State of Arizona v. Manuel Ovante, Jr. , 231 Ariz. 180 ( 2013 )

SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0085-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2008-144114-001 DT
MANUEL OVANTE, JR., )
)
Appellant. )
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Warren J. Granville, Judge
AFFIRMED AS AMENDED
________________________________________________________________
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Jeffrey A. Zick, Assistant Attorney General
Ginger Jarvis, Assistant Attorney General
Attorneys for State of Arizona
JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Thomas K. Baird, Deputy Public Defender
Tennie B. Martin, Deputy Public Defender
Attorneys for Manuel Ovante, Jr.
________________________________________________________________
B A L E S, Vice Chief Justice
¶1 This automatic appeal concerns Manuel Ovante, Jr.’s
2010 death sentence for murdering Damien Vickers. We have
jurisdiction under Article 6, Section 5(3) of the Arizona
Constitution and A.R.S. §§ 13–4031 and -4033(A)(1) (2010).
FACTS AND PROCEDURAL BACKGROUND
¶2 On June 11, 2008, Ovante and three friends drove to
Jordan Trujillo’s house, hoping she would give them
methamphetamine. Trujillo refused, but Ovante returned
repeatedly that day attempting to obtain drugs. When Ovante and
his friends entered Trujillo’s home the last time, they
encountered Trujillo, who was asleep on a living room couch,
Damien Vickers, and Gabriel Valenzuela. Without expressing
anger or distress, Ovante suddenly pulled out a gun.
¶3 Ovante pointed the gun at Valenzuela and yelled “[W]ho
left the safety on?” Ovante released the safety, pointed the
gun again at Valenzuela, and told him not to move. He then shot
the sleeping Trujillo twice in the head and began shooting at
Valenzuela and Vickers, wounding both of them. Trujillo
appeared to die almost instantly, but Vickers begged for help
and Valenzuela called the police.
¶4 After the shooting, Ovante and two of his friends got
into a truck and tried to convince the third friend, Nathan
Duran, to leave Vickers behind. Duran instead dragged Vickers
into the back of the truck. Vickers was bleeding from his
bullet wounds, holding onto Duran, and asking to be taken to a
hospital. Ovante refused to do so. After Vickers died in the
truck, Ovante decided to abandon his body in an alley.
Valenzuela, who remained in the apartment, survived the attack.
¶5 The State charged Ovante with two counts of first
degree murder and one count of aggravated assault. The State
2
sought the death penalty, alleging as aggravating circumstances
that Ovante had been previously convicted of a serious offense
(the aggravated assault of Valenzuela), see A.R.S. § 13-
751(F)(2) (2008), and had been convicted of one or more other
homicides committed during the commission of the offense, see
id. § 13-751(F)(8). Ovante pleaded guilty to all charges and
admitted both aggravating circumstances.
¶6 At the conclusion of the penalty phase, the jury
determined Ovante should be sentenced to life in prison for the
murder of Trujillo and sentenced to death for Vickers’ murder.
Accordingly, the trial court entered sentences of life with a
possibility of parole after twenty-five years for Trujillo’s
murder, death for Vickers’ murder, and a mitigated term of six
years in prison for the aggravated assault on Valenzuela.
DISCUSSION
A. Ability to Challenge the Guilty Pleas on Appeal
¶7 The State argues that Ovante cannot challenge the
validity of his guilty pleas as part of this Court’s mandatory
direct review in a capital case, and that he, like a noncapital
defendant seeking to challenge a guilty plea, must instead seek
post-conviction relief under Rule 32. We reject this argument.
¶8 Our criminal rules expressly provide that a defendant
who pleads guilty in a noncapital case waives direct appeal and
can seek review only by petitioning for post-conviction relief
3
under Rule 32. Ariz. R. Crim. P. 17.1(e) see also id. 17.2(e)
(requiring court to advise defendant that guilty plea will
“waive the right to have the appellate courts review the
proceedings by way of direct appeal”).
¶9 The rules addressing capital cases, in contrast, do
not distinguish between capital defendants who plead and those
who are convicted after trial. Instead, if a death sentence is
imposed, the superior court clerk files an automatic notice of
appeal that suffices “with respect to all judgments entered and
sentences imposed in the case.” Id. 31.2(b). Thus, regardless
of any plea, this Court automatically reviews a death sentence.
¶10 Accepting the State’s argument that any judgment of
guilt entered as result of a plea can only be reviewed in a Rule
32 proceeding would unnecessarily bifurcate appellate review in
capital cases. The State conceded this point at oral argument.
In death penalty cases, consistent with Rule 31.2(b), this Court
will review the validity of a plea on direct appeal, before it
reviews the capital sentence.
B. Adequate Factual Basis for the Guilty Pleas
¶11 Ovante contends that because he did not understand the
difference between first and second degree murder, his
statements at the plea hearing did not establish premeditation,
and thus there was not an adequate factual basis for his first
degree murder guilty pleas.
4
¶12 We review the trial court’s acceptance of a guilty
plea for abuse of discretion. State v. Djerf, 191 Ariz. 583,
594 ¶ 35, 959 P.2d 1274, 1285 (1998). Before accepting a plea,
a court must establish a factual basis for each element of the
crime. Ariz. R. Crim. P. 17.3; State v. Carr, 112 Ariz. 453,
455, 543 P.2d 441, 443 (1975). This Court may examine the
entire record on appeal but must vacate the plea if the record
does not support “strong evidence of guilt” for every element.
State v. Wallace, 151 Ariz. 362, 365, 728 P.2d 232, 235 (1986)
(quoting State v. Hamilton, 142 Ariz. 91, 93, 688 P.2d 983, 985
(1984)); State v. Diaz, 121 Ariz. 16, 18, 588 P.2d 309, 311
(1978) (holding that a reviewing court can consider the record,
and not only plea colloquy, to determine if there is a factual
basis for a plea).
¶13 To support a plea to first degree, premeditated
murder, a court must find that facts support a conclusion that
the accused (1) intended to cause the death of another, (2)
caused the death of another, and (3) acted with premeditation.
See A.R.S. § 13-1105(A)(1) (2008). “Premeditation means that
the defendant acts with either the intention or the knowledge
that he will kill another human being, when such intention or
knowledge precedes the killing by any length of time to permit
reflection.” A.R.S. § 13-1101 (2008).
¶14 There is no prescribed period of time which must
5
elapse between the formation of the intent to kill and the act
of killing, but the record must at least circumstantially
support that a defendant considered his act and did not merely
react to an instant quarrel or in the heat of passion. State v.
Thompson, 204 Ariz. 471, 479 ¶¶ 31-32, 65 P.3d 420, 428 (2003).
“[T]hreats made by the defendant to the victim, a pattern of
escalating violence between the defendant and the victim, or the
acquisition of a weapon by the defendant before the killing” are
circumstances that can establish premeditation. Id. at ¶ 31.
¶15 Ovante argues that the record is ambiguous or leaves
to “guesswork” whether he actually reflected before killing.
But he acknowledged in the plea colloquy that he had given “some
thought to [killing Trujillo] before [he] committed the act.”
Ovante then agreed with defense counsel’s statement that, if the
case proceeded to trial, the evidence would show Ovante had
pointed the gun at Valenzuela but had to stop and release the
safety before he could actually shoot. When the judge asked
whether Ovante had given some thought to murdering the second
victim, Vickers, Ovante took a moment to confer with his counsel
before answering, “Yes.” Evidence presented in the penalty
phase corroborated Ovante’s admissions.
¶16 Circumstantial evidence further shows Ovante’s
premeditation. Ovante carried a loaded gun into Trujillo’s
house, paused to disengage the gun’s safety, targeted only
6
persons who had not accompanied him, and shot each murder victim
multiple times. Combined with his statements at the plea
hearing, this evidence amply supports a finding that Ovante
reflected on the killings before pulling the trigger.
¶17 Ovante might not have fully understood that
premeditation distinguishes first degree murder from second
degree murder, compare A.R.S § 13-1104(A) (2008) (second degree
murder does not require premeditation), with id. § 13-1105(A)(1)
(first degree murder is premeditated), but his understanding of
the legal terminology is not determinative. “Arizona courts
have consistently held that it is sufficient that the court, not
the defendant, satisfy itself of the factual basis for the
plea.” State v. Herndon, 109 Ariz. 147, 148, 506 P.2d 1041,
1042 (1973). 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. See State v. DeGrate, 109 Ariz. 143,
144, 506 P.2d 1037, 1038 (1973).
C. Prosecution’s Decision to Seek the Death Penalty
¶18 Ovante next contends that Arizona lacks statewide
standards to identify when the death penalty will be sought,
leaving the decision to individual county attorneys. He also
asserts that he did not have a fair opportunity to enter a plea
agreement, alleging that in 2009 he offered to plead guilty in
7
exchange for life sentences but the Maricopa County Attorney,
who allegedly refused to enter plea agreements while seeking
reelection in 2008, rejected this offer. This exercise of
“[u]nbridled charging discretion,” Ovante argues, violates due
process, equal protection, and the Eighth Amendment. We review
Ovante’s developed constitutional claims de novo. State v.
Smith, 215 Ariz. 221, 228 ¶ 20, 159 P.3d 531, 538 (2007).1
¶19 “Arizona’s death penalty scheme [is] designed to
narrow, in a constitutional manner, the class of first degree
murderers who are death-eligible,” and prosecutors may seek the
death penalty only in the limited cases that qualify under the
scheme. State v. Carlson, 202 Ariz. 570, 582 ¶ 45, 48 P.3d
1180, 1192 (2002) (quoting State v. Soto-Fong, 187 Ariz. 186,
202, 928 P.2d 610, 626 (1996)); see also State v. Sharp, 193
Ariz. 414, 426 ¶ 49, 973 P.2d 1171, 1183 (1999) (holding the
discretion afforded to prosecutors under Arizona’s capital
sentencing scheme does not violate the Eighth Amendment).
¶20 We reject Ovante’s challenge to the discretion
generally afforded prosecutors under Arizona’s death penalty
statutes. See State v. Salazar, 173 Ariz. 399, 411, 844 P.2d
566, 578 (1992); see also Gregg v. Georgia, 428 U.S. 153, 199
1
Although Ovante alleges violations of several federal and
state constitutional provisions, he fails to develop arguments
for most of them. This Court does not consider or address
8
(1976) (upholding a statutory scheme that narrows the types of
defendants eligible for death and affords a prosecutor the
option to seek or not seek the death penalty at various stages
in the criminal process). Our holding comports with opinions by
many other courts recognizing that prosecutorial discretion is
appropriately constrained by death penalty statutes and
appellate review. See, e.g., State v. Rizzo, 31 A.3d 1094,
1163-64 (Conn. 2011) (citing cases rejecting constitutional
challenges); Wade v. State, 41 So. 3d 857, 875-76 (Fla. 2010);
State v. Banks, 271 S.W.3d 90, 154-55 (Tenn. 2008); State v.
Yates, 168 P.3d 359, 400-01 (Wash. 2007).
¶21 The record also does not show that the death penalty
was sought in Ovante’s case for a discriminatory or otherwise
improper reason. Ovante contends that defendants in Maricopa
County are more likely to receive the death penalty than
defendants similarly situated in other locations. To show a
violation of the Equal Protection Clause of the Fourteenth
Amendment, however, “the defendant must show purposeful
discrimination that had a discriminatory effect on him and in
his particular case.” State v. Roque, 213 Ariz. 193, 226 ¶ 143,
141 P.3d 368, 401 (2006) (citing McCleskey v. Kemp, 481 U.S. 279,
292 (1987)). Because our criminal justice system affords
unsupported constitutional claims. State v. Hardy, 230 Ariz.
281, 285 ¶ 12 n.3, 283 P.3d 12, 16 n.3 (2012).
9
prosecutors wide discretion to decide which crimes to prosecute
and which sentences to pursue, “a defendant must show
‘exceptionally clear proof’ of discrimination for the Court to
infer discriminatory purpose. Any legitimate explanation for a
state’s decision to seek the death penalty precludes a finding
of a Fourteenth Amendment violation.” Id. (internal citations
omitted).
¶22 “In Arizona, the state may seek the death penalty if
it can prove beyond a reasonable doubt that a defendant
committed first degree murder and can also prove the existence
of at least one aggravating factor.” Id. at 227 ¶ 144, 141 P.3d
at 402. Ovante committed two murders and admitted two
aggravating circumstances, rendering him eligible for a death
sentence. That the County Attorney sought this sentence in many
qualifying cases in Maricopa County, or rejected Ovante’s offers
to plead guilty in exchange for a life sentence, does not make
the decision to seek death in his case unconstitutional. See
id. ¶ 143.
D. Prosecutor’s Closing Argument
¶23 Ovante argues that, in closing argument, the
prosecutor (1) impermissibly suggested that Ovante had failed to
take responsibility for his actions by implying Ovante’s
presentation of mitigation and request for mercy were negative
conduct, and (2) made “an overly emotional play coloring Mr.
10
Ovante as a poisoned seed from a bad family.” Because Ovante
did not object at trial, we review the statements for
fundamental error. See State v. Henderson, 210 Ariz. 561, 567
¶ 19, 115 P.3d 601, 607 (2005).
¶24 Prosecutors are given “wide latitude” when presenting
arguments. State v. Morris, 215 Ariz. 324, 336 ¶ 51, 160 P.3d
203, 215 (2007). They are permitted to suggest reasonable
inferences from the facts presented, but their statements should
not “call[] the jurors’ attention [to] matters [the jury] should
not consider.” Id. Although highly misleading statements might
sometimes taint a trial, “cautionary instructions by the court
generally cure any possible prejudice” from statements by
counsel because juries are presumed to follow the trial court’s
instructions. State v. Manuel, 229 Ariz. 1, 6 ¶ 24, 270 P.3d
828, 833 (2011)
¶25 Here, the trial court instructed the jurors that
statements by the lawyers should not be interpreted as evidence
and should only be used as tools to help the jury “understand
the evidence and apply the law.” Given these instructions, we
evaluate Ovante’s claim presuming that the jury recognized that
the lawyers’ statements were not evidence and that the jury
sought to reach a “reasoned, moral judgment about which sentence
[was] justified and appropriate.” See State v. Newell, 212
Ariz. 389, 403 ¶¶ 67–68, 132 P.3d 833, 847 (2006) (holding that
11
jury instructions negated improper comments of
prosecutor); State v. Anderson, 210 Ariz. 327, 342 ¶ 50, 111
P.3d 369, 384 (2005) (holding that jury instructions cured the
prosecutor's misstatement of the law).
i. Failure to take responsibility
¶26 Ovante argues that, by telling the jury that Ovante
failed to take responsibility for his actions, the prosecutor
improperly suggested “that the presentation of mitigation
evidence constitutes a failure to own up to the [criminal]
conduct.” He argues the prosecutor directly attacked the
process of mitigation instead of specific mitigating factors,
permitting the jury to unfairly conclude that Ovante’s “plea for
his life [during the mitigation process] was nothing more than a
failure to take responsibility.”
¶27 The record does not support Ovante’s claim that the
State improperly argued that the presentation of mitigation was
itself a failure to accept responsibility. During the penalty
phase, the defense contended that Ovante’s negative childhood
and background played a large part in his predicament,
repeatedly making statements like “our choices are the product
of our backgrounds,” and “[w]hat goes into the recipe bowl is
oftentimes what comes out.” In response, the State argued that
Ovante had a choice in all of the decisions he made but was
attempting to deflect responsibility.
12
¶28 Although the State is prohibited from telling a
capital jury that it cannot consider mitigating evidence, the
State may argue that mitigating evidence should not be given
much weight. See State v. Pandeli, 215 Ariz. 514, 526 ¶¶ 35–
36, 161 P.3d 557, 569 (2007). Because the prosecutor was
rebutting mitigation evidence presented about Ovante’s troubled
childhood and dysfunctional family, the prosecutor’s comments
did not create fundamental error.
ii. Overly Emotional Argument
¶29 Ovante next argues that the prosecutor’s closing
argument made “an overly emotional play coloring [him] as a
poisoned seed from a bad family.” He asserts that the
prosecutor focused heavily on the “generational violence”
present in Ovante’s family and allowed the jury to speculate
that, if it did not impose the death sentence, other murders
could occur during this or future generations.
¶30 The prosecutor’s comments about generational violence
responded to defense arguments that Ovante’s conduct partially
resulted from his dysfunctional family. The prosecutor said,
“But what happens down the line? When does it stop? When does
anyone in the Ovante family have to stand up and say, I made
choices? I am responsible for what I did. Instead of poisoning
further generations of Ovantes . . . .” Viewed in context,
these statements militated against the notion that one
13
generation of a family “poisons” the next, and did not urge the
jury to sentence Ovante to death to prevent such “poisoning.”
Even if the prosecutor’s words were susceptible to
misunderstanding, we presume the trial court’s admonition
negated any improper statements. See, e.g., Newell, 212 Ariz.
at 403 ¶¶ 67–68, 132 P.3d at 847 (holding that jury instructions
negated prosecutor’s comments). Ovante has not shown that the
prosecutor’s closing comments were fundamental error.
E. Evidence of Circumstances of the Murders
¶31 Ovante argues that the trial court abused its
discretion by allowing the State, at the beginning of the
penalty phase, to present evidence of the circumstances of his
crimes. Noting that he pleaded guilty to the charges and
stipulated to the alleged aggravating factors, Ovante argues
that this evidence was irrelevant to the thrust of his
mitigation and unfairly prejudicial.
¶32 This argument is meritless. This Court recently
reaffirmed that the State may offer evidence in the penalty
phase about the circumstances of the murder regardless of
whether the defendant presents any mitigation. See State v.
Nordstrom, 230 Ariz. 110, 114-115 ¶¶ 10, 13, 280 P.3d 1244,
1248–49 (2012). Ovante has not established that any of the
State’s evidence regarding the circumstances of the murders and
the aggravated assault (or the related (F)(2) and (F)(8)
14
aggravating circumstances) was unduly prejudicial. Cf. id. at
115 ¶ 11, 280 P.3d at 1249 (holding that evidence of
circumstances of crime was not unduly prejudicial).
F. Final Jury Instructions
¶33 Ovante argues that the trial court erred in its final
jury instructions by stating that Ovante had admitted two
statutory aggravating factors and then failing to identify the
particular aggravators for the jurors. He contends that the
applicable aggravating factors had to be identified in order for
jurors to assess whether the mitigating factors called for
leniency. Because Ovante did not object to the instructions at
trial, we review this claim for fundamental error. State v.
Kuhs, 223 Ariz. 376, 386 ¶ 52, 224 P.3d 192, 202 (2010).
¶34 In the preliminary instructions before the penalty
phase, the trial court explained that Ovante had admitted two
aggravating factors and then briefly described those factors.
Both parties received a copy of the final jury instructions
before they were read to the jury and neither party objected to
how the aggravating and mitigating circumstances were handled.
In the final jury instructions, the court said, “The defendant
has admitted that statutory aggravating circumstances exist,
which make the defendant eligible for the death sentence,” but
the court did not specifically identify which aggravating
factors Ovante had admitted. The prosecution, however, did
15
explain the two aggravating factors in its closing statement.
¶35 “In assessing the adequacy of jury instructions, the
instructions must be viewed in their entirety to determine
whether they adequately reflect the law.” State v. Garcia, 224
Ariz. 1, 18 ¶ 75, 226 P.3d 370, 387 (2010). A court is not
required to give a separate instruction if its substance has
already been covered by other instructions, id., and “[a]
conviction will not be reversed based on the instructions
unless, taken as a whole, they misled the jurors.” State v.
Zaragoza, 221 Ariz. 49, 53 ¶ 15, 209 P.3d 629, 633 (2009).
¶36 The jury instructions, taken as a whole, were accurate
and not misleading. The preliminary instructions specifically
identified the applicable aggravating circumstances. At the
beginning of the penalty phase, the prosecution presented
evidence regarding the crimes and aggravating factors that
Ovante had admitted. Although it would have been better
practice for the trial court to have again identified the
particular aggravating factors in the final instructions, the
failure to do so here was not fundamental error.
G. Discrepancy between the Minute Entry and Oral Pronouncement
of the Sentence
¶37 Ovante argues his sentence must be remanded for
clarification because the trial judge orally pronounced that his
sentences would run consecutively but entered a minute entry
16
ordering two of them to run concurrently. In pronouncing the
sentences, the trial court observed that the victims’ suffering
warranted separate sentences. Accordingly, the court gave
Ovante a six-year prison term for the aggravated assault charge,
to begin on February 24, 2010, and stated that Ovante would
“then be sentenced to life” in prison for count 1 and death for
count 2. The court also announced that Ovante’s life sentence
for count 1 would run consecutively to his death sentence for
count 2. Although the corresponding minute entry states that
the sentence on count 1 will run consecutively to that for count
2, it states that all sentences will begin on February 24, 2010.
¶38 When a discrepancy between the trial court’s oral
pronouncement of a sentence and the written minute entry can be
clearly resolved by looking at the record, the “[o]ral
pronouncement in open court controls over the minute entry.”
State v. Whitney, 159 Ariz. 476, 487, 768 P.2d 638, 649 (1989).
This Court can order the minute entry corrected if the record
clearly identifies the intended sentence. Id. at 487, 768 P.2d
at 649.
¶39 Here, the trial court clearly stated its intent that
the sentence on the aggravated assault count would begin on
February 24, 2010, and the life sentence on count 1 would run
consecutively to the death sentence on count 2. By stating that
Ovante’s death sentence would be concurrent with his sentence
17
for the aggravated assault, the minute entry is not inconsistent
with the oral pronouncement of the sentences. The minute entry,
however, incorrectly states that the sentence of life with
possible parole after twenty-five years will also begin on
February 24, 2010. Accordingly, we correct the minute entry to
delete this statement, leaving the sentence on count 1 to run
consecutively to the sentence on count 2, and affirm the trial
court’s oral pronouncement of the sentences.
H. Abuse of Discretion Review
¶40 Because Ovante murdered Vickers after August 1, 2002,
we review the jury’s imposition of a death sentence for abuse of
discretion. A.R.S. § 13-756(A) (2008) State v. Chappell, 225
Ariz. 229, 242 ¶ 56, 236 P.3d 1176, 1189 (2010).
1. Aggravating Circumstances
¶41 Ovante admitted the (F)(2) aggravator based on his
conviction of aggravated assault with a handgun against
Valenzuela and the (F)(8) aggravator based on his premeditated
murder of Trujillo. After Ovante pleaded guilty, the court
conducted a second colloquy to confirm that he was knowingly,
voluntarily, and intelligently admitting the aggravators and
that he understood that death was a possible sentence.
¶42 Nothing prevents a defendant from waiving his Sixth
Amendment right to have a jury determine aggravating
circumstances. State v. Brown, 212 Ariz. 225, 231 ¶ 26, 129
18
P.3d 947, 953 (2006) (citing Blakely v. Washington, 542 U.S.
296, 310 (2004)). The record amply supports the (F)(2) and
(F)(8) aggravators admitted by Ovante.
2. Mitigating Circumstances
¶43 At the penalty phase, each juror must determine
whether mitigating circumstances exist and whether death is the
appropriate penalty. See A.R.S. § 13-751(C). “The defendant
must prove the existence of the mitigating circumstances by a
preponderance of the evidence,” but “the jurors do not have to
agree unanimously that a mitigating circumstance has been proven
to exist.” Id.
¶44 Ovante presented several mitigation witnesses. The
days of testimony detailing Ovante’s childhood drew a bleak
picture of a life filled with poverty, violence, crime,
molestation, and drug use. The defense discussed his
longstanding substance abuse, and Ovante expressed remorse
during allocution, but there was little evidence showing a
strong connection between the mitigation and the murders.
3. Propriety of death sentence
¶45 We must uphold a jury’s decision that death is
appropriate if any “reasonable juror could conclude that the
mitigation presented was not sufficiently substantial to call
for leniency.” State v. Gallardo, 225 Ariz. 560, 570 ¶ 52, 242
P.3d 159, 169 (2010). In the context of independent review, the
19
Court has given “extraordinary weight” to the multiple murders
aggravating circumstance. State v. Hampton, 213 Ariz. 167, 185
¶ 90, 140 P.3d 950, 968 (2006). Here, in light of the (F)(2)
and (F)(8) aggravators and the mitigation evidence in the
record, a reasonable juror could conclude that the mitigating
circumstances were not “sufficiently substantial to call for
leniency.” Id.; see also A.R.S. § 13-751(C).
I. Additional Issues
¶46 Stating that he seeks to preserve certain issues for
federal review, Ovante lists thirty-one additional
constitutional claims that he acknowledges have been rejected in
previous decisions. We decline to revisit these claims.
CONCLUSION
¶47 We affirm Ovante’s convictions and his sentences as
corrected.
__________________________________
Scott Bales, Vice Chief Justice
CONCURRING:
__________________________________
Rebecca White Berch, Chief Justice
__________________________________
A. John Pelander, Justice
__________________________________
Robert M. Brutinel, Justice
20
__________________________________
Ann A. Scott Timmer, Justice
21