State of Arizona v. Dwandarrius Jamar Robinson

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,
Appellee,

v.

DWANDARRIUS JAMAR ROBINSON,
Appellant.

No. CR-18-0284-AP
Filed May 24, 2022

Appeal from the Superior Court in Maricopa County
The Honorable Greg S. Como, Judge
No. CR2012-138236-001
AFFIRMED

COUNSEL:

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief
Counsel, Capital Litigation Section, Sarah E. Heckathorne (argued), David
Ahl, Assistant Attorneys General, Phoenix, Attorneys for State of Arizona

Rosemarie Peña-Lynch, Director and Legal Advocate, Kerri L. Chamberlin
(argued), Deputy Legal Advocate, Office of the Legal Advocate, Phoenix,
Attorneys for Dwandarrius Jamar Robinson

Jared G. Keenan, Arizona Attorneys for Criminal Justice, Phoenix; Joshua
D. Bendor, Osborn Maledon, P.A., Phoenix; and Alejandra Curiel-Molina,
Kassandra Garcia, Zachary Stern, Kate McFarlane, Sandra Day O’Connor
College of Law, Phoenix, Attorneys for Amicus Curiae Arizona Attorneys
for Criminal Justice

STATE OF ARIZONA V. DWANDARRIUS JAMAR ROBINSON
Opinion of the Court

CHIEF JUSTICE BRUTINEL authored the opinion of the Court, in which
VICE CHIEF JUSTICE TIMMER and JUSTICES BOLICK, LOPEZ, BEENE,
KING, and JUDGE CRUZ joined.*

CHIEF JUSTICE BRUTINEL, opinion of the Court:

¶1 Dwandarrius Jamar Robinson was sentenced to death after a
jury found him guilty of two counts of first degree murder, one count of
arson of an occupied structure, and one count of kidnapping. We have
jurisdiction under article 6, section 5(3) of the Arizona Constitution and
A.R.S. §§ 13-4031 and -4033(A). For the following reasons, we affirm
Robinson’s convictions and sentences.

I. BACKGROUND

¶2 On July 18, 2012, Robinson beat, bound, and immolated his
nine-months-pregnant girlfriend, Shaniqua Hall (“S.H.”), in the master
bedroom of their shared apartment, killing both her and their unborn child,
Baby Hall (“B.H.”).1 He then placed a 9-1-1 call to report a fire at the
apartment, where, upon extinguishing the fire, emergency responders
discovered S.H.’s partially burned body lying face down on the bedroom
floor with her feet and hands bound, wrists handcuffed, mouth and eyes
covered with duct tape, and mouth stuffed with a folded cloth. A search of
Robinson’s backpack revealed a partially used roll of silver duct tape, an
unopened roll of black duct tape, pieces of crumpled duct tape, a grocery
bag, a matchbook with at least one match missing, and a receipt reflecting
purchases of duct tape and a bottle of lighter fluid earlier that day.2 Police
also found a handcuff key in Robinson’s pocket.

¶3 The medical examiner, Dr. John Hu, performed autopsies on
both bodies. He determined that S.H.’s death was the result of “homicidal
violence,” with the manner of death likely being either asphyxia from
smothering or strangulation, blunt force trauma, ligature restraint, or some
combination thereof. He could not, however, definitively say whether she

* Justice William G. Montgomery has recused himself from this case.
Pursuant to article 6, section 3 of the Arizona Constitution, Judge Maria
Elena Cruz, Judge of the Arizona Court of Appeals, Division One, was
designated to sit in this matter.
1 We review the facts in the light most favorable to sustaining the jury’s

verdict. State v. Smith, 250 Ariz. 69, 78 ¶ 2 n.1 (2020).
2 Robinson’s fingerprints were found on the duct tape and grocery bag.

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Opinion of the Court

was alive or dead at the time of the fire. Dr. Hu attributed B.H.’s death to
the lack of blood supply caused by S.H.’s death. B.H.’s gestational age was
thirty-eight weeks and was thus considered full term.

¶4 On July 24, 2012, a grand jury indicted Robinson on two
counts of first degree murder, one count of arson of an occupied structure,
and one count of kidnapping. The State noticed its intent to seek the death
penalty, alleging a total of seven death-qualifying aggravating
circumstances—three as to S.H. and four as to B.H. For six of them, the
State listed the same three aggravators as to each murder—specifically, that
Robinson had a prior conviction for a serious offense, see A.R.S.
§ 13-751(F)(2) (2009);3 that he was convicted of one or more homicides
committed during the commission of the offense, see § 13-751(F)(8); and that
he killed each victim in an especially heinous, cruel or depraved manner,
see § 13-751(F)(6). For the final aggravator, the State alleged that Robinson
was an adult and that B.H. was an unborn child at the time of the murder.
See § 13-751(F)(9).

¶5 The jury trial commenced on January 22, 2018. The jury found
Robinson guilty on all four counts and, at the end of the aggravation phase,
found all seven aggravators proven beyond a reasonable doubt. During the
penalty phase, Robinson put on evidence of the violence, poverty, and
abuse that purportedly pervaded his childhood home and hometown.
After considering the mitigation evidence, the jury returned death verdicts
on both murder counts. The trial court imposed that sentence and,
additionally, sentenced Robinson to a concurrent fifteen-year sentence on
the arson conviction and a consecutive fifteen-year sentence on the
kidnapping conviction.

¶6 Robinson timely appealed. See § 13-4031.

II. DISCUSSION

A. The Batson Challenges

¶7 Robinson first takes aim at the State’s peremptory strikes of
four minority jurors—two of them Black (Jurors 145 and 358), one Hispanic
(Juror 260), and one Native American (Juror 300). He argues that the trial
court erred in accepting the State’s proffered race-neutral reasons for
striking each juror. We disagree.

3 Except where otherwise specified, all citations to § 13-751 refer to the 2009

version under which Robinson was indicted.
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Opinion of the Court

¶8 The Equal Protection Clause of the Fourteenth Amendment
“forbids the prosecutor to challenge potential jurors solely on account of
their race.”4 Batson v. Kentucky, 476 U.S. 79, 89 (1986). “A Batson challenge
involves three steps: (1) The defendant must make a prima facie showing
of discrimination, (2) the prosecutor must offer a race-neutral reason for
each strike, and (3) the trial court must determine whether the [defendant]
proved purposeful racial discrimination.” Smith, 250 Ariz. at 86 ¶ 63
(quoting State v. Medina, 232 Ariz. 391, 404 ¶ 44 (2013)). Our inquiry here
focuses on the third step. We usually defer to the trial court on this “pure
issue of fact,” (Dionisio) Hernandez v. New York, 500 U.S. 352, 364 (1991),
which almost invariably depends upon an assessment of the prosecutor’s
credibility, Smith, 250 Ariz. at 86 ¶ 62. Our deference is not a rubber stamp.
See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (“Deference does not by
definition preclude relief.”). We will instead affirm the trial court’s
determination absent clear error. Smith, 250 Ariz. at 86 ¶ 62.

¶9 We remain true to Batson’s limits. A prosecutor need not
justify a challenged strike by satisfying the higher showing required of a
challenge for cause. Batson, 476 U.S. at 97. Batson’s purpose is the
prevention of “purposeful discrimination.” See Smith, 250 Ariz. at 87 ¶ 67.
“Discriminatory purpose implies more than intent as volition or intent as
awareness of consequences.” (Dionisio) Hernandez, 500 U.S. at 360 (cleaned
up). It means acting “because of, not merely in spite of, its adverse effects
upon an identifiable group.” Id. (internal quotation marks omitted)
(quoting Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979)). And the
burden of showing such discrimination falls to the challenger. Smith, 250
Ariz. at 87 ¶ 67. Thus, absent exceptional circumstances—for instance,
where there is “[p]roof of systematic exclusion from the venire,” see Batson,
476 U.S. at 94, or where the state falls back on threadbare assurances of race-
neutrality, see id. at 97–98—we will not infer error based on “statistical
disparity alone,” see State v. Gay, 214 Ariz. 214, 221 ¶ 20 (App. 2007); see also
(Dionisio) Hernandez, 500 U.S. at 359–60 (noting official action is not
unconstitutional based solely on its “racially disproportionate impact”). So
long as the state offers a race-neutral explanation, the defendant must prove
a discriminatory purpose. Batson, 476 U.S. at 98.

4 We have not decided whether the Arizona Constitution grants protection

greater than that afforded under Batson. See State v. Superior Court (Gardner),
157 Ariz. 541, 546 n.4 (1988) (declining to decide whether article 2, section
24 of the Arizona Constitution forbids race-based peremptory strikes).
Robinson does not ask us to do so here, so we apply the federal standard.
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Opinion of the Court

¶10 We are equally mindful of Batson’s blind spots. We are under
no illusion that Batson somehow served to “end the racial discrimination
that peremptories inject into the jury-selection process.” See 476 U.S.
at 102–03 (Marshall, J., concurring). But it is not our place to augment the
Supreme Court’s enshrinement of what remains a federal constitutional
protection. We accordingly eschew Robinson’s and amici’s invitations to
shore up Batson’s arguable shortcomings and instead limit our review to
each of the trial court’s determinations.

1. Juror 145

¶11 The trial court did not clearly err in denying Robinson’s
Batson challenge to the State’s peremptory strike of Juror 145. The
prosecutor provided the following explanation for the State’s strike:

He indicated -- when he was being questioned about the
ability to impose the death penalty, he said: It is terrifying for
me to consider what we are even talking about.

That alone was of concern to the State. He did indicate that he
did feel the death penalty could be appropriate, but that this
decision terrifies him. And that is of great concern to the State.

Robinson’s trial counsel did not respond directly to these reasons at trial
but instead drew the trial court’s attention to the racial makeup of the jury
if all four strikes were permitted to stand. On appeal, however, Robinson
calls the justification “demonstrably pretextual” because of its deliberate
misconstruction of Juror 145’s responses to voir dire questioning. Not so.

¶12 In fact, the prosecutor recapped Juror 145’s words almost
verbatim. Juror 145 had told defense counsel that it was “terrifying to
consider what we’re talking about”—that “what” being the choice between
the death penalty and a life sentence. Juror 145 did also say that imposing
death “could be appropriate,” and responded, “Sure,” when asked whether
he could do so. None of which, however, denotes pretext. The prosecutor’s
own explanation acknowledged Juror 145’s stated open-mindedness.
Granted, Robinson’s more favorable characterization of Juror 145’s
statements as an “acknowledgment of the seriousness of a capital case and
the imposition of the death penalty” presents a valid perspective, just not
the only one. The State was no less justified in construing the same words
as an expression of hesitancy toward, or personal discomfort with, the idea
of imposing the death penalty—a quality the prosecutor understandably
hoped to avoid. But reasonably divergent views of the same record do not
denote prosecutorial dissembling. At most, they explain the State’s
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Opinion of the Court

selection of a peremptory strike in lieu of a challenge for cause. See Batson,
476 U.S. at 97.

¶13 It follows that the trial court did not err in accepting the
prosecutor’s reasons. The court assessed those reasons “in light of all of the
relevant facts and circumstances, and in light of the arguments of the
parties.” See Flowers v. Mississippi, 139 S. Ct. 2228, 2243 (2019). It credited
those arguments’ rationality, considered the strikes’ overall impact on the
jury panel’s racial makeup, and observed the good faith demonstrated by
counsel for both parties during voir dire. See State v. Gallardo, 225 Ariz.
560, 565 ¶ 13 (2010) (“Other minority jurors were ultimately selected for the
panel, and although not dispositive, the fact that the state accepted other
minority jurors on the venire is indicative of a nondiscriminatory motive.”
(internal brackets and quotation marks omitted)). The court also noted that
“[t]here were a number of jurors that could have potentially been
challenged for cause, minority jurors, that were not challenged for cause by
the State or, for that matter, by the defense.” All told, the court saw no
reason to doubt the prosecutor’s sincerity, and neither do we.

¶14 Amici’s call for a comparative analysis of Juror 145 vis-à-vis
Juror 64—a White juror who apparently showed similar hesitation about
the death penalty—comes too little, too late. Robinson neither raises this
argument himself on appeal, nor, more importantly, did he do so below.
Thus, the State had no chance to distinguish between these jurors, and the
trial court had no opportunity to address them in the first instance. See State
v. Escalante-Orozco, 241 Ariz. 254, 272 ¶ 37 (2017), abrogated on other grounds
by State v. Escalante, 245 Ariz. 135 (2018). While relevant where properly
raised, such comparative analyses cannot be raised for the first time on
appeal. See Smith, 250 Ariz. at 88 ¶ 71. We accordingly treat the argument
as waived as to each Batson challenge, see id. (collecting cases), and we
affirm the trial court’s decision upholding Juror 145’s dismissal.

2. Juror 358

¶15 We reach the same conclusion as to Juror 358. In defending
its use of a peremptory strike there, the prosecutor offered this explanation:

Judge, on [Juror] 358, specifically, she was treated unfairly by
the police when they pulled her over.

But the one more concerning for the State is that she said that
she must have DNA or a witness when it comes to the
evidence that she wants. And in our case, as the Court knows,

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the DNA is really hit or miss. And we don’t have an
eyewitness. It’s a circumstantial case.

And she also wants video. It was actually, I believe, video, a
witness, or DNA was what she said kind of the State had to
have in its case, all three, which we’re lacking, which goes
heavily towards a guilt determination in this case, Judge.

The prosecutor also expressed apprehension about Juror 358’s apparent
anxiety issues. Robinson’s trial counsel offered no direct rebuttal to these
reasons below; however, on appeal, Robinson again accuses the prosecutor
of misstating Juror 358’s voir dire responses. He does so in vain.

¶16 First, Juror 358’s negative experience with law enforcement
lends at least some support to the State’s decision to strike her. See State v.
Roque, 213 Ariz. 193, 204 ¶ 15 (2006) (“Antipathy toward the police alone
may constitute a valid reason to strike jurors when the State’s case relies on
police testimony.”), abrogated on other grounds by Escalante-Orozco, supra. In
addition to responding “Yes” to the question about prior instances of being
“treated unfairly in the past by someone in law enforcement,” Juror 358
described her experience as “[r]acial profiling by cops pulling over the car
assuming we did not own it or live in my area.” Robinson rightly notes that
she also responded “No” to the questionnaire’s subsequent query about
harboring “any hostility, bitterness, frustration, or negative feelings toward
[police].” Had this been a challenge for cause, perhaps that would have
insulated Juror 358 from excusal. Such uncertainty does not, however,
render the prosecutor’s stated concern about Juror 358’s own experience
with law enforcement, upon whose testimony the prosecutor would be
relying at trial, “clearly pretextual.” See id.

¶17 Second, Juror 358’s questionnaire responses did indicate a
preference for more than circumstantial evidence. Once more, Robinson
and amici correctly point out that Juror 358 responded “No” to whether
proof beyond a reasonable doubt requires the State to produce “scientific
evidence, such as DNA or fingerprint evidence,” or to present “eyewitness
testimony or a confession of guilt.” Nevertheless, her explanations tend to
validate the State’s concern that circumstantial evidence might not be
enough for her. Regarding scientific evidence, Juror 358 wrote: “It would
help prove the case[;] however, if witness saw the crime or there is video
this can impact my thoughts.” As to eyewitness testimony or confessions,
she added: “If there is video or DNA take [sic] can change my view.” Read
together, these responses reasonably suggest that, though perhaps she

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didn’t require both scientific evidence and eyewitness testimony, a video or
a confession, she did prefer one or the other.

¶18 Of course, the prosecutor’s use of words like “must” and “had
to have” cast Juror 358’s responses as more categorical than they were. But
these expected embellishments while paraphrasing stop well short of the
outright fabrications typical of purposeful discrimination. See Flowers, 139
S. Ct. at 2250 (“To be sure, the back and forth of a Batson hearing can be
hurried, and prosecutors can make mistakes when providing explanations.
That is entirely understandable, and mistaken explanations should not be
confused with racial discrimination.”); cf. Miller-El v. Dretke, 545 U.S. 231,
244 (2005) (rejecting race-neutral reason where “[prosecutor] represented
that [juror] said he would not vote for death if rehabilitation was possible,
whereas [juror] unequivocally stated that he could impose the death
penalty regardless of the possibility of rehabilitation”). Read as a whole,
Juror 358’s questionnaire responses lend ample support to the prosecutor’s
perspective and, by extension, give us no reason to second-guess the trial
court’s credibility assessment. See Escalante-Orozco, 241 Ariz. at 272 ¶ 36; see
also Kirkland v. State, 726 S.E.2d 644, 649 (Ga. Ct. App. 2012) (concluding it
was race-neutral to strike juror for “stat[ing] that forensic evidence would
be helpful to establish a defendant’s guilt in this case”).

¶19 Third, and finally, the record supports the prosecutor’s stated
concerns about Juror 358’s anxiety. Cf. State v. Newell, 212 Ariz. 389,
401 ¶ 54 (2006) (“In determining whether the defendant has proven
purposeful discrimination, ‘implausible or fantastic justifications may (and
probably will) be found to be pretext[ual].’” (quoting Purkett v. Elem, 514
U.S. 765, 768 (1995))). Juror 358’s questionnaire indicated she “had an
anxiety attack in the past” and had been prescribed Xanax. The prosecutor
said Juror 358’s anxiety posed a concern because the State “had to excuse a
juror who was having anxiety issues” in another capital murder case. It is
true, as Robinson and amici note, that Juror 358 denied taking any
medication or having a condition that might affect her ability to serve as a
juror. Yet the absence of an impairing medication or condition does not
render fantastical the prosecutor’s concerns about the potential
disruptiveness of her admitted anxiety and, thus, does not denote a
discriminatory purpose. See id.

¶20 Robinson and amici misplace their reliance on caselaw
inferring discriminatory intent from inadequate follow-up questioning. In
Dretke, for instance, the Supreme Court did cite such a deficit in discrediting
a prosecutor’s stated concern with the prior conviction of a Black juror’s
brother—but in an entirely non-analogous context. 545 U.S. at 246. The

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prosecutor there had initially offered personal opposition to the death
penalty as a race-neutral reason for striking that juror. Id. at 244. When that
reason proved a fabrication, the prosecutor abandoned it and cited the
brother’s conviction. Id. at 246. The Court next considered the context of
this “substitute reason,” including its “pretextual timing,” the juror’s own
voir dire testimony that he and his brother weren’t close, and the
prosecutor’s failure to inquire further into this alternative justification. Id.
All of which indicated that reason’s implausibility. Id. The Court’s decision
in Flowers followed a similar trajectory. There the Court contrasted the
prosecutor’s failure to ask White jurors about their connections to witnesses
with the prosecutor’s apparent preoccupation with striking a Black juror on
the same basis. See Flowers, 139 S. Ct. at 2249–50. Considered alongside the
same prosecutor’s “pattern of factually inaccurate statements about [B]lack
prospective jurors,” history of questionable strikes in earlier trials, and
decision to strike five of the six Black jurors on the panel, the prosecutor’s
lopsided focus on questioning Black jurors was impossible to ignore. See id.
at 2250.

¶21 The trial court did not clearly err in upholding the State’s
peremptory strike of Juror 358. The court considered the broader relevant
context, including the reasonableness of the prosecutor’s stated concerns,
the racial makeup of the jury panel before and after the State’s peremptory
strikes, as well as the good faith shown by counsel throughout voir dire. Cf.
id. at 2243 (listing several examples of factors the court may consider). The
prosecutor here did not engage in the kind of whack-a-mole explanations
observed in Dretke or Flowers. Aside from a mild misstatement of Juror
358’s preference for scientific evidence, the record overall vindicates the
prosecutor’s concerns. See id. at 2250. We affirm.

3. Juror 260

¶22 We also affirm the State’s peremptory strike of Juror 260. The
prosecutor responded to Robinson’s Batson challenge as follows:

Judge, this was the individual who indicated that he was
writing letters through a letter program, sharing the gospel
with individuals in church. He had indicated he wasn’t
getting responses until, I think he indicated, either since the
time he filled out the questionnaire -- he said something about
receiving a letter in response recently.

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But he indicated it was his mission -- or part of that mission
to give inmates uplift, to say hello, to share the message of the
gospel and the messages they might like.

He felt time -- he said he felt the laws -- wow. Was a time he
felt laws were too harsh in this state. He indicated he has
problems with people sentenced to the death penalty, only to
find out later a person was innocent of the crime. He had some
confusion regarding the burden of proof.

Once again, Robinson’s trial counsel did not directly rebut the prosecutor’s
explanation. And once more on appeal, he says the State “distorted the
record” by failing to note Juror 260’s currently favorable view of Arizona’s
criminal laws, the prosecutor’s amelioration of any initial confusion about
the burdens of proof for aggravation and mitigation, and the triviality of
Juror 260’s involvement in the letter writing program. We disagree.

¶23 Batson does not compel a prosecutor to furnish a complete
pros and cons list for each peremptory strike—only a race-neutral reason.
476 U.S. at 98. The State’s concern that Juror 260’s prior distaste for
Arizona’s criminal laws and experience corresponding with inmates might
make him sympathetic to Robinson was enough. See State v. (Antonio G.)
Hernandez, 170 Ariz. 301, 305–06 (App. 1991) (“As long as it is not based
upon race, perceived sympathy on the part of a prospective juror toward a
defendant is a legitimate basis for a peremptory strike.” (internal citation
omitted)); accord State v. Butler, 230 Ariz. 465, 475 ¶¶ 41–43 (App. 2012)
(affirming strike of drug counselor based on potential sympathy for
defendant even though prosecutor struck the only two Black jurors). And
neither the slim odds of success in striking Juror 260 for cause nor the
existence of competing perspectives on the same facts, however reasonable,
necessarily compromises the integrity of that reason. See Batson, 476 U.S.
at 97; cf. State v. Lucas, 199 Ariz. 366, 369 ¶ 11 (App. 2001) (“Once a
discriminatory reason has been uncovered—either inherent or pretextual—
this reason taints any other neutral reason for the strike.” (internal
quotation marks omitted) (quoting Payton v. Kearse, 495 S.E.2d 205, 210
(S.C. 1998))).

¶24 In sum, it was not clear error for the trial court to credit the
State’s stated concerns as race-neutral and, after uncovering no indicia of
prosecutorial duplicity, to deny Robinson’s Batson challenge. The court
weighed the strikes against the totality of the relevant circumstances and
deemed the prosecutor credible. See Flowers, 139 S. Ct. at 2243. We affirm.

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4. Juror 300

¶25 Similar considerations support the State’s strike of Juror 300.
The prosecutor offered the following explanation in response to Robinson’s
Batson challenge:

She was similar to another juror that says she believes that all
people are good and have good morals, and that’s her starting
point. She indicated that life -- she had some issues with life
in prison, that it should not be a way of life, but that some
people can make a life in prison.

But she clearly had issues, indicating that we are all ingrained
-- and this is her words -- we are all ingrained to do morally
good, even in the worst conditions. And that is her starting
belief.

She has relatives who have been in prison, she said in the ‘60s
at one point and at the ‘70s on another point. She -- I believe
she had a stepson who was charged with a sexual assault-
related offense. She said the photos may be an issue for her,
under Question 77. She indicated that it would be hard for
her. She did say that she felt it was a necessity, but it would
be a hard decision for her whether or not she could impose
the death penalty.

She said that crime is -- committing crime is not the core of
any one of us. You have to be conditioned to do it.

In this instance, however, Robinson’s trial counsel offered a direct rebuttal:

Now -- and as far as the strikes, as to [Juror] No. 300, the only
thing I would like to say about that, I believe that the only
thing I heard was that this was a juror who just basically said
that they believed in people being good and that that was the
reason to strike. So I would still say that that was just a
pretext.

¶26 On appeal, Robinson shifts his focus to the prosecutor’s
suggestion that Juror 300 would have some difficulty imposing the death
penalty. Relying on questionnaire and voir dire responses said to indicate
the opposite, Robinson insists the prosecutor’s reasoning can only be
described as pretext. But the record isn’t so unequivocal.

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¶27 The State does not dispute Juror 300’s stated willingness to
impose the death penalty. And rightly so. The record confirms Juror 300
neither opposed nor preferred the death penalty, held no fundamental
opposition to its imposition, and felt personally capable of returning a
death verdict. The State instead refers us to other concerns mentioned by
the prosecutor—most notably, Juror 300’s belief that “all of us have good
morals,” and that criminal behavior “may be something that has been
conditioned.” In its view, these beliefs’ potential interference with Juror
300’s ability to accept Robinson’s guilt or moral culpability provided a race-
neutral reason for striking her. We agree.

¶28 The prosecutor’s concern that Juror 300 might come to credit
Robinson’s unenviable childhood for S.H.’s and B.H.’s murders provides a
legitimate basis for exercising a peremptory strike. See (Antonio G.)
Hernandez, 170 Ariz. at 305–06 (affirming peremptory strike for perceived
sympathy toward a defendant); see also State v. Krebs, 452 P.3d 609, 633
(Cal. 2019) (concluding it was “sound trial strategy” to strike juror
“receptive” to expected argument that defendant “did not deserve the
death penalty because he suffered childhood abuse, alcoholism, and mental
illnesses”). Her relatives’ prior criminal convictions provide an additional
race-neutral rationale.5 See United States v. Vaccaro, 816 F.2d 443, 457 (9th
Cir. 1987) (determining it “proper” to strike juror with brother in prison for
robbery conviction), abrogated on other grounds by Huddleston v. United States, 485 U.S. 681 (1988); accord Edmonds v. State, 812 A.2d 1034, 1045 (Md. 2002)
(“Courts throughout the country have accepted as race-neutral reasons the
fact that a venireperson’s relative has been convicted of a crime.”). As does
her admitted discomfort with graphic photographs.6 See Gay, 214 Ariz. at
220–21 ¶¶ 18–19 (concluding it was race-neutral to strike juror who, among
other things, “had problems with graphic details and gruesome photos”).

¶29 The record corroborates these reasons, limiting whatever
pretextual inference we might otherwise have expected the trial court to
glean from the prosecutor’s overstatement. This is especially true where,

5 Juror 300’s stepson, stepdaughter, and brother had previously been
convicted of sexual assault, driving under the influence, and assault,
respectively.
6 On her questionnaire, Juror 300 responded “Yes” when asked whether

viewing autopsy and other graphic photos would affect her ability to serve
as a fair and impartial juror, adding that “photographs do not state the
defendant committed the crime.” During voir dire, she told the prosecutor
that “[n]atural reaction, it’s going to be hard [to view graphic photographs],
but maybe necessary to come to a conclusion effectively.”
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as here, the misattribution is mere difficulty with the decision, not outright
opposition to the form of punishment. Cf. Dretke, 545 U.S. at 246–47 (giving
weight to juror’s affirmation of willingness to impose death penalty despite
his prior statements in support of rehabilitation). Willingness to impose the
death penalty does not negate possible apprehension. Nor, more
importantly, does it detract from the overall accuracy of the prosecutor’s
account of Juror 300’s voir dire responses. To the extent the prosecutor
misstated those responses, we find it “entirely understandable.” Flowers,
139 S. Ct. at 2250. The State’s decision not to challenge Juror 300 for cause
likewise says little about the prosecutor’s probable motive. Nor was the
prosecutor obliged to offer an explanation on par with such a challenge. See
Batson, 476 U.S. at 97.

¶30 The trial court did not clearly err in accepting the prosecutor’s
stated reasons for striking Juror 300. After assessing the strikes against all
the relevant circumstances, the court found no reason to doubt the
prosecutor’s sincerity. See Flowers, 139 S. Ct. at 2243. Robinson has not
shown an error in the court’s analysis. Therefore, we affirm.

B. The F(6) Aggravator

¶31 Robinson next attacks the jury’s findings that he murdered
S.H. and B.H. in an especially cruel, heinous or depraved manner. Because
both murders occurred after August 1, 2002, we do not independently
review the jury’s finding; instead, we ask whether the jury abused its
discretion. A.R.S. § 13-756(A). We accordingly review the record for
substantial evidence, viewing the evidence in the light most favorable to
sustaining its verdict. State v. Gunches, 225 Ariz. 22, 25 ¶ 14 (2010).
“Substantial evidence is such proof that reasonable persons could accept as
adequate and sufficient to support a conclusion of [the] defendant’s guilt
beyond a reasonable doubt.” Id. (quoting Roque, 213 Ariz. at 218 ¶ 93).

¶32 Section 13-751(F)(6) provides that a first degree murder is
aggravated if “[t]he defendant committed the offense in an especially
heinous, cruel or depraved manner.” The elements in § 13-751(F)(6) are
disjunctive, and we will uphold an (F)(6) finding if one or more are proven.
State v. (Shawn P.) Lynch, 225 Ariz. 27, 41 ¶ 77 (2010). The terms “heinous
or depraved,” though worded disjunctively, constitute just one prong of the
(F)(6) aggravator. State v. Womble, 225 Ariz. 91, 100 ¶ 34 (2010). Here, the
jury found that S.H.’s murder was both especially cruel and especially
heinous or depraved, and that B.H.’s murder was especially heinous or
depraved. We address each finding in turn.

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STATE OF ARIZONA V. DWANDARRIUS JAMAR ROBINSON
Opinion of the Court

1. Especially cruel (S.H.)

¶33 “A murder is especially cruel when ‘the victim consciously
experienced physical or mental pain prior to death, and the defendant knew
or should have known that suffering would occur.’” (Shawn P.) Lynch, 225
Ariz. at 41 ¶ 78 (quoting State v. Trostle, 191 Ariz. 4, 18 (1997)). This does
not mean the victim must have been conscious for every wound inflicted,
or that her suffering must have lasted for some specified amount of time.
State v. Goudeau, 239 Ariz. 421, 463 ¶ 184 (2016). Mental pain or anguish
includes the victim’s uncertainty about her fate and may be supported by
evidence of pleas or defensive injuries. Id. at 463–64 ¶ 184. We accordingly
assess this aggravator by evaluating “the entire murder transaction, not
merely the fatal act.” Id. at 464 ¶ 184.

¶34 Substantial evidence supports the jury’s finding that S.H.’s
murder was especially cruel. Robinson forced S.H., who was nine months
pregnant, into a facedown position and restrained her with handcuffs
behind her back. He used a combination of knotted neckties and duct tape
to bind her ankles together. He stuffed a folded cloth into her mouth,
obstructing her ability to breathe. And he placed duct tape over her mouth
and eyes. Dr. Hu’s autopsy in turn revealed “extensive” eye hemorrhaging
suggestive of strangulation, as well as blood, saliva, and teeth marks on the
cloth and tongue, indicating S.H. was still alive after the cloth’s insertion.

¶35 These facts provide plentiful support for the jury’s conclusion
that S.H. consciously suffered before her death and that Robinson knew or
should have known such suffering would occur. We have repeatedly noted
that one generally does not restrain someone who is already unconscious.
See State v. (Robert) Hernandez, 232 Ariz. 313, 325 ¶ 57 (2013) (“While bound,
[the victim] would have been uncertain as to her fate, and thus suffered the
requisite mental anguish necessary for the ‘especially cruel’ finding
required by § 13-751(F)(6).” (internal citation omitted)); State v. Parker, 231
Ariz. 391, 410 ¶ 88 (2013) (“[T]hat [the victim] was bound supports a
finding that she was conscious, and so would have suffered mental
anguish.”); Gallardo, 225 Ariz. at 565–66 ¶ 17 (“[The victim] almost certainly
was conscious when bound, as there is no reason to bind an unconscious
person.”); (Shawn P.) Lynch, 225 Ariz. at 41 ¶¶ 79–80 (“[The victim] was
almost surely conscious when bound to the chair, as there is no reason to
bind an unconscious person who offers no resistance. . . . [I]t was surely
foreseeable that [the victim] would suffer significant mental anguish while
being bound to the chair.” (internal citations omitted) (internal quotation
marks and modifications omitted)); State v. Bible, 175 Ariz. 549, 604–05
(1993) (“The fact that [the victim’s] hands were bound indicates that she

14

STATE OF ARIZONA V. DWANDARRIUS JAMAR ROBINSON
Opinion of the Court

was conscious and tied-up to prevent struggling.”). The great lengths to
which Robinson went to bind, gag, blindfold, and restrain S.H. further
suggest she “had ample time to suffer ‘significant uncertainty as to [her]
ultimate fate.’” See (Shawn P.) Lynch, 225 Ariz. at 41 ¶ 79 (quoting State v.
Van Adams, 194 Ariz. 408, 421 ¶ 44 (1999)); see also Gallardo, 225 Ariz. at
566 ¶ 19 (“That [the victim] was bound hand and foot, a pillowcase was tied
over his head, and he struggled to free himself also indicates he had time to
suffer significant uncertainty as to his fate.”). Additionally, the obstructed
airway, blood- and saliva-soaked cloth, and bite marks on the cloth and
tongue together suggest S.H. struggled for breath, even if for no more than
a few minutes,7 after Robinson stuffed the cloth into her mouth. See
Goudeau, 239 Ariz. at 463 ¶ 184 (stating there is no minimum time limit for
victim suffering).

¶36 The uncertain order of S.H.’s injuries fails to alter our view.
Even were we to ignore both medical experts’ descriptions of S.H.’s head
injuries as “mild,” Robinson’s suggestion that “just one of the blunt force
injuries” to S.H.’s head could have rendered her unconscious fails to negate
all the evidence to the contrary. Thus, the jury did not abuse its discretion
in discounting Robinson’s competing theory that S.H. was unconscious
throughout the encounter.

¶37 Robinson’s distinctions from our previous decisions are
similarly unpersuasive. To be sure, we have credited evidence of a
prolonged struggle or confrontation in support of an especially cruel
finding. See, e.g., State v. Prince, 226 Ariz. 516, 540 ¶¶ 99–101 (2011) (victim
witnessed mother being beaten, threatened at gunpoint, attempted to
escape, and appeared frightened before being shot by defendant). This
notably includes many of the same cases in which the victim was eventually
bound. See (Robert) Hernandez, 232 Ariz. at 325 ¶ 57 (victim forced into
home at gunpoint and heard other victims’ screams); Parker, 231 Ariz. at
410 ¶ 88 (knife wounds to victim’s hand and face); Gallardo, 225 Ariz. at
566 ¶¶ 18–19 (victim “struggled to free himself” from restraints); (Shawn P.)
Lynch, 225 Ariz. at 41 ¶ 79 (ligatures, abrasions, and bruising on victim’s
body). However, we have never held such a struggle to be necessary. See
Prince, 226 Ariz. at 540 ¶ 102 (“[L]ater cases clearly establish that the
victim’s uncertainty is a sufficient, but not necessary, basis for a finding of
especial cruelty.”). To the contrary, we have regularly credited the use of
restraints as a reliable indicator of victim consciousness and suffering. See,

7 At trial, both parties’ experts agreed that S.H. would have passed away

from asphyxiation within a few minutes of the cloth being stuffed in her
mouth.
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STATE OF ARIZONA V. DWANDARRIUS JAMAR ROBINSON
Opinion of the Court

e.g., Gallardo, 225 Ariz. at 565–66 ¶ 17; (Shawn P.) Lynch, 225 Ariz.
at 41 ¶¶ 79–80. We therefore affirm the jury’s especial cruelty finding here.

2. Especially heinous or depraved (S.H.)

¶38 The (F)(6) aggravator’s “especially heinous or depraved”
element asks a different question. Unlike its “especially cruel” counterpart,
which considers the victim’s state of mind, the term “heinous or depraved”
focuses on that of the defendant. State v. Murdaugh, 209 Ariz. 19, 31 ¶ 59
(2004). This is generally assessed by reference to the defendant’s words or
actions both preceding and during the crime’s commission. Id. Specifically,
the jury must consider “1) whether the defendant relished the murder; 2)
whether the defendant inflicted gratuitous violence on the victim; 3)
whether the defendant needlessly mutilated the victim; 4) the senselessness
of the crime; and 5) the helplessness of the victim.” Id.

¶39 The State’s argument as to S.H.’s murder focuses primarily on
Robinson’s use of fire.8 It raises two competing theories, each depending
upon the timing of S.H.’s death. If Robinson set S.H. on fire while she was
still alive, doing so was gratuitously violent given his prior infliction of a
fatal injury—namely, by obstructing her airway and binding her body,
giving her no more than a few minutes to live. Otherwise, setting her on
fire constituted needless mutilation. Robinson insists that the combined
effect of the uncertain timing of S.H.’s death and a lack of evidence as to his
state of mind at the time bars both findings. We disagree.

¶40 We begin by clarifying that alternative arguments are not the
same as alternative findings. Robinson rightly states that alternative
findings cannot be used to find an (F)(6) aggravator proven beyond a
reasonable doubt. State v. Soto-Fong, 187 Ariz. 186, 201 (1996). Specifically,
a jury may not, upon finding itself unable to choose between competing
factual findings, find the aggravator proven based on “alternative,
hypothetical findings.” Id. at 201–02. Conversely, where a jury could
reasonably credit one of two possible facts—here, S.H. died either before or
after Robinson set her on fire—nothing prevents the prosecutor from
presenting a theory for each possible finding. As we observed in Soto-Fong,
permitting a factfinder to make alternative findings would likely

8 We do not address the State’s conclusory suggestion that Robinson’s
decision to murder S.H. even after he learned that she had begun having
contractions alone suffices to affirm the jury’s especially heinous or
depraved finding. The jury was only instructed on gratuitous violence and
needless mutilation regarding this factor’s application to S.H.’s murder.
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STATE OF ARIZONA V. DWANDARRIUS JAMAR ROBINSON
Opinion of the Court

unconstitutionally reduce the State’s burden to prove all aggravators
beyond a reasonable doubt. Id. at 202. But the same does not follow for a
prosecutor’s alternative summations of a case. Where the evidence leaves
the jury with competing factual possibilities, the prosecutor may present
alternative theories of an aggravator’s presence, and, provided it resolves
the factual question, the jury may decide whether the relevant theory
proves the aggravator beyond a reasonable doubt. See State v. (James C.)
Johnson, 247 Ariz. 166, 183 ¶ 31 (2019) (“Either [the victim] was alive when
[the defendant] carved into her stomach, establishing gratuitous violence,
or she was already dead, resulting in mutilation.”).

¶41 This subtle distinction proves dispositive. The trial court
instructed the jury that to find S.H.’s murder especially heinous or
depraved, the State had to prove “at least one” of two actions beyond a
reasonable doubt—namely, that Robinson “1. Inflicted gratuitous violence
on the victim (Shaniqua Hall) beyond that necessary to kill; or 2. Needlessly
mutilated the victim’s (Shaniqua Hall) body.” The plain language of this
instruction necessarily forbade the jury from finding the aggravator proven
based on a mere consensus that one or the other must have occurred. Cf.
Soto-Fong, 187 Ariz. at 201–02. Instead, its disjunctive structure and use of
the phrase “at least one” required unanimity on the order of events—that
is, either gratuitous violence or needless mutilation—as a precondition to
finding the aggravator proven beyond a reasonable doubt. Finding no
evidence to the contrary, we presume the jury followed the court’s
instructions. Newell, 212 Ariz. at 403 ¶ 68. However, because the verdict
form does not specify which of the two actions the jury found here, we
review the evidence supporting each.

¶42 Substantial evidence would have permitted the jury to find
that Robinson inflicted gratuitous violence on S.H. See Gunches, 225 Ariz.
at 25 ¶ 14. “Gratuitous violence can be found if the defendant ‘(1) inflicted
more violence than that necessary to kill, and (2) continued to inflict
violence after he knew or should have known that a fatal action had
occurred.’” State v. Rushing, 243 Ariz. 212, 220 ¶ 33 (2017) (emphasis
omitted) (quoting Gunches, 225 Ariz. at 25–26 ¶ 16). Both parties’ medical
experts agreed S.H. would have died of asphyxiation within a few minutes
of Robinson stuffing the cloth into her mouth. It follows that setting S.H.
on fire was not necessary to ensure her death, and to the extent the jury so
found, it was not an abuse of discretion to conclude that Robinson should
have known that. See (James C.) Johnson, 247 Ariz. at 183 ¶ 30 (finding
defendant should have known carving into victim’s stomach was
unnecessary after making multiple cuts, including one four inches deep,
into victim’s neck); cf. State v. Bocharski, 218 Ariz. 476, 495 ¶ 90 (2008)

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STATE OF ARIZONA V. DWANDARRIUS JAMAR ROBINSON
Opinion of the Court

(concluding mens rea not established where defendant “used only a knife
to inflict the wounds and completed his attack very rapidly”). There was
no need for additional evidence of Robinson’s state of mind at the time he
started the fire.

¶43 Furthermore, unlike especial cruelty, the uncertain timing of
S.H.’s death is irrelevant to the existence of gratuitous violence. If S.H.
predeceased the fire’s ignition, that fact only tends to reinforce the
conclusion that setting the fire was not integral to her death. And if she was
still alive, the medical consensus remains that asphyxiation followed within
minutes of Robinson stuffing the rag into her mouth and blocking her
airways. In either scenario, the jury would not have abused its discretion
in finding Robinson inflicted gratuitous violence.

¶44 We reach the same result regarding needless mutilation.
“Mutilation requires a finding of a separate purpose to mutilate.” State v.
Carlson, 202 Ariz. 570, 584 ¶ 52 (2002). This finding may be supported by
evidence giving “some indication” of such a purpose. State v. Medina, 193
Ariz. 504, 514 ¶ 38 (1999). Surely dousing S.H. with lighter fluid and setting
her on fire after having already inflicted a fatal wound is indicative enough.
See State v. Spencer, 176 Ariz. 36, 44 (1993) (dousing victim with accelerant
and setting her on fire after raping and stabbing her was needless
mutilation). The prosecutor’s suggestion during closing argument that
Robinson set the fire to “erase all the evidence left behind,” while perhaps
unilluminating as to mutilative purpose, does not prevent such a finding.
One may choose to mutilate a corpse in hopes of evading detection just as
readily as he does so to relish his actions or put them on display. We find
nothing about dousing a victim’s body with accelerant and lighting it on
fire that categorically distinguishes it from other mutilative acts, such as
carving or dismembering. See, e.g., State v. Pandeli (Pandeli I), 200 Ariz.
365, 375–76 ¶¶ 40–41 (2001) (deeming it needless mutilation to excise both
of victim’s breasts after her death), vacated on other grounds, 536 U.S. 953
(2002). The jury did not abuse its discretion in finding needless mutilation
here.

3. Especially heinous or depraved (B.H.)

¶45 Robinson also challenges the jury’s (F)(6) finding as to B.H.’s
murder. At trial, the State’s argument for finding this aggravator focused
on the “senselessness of the crime” and “helplessness of the victim” factors.
See Murdaugh, 209 Ariz. at 31 ¶ 59. “The killing of a child satisfies the
senselessness and helplessness factors.” State v. Leteve, 237 Ariz.
516, 527 ¶ 36 (2015). We nevertheless require more than these two factors

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STATE OF ARIZONA V. DWANDARRIUS JAMAR ROBINSON
Opinion of the Court

to affirm an (F)(6) finding. Id. At trial, the State found that additional
support in the alleged parent-child relationship Robinson had with B.H.—
a relationship that, when combined with a murder’s senselessness and a
victim’s helplessness, provides a “constitutionally permissible” basis for
such a finding.9 Id. ¶¶ 37–38 (quoting Carlson, 202 Ariz. at 584 ¶ 55).

¶46 Robinson makes three arguments on appeal.10 First, he insists
that “mere biological paternity” cannot create what he calls a “parental
relationship of trust” with a fetus.11 Second, Robinson suggests fetal status
is not enough to support the finding that B.H.’s murder was senseless.
Third, and alternatively, he argues that considering fetal status here
constituted impermissible double-counting of B.H.’s age given the jury’s
consideration of the same fact in finding the (F)(9) factor proven beyond a
reasonable doubt. We disagree.

a. Parent-child relationship

¶47 We note at the outset Robinson’s mischaracterization of the
required relationship as a “parental or caregiver relationship of trust.” In
fact, a parent-child relationship is enough. See Carlson, 202 Ariz. at 584
(“The parent/child relationship is a circumstance that separates infanticide
from the ‘norm’ of first-degree murders. The use of that relationship in
partial support of a finding of heinousness and depravity is constitutionally
permissible.” (alterations omitted) (quoting State v. Milke, 177 Ariz. 118, 126
(1993)); cf. State v. Styers, 177 Ariz. 104, 116 (1993) (“Although there was no
legal ‘parent/child’ relationship, defendant and victim did share a special
relationship in that defendant was the child’s full-time caregiver for several
months before he killed him.”). Granted, the exploitation of parental trust
has at times informed our analysis. See, e.g., State v. Fulminante, 161 Ariz.

9 The trial court properly instructed the jury that the State had to prove all

three factors—namely, senselessness, helplessness, and parent-child
relationship—beyond a reasonable doubt to support an (F)(6) finding.
10 Robinson does not dispute B.H.’s helplessness.
11 Robinson argues for the first time on appeal that the State presented no

evidence establishing that he was B.H.’s father. The trial court found that
the evidence presented at the Chronis hearing had established his paternity,
and at trial, the State elicited witness testimony that Robinson was B.H.’s
biological father and told the jury that paternity was undisputed—all
without objection from Robinson’s trial counsel. We accordingly find the
argument to be waived. See State v. Schaaf, 169 Ariz. 323, 332 (1991) (stating
that failure to timely object below waives right to raise argument on
appeal).
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STATE OF ARIZONA V. DWANDARRIUS JAMAR ROBINSON
Opinion of the Court

237, 256 (1988) (finding heinous or depraved conduct in killing of
stepdaughter-victim “under parental control and capable of manipulation
by” stepfather-defendant). But we have never treated trust as an essential
element of parenthood. After all, trust typically goes to helplessness, which
Robinson does not challenge here. See Milke, 177 Ariz. at 125 (determining
child’s trust of defendant supported helplessness factor).

¶48 The parent-child relationship, by contrast, concerns the
“familial” ties shared by defendant and victim. See Carlson, 202 Ariz.
at 584 ¶ 53. Robinson offers no principled basis for us to exclude biological
ties from this category. Indeed, to do so would be inconsistent with the
basic definition of family. See Family, Black’s Law Dictionary (11th ed. 2019)
(“A group of persons connected by blood, by affinity, or by law, esp. within
two or three generations.”). Murdering one’s own child violates the basic
conception of family, no matter its formative origin. As we have held, it
denotes a level of debasement that, when combined with the victim’s
helplessness and the murder’s senselessness, suffices to find a murder
especially heinous or depraved. See Milke, 177 Ariz. at 126 (“A mother’s
conspiracy to murder her own four-year-old child and the resultant
premeditated murder of that child is the ultimate perversion of the
parent/child relationship.”); State v. Stanley, 167 Ariz. 519, 529 (1991)
(“When a father kills his own child, his actions cannot be characterized as
sensible, nor can his state of mind be considered other than perverted. This
fact sets this crime apart from the norm of first-degree murders and
warrants a finding that the murder was committed in an especially
depraved manner.”); State v. Knapp, 114 Ariz. 531, 543 (1977) (dousing
defendant’s “own two infant daughters” with lighter fluid and igniting
their bedroom “falls squarely within” aggravator). The trial court properly
observed the same distinction below.

¶49 We are not swayed by Robinson’s analogy to our family law
jurisprudence. The unrelated rule that an unwed father generally lacks
constitutionally enforceable parental rights or responsibilities “unless he
takes significant steps to create a parental relationship” does not readily
apply to capital murder cases. See In re Pima Cnty. Juv. Severance Action No.
S-114487, 179 Ariz. 86, 94 (1994). In fact, applying it in this context could
promote perverse outcomes—most notably, defendants who, as a result of
their evasion of parental responsibilities, are not death-penalty-eligible for
murdering their biological children. We therefore hold that in capital cases,
proof of biological parenthood is sufficient to establish that a parent-child
relationship existed for purposes of evaluating whether a murder is
especially heinous or depraved.

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STATE OF ARIZONA V. DWANDARRIUS JAMAR ROBINSON
Opinion of the Court

¶50 Robinson’s constitutional objection to including fetuses in the
parent-child relationship is similarly unconvincing. As the trial court
observed below, the (F)(9) aggravator refers to a fetus as “an unborn child.”
§ 13-751(F)(9). Indeed, the broader capital sentencing scheme is replete
with similar references. See §§ 13-701(D)(10), -704(M), -705(N), - 751(A),
(F)(9), (H), -1104(A)–(C), and -1105(A)(1), (C); see also Infanticide, Black’s
Law Dictionary (11th ed. 2019) (“In archaic usage, the word referred also to
the killing of an unborn child.”). It follows that, at least for present
purposes, the legislature intended to treat a fetus, not as distinct from, but
as a type of child. Such plain statutory language necessarily alleviates any
concerns about “serious constitutional problems” with the jury’s (F)(6)
finding here. See Carlson, 202 Ariz. at 585 ¶ 55. No “case-by-case
expansion” of the aggravator is required to uphold the jury’s conclusion
that biological paternity established the requisite relationship between
Robinson and B.H. Cf. id. at 584–85 ¶ 55 (“In this case, dealing with a
woman and her mother-in-law, we believe it unwise to expand the concept
of relationship as an aggravating factor.”). Though we are prohibited from
engaging in such ad hoc expansion, the legislature, as it did here, remains
free to “enact and define reasonable and narrowing aggravating
circumstances that apply, across the board, to all cases.” Id. at 585 ¶ 55. By
referring to fetuses as unborn children, the legislature, not this Court, has
provided for their inclusion in the parent-child relationship. The jury’s
finding that such a relationship existed here accordingly stands.

b. Senselessness and double counting

¶51 The legislature’s decision to equate feticide with infanticide
also makes B.H.’s murder senseless as a matter of law. See Leteve, 237 Ariz.
at 527 ¶ 36; see also Stanley, 167 Ariz. at 528 (“The killing of a helpless child
is senseless and demonstrates a disregard for human life satisfying two of
the five [(F)(6)] factors.”). Whether Robinson killed B.H. to avoid his
parental responsibilities makes no difference—in fact, the prosecutor made
the same observation at closing. And the absence of a separate, distinct
physical injury to B.H. bears little import to the murder’s senselessness,
which depends upon the murder’s relationship to Robinson’s goal. See
Carlson, 202 Ariz. at 584 ¶ 52.

¶52 Robinson’s double-counting argument is misplaced.
Although the jury was prohibited from weighing B.H.’s age twice as it
“assesse[d] aggravation and mitigation” at the penalty phase, it was
permitted to “use one fact to find multiple aggravators” at the aggravation
phase. See State v. Velazquez, 216 Ariz. 300, 307 ¶ 22 (2007). The trial court
instructed the jury to that effect below. The jury presumably followed these

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STATE OF ARIZONA V. DWANDARRIUS JAMAR ROBINSON
Opinion of the Court

instructions; the prosecutor did not counsel the jury to the contrary; and
Robinson offers no evidence suggesting any such double counting
occurred. See id. at 307–08 ¶¶ 23–24. We therefore affirm its (F)(6) finding
as to B.H.’s murder.

C. The Life Imprisonment Instruction

¶53 Robinson next challenges the trial court’s rejection of his
proposed instruction defining life imprisonment in favor of what he calls a
legally flawed final instruction. We review for abuse of discretion the
court’s refusal to give Robinson’s requested instruction, see State v. Dann, 220 Ariz. 351, 363–64 ¶ 51 (2009), and we review de novo the legal accuracy
of its given instruction, reading it “as a whole to ensure that the jury
receives the information it needs to arrive at a legally correct decision,”
Prince, 226 Ariz. at 536 ¶ 77 (quoting State ex rel. Thomas v. Granville, 211
Ariz. 468, 471 ¶ 8 (2005)).

¶54 The trial court gave the jury the following instruction at the
close of the penalty phase:

DEFINITION OF LIFE IMPRISONMENT

Any verdict of life imprisonment or death must be
unanimous. Your decision is not a recommendation. If your
verdict is that Defendant should be sentenced to death, he will
be sentenced to death. If your verdict is that Defendant should
be sentenced to life, he will be sentenced to life, and the Court
will sentence him either to life in prison without the
possibility of release or life in prison with the possibility of
release after 25 years for Count 1 and 35 years for Count 2.
The Court will make the decision of whether Defendant will
receive life in prison without the possibility of release or life
in prison with the possibility of release after 25 years or 35
years, respectively.

“Life without the possibility of release” means exactly what it
says. The sentence of life without possibility of release from
prison means the Defendant will never be eligible to be
released from prison for any reason for the rest of the
Defendant’s life.

A defendant sentenced to life with the possibility of release
after 25 years for Count 1 and/or 35 years for Count 2 must
serve the entire 25 years before applying for release on Count

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STATE OF ARIZONA V. DWANDARRIUS JAMAR ROBINSON
Opinion of the Court

1 and must serve the entire 35 years before applying for
release on Count 2. There is no automatic release after 25 years
or 35 years. Arizona law no longer provides for parole.
Defendant’s only option is to petition the Board of Executive
Clemency for release. If that Board recommends to the
Governor that Defendant should be released, then the
Governor would make the final decision regarding whether
Defendant would be released.

Robinson’s requested instruction would have said, “‘Life in prison’ means
that the defendant will spend the remainder of his natural life in prison.”

¶55 The trial court rejected Robinson’s requested instruction.
More specifically, the court rejected Robinson’s argument that the Supreme
Court’s decisions in Simmons v. South Carolina, 512 U.S. 154 (1994), and
Lynch v. Arizona (Lynch II), 578 U.S. 613 (2016) (per curiam), require a simple
“life means life” instruction. Instead, it found that the final instruction’s
discussion of the two types of life sentences, as well as the executive
clemency process, satisfied both decisions by giving the jury “an accurate
statement of the law.” We agree.

¶56 In Simmons, the Supreme Court held that, where a defendant’s
future dangerousness is at issue, and the only available alternative to a
death sentence is life imprisonment without possibility of parole, due
process “plainly requires” that the defendant be given an opportunity to
inform the jury of his parole ineligibility via either a jury instruction or
counsel argument. 512 U.S. at 168–69 (plurality opinion); accord Kelly v.
South Carolina, 534 U.S. 246, 248 (2002); Rushing, 243 Ariz. at 221 ¶ 37. This
so-called Simmons instruction aims to prevent juries from imposing a death
sentence based on the misbegotten notion that a life sentence really means
the defendant will eventually be paroled. See 512 U.S. at 170–71.

¶57 The threshold question, therefore, is whether Robinson was
entitled to such an instruction. We conclude that he was. Because the State
does not dispute it, we treat the future dangerousness precondition as met
for purposes of this appeal. The parole ineligibility precondition is also
satisfied. In Arizona, only individuals who committed a felony prior to
January 1, 1994, and juvenile offenders are eligible for parole.
A.R.S. § 41-1604.09. Robinson is neither. Absent some future legislative
reform, his only hope of release had he received a life sentence would have
been executive clemency. See § 13-751(A). Granted, under our originally
narrow reading of Simmons, the lingering possibility of release via executive
clemency would have obviated the need for an instruction on Robinson’s

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STATE OF ARIZONA V. DWANDARRIUS JAMAR ROBINSON
Opinion of the Court

ineligibility for parole. See State v. Lynch (Lynch I), 238 Ariz. 84, 103 ¶ 65
(2015) (rejecting requirement to give parole ineligibility instruction where
executive clemency made future release possible), rev’d, 578 U.S. 613.

¶58 In Lynch II, the Supreme Court reversed our decision in
Lynch I and held that neither the possibility of executive clemency nor the
potential for future legislative reform could justify a trial court’s refusal to
give a parole ineligibility instruction. 578 U.S. at 615–16; accord Simmons,
512 U.S. at 166 (plurality opinion) (“To the extent that the State opposes
even a simple parole-ineligibility instruction because of hypothetical future
developments [such as legislative reform, commutation, clemency and
escape], the argument has little force.”); id. at 177 (O’Connor, J., concurring)
(noting that the state may respond to a parole ineligibility argument or
instruction by presenting “truthful information regarding the availability
of commutation, pardon, and the like”). The upshot: an enduring
possibility of “release” by a means other than parole does not negate a
defendant’s right under Simmons to a parole ineligibility instruction.
Lynch II, 578 U.S. at 615–16. Where, as here, both preconditions are met,
due process directs the trial court to inform the jury of a defendant’s
ineligibility for parole. See id.

¶59 The remaining question is whether Robinson received his
constitutional due. We conclude he did. In describing a sentence of “life
with the possibility of release after 25 years for Count 1 and/or 35 years for
Count 2,” the trial court instructed the jury that “[t]here is no automatic
release after 25 or 35 years,” that “Arizona law no longer provides for
parole,” and that Robinson’s “only option” for release would be to prevail
on a petition for executive clemency, which would require both a
recommendation by the Board of Executive Clemency and approval by the
Governor. We conclude that this instruction gave the jury the necessary
information to arrive at a legally sound decision. See (James C.) Johnson, 247
Ariz. at 184 ¶¶ 36–37 (affirming almost-identical instruction).

¶60 Neither Simmons nor Lynch II supports Robinson’s proposed
instruction. Instead of informing the jury of the unavailability of parole as
the trial court’s final instruction did, his proposed instruction would have
told the jury that a life sentence meant Robinson spending nothing less than
“the remainder of his natural life in prison.” But that would have
overstated the effect of parole ineligibility. Having no chance of parole does
not automatically terminate one’s eligibility for other forms of release.
Executive clemency is one such option. Had the jury returned a verdict of
life imprisonment and the trial court imposed a release-eligible sentence,
Robinson’s ineligibility for parole would not have prevented him from

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STATE OF ARIZONA V. DWANDARRIUS JAMAR ROBINSON
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applying for executive clemency. Robinson’s instruction would have left
jurors with the false impression that no such options exist. We have rejected
similarly sweeping instructions in the past. See, e.g., State v. Boyston, 231
Ariz. 539, 552–53 ¶¶ 67–68 (2013) (rejecting proposed instruction that life
imprisonment meant defendant “would be sentenced to natural life and
would ‘never be eligible to be released from prison for any reason for the
rest of his life’”). We do so again here.

¶61 Simmons and its progeny likewise fail to support Robinson’s
suggestion that the jury required a detailed comparison of parole and
clemency. While perhaps not “obviously clear to a layperson,” such
distinctions bear little relation to Simmons’s ameliorative aims. As the
plurality there observed, the impetus for a parole ineligibility instruction
was public ignorance, not of what parole is, but of when it is available. “For
much of our country’s history, parole was a mainstay of state and federal
sentencing regimes, and every term (whether a term of life or a term of
years) in practice was understood to be shorter than the stated term.”
Simmons, 512 U.S. at 169. This reality left a seemingly indelible mark on the
public’s perception of prison terms. Even as legislatures, including our
own, later enacted sentencing laws limiting its availability, parole’s historic
association with “life imprisonment” proved a pesky taint to purge from
jurors’ minds as they deliberated whether to impose the death penalty or a
life sentence. A Simmons instruction disabuses jurors of this flawed
presumption of parole eligibility by explicitly notifying the jury of an
allegedly dangerous defendant’s ineligibility for parole. See id. at 170–71.
It does not, however, entitle that defendant to an instruction comparing
parole to other forms of release for which he might still be eligible.

¶62 In sum, Robinson rightly argues that he was entitled to a
Simmons instruction. And that is precisely what he received. The trial court
did not err in refusing the more sweeping instruction Robinson requested,
and its final instruction correctly stated the law.

D. The Statutory Narrowing Challenge

¶63 We also reject Robinson’s challenge to Arizona’s capital
sentencing scheme. He argues that the statutory aggravators fail to
adequately narrow the class of death-eligible defendants in violation of the
Eighth and Fourteenth Amendments to the United States Constitution. As
Robinson himself acknowledges, we rejected this argument in State v.
Hidalgo, 241 Ariz. 543, 551–52 ¶¶ 25–28 (2017), cert. denied, 138 S. Ct. 1054
(2018). And we have declined multiple invitations to revisit its holding. See
State v. Allen, 248 Ariz. 352, 367 ¶ 56 (2020) (aggravator narrowing challenge

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foreclosed by Hidalgo); State v. Riley, 248 Ariz. 154, 195–97 ¶¶ 171–80 (2020)
(same); (James C.) Johnson, 247 Ariz. at 179 ¶¶ 7–8 (same); State v. Champagne, 247 Ariz. 116, 139 ¶ 72 (2019) (same); State v. Acuna Valenzuela, 245 Ariz. 197,
224 ¶ 121 (2018) (same). Hidalgo “remains binding precedent”; therefore,
for the reasons explained there, we reject Robinson’s argument here. See
Riley, 248 Ariz. at 197 ¶ 179.

E. The Prosecutorial Error Objections

¶64 Robinson next argues that the prosecutor engaged in
“persistent and pervasive misconduct” that deprived him of due process
and a fair trial. We will reverse a conviction due to prosecutorial error only
if “(1) misconduct is indeed present; and (2) a reasonable likelihood exists
that the misconduct could have affected the jury’s verdict, thereby denying
defendant a fair trial.” Smith, 250 Ariz. at 99 ¶ 138 (quoting State v.
Anderson, 210 Ariz. 327, 340 ¶ 45 (2005)). “[W]e review objected-to claims
for harmless error and unobjected-to claims for fundamental error.” State
v. Hulsey, 243 Ariz. 367, 388 ¶ 88 (2018). Typically, we review each alleged
incident individually for error, after which we decide whether the
cumulative effect of any errors we find “so infected the trial with unfairness
as to make the resulting conviction a denial of due process.” State v. Payne, 233 Ariz. 484, 511 ¶ 106 (2013) (quoting State v. Hughes, 193 Ariz. 72, 79 ¶ 26
(1998)).

1. Leading and demonstrative questioning

¶65 Robinson first claims the prosecutor erred in examining Dr.
Hu by asking leading questions about the timing of S.H.’s death and giving
a demonstration of how Robinson might have held S.H.’s neck while
applying the duct tape. The trial court sustained Robinson’s objections to
the questioning and demonstration, held a bench conference, and
admonished the prosecutor as follows:

First of all, it’s not really appropriate for you to be doing a
demonstrative exhibit like that display of how you think the
crime may have occurred. There’s really no evidence of
exactly that, so, you know, you’re bordering on being very
argumentative with that type of a question.

And you’re continually leading the witness. He is your
witness. You need to ask him open-ended questions or stop
questioning him, one of the two.

....

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STATE OF ARIZONA V. DWANDARRIUS JAMAR ROBINSON
Opinion of the Court

[As to how Robinson placed the duct tape on S.H.], you can
ask the question, open-ended question, non-leading question.
I’m going to continue to sustain leading questions . . . . I don’t
care if it’s 4:30 or 5:30; you don’t get to lead your own witness.

The court refused Robinson’s request for a mistrial, however. Addressing
the prosecutor’s demonstration, the court explained:

I don’t think it was unfairly prejudicial in the scheme of this
case because we do know that the victim had duct tape
applied; someone applied it. I think it’s fair to assume that it
wasn’t probably done in a very gentle pattern, and that’s
really what the demonstration by [the prosecutor] showed.

¶66 On appeal, Robinson casts the prosecutor’s actions as a
deliberate effort “to steer” Dr. Hu’s testimony in the State’s favor and “to
inflame the jurors and call attention to matters they should not consider”
by showing the brutality of Robinson’s actions. Counsel generally may not
lead his or her own witness on direct. Ariz. R. Evid. 611(c). Though not an
absolute prohibition, courts usually will permit leading questioning only
“as necessary to develop the witness’s testimony,” id., or “when doing so
will serve ‘the ends of justice,’” Payne, 233 Ariz. at 513 ¶ 119 (quoting State
v. King, 66 Ariz. 42, 49 (1947)). Counsel is similarly restricted from referring
to or effectively testifying about matters not in the record. Acuna Valenzuela,
245 Ariz. at 216–17 ¶ 71.

¶67 Robinson overstates the extent to which the prosecutor led Dr.
Hu on direct regarding the timing of S.H.’s death. Only three of the six
questions listed in Robinson’s brief pertain to that issue.12 Of those three,
two were raised on redirect examination in response to testimony elicited
by Robinson’s trial counsel on cross. One occurred on direct.

12 The State understates the number of questions regarding the timing of

S.H.’s death. The prosecutor’s question regarding when Dr. Hu’s report
says S.H. was last seen the day of the murder was part of a line of
questioning about how Dr. Hu came to change his opinion about S.H.’s time
of death. As for the other three questions listed by Robinson, one was
objected to on grounds other than leading, and the other two were
addressed to different issues—namely, the difficulty of inflicting defensive
wounds when restrained and the means by which Robinson physically
restrained S.H.
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STATE OF ARIZONA V. DWANDARRIUS JAMAR ROBINSON
Opinion of the Court

¶68 We do not doubt the legal impropriety of the prosecutor’s
questions and actions. The trial court’s decision to sustain Robinson’s
objections and eventually to admonish the prosecutor demonstrates as
much. Yet Robinson does not explain how such impropriety rises to the
level of prosecutorial error. His briefing omits any evidence suggesting the
prosecutor asked leading questions or deviated from matters in the record
with the requisite “indifference, if not a specific intent, to prejudice”
Robinson. See Lynch I, 238 Ariz. at 100 ¶ 51 (quoting Gallardo, 225 Ariz.
at 570 ¶ 46). He instead insists the prosecutor’s malintent was “obvious”
and “clear,” and that the prosecutor’s “words and actions” in examining
Dr. Hu “permeated the trial with unfairness as to make the resulting
conviction a denial of due process.” But that is not enough. See Payne, 233
Ariz. at 513 ¶ 120 (finding “no evidence that the prosecutor deliberately
misframed questions”).

¶69 The prosecutor did not direct the jury’s attention to matters
outside the record. Two leading questions were asked on redirect in
response to an issue raised by Robinson’s counsel on cross. The one posed
on direct asked whether Dr. Hu’s first opinion on the timing of S.H.’s death
had accounted for the factors he credited for his changed opinion—factors
that Dr. Hu had already identified by that point in his testimony.
Additionally, although inappropriate, the prosecutor’s demonstration did
not introduce anything new. By then, the jurors had already learned about
the duct tape wrapped around S.H.’s face and neck. Indeed, it was defense
counsel on cross who first elicited testimony from Dr. Hu that the marks on
S.H.’s neck—marks that Dr. Hu had attributed to strangulation—possibly
could have been inflicted while her killer was “stabilizing” S.H.’s body to
apply the duct tape. Thus, as the trial court itself observed, it was not
unfounded for the prosecutor to suggest the tape was not applied gently.

2. Penalty phase closing statements

¶70 We are even less concerned with the prosecutor’s penalty
phase closing arguments. Robinson says the prosecutor “repeatedly told
the jurors that they had to find a nexus between [his] actions and the
mitigation,” causing the jury to disregard evidence of his tragic childhood.
Had that happened—or had the trial court excluded mitigation evidence on
this basis—that would likely constitute error. We have long held that no
such nexus is required before a jury may consider mitigation evidence.
Newell, 212 Ariz. at 405 ¶ 82. But neither the prosecutor nor the court told
the jury such a connection was required.

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¶71 Not once during closing argument did the prosecutor suggest
that, absent a causal nexus to the murders, the jury could not rely on
Robinson’s childhood experiences as mitigation. In fact, the opposite is
true. The prosecutor repeatedly reminded the jury that no such nexus was
needed. The prosecutor did say that “[a]ny connection or lack of connection
may impact the quality and strength of the mitigation evidence,” that “[i]f
there isn’t a link to the offense or the crime, that can affect the quality and
strength of the mitigation evidence,” and that “nothing that [Robinson] did
in this case is related to [his hometown] or his background or his culture.”
None of this was error. The prosecutor was free to downplay the impact of
Robinson’s childhood on his moral culpability for S.H.’s and B.H.’s
murders—an argument that goes to the weight of Robinson’s mitigation,
not to its admissibility. See State v. Villalobos, 225 Ariz. 74, 83 ¶ 39 (2010)
(“[T]he state may fairly argue that the lack of a nexus to the crime
diminishes the weight to be given alleged mitigation.”); State v. Pandeli
(Pandeli II), 215 Ariz. 514, 526 ¶ 32 (2007) (“[T]he State never told jurors that
they could not consider mitigation unrelated to the crime; it merely
suggested that such mitigation was entitled to minimal weight.”); Anderson,
210 Ariz. at 350 ¶ 97 (“Once the jury has heard all of the defendant’s
mitigation evidence, there is no constitutional prohibition against the State
arguing that the evidence is not particularly relevant or that it is entitled to
little weight.”). Thus, no error, much less fundamental error, occurred here.

¶72 In any event, the jury instructions cured any such error. The
trial court told the jury it could consider any relevant evidence as
mitigation, that it need not find a causal nexus, that it “must disregard” any
contrary instruction, and that it “must give independent consideration” to
all of Robinson’s mitigation. These instructions adequately remedied any
error during closing arguments. See Pandeli II, 215 Ariz. at 526 ¶ 33.

F. Independent Review

¶73 In addition to those issues Robinson raises, we independently
review the “findings of aggravation and mitigation and the propriety of the
death sentence.” A.R.S. § 13-755(A); see also State v. Morris, 215 Ariz.
324, 340 ¶¶ 75–76 (2007). Because Robinson murdered S.H. and B.H. after
August 1, 2002, we review these findings for an abuse of discretion. See
§ 13-756(A); 2002 Ariz. Sess. Laws ch. 1, § 7(C) (5th Spec. Sess.).

1. Aggravating circumstances

¶74 Substantial evidence reasonably supports the jury’s findings
as to the remaining aggravators. See Morris, 215 Ariz. at 341 ¶ 77. Robinson

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was convicted of two serious offenses—arson of an occupied structure and
kidnapping, see § 13-751(F)(2); he was convicted of the two concurrently
committed homicides of S.H. and B.H., see § 13-751(F)(8); and he was
twenty-one years old when he murdered B.H., an unborn child, see
§ 13-751(F)(9). Therefore, the jury did not abuse its discretion in finding
each aggravator proven beyond a reasonable doubt.

2. Imposition of the death penalty

¶75 Nor did the jury err in returning a death verdict. Even after
accounting for Robinson’s abusive childhood home, violent hometown,
and generational poverty, the jury did not abuse its discretion in concluding
that such evidence was not sufficiently substantial to call for leniency. See
State v. Naranjo, 234 Ariz. 233, 250 ¶ 89 (2014). We therefore affirm.

G. Issues Preserved to Avoid Preclusion

¶76 Robinson raises several challenges to Arizona’s death penalty
to preserve for federal review. As Robinson himself acknowledges, we
have already considered and rejected each of them, and, although he invites
us to revisit our earlier decisions, he offers no substantive argument in
support of their reversal, much less the “special justification” we normally
require. See State v. Hickman, 205 Ariz. 192, 200 ¶ 37 (2003).

¶77 We have previously held (1) that the death penalty does not
per se constitute cruel and unusual punishment, State v. Harrod, 200 Ariz.
309, 320 ¶ 59 (2001), vacated on other grounds, 536 U.S. 953 (2002); (2) that
where, as here, a defendant offers no evidence of purposeful discrimination
in his own case, he cannot argue that Arizona’s death penalty is
discriminatorily imposed against poor, young, and male defendants, State
v. Stokley, 182 Ariz. 505, 516 (1995); (3) that the prosecutor’s discretion to
seek the death penalty is not unconstitutional for lack of adequate
standards, State v. Sansing, 200 Ariz. 347, 360–61 ¶ 46 (2001), vacated on other
grounds, 536 U.S. 954 (2002); (4) that proportionality review of a death
sentence is not constitutionally required, id.; (5) that the absence of a proof
requirement as to death’s propriety does not render Arizona’s death
penalty statute constitutionally defective, id.; (6) that the death penalty
statute’s allowance for death where the jury finds one or more aggravator
and no mitigation is not unconstitutionally arbitrary, Pandeli I, 200 Ariz.
at 382 ¶ 88; (7) that the statute provides adequate guidance for balancing
aggravating and mitigating factors, id. ¶ 90; (8) that execution by lethal
injection is not cruel and unusual punishment, Lynch I, 238 Ariz. at 105 ¶ 77;
(9) that it falls within the trial court’s discretion to refuse questioning about

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STATE OF ARIZONA V. DWANDARRIUS JAMAR ROBINSON
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specific mitigating circumstances during voir dire, State v. (Ruben M.)
Johnson, 212 Ariz. 425, 434–35 ¶¶ 29–35 (2006); (10) that victim impact
statements relevant to harm caused by a defendant’s criminal acts are
constitutionally permissible, Lynn v. Reinstein, 205 Ariz. 186, 191 ¶ 17 (2003);
(11) that the death penalty statute does not unconstitutionally fail to require
cumulative consideration of multiple mitigating factors or specific findings
as to each, Sansing, 200 Ariz. at 361 ¶ 46; and (12) that international
standards do not compel the death penalty’s abolition, State v. Ross, 180
Ariz. 598, 602 (1994). We decline to revisit those holdings here.

III. CONCLUSION

¶78 For the reasons above, we affirm Robinson’s convictions and
sentences.

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