State of Arizona v. Jasper Phillip Rushing

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,
Appellee,

v.

JASPER PHILLIP RUSHING,
Appellant.

No. CR-23-0113-AP
Filed August 5, 2025

Appeal from the Superior Court in Maricopa County
The Honorable Michael W. Kemp, Judge (Retired)
No. CR2010-007882-001

AFFIRMED

COUNSEL:

Kristin K. Mayes, Arizona Attorney General, Jason D. Lewis, Deputy
Solicitor General/Section Chief of Capital Litigation, Jason P. Gannon
(argued), Assistant Attorney General, Tucson, Attorneys for State of
Arizona

Maricopa County Public Defender’s Office, Dawnese Hustad (argued),
Damon Rossi, Deputy Public Defenders, Attorneys for Jasper Phillip
Rushing
 STATE V. RUSHING
Opinion of the Court

CHIEF JUSTICE TIMMER authored the Opinion of the Court, in which
JUSTICES BOLICK, BEENE, KING, and CRUZ joined. *

CHIEF JUSTICE TIMMER, Opinion of the Court:

¶1 Jasper Phillip Rushing was sentenced to death after a jury
found him guilty of first degree murder. In 2017, we affirmed Rushing’s
conviction but vacated the death sentence and remanded for a new penalty
phase proceeding. See State v. Rushing, 243 Ariz. 212, 215–16 ¶ 1 (2017).
On remand, a jury again determined that Rushing should be sentenced to
death, and the superior court imposed that sentence. We affirm.

BACKGROUND

¶2 This Court’s 2017 opinion fully explains the factual
background underlying this case. See id. at 216–17 ¶¶ 2–8. In a nutshell,
in 2010, Rushing killed victim Shannon P. while they were imprisoned in
the same cell in the Lewis Prison Complex. Id. at 216 ¶¶ 2–3. Rushing
bludgeoned Shannon’s head with an improvised club and used a razor
blade to slash his throat and sever his penis. Id. ¶¶ 6–7. Shannon died
from “blunt force and sharp force injury.” Id. ¶ 6.

¶3 A jury convicted Rushing of premeditated first degree
murder pursuant to A.R.S. § 13-1105(A)(1). 1 Id. ¶ 8. It then found three
aggravating factors:

(1) Rushing had been previously convicted of another offense
for which life imprisonment or death could be or had been
imposed, see A.R.S. § 13-751(F)(1); (2) Rushing committed the
offense in an especially heinous or depraved manner, see id.
§ 13-751(F)(6); and (3) Rushing committed the offense while

* Vice Chief Justice John R. Lopez IV and Justice William G. Montgomery
are recused from this matter.
1 We cite the current versions of statutes unless they have materially
changed since Rushing committed the offense.
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 STATE V. RUSHING
Opinion of the Court

in the custody of the state department of corrections, see id.
§ 13-751(F)(7)(a).

Id. After reviewing the mitigating evidence, the jury found that death was
the appropriate sentence. Id. at 216–17 ¶ 8.

¶4 On appeal, we affirmed Rushing’s conviction and found no
errors in the trial’s aggravation phase. See id. at 216 ¶ 1, 220–21 ¶¶ 32–35.
But to comply with Simmons v. South Carolina, 512 U.S. 154 (1994), and Lynch
v. Arizona, 578 U.S. 613 (2016), we vacated the death sentence and remanded
for a new penalty phase proceeding. Rushing, 243 Ariz. at 216 ¶ 1, 221–23
¶¶ 36–44.

¶5 On remand, Rushing waived his right to counsel and his right
to present mitigating evidence after the trial court ensured that he waived
these rights knowingly, intelligently, and voluntarily. During the ten-day
penalty phase trial, Rushing had the assistance of advisory counsel. But
he did not make an opening statement, present mitigating evidence,
cross-examine witnesses, present a rebuttal case, make a closing argument,
or make a statement in allocution. At the close of evidence, the jury
returned a verdict finding that death was the appropriate sentence. The
court imposed the sentence, and this automatic appeal followed. We have
jurisdiction under article 6, section 5(3) of the Arizona Constitution and
A.R.S. § 13-4031.

DISCUSSION

A. The Fact Rushing Was Visibly Restrained Before The Jury Does Not
Require A New Trial.

1. Rushing did not object to wearing visible restraints.

¶6 At a pretrial status conference, Rushing informed the court he
wanted to wear his orange jail-issued jumpsuit rather than dress in civilian
clothes. The judge urged him to reconsider, warning the jury might react
negatively. Rushing acknowledged potential prejudice but said it would
feel disingenuous to wear street clothes after twenty-five years in custody.
At the prosecutor’s request, the court found that Rushing knowingly,
intelligently, and voluntarily waived his right to “dress out” in civilian
clothes.

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Opinion of the Court

¶7 The discussion then turned to restraints. A sheriff’s deputy
stated Rushing would wear a standard leg brace and might also wear an
“FTO belt.” 2 The judge observed that Rushing had never misbehaved in
his courtroom, and Rushing said he would remain at the defense table
throughout trial.

¶8 At a later status conference, the court noted that the sheriff’s
office planned to cuff Rushing’s left hand to a chain connected to a leather
waist belt while leaving his right hand free. When asked, Rushing stated
he was “fine” with the arrangement.

¶9 The record contains limited detail about what restraints were
used before the jury and their visibility. 3 A trial video shows Rushing
with a leather belt over his jumpsuit, left wrist cuffed, and with limited
range of motion, though both hands were functional (for example, he used
both to put on glasses). Except when standing for the entry of the judge
or jurors, he remained seated throughout trial at the table farthest from the
jury, flanked by advisory counsel; his legs were not visible. At oral
argument before us, defense counsel stated Rushing also wore leg shackles
that were audible but not visible to the jury. But the record does not reflect
whether Rushing wore leg shackles or, if he did, whether the jury was
aware of them. Notably, the State does not dispute that Rushing was
visibly restrained in some way.

¶10 On the first day of trial, the prosecutor asked the court to
formally justify using visible restraints. The judge initially responded that
the restraints were Rushing’s own choice, apparently considering them part
of his jail garb. But after the prosecutor pushed for a secondary
justification, the judge cited unspecified “security concerns” and stated he
would have imposed some form of restraint even if Rushing wore civilian
clothes. He reiterated that Rushing had chosen not to dress out, despite
repeated advisement.

¶11 The judge then asked whether Rushing objected to “how [he
was] being secured.” Rushing responded that it felt “arbitrary based on

2 The record does not contain a description of an “FTO belt.”

3 When ruling on whether and what type of restraints can be used in front
of a jury, trial judges should ensure the record is clear about the type of
restraints being used and their visibility to jurors.
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 STATE V. RUSHING
Opinion of the Court

the color of the clothing,” but added, “I don’t want to turn it into an
appellate issue.” The judge, referencing Rushing’s prior murder
conviction and the possibility of a death sentence, concluded restraints
were warranted regardless of clothing choice. When asked about
restraints a final time, Rushing confirmed he had no objection.

2. We review for fundamental error.

¶12 Rushing argues the trial court violated his due process rights
by allowing him to be visibly restrained before the jury. The parties
dispute the applicable standard of review—harmless error or fundamental
error—with Rushing favoring the former. He claims he objected by telling
the court the restraints seemed “arbitrary based on the color of the
clothing.” The State counters this was not an objection and urges review
for fundamental error.

¶13 We agree with the State. Despite multiple opportunities,
Rushing never objected to the restraints. His statement about arbitrariness
was an observation, not an objection—further clarified by his follow-up
comment, “I don’t want to turn it into an appellate issue.” When the court
later asked if he objected to “any of the other restraints,” he answered,
“[n]o.” 4 Although a defendant need not use the word “objection,” he must
show a clear intent to object to give the prosecutor and the court a chance
to develop the record and rectify possible error. See State v. Teran, 253
Ariz. 165, 172–73 ¶¶ 25–26 (App. 2022). Rushing instead stated he was
“fine” with the restraints at the pretrial conference and reaffirmed at trial
he had no objection.

¶14 Because Rushing failed to object to the use of visible
restraints, we review for fundamental error. See State v. Escalante, 245
Ariz. 135, 140 ¶ 12 (2018); State v. Dixon, 226 Ariz. 545, 551 ¶ 24 (2011).
Under fundamental error review, the defendant bears the burden of
proving that trial error occurred, the error was fundamental, and he was
prejudiced by the error. Escalante, 245 Ariz. at 142 ¶ 21.

¶15 A defendant demonstrates that an error was fundamental by
establishing one of three prongs: “(1) the error went to the foundation of
the case, (2) the error took from the defendant a right essential to his

4 The record does not reflect what “other restraints” were discussed. If
Rushing’s appellate counsel is correct, this may refer to the leg shackles.
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 STATE V. RUSHING
Opinion of the Court

defense, or (3) the error was so egregious that he could not possibly have
received a fair trial.” Id. (emphasis in original). “If the defendant
establishes fundamental error under prongs one or two, he must make a
separate showing of prejudice” by demonstrating that “without the error, a
reasonable jury could have plausibly and intelligently returned a different
verdict.” Id. at 142 ¶ 21, 144 ¶¶ 29–31. But if the defendant establishes
fundamental error under the third prong, “he has shown both fundamental
error and prejudice, and a new trial must be granted.” Id. at 142 ¶ 21.

3. The trial court erred by allowing visible restraints.

¶16 Rushing argues the trial court erred by (1) failing to make
constitutionally required, case-specific findings to justify using visible
restraints, and (2) not ordering concealed restraints even if some level of
restraint was warranted. The State counters—without elaboration—that
restraints were justified by unspecified safety concerns and that the court
had no obligation to use the least visible restraints.

¶17 The due process guarantees of the Fifth and Fourteenth
Amendments prohibit routine use of visible restraints during the penalty
phase of a trial. See Deck v. Missouri, 544 U.S. 622, 626–27, 632 (2005).
Their use implies that the judge viewed the defendant as dangerous,
thereby undermining the jury’s ability to accurately weigh all
considerations and determine whether a defendant deserves death. See id.
at 633. As noted in Deck, the use of visible restraints can be a “thumb [on]
death’s side of the scale.” Id. (alteration in original) (quoting Sochor v.
Florida, 504 U.S. 527, 532 (1992)). Thus, “courts cannot routinely place
defendants in shackles or other physical restraints visible to the jury during
the penalty phase of a capital proceeding” unless case-specific “special
circumstances,” such as “special security needs or escape risks” related to
the defendant, call for shackling. Id.

¶18 This Court’s opinion in State v. Gomez, 211 Ariz. 494 (2005), is
instructive. There, defendant Gomez represented himself during the
aggravation and penalty phases while wearing jail garb. Id. at 502 ¶ 39.
Over Gomez’s objection, the trial court required him to wear shackles
before the jury because jail policy required it for all defendants not dressed
in civilian clothes. Id. at 502 ¶ 39, 504 ¶ 48. We found this an insufficient
justification for using visible restraints because it “is clearly not the kind of
‘case specific’ determination of ‘particular concerns’ that Deck requires.”
Id. at 504 ¶ 49; see also Dixon, 226 Ariz. at 551 ¶ 25 (stating that “[a] trial

6
 STATE V. RUSHING
Opinion of the Court

judge ‘must have grounds for ordering restraints and should not simply
defer to the prosecutor’s request, a sheriff’s department’s policy, or security
personnel’s preference for the use of restraints.’” (quoting State v. Cruz, 218
Ariz. 149, 168 ¶ 119 (2008))); cf. State v. Benson, 232 Ariz. 452, 461 ¶ 30 (2013)
(upholding a trial court’s finding of case-specific concerns warranting
non-visible restraints at a capital trial where the court had relied on an
“individualized security risk assessment” of the defendant, “the potential
for imposition of the death penalty, the layout of the particular courtroom
and building,” and the defendant’s “admissions to police that he had
strangled the victims with his hands after losing his temper”), abrogated in
part on other grounds as recognized by Cruz v. Arizona, 598 U.S. 17 (2023).
Because the shackling error was not harmless beyond a reasonable doubt,
we vacated Gomez’s death sentence and remanded for new sentencing
proceedings. See Gomez, 211 Ariz. at 504–05 ¶ 51.

¶19 Here, the trial court cited Rushing’s prior murder conviction
and current capital conviction to justify using visible restraints. The judge
may also have deferred to the sheriff’s policy regarding jail garb, though
that is unclear. Regardless, neither rationale satisfies the requirements set
forth in Deck, which mandate case-specific findings—for example, a
security or escape risk—beyond a defendant’s criminal history or
institutional policy. See Deck, 544 U.S. at 633; Gomez, 211 Ariz. at 504
¶¶ 47–49; Dixon, 226 Ariz. at 551–52 ¶¶ 25–26.

¶20 Nothing in the record suggests that Rushing posed a security
or escape risk in the courtroom. The judge even acknowledged that
Rushing had “never misbehaved in [his] courtroom.” The only
justification was a generalized reference to “security concerns.” But as in
Deck, the court failed to articulate a specific reason for its concern or explain
why non-visible restraints were not used. See Deck, 544 U.S. at 634–35;
Benson, 232 Ariz. at 461–62 ¶¶ 28–32.

¶21 The State’s reliance on State v. Lee, 189 Ariz. 608 (1997), is
misplaced. In Lee, visible restraints were warranted in large part because
the defendant had attempted to escape from a holding cell before the first
day of trial and assaulted a deputy—circumstances dissimilar to this case.
See id. at 617. Besides, Lee predates Deck and Gomez, diminishing its
persuasive value.

¶22 For these reasons, the trial court erred by permitting visible
restraints without sufficient justification supported by the record.
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 STATE V. RUSHING
Opinion of the Court

Rushing has met his burden of showing constitutional error. Thus, we
need not decide whether a judge has an obligation to order the least visible
means of restraint if the judge determines that restraints are needed.

4. Rushing has not shown fundamental, reversible error.

¶23 Rushing primarily argues that the visible restraints
constituted fundamental error under the third prong of Escalante’s second
step. He relies on Deck’s observations that shackling is “inherently
prejudicial” and undermines the presumption of innocence and the fairness
of the factfinding process by suggesting to the jury that the defendant is a
danger to society. See 544 U.S. at 630, 635 (quoting Holbrook v. Flynn, 475
U.S. 560, 568 (1986)). Thus, he argues that using restraints was “so
egregious that he could not possibly have received a fair trial,” thereby
automatically causing prejudice and requiring a new trial. See Escalante,
245 Ariz. at 142 ¶ 21. We disagree.

¶24 Despite the inherent prejudice emanating from visual
restraints, Deck recognized that a visually restrained defendant could still
receive a fair trial. See 544 U.S. at 632. Specifically, it permitted use of
visible restraints if justified by circumstances like courtroom security. Id.
And the Court concluded that even if visible restraints lacked justification,
a new trial is not warranted if the prosecution “prove[s] ‘beyond a
reasonable doubt that the [shackling] error complained of did not
contribute to the verdict obtained.’” Id. at 635 (second alteration in
original) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). These
conclusions are inconsistent with Rushing’s argument that visible shackling
is “so egregious” that a new trial is always required. See Escalante, 245
Ariz. at 142 ¶ 21. Prong three of Escalante’s second step does not apply
here.

¶25 Rushing also argues that the trial court’s error was
fundamental under Escalante’s first prong because visible shackling went to
the foundation of the case. We need not decide this issue because, even
assuming Rushing proved fundamental error under prong one, the use of
visible restraints did not result in prejudice warranting a new trial.
Critically, Deck was a harmless-error-review case. But because we review
for fundamental error, to receive a new penalty phase trial Rushing must
demonstrate separate prejudice—specifically, that “without the error, a
reasonable jury could have plausibly and intelligently returned a different
verdict.” See id. at 144 ¶¶ 29–31.
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 STATE V. RUSHING
Opinion of the Court

¶26 Rushing contends the visible restraints prejudiced him
because, in the absence of any mitigating evidence, his appearance and
treatment by the justice system took on heightened significance. He
contends the restraints undermined his ability to “humanize himself
through demeanor and presence.” We reject this argument.

¶27 Notably, Rushing presented no mitigating evidence to
counter three significant aggravating factors. He appeared before the jury
in jail-issued clothing, which signaled dangerousness even without
restraints. See Estelle v. Williams, 425 U.S. 501, 504–05 (1976) (recognizing
that jail garb provides a constant reminder of the accused’s condition and
may affect a juror’s judgment). He chose not to address the jury or even
speak by cross-examining witnesses, raising objections, or presenting
mitigating evidence. Aside from responding briefly to the judge’s
questions, he remained a silent figure in jail garb at counsel table. Any
lack of “humanization” largely resulted from these decisions coupled with
his convictions for two horrific murders. 5 We cannot conclude that the
partial restraint of one hand or the sound of shackles, assuming they
existed, created any separate prejudice. Through his choices, Rushing had
already placed a “thumb [on] death’s side of the scale,” and the restraints
did not add meaningful weight. See Deck, 544 U.S. at 633 (alteration in
original) (quoting Sochor, 504 U.S. at 532). Regardless, the court instructed
the jury not to consider Rushing’s decision not to dress out, and while no
separate instruction was given regarding restraints, the jury may have
viewed them as part of the jail garb. See State v. Strong, 258 Ariz. 184, 212
¶ 124 (2024) (“We presume the jury follows the court’s instructions.”).

¶28 Under these circumstances, Rushing has not shown that the
visible restraints tipped the balance and that, without them, a reasonable
jury could have plausibly and intelligently recommended a life sentence.
See Escalante, 245 Ariz. at 144 ¶¶ 29–31. Accordingly, he has not
established prejudicial, fundamental error, and we reject his claim.

B. Rushing Is Not Entitled To Appellate Relief From His Decision Not
To Present Mitigating Evidence To The Jury.

¶29 Rushing argues the trial court erred by accepting his waiver
of the right to present mitigating evidence. He does not challenge the

5 At the time of the murder in this case, Rushing was serving a prison
sentence for killing his stepfather. See infra ¶ 59.
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 STATE V. RUSHING
Opinion of the Court

court’s finding that his waiver was knowing, intelligent, and voluntary.
Rather, he asserts that by not ensuring the jury was presented with all
mitigating evidence, the court violated his rights to due process, to a fair
trial, and to be free from cruel and unusual punishment, as guaranteed by
the Fifth, Eighth, and Fourteenth Amendments to the United States
Constitution. Rushing further argues that consistent with his Sixth
Amendment right of self-representation and the public and societal interest
in the fair administration of the death penalty, the trial court erred by not
constructing an alternative way to present mitigating evidence, like
appointing a neutral third party to present that evidence.

¶30 We find Rushing invited any error, and he is therefore
precluded from obtaining relief. See State v. Allen, 253 Ariz. 306, 343 ¶ 122
(2022) (stating that inviting an error precludes appellate review). “The
purpose of the [invited error] doctrine is to prevent a party from ‘inject[ing]
error in the record and then profit[ing] from it on appeal.’” State v. Logan, 200 Ariz. 564, 566 ¶ 11 (2001) (second and third alterations in original)
(quoting State v. Tassler, 159 Ariz. 183, 185 (App. 1988)). Here, Rushing
knowingly, intelligently, and voluntarily waived presenting mitigating
evidence. He does not contest that. He cannot now complain that the
trial court erred by accepting that waiver rather than interfering with his
self-representation by requiring a presentation of mitigating evidence. See
Ripkowski v. State, 61 S.W.3d 378, 389 (Tex. Crim. App. 2001) (“Because
appellant requested that the mitigation issue be omitted, he cannot now
complain about the trial court’s alleged lack of authority to withdraw the
issue from the jury’s consideration.”); Adkins v. State, 930 So. 2d 524, 539–40
(Ala. Crim. App. 2001) (“We join the majority of jurisdictions that have
considered this issue and hold that a defendant is estopped from raising a
claim of ineffective assistance of counsel for counsel’s failure to present
mitigating evidence when the defendant waived the presentation of
mitigating evidence.”).

¶31 Alternately, even if we reviewed for fundamental error, as
Rushing asks, we would not find error. See Escalante, 245 Ariz. at 142 ¶ 21
(explaining that under fundamental error review, the defendant must first
establish the trial court erred). This Court has “repeatedly and
consistently held that competent defendants may constitutionally waive the
presentation of mitigating evidence, so long as they do so knowingly,
voluntarily, and intelligently.” State v. Montoya, 258 Ariz. 128, 161 ¶ 100
(2024); see also State v. Riley, 248 Ariz. 154, 198–201 ¶¶ 188–202 (2020); State
v. Gunches, 240 Ariz. 198, 203–04 ¶¶ 15–20 (2016); State v. Hausner, 230 Ariz.
10
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Opinion of the Court

60, 84–86 ¶¶ 116–22 (2012). And we have refused to interfere with a
defendant’s constitutional right to self-represent by requiring either the
defense or a third party to present mitigating evidence over the defendant’s
objection. See Hausner, 230 Ariz. at 85 ¶ 119; Riley, 248 Ariz. at 200–01
¶¶ 197, 199. Rushing has failed to demonstrate that those cases are
“clearly erroneous or manifestly wrong” and should therefore be
overruled. See Montoya, 258 Ariz. at 161 ¶ 100 (quoting Laurence v. Salt
River Project Agric. Improvement & Power Dist., 255 Ariz. 95, 100 ¶ 17 (2023)).

C. The Trial Court Did Not Err By Refusing To Give Rushing’s
Proposed Jury Instructions.

¶32 Rushing argues the trial court violated his rights under the
Fifth, Eighth, and Fourteenth Amendments, as well as article 2, sections 4,
15, and 24 of the Arizona Constitution, by rejecting nearly all his proposed
jury instructions. The court provided the parties with proposed jury
instructions based on the Revised Arizona Jury Instructions (“RAJIs”) for
penalty phase proceedings. 6 Rushing suggested additions and deletions
to those instructions, and the court adopted some. 7 It rejected the rest with
little or no explanation or by saying the suggested language was not in a
RAJI.

¶33 We review the trial court’s refusal to give a requested jury
instruction for an abuse of discretion. Allen, 253 Ariz. at 349 ¶ 152; see also
State v. Bolton, 182 Ariz. 290, 309 (1995) (stating in a capital case that we will
not upset a trial court’s decision not to give a requested instruction “absent
a clear abuse of [the court’s] discretion”). The court abused its discretion
if the refusal to give an instruction was “clearly untenable, legally incorrect,

6 The State Bar of Arizona Criminal Jury Instruction Committee created
the RAJIs. See State v. Miller, 251 Ariz. 99, 103 ¶ 13 (2021). Although we
have not sanctioned the RAJIs, we recognize that the legal profession views
them as accurate explanations of the law. See id.

7 Rushing’s proposed jury instructions are not included in the record on
appeal. However, in an appendix to his opening brief, he provides his
requested amendments to the trial court’s proposed final instructions,
along with an affidavit from one of his advisory trial counsel. According
to counsel, she emailed the document to the trial judge’s judicial assistant.
The State does not dispute that the trial court considered these proposed
instructions.
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 STATE V. RUSHING
Opinion of the Court

or amount[ed] to a denial of justice.” State v. Chapple, 135 Ariz. 281, 297
n.18 (1983), superseded by statute on other grounds. But “we assess the legal
adequacy of the instructions de novo, viewing them in their entirety.”
State v. Smith, 250 Ariz. 69, 95 ¶ 116 (2020) (quoting State v. Miller, 234 Ariz.
31, 43 ¶ 41 (2013)).

¶34 A defendant is entitled to jury instructions on defense theories
reasonably supported by the evidence. See State v. Forde, 233 Ariz. 543, 566
¶ 91 (2014); State v. Hoskins, 199 Ariz. 127, 146 ¶ 78 (2000). But when the
jury is properly instructed on the law, the court is not required to provide
additional instructions that simply reiterate or enlarge instructions in the
defendant’s preferred language. See Forde, 233 Ariz. at 566 ¶ 91; Hoskins,
199 Ariz. at 146 ¶ 78. Importantly, jury instructions cannot “mislead the
jury in any way and must give the jury an understanding of the issues.”
Teran, 253 Ariz. at 170 ¶ 12 (quoting State v. Noriega, 187 Ariz. 282, 284 (App.
1996)).

1. RAJIs

¶35 Rushing first argues the trial court erred by rejecting
proposed instructions because they were not a RAJI. He asserts that the
court’s “formulaic response” when ruling demonstrates it did not consider
his due process right to support his theory of defense against the death
penalty. Rushing further argues that this “global rejection” of his
proposed instructions obstructed his right to have the jury consider all
relevant mitigating evidence. We are unpersuaded.

¶36 First, we are unaware of any authority requiring a trial court
to explain why it rejected a proposed instruction, and Rushing does not
point to any authority. Second, the court did not blindly adhere to the
RAJIs or “globally reject” Rushing’s requests. Rather, it considered
Rushing’s proposed instructions and used some of his suggested language.
Third, although the RAJIs are not infallible, they are generally considered
to accurately state the law. See Miller, 251 Ariz. at 103 ¶ 13. Thus, when
the judge here said the proposed language was not in the RAJIs, he
effectively communicated that it was either inaccurate or already covered
by some other instruction. The trial court did not err by providing this
short-hand justification throughout. It would have been better, however,
if the court had elaborated on its reasons for rejecting Rushing’s proposed
instructions by explaining, for example, they were inaccurate or repetitive.

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Opinion of the Court

Even brief explanations assist appellate review, and we urge trial court
judges to explain their reasoning for rejected proposed jury instructions.

¶37 Our focus is whether the court acted within its discretion by
declining to give Rushing’s proposed instructions. We group these
proposed instructions according to their subject matter and address each in
turn.
2. Specific proposed jury instructions

a. Juror autonomy and unanimity

¶38 Rushing proposed interspersing the following language
throughout the instructions, emphasizing that each juror must
independently determine the appropriate sentence, resist any form of
coercion or pressure, and understand that any verdict must be unanimous:

1) “Meaning any one juror can choose life and there will be no
death verdict from this jury.”

2) “[Y]ou do not need to unanimously agree on a particular
mitigating circumstance because it is an individual, moral
determination, based off your own sense of morality and
mercy.”

3) “A juror is never required to, nor can they be compelled to
justify, explain, or put into words a reason for his or her vote.”

4) “Each juror’s vote will be respected and accepted by the
judge, the prosecutor, and the State of Arizona.”

5) “The law does not provide an answer to this personal,
individual, moral question. All juror’s feelings and reasons
for voting for a life sentence are entitled to respect.”

6) “However, the State of Arizona is always satisfied with a life
sentence in this case, in any case and even in the worst case
you can imagine. If you cannot unanimously agree, please do
not speculate on the outcome of this case. You will have done
your job as jurors under any of these three scenarios.”

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Opinion of the Court

7) “The word deliberate simply means to thoughtfully consider
the evidence in order to make your own, individual
determination as to whether the Defendant should spend the
rest of his life in prison or be sentenced to death.”

8) “Deliberations are not a means to bully or gang up on fellow
jury members to impose one view over another. Each juror
has the right to bring their individual, moral determination as
to the Defendant’s sentence into the courtroom and have it
heard. If deliberations do turn contentious, any juror has the
right to knock on the jury room door and tell the bailiff
deliberations are over.”

He argues the trial court erred by refusing to include this language in the
instructions because it was accurate, relevant, and needed to educate and
empower a juror inclined to vote for a life sentence to resist bullying tactics
by jurors inclined to vote for a death sentence.

¶39 The trial court did not err. Proposal six misstated the law
because a life sentence is not always acceptable. Jurors were required to
impose the death sentence if they found “no mitigating circumstances
sufficiently substantial to call for leniency.” See § 13-751(E).

¶40 It was also unnecessary for the court to include the remaining
proposed language in the jury instructions. Other instructions adequately
explained in easy-to-understand language that mitigation assessment is an
individual determination; unanimity was not required to find any
mitigating circumstance; and jurors should not feel pressured to change
their honest beliefs by other jurors or to return a unanimous verdict. For
example, the court instructed:

While all 12 of the jurors in the first trial had to unanimously
agree that the State proved beyond a reasonable doubt the
existence of a statutory aggravating circumstance, you do not
need to unanimously agree on a particular mitigating
circumstance. Each one of you must decide individually
whether any mitigating circumstance exists.

....

You individually determine whether mitigation exists.

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Opinion of the Court

....

A mitigating factor that motivates one juror to vote for a
sentence of natural life in prison may be evaluated by another
juror as not having been proved or, if proved, as not
significant to the assessment of the appropriate penalty.

....

This assessment is not a mathematical one but instead must
be made in light of each juror’s individual qualitative
evaluation of the facts of the case, the severity of the
aggravating factors and the quality of the mitigating factors
found by each juror.

....

As jurors you have a duty to discuss the case with one another
and to deliberate in an effort to reach a just verdict. Each of
you must decide the case for yourself but only after you
consider the evidence impartially with your fellow jurors.
During your deliberations you should not hesitate to
re-examine your own views and change your opinion if you
become convinced that it is wrong. However, you should not
change your honest belief concerning the weight or effect of
the evidence solely because of the opinions of your fellow
jurors or for the mere purpose of returning a verdict.

Although not stated as directly as Rushing would have preferred, the court
also communicated it would respect and accept a juror’s vote:

I do not mean to indicate any opinion on the evidence or what
your verdict should be by any ruling or remark I have made
or may make. I am not allowed to express my feelings in this
case, and if I have shown any you must disregard them. You
and you alone are the triers of fact.

....

15
 STATE V. RUSHING
Opinion of the Court

It is for you, as jurors, to decide what you individually believe
is the appropriate sentence.

¶41 In sum, these instructions adequately described the
deliberative process and the jury’s role. They directed jurors to
impartially consider the evidence, examine their own views, and discuss
the evidence with fellow jurors, but decide the appropriate sentence for
themselves. Rushing’s proposed language was either misleading or
added nothing other than emphasizing existing instructions or rephrasing
these concepts “in language precisely to his liking.” Hoskins, 199 Ariz.
at 146 ¶ 78; see Forde, 233 Ariz. at 566 ¶ 91. The trial court did not err.

b. Mitigation

(i). Definition and role

¶42 Rushing asked the court to include this language to define
“mitigation” and its role in determining a sentence:

1) “Mitigation is any individual juror’s reason for a life
sentence.”

2) “A juror may lawfully vote for a life penalty even if the
defendant presents no mitigating circumstances.”

3) “Mitigation can be found from any evidence in the record
irrespective of which party presents it. Each of you must
individually determine what the mitigating factors are.
Mitigation can be something you hear, something observed in
Court, or something you feel, even if you are unable to
articulate it. Because of this, mitigation factors do not need to
be agreed upon unanimously. What may be mitigating to one
juror may not be mitigating to the other.”

Rushing contends that the proposed instructions were accurate and
necessary to clarify that mitigation may arise from any source and may
include anything a juror deems relevant, including the juror’s own
compassionate beliefs.

¶43 The court did not err by declining Rushing’s requests. The
proposed instructions misstated the law by suggesting that what
16
 STATE V. RUSHING
Opinion of the Court

constitutes mitigating evidence is limitless. Mitigating evidence must be
relevant and “includ[e] any aspect of the defendant’s character,
propensities or record and any of the circumstances of the offense.” See
§ 13-751(G); see also Smith, 250 Ariz. at 95–96 ¶ 118 (interpreting
§ 13-751(G)). And a jury cannot consider “mere sentiment, conjecture,
sympathy, passion, prejudice, public opinion or public feeling.” State v.
Carreon, 210 Ariz. 54, 70 ¶ 84 (2005) (quoting California v. Brown, 479 U.S.
538, 540 (1987)); see also Brown, 479 U.S. at 545 (O’Connor, J., concurring)
(“[T]he sentence imposed at the penalty stage should reflect a reasoned
moral response to the defendant’s background, character, and crime rather
than mere sympathy or emotion.” (emphasis omitted)).

¶44 Moreover, the accurate portions of Rushing’s proposed
instructions were encompassed in the court’s instructions and did not need
to be repeated. See Forde, 233 Ariz. at 566 ¶ 91. The court defined
“mitigating circumstances” as follows:

Mitigating circumstances are any factors that are a
basis for a natural life sentence, instead of a death sentence,
so long as they relate to any sympathetic or other aspect of the
defendant’s character, propensity, history or record, or
circumstances of the offense.

Mitigating circumstances are not an excuse or
justification for the offense but are factors that in fairness or
mercy may reduce the defendant’s moral culpability. Each
juror individually determines what significance to give to any
mitigation they find to exist.

The court also told jurors they could find mitigating evidence from any
source:
Mitigating circumstances may be found from any
evidence presented during this sentencing trial.

You should consider all of the evidence without
regard to which party presented it. Each party is entitled to
consideration of the evidence, whether produced by that
party or by another party.

....

17
 STATE V. RUSHING
Opinion of the Court

Mitigating circumstances may be offered by the
defendant or the State or be apparent from the evidence
presented during this sentencing trial.

¶45 The court did not err by declining to instruct the jury using
Rushing’s proposed language. See id.

(ii) Moral judgment

¶46 Rushing asked the court to elaborate on the moral judgment
jurors would make in sentencing, using the following language:

1) “When jurors determine whether a person should live or
die, they are making an individual moral judgment. There
is no right or wrong answer to a moral question. What is
right for one juror might not be right for another. Each
individual juror may lawfully vote for life based on any
reason that is mitigating to them.”

2) “It is based off each individual juror’s own morals,
background, and sense of mercy.”

He argues that because he did not present evidence, the jury needed this
language to assist in identifying mitigation. He asserts that his proposed
language accurately reflected the law and was not explained elsewhere in
the court’s instructions. Without it, he argues, the jurors were not told
they could vote for a life sentence for any reason they find mitigating. And
because Rushing proposed that the latter language appear at the end of an
instruction stating that jurors should not mathematically weigh
aggravating and mitigating factors and the case facts, he argues that his
language was needed to assist jurors in assigning a non-quantitative
“value” to evidence.

¶47 The trial court did not err. As previously explained, to the
extent this language suggests that mitigation is limitless or can be based
solely on sympathy or mercy, it is incorrect. See supra ¶ 43. And
although the proposed language told jurors they must make their own
decision, other instructions conveyed that information. See supra ¶ 40.
Further, the court adequately instructed the jurors about making a
reasoned, moral judgment:

18
 STATE V. RUSHING
Opinion of the Court

The law does not presume what is the appropriate
sentence. The defendant does not have the burden of proving
that natural life is the appropriate sentence. The State does not
have the burden of proving that death is the appropriate
sentence. It is for you, as jurors, to decide what you
individually believe is the appropriate sentence.

In reaching a reasoned, moral judgment about which
sentence is justified and appropriate you must decide
whether one or more of the mitigating factors is sufficiently
substantial to call for leniency. To do this you must consider
the quality and the strength of aggravating and mitigating
factors as well as the facts and circumstances of the case.

This assessment is not a mathematical one but instead
must be made in light of each juror’s individual qualitative
evaluation of the facts of the case, the severity of the
aggravating factors and the quality of the mitigating factors
found by each juror.

¶48 In sum, the trial court did not abuse its discretion by rejecting
Rushing’s proposed instructions.

D. The Trial Court Did Not Commit Fundamental, Reversible Error By
Declining To Define “Moral Culpability” For The Jury.

¶49 The trial court instructed the jury in relevant part as follows:

Mitigating circumstances are any factors that are a basis
for a natural life sentence, instead of a death sentence, so long
as they relate to any sympathetic or other aspect of the
defendant’s character, propensity, history or record, or
circumstances of the offense.

Mitigating circumstances are not an excuse or
justification for the offense but are factors that in fairness or
mercy may reduce the defendant’s moral culpability. Each
juror individually determines what significance to give to
any mitigation they find to exist.

19
 STATE V. RUSHING
Opinion of the Court

Mitigating circumstances may be offered by the
defendant or the State or be apparent from the evidence
presented during this sentencing trial. You are not required
to find that there is a connection between a mitigating
circumstance and the crime committed in order to consider
the mitigation evidence. Any connection or lack of
connection may impact the quality and strength of the
mitigation evidence.

(Emphasis added.) During deliberations, the jury sent a note asking, “Can
we get a definition of ‘moral culpability’?” The trial court informed the
parties it intended to refer the jury to the instructions rather than attempt
to define the term. When asked, Rushing said he did not object. The
court then referred the jury to the instructions.

¶50 Rushing now argues the trial court violated the Fifth, Eighth,
and Fourteenth Amendments by declining to define “moral culpability.”
He asserts that “moral culpability” is not a straightforward concept, and the
jury could not have properly understood what it meant without a
definition. Citing Simmons, he further argues the court violated his due
process rights because it failed to correct jurors’ evident misunderstanding
about the meaning of “moral culpability.” See 512 U.S. 154. Because
Rushing did not object, we review for fundamental error. See State v.
Henderson, 210 Ariz. 561, 567 ¶ 19 (2005).

¶51 “A trial court need not ‘define every phrase or word used in
the [jury] instructions, especially when they are used in their ordinary sense
and are commonly understood.’” Forde, 233 Ariz. at 564 ¶ 82 (alteration in
original) (quoting State v. Eastlack, 180 Ariz. 243, 259 (1994)). But when the
jury appears confused on a legal issue and clarity cannot be obtained from
the instructions, “the trial judge has a ‘responsibility to give the jury the
required guidance by a lucid statement of the relevant legal criteria.’”
State v. Ramirez, 178 Ariz. 116, 126 (1994) (quoting Des Jardins v. State, 551
P.2d 181, 190 (Alaska 1976)). Whether to further instruct the jury or refer
it to the instructions, however, is within the trial court’s discretion. See id.
We review the adequacy of jury instructions from the viewpoint of a
reasonable juror. See Carreon, 210 Ariz. at 70–71 ¶ 84 (citing Brown, 479
U.S. at 540).

¶52 It is a close call whether the court erred by refusing to define
“moral culpability” for the jury. Without doubt, the term is plainly
20
 STATE V. RUSHING
Opinion of the Court

understood as meaning blameworthiness according to principles of right
and wrong. Moral, Merriam-Webster, https://www.merriam-
webster.com/dictionary/moral (last visited July 14, 2025) (defining
“moral” as “of or relating to principles of right and wrong in behavior”);
Culpable, Merriam-Webster, https://www.merriam-
webster.com/dictionary/culpable (last visited July 14, 2025) (defining
“culpable” as “meriting condemnation or blame”). Thus, in context,
jurors were told that “mitigating circumstances” meant any factors that “in
fairness and mercy” made Rushing less blameworthy from a moral
viewpoint for murdering Shannon. Although the prosecutor parroted the
instruction several times in her closing argument, she did not cloud this
meaning. But people do not commonly use “moral culpability” or even
“culpability” in everyday language. The fact the jury asked its question
indicated some uncertainty—or at least disagreement—about the meaning
of “moral culpability.” Referring jurors to the instructions was unhelpful
because the instructions did not define the term. Under the circumstances,
it may have been better for the court to have given the jury the plain
meaning of the term.

¶53 But we need not determine whether the court committed
error by not answering the jury’s question because even if it did, it did not
commit fundamental error. Refusing to define “moral culpability” did not
go to the foundation of the case, did not take away a right essential to
Rushing’s defense against the death penalty, and was not so egregious that
Rushing could not have received a fair trial. See Escalante, 245 Ariz. at 142
¶ 21.

¶54 First, the jury instructions properly and clearly instructed the
jury on the legal criteria for imposing a death sentence, including an
explanation of what constitutes “mitigating circumstances.” See Allen, 253
Ariz. at 335 ¶ 199 (approving a similar instruction); State v. Kuhs, 223 Ariz.
376, 386–87 ¶¶ 53–55 (2010) (same). The court told jurors that mitigating
evidence consisted of factors related to Rushing’s character or background
or the circumstances of the offense that in “fairness and mercy” suggest a
life sentence instead of a death sentence. The court also told jurors that
mitigating evidence could come from any source and did not have to be
connected to the offense. And because the court instructed that each juror
must individually assign significance to any mitigation, it necessarily fell to
each juror to determine what factors made Rushing less blameworthy
according to that juror’s unique moral view.

21
 STATE V. RUSHING
Opinion of the Court

¶55 Second, we cannot know whether the jury’s question reflected
confusion or misunderstanding about a legal principle. See Ramirez, 178
Ariz. at 126. Rather, jurors may have sought a single definition because
they had different ideas about what it meant to be morally culpable for
murder. What constitutes “moral culpability” can differ among jurors,
and jurors may have had differing, but definite, ideas about the term’s
meaning. Thus, the case here is unlike Simmons where the instructions
and the trial court’s answer to a jury question left jurors misinformed about
the availability of parole as part of a possible life sentence. See 512 U.S.
at 170–71.

¶56 In sum, even if the trial court erred by not giving the jury the
plain meaning of “moral culpability,” it did not commit fundamental error.
Thus, the court did not violate Rushing’s Fifth, Eighth, and Fourteenth
Amendment rights because the instructions did not improperly limit what
the jury could consider as mitigating evidence. See Carreon, 210 Ariz. at 70
¶ 83.

E. Rushing Is Not Entitled To Appellate Relief Based On Alleged
Prosecutorial Error.

¶57 Rushing argues the prosecutor committed cumulative
prosecutorial error during the penalty phase by (1) intentionally
withholding mitigating evidence; and (2) misstating the law concerning
mitigating evidence in closing argument. Rushing does not assert that
either alleged error alone warrants a new penalty phase trial but instead
argues that together the errors deprived him of a fair proceeding, thus
warranting a new trial. Rushing did not raise any objection at trial, and
we therefore review for fundamental error. See State v. Hulsey, 243 Ariz.
367, 388 ¶ 88 (2018).

¶58 Prosecutorial error “broadly encompasses any conduct that
infringes a defendant’s constitutional rights. It sweeps in prosecutorial
conduct ranging from inadvertent error or innocent mistake to intentional
misconduct.” State v. Murray, 250 Ariz. 543, 548 ¶ 12 (2021) (emphasis in
original) (quoting In re Martinez, 248 Ariz. 458, 469 ¶ 45 (2020)). When a
defendant raises a claim of cumulative prosecutorial error, “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.” Montoya, 258

22
 STATE V. RUSHING
Opinion of the Court

Ariz. at 142 ¶ 10 (quoting State v. Robinson, 253 Ariz. 121, 143 ¶ 64 (2022));
see also State v. Vargas, 249 Ariz. 186, 190 ¶ 14 (2020) (to same effect).

1. The prosecutor did not improperly withhold mitigating
evidence.

¶59 At the time he killed Shannon, Rushing was serving a life
sentence for murdering his stepfather, Rudy, in 2001 by shooting him in the
back of his head while he slept beside his ex-wife. After the ex-wife was
startled awake, Rushing said he shot Rudy for sexually molesting Rushing’s
sister, Amy. Rushing repeated that justification later to another person.

¶60 During the penalty phase trial, the prosecutor called Detective
Paul Dalton, formerly with the Phoenix Police Department, to relate
Rushing’s criminal history, including Rudy’s murder. The prosecutor
tried to refute Rushing’s purported justification for killing Rudy by eliciting
testimony from Dalton about an interview with Amy in 2001:

Q. Was she specifically interviewed about what Jasper
Rushing said that Rudy had done to her?

A. Yes.

Q. Did Amy say . . . that Rudy never attempted or did
anything of a sexual nature with her?

A. That’s what she said, yes.

Q. So she denied that Rudy had ever done or attempted to do
anything sexual with her?

A. Correct.

....

Q. Did Amy give any idea why the defendant would think
she had been sexually molested or assaulted by Rudy?

A. She had an -- yes. She said that she later learned that
another sister –

23
 STATE V. RUSHING
Opinion of the Court

Q. Well, let’s talk about 2001.

A. Oh, 2001. No. Okay. I’m sorry.

Q. In 2001 during this initial investigation did Amy say that
she had no idea why Jasper Rushing would think she had
been sexually molested or assaulted by Rudy?

A. Correct, yes.

(Emphasis added.) During closing argument, the prosecutor portrayed
Rushing as believing himself “above the law,” crafting his own narrative to
justify his violence—exemplified by his decision to kill Rudy based on an
unconfirmed belief that Rudy had molested Amy.

¶61 Rushing argues the prosecutor improperly withheld
mitigating evidence by interrupting Dalton and preventing him from
telling jurors what Amy had “later learned.” Rushing surmises Dalton
would have provided “vital mitigation” supporting Rushing’s reasonable
belief that Rudy had molested Amy, but the prosecutor improperly
redirected Dalton’s testimony to avoid that result. Rushing therefore
argues this was fundamental, prejudicial error because under the Eighth
and Fourteenth Amendments, a jury cannot be prevented from hearing all
relevant mitigating evidence. See Lockett v. Ohio, 438 U.S. 586, 604 (1978)
(concluding that “the Eighth and Fourteenth Amendments require that the
sentencer, in all but the rarest kind of capital case, not be precluded from
considering, as a mitigating factor, any aspect of a defendant’s character or
record and any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death” (emphasis and footnote
omitted)); cf. Eddings v. Oklahoma, 455 U.S. 104, 113–14 (1982) (“Just as the
[s]tate may not by statute preclude the sentencer from considering any
mitigating factor, neither may the sentencer refuse to consider, as a matter
of law, any relevant mitigating evidence.” (emphasis omitted)).

¶62 We do not discern prosecutorial error. The prosecutor was
not required to introduce mitigating evidence for Rushing. See Montoya,
258 Ariz. at 161 ¶ 100 (stating the Eighth Amendment does not require that
the jury be presented with all mitigating evidence); Riley, 248 Ariz. at 200
¶ 197 (rejecting defendant’s argument that we should “require[]
prosecutors to compile comprehensive reports of potentially mitigating
evidence when a defendant refuses to present his own mitigation”). All

24
 STATE V. RUSHING
Opinion of the Court

the Eighth and Fourteenth Amendments require is that the defendant be
permitted to introduce all mitigating evidence. See Lockett, 438 U.S. at 605;
Montoya, 258 Ariz. at 161 ¶ 100. Nothing prevented Rushing from
cross-examining Dalton and asking about what Amy later learned.

¶63 Although the prosecutor did not have a duty to introduce
mitigating evidence, she did have a duty to see that Rushing received a fair
trial. See State v. Minnitt, 203 Ariz. 431, 440 ¶ 41 (2002). Thus, had she left
the jury with a false impression of the available evidence, we might agree
that the prosecutor committed error. But she did not do that. Instead,
later during Dalton’s examination she introduced an audio recording and
transcript of Amy’s statements to authorities in 2012, which explained a
basis for Rushing’s belief. Specifically, Amy said her step-sister, Justine,
had falsely told Rushing that Rudy had molested Amy. Amy also said
that Rushing never asked her whether Rudy had, in fact, molested her.

¶64 For these reasons, we conclude that the prosecutor did not
commit error by interrupting Dalton’s answer about what Amy had told
authorities.

2. The prosecutor did not misstate the law during closing
argument.

¶65 During her closing argument, the prosecutor suggested the
jury follow four steps in determining the appropriate sentence. Rushing
argues the prosecutor committed error by misstating the law during each
“step.”

¶66 A prosecutor may not misstate the law in closing arguments.
Allen, 248 Ariz. at 365 ¶ 49. To determine whether the prosecutor
misstated the law here, we consider each of the prosecutor’s statements in
context. See State v. Sanders, 245 Ariz. 113, 131 ¶¶ 78–80 (2018).

a. Step one statements

¶67 In suggesting a deliberative process, the prosecutor told
jurors they should first determine whether mitigating evidence has been
proven. She stated that mitigating evidence is proven when the fact
suggested as mitigation “is more probably true than not true,” and
cautioned that “[i]f you do not find a fact suggested as mitigation to be more
probably true than not true then you must not consider it any further.”

25
 STATE V. RUSHING
Opinion of the Court

Later, she told jurors to “[e]valuate all of the evidence when you decide
what you can or cannot believe from the defendant’s statements to
investigators, or if there is actually any mitigation proven from anything he
said.”

¶68 Rushing argues that these statements falsely suggested that
mitigating evidence was limited to evidence “specifically offered and
labeled” as mitigating or coming directly from Rushing’s statements to
investigators. We disagree. The prosecutor’s initial statement reflected
only the statutory requirement that a “defendant must prove the existence
of the mitigating circumstances by a preponderance of the evidence.”
§ 13-751(C). The second statement was made in the context of discussing
Rushing’s statements to investigators and did not suggest that any
mitigation was limited to these statements. Indeed, parroting the jury
instructions, the prosecutor told the jury that “mitigating circumstances
may be offered by the defendant or the State or be apparent from the
evidence presented at any phase of the proceedings.” The prosecutor did
not mislead the jury.

b. Step two statements

¶69 The prosecutor told jurors that any mitigating circumstance
must be “relevant.” To make that determination, she said they should ask
whether the circumstance “reduces the degree of the defendant’s moral
culpability for the murder” or “relate[s] to any sympathetic or other aspect
of the defendant’s character, propensity, history or record, or circumstance
of the offense.”

¶70 Rushing argues these statements were incorrect and
misleading because they suggested (1) a life sentence could not be entered
if no mitigation existed; and (2) mitigating evidence must be relevant. We
disagree. As previously explained, a death sentence is required if no
mitigating evidence exists, and any mitigating evidence must be relevant.
See supra ¶¶ 39, 43. The prosecutor did not misstate the law.

c. Step three and four statements

¶71 The prosecutor finally told the jury that if it found mitigating
evidence, it must “decide how much value to give that particular fact.”
She said the jury must then determine if the evidence is “enough” to call for
leniency. She argued that “[i]f all of you decide there are no mitigating

26
 STATE V. RUSHING
Opinion of the Court

facts” or that there is “no mitigation sufficiently substantial to call for
leniency,” the jury “must impose the death penalty.”

¶72 Rushing argues these statements were improper for several
reasons. He contends that by asking jurors to assess the value of each
mitigating circumstance and then determine whether it is “enough,” the
prosecutor improperly suggested that jurors should weigh aggravating and
mitigating factors against each other, and that they should evaluate each
mitigating factor in isolation rather than consider all mitigation collectively
against the aggravators. He also argues that by telling jurors they must
impose the death penalty if all jurors find no or insufficient mitigation, the
prosecutor incorrectly implied that jurors must unanimously agree on
whether a particular piece of evidence is mitigating. We disagree.

¶73 First, we acknowledge that referring to the “evaluation and
assessment of mitigating circumstances as a ‘weighing’ process” is
“technically correct” but “might confuse or mislead jurors.” State ex rel.
Thomas v. Granville, 211 Ariz. 468, 473 ¶¶ 20–21 (2005). But the prosecutor
never told jurors to weigh mitigating circumstances against aggravating
factors. Instead, she told jurors they “must consider the quality and the
strength of the aggravating and mitigating factors,” explaining that this
assessment is “not a mathematical one” but a judgment based on “each
juror’s individual, qualitative evaluation of the facts of the case, the severity
of the aggravating factors and the quality of the mitigating factors found by
each juror.” This argument aligned with the jury instructions and was
legally correct. See id. at 473 ¶ 21 (describing the jury’s assessment of
mitigating evidence as based on “[each] juror’s assessment of the quality
and significance of the mitigating evidence”).

¶74 Second, the prosecutor did not suggest that jurors must
unanimously agree on individual mitigating circumstances. Rather, she
repeatedly referred to the assessment of a given mitigating circumstance as
an individual determination. For instance, she told the jurors “[y]ou
individually determine whether mitigation exists in light of the aggravating
circumstances found” and “individually determine if the mitigation is
sufficiently substantial to call for leniency.” Then she explained that what
is “sufficiently substantial” depends on “the opinion of the individual juror
to persuade that juror to vote for a sentence of life.” The prosecutor did
not misstate the law or mislead jurors.

27
 STATE V. RUSHING
Opinion of the Court

¶75 In sum, the prosecutor’s comments at steps three and four
accurately stated the law. Therefore, the prosecutor did not err in making
these comments.

3. We need not review for cumulative error.

¶76 Because Rushing has failed to establish a single instance of
prosecutorial error, there can be no cumulative error. See Montoya, 258
Ariz. at 151 ¶ 54 (finding defendant was not cumulatively deprived of a fair
trial because he failed to establish a single instance of prosecutorial error).

F. We Do Not Address Rushing’s Other, Undeveloped Constitutional
Claims.

¶77 Rushing lists twenty-three other constitutional claims he
acknowledges this Court has previously rejected but that he seeks to
preserve for federal review. We decline to revisit these claims.

CONCLUSION

¶78 We affirm Rushing’s death sentence.

28