State of Arizona v. Edward James Rose , 231 Ariz. 500 ( 2013 )

SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0362-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2007-149013
EDWARD JAMES ROSE, )
)
Appellant. )
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Paul J. McMurdie, Judge
AFFIRMED
________________________________________________________________
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation
Jeffrey A. Zick, Section Chief Counsel Phoenix
Criminal Appeals/Capital Litigation
Laura Chiasson, Assistant Attorney General Tucson
Attorneys for State of Arizona
THOMAS A. GORMAN ATTORNEY AT LAW Sedona
By Thomas A. Gorman
Attorney for Edward James Rose
________________________________________________________________
P E L A N D E R, Justice
¶1 After fatally shooting a police officer, Edward James
Rose pleaded guilty to two counts of first degree murder for
that killing and to eight other felony counts. He was sentenced
to death on the murder counts and to prison terms on the other
convictions. We have jurisdiction over his automatic appeal
1
under Article 6, Section 5(3) of the Arizona Constitution and
A.R.S. §§ 13-4031 and -4033(A)(1).
I. FACTUAL AND PROCEDURAL BACKGROUND
¶2 On July 25, 2007, Rose stole a truck that contained a
company’s checkbook. Over the next three days, Rose conspired
with others to forge and cash checks from the checkbook.
¶3 On July 27, Rose and his girlfriend smoked
methamphetamine and drank beer most of the day. That night,
they went out to cash forged checks. Rose had said earlier that
day he would shoot anyone who tried to stop him. Armed with a
gun, Rose entered a check cashing store and presented one of the
company’s checks to the cashier. She discovered the check was
forged and called the police.
¶4 Shortly thereafter, Officer George Cortez, Jr. of the
Phoenix Police Department arrived. The officer entered the
store, approached Rose, and began to handcuff him. After his
left hand was cuffed, Rose pulled out his gun and shot the
officer twice, killing him. Rose ran from the store with the
handcuffs dangling from his wrist. Surveillance cameras
captured the shooting.
¶5 Early the next morning, officers went to a house where
they suspected Rose was hiding. They eventually entered the
house, discovered Rose hiding in a closet, and arrested him.
¶6 The State charged Rose with first degree murder of a
2
law enforcement officer, first degree felony murder, and other
noncapital felonies. On the day Rose’s trial was to begin, he
pleaded guilty to all charges. After finding four aggravating
factors in the aggravation phase, and receiving evidence in the
penalty phase, the jury sentenced Rose to death.
II. ISSUES ON APPEAL
A. Arraignment and absence from jury prescreening
¶7 Rose argues that he was denied an arraignment and the
ability to participate in the first three days of jury selection
in violation of the Fifth, Sixth, and Fourteenth Amendments.
Because Rose did not object below, we review for fundamental
error. State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d
601, 607 (2005).
¶8 Contrary to Rose’s first contention, the record
indicates he was arraigned on August 17, 2007, when he entered a
plea of “not guilty to all charges.” A week earlier, he and his
counsel received notice of the indictment, including the two
first degree murder counts. He did not object below to any
alleged flaws in the arraignment process, and he has not
established any error in that process.
¶9 Rose’s argument regarding his absence from the initial
portions of jury selection is also meritless. A defendant is
entitled to be present at all phases of a trial, including jury
selection. Ariz. R. Crim. P. 19.2; State v. Garcia-Contreras,
3
191 Ariz. 144, 146 ¶ 8, 953 P.2d 536, 538 (1998). But a
defendant “may waive the right to be present at any proceeding
by voluntarily absenting himself or herself from it.” Ariz. R.
Crim. P. 9.1. And “a trial court may rely on counsel’s waiver
of a defendant’s right to be present” in certain circumstances;
“personal waiver by the defendant is not required.” State v.
Canion, 199 Ariz. 227, 234 ¶ 26, 16 P.3d 788, 795 (App. 2000);
see also State v. Collins, 133 Ariz. 20, 23, 648 P.2d 135, 138
(App. 1982) (“Unless the circumstances are exceptional, a
defendant is bound by his counsel’s waiver of his constitutional
rights.” (citing Henry v. Mississippi, 379 U.S. 443 (1965);
State v. Rodriguez, 126 Ariz. 28, 612 P.2d 484 (1980))).
¶10 The record reflects that Rose, through counsel, waived
his presence for the first two days of jury selection, which
involved the trial judge “time screening” potential jurors on
the anticipated length of trial and their availability. Rose
was under a medical quarantine for at least the first day, did
not object to his absence on either day, and presents no
exceptional circumstances that would render ineffective his
attorney’s waiver. On the third day, when the parties merely
stipulated to which jurors did not need to return for additional
questioning, the court granted defense counsel time to contact
Rose before proceeding. Rose specifically told his attorney
that he waived his presence. Rose was present on the next trial
4
day and throughout the rest of jury selection and trial. Even
if we assume that Rose, absent his waiver, “was entitled to
attend the [juror] prescreening process,” State v. Morris, 215
Ariz. 324, 335 ¶ 45, 160 P.3d 203, 214 (2007), no fundamental
error arose regarding Rose’s absence from three days of that
process.
B. Exclusion of non-English speaking jurors
¶11 Rose argues that the exclusion of non-English speaking
jurors violated his Sixth and Fourteenth Amendment rights and
that A.R.S. § 21-202(B)(3) is unconstitutional. That statute
provides that persons “shall be excused temporarily from service
as a juror if the judge or jury commissioner finds” that “[t]he
prospective juror is not currently capable of understanding the
English language.” We have previously considered and rejected
the arguments Rose makes. See State v. Cota, 229 Ariz. 136, 143
¶¶ 13–16, 272 P.3d 1027, 1034 (2012).
C. Voluntariness of guilty plea
¶12 Rose argues on multiple grounds that his guilty plea
was involuntary and not made knowingly and intelligently. This
Court reviews a trial court’s acceptance of a guilty plea for an
abuse of discretion. State v. Djerf, 191 Ariz. 583, 594 ¶ 35,
959 P.2d 1274, 1285 (1998). We “must determine if reasonable
evidence supports the finding that the defendant was competent
to enter the plea” and will consider the facts “in a light most
5
favorable to sustaining the trial court’s finding.” Id.
(internal quotation marks omitted).
¶13 When accepting a guilty plea, the trial judge must
ensure that the plea is entered voluntarily, intelligently, and
knowingly. Id. To ensure this, Arizona Rule of Criminal
Procedure 17.2 requires the court to “address the defendant
personally in open court” and inform the defendant fully of his
or her rights and the consequences of pleading guilty. “What is
at stake for an accused facing death or imprisonment demands the
utmost solicitude of which courts are capable in canvassing the
matter with the accused to make sure he has a full understanding
of what the plea connotes and of its consequence.” Boykin v.
Alabama, 395 U.S. 238, 243-44 (1969). The trial court must
ensure that the defendant understands:
(1) the nature of the charges, (2) the nature and
range of possible sentences, including any special
conditions, (3) the constitutional rights waived by
pleading guilty, (4) the right to plead not guilty,
and (5) that the right to appeal is also waived if the
defendant is not sentenced to death.
Djerf, 191 Ariz. at 594 ¶ 36, 959 P.2d at 1285; see also Ariz.
R. Crim. P. 17.2; Boykin, 395 U.S. at 243.
¶14 Rose first argues his plea was not voluntary because
he was not arraigned and never received actual notice of the
capital offenses to which he pleaded guilty. But as discussed
above, supra ¶ 8, the record shows that, after receiving notice
6
of the indictment, Rose was arraigned and pleaded “not guilty to
all charges.”
¶15 At the subsequent change-of-plea proceeding, Rose
acknowledged he had discussed with his counsel “the pros and
cons” of pleading guilty and that it was his “free choice to
plead guilty to these charges.” The trial court expressly told
Rose he had “several charges pending” against him, “with the
most serious charges” being the two “first degree murder”
counts, for which he could face “a death penalty.” The court
later repeated the first degree murder charges before asking
Rose what his plea on each count was, to which he responded
“[g]uilty.”
¶16 These facts distinguish this case from Henderson v.
Morgan, 426 U.S. 637 (1976), on which Rose relies. There, the
defendant pleaded guilty to second degree murder without any
“indication that the nature of the offense had ever been
discussed with [him].” Id. at 642–43. No one informed the
defendant that intent, an element that he explicitly denied, was
required for the charged offense. Id. at 643.
¶17 Here, in contrast, Rose’s attorney avowed, and Rose
acknowledged, that she had discussed the charges and the
consequences of pleading guilty with Rose, who did not dispute
the factual basis of his plea or whether the required mens rea
was sufficiently established. The trial court had no obligation
7
to advise Rose of each specific element of his crimes “[a]bsent
the unique circumstances of Henderson v. Morgan.” State v.
Devine, 114 Ariz. 574, 575, 562 P.2d 1072, 1073 (1977); cf.
State v. Ovante, 231 Ariz. 180, 185 ¶ 17, 291 P.3d 974, 979
(2013) (“The trial court was not required to explain the
distinction between first and second degree murder and was free
to accept the guilty plea if it was satisfied that the record
established premeditation.”).
¶18 Second, Rose argues the trial court failed to review a
written plea agreement with him. But no plea agreement existed
or was required. The law only requires Rose’s plea to have been
made voluntarily, intelligently, and knowingly, regardless of
the existence of a formal plea agreement. See Ariz. R. Crim. P.
17.1–17.3; Boykin, 395 U.S. at 242-44; Djerf, 191 Ariz. at 594
¶ 35, 959 P.2d at 1285.
¶19 Third, without citing any pertinent authority, Rose
argues that his plea was not voluntary because the trial court
did not secure a waiver of his guilty except insane (“GEI”)
defense. Such a waiver, however, was not required. In
accepting a guilty plea, a trial court need not “call to the
attention of the accused every defense which might conceivably
be suggested by the record.” State v. Hickey, 110 Ariz. 527,
529, 521 P.2d 614, 616 (1974). Rose similarly argues that the
court failed to inquire into his sanity at the time of the
8
shooting. Insanity, however, is an affirmative defense that a
defendant must prove by clear and convincing evidence. A.R.S.
§ 13-502(A), (C). Again, the trial court had no duty to inform
Rose of that potential defense, which he previously had alleged.
¶20 Fourth, Rose argues that the plea colloquy did not
include any statement about his state of mind at the time of the
shooting. To commit first degree murder of a police officer,
one must intentionally or knowingly kill a law enforcement
officer who is working in the line of duty. A.R.S. § 13-
1105(A)(3); State v. Cruz, 218 Ariz. 149, 169 ¶ 129, 181 P.3d
196, 216 (2008). In the change-of-plea proceeding, Rose’s
attorney recited the following relevant facts:
[O]n or about July 27th, 2007, my client, Edward James
Rose, entered the Southwest Check Cashing Store on
83rd Avenue and about Encanto. He entered that
particular facility . . . for the purpose of cashing a
forged check . . . .
When he entered that facility he had a gun on his
person. While in the check cashing store Police
Officer George Cortez, Jr. arrived, and in the line of
duty, and he was in the line of duty, it was at that
time that my client, using the gun that he had on his
person, turned, shot and killed Officer George Cortez,
Jr.
¶21 Arizona Rule of Criminal Procedure 17.3 requires the
court to “determine that there is a factual basis for the plea.”
“A factual basis can be established by ‘strong evidence’ of
guilt and does not require a finding of guilt beyond a
9
reasonable doubt.” State v. Salinas, 181 Ariz. 104, 106, 887
P.2d 985, 987 (1994) (quoting State v. Wallace, 151 Ariz. 362,
365, 728 P.2d 232, 235 (1986)). Furthermore, “[t]he evidence of
guilt may be derived from any part of the record including
presentence reports, preliminary hearing transcripts, or
admissions of the defendant.” Id.; see also Ovante, 231 Ariz.
at 184 ¶ 12, 291 P.3d at 978.
¶22 The factual basis Rose presented at the change of plea
proceeding shows that Officer Cortez was on duty at the time of
the murder and that Rose intentionally or knowingly shot and
killed him. Rose argues, however, that earlier in the case he
had maintained to various mental health experts that he did not
know Officer Cortez was a police officer when he shot him, but
rather believed he was a security guard. But Rose made
inconsistent statements, and aggravation phase testimony
established that Officer Cortez was wearing his police uniform
with badge and was handcuffing Rose when Rose shot him.
¶23 Additionally, the trial court viewed the store’s
surveillance video footage that was admitted into evidence in
the aggravation phase, and it showed Rose looking over his
shoulder as Officer Cortez entered the store. Thus, if the
factual basis at the change of plea proceeding did not
adequately establish Rose’s mental state at the time he shot
Officer Cortez, other evidence in the record sufficiently shows
10
that Rose knew that Officer Cortez was a police officer.
Moreover, even if we assume that the factual basis was
inadequate for the first degree murder charge arising from
Rose’s killing of an on-duty police officer, Rose does not
challenge the factual basis for his plea of guilty to the felony
murder charge. Cf. State v. Rios, 217 Ariz. 249, 251 ¶ 8, 172
P.3d 844, 846 (App. 2007) (“The only intent required for felony
murder is the intent required to commit the underlying felony.”
(citing A.R.S. § 13-1105(B))).
¶24 Fifth, Rose argues that he “suffered from mental and
emotional instability,” which led to his “impromptu” guilty plea
on the day the guilt phase trial was set to begin. Rose points
to his low IQ of 77 and his impaired problem-solving skills as
evidence of his “substantially below average intelligence.” He
also relies on United States v. Christensen, in which the Ninth
Circuit said that, “[i]n cases where the defendant’s mental or
emotional state is a substantial issue,” district courts must
conduct fuller colloquies. 18 F.3d 822, 825 (9th Cir. 1994).
¶25 Christensen is inapplicable here. That case involved
a written jury trial waiver pursuant to Federal Rule of Criminal
Procedure 23(a) and an abbreviated colloquy. This case, in
contrast, involves an in-court guilty plea accepted by the judge
after a colloquy that satisfied Rule 17.2. Additionally,
although the trial judge might have been aware of Rose’s subpar
11
intelligence, there is no indication that the judge ever
suspected Rose was incompetent.
¶26 Rose nonetheless argues the trial court erred by
disregarding some indications of incompetence and failing to
hold a competency hearing before accepting his plea. We have
stated that “we will not uphold a guilty plea, where competency
has been a valid issue, absent a proper finding of competency.”
State v. Bishop, 139 Ariz. 567, 571, 679 P.2d 1054, 1058 (1984);
see also State v. Brewer, 170 Ariz. 486, 495, 826 P.2d 783, 792
(1992) (“A criminal defendant is not competent to plead guilty
if [his] mental illness has substantially impaired his ability
to make a reasoned choice among the alternatives presented to
him and understand the nature of the consequences of his plea.”
(internal quotation marks omitted)). But a competency
evaluation and hearing are not required in all cases in which
the defendant pleads guilty. Cf. State v. Wagner, 114 Ariz.
459, 462-63, 561 P.2d 1231, 1234-35 (1977) (when the record
raised “sufficient doubt of defendant’s competency to enter a
plea of guilty” to first degree murder, case was remanded for a
post-conviction hearing to determine whether he made “a rational
and reasoned decision in entering the plea”).
¶27 Either party may request a competency hearing. Ariz.
R. Crim. P. 11.2. But if preliminary mental health reports and
other evidence provide no reasonable grounds to justify a
12
competency hearing, no such hearing is required. Cf. Djerf, 191
Ariz. at 592 ¶¶ 26-28, 959 P.2d at 1283 (upholding trial court’s
finding, without a Rule 11 hearing, that the defendant validly
waived his right to counsel when mental health expert’s
prescreening report did not question defendant’s competency).
¶28 After he was charged, Rose initially waived his right
to have a mental health expert appointed pursuant to Rule 11 for
a prescreening under A.R.S. § 13-754(A)(1). The issue of
competency did not arise until almost two years later, after
defense expert Dr. Pablo Stewart first met with Rose. Although
he considered Rose “psychotic,” Dr. Stewart reported that he
“never felt that [Rose] was incompetent,” and that “his symptoms
have not prevented him from fully assisting counsel or
understanding his legal proceedings.” Neither Rose nor the
court pursued any further testing or evaluations concerning
Rose’s competency. Nor did any expert (including Dr. Heather
Gulino, the court’s appointed expert who evaluated Rose’s GEI
defense) suggest Rose was incompetent to either stand trial or
plead guilty. And, as the State aptly notes, “Rose has not
disputed that he was competent to participate in his defense
during jury selection before his guilty pleas, or during the
aggravation and penalty phases of trial that followed them.” On
this record, no competency hearing was required before the trial
court accepted Rose’s guilty pleas.
13
¶29 Sixth, Rose argues that the trial court’s colloquy
failed to secure a knowing, intelligent, and voluntary waiver of
three constitutional rights: the privilege against self-
incrimination, the right to trial by jury, and the right to
confront one’s accusers.
¶30 The record clearly reflects that the trial judge
informed Rose of those rights and that Rose waived them. Rose
nonetheless contends that the trial court’s recitation of rights
and his waiver referred only to the noncapital counts and that
the court thus failed to secure a waiver of constitutional
rights on the capital charges. Although the trial court’s
colloquy could have been clearer, the record, when viewed
reasonably and in context, does not support Rose’s argument.
¶31 “The requirements of Boykin are met when it appears
from a consideration of the entire record that the accused was
aware that he was waiving [his constitutional] rights and it
appears that it was a knowing and voluntary waiver.” State v.
Henry, 114 Ariz. 494, 496, 562 P.2d 374, 376 (1977). When
defense counsel informed the trial court in chambers that Rose
had decided to plead guilty to all charges, counsel assured the
court that they had “been working with [Rose] for a very long
period of time” and, after much discussion during the previous
few weeks, Rose had decided “to take responsibility and plead
guilty to all of the charges that are in the indictment.” When
14
the judge asked if that was a voluntary choice on Rose’s part,
his attorney responded, “Absolutely. It’s not something that he
thought of overnight. We’ve talked about it, discussed the pros
and cons, consulted with him, and that’s exactly what he wants
to do.”
¶32 After returning to the courtroom, the judge asked Rose
if it was his “intention . . . to plead guilty to the charges,”
to which Rose responded, “Yes, sir.” Rose acknowledged that he
had been in the same courtroom several times before and had
“seen other defendants plead guilty.”1 The judge explained that
he was “going to go through the same type of colloquy with you
that you’ve observed me go through with [those] defendants.”
The judge asked Rose if he “had an opportunity to discuss with
[his] lawyer the pros and cons” of pleading guilty, to which
Rose responded, “Yes, sir.” Rose also acknowledged that it was
his “free choice to plead guilty to these charges.”
¶33 The trial court then set forth the range of possible
sentences for all charged offenses, both capital and noncapital.
The court also explained that Rose had “the absolute right to
have this jury determine whether or not you are guilty or not
guilty on these charges,” to “cross-examine all of the
1
Although not dispositive on whether Rose’s pleas in this
case were valid, we also take judicial notice that he pleaded
guilty to an unrelated armed robbery two months earlier, when
the same superior court judge advised Rose of all pertinent
constitutional rights, which he waived.
15
government’s witnesses [and] subpoena witnesses . . . to . . .
testify [on] your behalf,” and “to remain silent,” and that “the
government could not comment on your silence.” In its
concluding statement, which is the lynchpin of Rose’s argument,
the court told him, “By pleading guilty to me here today, for
the non-capital charges you would be giving up all of these
important rights.” Rose stated that he understood his rights
and still chose to proceed with his guilty pleas.
¶34 In context, the trial court’s statements to Rose
cannot reasonably be construed as limiting the admonition
regarding the constitutional rights Rose was waiving to the
noncapital charges. Viewed as a whole and in the light most
favorable to sustaining the court’s acceptance of Rose’s pleas,
the record reflects that Rose understood his constitutional
rights and validly waived them on all charges. See State v.
Allen, 223 Ariz. 125, 127 ¶ 13, 220 P.3d 245, 247 (2009).
¶35 Seventh, describing himself as “seriously mentally
ill,” Rose argues that “[t]he trial court’s failure to inquire
and determine whether . . . [he] was on medication or not and
how the presence or absence of medication affected his decision
making ability renders the plea unknowing and unintelligent” and
a violation of due process. Rose relies on United States v.
Cole, in which the Third Circuit stated that
Rule 11 counsels a district court to make further
16
inquiry into a defendant’s competence to enter a
guilty plea once the court has been informed that the
defendant has recently ingested drugs [in this case
heroin] or other substances capable of impairing his
ability to make a knowing and intelligent waiver of
his constitutional rights.
813 F.2d 43, 46 (3d Cir. 1987).
¶36 We agree that a trial judge has a duty to “make
further inquiry into a defendant’s competence” when the judge is
aware that the defendant might be under the influence of any
substance, including medication, “capable of impairing his
ability to make a knowing and intelligent waiver of his
constitutional rights.” Id. But in Cole the trial judge was
informed during the colloquy that the defendant had ingested
drugs the previous night, yet the judge accepted the plea
without further inquiry. Id. Here, however, the only notice
the trial judge had were two reports of Dr. Gulino filed in May
and June 2010, indicating that Rose had begun a medication
regimen in either February or March 2010. That information did
not necessarily obligate the trial judge to inquire further into
Rose’s competency or reject his guilty plea.
¶37 At the end of the change of plea proceeding, the judge
asked if “any of the lawyers have any concerns about the
voluntariness of Mr. Rose’s pleas of guilty.” The prosecutor
responded that he did not, and neither Rose nor his counsel
expressed any concerns. Nonetheless, the better practice is for
17
judges to routinely inquire whether a pleading defendant is on
any medication or other substance that might impair the
defendant’s ability to enter a plea. See Ariz. Civil/Criminal
Bench Book, Guilty Plea, 10-3 (2013) (listing a series of
questions a judge should ask when accepting a guilty plea,
including inquiry into whether defendant “had any drugs,
alcohol, or medication within the past 24 hours”). Despite that
omission in the trial court’s colloquy here, absent anything in
the record casting doubt on Rose’s competency, we cannot
conclude the court abused its discretion in finding Rose’s
guilty pleas and waiver of rights valid.
¶38 Finally, Rose argues that the trial court erred by not
informing him that “he was waiving his right of appellate review
on his conviction of the capital counts if he pled guilty.” But
no such warning was required because Rose did not, and could
not, forego his right to appeal his capital convictions by
pleading guilty. See A.R.S. § 13-756(A) (“The supreme court
shall review all death sentences . . . .” (emphasis added)); see
also A.R.S. § 13-4033(B) (the right to appeal is lost only when
a defendant pleads guilty in “noncapital” cases); Ariz. R. Crim.
P. 31.2(b) (“When a defendant has been sentenced to death, the
clerk . . . shall file a notice of appeal on his behalf at the
time of entry of judgment and sentence.”); Ovante, 231 Ariz. at
184 ¶ 10, 291 P.3d at 978 (“In death penalty cases, consistent
18
with Rule 31.2(b), this Court will review the validity of a plea
on direct appeal, before it reviews the capital sentence.”).
Rule 17.2(e) states that a defendant who pleads guilty “will
waive the right to have the appellate courts review the
proceedings” only in a “noncapital” case. In addition, our
review on direct appeal of Rose’s arguments relating to his
guilty pleas and his absence from the initial stages of jury
selection refutes his claim that he waived appellate review of
his capital convictions.
¶39 In sum, we find that Rose’s guilty pleas were entered
voluntarily, intelligently, and knowingly.
D. Victim impact evidence
¶40 Rose argues that the admission of “inflammatory”
victim impact evidence (“VIE”) in the penalty phase violated his
Eighth Amendment rights because it was not relevant to any
mitigating circumstances and was unduly prejudicial. Rose also
challenges the constitutionality of A.R.S. § 13-752(R) and
Arizona Rule of Criminal Procedure 19.1(d)(3). We consider the
constitutionality of a statute or rule de novo. State v. Roque,
213 Ariz. 193, 217 ¶ 89, 141 P.3d 368, 392 (2006).
¶41 Section 13-752(R) states that “[a] victim has the
right to be present . . . at the penalty phase” and may “present
information about the murdered person and the impact of the
murder on the victim and other family members and may submit a
19
victim impact statement in any format to the trier of fact.”
Similarly, Rule 19.1(d)(3) permits the victim’s survivors to
“make a statement relating to the characteristics of the victim
and the impact of the crime on the victim’s family,” but the
victim’s survivors “may not offer any opinion regarding the
appropriate sentence to be imposed.” Thus, under the statute
and rule, a victim’s survivors may present information in the
penalty phase about the victim and discuss the impact of the
murder on them. See also Ariz. Const. art. 2, § 2.1(A)(4)
(giving crime victims the right to be heard at sentencing);
A.R.S. § 13-4426 (authorizing crime victims to present at
sentencing “any information or opinions that concern the victim
or the victim’s family, including the impact of the crime on the
victim [and] the harm caused by the crime”).
¶42 The United States Supreme Court has recognized that
VIE is constitutionally permissible. Payne v. Tennessee, 501
U.S. 808, 825 (1991) (“[T]he State has a legitimate interest in
counteracting the mitigating evidence which the defendant is
entitled to put in, by reminding the sentencer that just as the
murderer should be considered as an individual, so too the
victim is an individual whose death represents a unique loss to
society and in particular to his family.” (alteration in
original) (quoting Booth v. Maryland, 482 U.S. 496, 517 (1987)
(White, J., dissenting))). In addition, this Court has rejected
20
the argument that VIE is not relevant to a jury’s consideration
of mitigating evidence. See State v. Ellison, 213 Ariz. 116,
140–41 ¶¶ 111–14, 140 P.3d 899, 923–24 (2006) (“These statements
are relevant to the issue of the harm caused by the defendant
. . . [and] do not violate the Eighth Amendment.” (citing Lynn
v. Reinstein, 205 Ariz. 186, 191 ¶ 17, 68 P.3d 412, 417
(2003))); see also State v. Tucker (Tucker II), 215 Ariz. 298,
320 ¶ 92, 160 P.3d 177, 199 (2007) (“Evidence about the victim
and the effect of the crime on the victim’s family is [also]
admissible during the penalty phase as rebuttal to the
defendant’s mitigation evidence.”). Based on this controlling
authority, we reject Rose’s constitutional argument. See Roque,
213 Ariz. at 222 ¶ 116, 141 P.3d at 397 (declining to revisit
precedent finding VIE constitutional because defendant “provides
no compelling argument for [the Court] to stray from [its] prior
course”).
¶43 Turning to the VIE presented in this case, Rose first
argues that the entire VIE presentation was overly emotional and
highly prejudicial. Rose, however, did not object below on
these grounds or move for a mistrial, and therefore fundamental
error review applies. State v. Valverde, 220 Ariz. 582, 585
¶ 12, 208 P.3d 233, 236 (2009).
¶44 The extensive VIE in this case consisted of prepared
statements from Officer Cortez’s widow, oldest son (whose
21
written statement the widow read while the boy and his younger
brother stood next to her), mother, and father-in-law. The VIE
also included a short poem read by Officer Cortez’s mother, the
playing of a thirty-five second audio recording, and several
photographs. Without question, the scripted VIE was quite
emotional and forceful in its tone and tenor, and even the State
concedes that the widow’s statements were “admittedly
emotional.”
¶45 VIE is generally admissible at sentencing unless it is
“so unduly prejudicial that it renders the trial fundamentally
unfair.” State v. Dann (Dann II), 220 Ariz. 351, 369 ¶ 98, 207
P.3d 604, 622 (2009) (quoting Payne, 501 U.S. at 825). Our
prior cases guide our analysis of the VIE presented here. For
example, we did not find undue prejudice when the victim’s
parents spoke emotionally about the impact of their son’s death
on them, followed by playing of the 911 call the victim’s father
made after he discovered his son murdered. State v. Gallardo,
225 Ariz. 560, 567 ¶¶ 27, 29, 242 P.3d 159, 166 (2010). Nor did
we find undue prejudice when at least half the jurors cried
during a “powerful and emotional” victim impact presentation,
and the presenters all cried during their statements as well.
State v. Glassel, 211 Ariz. 33, 54 ¶¶ 85-86, 116 P.3d 1193, 1214
(2005). We likewise did not find undue prejudice when the
victim’s mother compared the pain she felt over her daughter’s
22
murder to the “universally painful” loss experienced by all
Americans in response to the 9/11 terrorist attacks. State v.
Garza, 216 Ariz. 56, 69 ¶¶ 61-62, 163 P.3d 1006, 1019 (2007).
¶46 Unlike those cases in which we reviewed the trial
court’s admission of VIE for abuse of discretion, however, in
this case we review for fundamental, prejudicial error because
Rose did not object below on the broad grounds he urges now.
Roque, 213 Ariz. at 221 ¶ 113, 141 P.3d at 396. Here, the trial
court instructed the jurors they “must not be influenced” by
“passion, prejudice, public opinion, or public feeling,” nor
“swayed by mere sympathy not related to the evidence presented.”
But we have not yet been confronted with VIE as extensive as
that presented in this case, and we find the presentation here
troubling. There is no simple, mechanical test to determine
when VIE crosses the line between permissible and unduly
prejudicial. The presentation here, however, comes
uncomfortably close to that line. Nonetheless, absent any
objection or motion for mistrial, on this record we cannot say
that the trial court fundamentally erred in admitting the VIE
regarding the survivors’ losses or in not sua sponte excluding
it as overly inflammatory or unduly prejudicial. “Senseless
murders usually generate strong emotional responses” manifested
in VIE. Glassel, 211 Ariz. at 54 ¶ 86, 116 P.3d at 1214.
¶47 It remains the responsibility of the trial judge,
23
however, “to exercise sound discretion in balancing probative
value against the risk of unfair prejudice.” Ellison, 213 Ariz.
at 141 ¶ 115, 140 P.3d at 924 (quoting State v. Doerr, 193 Ariz.
56, 64 ¶ 32, 969 P.2d 1168, 1176 (1998)). We caution
prosecutors and victims not to venture too close to the line,
lest they risk a mistrial. And, recognizing the confines of
A.R.S. § 13-4426.01 but also a defendant’s constitutional
rights, we encourage judges, in their sound discretion, to
screen and, if necessary, limit an orchestrated, overly dramatic
VIE presentation “that is so unduly prejudicial that it renders
the trial fundamentally unfair.” Payne, 501 U.S. at 825.
¶48 At trial, before presentation of the VIE, Rose
objected to three aspects: the appearance of Officer Cortez’s
two young sons dressed in attire that looked like police
uniforms, two photographs that were admitted into evidence and
shown to the jury during the widow’s statement, and the playing
of an audio recording called the “Last Call.” We review the
trial court’s rulings on those particular VIE-related objections
for abuse of discretion. Garza, 216 Ariz. at 69 ¶ 60, 163 P.2d
at 1019.
¶49 Regarding the children’s attire, Rose objected that
“the officer’s sons . . . are dressed in -- I can’t say police
uniform, but certainly something that looks like police
uniform.” The trial judge noted the objection but declined to
24
require the children to change clothes. Nothing in the record,
and no authority cited by Rose, suggests the court abused its
discretion in that regard.
¶50 Nor can we say the trial court erred in overruling
Rose’s objections to two photographs, one of which depicted
Officer Cortez’s sons and widow looking down into the grave as
his casket was lowered, and the other photograph showing the
boys, with their backs to the camera, sitting on a bench by the
gravesite. Rose objected because, he argued, the photographs
showed no interplay between the children and their father and
appeared staged. This Court has recognized “the danger that
photos of the victims may ‘be used to generate sympathy for the
victim and his or her family.’” Ellison, 213 Ariz. at 141
¶ 115, 140 P.3d at 924 (quoting Doerr, 193 Ariz. at 64 ¶ 32, 969
P.2d at 1176). Nonetheless, we have declined “to adopt a per se
rule barring all in-life photos in capital murder cases,”
leaving the decision instead to the trial court’s
discretion. Id. Generally, “[w]hen assessing the admissibility
of photographs, we ‘consider the photographs’ relevance, the
likelihood that the photographs will incite the jurors’
passions, and the photographs’ probative value compared to their
prejudicial impact.’” State v. Pandeli, 215 Ariz. 514, 524
¶ 23, 161 P.3d 557, 567 (2007) (quoting State v. McGill, 213
Ariz. 147, 154 ¶ 30, 140 P.3d 930, 937 (2006)).
25
¶51 As noted above, under Arizona’s constitution,
statutes, and court rules, survivors may speak at sentencing
about the effect the victim’s murder has had on them. And
Arizona cases have permitted pre-murder, in-life photographs of
the homicide victim, Garza, 216 Ariz. at 69 ¶ 63, 163 P.3d at
1019, as well as post-death autopsy photographs of the victim,
Pandeli, 215 Ariz. at 524-25 ¶¶ 24-26, 161 P.3d at 567-68. But
no Arizona case has addressed the admissibility of photographs
of the victim’s survivors, ostensibly to depict their response
to the victim’s death and its effect on them. Some California
cases, however, have upheld admission in a capital case of
photographs of the victim’s gravesite. See, e.g., People v.
Zamudio, 181 P.3d 105, 137 (Cal. 2008) (permitting a series of
pre-death photographs of the victims, as well as three
photographs of the victims’ grave markers); People v. Kelly, 171
P.3d 548, 570 (Cal. 2008) (permitting a video montage that ended
with a close-up of victim’s grave); People v. Harris, 118 P.3d
545, 574 (Cal. 2005) (permitting a photograph of the victim’s
gravesite as “further evidence relating to her death and the
effect upon her family”).
¶52 The two photographs in question arguably were relevant
to show the impact Officer Cortez’s death had on his two young
sons. See State v. Oliver, 158 Ariz. 22, 28, 760 P.2d 1071,
1077 (1988) (noting that the “standard of relevance is not
26
particularly high”). The trial court, however, would have acted
well within its discretion had it excluded those photographs,
given their marginal relevance, the danger of unfair prejudice
their admission posed, and the extensive, clearly permissible
VIE already presented. See Ariz. R. Evid. 403; cf. McGill, 213
Ariz. at 157 ¶ 40, 140 P.3d at 940 (interpreting former A.R.S.
§ 13-703(C) to impose on penalty phase evidence a relevance
requirement that involves “fundamentally the same considerations
as does a relevancy determination under Arizona Rule of Evidence
401 or 403”). Nonetheless, we cannot say that the trial court
abused its discretion in admitting the photographs after
implicitly finding, over Rose’s Rule 403 objection, that the
probative value of the photographs was not substantially
outweighed by the danger of unfair prejudice. After all, the
jury was well aware, without the photographs, that the murder
caused the two boys to suffer a devastating loss of their
father’s love, affection, and support for the rest of their
lives.
¶53 Regarding the “Last Call” audio recording,2 Rose argued
2
The “Last Call” is thirty-five seconds long and contains
the following message transmitted through a radio call: “All
units stand by for a broadcast. This is the last call for
Officer George Cortez, Jr., number 8232, 834 Henry. 834 Henry
is 236290 West Northern. 834 Henry you’re now 10-7. Rest in
peace. You’ll be greatly missed. Goodnight sir. Stations
clear for [audio cuts out].”
27
below that it was “irrelevant” and “put together purely
for . . . an emotional impact.” We have not addressed this type
of issue before, but other jurisdictions have. In State v.
Bixby, the South Carolina Supreme Court permitted a videotape
depicting a deputy sheriff’s funeral, including footage of an
American flag over the closed coffin, the playing of “Taps,”
assembly of mourners, and a recording of a fictional 911 call in
which the deputy is given permission to “return home.” 698
S.E.2d 572, 586-87 (S.C. 2010). The court reasoned that the
“videotape was relevant to show the uniqueness of the victim,
the harm committed by [the defendant], and the impact of the
victim’s death on his family and society.” Id. at 587; see also
People v. Brady, 236 P.3d 312, 338-39 (Cal. 2010) (permitting
the admission of a six-minute videotape highlighting the
memorial and funeral services of the police officer victim).
Although the relevance of the “Last Call” recording is dubious,
the trial court did not abuse its discretion in admitting it as
part of the VIE inasmuch as the recording was very brief and was
not inflammatory in either its content or style of presentation.
¶54 On appeal, Rose also argues that “[t]he entire victim
presentation linked the case not to the slain officer but to the
entire police force.” Because he did not raise this claim
below, we review for fundamental error. Henderson, 210 Ariz. at
567 ¶ 19, 115 P.3d at 607.
28
¶55 Rose is correct that victim impact statements are
limited to the “impact of the crime on the victim’s family.”
Ariz. R. Crim. P. 19.1(d)(3) (emphasis added). But VIE is
permissible partly because it allows the jury to see the victim
as a unique individual. See Payne, 501 U.S. at 825. Officer
Cortez was a member of the Phoenix Police Department, and his
occupation as a police officer is part of what made him who he
was. The only people who spoke during the VIE were members of
Officer Cortez’s family, and they gave personal reflections on
how his death affected them individually. Some portions of the
VIE inappropriately mentioned the effect the victim’s death had
on his fellow law enforcement officers and more broadly the
community as a whole. But those brief comments were merely a
by-product of Officer Cortez’s occupation and, on this record,
do not constitute fundamental, prejudicial error.
¶56 Rose further argues for the first time on appeal that
the victims improperly asked the jury to impose the death
penalty. We review for fundamental error because Rose made no
such claim below. Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at
607.
¶57 Although VIE generally is permitted, the victim’s
survivors “may not offer any opinion regarding the appropriate
sentence to be imposed.” Ariz. R. Crim. P. 19.1(d)(3); see also
State v. Bocharski, 200 Ariz. 50, 62 ¶ 64, 22 P.3d 43, 55 (2001)
29
(“Sentencing recommendations offered by a deceased’s survivors
have no relevance in a capital case.”). Officer Cortez’s widow
clearly used some pejorative language in her statement,
describing Rose at the end as a “cop killer,” and requesting the
jury to “give the appropriate sentence.” But, contrary to
Rose’s assertions, neither Officer Cortez’s widow nor his son
recommended a sentence or said they “wanted Rose put to death.”
And the trial court instructed the jury that the victim’s family
members were “not allowed to offer any opinion or recommendation
regarding the sentence to be imposed.” Rose still contends that
they spoke in “clear and understandable code” to urge the jury
to return a death sentence. But absent any such express
request, and in view of the court’s instruction, we find no
fundamental error arising from the widow’s statements.
¶58 Nonetheless, we do not condone the type of vengeful
language the widow used. And we strongly encourage prosecutors
and trial courts to prevent VIE presenters from alluding to or
addressing in any way the potential sentence, such as pressing
for an “appropriate” or “just” sentence or asking for “closure.”
Such references come dangerously close to infringing Rule
19.1(d)(3) and mandating a mistrial.
¶59 Finally, Rose unsuccessfully proffered two items of
evidence to rebut the VIE. He sought to present a petition for
divorce filed by Officer Cortez’s wife and an episode of the
30
“Dr. Phil Show” featuring her and Officer Cortez. The trial
court sustained the State’s objection to both. “We review a
trial court’s determination of relevance and admissibility of
evidence for an abuse of discretion.” State v. Hardy, 230 Ariz.
281, 291 ¶ 49, 283 P.3d 12, 22 (2012).
¶60 A.R.S. § 13-4426.01 states that “the victim’s right to
be heard is exercised not as a witness, . . . and the victim is
not subject to cross-examination.” See also State ex rel.
Thomas v. Foreman, 211 Ariz. 153, 155 ¶ 6, 118 P.3d 1117, 1119
(App. 2005) (“The plain language of the statute gives victims
the right to be heard at a sentencing hearing without being
cross-examined by the State or the defendant.” (footnote
omitted)). The statute further provides that “the defense shall
be afforded the opportunity to explain, support or deny the
victim’s statement.” A.R.S. § 13-4426.01. In State v.
Martinez, we considered a similar challenge by a defendant
contesting the truthfulness of the victim impact statements and
his right to confront the victim. 218 Ariz. 421, 431–32 ¶ 45,
189 P.3d 348, 358–59 (2008). We held that “victim impact
evidence is not put on by the State, nor is cross-examination
permitted.” Id. at 432 ¶ 45, 189 P.3d at 359.
¶61 Rose sought to offer this evidence as mitigation more
than two weeks after the VIE had been presented. The trial
court ruled that “whether Ms. Cortez and her husband had marital
31
difficulties at some point is simply not relevant mitigation,”
and that nothing Officer Cortez’s wife said was “materially
inaccurate.” Therefore, the court concluded, the proffered
evidence was not relevant to rebut her statement. Applying
factors set forth in Evidence Rule 403, the trial court also
ruled that litigating issues relating to the Cortezes’ marriage
“would involve undue delay and waste of time on what is
essentially a collateral matter,” and that those considerations
“substantially outweighed” any probative value the proffered
evidence had.
¶62 “The trial court has considerable discretion in
determining the relevance and admissibility of evidence, and we
will not disturb its ruling absent a clear abuse of that
discretion.” State v. Amaya-Ruiz, 166 Ariz. 152, 167, 800 P.2d
1260, 1275 (1990). Balancing of Rule 403 factors is also a
matter particularly and appropriately left to the trial court’s
discretion. Id. We find no abuse in the trial court’s decision
to preclude evidence during Rose’s mitigation of marital
difficulties between Officer Cortez and his wife.
E. Exclusion of execution impact testimony
¶63 Rose argues that the trial court erred in excluding
his proffered execution impact evidence, which he claims is
relevant under the Eighth Amendment and admissible as a matter
of due process. This Court reviews evidentiary rulings for an
32
abuse of discretion and gives deference to the trial court’s
determination of relevance. State v. Chappell, 225 Ariz. 229,
238 ¶ 28, 236 P.3d 1176, 1185 (2010).
¶64 “We have previously held that execution impact
evidence is not relevant to mitigation.” Id. ¶ 30 (citing
Roque, 213 Ariz. at 222 ¶ 119, 141 P.3d at 397). Such execution
impact evidence is not relevant because it is “altogether
unrelated to defendant, to his character, or to the circumstance
of the offense.” Roque, 213 Ariz. at 222 ¶ 119, 141 P.3d at 397
(quoting State v. Williams, 183 Ariz. 368, 385, 904 P.2d 437,
454 (1995)).
¶65 Rose nonetheless contends that this Court has upheld
the admissibility of execution impact evidence in prior cases.3
But we also noted in Chappell that “[a]lthough similar evidence
has been admitted in some cases, in none of those cases was the
admissibility of the execution impact evidence at issue on
appeal.” 225 Ariz. at 238 ¶ 30 n.8, 236 P.3d at 1185 n.8. Rose
neither cites nor challenges Chappell. Finding it dispositive,
3
To the extent Rose argues that “his family ties and the
love of a defendant’s family[] has been held by this Court to be
mitigation,” we agree that “[t]he existence of family ties is a
mitigating factor.” State v. Moore, 222 Ariz. 1, 22 ¶ 134, 213
P.3d 150, 171 (2009). At trial, Rose was permitted to present,
and in fact did present, testimony from friends and family
expressing their love for him. What Rose could not present, and
what the trial court properly prohibited, was testimony or
argument related to the effect Rose’s death would have on his
friends and family.
33
we uphold the trial court’s exclusion of execution impact
evidence.
F. Constitutionality of A.R.S. § 13-751(F)(10)
¶66 Rose argues that the (F)(10) aggravating factor
violates the Eighth and Fourteenth Amendments on its face and as
applied. Because Rose did not raise this claim below, we review
it for fundamental error. Henderson, 210 Ariz. at 567 ¶ 19, 115
P.3d at 607.
¶67 A.R.S. § 13-751(F)(10) provides that it shall be an
aggravating circumstance when “[t]he murdered person was an on
duty peace officer who was killed in the course of performing
the officer’s official duties and the defendant knew, or should
have known, that the murdered person was a peace officer.” The
killing of a police officer is a proper aggravating
circumstance. See also Roberts v. Louisiana, 431 U.S. 633, 636
(1977) (“[T]he fact that the murder victim was a peace officer
performing his regular duties may be regarded as an aggravating
circumstance.”); Cruz, 218 Ariz. at 170 ¶ 132, 181 P.3d at 217
(“Killing a person one knows to be a peace officer who is acting
in the line of duty adequately narrows the class of persons
subject to the death penalty.”).
¶68 We reject Rose’s arguments that the (F)(10)
aggravating factor draws an “arbitrary” and “irrational”
distinction between a peace officer and a non-peace officer and
34
that the factor violates equal protection and due process
principles. As in Cruz, Rose “cites no authority suggesting
that the legislature may not provide that any intentional
killing of an on-duty peace officer should make a defendant
death eligible.” 218 Ariz. at 170 ¶ 132, 181 P.3d at 217.
“[S]pecification of punishment for crime is peculiarly a
question of legislative policy,” and this Court will presume the
constitutionality of a statute “when there is a reasonable, even
though debatable, basis for the enactment of a statute.” State
v. Arnett, 119 Ariz. 38, 47–48, 579 P.2d 542, 551–52 (1978).
The legislature properly exercised its power and did not offend
constitutional requirements by enacting the (F)(10) aggravating
factor. Cf. State v. Nelson, 229 Ariz. 180, 186-87 ¶¶ 25-28,
273 P.3d 632, 638-39 (2012) (reaching same conclusion regarding
A.R.S. § 13-751(F)(9)).
¶69 Likewise, we reject Rose’s argument that application
of the (F)(10) aggravating factor is cruel and unusual. The
Supreme Court has stated that we must refer to “the evolving
standards of decency that mark the progress of a maturing
society” to determine whether particular punishments are cruel
and unusual. Roper v. Simmons, 543 U.S. 551, 561 (2005)
(quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (plurality
opinion)). Rose has not persuaded us that Arizona’s (F)(10)
aggravating factor fails to conform to that standard. On the
35
contrary, he acknowledges that several other states also
recognize the murder of an on-duty peace officer as an
aggravating factor. See, e.g., Cal. Penal Code § 190.2(a)(7);
Neb. Rev. Stat. § 29-2523(1)(i). Thus, we reject Rose’s
constitutional challenge to § 13-751(F)(10) and find no
fundamental error in its application here. Cf. Nelson, 229
Ariz. at 188 ¶ 33, 273 P.3d at 640 (rejecting Eighth Amendment
challenge to § 13-751(F)(9) when other jurisdictions also
consider victim’s age as “a factor in sentencing a defendant to
death”).
III. ABUSE OF DISCRETION REVIEW
¶70 Because the murder occurred after August 1, 2002, we
review the jury’s finding of aggravating circumstances and the
imposition of a death sentence for abuse of discretion. A.R.S.
§ 13-756(A). “A finding of aggravating circumstances or the
imposition of a death sentence is not an abuse of discretion if
‘there is any reasonable evidence in the record to sustain it.’”
State v. Delahanty, 226 Ariz. 502, 508 ¶ 36, 250 P.3d 1131, 1137
(2011) (quoting Morris, 215 Ariz. at 341 ¶ 77, 160 P.3d at 220).
A. Constitutionality of A.R.S. § 13-756(A)
¶71 Rose contends that review of a capital sentence for
abuse of discretion violates the Eighth Amendment because the
Supreme Court mandates “meaningful” appellate review of death
sentences under Gregg v. Georgia, 428 U.S. 153 (1976). We have
36
previously rejected similar Eighth Amendment challenges to the
statute and again do so here. See Cota, 229 Ariz. at 153 ¶ 92,
272 P.3d at 1044 (“Meaningful appellate review requires only
that an appellate court ‘consider whether the evidence is such
that the sentencer could have arrived at the death sentence that
was imposed,’ not whether the appellate court itself would have
imposed a death sentence.” (quoting Clemons v. Mississippi, 494
U.S. 738, 749 (1990))); Martinez, 218 Ariz. at 434 ¶ 62, 189
P.3d at 361.
B. Aggravating circumstances
¶72 The jury found the following four aggravating
circumstances proven beyond a reasonable doubt: (1) Rose was
previously convicted of a serious offense, A.R.S. § 13-
751(F)(2); (2) Rose committed the offense as consideration for
the receipt or in expectation of the receipt of anything of a
pecuniary value, id. § 13-751(F)(5); (3) Rose committed the
offense while on probation for a felony offense, id. § 13-
751(F)(7); and (4) the murdered person was an on-duty police
officer killed in the course of performing the officer’s
official duties and Rose knew or should have known the victim
was a peace officer, id. § 13-751(F)(10). Rose does not
contest, and substantial evidence in the record supports, the
jury’s findings of the (F)(2), (F)(7), and (F)(10) aggravating
circumstances. But he does challenge the (F)(5) finding
37
regarding pecuniary gain. We will affirm the jury’s finding “if
there is any reasonable evidence in the record to sustain it,”
Morris, 215 Ariz. at 341 ¶ 77, 160 P.3d at 220 (internal
quotation marks omitted), and view the evidence in the light
most favorable to upholding the jury’s finding, State v.
Andriano, 215 Ariz. 497, 506 ¶ 41 n.5, 161 P.3d 540, 549 n.5
(2007).
1. (F)(5) aggravating factor – pecuniary gain
¶73 A defendant convicted of first degree murder is
eligible for a death sentence if the state proves beyond a
reasonable doubt that he “committed the offense as consideration
for the receipt, or in expectation of the receipt, of anything
of pecuniary value.” A.R.S. § 13-751(F)(5). The jury may find
this aggravator only “if the expectation of pecuniary gain is a
motive, cause, or impetus for the murder and not merely a result
of the murder.” State v. Lamar, 210 Ariz. 571, 574 ¶ 11, 115
P.3d 611, 614 (2005) (quoting State v. Hyde, 186 Ariz. 252, 280,
921 P.2d 655, 683 (1996)). “This proof may be either by
‘tangible evidence or strong circumstantial inference.’” State
v. Cañez, 202 Ariz. 133, 159 ¶ 91, 42 P.3d 564, 590 (2002)
(quoting Hyde, 186 Ariz. at 280, 921 P.2d at 683).
¶74 Pecuniary gain “does not require a motive to kill” as
long as there is a “causal connection between the pecuniary gain
objective and the killing,” such as to “facilitate escape or
38
hinder detection and thus advance the underlying pecuniary gain
objective.” Cañez, 202 Ariz. at 159 ¶¶ 93–94, 42 P.3d at 590;
see also Ellison, 213 Ariz. at 143 ¶ 125, 140 P.3d at 926
(finding (F)(5) aggravator established when defendant planned a
burglary and killed victims to escape and avoid identification).
¶75 Rose argues that his attempted theft in the check
cashing store had “failed before the police officer arrived,”
and he “received no money and was not going to receive any money
from the clerk.” But “an absence of actual receipt of money or
valuables [does not] negate[] a finding of expectation of
pecuniary gain as an aggravating circumstance.” State v.
LaGrand, 153 Ariz. 21, 23-25, 35-36, 734 P.2d 563, 565-67, 577-
78 (1987). Rose had said earlier that day that he would shoot
anyone who tried to stop him from cashing the forged check. The
murder occurred temporally and proximally close to the
underlying crime, which was undoubtedly motivated by Rose’s
desire for pecuniary gain. The murder also facilitated Rose’s
escape and temporary evasion from arrest, and Rose made no
attempt to conceal his identity, a fact that provides “powerful
circumstantial evidence of an intent to facilitate escape or
hinder detection and thus advance the underlying pecuniary gain
objective.” Cañez, 202 Ariz. at 159 ¶ 94, 42 P.3d at 590.
¶76 Finally, we reject Rose’s argument that the (F)(5)
aggravating factor is being bootstrapped to the felony murder
39
charge, which was based on the underlying crime of burglary.
This Court “has repeatedly held that a conviction for felony
murder predicated on robbery or armed robbery does not
automatically prove the (F)(5) aggravator.” State v. Anderson,
210 Ariz. 327, 351 ¶ 103, 111 P.3d 369, 393 (2005). “While
armed robbery requires proof of a ‘taking of property from the
victim,’ the pecuniary gain aggravator requires proof that the
defendant’s ‘motivation [for the murder] was the expectation of
pecuniary gain.’” Id. (alteration in original) (quoting State
v. Carriger, 143 Ariz. 142, 161, 692 P.2d 991, 1010 (1984)).
Likewise, in this case the evidence required to establish the
(F)(5) aggravator is different from that for burglary, which
requires proof of entry with “intent to commit any theft or any
felony.” A.R.S. §§ 13-1506, -1508. The jury was properly
instructed on the legal requirements for the (F)(5) aggravating
factor and did not abuse it discretion in finding it proven.
C. Mitigating circumstances
¶77 In the penalty phase, the defendant is entitled to
present any mitigating circumstances that the jury may consider
in determining the appropriate sentence. A.R.S. § 13-751(C).
Rose presented evidence of alleged mental health problems,
multiple head injuries, drug and alcohol addiction, low IQ, use
of methamphetamine in the days before the murder, and emotional
neglect from his father, among other mitigating factors. On
40
appeal, Rose argues that “the mitigation in this case was
overwhelming and a death sentence is not justified by the
evidence.”
¶78 We will overturn a jury’s imposition of a death
sentence only if “no reasonable jury could have concluded that
the mitigation established by the defendant was not sufficiently
substantial to call for leniency.” Cota, 229 Ariz. at 153 ¶ 95,
272 P.3d at 1044 (internal quotation marks omitted). The State
presented evidence to rebut much of Rose’s mitigation evidence.
Based on the facts of the crime and the four aggravating
factors, a reasonable jury could find that Rose’s mitigation did
not warrant leniency.
IV. CONCLUSION
¶79 We affirm Rose’s convictions and sentences.4
__________________________________
John Pelander, Justice
CONCURRING:
__________________________________
Rebecca White Berch, Chief Justice
__________________________________
Scott Bales, Vice Chief Justice
4
Rose also raised in an appendix to his opening brief
twenty-six claims to avoid federal preclusion. We do not
address those here.
41
__________________________________
Robert M. Brutinel, Justice
__________________________________
Ann A. Scott Timmer, Justice
42