throughout the rest of jury selection and trial. Even

if we assume that Rose, absent his waiver, “was entitled to

attend the [juror] prescreening process,” State v. Morris, 215

Ariz. 324, 335 ¶ 45, 160 P.3d 203, 214 (2007), no fundamental

error arose regarding Rose’s absence from three days of that

process.

B. Exclusion of non-English speaking jurors

¶11 Rose argues that the exclusion of non-English speaking

jurors violated his Sixth and Fourteenth Amendment rights and

that A.R.S. § 21-202(B)(3) is unconstitutional. That statute

provides that persons “shall be excused temporarily from service

as a juror if the judge or jury commissioner finds” that “[t]he

prospective juror is not currently capable of understanding the

English language.” We have previously considered and rejected

the arguments Rose makes. See State v. Cota, 229 Ariz. 136, 143

¶¶ 13–16, 272 P.3d 1027, 1034 (2012).

C. Voluntariness of guilty plea

¶12 Rose argues on multiple grounds that his guilty plea

was involuntary and not made knowingly and intelligently. This

Court reviews a trial court’s acceptance of a guilty plea for an

abuse of discretion. State v. Djerf, 191 Ariz. 583, 594 ¶ 35,

959 P.2d 1274, 1285 (1998). We “must determine if reasonable

evidence supports the finding that the defendant was competent

to enter the plea” and will consider the facts “in a light most

5

favorable to sustaining the trial court’s finding.” Id.

(internal quotation marks omitted).

¶13 When accepting a guilty plea, the trial judge must

ensure that the plea is entered voluntarily, intelligently, and

knowingly. Id. To ensure this, Arizona Rule of Criminal

Procedure 17.2 requires the court to “address the defendant

personally in open court” and inform the defendant fully of his

or her rights and the consequences of pleading guilty. “What is

at stake for an accused facing death or imprisonment demands the

utmost solicitude of which courts are capable in canvassing the

matter with the accused to make sure he has a full understanding

of what the plea connotes and of its consequence.” Boykin v.

Alabama, 395 U.S. 238, 243-44 (1969). The trial court must

ensure that the defendant understands:

(1) the nature of the charges, (2) the nature and
range of possible sentences, including any special
conditions, (3) the constitutional rights waived by
pleading guilty, (4) the right to plead not guilty,
and (5) that the right to appeal is also waived if the
defendant is not sentenced to death.

Djerf, 191 Ariz. at 594 ¶ 36, 959 P.2d at 1285; see also Ariz.

R. Crim. P. 17.2; Boykin, 395 U.S. at 243.

¶14 Rose first argues his plea was not voluntary because

he was not arraigned and never received actual notice of the

capital offenses to which he pleaded guilty. But as discussed

above, supra ¶ 8, the record shows that, after receiving notice

6

of the indictment, Rose was arraigned and pleaded “not guilty to

all charges.”

¶15 At the subsequent change-of-plea proceeding, Rose

acknowledged he had discussed with his counsel “the pros and

cons” of pleading guilty and that it was his “free choice to

plead guilty to these charges.” The trial court expressly told

Rose he had “several charges pending” against him, “with the

most serious charges” being the two “first degree murder”

counts, for which he could face “a death penalty.” The court

later repeated the first degree murder charges before asking

Rose what his plea on each count was, to which he responded

“[g]uilty.”

¶16 These facts distinguish this case from Henderson v.

Morgan, 426 U.S. 637 (1976), on which Rose relies. There, the

defendant pleaded guilty to second degree murder without any

“indication that the nature of the offense had ever been

discussed with [him].” Id. at 642–43. No one informed the

defendant that intent, an element that he explicitly denied, was

required for the charged offense. Id. at 643.

¶17 Here, in contrast, Rose’s attorney avowed, and Rose

acknowledged, that she had discussed the charges and the

consequences of pleading guilty with Rose, who did not dispute

the factual basis of his plea or whether the required mens rea

was sufficiently established. The trial court had no obligation

7

to advise Rose of each specific element of his crimes “[a]bsent

the unique circumstances of Henderson v. Morgan.” State v.

Devine, 114 Ariz. 574, 575, 562 P.2d 1072, 1073 (1977); cf.

State v. Ovante, 231 Ariz. 180, 185 ¶ 17, 291 P.3d 974, 979

(2013) (“The trial court was not required to explain the

distinction between first and second degree murder and was free

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

established premeditation.”).

¶18 Second, Rose argues the trial court failed to review a

written plea agreement with him. But no plea agreement existed

or was required. The law only requires Rose’s plea to have been

made voluntarily, intelligently, and knowingly, regardless of

the existence of a formal plea agreement. See Ariz. R. Crim. P.

17.1–17.3; Boykin, 395 U.S. at 242-44; Djerf, 191 Ariz. at 594

¶ 35, 959 P.2d at 1285.

¶19 Third, without citing any pertinent authority, Rose

argues that his plea was not voluntary because the trial court

did not secure a waiver of his guilty except insane (“GEI”)

defense. Such a waiver, however, was not required. In

accepting a guilty plea, a trial court need not “call to the

attention of the accused every defense which might conceivably

be suggested by the record.” State v. Hickey, 110 Ariz. 527,

529, 521 P.2d 614, 616 (1974). Rose similarly argues that the

court failed to inquire into his sanity at the time of the

8

shooting. Insanity, however, is an affirmative defense that a

defendant must prove by clear and convincing evidence. A.R.S.

§ 13-502(A), (C). Again, the trial court had no duty to inform

Rose of that potential defense, which he previously had alleged.

¶20 Fourth, Rose argues that the plea colloquy did not

include any statement about his state of mind at the time of the

shooting. To commit first degree murder of a police officer,

one must intentionally or knowingly kill a law enforcement

officer who is working in the line of duty. A.R.S. § 13-

1105(A)(3); State v. Cruz, 218 Ariz. 149, 169 ¶ 129, 181 P.3d

196, 216 (2008). In the change-of-plea proceeding, Rose’s

attorney recited the following relevant facts:

[O]n or about July 27th, 2007, my client, Edward James
Rose, entered the Southwest Check Cashing Store on
83rd Avenue and about Encanto. He entered that
particular facility . . . for the purpose of cashing a
forged check . . . .

When he entered that facility he had a gun on his
person. While in the check cashing store Police
Officer George Cortez, Jr. arrived, and in the line of
duty, and he was in the line of duty, it was at that
time that my client, using the gun that he had on his
person, turned, shot and killed Officer George Cortez,
Jr.

¶21 Arizona Rule of Criminal Procedure 17.3 requires the

court to “determine that there is a factual basis for the plea.”

“A factual basis can be established by ‘strong evidence’ of

guilt and does not require a finding of guilt beyond a

9

reasonable doubt.” State v. Salinas, 181 Ariz. 104, 106, 887

P.2d 985, 987 (1994) (quoting State v. Wallace, 151 Ariz. 362,

365, 728 P.2d 232, 235 (1986)). Furthermore, “[t]he evidence of

guilt may be derived from any part of the record including

presentence reports, preliminary hearing transcripts, or

admissions of the defendant.” Id.; see also Ovante, 231 Ariz.

at 184 ¶ 12, 291 P.3d at 978.

¶22 The factual basis Rose presented at the change of plea

proceeding shows that Officer Cortez was on duty at the time of

the murder and that Rose intentionally or knowingly shot and

killed him. Rose argues, however, that earlier in the case he

had maintained to various mental health experts that he did not

know Officer Cortez was a police officer when he shot him, but

rather believed he was a security guard. But Rose made

inconsistent statements, and aggravation phase testimony

established that Officer Cortez was wearing his police uniform

with badge and was handcuffing Rose when Rose shot him.

¶23 Additionally, the trial court viewed the store’s

surveillance video footage that was admitted into evidence in

the aggravation phase, and it showed Rose looking over his

shoulder as Officer Cortez entered the store. Thus, if the

factual basis at the change of plea proceeding did not

adequately establish Rose’s mental state at the time he shot

Officer Cortez, other evidence in the record sufficiently shows

10

that Rose knew that Officer Cortez was a police officer.

Moreover, even if we assume that the factual basis was

inadequate for the first degree murder charge arising from

Rose’s killing of an on-duty police officer, Rose does not

challenge the factual basis for his plea of guilty to the felony

murder charge. Cf. State v. Rios, 217 Ariz. 249, 251 ¶ 8, 172

P.3d 844, 846 (App. 2007) (“The only intent required for felony

murder is the intent required to commit the underlying felony.”

(citing A.R.S. § 13-1105(B))).

¶24 Fifth, Rose argues that he “suffered from mental and

emotional instability,” which led to his “impromptu” guilty plea

on the day the guilt phase trial was set to begin. Rose points

to his low IQ of 77 and his impaired problem-solving skills as

evidence of his “substantially below average intelligence.” He

also relies on United States v. Christensen, in which the Ninth

Circuit said that, “[i]n cases where the defendant’s mental or

emotional state is a substantial issue,” district courts must

conduct fuller colloquies. 18 F.3d 822, 825 (9th Cir. 1994).

¶25 Christensen is inapplicable here. That case involved

a written jury trial waiver pursuant to Federal Rule of Criminal

Procedure 23(a) and an abbreviated colloquy. This case, in

contrast, involves an in-court guilty plea accepted by the judge

after a colloquy that satisfied Rule 17.2. Additionally,

although the trial judge might have been aware of Rose’s subpar

11

intelligence, there is no indication that the judge ever

suspected Rose was incompetent.

¶26 Rose nonetheless argues the trial court erred by

disregarding some indications of incompetence and failing to

hold a competency hearing before accepting his plea. We have

stated that “we will not uphold a guilty plea, where competency

has been a valid issue, absent a proper finding of competency.”

State v. Bishop, 139 Ariz. 567, 571, 679 P.2d 1054, 1058 (1984);

see also State v. Brewer, 170 Ariz. 486, 495, 826 P.2d 783, 792

(1992) (“A criminal defendant is not competent to plead guilty

if [his] mental illness has substantially impaired his ability

to make a reasoned choice among the alternatives presented to

him and understand the nature of the consequences of his plea.”

(internal quotation marks omitted)). But a competency

evaluation and hearing are not required in all cases in which

the defendant pleads guilty. Cf. State v. Wagner, 114 Ariz.

459, 462-63, 561 P.2d 1231, 1234-35 (1977) (when the record

raised “sufficient doubt of defendant’s competency to enter a

plea of guilty” to first degree murder, case was remanded for a

post-conviction hearing to determine whether he made “a rational

and reasoned decision in entering the plea”).

¶27 Either party may request a competency hearing. Ariz.

R. Crim. P. 11.2. But if preliminary mental health reports and

other evidence provide no reasonable grounds to justify a

12

competency hearing, no such hearing is required. Cf. Djerf, 191

Ariz. at 592 ¶¶ 26-28, 959 P.2d at 1283 (upholding trial court’s

finding, without a Rule 11 hearing, that the defendant validly

waived his right to counsel when mental health expert’s

prescreening report did not question defendant’s competency).

¶28 After he was charged, Rose initially waived his right

to have a mental health expert appointed pursuant to Rule 11 for

a prescreening under A.R.S. § 13-754(A)(1). The issue of

competency did not arise until almost two years later, after

defense expert Dr. Pablo Stewart first met with Rose. Although

he considered Rose “psychotic,” Dr. Stewart reported that he

“never felt that [Rose] was incompetent,” and that “his symptoms

have not prevented him from fully assisting counsel or

understanding his legal proceedings.” Neither Rose nor the

court pursued any further testing or evaluations concerning

Rose’s competency. Nor did any expert (including Dr. Heather

Gulino, the court’s appointed expert who evaluated Rose’s GEI

defense) suggest Rose was incompetent to either stand trial or

plead guilty. And, as the State aptly notes, “Rose has not

disputed that he was competent to participate in his defense

during jury selection before his guilty pleas, or during the

aggravation and penalty phases of trial that followed them.” On

this record, no competency hearing was required before the trial

court accepted Rose’s guilty pleas.

13

¶29 Sixth, Rose argues that the trial court’s colloquy

failed to secure a knowing, intelligent, and voluntary waiver of

three constitutional rights: the privilege against self-

incrimination, the right to trial by jury, and the right to

confront one’s accusers.

¶30 The record clearly reflects that the trial judge

informed Rose of those rights and that Rose waived them. Rose

nonetheless contends that the trial court’s recitation of rights

and his waiver referred only to the noncapital counts and that

the court thus failed to secure a waiver of constitutional

rights on the capital charges. Although the trial court’s

colloquy could have been clearer, the record, when viewed

reasonably and in context, does not support Rose’s argument.

¶31 “The requirements of Boykin are met when it appears

from a consideration of the entire record that the accused was

aware that he was waiving [his constitutional] rights and it

appears that it was a knowing and voluntary waiver.” State v.

Henry, 114 Ariz. 494, 496, 562 P.2d 374, 376 (1977). When

defense counsel informed the trial court in chambers that Rose

had decided to plead guilty to all charges, counsel assured the

court that they had “been working with [Rose] for a very long

period of time” and, after much discussion during the previous

few weeks, Rose had decided “to take responsibility and plead

guilty to all of the charges that are in the indictment.” When

14

the judge asked if that was a voluntary choice on Rose’s part,

his attorney responded, “Absolutely. It’s not something that he

thought of overnight. We’ve talked about it, discussed the pros

and cons, consulted with him, and that’s exactly what he wants

to do.”

¶32 After returning to the courtroom, the judge asked Rose

if it was his “intention . . . to plead guilty to the charges,”

to which Rose responded, “Yes, sir.” Rose acknowledged that he

had been in the same courtroom several times before and had

“seen other defendants plead guilty.”1 The judge explained that

he was “going to go through the same type of colloquy with you

that you’ve observed me go through with [those] defendants.”

The judge asked Rose if he “had an opportunity to discuss with

[his] lawyer the pros and cons” of pleading guilty, to which

Rose responded, “Yes, sir.” Rose also acknowledged that it was

his “free choice to plead guilty to these charges.”

¶33 The trial court then set forth the range of possible

sentences for all charged offenses, both capital and noncapital.

The court also explained that Rose had “the absolute right to

have this jury determine whether or not you are guilty or not

guilty on these charges,” to “cross-examine all of the

1
Although not dispositive on whether Rose’s pleas in this
case were valid, we also take judicial notice that he pleaded
guilty to an unrelated armed robbery two months earlier, when
the same superior court judge advised Rose of all pertinent
constitutional rights, which he waived.
15

government’s witnesses [and] subpoena witnesses . . . to . . .

testify [on] your behalf,” and “to remain silent,” and that “the

government could not comment on your silence.” In its

concluding statement, which is the lynchpin of Rose’s argument,

the court told him, “By pleading guilty to me here today, for

the non-capital charges you would be giving up all of these

important rights.” Rose stated that he understood his rights

and still chose to proceed with his guilty pleas.

¶34 In context, the trial court’s statements to Rose

cannot reasonably be construed as limiting the admonition

regarding the constitutional rights Rose was waiving to the

noncapital charges. Viewed as a whole and in the light most

favorable to sustaining the court’s acceptance of Rose’s pleas,

the record reflects that Rose understood his constitutional

rights and validly waived them on all charges. See State v.

Allen, 223 Ariz. 125, 127 ¶ 13, 220 P.3d 245, 247 (2009).

¶35 Seventh, describing himself as “seriously mentally

ill,” Rose argues that “[t]he trial court’s failure to inquire

and determine whether . . . [he] was on medication or not and

how the presence or absence of medication affected his decision

making ability renders the plea unknowing and unintelligent” and

a violation of due process. Rose relies on United States v.

Cole, in which the Third Circuit stated that

Rule 11 counsels a district court to make further

16

inquiry into a defendant’s competence to enter a
guilty plea once the court has been informed that the
defendant has recently ingested drugs [in this case
heroin] or other substances capable of impairing his
ability to make a knowing and intelligent waiver of
his constitutional rights.

813 F.2d 43, 46 (3d Cir. 1987).

¶36 We agree that a trial judge has a duty to “make

further inquiry into a defendant’s competence” when the judge is

aware that the defendant might be under the influence of any

substance, including medication, “capable of impairing his

ability to make a knowing and intelligent waiver of his

constitutional rights.” Id. But in Cole the trial judge was

informed during the colloquy that the defendant had ingested

drugs the previous night, yet the judge accepted the plea

without further inquiry. Id. Here, however, the only notice

the trial judge had were two reports of Dr. Gulino filed in May

and June 2010, indicating that Rose had begun a medication

regimen in either February or March 2010. That information did

not necessarily obligate the trial judge to inquire further into

Rose’s competency or reject his guilty plea.

¶37 At the end of the change of plea proceeding, the judge

asked if “any of the lawyers have any concerns about the

voluntariness of Mr. Rose’s pleas of guilty.” The prosecutor

responded that he did not, and neither Rose nor his counsel

expressed any concerns. Nonetheless, the better practice is for

17

judges to routinely inquire whether a pleading defendant is on

any medication or other substance that might impair the

defendant’s ability to enter a plea. See Ariz. Civil/Criminal

Bench Book, Guilty Plea, 10-3 (2013) (listing a series of

questions a judge should ask when accepting a guilty plea,

including inquiry into whether defendant “had any drugs,

alcohol, or medication within the past 24 hours”). Despite that

omission in the trial court’s colloquy here, absent anything in

the record casting doubt on Rose’s competency, we cannot

conclude the court abused its discretion in finding Rose’s

guilty pleas and waiver of rights valid.

¶38 Finally, Rose argues that the trial court erred by not

informing him that “he was waiving his right of appellate review

on his conviction of the capital counts if he pled guilty.” But

no such warning was required because Rose did not, and could

not, forego his right to appeal his capital convictions by

pleading guilty. See A.R.S. § 13-756(A) (“The supreme court

shall review all death sentences . . . .” (emphasis added)); see

also A.R.S. § 13-4033(B) (the right to appeal is lost only when

a defendant pleads guilty in “noncapital” cases); Ariz. R. Crim.

P. 31.2(b) (“When a defendant has been sentenced to death, the

clerk . . . shall file a notice of appeal on his behalf at the

time of entry of judgment and sentence.”); Ovante, 231 Ariz. at

184 ¶ 10, 291 P.3d at 978 (“In death penalty cases, consistent

18

with Rule 31.2(b), this Court will review the validity of a plea

on direct appeal, before it reviews the capital sentence.”).

Rule 17.2(e) states that a defendant who pleads guilty “will

waive the right to have the appellate courts review the

proceedings” only in a “noncapital” case. In addition, our

review on direct appeal of Rose’s arguments relating to his

guilty pleas and his absence from the initial stages of jury

selection refutes his claim that he waived appellate review of

his capital convictions.

¶39 In sum, we find that Rose’s guilty pleas were entered

voluntarily, intelligently, and knowingly.

D. Victim impact evidence

¶40 Rose argues that the admission of “inflammatory”

victim impact evidence (“VIE”) in the penalty phase violated his

Eighth Amendment rights because it was not relevant to any

mitigating circumstances and was unduly prejudicial. Rose also

challenges the constitutionality of A.R.S. § 13-752(R) and

Arizona Rule of Criminal Procedure 19.1(d)(3). We consider the

constitutionality of a statute or rule de novo. State v. Roque,

213 Ariz. 193, 217 ¶ 89, 141 P.3d 368, 392 (2006).

¶41 Section 13-752(R) states that “[a] victim has the

right to be present . . . at the penalty phase” and may “present

information about the murdered person and the impact of the

murder on the victim and other family members and may submit a

19

victim impact statement in any format to the trier of fact.”

Similarly, Rule 19.1(d)(3) permits the victim’s survivors to

“make a statement relating to the characteristics of the victim

and the impact of the crime on the victim’s family,” but the

victim’s survivors “may not offer any opinion regarding the

appropriate sentence to be imposed.” Thus, under the statute

and rule, a victim’s survivors may present information in the

penalty phase about the victim and discuss the impact of the

murder on them. See also Ariz. Const. art. 2, § 2.1(A)(4)

(giving crime victims the right to be heard at sentencing);

A.R.S. § 13-4426 (authorizing crime victims to present at

sentencing “any information or opinions that concern the victim

or the victim’s family, including the impact of the crime on the

victim [and] the harm caused by the crime”).

¶42 The United States Supreme Court has recognized that

VIE is constitutionally permissible. Payne v. Tennessee, 501

U.S. 808, 825 (1991) (“[T]he State has a legitimate interest in

counteracting the mitigating evidence which the defendant is

entitled to put in, by reminding the sentencer that just as the

murderer should be considered as an individual, so too the

victim is an individual whose death represents a unique loss to

society and in particular to his family.” (alteration in

original) (quoting Booth v. Maryland, 482 U.S. 496, 517 (1987)

(White, J., dissenting))). In addition, this Court has rejected

20

the argument that VIE is not relevant to a jury’s consideration

of mitigating evidence. See State v. Ellison, 213 Ariz. 116,

140–41 ¶¶ 111–14, 140 P.3d 899, 923–24 (2006) (“These statements

are relevant to the issue of the harm caused by the defendant

. . . [and] do not violate the Eighth Amendment.” (citing Lynn

v. Reinstein, 205 Ariz. 186, 191 ¶ 17, 68 P.3d 412, 417

(2003))); see also State v. Tucker (Tucker II), 215 Ariz. 298,

320 ¶ 92, 160 P.3d 177, 199 (2007) (“Evidence about the victim

and the effect of the crime on the victim’s family is [also]

admissible during the penalty phase as rebuttal to the

defendant’s mitigation evidence.”). Based on this controlling

authority, we reject Rose’s constitutional argument. See Roque,

213 Ariz. at 222 ¶ 116, 141 P.3d at 397 (declining to revisit

precedent finding VIE constitutional because defendant “provides

no compelling argument for [the Court] to stray from [its] prior

course”).

¶43 Turning to the VIE presented in this case, Rose first

argues that the entire VIE presentation was overly emotional and

highly prejudicial. Rose, however, did not object below on

these grounds or move for a mistrial, and therefore fundamental

error review applies. State v. Valverde, 220 Ariz. 582, 585

¶ 12, 208 P.3d 233, 236 (2009).

¶44 The extensive VIE in this case consisted of prepared

statements from Officer Cortez’s widow, oldest son (whose

21

written statement the widow read while the boy and his younger

brother stood next to her), mother, and father-in-law. The VIE

also included a short poem read by Officer Cortez’s mother, the

playing of a thirty-five second audio recording, and several

photographs. Without question, the scripted VIE was quite

emotional and forceful in its tone and tenor, and even the State

concedes that the widow’s statements were “admittedly

emotional.”

¶45 VIE is generally admissible at sentencing unless it is

“so unduly prejudicial that it renders the trial fundamentally

unfair.” State v. Dann (Dann II), 220 Ariz. 351, 369 ¶ 98, 207

P.3d 604, 622 (2009) (quoting Payne, 501 U.S. at 825). Our

prior cases guide our analysis of the VIE presented here. For

example, we did not find undue prejudice when the victim’s

parents spoke emotionally about the impact of their son’s death

on them, followed by playing of the 911 call the victim’s father

made after he discovered his son murdered. State v. Gallardo,

225 Ariz. 560, 567 ¶¶ 27, 29, 242 P.3d 159, 166 (2010). Nor did

we find undue prejudice when at least half the jurors cried

during a “powerful and emotional” victim impact presentation,

and the presenters all cried during their statements as well.

State v. Glassel, 211 Ariz. 33, 54 ¶¶ 85-86, 116 P.3d 1193, 1214

(2005). We likewise did not find undue prejudice when the

victim’s mother compared the pain she felt over her daughter’s

22

murder to the “universally painful” loss experienced by all

Americans in response to the 9/11 terrorist attacks. State v.

Garza, 216 Ariz. 56, 69 ¶¶ 61-62, 163 P.3d 1006, 1019 (2007).

¶46 Unlike those cases in which we reviewed the trial

court’s admission of VIE for abuse of discretion, however, in

this case we review for fundamental, prejudicial error because

Rose did not object below on the broad grounds he urges now.

Roque, 213 Ariz. at 221 ¶ 113, 141 P.3d at 396. Here, the trial

court instructed the jurors they “must not be influenced” by

“passion, prejudice, public opinion, or public feeling,” nor

“swayed by mere sympathy not related to the evidence presented.”

But we have not yet been confronted with VIE as extensive as

that presented in this case, and we find the presentation here

troubling. There is no simple, mechanical test to determine

when VIE crosses the line between permissible and unduly

prejudicial. The presentation here, however, comes

uncomfortably close to that line. Nonetheless, absent any

objection or motion for mistrial, on this record we cannot say

that the trial court fundamentally erred in admitting the VIE

regarding the survivors’ losses or in not sua sponte excluding

it as overly inflammatory or unduly prejudicial. “Senseless

murders usually generate strong emotional responses” manifested

in VIE. Glassel, 211 Ariz. at 54 ¶ 86, 116 P.3d at 1214.

¶47 It remains the responsibility of the trial judge,

23

however, “to exercise sound discretion in balancing probative

value against the risk of unfair prejudice.” Ellison, 213 Ariz.

at 141 ¶ 115, 140 P.3d at 924 (quoting State v. Doerr, 193 Ariz.

56, 64 ¶ 32, 969 P.2d 1168, 1176 (1998)). We caution

prosecutors and victims not to venture too close to the line,

lest they risk a mistrial. And, recognizing the confines of

A.R.S. § 13-4426.01 but also a defendant’s constitutional

rights, we encourage judges, in their sound discretion, to

screen and, if necessary, limit an orchestrated, overly dramatic

VIE presentation “that is so unduly prejudicial that it renders

the trial fundamentally unfair.” Payne, 501 U.S. at 825.

¶48 At trial, before presentation of the VIE, Rose

objected to three aspects: the appearance of Officer Cortez’s

two young sons dressed in attire that looked like police

uniforms, two photographs that were admitted into evidence and

shown to the jury during the widow’s statement, and the playing

of an audio recording called the “Last Call.” We review the

trial court’s rulings on those particular VIE-related objections

for abuse of discretion. Garza, 216 Ariz. at 69 ¶ 60, 163 P.2d

at 1019.

¶49 Regarding the children’s attire, Rose objected that

“the officer’s sons . . . are dressed in -- I can’t say police

uniform, but certainly something that looks like police

uniform.” The trial judge noted the objection but declined to

24

require the children to change clothes. Nothing in the record,

and no authority cited by Rose, suggests the court abused its

discretion in that regard.

¶50 Nor can we say the trial court erred in overruling

Rose’s objections to two photographs, one of which depicted

Officer Cortez’s sons and widow looking down into the grave as

his casket was lowered, and the other photograph showing the

boys, with their backs to the camera, sitting on a bench by the

gravesite. Rose objected because, he argued, the photographs

showed no interplay between the children and their father and

appeared staged. This Court has recognized “the danger that

photos of the victims may ‘be used to generate sympathy for the

victim and his or her family.’” Ellison, 213 Ariz. at 141

¶ 115, 140 P.3d at 924 (quoting Doerr, 193 Ariz. at 64 ¶ 32, 969

P.2d at 1176). Nonetheless, we have declined “to adopt a per se

rule barring all in-life photos in capital murder cases,”

leaving the decision instead to the trial court’s

discretion. Id. Generally, “[w]hen assessing the admissibility

of photographs, we ‘consider the photographs’ relevance, the

likelihood that the photographs will incite the jurors’

passions, and the photographs’ probative value compared to their

prejudicial impact.’” State v. Pandeli, 215 Ariz. 514, 524

¶ 23, 161 P.3d 557, 567 (2007) (quoting State v. McGill, 213

Ariz. 147, 154 ¶ 30, 140 P.3d 930, 937 (2006)).

25

¶51 As noted above, under Arizona’s constitution,

statutes, and court rules, survivors may speak at sentencing

about the effect the victim’s murder has had on them. And

Arizona cases have permitted pre-murder, in-life photographs of

the homicide victim, Garza, 216 Ariz. at 69 ¶ 63, 163 P.3d at

1019, as well as post-death autopsy photographs of the victim,

Pandeli, 215 Ariz. at 524-25 ¶¶ 24-26, 161 P.3d at 567-68. But

no Arizona case has addressed the admissibility of photographs

of the victim’s survivors, ostensibly to depict their response

to the victim’s death and its effect on them. Some California

cases, however, have upheld admission in a capital case of

photographs of the victim’s gravesite. See, e.g., People v.

Zamudio, 181 P.3d 105, 137 (Cal. 2008) (permitting a series of

pre-death photographs of the victims, as well as three

photographs of the victims’ grave markers); People v. Kelly, 171

P.3d 548, 570 (Cal. 2008) (permitting a video montage that ended

with a close-up of victim’s grave); People v. Harris, 118 P.3d

545, 574 (Cal. 2005) (permitting a photograph of the victim’s

gravesite as “further evidence relating to her death and the

effect upon her family”).

¶52 The two photographs in question arguably were relevant

to show the impact Officer Cortez’s death had on his two young

sons. See State v. Oliver, 158 Ariz. 22, 28, 760 P.2d 1071,

1077 (1988) (noting that the “standard of relevance is not

26

particularly high”). The trial court, however, would have acted

well within its discretion had it excluded those photographs,

given their marginal relevance, the danger of unfair prejudice

their admission posed, and the extensive, clearly permissible

VIE already presented. See Ariz. R. Evid. 403; cf. McGill, 213

Ariz. at 157 ¶ 40, 140 P.3d at 940 (interpreting former A.R.S.

§ 13-703(C) to impose on penalty phase evidence a relevance

requirement that involves “fundamentally the same considerations

as does a relevancy determination under Arizona Rule of Evidence

401 or 403”). Nonetheless, we cannot say that the trial court

abused its discretion in admitting the photographs after

implicitly finding, over Rose’s Rule 403 objection, that the

probative value of the photographs was not substantially

outweighed by the danger of unfair prejudice. After all, the

jury was well aware, without the photographs, that the murder

caused the two boys to suffer a devastating loss of their

father’s love, affection, and support for the rest of their

lives.

¶53 Regarding the “Last Call” audio recording,2 Rose argued

2
The “Last Call” is thirty-five seconds long and contains
the following message transmitted through a radio call: “All
units stand by for a broadcast. This is the last call for
Officer George Cortez, Jr., number 8232, 834 Henry. 834 Henry
is 236290 West Northern. 834 Henry you’re now 10-7. Rest in
peace. You’ll be greatly missed. Goodnight sir. Stations
clear for [audio cuts out].”

27

below that it was “irrelevant” and “put together purely

for . . . an emotional impact.” We have not addressed this type

of issue before, but other jurisdictions have. In State v.

Bixby, the South Carolina Supreme Court permitted a videotape

depicting a deputy sheriff’s funeral, including footage of an

American flag over the closed coffin, the playing of “Taps,”

assembly of mourners, and a recording of a fictional 911 call in

which the deputy is given permission to “return home.” 698

S.E.2d 572, 586-87 (S.C. 2010). The court reasoned that the

“videotape was relevant to show the uniqueness of the victim,

the harm committed by [the defendant], and the impact of the

victim’s death on his family and society.” Id. at 587; see also

People v. Brady, 236 P.3d 312, 338-39 (Cal. 2010) (permitting

the admission of a six-minute videotape highlighting the

memorial and funeral services of the police officer victim).

Although the relevance of the “Last Call” recording is dubious,

the trial court did not abuse its discretion in admitting it as

part of the VIE inasmuch as the recording was very brief and was

not inflammatory in either its content or style of presentation.

¶54 On appeal, Rose also argues that “[t]he entire victim

presentation linked the case not to the slain officer but to the

entire police force.” Because he did not raise this claim

below, we review for fundamental error. Henderson, 210 Ariz. at

567 ¶ 19, 115 P.3d at 607.

28

¶55 Rose is correct that victim impact statements are

limited to the “impact of the crime on the victim’s family.”

Ariz. R. Crim. P. 19.1(d)(3) (emphasis added). But VIE is

permissible partly because it allows the jury to see the victim

as a unique individual. See Payne, 501 U.S. at 825. Officer

Cortez was a member of the Phoenix Police Department, and his

occupation as a police officer is part of what made him who he

was. The only people who spoke during the VIE were members of

Officer Cortez’s family, and they gave personal reflections on

how his death affected them individually. Some portions of the

VIE inappropriately mentioned the effect the victim’s death had

on his fellow law enforcement officers and more broadly the

community as a whole. But those brief comments were merely a

by-product of Officer Cortez’s occupation and, on this record,

do not constitute fundamental, prejudicial error.

¶56 Rose further argues for the first time on appeal that

the victims improperly asked the jury to impose the death

penalty. We review for fundamental error because Rose made no

such claim below. Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at

607.

¶57 Although VIE generally is permitted, the victim’s

survivors “may not offer any opinion regarding the appropriate

sentence to be imposed.” Ariz. R. Crim. P. 19.1(d)(3); see also

State v. Bocharski, 200 Ariz. 50, 62 ¶ 64, 22 P.3d 43, 55 (2001)

29

(“Sentencing recommendations offered by a deceased’s survivors

have no relevance in a capital case.”). Officer Cortez’s widow

clearly used some pejorative language in her statement,

describing Rose at the end as a “cop killer,” and requesting the

jury to “give the appropriate sentence.” But, contrary to

Rose’s assertions, neither Officer Cortez’s widow nor his son

recommended a sentence or said they “wanted Rose put to death.”

And the trial court instructed the jury that the victim’s family

members were “not allowed to offer any opinion or recommendation

regarding the sentence to be imposed.” Rose still contends that

they spoke in “clear and understandable code” to urge the jury

to return a death sentence. But absent any such express

request, and in view of the court’s instruction, we find no

fundamental error arising from the widow’s statements.

¶58 Nonetheless, we do not condone the type of vengeful

language the widow used. And we strongly encourage prosecutors

and trial courts to prevent VIE presenters from alluding to or

addressing in any way the potential sentence, such as pressing

for an “appropriate” or “just” sentence or asking for “closure.”

Such references come dangerously close to infringing Rule

19.1(d)(3) and mandating a mistrial.

¶59 Finally, Rose unsuccessfully proffered two items of

evidence to rebut the VIE. He sought to present a petition for

divorce filed by Officer Cortez’s wife and an episode of the

30

“Dr. Phil Show” featuring her and Officer Cortez. The trial

court sustained the State’s objection to both. “We review a

trial court’s determination of relevance and admissibility of

evidence for an abuse of discretion.” State v. Hardy, 230 Ariz.

281, 291 ¶ 49, 283 P.3d 12, 22 (2012).

¶60 A.R.S. § 13-4426.01 states that “the victim’s right to

be heard is exercised not as a witness, . . . and the victim is

not subject to cross-examination.” See also State ex rel.

Thomas v. Foreman, 211 Ariz. 153, 155 ¶ 6, 118 P.3d 1117, 1119

(App. 2005) (“The plain language of the statute gives victims

the right to be heard at a sentencing hearing without being

cross-examined by the State or the defendant.” (footnote

omitted)). The statute further provides that “the defense shall

be afforded the opportunity to explain, support or deny the

victim’s statement.” A.R.S. § 13-4426.01. In State v.

Martinez, we considered a similar challenge by a defendant

contesting the truthfulness of the victim impact statements and

his right to confront the victim. 218 Ariz. 421, 431–32 ¶ 45,

189 P.3d 348, 358–59 (2008). We held that “victim impact

evidence is not put on by the State, nor is cross-examination

permitted.” Id. at 432 ¶ 45, 189 P.3d at 359.

¶61 Rose sought to offer this evidence as mitigation more

than two weeks after the VIE had been presented. The trial

court ruled that “whether Ms. Cortez and her husband had marital

31

difficulties at some point is simply not relevant mitigation,”

and that nothing Officer Cortez’s wife said was “materially

inaccurate.” Therefore, the court concluded, the proffered

evidence was not relevant to rebut her statement. Applying

factors set forth in Evidence Rule 403, the trial court also

ruled that litigating issues relating to the Cortezes’ marriage

“would involve undue delay and waste of time on what is

essentially a collateral matter,” and that those considerations

“substantially outweighed” any probative value the proffered

evidence had.

¶62 “The trial court has considerable discretion in

determining the relevance and admissibility of evidence, and we

will not disturb its ruling absent a clear abuse of that

discretion.” State v. Amaya-Ruiz, 166 Ariz. 152, 167, 800 P.2d

1260, 1275 (1990). Balancing of Rule 403 factors is also a

matter particularly and appropriately left to the trial court’s

discretion. Id. We find no abuse in the trial court’s decision

to preclude evidence during Rose’s mitigation of marital

difficulties between Officer Cortez and his wife.

E. Exclusion of execution impact testimony

¶63 Rose argues that the trial court erred in excluding

his proffered execution impact evidence, which he claims is

relevant under the Eighth Amendment and admissible as a matter

of due process. This Court reviews evidentiary rulings for an

32

abuse of discretion and gives deference to the trial court’s

determination of relevance. State v. Chappell, 225 Ariz. 229,

238 ¶ 28, 236 P.3d 1176, 1185 (2010).

¶64 “We have previously held that execution impact

evidence is not relevant to mitigation.” Id. ¶ 30 (citing

Roque, 213 Ariz. at 222 ¶ 119, 141 P.3d at 397). Such execution

impact evidence is not relevant because it is “altogether

unrelated to defendant, to his character, or to the circumstance

of the offense.” Roque, 213 Ariz. at 222 ¶ 119, 141 P.3d at 397

(quoting State v. Williams, 183 Ariz. 368, 385, 904 P.2d 437,

454 (1995)).

¶65 Rose nonetheless contends that this Court has upheld

the admissibility of execution impact evidence in prior cases.3

But we also noted in Chappell that “[a]lthough similar evidence

has been admitted in some cases, in none of those cases was the

admissibility of the execution impact evidence at issue on

appeal.” 225 Ariz. at 238 ¶ 30 n.8, 236 P.3d at 1185 n.8. Rose

neither cites nor challenges Chappell. Finding it dispositive,

3
To the extent Rose argues that “his family ties and the
love of a defendant’s family[] has been held by this Court to be
mitigation,” we agree that “[t]he existence of family ties is a
mitigating factor.” State v. Moore, 222 Ariz. 1, 22 ¶ 134, 213
P.3d 150, 171 (2009). At trial, Rose was permitted to present,
and in fact did present, testimony from friends and family
expressing their love for him. What Rose could not present, and
what the trial court properly prohibited, was testimony or
argument related to the effect Rose’s death would have on his
friends and family.
33

we uphold the trial court’s exclusion of execution impact

evidence.

F. Constitutionality of A.R.S. § 13-751(F)(10)

¶66 Rose argues that the (F)(10) aggravating factor

violates the Eighth and Fourteenth Amendments on its face and as

applied. Because Rose did not raise this claim below, we review

it for fundamental error. Henderson, 210 Ariz. at 567 ¶ 19, 115

P.3d at 607.

¶67 A.R.S. § 13-751(F)(10) provides that it shall be an

aggravating circumstance when “[t]he murdered person was an on

duty peace officer who was killed in the course of performing

the officer’s official duties and the defendant knew, or should

have known, that the murdered person was a peace officer.” The

killing of a police officer is a proper aggravating

circumstance. See also Roberts v. Louisiana, 431 U.S. 633, 636

(1977) (“[T]he fact that the murder victim was a peace officer

performing his regular duties may be regarded as an aggravating

circumstance.”); Cruz, 218 Ariz. at 170 ¶ 132, 181 P.3d at 217

(“Killing a person one knows to be a peace officer who is acting

in the line of duty adequately narrows the class of persons

subject to the death penalty.”).

¶68 We reject Rose’s arguments that the (F)(10)

aggravating factor draws an “arbitrary” and “irrational”

distinction between a peace officer and a non-peace officer and

34

that the factor violates equal protection and due process

principles. As in Cruz, Rose “cites no authority suggesting

that the legislature may not provide that any intentional

killing of an on-duty peace officer should make a defendant

death eligible.” 218 Ariz. at 170 ¶ 132, 181 P.3d at 217.

“[S]pecification of punishment for crime is peculiarly a

question of legislative policy,” and this Court will presume the

constitutionality of a statute “when there is a reasonable, even

though debatable, basis for the enactment of a statute.” State

v. Arnett, 119 Ariz. 38, 47–48, 579 P.2d 542, 551–52 (1978).

The legislature properly exercised its power and did not offend

constitutional requirements by enacting the (F)(10) aggravating

factor. Cf. State v. Nelson, 229 Ariz. 180, 186-87 ¶¶ 25-28,

273 P.3d 632, 638-39 (2012) (reaching same conclusion regarding

A.R.S. § 13-751(F)(9)).

¶69 Likewise, we reject Rose’s argument that application

of the (F)(10) aggravating factor is cruel and unusual. The

Supreme Court has stated that we must refer to “the evolving

standards of decency that mark the progress of a maturing

society” to determine whether particular punishments are cruel

and unusual. Roper v. Simmons, 543 U.S. 551, 561 (2005)

(quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (plurality

opinion)). Rose has not persuaded us that Arizona’s (F)(10)

aggravating factor fails to conform to that standard. On the

35

contrary, he acknowledges that several other states also

recognize the murder of an on-duty peace officer as an

aggravating factor. See, e.g., Cal. Penal Code § 190.2(a)(7);

Neb. Rev. Stat. § 29-2523(1)(i). Thus, we reject Rose’s

constitutional challenge to § 13-751(F)(10) and find no

fundamental error in its application here. Cf. Nelson, 229

Ariz. at 188 ¶ 33, 273 P.3d at 640 (rejecting Eighth Amendment

challenge to § 13-751(F)(9) when other jurisdictions also

consider victim’s age as “a factor in sentencing a defendant to

death”).

III. ABUSE OF DISCRETION REVIEW

¶70 Because the murder occurred after August 1, 2002, we

review the jury’s finding of aggravating circumstances and the

imposition of a death sentence for abuse of discretion. A.R.S.

§ 13-756(A). “A finding of aggravating circumstances or the

imposition of a death sentence is not an abuse of discretion if

‘there is any reasonable evidence in the record to sustain it.’”

State v. Delahanty, 226 Ariz. 502, 508 ¶ 36, 250 P.3d 1131, 1137

(2011) (quoting Morris, 215 Ariz. at 341 ¶ 77, 160 P.3d at 220).

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

¶71 Rose contends that review of a capital sentence for

abuse of discretion violates the Eighth Amendment because the

Supreme Court mandates “meaningful” appellate review of death

sentences under Gregg v. Georgia, 428 U.S. 153 (1976). We have

36

previously rejected similar Eighth Amendment challenges to the

statute and again do so here. See Cota, 229 Ariz. at 153 ¶ 92,

272 P.3d at 1044 (“Meaningful appellate review requires only

that an appellate court ‘consider whether the evidence is such

that the sentencer could have arrived at the death sentence that

was imposed,’ not whether the appellate court itself would have

imposed a death sentence.” (quoting Clemons v. Mississippi, 494

U.S. 738, 749 (1990))); Martinez, 218 Ariz. at 434 ¶ 62, 189

P.3d at 361.

B. Aggravating circumstances

¶72 The jury found the following four aggravating

circumstances proven beyond a reasonable doubt: (1) Rose was

previously convicted of a serious offense, A.R.S. § 13-

751(F)(2); (2) Rose committed the offense as consideration for

the receipt or in expectation of the receipt of anything of a

pecuniary value, id. § 13-751(F)(5); (3) Rose committed the

offense while on probation for a felony offense, id. § 13-

751(F)(7); and (4) the murdered person was an on-duty police

officer killed in the course of performing the officer’s

official duties and Rose knew or should have known the victim

was a peace officer, id. § 13-751(F)(10). Rose does not

contest, and substantial evidence in the record supports, the

jury’s findings of the (F)(2), (F)(7), and (F)(10) aggravating

circumstances. But he does challenge the (F)(5) finding

37

regarding pecuniary gain. We will affirm the jury’s finding “if

there is any reasonable evidence in the record to sustain it,”

Morris, 215 Ariz. at 341 ¶ 77, 160 P.3d at 220 (internal

quotation marks omitted), and view the evidence in the light

most favorable to upholding the jury’s finding, State v.

Andriano, 215 Ariz. 497, 506 ¶ 41 n.5, 161 P.3d 540, 549 n.5

(2007).

1. (F)(5) aggravating factor – pecuniary gain

¶73 A defendant convicted of first degree murder is

eligible for a death sentence if the state proves beyond a

reasonable doubt that he “committed the offense as consideration

for the receipt, or in expectation of the receipt, of anything

of pecuniary value.” A.R.S. § 13-751(F)(5). The jury may find

this aggravator only “if the expectation of pecuniary gain is a

motive, cause, or impetus for the murder and not merely a result

of the murder.” State v. Lamar, 210 Ariz. 571, 574 ¶ 11, 115

P.3d 611, 614 (2005) (quoting State v. Hyde, 186 Ariz. 252, 280,

921 P.2d 655, 683 (1996)). “This proof may be either by

‘tangible evidence or strong circumstantial inference.’” State

v. Cañez, 202 Ariz. 133, 159 ¶ 91, 42 P.3d 564, 590 (2002)

(quoting Hyde, 186 Ariz. at 280, 921 P.2d at 683).

¶74 Pecuniary gain “does not require a motive to kill” as

long as there is a “causal connection between the pecuniary gain

objective and the killing,” such as to “facilitate escape or

38

hinder detection and thus advance the underlying pecuniary gain

objective.” Cañez, 202 Ariz. at 159 ¶¶ 93–94, 42 P.3d at 590;

see also Ellison, 213 Ariz. at 143 ¶ 125, 140 P.3d at 926

(finding (F)(5) aggravator established when defendant planned a

burglary and killed victims to escape and avoid identification).

¶75 Rose argues that his attempted theft in the check

cashing store had “failed before the police officer arrived,”

and he “received no money and was not going to receive any money

from the clerk.” But “an absence of actual receipt of money or

valuables [does not] negate[] a finding of expectation of

pecuniary gain as an aggravating circumstance.” State v.

LaGrand, 153 Ariz. 21, 23-25, 35-36, 734 P.2d 563, 565-67, 577-

78 (1987). Rose had said earlier that day that he would shoot

anyone who tried to stop him from cashing the forged check. The

murder occurred temporally and proximally close to the

underlying crime, which was undoubtedly motivated by Rose’s

desire for pecuniary gain. The murder also facilitated Rose’s

escape and temporary evasion from arrest, and Rose made no

attempt to conceal his identity, a fact that provides “powerful

circumstantial evidence of an intent to facilitate escape or

hinder detection and thus advance the underlying pecuniary gain

objective.” Cañez, 202 Ariz. at 159 ¶ 94, 42 P.3d at 590.

¶76 Finally, we reject Rose’s argument that the (F)(5)

aggravating factor is being bootstrapped to the felony murder

39

charge, which was based on the underlying crime of burglary.

This Court “has repeatedly held that a conviction for felony

murder predicated on robbery or armed robbery does not

automatically prove the (F)(5) aggravator.” State v. Anderson,

210 Ariz. 327, 351 ¶ 103, 111 P.3d 369, 393 (2005). “While

armed robbery requires proof of a ‘taking of property from the

victim,’ the pecuniary gain aggravator requires proof that the

defendant’s ‘motivation [for the murder] was the expectation of

pecuniary gain.’” Id. (alteration in original) (quoting State

v. Carriger, 143 Ariz. 142, 161, 692 P.2d 991, 1010 (1984)).

Likewise, in this case the evidence required to establish the

(F)(5) aggravator is different from that for burglary, which

requires proof of entry with “intent to commit any theft or any

felony.” A.R.S. §§ 13-1506, -1508. The jury was properly

instructed on the legal requirements for the (F)(5) aggravating

factor and did not abuse it discretion in finding it proven.

C. Mitigating circumstances

¶77 In the penalty phase, the defendant is entitled to

present any mitigating circumstances that the jury may consider

in determining the appropriate sentence. A.R.S. § 13-751(C).

Rose presented evidence of alleged mental health problems,

multiple head injuries, drug and alcohol addiction, low IQ, use

of methamphetamine in the days before the murder, and emotional

neglect from his father, among other mitigating factors. On

40

appeal, Rose argues that “the mitigation in this case was

overwhelming and a death sentence is not justified by the

evidence.”

¶78 We will overturn a jury’s imposition of a death

sentence only if “no reasonable jury could have concluded that

the mitigation established by the defendant was not sufficiently

substantial to call for leniency.” Cota, 229 Ariz. at 153 ¶ 95,

272 P.3d at 1044 (internal quotation marks omitted). The State

presented evidence to rebut much of Rose’s mitigation evidence.

Based on the facts of the crime and the four aggravating

factors, a reasonable jury could find that Rose’s mitigation did

not warrant leniency.

IV. CONCLUSION

¶79 We affirm Rose’s convictions and sentences.4

__________________________________
John Pelander, Justice

CONCURRING:

__________________________________
Rebecca White Berch, Chief Justice

__________________________________
Scott Bales, Vice Chief Justice

4
Rose also raised in an appendix to his opening brief
twenty-six claims to avoid federal preclusion. We do not
address those here.
41

__________________________________
Robert M. Brutinel, Justice

__________________________________
Ann A. Scott Timmer, Justice

42