State of Arizona v. Scott Douglas Nordstrom , 230 Ariz. 110 ( 2012 )

SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0266-AP
Appellee, )
) Pima County
v. ) Superior Court
) No. CR55947
SCOTT DOUGLAS NORDSTROM, )
)
Appellant. )
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Pima County
The Honorable Richard D. Nichols, Judge
AFFIRMED
________________________________________________________________
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Division Chief Counsel
Jeffrey A. Zick, Section Chief Counsel
Capital Litigation Section
Lacey Stover Gard, Assistant Attorney General Tucson
Attorneys for State of Arizona
SHARMILA ROY ATTORNEY AT LAW Laveen
By Sharmila Roy
Attorney for Scott Douglas Nordstrom
________________________________________________________________
B A L E S, Vice Chief Justice
¶1 This automatic appeal arises from Scott Douglas
Nordstrom’s 2009 death sentences for his 1996 murders of Thomas
Hardman and Carol Lynn Noel. We have jurisdiction under Article
6, Section 5(3) of the Arizona Constitution and A.R.S. § 13–4031
(2011).
FACTS AND PROCEDURAL BACKGROUND
¶2 On May 30, 1996, Scott Nordstrom and Robert Jones shot
and killed Thomas Hardman and Clarence O’Dell while robbing the
Moon Smoke Shop in Tucson. State v. Nordstrom (Nordstrom I),
200 Ariz. 229, 236-37 ¶¶ 1-4, 25 P.3d 717, 724-25 (2001). Two
weeks later, Nordstrom and Jones shot and killed Carol Lynn Noel
and three others during a robbery at the Firefighters’ Union
Hall, a Tucson social club. Id. at 237-38 ¶¶ 5-7, 25 P.3d at
725-26.
¶3 Police arrested Nordstrom and his brother David in
connection with the murders. Id. at 239 ¶ 17, 25 P.3d at 727.
David admitted he had accompanied Nordstrom and Jones to the
Smoke Shop, but said he had stayed outside. Id. at 243 ¶ 35, 25
P.3d at 731. David entered a plea bargain regarding the Smoke
Shop robbery; the State dismissed the charges against him
related to the Union Hall robbery; and he testified as the
State’s key witness in the separate trials of Nordstrom and
Jones. Id. at 238, 244 ¶¶ 10, 37, 25 P.3d at 726, 732; State v.
Jones, 197 Ariz. 290, 298 ¶ 10, 4 P.3d 345, 353 (2000).1
¶4 At Nordstrom’s trial, eyewitness Carla Whitlock
identified Nordstrom as one of the men she saw run from the
1
A jury found Jones guilty on six counts of murder and other
charges, and he received a death sentence for each murder. See
Jones, 197 Ariz. at 297 ¶ 1, 4 P.3d 352.
2
Smoke Shop on the night of the robbery. David testified that he
had driven Nordstrom and Jones to the Smoke Shop; the pair
entered with handguns and he heard shots; Nordstrom and Jones
later told him they had each shot a person; and the three had
split the robbery money. David also testified that Nordstrom
told him about the Union Hall robbery. Nordstrom I, 200 Ariz.
at 238 ¶ 9, 25 P.3d at 726. Another witness, Michael Kapp,
testified that Nordstrom had solicited him to rob the Union Hall
two years earlier. Id. In his defense, Nordstrom presented
alibi evidence for the day of the Smoke Shop robbery and
evidence suggesting that David had committed the crimes and
implicated his brother to save himself. Id. ¶ 10.
¶5 Nordstrom was convicted of the first degree
premeditated murders of Hardman and Noel, of felony murder for
the other four homicides, and of attempted murder, armed
robbery, and first-degree burglary. Id. at 238-39 ¶ 12, 25 P.3d
at 726-27. At sentencing, the trial judge found three
aggravating circumstances under A.R.S. § 13-751 - (F)(1) (prior
conviction of another offense punishable by life imprisonment or
death), (F)(5) (pecuniary gain), and (F)(8) (multiple homicides)
- and sentenced Nordstrom to death for each murder. Id. at 239
¶ 13, 25 P.3d at 727. This Court affirmed on direct appeal.
Id. at 257 ¶ 99, 25 P.3d at 745.
¶6 Before our mandate issued, the Supreme Court decided
3
Ring v. Arizona, 536 U.S. 584 (2002). In light of Ring, this
Court vacated Nordstrom’s death sentences and remanded for
resentencing, concluding that a jury might have assessed the
mitigating circumstances differently than did the judge. State
v. Nordstrom (Nordstrom II), 206 Ariz. 242, 248 ¶¶ 26-28, 77
P.3d 40, 46 (2003). The State subsequently withdrew its death
penalty allegation for the four felony murder convictions and
its (F)(5) and (F)(8) aggravator allegations for the murders of
Hardman and Noel.2
¶7 At the new aggravation phase, the State argued that
the murder of Hardman established the (F)(1) aggravating factor
for Noel’s murder and vice-versa. The jury found the (F)(1)
aggravator for each murder. Nordstrom then waived the
presentation of mitigation evidence and declined to allocute.
At the penalty phase, the State presented details about the
2
After the remand, the parties extensively litigated issues
regarding the resentencing proceedings, resulting in several
special actions in the court of appeals. For example, although
Nordstrom II held it was harmless error for the trial judge,
rather than a jury, to have found the aggravating factors, 206
Ariz. at 247 ¶ 17, 77 P.3d at 45, the court of appeals ruled
that legislation enacted after Ring required the jury to find
aggravating factors. See Nordstrom v. Cruikshank, 213 Ariz.
434, 438 ¶ 10, 142 P.3d 1247, 1251 (App. 2006). The court of
appeals also ruled that Nordstrom could present alibi evidence
in rebuttal if the State sought the death penalty for the felony
murder convictions. See State v. Nichols (Nordstrom), 219 Ariz.
170, 177 ¶¶ 19-20, 195 P.3d 207, 214 (App. 2008).
4
Hardman and Noel murders and also introduced evidence of
Nordstrom’s convictions for the four other homicides and other
crimes at the Smoke Shop and Union Hall. The State also
established that Nordstrom was on parole when the offenses
occurred. The jury determined Nordstrom should receive death
sentences for both murders.
DISCUSSION
A. Penalty Phase Evidentiary Rulings
¶8 Nordstrom argues that the trial court erred by
allowing the State to offer evidence during the penalty phase of
the four felony murders when he did not present any mitigating
evidence. We review admission of evidence for an abuse of
discretion, State v. Lehr, 227 Ariz. 140, 147 ¶ 19, 254 P.3d
379, 386 (2011), and issues of constitutional and statutory
interpretation de novo, State v. Roque, 213 Ariz. 193, 217 ¶ 89,
141 P.3d 368, 392 (2006).
¶9 Section 13-751(G) states that “[t]he trier of fact
shall consider as mitigating circumstances any factors proffered
by the defendant or state that are relevant in determining
whether to impose a sentence less than death, including any
aspect of the defendant’s character, propensities or record and
any of the circumstances of the offense.” Similarly, A.R.S. §
13-752(G) states:
At the penalty phase, the defendant and the state may
5
present any evidence that is relevant to the
determination of whether there is mitigation that is
sufficiently substantial to call for leniency. In
order for the trier of fact to make this determination,
the state may present any evidence that demonstrates
that the defendant should not be shown leniency.3
¶10 The provisions, taken together, evince a legislative
intent to permit the state to introduce relevant evidence
whether or not the defendant presents evidence during the
penalty phase. “Section 13-752(G) is framed broadly. . . .
Subject to overarching due process considerations, any evidence
that meets § 13-752(G)’s criterion is admissible, regardless of
whether the evidence was admissible at a prior stage of the
trial.” State v. Prince, 226 Ariz. 516, 526 ¶ 15, 250 P.3d
1145, 1155 (2011) (internal citation omitted). As we have
noted:
At the penalty phase, the jury must make “a reasoned,
individualized sentencing determination based on a death-
eligible defendant’s record, personal characteristics, and
the circumstances of his crime.” Kansas v. Marsh, 548
U.S. 163, 174 (2006) (citing Gregg v. Georgia, 428 U.S.
153, 189 (1976) (Stewart, J., plurality opinion)).
Construing § 13-752(G) as generally authorizing the
admission of evidence concerning the circumstances of the
crime and the aggravating factors thus preserves the
3
This opinion cites the current version of statutes unless
otherwise indicated. In 2012, the legislature amended § 13-
752(G) to read: “In order for the trier of fact to make this
determination, regardless of whether the defendant presents
evidence of mitigation, the state may present any evidence that
demonstrates that the defendant should not be shown leniency
including any evidence regarding the defendant’s character,
propensities, criminal record or other acts.” 2012 Ariz. Sess.
Laws ch. 207, § 3 (2nd Reg. Sess.).
6
entire statutory scheme’s constitutionality.
Prince, 226 Ariz. at 527 ¶ 20, 250 P.3d at 1156.
¶11 The trial court did not err by allowing the State to
introduce evidence of Nordstrom’s four felony murders or the
fact that he was on parole when he committed the murders. The
facts surrounding the two first degree murders, as well as
Nordstrom’s felony murders, were relevant to whether Nordstrom
deserved leniency. See State v. Pandeli, 215 Ariz. 514, 529
¶¶ 52-53, 161 P.3d 557, 571-72 (2007) (upholding admission of
evidence of a murder in a separate incident as relevant to
whether defendant deserved leniency); see also State v.
Armstrong, 218 Ariz. 451, 461 ¶ 38, 189 P.3d 378, 388 (2008).
¶12 The evidence, moreover, was not unduly prejudicial.
At the penalty phase, the State introduced photographs of the
victims and presented witnesses who described the crime scenes.
Testimony is not unduly prejudicial where “[t]he witnesses
simply provided details of the crime scene and described . . .
injuries.” Pandeli, at 529 ¶ 53, 161 P.3d at 571 (finding trial
court did not abuse its discretion by admitting evidence of
murder in separate incident).
¶13 Nordstrom also argues that admission of evidence about
the felony murders violated due process, contending that we have
held that “[e]vidence presented for rebuttal must be relevant to
the mitigation proffered.” State v. Boggs, 218 Ariz. 325, 339
7
¶ 65, 185 P.3d 111, 125 (2008); see also State v. Hampton, 213
Ariz. 167, 180 ¶ 51, 140 P.3d 950, 963 (2006). Although these
cases appropriately limit the scope of evidence that the state
may present to rebut mitigation presented by the defense,
neither their holdings nor the due process clause preclude the
state from offering evidence of the circumstances of the crime
when the defendant does not present any mitigation.
¶14 Nordstrom also contends the trial court erred by
barring him from introducing trial transcripts from his 1998
trial to rebut the State’s penalty phase evidence. Nordstrom
characterized the transcripts as “innocence related evidence”
and did not proffer guilt phase evidence for other purposes.
¶15 The trial court determined that the transcripts were
evidence of residual doubt. “[A] defendant has no
constitutional right to present residual doubt evidence at
sentencing.” State v. Moore, 222 Ariz. 1, 20 ¶ 109, 213 P.3d
150, 169 (2009); see also State v. Harrod (Harrod III), 218
Ariz. 268, 281 ¶ 46, 183 P.3d 519, 532 (2008).
¶16 Nordstrom attempts to distinguish Moore and similar
cases by arguing that they involved situations in which the
defendant sought to introduce residual doubt evidence at the
penalty phase that had not been presented at the guilt phase.
He also notes that his “innocence related evidence” concerned
not only the Noel and Hardman murders, but also the four felony
8
murders and other related crimes. These distinctions are not
persuasive. This Court has observed that “there is no
constitutional requirement that the sentencing proceeding jury
revisit the prior guilty verdict by considering evidence of
‘residual doubt’.” State v. Ellison, 213 Ariz. 116, 136 ¶ 82,
140 P.3d 899, 919 (2006). This observation applies equally to
guilt phase evidence offered solely to show the defendant’s
innocence of the crimes for which the death penalty is sought
and related crimes for which the defendant was concurrently
convicted.
B. Prosecutorial Misconduct
¶17 Nordstrom argues that the trial court violated his
rights under the Double Jeopardy Clauses of the Fifth Amendment
to the United States Constitution and Article 2, Section 10 of
the Arizona Constitution by refusing to grant a pretrial
evidentiary hearing on his motion to dismiss on grounds of
prosecutorial misconduct. We review constitutional issues de
novo. Roque, 213 Ariz. at 217 ¶ 89, 141 P.3d at 392.
¶18 In 2006, Nordstrom moved to dismiss the indictment or,
alternatively, to preclude the death penalty, based on
prosecutorial misconduct discovered after the former prosecutor
died. The alleged misconduct principally concerned that
prosecutor’s failure to disclose information that Nordstrom
contends would have impeached testimony by David Nordstrom or
9
other witnesses. The State opposed the motion, disputing many
of Nordstrom’s allegations. The State also argued that
Nordstrom had already litigated some of the issues and that he
could raise others only in a Rule 32 petition for post-
conviction relief. The trial court ruled that it lacked
jurisdiction to consider the merits of Nordstrom’s arguments and
that the Double Jeopardy Clauses did not bar the resentencing.
¶19 The trial court did not have jurisdiction on remand to
consider Nordstrom’s attacks on the validity of his convictions.
This Court affirmed Nordstrom’s convictions on direct appeal in
Nordstrom I, later vacated only his death sentences, and
remanded the case solely for resentencing by a jury. See
Nordstrom II, 206 Ariz. at 248 ¶ 28, 77 P.3d at 46. The remand
order did not encompass consideration of guilt phase issues.
¶20 Nor did the resentencing violate double jeopardy. “A
capital defendant whose original sentence is vacated on appeal
can be resentenced to death so long as the defendant has not
been ‘acquitted’ of the death sentence.” State v. Ring (Ring
III), 204 Ariz. 534, 551 ¶ 40, 65 P.3d 915, 932 (2003).
¶21 Nordstrom relies on State v. Minnitt, 203 Ariz. 431,
55 P.3d 774 (2002), to argue that double jeopardy prevents him
from being resentenced to death because his convictions were
obtained by intentional prosecutorial misconduct. Minnitt,
however, is not apposite. In that case, we held that the Double
10
Jeopardy Clause barred a retrial of the guilt phase after the
state had intentionally used perjured testimony in a trial
ending with a hung jury. Id. at 440 ¶ 45, 55 P.3d at 783. In
contrast, Nordstrom did not face a retrial of the guilt phase,
and the record does not establish that the prosecution knowingly
used perjured testimony.
¶22 The trial court correctly ruled that Nordstrom would
need to seek relief under Rule 32 to pursue his claims that
prosecutorial misconduct discovered after his direct appeal
should invalidate his convictions. Cf. Nordstrom I, 200 Ariz.
at 255 ¶¶ 89-91, 25 P.3d at 743 (affirming trial court’s denial
of Rule 24.4 motion to vacate and noting that claims of newly
discovered impeachment evidence could be raised in Rule 32
proceeding). We of course do not address the merits of those
claims or whether any of them may be precluded under Rule 32.2.
C. Denial of Rule 24 Motion
¶23 Nordstrom argues that, after the jury determined he
should receive death sentences, the trial court erred by
declining to rule on his motion to vacate the judgment.
¶24 In September 2009, after the jury resentencing
verdicts, the trial court entered judgment and sentenced
Nordstrom to death. Nordstrom filed a Rule 24.2 motion to
vacate the judgment, arguing that evidence of prosecutorial
misconduct was “newly discovered material evidence” that
11
rendered his previous convictions invalid. The trial court
denied this motion, concluding that it was untimely.
¶25 Rule 24.2 provides:
Upon motion made no later than 60 days after the entry
of judgment and sentence but before the defendant’s
appeal, if any, is perfected, the court may vacate the
judgment on any of the following grounds:
(1) That it was without jurisdiction of the action;
(2) That newly discovered material facts exist, under
the standards of Rule 32.1; or
(3) That the conviction was obtained in violation of
the United States or Arizona Constitutions.
Ariz. R. Crim. P. 24.2(a) (2012); see also id. cmt. (“Rule 24.2
sets the time limit of 60 days for such motions; after that the
defendant may only petition for relief under Rule 32.”).
¶26 Judgment was entered on Nordstrom’s convictions in May
1998. We affirmed his convictions in Nordstrom I and later
vacated only the death sentences. When the trial court entered
a judgment resentencing Nordstrom in 2009, it did not enter new
judgments on the convictions, but only imposed new sentences.
Thus, the validity of the convictions was not before the trial
court in 2009, and Nordstrom’s Rule 24.2 motion to vacate was
untimely. See State v. Dann, 220 Ariz. 351, 360 ¶ 26, 207 P.3d
604, 613 (2009) (refusing to address on appeal from resentencing
whether defendant’s murder convictions were void after
convictions were affirmed).
D. Due Process Rights
¶27 Nordstrom makes several interrelated arguments that
12
the trial court erred by preventing him from challenging the
convictions that served as the (F)(1) aggravators for the two
murders. We review constitutional claims de novo. Roque, 213
Ariz. at 217 ¶ 89, 141 P.3d at 392. Exclusion of evidence is
reviewed for an abuse of discretion. Lehr, 227 Ariz. at 147
¶ 19, 254 P.3d at 386.
¶28 Nordstrom first argues that Rule 13.5(c) entitled him
to have a neutral magistrate adjudicate the “legal sufficiency”
of the (F)(1) aggravators. Under Rule 13.5(c), a defendant is
entitled to require the state to establish probable cause for an
alleged aggravating factor before it is submitted to a jury.
Chronis v. Steinle, 220 Ariz. 559, 562 ¶¶ 15, 18, 208 P.3d 210,
213 (2009). Here, on remand, the trial court reviewed the
evidence and found probable cause to try Nordstrom on the (F)(1)
aggravators, noting that this Court had affirmed Nordstrom’s
premeditated murder convictions and the original findings of the
(F)(1) aggravators on direct appeal in Nordstrom I and later in
Nordstrom II. Thus, Rule 13.5 was satisfied.
¶29 Nordstrom also alleges that his underlying convictions
were constitutionally invalid because they were obtained by
prosecutorial misconduct, and therefore the (F)(1) aggravators
based on these convictions were also invalid. But when the case
was remanded for resentencing of the capital murder convictions,
Nordstrom was not entitled to collaterally attack the validity
13
of the convictions that were affirmed on direct appeal.
“[W]here . . . the conviction is valid on its face, the
defendant is precluded from attempting to undermine the validity
of the conviction by collateral attack.” State ex rel. Collins
v. Superior Court, 157 Ariz. 71, 75, 754 P.2d 1346, 1350 (1988);
see also State v. Gretzler (Gretzler I), 128 Ariz. 583, 585-86,
627 P.2d 1081, 1083-84 (1981) (prior convictions not void
because no violation of Boykin v. Alabama, 395 U.S. 238 (1969),
was apparent in acceptance of guilty pleas).
¶30 Nordstrom alternatively argues that the trial court
should have permitted him to rebut the State’s case during the
aggravation phase by allowing him to present evidence of his
alibi and prosecutorial misconduct (that is, the alleged non-
disclosure of impeachment material). This argument, however,
merely recasts his arguments that he should have been allowed,
on re-sentencing, to introduce residual doubt evidence.
¶31 Finally, Nordstrom argues that the trial court abused
its discretion by declining to strike the first panel of
prospective jurors after the court revealed to them that
Nordstrom had been convicted of four murders in addition to the
two for which the State was pursuing death sentences.
Nordstrom, however, does not identify how the jury was
prejudiced, given that the four felony murder convictions were
properly admitted as evidence in the penalty phase. Moreover,
14
to determine if the prospective jurors could be fair and
impartial, the trial judge needed to apprise them about the
facts of the case, which included Nordstrom’s convictions for
four murders in addition to the Hardman and Noel murders.
E. Contemporaneous Convictions
¶32 The (F)(1) aggravating circumstance exists when the
“defendant has been convicted of another offense in the United
States for which under Arizona law a sentence of life
imprisonment or death was imposable.” A.R.S. § 13-751(F)(1).
Nordstrom argues that this Court should strike the (F)(1)
aggravating circumstance for the Hardman and Noel murders
because the legislature did not intend that contemporaneous
convictions would establish this aggravator. We review matters
of statutory interpretation de novo. Roque, 213 Ariz. at 217
¶ 89, 141 P.3d at 392.
¶33 In 2003, the legislature amended A.R.S. § 13-751(F)(2)
to explicitly allow “offenses committed on the same occasion” or
offenses “not committed on the same occasion, but consolidated
for trial with the homicide” to establish the (F)(2) aggravating
circumstance. 2003 Ariz. Sess. Laws, ch. 255, § 1 (1st Reg.
Sess.) The legislature did not similarly amend A.R.S. § 13-
751(F)(1). Nordstrom infers that the legislature therefore
intended that contemporaneous convictions could not establish
the (F)(1) aggravating circumstance.
15
¶34 We disagree. “As long as the prior conviction is
entered before the sentencing hearing, the conviction may
support the (F)(1) aggravator even if it is committed before,
contemporaneously with, or after the capital homicide.” State
v. Tucker, 215 Ariz. 298, 320 ¶ 98, 160 P.3d 177, 199 (2007);
see also State v. Gretzler (Gretzler II), 135 Ariz. 42, 57 n.2,
659 P.2d 1, 16 n.2 (1983). Relying in part on the (F)(1)
aggravating circumstance, we previously upheld six death
sentences for Nordstrom’s co-participant in the Smoke Shop and
Union Hall murders. Jones, 197 Ariz. at 314 ¶ 82, 4 P.3d at
369. Although the six murders did not occur in one incident, we
concluded that “because each set of murders provides a
sufficient basis for finding the factor as to the other set of
murders, we find the F.1 factor proven beyond a reasonable
doubt.” Id. at 311 ¶ 63, 4 P.3d at 366. Similar reasoning
applies here.
¶35 Although the legislature amended the (F)(2) aggravator
in 2003 to explicitly include contemporaneous convictions, the
amendment does not reflect an intent to exclude contemporaneous
convictions from serving as an (F)(1) aggravator. Instead, the
2003 amendment evidently was intended to displace our ruling in
State v. Rutledge, 206 Ariz. 172, 175-78 ¶¶ 15–25 & n.3, 76 P.3d
443, 446–49 & n.3 (2003), which held that crimes occurring
during the same course of events as the murder could not serve
16
as (F)(2) qualifying serious offenses. The legislature did not
need to similarly amend (F)(1) because this Court had previously
approved the use of concurrent convictions to establish the
(F)(1) aggravator. See Jones, 197 Ariz. at 310-11 ¶¶ 60-63, 4
P.3d at 365-66.
F. Rule 20 Motion
¶36 Nordstrom argues that the trial court erroneously
denied his Rule 20 motion for judgment of acquittal after the
State failed to present evidence that life imprisonment or death
were imposable sentences for the murders of Hardman and Noel.
The trial court instructed the jury that these murders were
subject to such penalties. Nordstrom contends that the judge
erroneously relieved the State of its duty to prove every
element of the (F)(1) aggravator. The trial court’s denial of a
Rule 20 motion is reviewed de novo. State v. West, 226 Ariz.
559, 562 ¶ 15, 250 P.3d 1188, 1191 (2011).
¶37 The statutory sentencing range for crimes is a matter
of law rather than fact and does not require a jury finding.
See State v. Moody, 208 Ariz. 424, 470 ¶ 216, 94 P.3d 1119, 1165
(2004). The State was not obligated to present testimony or
other evidence proving matters of law such as statutory
sentencing ranges. Thus, the court appropriately instructed the
jury that Nordstrom’s convictions for premeditated murder were
punishable by sentences of life imprisonment or death.
17
G. Individualized Sentencing
¶38 Nordstrom argues that he was denied his right to an
individualized sentencing because the trial court did not allow
him to present any of the guilt phase evidence, including the
trial transcripts consisting of alibi and innocence-related
evidence, to the new sentencing jury. We review constitutional
claims de novo. Roque, 213 Ariz. at 217 ¶ 89, 141 P.3d at 392.
¶39 In challenging the exclusion of evidence from the
aggravation and penalty phases, Nordstrom does not identify any
guilt phase evidence other than the residual doubt evidence. As
discussed above, the trial court properly precluded Nordstrom
from presenting guilt phase evidence to show residual doubt.
“During the aggravation and penalty phase, a jury may not
revisit its initial guilty verdict. The only issue at the
aggravation phase is whether any aggravating circumstances have
been proved; the only issue during the penalty phase is whether
death is the appropriate sentence.” Anderson, 210 Ariz. at 348
¶ 86, 111 P.3d at 390.
H. Victim Photographs
¶40 Nordstrom argues that the trial court abused its
discretion in allowing the State to introduce photographs of the
crime scenes showing the victims’ bodies. He claims the
photographs were irrelevant because he did not present
mitigation. Nordstrom also claims they were unduly prejudicial
18
because they served only to inflame the jurors. We review the
admissibility of evidence for an abuse of discretion. See State
v. Spreitz, 190 Ariz. 129, 141, 945 P.2d 1260, 1271 (1997).
¶41 Photographs of the crime scenes showing the victims’
bodies were relevant to show the circumstances of the two
capital murders. As explained above, supra ¶ 12, the State was
entitled to present evidence regarding those circumstances
during the penalty phase even though Nordstrom chose not to
present mitigation evidence. Nor does the record show that the
photographs were offered only to inflame the jury or were
otherwise unduly prejudicial. The photographs merely described
the layout of each crime scene and identified the victims.
I. Independent Review
¶42 Because Nordstrom committed the murders before August
1, 2002, we must independently review his death sentences. See
A.R.S. § 13-755(A).
1. Aggravating Circumstances
¶43 The State proved the (F)(1) aggravator beyond a
reasonable doubt for each murder. Witnesses testified that
Nordstrom was convicted at his original trial of murdering
Hardman and Noel, and the State also introduced copies of the
jury verdicts. Each conviction was punishable by a sentence of
life imprisonment or death, and each established the (F)(1)
aggravator for the other premeditated murder.
19
2. Mitigating Circumstances
¶44 Nordstrom presented no mitigation evidence and did not
allocute. Although mitigation evidence may be found anywhere in
the record, there is little evidence before this Court to
suggest that Nordstrom is entitled to leniency.
¶45 When Nordstrom was originally sentenced to death in
1998, the trial judge found that he had not proved any statutory
mitigating circumstances, but had proved two non-statutory
mitigators: “employment history” and “caring family and parent
relationships.” The trial court also noted that Nordstrom had
no prior convictions for serious offenses, but did not find this
mitigating given Nordstrom’s convictions in this case for
multiple murders on different occasions. Nordstrom I, 200 Ariz.
at 256-57 ¶ 97, 25 P.3d at 744-45.
¶46 The State argues that we should not consider
mitigation evidence that was not introduced at the 2009
resentencing. “In our independent review of aggravating
circumstances, we have declined to consider evidence that the
sentencing jury did not hear,” Lehr, 227 Ariz. at 155 ¶ 80, 254
P.3d at 394, and the State argues that we should treat
mitigating evidence similarly. Even if we consider the evidence
from the 1998 sentencing, however, we find it is not
significantly mitigating.
20
3. Propriety of Death Sentence
¶47 In reviewing the propriety of the death sentence, we
consider the quality and the strength, not simply the number, of
aggravating and mitigating factors. State v. Greene, 192 Ariz.
431, 443 ¶ 60, 967 P.2d 106, 118 (1998). Nordstrom murdered
Hardman in a robbery in which he killed another person, and he
was eligible for a death sentence because he was previously
convicted of the premeditated murder of Noel in a different
robbery. He was on parole when he committed the murders, and he
presented no mitigation at the resentencing. Under the
circumstances, “the mitigation is not sufficiently substantial
to warrant leniency.” A.R.S. § 13-755(B). The same conclusion
applies with respect to the murder of Noel, which Nordstrom
committed in a robbery in which three others were murdered.
J. Preservation of Issues for Federal Review
¶48 To avoid preclusion, Nordstrom lists twenty additional
constitutional claims that he states have been rejected in
previous decisions. The appendix lists these claims and the
decisions Nordstrom identifies as rejecting them.
CONCLUSION
¶49 We affirm Nordstrom’s sentences.
__________________________________
Scott Bales, Vice Chief Justice
21
CONCURRING:
__________________________________
Rebecca White Berch, Chief Justice
__________________________________
A. John Pelander, Justice
__________________________________
Robert M. Brutinel, Justice
__________________________________
Maurice Portley, Judge*
* Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable Maurice Portley, Judge of the Arizona Court of
Appeals, Division One, was designated to sit in this matter.
22
APPENDIX
Nordstrom raises twenty issues to preserve them for
federal review. This Appendix lists verbatim his claims and the
decisions he identifies as rejecting them.
1. The prosecutor’s discretion to seek the death penalty
has no standards and therefore violates the Eighth and
Fourteenth Amendments to the United States Constitution and
Article 2, Sections 1, 4, and 15 of the Arizona
Constitution. See State v. Cromwell, 211 Ariz. 181, 192,
119 P.3d 449, 459 (2005).
2. Arizona’s death penalty is applied so as to
discriminate against poor, young, and male defendants whose
victims have been Caucasian, in violation of the Eighth and
Fourteenth Amendments and Article 2, Sections 1, 4, and 13
of the Arizona Constitution. See State v. West, 176 Ariz.
432, 455, 862 P.2d 192, 215 (1993).
3. The death penalty is cruel and unusual under any
circumstances and violates the Eighth and Fourteenth
Amendments to the United States Constitution and Article 2,
Section 15 of the Arizona Constitution. See State v.
Harrod, 200 Ariz. 309, 26 P.3d 492 (2001).
4. Execution by lethal injection is per se cruel and
unusual punishment. State v. Van Adams, 194 Ariz. 408,
422, 984 P.2d 16, 30 (1999); State v. Hinchey, 161 Ariz.
307, 315, 890 P.2d 602, 610 (1996).
5. Arizona’s death penalty statute unconstitutionally
requires defendants to prove that their lives should be
spared. State v. Fulminante, 161 Ariz. 237, 258, 779 P.2d
602, 623 (1988).
6. Arizona’s death penalty statute unconstitutionally
requires imposition of the death penalty whenever at least
one aggravating circumstance and no mitigating
circumstances exist. State v. Miles, 186 Ariz. 10, 19, 918
P.2d 1028, 1037 (1996).
7. The statute unconstitutionally fails to require the
cumulative consideration of multiple mitigating factors or
require specific findings to be made as to each factor.
23
State v. Gulbrandson, 184 Ariz. 46, 69, 906 P.2d 579, 602
(1995).
8. The death penalty is unconstitutional because it
permits jurors unfettered discretion to impose death
without adequate guidelines. State v. Johnson, 212 Ariz.
425, 133 P.3d 735, 750 (2006).
9. The statute is unconstitutional because there are not
statutory standards for weighing. State v. Atwood, 171
Ariz. 576, 645-46, 832 P.2d 693, 662-63 (1992).
10. The statute insufficiently channels the sentencer’s
discretion in imposing the death sentence. State v.
Greenway, 170 Ariz. 151, 164, 823 P.2d 22, 31 (1991).
11. Appellant claims that a proportionality review of a
defendant’s death sentence is constitutionally required.
State v. Gulbrandson, 184 Ariz. 46, 73, 906 P.2d 579, 606
(1995).
12. Appellant claims that the State’s failure to allege an
element of a charged offense, the aggravating factors that
made the defendant death eligible, is a fundamental defect
that renders the indictment constitutionally defective.
McKaney v. Foreman, 209 Ariz. 268, 271, 100 P.3d 18, 21
(2004).
13. Appellant asserts that the application of the new
death penalty statute passed in response to Ring v.
Arizona, 536 U.S. 584 (2002), violates a defendant’s right
against ex post facto application of new laws. State v.
Ring, 204 Ariz. 534, 547, 65 P.3d 915, 928 (2003).
14. Subjecting Appellant to a new trial on the issues of
aggravation and punishment before a new jury violated the
double jeopardy clause of the Fifth Amendment. State v
Ring, 204 Ariz. 534, 547, 65 P.3d 915, 928 (2003).
15. Arizona’s statutory scheme for considering mitigating
evidence is unconstitutional because it limits full
consideration of that evidence. State v. Mata, 215 Ariz.
233, 242, 609 P.3d 48, 57 (1980).
16. The absence of notice of aggravating factors prior to
Appellant’s guilt phase trial violates the Sixth, Eighth,
and Fourteenth Amendments. State v. Anderson, 210 Ariz.
24
 327, 347, 111 P.3d 369, 389 (2005).
17. The reasonable doubt jury instruction at the
aggravation phase lowered the burden of proof and deprived
Appellant of his right to a jury trial and due process
under the Sixth and Fourteenth Amendments. State v. Dann,
205 Ariz. 557, 575, 74 P.3d 231, 249 (2003).
18. Subjecting Appellant to a new trial on the issues of
aggravation and punishment before a new jury violated the
due process clause of the Fourteenth Amendment. State v.
Ellison, 213 Ariz. 116, 137, 140 P.3d 899, 920 (2006).
19. Requiring the jury to unanimously determine whether
the mitigating factors were sufficiently substantial to
call for leniency violated the Eighth Amendment. State v.
Ellison, 213 Ariz. 116, 137, 140 P.3d 899, 920 (2006).
20. Arizona’s death statute creates an unconstitutional
presumption of death and places an unconstitutional burden
on Appellant to prove that mitigation is sufficiently
substantial to call for leniency. State v. Glassel, 211
Ariz. 33, 52, 116 P.3d 1193, 1212 (2005).
25