State of Arizona v. Dale Shawn Hausner ( 2012 )

SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0077-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) Nos. CR2006-012721-001 DT
DALE SHAWN HAUSNER, ) CR2006-048493-002 DT
) CR2007-006031-001 DT
Appellant. ) CR2008-006364-001 DT
) CR2008-007313-002 DT
)
)
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Roland J. Steinle, Judge
AFFIRMED IN PART; REVERSED IN PART
________________________________________________________________
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Lacey Stover Gard, Assistant Attorney General Tucson
Attorneys for State of Arizona
BRUCE PETERSON, OFFICE OF THE LEGAL ADVOCATE Phoenix
By Thomas J. Dennis, Deputy Legal Advocate
Attorney for Dale Shawn Hausner
________________________________________________________________
B A L E S, Justice
¶1 This automatic appeal arises from Dale Shawn Hausner’s
convictions and death sentences for six murders; he also was
convicted and sentenced for seventy-four non-capital offenses.
We have jurisdiction under Article 6, Section 5(3) of the
Arizona Constitution and A.R.S. § 13-4031 (2011). We reverse
Hausner’s conviction for one count of animal cruelty and
otherwise affirm his convictions and sentences.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Between June 2005 and August 2006, Hausner engaged in
a series of random shootings in the Phoenix area. He murdered
six people, wounded eighteen others, and also shot several dogs
and a horse. The human victims were pedestrians or bicyclists;
the shootings largely occurred between 10 p.m. and 3 a.m.; and
the victims were shot from Hausner’s car with 12 gauge or .410
shotguns or a .22 caliber gun. Samuel Deiteman, Hausner’s
friend and roommate, participated in many of the crimes.
¶3 Hausner was identified through efforts of the Phoenix
Police Department. In spring 2006, the police set up an
investigative task force after concluding that a serial shooter
was involved in an accelerating crime spree. In May 2006, one
person (Claudia Gutierrez-Cruz) was killed and five others
wounded; eleven more people were wounded from June 1 to July 22.
In mid-July, an anonymous caller – later identified as Ron
Horton – left a message with the “Silent Witness” program that
his friend “Sammy” had said he was involved in the shootings.
Horton later met with a police detective, said “Sammy” was
Samuel Dieteman, and identified Dieteman in a video taken at a
Walmart store that had been set on fire. On July 30, Robin
2
Blasnek was killed with a .410 shotgun while she was walking at
night in Phoenix.
¶4 At the request of police, Horton arranged to meet
Dieteman at a bar on August 1. Police saw Hausner, whom they
had not previously identified as a suspect, drop Dieteman off at
the bar around 6:30 p.m. Hausner was driving a Toyota Camry,
and witnesses had previously told police that a “Camry-type
vehicle” had been involved in certain shootings. The police
followed Hausner to a mall, where they placed a GPS tracking
device on his car. Hausner later returned to the bar, spoke
with Dieteman in the parking lot for about thirty minutes, and
then returned to Hausner’s apartment at about 8:20 p.m.
¶5 Shortly after 1 a.m. on August 2, Hausner drove from
his apartment and met Dieteman at a casino. Police officers
surreptitiously saw them open the trunk of Hausner’s car, wait
while a security guard drove past, and then remove a duffel bag
and place it on the back seat. They left the casino. Over the
next two hours, police followed them as they drove through
several cities in the southeastern Phoenix metropolitan area.
They appeared to drive aimlessly through business and
residential neighborhoods, but when they approached pedestrians
or bicyclists, they slowed and sometimes circled back to pass
the person again. At about 4 a.m., they returned to Hausner’s
3
apartment, where an officer overheard one of them say “it’s
probably because of the rain,” as they walked inside.
¶6 On the evening of August 2, detectives met with the
Maricopa County Attorney, who approved emergency wiretaps for
Dieteman’s phone and for Hausner’s apartment and car. (This
opinion, like the parties in their briefs and the trial court in
its rulings, refers to the electronic monitoring devices as
“wiretaps.”) That same night, detectives also obtained warrants
from a judge authorizing police to place the wiretaps in the car
and apartment.
¶7 From about 9:35 a.m. until midnight on August 3, the
police monitored conversations in the apartment. Hausner and
Dieteman made several statements implicating themselves in the
shootings, including comments boasting or joking about certain
killings and mocking their victims. Police also collected items
from a bag Dieteman put in the apartment dumpster, including a
map of the Phoenix area with markings near some of the
shootings. Hausner’s and Dieteman’s fingerprints were on the
map. The discarded items also included .410 shotgun shells; a
written note listing Robin Blasnek’s name, date, and time of
shooting; and newspaper articles and clippings related to the
shootings.
¶8 Near midnight on August 3, police arrested Hausner and
4
Dieteman. Hausner later admitted owning shotguns, but told
detectives he was not involved in the shootings. He also
mentioned that a .410 shotgun had been used in the shootings, a
fact the police had not publicized. On August 7, Hausner held a
press conference and again denied involvement in the shootings.
¶9 After Hausner’s arrest, police searched his apartment
and found shotguns, ammunition, and news clippings and videos
about the shootings. In Hausner’s car, police found .22 shell
casings and bullets, as well as .410 shot and 20 gauge shotgun
shells. Hausner had once owned two .22 caliber rifles made by
the Marlin Company. Based on rifling patterns found on bullets,
a forensic expert determined that a .22 Marlin had been used in
six of the crimes. The expert also matched shell casings found
in Hausner’s car to guns used in some of the crimes.
¶10 The State filed eighty-eight charges against Hausner
in five indictments: eight counts of first degree, premeditated
murder; two counts of aggravated assault; twenty-six counts of
drive-by shooting; ten counts of animal cruelty; two counts of
discharging a firearm at a non-residential structure; one count
of discharging a firearm at a residential structure; one count
of discharging a firearm within Tempe city limits; two counts of
conspiracy to commit first degree murder; one count of
conspiracy to commit animal cruelty; and two counts of arson
5
involving two Walmart stores.
¶11 The cases were consolidated for trial. Dieteman
entered a plea agreement and testified against Hausner, who
testified on his own behalf. A jury found Hausner guilty of
eighty offenses and acquitted him of seven. (The State
dismissed one.) During the aggravation phase, the State
presented evidence to prove that the murders of Gutierrez-Cruz
and Blasnek were “especially cruel” and thus death-eligible
under A.R.S. § 13-751(F)(6). (This opinion cites the current
version of criminal statutes unless they have materially changed
since the conduct at issue.) The State relied on guilt-phase
evidence to prove other aggravating factors.
¶12 With respect to Gutierrez-Cruz and Blasnek, the jury
found the (F)(6) aggravator because each murder was both
“especially cruel” and “heinous or depraved.” The jury found
the (F)(6) aggravator with respect to victims Jose Ortis and
Marco Carillo because their murders were “heinous or depraved.”
With respect to these four victims, the jury also found the
murders were committed in a “cold, calculated manner,” an
aggravating factor under § 13-751(F)(13). Finally, with respect
to these victims and victims David Estrada and Nathanial
Shoffner, the jury found both the (F)(1) (conviction of another
offense subject to sentence of life imprisonment or death) and
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(F)(2) (prior conviction of a “serious offense”) aggravators.
¶13 Hausner waived mitigation other than allocution. The
jury determined that death was the appropriate sentence for each
of the six murder convictions. The trial court also sentenced
Hausner to consecutive life terms for his two convictions for
conspiracy to commit first degree murder and various concurrent
and consecutive sentences for his other non-capital convictions.
This automatic appeal followed.
DISCUSSION
¶14 This opinion discusses issues that Hausner raised and
argued on appeal. An appendix lists seventeen other
constitutional claims that Hauser seeks to preserve for later
review, along with the prior decisions of this Court that he
identifies as rejecting them.
A. Dismissal of Prospective Jurors
¶15 Hausner argues that the trial court erred by granting
the State’s motion to strike potential jurors 235A and 164B, who
voiced hesitation, but said they could vote for the death
penalty. He maintains that the trial court dismissed these
jurors “merely to taper an over-abundance of qualified jurors”
and to make a “clean record through jury selection,” and thereby
violated Witherspoon v. Illinois, 391 U.S. 510 (1968), and
Wainwright v. Witt, 469 U.S. 412 (1985).
7
¶16 A potential juror may not be struck for cause merely
because he “voiced general objections to the death penalty.”
State v. Prince (Prince II), 226 Ariz. 516, 528 ¶ 27, 250 P.3d
1145, 1157 (2011) (quoting Witherspoon, 391 U.S. at 522).
However, a trial court “may strike a juror whose views about
capital punishment ‘would prevent or substantially impair the
performance of his duties as a juror in accordance with his
instructions and his oath.’” Prince II, 226 Ariz. at 528 ¶ 27,
250 P.3d at 1157 (quoting Witt, 469 U.S. at 433).
¶17 During voir dire, when the trial court denied motions
to strike certain jurors for cause, it placed them in a “pool”
for later reconsideration. The pool included jurors 235A and
164B and six jurors to whom Hausner objected. Subsequently, the
trial court – without objection by Hausner – reconsidered the
objections to these eight jurors and struck them all. The court
noted that there was “no issue” with respect to forty-one jurors
remaining on the clerk’s juror list (the list was in ascending
numeric order, first for “A” jurors and then “B” jurors). The
court drew a line after Juror 129B and struck jurors numbered
130B or higher. Having narrowed the field to forty jurors, the
court allowed each side to exercise ten peremptory strikes,
leaving twenty jurors for trial.
¶18 The trial court did not commit reversible error in
8
dismissing jurors 235A and 164B. Any error in dismissing Juror
164B was plainly harmless, as Hausner’s counsel acknowledged
during oral argument, because this juror was not among the first
forty on the clerk’s list and thus would not have been in the
final pool even if not dismissed for cause.
¶19 During voir dire, Juror 235A said she did not think
she could choose between life and death, and did not want to be
placed in that situation, but could follow the law and vote to
impose death. She stated that she felt “a little intimidated to
make that choice.” The State moved to strike Juror 235A because
“she obviously doesn’t want to be placed in this situation.”
¶20 By granting the State’s motion, the trial court
apparently struck the juror based on her reluctance to serve
rather than her opposition to the death penalty. We have upheld
dismissal when a juror is conflicted about imposing the death
penalty, Prince II, 226 Ariz. at 528 ¶ 29, 250 P.3d at 1157, and
we defer to the trial judge’s determination that “a prospective
juror would be unable to faithfully and impartially apply the
law.” Witt, 469 U.S. at 424-26; see also State v. Ellison, 213
Ariz. 116, 137 ¶ 89, 140 P.3d 899, 920 (2006). Given Juror
235A’s desire not to serve and her conflicting statements, the
trial judge did not abuse his discretion in striking her.
9
B. Admission of Wiretap Conversations
¶21 Hausner argues that the trial court erred in failing
to suppress recorded conversations obtained by the wiretap in
his apartment on August 3. The County Attorney approved the
wiretap under Arizona’s “emergency wiretap” statute, A.R.S.
§ 13-3015. This statute allows the Arizona Attorney General, a
county attorney, or other designated prosecutors to authorize
temporary wiretaps if he or she “reasonably determines that an
emergency situation exists involving immediate danger of death
or serious physical injury to any person, and that such death or
serious physical injury may be averted by interception of wire,
electronic or oral communications before an order authorizing
such interception can be obtained.” Id. Within forty-eight
hours, the prosecutor must apply for a court order authorizing
the interception in accordance with the general wiretap statute,
A.R.S. § 13-3010. If such authorization is not obtained, the
prosecutor must “immediately terminate” the interception, and
“any communications intercepted without judicial authorization
may not be used as evidence.” A.R.S. § 13-3015(C).
¶22 Hausner argues that the wiretap was illegal because
(1) there was not an “emergency situation” under § 13-3015; (2)
the wiretap failed otherwise to satisfy statutory requirements;
and (3) Article 2, Section 8 of Arizona’s Constitution forbids
10
the warrantless intrusion into a home absent exigent
circumstances, and police inaction (here, the failure of the
police to arrest Dieteman or otherwise intercede) cannot create
such circumstances. We reject these arguments.
1. Factual and Statutory Background
¶23 We review the denial of a motion to suppress wiretap
evidence for an abuse of discretion, State v. Ring, 200 Ariz.
267, 273 ¶ 14, 25 P.3d 1139, 1145 (2001), rev’d on other
grounds, Ring v. Arizona, 536 U.S. 584 (2002), and review
questions of constitutional and statutory interpretation de
novo, State v. Armstrong, 218 Ariz. 451, 463 ¶ 54, 189 P.3d 378,
390 (2008). We consider the evidence presented at the
suppression hearing and view the facts in the light most
favorable to sustaining the trial court’s ruling. State v.
Manuel, 229 Ariz. 1, 4 ¶ 11, 270 P.3d 828, 831 (2011).
¶24 On July 28 and 29, Ron Horton told detectives that
Dieteman, his former roommate, had said he was involved in the
shootings and had used a .410 shotgun. Police had not
publicized information about the weapon. Horton also said
Dieteman referred to the crimes as “RRV’ing,” which stood for
random, recreational violence. On July 30, Robin Blasnek was
killed with a .410 shotgun while walking at night.
¶25 When police followed Dieteman on the evening of August
11
1 and early morning of August 2, they saw him meet Hausner,
transfer a duffel bag from the trunk to the back seat of
Hausner’s car, and then drive around in a manner suggesting that
Dieteman and Hausner could be looking for victims. Around 4:30
or 5 p.m. on August 2, detectives briefed the County Attorney,
who approved emergency wiretaps for Hausner’s home and car.
That evening, detectives sought and obtained warrants to place
the wiretaps.
¶26 On August 3, conversations between Hausner and
Dieteman in the apartment were recorded from approximately 9:35
a.m. until 11:55 p.m., when the two were arrested. At around 2
p.m. on August 3, police sought and obtained warrants to search
Hausner’s apartment and car; the warrants were to be executed
that evening between 10 p.m. and 6 a.m. Consistent with A.R.S.
§ 13-3015, at 4:15 p.m. on August 4, the afternoon after Hausner
and Dieteman were arrested, the police submitted an affidavit
applying for a court order approving the emergency wiretaps, and
the superior court granted the order that day.
¶27 Arizona law generally prohibits the interception of
wire, oral, or electronic communications. See A.R.S. § 13–3005.
Upon proper application, however, a judge may issue an ex parte
order authorizing an interception pursuant to A.R.S. § 13–3010:
[I]f the judge determines on the basis of the facts
submitted by the applicant that:
12
1. There is probable cause to believe that a person is
committing, has committed or is about to commit a
particular crime.
2. There is probable cause to believe that particular
communications concerning that offense will be
obtained through the interception.
3. Normal investigative procedures have been tried and
have failed or reasonably appear to be unlikely to
succeed if tried or to be too dangerous.
4. There is probable cause to believe any of the
following:
(a) Wire or electronic communications concerning the
offense are being made or are about to be made by the
person over the communication facilities for which
interception authority is granted.
(b) Oral communications concerning the offense are
being made or are about to be made by the person in
the location for which interception authority is
granted.
(c) Communications concerning the offense are being
made or are about to be made by the person in
different and changing locations, or from different
and changing facilities.
A.R.S. § 13-3010(C).
¶28 In 1984, we held that Arizona’s wiretap scheme
substantially complied with federal law, which allows states to
adopt more, but not less, restrictive limits on electronic
surveillance than are imposed by 18 U.S.C. §§ 2510-2520, the
federal wiretap statute colloquially known as “Title III.” See
State v. Gortarez, 141 Ariz. 254, 259 ¶ 4, 686 P.2d 1224, 1229
13
(1984). In 1988, the legislature enacted § 13-3015, the
emergency wiretap provision, as part of legislation intended to
conform Arizona law to amendments to Title III. 1998 Ariz. Sess.
Laws, ch. 149, § 13 (2d Reg. Sess.).
¶29 Arizona’s emergency wiretap statute largely tracks
federal law, but has some different language. The federal
statute applies when an emergency situation “requires” an
interception before a court order authorizing it “can, with due
diligence, be obtained.” 18 U.S.C. § 2518(7)(a). Without
explicitly referring to due diligence, Arizona’s statute allows
interception if an emergency “may be averted . . . before an
order authorizing such interception can be obtained.” A.R.S.
§ 13-3015(A). Arizona’s statute requires that an application
for an ex parte order be made “as soon as practicable, and in no
event later than forty-eight hours” after the emergency
interception begins. Id. § 13-3015(B).
2. Existence of an Emergency Situation
¶30 Hausner argues that an emergency situation did not
exist. He contends that the State was not faced with an
“immediate danger of death or serious physical injury to any
person,” § 13-3015(A), because the immediate danger must be
“clear and present, not speculative and too distant.”
¶31 Citing United States v. Crouch, 666 F. Supp. 141414
(N.D. Cal. 1987), Hausner argues that an emergency wiretap is
permissible only if the emergency is “imminent” and not merely
because “serious criminal activity is planned for some
unspecified date in the future.” Id. at 1417. He contends
there was no emergency here because police had no idea whether a
criminal act would occur, they did not have any information
about “when or where or who might be victimized in a future
criminal act,” and there was no “immediate danger” because
police had him and Dieteman under constant surveillance.
¶32 These arguments ignore the trial court’s findings. In
denying the motion to suppress, the court noted that there had
been a shooting only days before the emergency wiretap was
placed. Phoenix police observed Dieteman and Hausner drive as
if they might be “trolling for victims” on the night of August
1. Crediting the detectives’ testimony, the trial court
concluded that police could not have prevented another shooting
merely by surveillance because the random shootings were made
from a car. Instead, the court found that the police “needed
the emergency intercept in order to prevent another random
shooting.” These findings, which Hausner has not challenged,
establish that there was an immediate danger of death or serious
physical injury.
¶33 Hausner’s argument that “the entire emergency could
15
have been avoided by simply arresting Dieteman, whom police
clearly had probable cause to arrest,” is also unconvincing.
The trial court specifically found that the information the
officers had on August 2 was insufficient to support a finding
of probable cause to arrest. Even though the police had
sufficient information to obtain a warrant to install the
wiretaps on August 2, whether probable cause existed to support
a wiretap or a search is a different question from whether the
officers had probable cause to arrest an individual for having
committed a particular crime. See A.R.S. § 13-3010(C)(1)
(authorizing interception in certain circumstances when there is
probable cause to believe a person is about to commit a
particular crime).
¶34 Hausner also argues that even if the police did not
have probable cause to arrest Dieteman by 5 p.m. on August 2
(when the County Attorney was briefed on the emergency wiretap),
they did by 2 p.m. the next day, when they submitted search
warrant affidavits asserting they had probable cause to search
Hausner’s apartment. In this respect, Hausner contends that an
emergency wiretap must end if the emergency initially justifying
its implementation no longer exists. We disagree. Police “are
under no constitutional duty to call a halt to criminal
investigation the moment they have the minimum evidence to
16
establish probable cause” to arrest the suspect. Kentucky v.
King, 131 S. Ct. 1849, 1860–61 (2011) (internal quotation
omitted). Police instead may delay making an arrest “in the
hope of ferreting out any hitherto unknown individuals involved
in the illicit undertakings, gathering additional evidence
substantiating the crimes believed to have been committed, or
discovering any other offenses in which the suspects are
involved.” United States v. Hultgren, 713 F.2d 79, 87 (5th Cir.
1983).
3. Compliance with Other Statutory Requirements
¶35 Hausner argues that the trial court also misconstrued
A.R.S. § 13-3015 by failing (1) to recognize that an emergency
wiretap is only permitted in circumstances in which a court
could order a wiretap under § 13-3010; (2) to interpret the law,
like the federal statute, as permitting emergency wiretaps only
if a court order cannot be obtained with “due diligence” in time
to avert the emergency; and (3) to require the State to have an
“emergency purpose” for the wiretap.
¶36 None of these arguments suggests the trial court erred
in denying the motion to suppress. We agree that § 13-3015
authorizes emergency wiretaps only in factual circumstances
that, if time permitted, would support a court-approved wiretap.
As noted above, evidence from an emergency wiretap is admissible
17
only if an application for a court order authorizing the
interception “in accordance with the provisions of § 13-3010” is
submitted within forty-eight hours and granted. § 13-3015(B).
This conclusion, however, does not avail Hausner because he did
not argue below and has not demonstrated on appeal that the
superior court erred in approving the emergency wiretap on
August 4.
¶37 With respect to “due diligence,” although Arizona’s
statute does not expressly declare that an emergency wiretap is
permissible only when a court order approving a wiretap in
advance cannot be obtained by “due diligence,” such a
requirement is implicit. Section 13-3015(A) allows an emergency
wiretap only when it may avert an emergency situation that might
occur “before an order authorizing such interception can be
obtained.” Subsection (B) further provides that evidence from
an emergency wiretap is not admissible unless an application for
a court order is submitted “as soon as practicable, and in no
event later than forty-eight hours” after the wiretap’s
inception. A.R.S. § 13-3015(B). These statutory restrictions
on emergency wiretaps would not be satisfied if a court-approved
wiretap could, with due diligence, have been obtained to avert
the emergency.
¶38 Although the trial court did not recognize that § 13-
18
3015 effectively incorporates a “due diligence” requirement
similar to federal law, cf. Gortarez, 141 Ariz. at 259, 686 P.2d
at 1229 (concluding that Arizona’s conventional wiretap statute
was “sufficiently compatible with the federal one to ensure
compliance with the federal standards”), this does not mean the
court erred in denying Hausner’s motion to suppress. Evidence
at the suppression hearing established that a conventional
wiretap order could not have been obtained through due diligence
on the night of August 2. Detective Richard Lebel, who prepared
the affidavit for a post-wiretap order under § 13-3015,
testified that “[i]n terms of a conventional wiretap, there’s no
way I could have had that prepared for [the judge] that
evening.” He also said that, once the emergency wiretap was
approved, he had to work almost continuously to complete the
forty-one page affidavit to submit the application for a post-
wiretap order to the superior court by 5 p.m. on August 4. The
trial judge credited this testimony, noting that “Detective
Lebel was very clear that a conventional wiretap request could
not be obtained without more facts and in order to get it, would
have taken a great deal of time.” In short, the State
established that it could not have obtained a conventional
wiretap with due diligence when the emergency wiretap was
approved.
19
¶39 Finally, Hausner argues that the trial court should
have considered whether the County Attorney approved the wiretap
for investigative purposes rather than to avert an emergency.
This argument is irrelevant given the trial court’s finding that
“the State’s main focus was the safety of the citizens of
Maricopa County” and “the investigative nature of its action was
secondary to the main goal of public safety.” If a prosecutor
reasonably determines that an interception may avert an
“immediate danger of death or serious physical injury” before a
court order approving the interception can be obtained, see
§ 13-3015, the validity of the interception should not turn on
whether the prosecutor also subjectively has an investigative
purpose, see King, 131 S. Ct. at 1859 (noting that in Fourth
Amendment context, reasonableness of a search turns on objective
factors rather than officer’s subjective state of mind).
4. Article 2, § 8 of the Arizona Constitution
¶40 Hausner also argues that the wiretap violated Article
2, § 8 of the Arizona Constitution, which states that “[n]o
person shall be disturbed in his private affairs, or his home
invaded, without authority of law.” Citing State v. Ault, 150
Ariz. 459, 463 n.1, 724 P.2d 545, 549 (1986), he argues that
Article 2, § 8 forbids the warrantless intrusion into a home
absent exigent circumstances, the exigency cannot be created by
20
police inaction, and any exigency here resulted only because the
police chose not to arrest Dieteman or to execute the search
warrant they obtained at 2 p.m. on August 3.
¶41 This Court has recognized that Article 2, § 8 may
afford greater protections than the Fourth Amendment, at least
in the context of physical intrusions into a home. In Ault,
police officers had probable cause to arrest a suspect when he
met them at the door of his apartment. Id. at 463, 724 P.2d at
549. Rather than arrest him, they asked him to accompany them
to the station, which he agreed to do. They then followed him,
over his objection, when he went inside to get some clothes.
Rejecting arguments that the entry was justified because of the
danger that the suspect might retrieve a weapon, the Court noted
that “[t]he exigent circumstances . . . were created by the
arresting deputies” when they did not arrest the suspect when he
came to the door. Id. at 463, 724 P.2d at 549. The Court
concluded that it “cannot allow the creation of exigent
circumstances in order to circumvent the warrant requirement.”
Id.; see also State v. Cañez, 202 Ariz. 133, 152 ¶ 56, 42 P.3d
564, 583 (2002) (following Ault).
¶42 Ault, however, does not control our analysis here.
For reasons noted above, we reject Hausner’s argument that the
police had probable cause to arrest Dieteman when the County
21
Attorney approved the emergency wiretap on August 2. Inasmuch
as the police made a physical intrusion into Hausner’s apartment
to place the wiretap, that entry was supported by the warrant
issued on the evening of August 2. Finally, to the extent that
Hausner argues that exigent circumstances were also required to
justify the recording of conversations resulting from the
placement of the wiretap, we conclude that such circumstances
exist if the statutory requirements for an emergency wiretap
exist. Cf. State v. Bixby, 698 S.E.2d 572, 582 (S.C. 2010)
(upholding South Carolina emergency wiretap provision as
application of exigent circumstances exception), cert. denied,
131 S. Ct. 2154 (2011).
C. Joinder
¶43 Hausner argues that the trial court erred by denying
his motions to sever and by consolidating the offenses charged
in the five indictments for trial. The trial court made these
rulings after conducting a multi-day evidentiary hearing and
later denied Hausner’s renewed severance motions. We review
trial court rulings on joinder and severance for an abuse of
discretion. State v. Prince (Prince I), 204 Ariz. 156, 159
¶ 13, 61 P.3d 450, 453 (2003).
¶44 Two or more offenses may be joined in an indictment if
they “are alleged to have been part of a common scheme or plan.”
22
Ariz. R. Crim. P. 13.3(a)(3). Charges in separate indictments
that could have been joined in one indictment may be
consolidated “if the ends of justice will not be defeated
thereby.” Ariz. R. Crim. P. 13.3(c). If offenses are joined
under Rule 13.3(a)(3), a court need only order severance when
“necessary to promote a fair determination of the guilt or
innocence of any defendant.” Ariz. R. Crim. P. 13.4(a).
Because we conclude that the offenses were properly joined under
Rule 13.3(a)(3) or could have been joined under this Rule and
were properly consolidated, we do not address the parties’
arguments concerning joinder under Rules 13.3(a)(1) or (2).
¶45 For purposes of Rule 13.3(a)(3), a “common scheme or
plan” is a “particular plan of which the charged crime is a
part.” State v. Ives, 187 Ariz. 102, 109, 927 P.2d 762, 769
(1996) (internal quotation omitted). The analysis “focus[es] on
whether the acts are part of an over-arching criminal plan, and
not on whether the acts are merely similar.” Id. Hausner
contends that his crimes, although similar, were not part of a
common scheme or plan, citing State v. Lee, 189 Ariz. 590, 944
P.2d 1204 (1997).
¶46 In Lee, this Court ruled that charges arising from two
similar robberies could not be joined under Rule 13.3(a)(3)
because the crimes were not “part of an over-arching criminal
23
plan.” Id. at 598, 944 P.2d at 1212. Although the robberies
occurred near the same time and were similar in other respects
(for example, the victims were similarly employed and were shot
with a .22 caliber), the Court noted that “no testimony or
evidence suggests that the two robberies were part of a single
plan.” Id. at 599, 944 P.2d at 1213.
¶47 Here, in contrast to Lee, the State presented evidence
showing that Hausner’s crimes were part of an over-arching
criminal plan. A forensic psychiatrist testified that, after
reviewing information about the crimes, he concluded that this
scheme was “the seeking of thrills or excitement or relief of
boredom or relief of negative feelings.” Such a scheme could
include even the killing of animals because, as the psychiatrist
testified, “[w]ith respect to trying to make one’s self feel
better through violence, I think it makes no difference whether
the targeted victim is a human or some other animal.” Two
detectives also testified about similarities among the various
shootings. On this record, the trial court did not abuse its
discretion in finding a common scheme or plan based on a general
thrill-seeking scheme or by consolidating the charges in the
separate indictments.
¶48 Nor did the court abuse its discretion in denying the
motions to sever. “When a defendant challenges a denial of
24
severance on appeal, he must demonstrate a compelling prejudice
against which the trial court was unable to protect.” Prince I,
204 Ariz. at 159 ¶ 13, 61 P.3d at 453 (internal quotation
omitted). Hausner cannot show such prejudice because the trial
court instructed the jurors to consider each charged offense
separately and advised them that the State had to prove each
beyond a reasonable doubt. See id. at 160 ¶ 17, 61 P.3d at 454.
D. Sufficiency of Evidence on Animal Cruelty Charges
¶49 Hausner contends that the State presented insufficient
evidence to sustain his convictions for animal cruelty involving
the horse Apache and dogs Shep, Irving, Payton, and Martin, and
his conviction for discharging a firearm at a shed belonging to
Payton and Martin’s owner. A person may be found guilty of a
class 6 felony under Arizona law if he or she “[i]ntentionally
or knowingly subjects any animal to cruel mistreatment.” A.R.S.
§ 13-2910(A)(9). Hausner argues that the State did not present
sufficient evidence identifying him as the shooter for these
incidents.
¶50 We review the sufficiency of evidence presented at
trial only to determine if substantial evidence exists to
support the jury verdict. State v. Stroud, 209 Ariz. 410, 411
¶ 6, 103 P.3d 912, 913 (2005). Substantial evidence is evidence
that “reasonable persons could accept as sufficient to support a
25
guilty verdict beyond a reasonable doubt.” State v. Hughes, 189
Ariz. 62, 73, 938 P.2d 457, 468 (1997). We view the facts in
the light most favorable to sustaining the jury verdict. State
v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987).
¶51 Dogs Irving and Shep were shot outside their owners’
houses with a .22 caliber gun. Police later found .22 caliber
shell casings, guns, and live cartridges in Hausner’s apartment
and car. Irving and Shep were shot on November 11, 2005, within
a mile and an hour of each other. This was also the same night
that Hausner shot and killed Nathaniel Shoffner. Just before
Irving was shot, one of his owners saw a four-door car pull up
and a hand extend from the passenger window. Shep’s owner heard
a car outside his house, the discharge of a .22, and then his
dog’s yelp. Dieteman testified that Hausner and his brother
Jeff told him they had been “out targeting a dog” on the night
when they shot Shoffner. Sufficient evidence supported
Hausner’s convictions for shooting these two dogs.
¶52 Dogs Martin and Payton were shot outside their owner’s
house with a .22 on December 30, 2005. Their owner was inside
when they were shot, but he heard two pops that sounded like a
small caliber weapon firing, followed by a loud cry from one of
the dogs. This was the same night that Hausner shot a car at
the ABC Bartending School, shot victims Ortiz, Carillo, Timothy
26
Tordai and the dog Peanut with a .22, and also shot the dog
Cherokee and victim Clarissa Rowley. Martin and Payton were
shot just after midnight, three miles from where Hausner shot
the dog Peanut at 12:30 a.m. This is sufficient evidence to
support the jury’s conclusion that Hausner shot Martin and
Payton and discharged a firearm at a shed belonging to their
owner.
¶53 Apache, the horse, was shot with a .22 between 10:30
p.m. on July 19, 2005, and 5:30 a.m. on July 20. When shot,
Apache was in a pen outside his owner’s house in Tolleson. The
owner did not see or hear any gunshots. Just before midnight on
July 19, Hausner shot and killed the dog Whiskey with a .22 in
Phoenix, two miles from where Apache was shot. From this
evidence alone, a jury could not reasonably conclude beyond a
reasonable doubt that Hausner also shot Apache. Accordingly, we
reverse Hausner’s conviction and sentence for animal cruelty
with respect to the shooting of Apache.
E. Evidentiary Issues
¶54 Hausner challenges the admission of evidence of out-
of-court statements by attempted-murder victims Joseph Roberts,
David Perez, and Miguel Rodriguez. Hausner also contends the
trial court erred in admitting certain “other acts” evidence.
27
1. Roberts’ Statements
¶55 Joseph Roberts was shot while walking with his bike on
the night of July 2, 2006. Roberts spoke with Detective Clark
Schwartzkopf at a hospital the next morning, but Roberts could
not recall this meeting when he testified at the 2009 trial.
Roberts testified that, after he was shot, he saw a four-door,
silver car on the opposite side of the street, but he could not
see how many people were inside. He did not remember ever
describing the car’s driver.
¶56 Detective Schwartzkopf testified about contacting
Roberts at the hospital. Schwartzkopf said Roberts told him
that “as the vehicle slowed, he saw the driver’s window
completely down and he saw what he described as a barrel
protruding from the driver’s side of the vehicle. . . . [H]e
believed that it was a rifle or shotgun barrel,” and that he
thought the driver was Caucasian. Roberts described the car as
a “silver, passenger” vehicle, and said its headlights were
turned off just before the shooting.
¶57 Hausner objected to Schwartzkopf’s testimony about
Roberts’ statements as inadmissible hearsay. Overruling the
objection, the trial court ruled that the statements were
admissible as prior inconsistent statements under Arizona Rule
of Evidence 801(d)(1). Considering the factors identified in
28
State v. Allred, 134 Ariz. 274, 277, 655 P.2d 1326, 1329 (1982),
the trial court further found that the statements were not
unduly prejudicial. Alternatively, the trial court ruled that
the statements were sufficiently reliable to be admissible under
the residual hearsay exception in Arizona Rule of Evidence
803(24) (since renumbered Rule 807).
¶58 We review admission of evidence for an abuse of
discretion. See State v. Tucker, 205 Ariz. 157, 165 ¶ 41, 68
P.3d 110, 118 (2003). A statement is not hearsay if the
declarant testifies, the statement is inconsistent with the
declarant’s testimony, and the declarant is subject to cross-
examination about it. Ariz. R. Evid. 801(d)(1)(A). “A claimed
inability to recall, when disbelieved by the trial judge, may be
viewed as inconsistent with previous statements.” State v.
King, 180 Ariz. 268, 275, 883 P.2d 1024, 1031 (1994) (internal
quotation omitted).
¶59 Hausner argues that nothing suggests Roberts feigned
lack of memory about his statements in the hospital, and
therefore they could not be admitted as “inconsistent” with his
trial testimony. Cf. id. at 275, 883 P.2d at 1031 (concluding
that record supported trial court’s finding that witness feigned
loss of memory). Moreover, because Roberts could not recall
talking to Schwartzkopf, Hausner argues that the trial court
29
erred in finding the statements sufficiently reliable to be
admissible under the residual hearsay exception.
¶60 Although the trial “court has considerable discretion
in determining whether a witness's evasive answers or lack of
recollection may be considered inconsistent with that witness's
prior out-of-court statements,” State v. Salazar, 216 Ariz. 316,
319 ¶ 15, 166 P.3d 107, 110 (App. 2007), here the court did not
find and the record does not suggest that Roberts feigned his
lack of memory at trial. Roberts, as one of the shooting
victims, would have no apparent reason to do so. Cf. State v.
Robinson, 165 Ariz. 51, 59, 796 P.2d 853, 861 (1990) (finding
trial court did not abuse its discretion in admitting extrinsic
evidence of out-of-court statement under Rule 613(b) when court
could not tell if witness was being evasive or merely had poor
recollection, but record amply suggested reasons for witness to
be evasive). The trial court erred in concluding that Roberts’
statements at the hospital were “inconsistent” with his
testimony and admissible under Rule 801(d)(1).
¶61 We need not determine if the trial court properly
concluded that the statements were also admissible under the
residual hearsay exception. Roberts testified that he had seen
a four-door silver car across the street after he was shot. The
out-of-court hospital statements introduced through Schwartzkopf
30
provided the further details that Roberts was shot by the car’s
Caucasian driver, who pointed a rifle or shotgun from the
driver’s window and turned off the car’s headlights. Roberts
did not identify Hausner as the shooter in his testimony or the
hospital statements. Instead, Dieteman testified that Hausner
was driving and shot Roberts from the driver’s window with a
.410 shotgun. Because we conclude that the hospital statements
did not impact the jury’s verdict, any error in their admission
was harmless. See State v. Bocharski, 218 Ariz. 476, 486 ¶¶ 38-
41, 189 P.3d 403, 413 (2008) (applying harmless error analysis
to admission of hearsay).
2. Perez and Rodriguez Statements
¶62 Hausner also objected to testimony by two police
officers regarding statements made by victims Perez and
Rodriguez. Neither victim was available to testify at trial,
but the officers testified to statements made by each victim
when the officers arrived on the scenes. The trial court
admitted the statements as excited utterances. (Although
Hausner initially argued that admission of these statements
violated the Confrontation Clause, he abandoned that argument in
light of Michigan v. Bryant, 131 S. Ct. 1143 (2011), as it is
clear that the statements were not testimonial.)
¶63 An excited utterance is a statement “relating to a
31
startling event or condition, made while the declarant was under
the stress of excitement that it caused.” Ariz. R. Evid.
803(2). This exception to the rule generally barring the
admission of hearsay turns on three factors: there must be a
startling event, the words must be spoken soon afterwards, and
the words must relate to the startling event. State v. Cruz,
218 Ariz. 149, 161 ¶ 54, 181 P.3d 196, 208 (2008).
¶64 The first victim, Perez, was shot in the early morning
on July 7, 2006, and Officer Shoemaker was one of the first
officers to arrive at the scene. Shoemaker testified that he
asked Perez what happened, and that “[h]e told me he was
standing out into the street in front of the property using a
telephone when a car, which he described as a blue Contour,
drove from west to east in an eastbound manner on State Avenue
and fired, what he said, was a shot at me. He told me he didn’t
see a license plate of the car, he didn’t see any possible
suspect that may have fired the . . . the shot.” Shoemaker
explained that he had questioned Perez in order to secure the
scene and meet an on-going emergency.
¶65 The trial court did not abuse its discretion in
finding that Perez’s statements to Officer Shoemaker were
excited utterances. The shooting was a startling event; Perez
made the statements soon after he was shot; and the statements
32
related to the event.
¶66 Victim Rodriguez was shot on May 31, 2006, and Phoenix
Police Officer Baiardi was one of the first to arrive on the
scene. Baiardi testified that Rodriguez told him he was shot
and that “[h]e was in a lot of pain” and that “I tried to get as
much information as possible, because when the shooting
occurred, I wasn’t too far from the scene.” He also testified
that Rodriguez “told me that . . . the shot, he believed, came
from a white vehicle that was going westbound on Indian School
. . . [T]he one thing I do remember he said is that it was a
white imported car or white foreign vehicle.”
¶67 Rodriguez’ statements to Officer Baiardi were properly
admitted as excited utterances. Rodriguez was the victim of a
shooting and he made statements about the event soon after it
occurred.
3. Other Acts Evidence
¶68 Hausner also argues that the trial court erred in
allowing the State to submit “other acts” evidence that he (1)
is bisexual, (2) set fire to a tree, shoplifted, and slashed
tires at a casino, (3) was present when his brother, Jeff
Hausner, stabbed a man, (4) while in court, made obscene
gestures to victim Paul Patrick and Rebecca Estrada, the mother
of murder victim David Estrada, and (5) was physically violent
33
toward his ex-wife. We review a trial court’s decision to admit
evidence of other acts for an abuse of discretion. State v.
Villalobos, 225 Ariz. 74, 80 ¶ 18, 235 P.3d 227, 233 (2010).
¶69 Evidence of “other acts” generally “is not admissible
to prove the character of a person in order to show action in
conformity therewith.” Ariz. R. Evid. 404(b). But it is
admissible “for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Id. When the State seeks to
admit evidence of other acts of the defendant, it must prove by
clear and convincing evidence that the defendant committed the
other acts; they must be offered for a proper purpose; they must
be relevant; and, consistent with Rule 403, their probative
value must not be substantially outweighed by the danger of
unfair prejudice. See State v. Terrazas, 189 Ariz. 580, 583,
944 P.2d 1194, 1197 (1997).
a. Evidence of Hausner’s bisexuality
¶70 Hausner first challenges the trial court’s admitting
evidence of his alleged bisexuality. During the guilt phase,
Hausner testified on direct examination that Dieteman was
bisexual, that he was not, and that several sexually-themed text
messages between the two of them were intended to be humorous.
Over his objections, the court allowed the State to ask Hausner
34
on cross-examination about his sexuality and to introduce
testimony by his ex-wife that she had seen him kiss another man
on the neck and that he had once told her he thought he was gay.
The trial court ruled that Hausner had opened the door to the
issue of his sexual orientation by his own testimony and that
this evidence was relevant to his relationship with Dieteman,
who participated with Hausner in many of the crimes and whom
Hausner suggested was responsible for them. The trial court
also instructed the jury, before its deliberations, that:
“[a]person’s sexuality does not make it any more or
less likely that a person committed the crimes alleged
in the indictment. You are not to consider any
allegation of bisexuality to consider if Mr. Hausner
committed the crimes alleged in this indictment.”
¶71 The trial court did not clearly abuse its discretion
in admitting this evidence, particularly given that Hausner
himself placed his bisexuality at issue and attempted to
distance himself from Dieteman by characterizing their
respective sexual orientations. We underscore, however, that
trial courts must be cautious in admitting evidence of a
witness’s sexual orientation in cases in which it is not
directly relevant, given the danger that it may be unfairly
prejudicial. Any error in admitting evidence of Hausner’s
bisexuality, moreover, was harmless because the trial court
instructed the jurors not to consider such evidence in
35
determining if Hausner committed the alleged crimes. See State
v. Velazquez, 216 Ariz. 300, 307-08 ¶ 24, 166 P.3d 91, 98-99
(2007).
b. Acts of vandalism, arson, and shoplifting
¶72 Hausner also contends the trial court erred in
admitting evidence that he and Dieteman set a palm tree on fire,
shoplifted, and slashed tires in a casino parking lot. During
his direct examination, Hausner testified that he would never
harm a person or an animal, that he “would never harm anything,”
and that he was “not a violent person.” On cross-examination,
Hausner denied shoplifting or setting a tree on fire, but
admitted slashing tires. Dieteman subsequently testified that
he was with Hausner and Jeff when they set fire to a tree and
that he and Hausner regularly shoplifted alcohol, DVDs, and
games. The State also presented testimony from security guards
at the casino where the tires were slashed and from a Chandler
police officer regarding the tree burning.
¶73 The trial court did not abuse its discretion in
allowing other acts evidence tending to show Hausner’s violent
nature, including the tire slashing and the tree burning.
Hausner opened the door to such evidence, and thereby waived any
objection to its admission by testifying on direct that he was
not a violent person. See State v. Arriola, 99 Ariz. 332, 334-
36
35, 409 P.2d 37, 39-40 (1965). Evidence Rule 404(a)(1) allows
the admission of “[e]vidence of a pertinent trait of character
offered by an accused, or by the prosecution to rebut the same.”
This rule allowed the State to introduce evidence to rebut
Hausner’s testimony about his non-violent nature.
¶74 Dieteman’s testimony regarding shoplifting habits,
however, is not admissible to rebut Hausner’s assertions that he
is not violent. Such evidence was perhaps of some relevance in
rebutting Hausner’s assertion that he magnanimously allowed
Dieteman to live with him, inasmuch as both were earning money
by stealing. In any event, any error in admitting the
shoplifting evidence was harmless because the trial court
instructed the jury that it could not consider the evidence to
determine Hausner’s character or character trait or to determine
that he acted in conformity with the same and therefore
committed the charged offenses.
c. Evidence of stabbing
¶75 On direct examination, Hausner testified that he knew
that his brother Jeff had been arrested for stabbing a man, but
Hausner said he was not present at this stabbing. He further
testified that he had never been present with Jeff and Dieteman
at a stabbing and had not met Dieteman until several days after
the stabbing.
37
¶76 Over Hausner’s objection, the State subsequently
elicited testimony from Dieteman that he and Hausner were
present when Jeff committed the stabbing. Because Hausner
discussed the stabbing in direct examination, he cannot claim
error from the State’s introducing evidence to contradict his
denials. See Arriola, 99 Ariz. at 334-35, 409 P.2d at 39-40.
d. Obscene gestures in courtroom
¶77 During cross-examination, Hausner testified that he
thought the murders were tragic and had felt that way during the
entire trial. The prosecutor asked Hausner if he had made
obscene gestures in the courtroom to victim Paul Patrick and to
Roberta Estrada, mother of victim David Estrada. Hausner denied
doing so. Over Hausner’s objection, the State later presented
testimony by Patrick and Roberta Estrada, each of whom said that
Hausner had gestured to them by raising his middle finger.
¶78 The trial court did not err in admitting this evidence
of Hausner’s in-court demeanor, given Hausner’s assertion on
cross-examination that throughout the trial he had thought the
murders were tragic.
e. Acts of violence against ex-wife
¶79 The trial court permitted Hausner’s ex-wife to testify
to specific incidents of violence, including that, in 2001,
Hausner drove her to Wickenberg and held her at gunpoint in the
38
desert, and on another occasion, he chased her down in his car,
caught her, and ripped her clothing.
¶80 Hausner opened the door to this evidence by testifying
that he was non-violent and would never harm anyone or anything.
The court specifically found that the ex-wife’s testimony about
Hausner’s prior assaults was admissible under Rule 404(b) and
not unduly prejudicial under Rule 403. On the day his ex-wife
testified, the court gave the jury an appropriate 404(b)
limiting instruction, and the court in its final instructions
generally directed the jurors that they could not consider other
acts to show that Hausner acted in conformity with a character
trait and therefore committed the charged offenses. The trial
court did not abuse its discretion in admitting this evidence.
f. Denial of surrebuttal
¶81 Hausner contends that the trial court erred by
refusing to allow him to present surrebuttal evidence to the
other acts evidence.
¶82 Because trial courts must be able to limit the
presentation of witnesses and other evidence on collateral
issues, only rarely will a trial court abuse its discretion in
denying surrebuttal. State v. Steelman, 120 Ariz. 301, 319, 585
P.2d 1213, 1231 (1978); see Ariz. R. Crim. P. 19.1. Hausner had
an opportunity to deny the other acts during his testimony, and
39
the trial court did not abuse its discretion in refusing to
allow surrebuttal testimony.
F. Constitutionality of Abuse of Discretion Review
¶83 Under A.R.S. § 13-756(A), this Court reviews death
sentences to determine if the jury abused its discretion in
finding aggravating circumstances and imposing a sentence of
death. Hausner argues that the abuse of discretion standard
violates the Eighth Amendment or due process. Recognizing that
State v. Martinez, 218 Ariz. 421, 189 P.3d 348 (2008), rejected
arguments that the Eighth Amendment requires independent review
of death sentences, Hausner argues that Martinez did not
consider the importance of independent review in ensuring that
Arizona’s sentencing scheme “genuinely narrows the class of
persons eligible for the death penalty.”
¶84 We decline to reconsider Martinez. See State v. Cota,
229 Ariz. 136, 153 ¶ 92, 272 P.3d 1027, 1044 (2012) (citing
Martinez in observing “we have already determined that abuse of
discretion review is constitutional”).
G. Jury Findings that Four Murders were “Especially
Heinous, Cruel, or Depraved”
¶85 Under A.R.S. § 13–751(F)(6), a first degree murder is
aggravated when “[t]he defendant committed the offense in an
especially heinous, cruel or depraved manner.” Hausner argues
40
that the jury abused its discretion in finding the (F)(6)
aggravating factor with respect to the murders of victims Ortis,
Carillo, Gutierrez-Cruz, and Blasnek. The jury found that each
of these murders was committed in an especially heinous or
depraved manner; it also found the murders of Gutierrez-Cruz and
Blasnek were especially cruel.
¶86 “Heinousness and depravity go to a defendant’s mental
state as reflected in his words and actions at or near the time
of the offense.” State v. Johnson, 212 Ariz. 425, 439 ¶ 55, 133
P.3d 735, 749 (2006). Cruelty, in contrast, depends in part on
the victim’s mental state. To establish cruelty, the State must
prove beyond a reasonable doubt that “the victim consciously
experienced physical or mental pain prior to death, and the
defendant knew or should have known that suffering would occur.”
Martinez, 218 Ariz. at 436 ¶ 70, 189 P.3d at 363 (citation and
internal quotation marks omitted).
¶87 To establish that the murders were especially heinous
or depraved, the State presented evidence that Hausner had
relished the murders. “Relishing refers to words or actions
that show debasement or perversion,” State v. Greene, 192 Ariz.
431, 439 ¶ 34, 967 P.2d 106, 114 (1998) (internal quotation
omitted), and “requires that the defendant say or do something,
other than the commission of the crime itself, to show he
41
savored the murder.” State v. Doerr, 193 Ariz. 56, 67-68 ¶ 54,
969 P.2d 1168, 1179-80 (1998) (internal quotation omitted). A
defendant’s “post-murder statements suggesting indifference,
callousness, or lack of remorse” can constitute relishing, so
long as “they indicate, beyond a reasonable doubt, that the
killer savored or enjoyed the murder at or near the time of the
murder.” Greene, 192 Ariz. at 440-41 ¶ 39, 967 P.2d at 115-16.
¶88 The jury here was instructed as follows:
Defendant relished the murder if defendant, by words or
actions, savored the murders. These words or actions
must show debasement or perversion and not merely the
defendant had a vile state of mind or callous attitude.
Statements suggesting indifference as well as those
reflecting calculated plan to kill, satisfaction over
the apparent success of the plan, extreme callousness,
lack of remorse, or bragging after the murder are not
enough unless there is evidence that the defendant
fully relished the act of murder at or near the time of
the killing.
¶89 Hausner does not challenge the instructions with
respect to relishing, but instead argues that there was
insufficient evidence from which the jury could conclude that he
relished the act of killing “at the time he was doing it.”
¶90 In reviewing whether a jury has abused its discretion
in finding an aggravating factor, we “review[] the record to
determine whether substantial evidence supports the jury’s
finding, viewing the facts in the light most favorable to
sustaining the jury verdict.” State v. Roque, 213 Ariz. 193,
42
218 ¶ 93, 141 P.3d 368, 393 (2006). “Substantial evidence is
such proof that reasonable persons could accept as adequate and
sufficient to support a conclusion of [the] defendant’s guilt
beyond a reasonable doubt.” Id. (internal quotations omitted).
¶91 Substantial evidence supports the jury’s finding that
Hausner relished the four murders at or near the time he
committed them. Blasnek was his last victim; he killed her on
the night of July 30, 2006. In recorded conversations in his
apartment on August 3, Hausner joked with Dieteman about killing
Blasnek and other victims and declared, “I love shooting people
in the back, it’s so much fun.” He and Dieteman read each other
articles about the serial shooting investigation and Blasnek’s
murder. Responding to a police tally of six victims, Hausner
said, “It’s higher than that! What about the guy I fucking shot
at 27th Avenue in the yard?” When Dieteman told him that police
were looking for similar crimes in other states, Hausner
responded, “so we’re being copycatted, Sam? We’re pioneers,
Sam? We’re leading the way for a better life for everybody,
Sam?”
¶92 Hausner, after listening to Dieteman read an article
about the Blasnek shooting, said “She was on her knees. ‘Oh,
I’ve been shot!’ Blood pouring out, right.” He then said, in a
voice mimicking Blasnek’s, “I’ve been shot,” and he and Dieteman
43
mimicked crying, laughed, and referred to Blasnek scornfully.
Reading from an obituary, Dieteman later asked Hausner if he
knew a “Blasnek,” and Hausner responded “I know a ‘blast neck.’”
Hausner also recorded, on a piece of paper, Blasnek’s name and
the date and time of her murder.
¶93 Gutierrez-Cruz, the next-to-last victim, was shot by
Hausner and Dieteman with a .410 shotgun on May 2, 2006, and
died while in surgery. Two days after the shooting, Hausner,
according to Dieteman, came to their apartment in a “jovial”
mood, with a “big grin on his face,” and read Dieteman a
newspaper article describing the murder. Hausner told Dieteman,
“Oh, dude, you got the first murder of the year in Scottsdale.
I’m jealous.”
¶94 Hausner murdered Carillo and Ortis within two blocks
of each other in Phoenix on December 29, 2005. That same
evening, in the same area, he shot and attempted to kill another
pedestrian, who survived. The following night, Hausner shot and
attempted to kill yet another victim, who also survived. He
kept news clippings about each of the four murders.
¶95 Hausner argues that retaining news clippings and
bragging about a murder after the fact do not suffice to
establish relishing. The evidence showed, however, that Hausner
did not merely keep some news stories or brag about the murders.
44
Hausner demonstrated through his words and actions that, as he
said, he “loved shooting people in the back.” Words or actions
after a murder may prove the murderer savored the act of killing
at or near the time it occurred. See State v. West, 176 Ariz.
432, 437, 862 P.2d 192, 197 (1993) (defendant bragging to multiple
people about murdering older man and describing how he killed
him was relishing), overruled on other grounds by State v.
Rodriguez, 192 Ariz. 58, 961 P.2d 1006 (1998). The evidence
amply supported a jury finding that Hausner savored the murders
at or near the time he committed them.
¶96 Hausner also argues that the jury abused its
discretion in finding the murders of Gutierrez-Cruz and Blasnek
especially cruel. Because the finding that each of these
murders was heinous or depraved suffices to establish the (F)(6)
aggravator, we need not address the jury’s finding of cruelty.
See State v. Morris, 215 Ariz. 324, 341 ¶ 80, 160 P.3d 203, 220
(2007).
H. Jury Findings that Certain Murders were Committed in a
“Cold, Calculated Manner”
¶97 The (F)(13) aggravator qualifies a first degree murder
for the death penalty if “[t]he offense was committed in a cold,
calculated manner without pretense of moral or legal
justification.” A.R.S. § 13-751(F)(13). The jury found this
aggravator with respect to the murders of Ortis, Carillo,
45
Gutierrez-Cruz, and Blasnek.
¶98 Hausner contends that the (F)(13) aggravator is
unconstitutional on its face, the jury was erroneously
instructed as to its meaning, it does not sufficiently narrow
the application of the death penalty, and it was not supported
by the evidence.
¶99 We review constitutional issues de novo, and, when
possible, construe statutes to uphold their constitutionality.
State v. Hargrave, 225 Ariz. 1, 13 ¶ 42, 234 P.3d 569, 581
(2010). The death penalty may not be imposed under sentencing
procedures that create a substantial risk that the punishment
will be inflicted in an arbitrary and capricious manner. Furman
v. Georgia, 408 U.S. 238, 256 (1972). To pass constitutional
muster, then, an aggravator must meet two criteria: the
circumstance may not apply to every defendant convicted of a
murder, but only to a subclass, and the aggravating circumstance
may not be overly vague. Tuilaepa v. California, 512 U.S. 967,
972 (1994).
¶100 Vagueness is a difficult concept to analyze, but
sentencing factors that the Supreme Court has found to be
impermissibly vague have often been those that present a
“specific proposition that the sentencer had to find true or
false (e.g., whether the crime was especially heinous,
46
atrocious, or cruel).” Id. at 974. Where a sentencing factor
is a specific proposition, such as “cold and calculated,” the
concern is that it have some “common-sense core of meaning . . .
that criminal juries should be capable of understanding.” Id.
at 975 (internal quotation omitted).
¶101 Although this Court has never addressed the
constitutionality of the (F)(13) aggravator, state supreme
courts in Illinois and Florida have considered similar
aggravators. The Illinois Supreme Court upheld an aggravator
for murders that were “cold, calculated, and premeditated,”
finding that it was not unconstitutionally vague. People v.
Johnson, 609 N.E.2d 294, 372-73 (Ill. 1993). (Illinois has
since abolished the death penalty.) In contrast, the Florida
Supreme Court ruled that Florida’s cold, calculated and
premeditated (“CCP”) aggravator was unconstitutionally vague.
Jackson v. State, 648 So. 2d 85, 90 (Fla. 1994). The Florida
statute made murders death-eligible if they were “committed in a
cold, calculated, and premeditated manner without any pretense
of moral or legal justification.” Fla. Stat. Ann.
§ 921.141(5)(i). The court in Jackson concluded that “[w]ithout
the benefit of an explanation that some ‘heightened’ form of
premeditation is required to find CCP, a jury may automatically
characterize every premeditated murder as involving the CCP
47
aggravator.” 648 So. 2d at 89.
¶102 Jackson is instructive. Although Arizona’s statute
differs from Florida’s in that it omits the word “premeditated,”
and instead allows for death penalty eligibility if “[t]he
offense was committed in a cold, calculated manner without
pretense of moral or legal justification,” Arizona’s (F)(13)
aggravator otherwise tracks the language of Florida’s statute.
A.R.S. § 13-751(F)(13). In Jackson, the court found the jury
received “no instruction to illuminate the meaning of the terms
‘cold,’ ‘calculated,’ or ‘premeditated.’” 648 So. 2d at 89-90.
Without further instruction, the Jackson court noted, “[i]t
would also be reasonable for the general public to consider
premeditated first degree murder as ‘cold-blooded murder.’” Id.
at 89. On its face, Arizona’s (F)(13) aggravator suffers from
the same vagueness infirmity as Florida’s statute.
¶103 An aggravator that is vague on its face, however, can
be properly narrowed by a court to bring it within
constitutional bounds. State v. Chappell, 225 Ariz. 229, 237
¶ 26, 236 P.3d 1176, 1184 (2010), cert. denied, 131 S. Ct. 1485(2011) (“vagueness. . . . may be remedied with appropriate
narrowing instructions.”) (internal quotation omitted); see also
State v. Tucker, 215 Ariz. 298, 310 ¶ 28, 160 P.3d 177, 189
(2007); Walton v. Arizona, 497 U.S. 639, 655 (1990), overruled
48
on other grounds by Ring, 536 U.S. 584. In Jackson, upon
remand, Florida’s CCP aggravator was narrowed through jury
instructions defining its terms, 648 So. 2d at 89-90, and
subsequent death sentences in Florida, under these narrowing
instructions, have been upheld. See, e.g., McWatters v. State,
36 So. 3d 613, 643 (Fla. 2010), cert. denied, 131 S. Ct. 510(2010).
¶104 The trial court here gave narrowing instructions
substantially the same as those approved in Jackson. It
clarified to the jury that “all first degree premeditated
murders are, to some extent, committed in a cold, calculated
manner,” but distinguished this aggravator as one that “cannot
be found to exist unless . . . the defendant exhibited a cold
intent to kill and is more contemplative, more methodical, more
controlled than that necessary to commit premeditated first
degree murder.” The instruction further defined the term “cold”
as “a product of a calm and cool reflection” and “calculated” as
“having a careful plan or prearranged design to commit murder.”
The court emphasized that the jury must look to the defendant’s
state of mind at the time of the offense to determine whether
there exists any pretense of moral or legal justification that
rebuts cold and calculated, and that it must find beyond a
reasonable doubt that there is (1) a careful plan or prearranged
49
design before the murder, and (2) a cool and calm reflection for
a substantial period of time before the murder.
¶105 This instruction adequately narrowed the aggravator,
making it clear that it is not the cold and calculated nature of
every murder that will satisfy it, but that the jury must find
some degree of reflection and planning that goes beyond the
premeditation required to find first degree murder, channeling
the jury’s discretion by “clear and objective standards” that
provide “specific and detailed guidance.” Godfrey v. Georgia,
446 U.S. 420, 428 (1980).
¶106 Apart from arguing that the (F)(13) aggravator is
facially vague, Hausner also contends that the trial court
incorrectly defined particular terms in its narrowing
instructions. Specifically, he argues: the instructions
incorrectly defined “cold;” the term “calculated” was
superfluous; and the trial court’s explanation of “without
pretense of moral or legal justification” “makes no sense at all
in conjunction with Arizona’s law.”
¶107 “We review de novo whether jury instructions
adequately state the law.” State v. Gallardo, 225 Ariz. 560,
567 ¶ 30, 242 P.3d 159, 166 (2010) (internal quotation omitted).
Because Hausner did not object to the (F)(13) instructions on
these grounds below, however, he is not entitled to relief
50
unless he can show fundamental error.
¶108 The trial court did not incorrectly define the terms
of the (F)(13) aggravator. The court instructed the jury that
“[c]old means the murder was a product of a calm and cool
reflection. Calculated means having a careful plan or
prearranged design to commit murder.” Arizona cases have
previously used the terms “cold” or “cold-blooded” to describe
murders or crimes marked by a lack of emotion in the act of
killing. See, e.g., King, 180 Ariz. at 286, 883 P.2d at 1042(describing the thought out, deliberate killing to eliminate a
witness as “cold-blooded”); State v. Schurz, 176 Ariz. 46, 56,
859 P.2d 156, 166 (1993) (describing the deliberate, careful
burning to death of a person who attempted to flee as “cold-
blooded”); Gretzler, 135 Ariz at 58, 659 P.2d at 17 (describing
the cold blooded murder of nine persons, including shooting
sleeping children as they lay in their beds). Nor did the trial
court’s definition make superfluous the term “calculated,” which
the instructions defined to mean “having a careful plan or
prearranged design to commit murder.”
¶109 Hausner also faults the trial court’s definition of
“without pretense of moral or legal justification.” The court
instructed the jury that this phrase means without “anything of
justification or excuse that, though insufficient to reduce the
51
degree of murder, nonetheless rebuts the otherwise cold,
calculated nature of the murder.” Hausner contends the court
should have explained to the jury the legal justifications that
exist under Arizona law. But this mistakenly presumes that the
jury could only consider legally recognized justifications. The
statute refers more broadly to a “pretense” of legal or moral
justification, and the trial court reasonably defined this as
“anything of justification or excuse.”
¶110 The trial court properly narrowed the (F)(13)
aggravator so that it was constitutional, despite its facial
vagueness, and it defined the terms to the jury in a permissible
manner that did not constitute fundamental error.
¶111 Hausner also argues the jury abused its discretion in
finding the (F)(13) aggravator, contending that his murders
could not have been “cold and calculated” because they were
“random.” We disagree. The fact that victims were randomly
targeted does not preclude a finding of the elements of the
(F)(13) aggravator. There is ample evidence that Hausner had a
careful plan or prearranged design for each of the four murders
even if he randomly identified the particular victim. The jury
could also find that he exhibited a cool and calm reflection for
a substantial period of time before killing and that he had no
pretense of moral or legal justification or excuse.
52
¶112 We note that Hausner has not argued that there was any
constitutional error based on the trial court adopting narrowing
instructions for (F)(13) that had not been approved by this
Court before he committed the relevant murders. Cf. State v.
Schmidt, 220 Ariz. 563, 566 ¶ 10, 208 P.3d 214, 217 (2009)
(holding that use of vaguely defined statutory aggravator as
sole factor to enhance sentence violated due process). We do
not address whether the trial court erred in this respect.
¶113 Finally, we conclude that any error by the trial court
in applying the (F)(13) aggravator - and we have not identified
any for reasons explained above - was harmless beyond a
reasonable doubt. This Court may apply “harmless-error analysis
when errors [regarding sentencing factors] have occurred in a
capital sentencing proceeding,” Clemons v. Mississippi, 494 U.S.
738, 754 (1990), so long as the errors do not permit the
sentencer to consider otherwise inadmissible evidence. Id. n.5;
see Brown v. Sanders, 546 U.S. 212, 220-21 (2006) (stating that
due process requires reversal of death sentence if invalid
sentencing factor allowed sentencer to consider evidence that
otherwise would not have been before it); cf. Jennings v.
McDonough, 490 F.3d 1230, 1249-50 (11th Cir. 2007) (approving
Florida Supreme Court’s harmless error analysis with regard to
vaguely defined aggravator).
53
¶114 The use of the (F)(13) aggravator did not allow the
jury to consider any evidence that otherwise would not have been
before it. The jury properly found three other aggravators –
the (F)(1), (2), and (6) – with respect to each of the four
victims for which it also found the (F)(13). Hausner presented
no mitigation evidence. In these circumstances, we conclude
that any error regarding the (F)(13) aggravator did not
influence the jury’s decision to impose death sentences. Cf.
State v. Sansing, 206 Ariz. 232, 241 ¶ 38, 77 P.3d 30, 39 (2003)
(affirming court-imposed death sentence upon concluding that any
reasonable jury would have found the mitigation was not
sufficiently substantial to call for leniency).
I. Waiver of Presentation of Mitigation
¶115 Hausner argues that the trial court should not have
allowed him, over his lawyers’ objection, to waive the
presentation of mitigation during the penalty phase.
¶116 A defendant may waive mitigation if he is competent
and makes the decision knowingly, intelligently, and
voluntarily. State v. Murdaugh, 209 Ariz. 19, 33-34 ¶¶ 70-71,
97 P.3d 844, 858-59 (2004). The trial court ordered Hausner to
undergo a competency examination when he stated that he wished
to waive the presentation of mitigating evidence. After the
examiner concluded that Hausner was competent, the trial court
54
confirmed with Hausner that he had discussed his decision and
its consequences with his counsel. The court then found that he
had knowingly, intelligently, and voluntarily waived mitigation.
Hausner does not challenge these findings.
¶117 During the penalty phase, Hausner’s lawyers did not
make an opening statement or closing argument. During
allocution, Hausner apologized to his family and to the victims,
but he also urged the jury to sentence him to death: “I’m
willing to take whatever punishment you guys give me, and I
firmly believe, to help the victims heal, that should be the
death penalty.” The trial court instructed the jury that it was
not limited to considering mitigating circumstances offered by
the defendant, that it must consider any relevant mitigating
evidence offered during any phase of the trial, and that each
juror must individually determine whether the mitigation was
sufficiently substantial to call for leniency.
¶118 Although the proceedings here complied with Murdaugh,
Hausner argues that we should reconsider that decision. He
contends that allowing a defendant to waive mitigation prevents
the jury from considering all relevant mitigation in determining
whether to impose a death sentence. He also argues that
Murdaugh misinterpreted Blystone v. Pennsylvania, 494 U.S. 299(1990). These arguments are not convincing. Blystone rejected
55
an Eighth Amendment challenge to a death sentence imposed by a
jury that was instructed, as was the jury here, that it should
consider any mitigation evidence presented at trial in deciding
on the penalty. Although the defendant in Blystone waived the
presentation of mitigation, the Supreme Court held that the
sentencing procedures did not impermissibly preclude the jury
from considering all relevant mitigation evidence presented at
trial. See id at 307-08.
¶119 Hausner also has no viable argument that the Sixth
Amendment requires the defense to present mitigation despite the
defendant’s waiver. In Schriro v. Landrigan, the Court held
that a defendant could not establish the prejudice prong for a
claim of ineffective assistance of counsel related to counsel’s
failure to investigate mitigation evidence when the defendant
decided to not present any mitigation. 550 U.S. 465, 476, 481
(2007). Indeed, requiring the defense to present mitigating
evidence over the defendant’s opposition arguably would conflict
with the defendant’s Sixth Amendment right to self-
representation. See United States v. Davis, 285 F.3d 378, 384–
85 (5th Cir. 2002); People v. Blair, 115 P.3d 1145, 1177-78
(Cal. 2005).
¶120 Hausner notes that the New Jersey Supreme Court,
recognizing the state’s interest in a fair and reliable
56
sentencing determination, has held that mitigation must be
presented even over the defendant’s objection. State v.
Koedatich, 548 A.2d 939, 992-97 (N.J. 1988). We find more
persuasive the majority of courts that have declined to follow
Koedatich and instead have held that a capital defendant may
waive the presentation of mitigation. See, e.g., Blair, 115
P.3d at 1178-79 (citing state and federal cases); State v.
Jordan, 804 N.E.2d 1, 16-17 (Ohio 2004) (rejecting Koedatich as
inconsistent with autonomy of defendant and for its reliance on
subsequently repudiated California case law); State v.
Arguelles, 63 P.3d 731, 752-53 (Utah 2003) (noting that the
“vast majority” of courts have held that a capital defendant may
waive the presentation of mitigation and declining to follow
Koedatich).
¶121 The State correctly notes that the Supreme Court has
never imposed an “informed and knowing” requirement upon a
defendant’s decision to waive the presentation of mitigation,
see Landrigan, 550 U.S. at 47, but this Court has consistently
required a voluntary, knowing, and intelligent waiver of this
important constitutional right, see, e.g., State v. Delahanty,
226 Ariz. 502, 508 ¶ 34, 250 P.3d 1131, 1137 (2011) (affirming
capital sentence imposed after trial court ordered competency
evaluation and found defendant knowingly and intelligently
57
waived right to present mitigation); State v. Bearup, 221 Ariz.
163, 173 n.3, 211 P.3d 684, 694 (2009) (noting trial court had
conducted colloquies and determined defendant had knowingly,
intelligently, and voluntarily waived right to counsel and to
present mitigation during penalty phase). Here, the trial court
took steps to ensure that Hausner was competent and that he
knowingly, intelligently, and voluntarily waived mitigation.
¶122 We commend the approach adopted by the trial court
and, in our supervisory capacity, direct that similar procedures
be prospectively applied when a capital defendant elects to
waive the presentation of all mitigation. See Ariz. Const. art.
6, § 3; cf. State v. Ashworth, 706 N.E.2d 1231, 1237 (Ohio 1999)
(requiring trial court to inquire if the waiver of all
mitigating evidence in a capital case is knowing, voluntary, and
competent). The trial court should engage the defendant in a
colloquy to ensure that the defendant understands the penalty
phase process, the right to present mitigation, and the
consequences of waiving this right. Defense counsel should
confirm on the record that he or she has discussed with the
defendant the nature of the mitigation that could be presented
and the consequences of waiver. The court should confirm on the
record that the defendant is waiving the presentation of
mitigation knowingly, intelligently, and voluntarily. If the
58
circumstances present questions about the defendant’s
competence, the court should order an appropriate mental
examination before accepting the waiver. These procedures will
help ensure that waivers are made on an informed and voluntary
basis and, by avoiding subsequent questions on these issues,
also facilitate the review of any related capital sentences.
J. Denial of Counsel’s Motion to Withdraw
¶123 Hausner also argues that the trial court abused its
discretion by denying his counsel’s motion to withdraw after
allowing him to waive the presentation of mitigation evidence.
Defense counsel may move to withdraw in a criminal case if
counsel believes that continued representation will or is likely
to result in the violation of the Rules of Professional Conduct
or other law. See Rodriquez v. State, 129 Ariz. 67, 70, 628
P.2d 950, 953 (1981) (discussing motion to withdraw based on
violation of Disciplinary Rules); Ariz. Sup. Ct. R. 41, ER
1.16(a)(1), (c). We review a trial court’s ruling on a motion
to withdraw for abuse of discretion. State v. Jones, 185 Ariz.
471, 482, 917 P.2d 200, 211 (1996).
¶124 Hausner argues that, once he elected to waive the
presentation of mitigation and to prevent his lawyers from
arguing for leniency, the lawyers’ continued representation
violated Guideline 10.11(L) of the ABA Guidelines for the
59
Appointment of Defense Counsel in Death Penalty Cases (the “ABA
Guidelines”) and ER 1.16 of the Arizona Rules of Professional
Conduct. The ABA guideline requires counsel to fully
investigate mitigation and “to take advantage of all appropriate
opportunities to argue why death is not suitable punishment.”
ER 1.16 provides that a lawyer shall withdraw if continued
representation would result in a violation of law and may
withdraw if the client insists upon taking action that the
lawyer considers repugnant or with which the lawyer has a
fundamental disagreement.
¶125 The ABA Guidelines are, under our Criminal Rules,
guidelines and not requirements. By its terms, Criminal Rule
6.8(b)(1)(iii) states that trial counsel “shall be familiar with
and guided by the performance standards” of the 2003 ABA
Guidelines, and the 2006 comment to this Rule notes that “[s]ome
guidelines may not be applicable to Arizona practice or to the
circumstances of a particular case.” Moreover, ER 1.16 does not
mandate withdrawal any time continued representation may result
in a violation of an ethical rule or other law; instead ER
1.16(c) provides that “[w]hen ordered to do so by a tribunal, a
lawyer shall continue the representation notwithstanding good
cause for terminating the representation.”
¶126 Because Hausner was entitled to waive the presentation
60
of mitigation, his lawyers were ethically required to abide by
that decision. See ER 1.2 (noting that a lawyer generally
“shall abide by the client’s decisions concerning the objectives
of representation” and that, in criminal cases, the lawyer shall
“abide by the client’s decision, after consultation with the
lawyer, as to a plea to be entered, whether to waive jury trial
and whether the client will testify”). Hausner’s decision to
waive mitigation and to instruct his lawyers not to argue for a
life sentence unquestionably put them in a difficult position
and one they may have found morally repugnant. The trial court,
however, did not abuse its discretion in denying their motion to
withdraw.
K. Review of Death Sentences
¶127 Because the murders occurred after August 1, 2002,
this Court must review Hausner’s death sentences to “determine
whether the trier of fact abused its discretion in finding
aggravating circumstances and imposing a sentence of death.”
A.R.S. § 13–756(A). A finding of an aggravating circumstance is
not an abuse of discretion 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 omitted). The jury's
determination that death is the appropriate sentence will not be
reversed “so long as any reasonable jury could have concluded
61
that the mitigation established by the defendant was not
sufficiently substantial to call for leniency.” Id. ¶ 81.
1. Aggravating Circumstances
¶128 For reasons explained above, the jury did not abuse
its discretion in finding the (F)(6) and (F)(13) aggravating
factors with respect to victims Carillo, Ortis, Gutierrez-Cruz,
and Blasnek. Sufficient evidence also exists to support the
jury’s finding of the (F)(1) (conviction for other offense
subject to sentence of life imprisonment or death) and (F)(2)
(prior conviction of a “serious offense”) aggravators with
respect to each of these victims and victims David Estrada and
Nathanial Shoffner.
2. Mitigating Circumstances
¶129 Although Hausner did not present mitigation evidence
during the penalty phase, evidence admitted at the guilt phase
is admitted for purposes of the sentencing phase, A.R.S. § 13-
752(I), and the jury must “consider the mitigating
circumstances, whether proved by the defendant or present in the
record, in determining whether death is the appropriate
sentence.” State ex rel. Thomas v. Granville (Baldwin), 211
Ariz. 468, 473 ¶ 18, 123 P.3d 662, 667 (2005). The trial court
properly instructed the jury that it must consider relevant
mitigation presented at any phase of the trial.
62
¶130 Hausner contends that evidence at the guilt phase
established that he was a caring father for his daughter, who
was born in 2004, suffered from Von Gierke’s disease, and
required special care and feeding, and that he had two sons who
died in 1994 at ages two and three in a car crash in which he
was a passenger. He also states that he expressed sympathy for
his victims at his post-arrest press conference and during
allocution, that he had no felony convictions before this case,
and that he was using methamphetamine daily when he committed
the offenses and had overcome a prior addiction in 1994.
¶131 In response, the State notes that there was
conflicting evidence about the degree of Hausner’s concern for
his daughter; that he had tried to exploit the tragedy of his
sons’ deaths by falsely testifying that he visited their
gravesites one night of the shootings; that his remorse is
entitled to little weight because he maintained his innocence;
that the lack of prior convictions is not compelling given his
many convictions in this case; and that he presented no evidence
connecting his methamphetamine use to the crimes.
¶132 We will uphold a jury’s decision to impose death if
any “reasonable juror could conclude that the mitigation
presented was not sufficiently substantial to call for
leniency.” Gallardo, 225 Ariz. at 570 ¶ 52, 242 P.3d at 169.
63
In light of the several aggravating circumstances for each
murder, and the limited mitigation, the jury did not abuse its
discretion in imposing death sentences for the six murders.
L. Sentencing on Non-Capital Counts
¶133 Hausner argues that the trial court committed
fundamental error by enhancing several of his non-capital
sentences under A.R.S. § 13-702.02 (2006) (since amended and
renumbered A.R.S. § 13-703). This statute provides for enhanced
sentences for defendants who are convicted of multiple offenses
committed on separate occasions but consolidated for trial.
Hausner contends that “[d]ue process and fundamental fairness
under the Sixth and Fourteenth Amendments required the State to
give notice that it intended to seek enhanced sentencing for the
non-capital counts under A.R.S. § 13-702.02.”
¶134 At the relevant time, A.R.S. § 13-702.02(G) stated:
The court shall inform all of the parties before the
sentencing occurs of its intent to increase or
decrease the sentence pursuant to this section. If
the court fails to inform the parties, a party waives
the right to be informed unless the party timely
objects at the time of sentencing.
¶135 The State filed a sentencing memorandum asking the
trial court to enhance the sentences on most of the non-capital
counts under § 13-702.02. Hausner did not object, and the trial
court imposed enhanced sentences. On appeal, Hausner
acknowledges that this Court has never held that the state must
64
provide pretrial notice of its intent to seek enhanced sentences
under this statute.
¶136 We need not decide whether the state must specifically
provide notice before trial of its intent to seek an enhancement
under § 13-702.02. Hausner in fact received notice. The
consolidated trial indictment expressly alleged § 13-702.02 for
certain animal cruelty charges. With respect to the charges
more generally, the State filed notices of non-capital
aggravating factors with respect to each cause number, stating:
“[i]f the jury convicts the defendant of multiple felony counts
that are not used to enhance the sentence under A.R.S. § 13-
702.02 . . . the state intends to allege the multiple
convictions as an aggravating circumstance.”
¶137 No fundamental error occurred. The State indicated in
its pretrial filings that it might seek enhanced sentences under
A.R.S. § 13-702.02, and Hausner has not shown any prejudice from
the lack of more specific notice. Cf. State v. Tresize, 127
Ariz. 571, 574, 623 P.2d 1, 4 (1980) (finding sufficient notice
for enhancement for use of a deadly weapon or dangerous
instrument based on allegations in indictment, although there
was no separate allegation or statutory citation).
65
CONCLUSION
¶138 We reverse Hausner’s conviction on count eight for
animal cruelty and otherwise affirm his convictions and
sentences.
¶139
_____________________________________
Scott Bales, Vice Chief Justice
CONCURRING:
____________________________________
Rebecca White Berch, Chief Justice
____________________________________
A. John Pelander, Justice
____________________________________
Robert M. Brutinel, Justice
____________________________________
*
* Before his resignation on June 27, 2012, as a result of his
appointment to the United States Court of Appeals for the Ninth
Circuit, Justice Andrew D. Hurwitz participated in this case,
including oral argument, and concurred in this opinion’s
reasoning and result.
66
APPENDIX
Hausner raises seventeen issues to preserve them for
federal review. This Appendix lists his claims and the
decisions he identifies as rejecting them.
1. 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, § 15 of the
Arizona Constitution. State v. Harrod, 200 Ariz. 309, 320, 26
P.3d 492, 503 (2001).
2. The death penalty is irrational and imposed arbitrarily,
and serves no other purpose that is not adequately addressed by
life in prison, in violation of Hausner’s due process under the
Fourteenth Amendment to the U.S. Constitution and Article 2, §§
1 and 4 of the Arizona Constitution. State v. Smith, 203 Ariz.
75, 82 ¶ 36, 50 P.3d 825, 832 (2002); State v. Beaty, 158 Ariz.
232, 762 P.2d 519 (1988).
3. The prosecutor’s discretion to seek the death penalty has
no standards and therefore violates the Eighth and Fourteenth
Amendments, and Article 2, §§ 1, 4 and 15 of the Arizona
Constitution. State v. Sansing, 200 Ariz. 347, 361 ¶ 46, 26
P.3d 1118, 1132 (2001), vacated on other grounds by Ring, 536
U.S. at 584.
4. Proportionality review serves to identify which cases are
above the norm of first degree murder, narrowing the class of
defendants who are eligible for the death penalty. Thus, the
absence of proportionality review of death sentences by Arizona
courts denies capital defendants due process of law and equal
protection and amounts to cruel and unusual punishment in
violation of the Fifth, Eighth, and Fourteenth Amendments, and
Article 2, § 15 of the Arizona Constitution. Harrod, 200 Ariz.
at 320 ¶ 65, 26 P.3d at 503.
5. The State‘s failure to allege an element of a charged
offense in the grand jury indictment – the aggravating factors
under A.R.S. § 13-703(F) (renumbered as A.R.S. § 13-751(F),
effective January 1, 2009) that made Defendant death eligible –
is a fundamental defect that renders the indictment
constitutionally defective under the Fifth, Sixth, Eighth, and
Fourteenth Amendments and Article 2, §§ 1, 4, 13, 15, 23 and 24
of the Arizona Constitution. See U.S. v. Chesney, 10 F.3d 641(9th Cir. 1993); Apprendi v. New Jersey, 530 U.S. 466 (2000).
67
See McKaney v. Foreman, 209 Ariz. 268, 270-71 ¶¶ 11-13, 100 P.3d
18, 20-21 (2004).
6. The (F)(6) aggravating factor of “especially cruel,
heinous, or depraved” is unconstitutionally vague and overbroad
because the jury does not have enough experience or guidance to
determine when the aggravator is met, and the finding of this
aggravator by a jury violates the Eighth and Fourteenth
Amendments because it does not sufficiently place limits on the
discretion of the sentencing body – the jury, which has no
“narrowing construction[s]” to draw from and give “substance” to
the otherwise facially vague law. See Walton v. Arizona, 497
U.S. 639, 654 (1990), overruled on other grounds by Ring, 536
U.S. 584. See also Chappell, 225 Ariz. at 337-38 ¶¶ 26-27, 236
P.3d at 1184-85; Hargrave, 225 Ariz. at 13-14 ¶¶ 42-46, 234 P.3d
at 581-82.
7. The fact-finder in capital cases must be able to consider
all relevant mitigating evidence in deciding whether to give the
death penalty, see Woodson v. North Carolina, 428 U.S. 280, 304
(1976), and the trial court‘s limitation of the jury to
consideration of mitigation proven by a preponderance of the
evidence is unconstitutional under the Eighth and Fourteenth
Amendments. McGill, 213 Ariz. at 161 ¶ 59, 140 P.3d at 944
(citing Medina, 193 Ariz. at 514-15 ¶ 43, 975 P.2d at 104-05).
8. Arizona’s capital sentencing scheme is unconstitutional
because it does not require the State to prove the death penalty
is appropriate or require the jury to find beyond a reasonable
doubt that the aggravating circumstances outweigh the
accumulated mitigating circumstances, or make specific findings
as to mitigation. Instead, Arizona‘s death penalty statute
requires defendants to prove their lives should be spared, in
violation of the Fifth, Eighth, and Fourteenth Amendments, and
Article 2, § 15 of the Arizona Constitution. Roque, 213 Ariz.
at 225-26, ¶¶ 138-141, 141 P.3d at 400-401.
9. Arizona’s death penalty scheme does not sufficiently
channel the sentencing jury’s discretion; aggravating
circumstances should narrow the class of persons eligible for
the death penalty and reasonably justify the imposition of a
harsher penalty; and Arizona’s death penalty statutes are
unconstitutional because they provide no objective standards to
guide the jury in weighing the aggravating and mitigating
circumstances. Rather, the broad scope of Arizona’s aggravating
factors encompasses nearly anyone involved in a murder, in
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violation of the Fifth, Eighth and Fourteenth Amendments, and
Article 2, § 15 of the Arizona Constitution. State v. White,
194 Ariz. 344, 355 § 49, 982 P.2d 819, 830 (1999).
10. Arizona’s death penalty statutes lack standards necessary
for the jury to find aggravation, to evaluate aggravation and
the mitigation, and to determine what “sufficiently substantial
to call for leniency” means, resulting in the arbitrary and
capricious imposition of the death penalty in Arizona, in
violation of Due Process, the Eighth and Fourteenth Amendments,
as well as Ariz. Const. art. 2, § 15.925. See Beaty, 158 Ariz.
at 247, 762 P.2d at 534.
11. Arizona’s death penalty laws unconstitutionally require
imposition of the death penalty whenever at least one
aggravating circumstance and no mitigating circumstances exist,
in violation of the Eighth and Fourteenth Amendments, and
Article 2, § 15 of the Arizona Constitution. Arizona’s death
penalty law cannot constitutionally presume that death is the
appropriate default sentence. State v. Miles, 186 Ariz. 10, 19,
918 P.2d 1028, 1037 (1996).
12. The death penalty is the irreversible denial of human
rights and the international community of nations has evolved to
a state of maturity that abolishes the death penalty. Today,
the majority of nations have abolished the death penalty.
Amnesty International, Facts and Figures on the Death Penalty
(January 1, 2006). The Universal Declaration of Human Rights,
GA Res. 217A (III), U.N. GAOR, 3d Sess. Art. 3, U.N. Doc. A/810
(1948), provides that “Everyone has the right to life, liberty,
and security of person.” The death penalty thus violates the
Universal Declaration of Human Rights, and is a violation of
international law. State v. Ross, 180 Ariz. 598, 602, 886 P.2d
1354, 1358 (1994) (citing State v. Richmond, 136 Ariz. 312, 322,
666 P.2d 57, 67 (1983)).
13. Execution by lethal injection is cruel and unusual
punishment in violation of the Eighth and Fourteenth Amendments,
and Article 2, § 15 of the Arizona Constitution. Defendant
acknowledges that this argument was rejected in Van Adams, 194
Ariz. at 422 ¶ 55, 984 P.2d at 30, and State v. Hinchey, 181
Ariz. 307, 315, 890 P.2d 602, 610 (1995). See Koniaris, et al.,
Inadequate Anesthesia in Lethal Injection For Execution, 365
Lancet 1412-14 (April 16, 2005) (suggesting that protocols for
lethal injection are insufficient to assure painless death and
evidence of botched executions).
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14. The penalty-phase jury instructions incorrectly told the
jury that if the Defendant was not put to death, the judge could
sentence him to a sentence of natural life or to life with
release, and that this violated his constitutional due process
rights under the Fifth and Fourteenth Amendments because there
was no real possibility that Defendant would ever be released
from prison. See Simmons v. South Carolina, 512 U.S. 154(1994)(reversible error to instruct jury that defendant could be
released when he could not); Hargrave, 225 Ariz. at 14-15 ¶¶ 50-
53, 234 P.3d at 582-83.
15. By allowing victim impact evidence at the penalty phase of
trial, the trial court violated Defendant‘s rights under the
Fifth, Sixth, Eighth and Fourteenth Amendments and Article 2,
§§ 1, 4, 13, 15, 23 and 24 of the Arizona Constitution. Lynn v.
Reinstein, 205 Ariz. 186, 68 P.3d 412 (2003).
16. The trial court improperly omitted from the penalty phase
jury instructions words to the effect that they may consider
mercy or sympathy in deciding the value to assign the mitigation
evidence, instead telling them to assign whatever value the jury
deemed appropriate and told the jury not to be influenced by
sentiment, passion, or prejudice in determining these facts.
These instructions limited the mitigation the jury could
consider in violation of the Fifth, Sixth, Eighth and Fourteenth
Amendments and Article 2, § 1, 4, 15, 23, and 24 of the Arizona
Constitution. State v. Carreon, 210 Ariz. 54, 70-72 ¶¶ 81-87,
107 P.3d 900, 916-18 (2005). See also State v. Kuhs, 223 Ariz.
376, 386-87 ¶¶ 51-56, 224 P.3d 192, 202-03 (2010).
17. The reasonable doubt instruction of State v. Portillo, 182
Ariz. 592, 898 P.2d 970 (1995), dilutes and shifts the burden of
proof in violation of the Sixth Amendment to the United States
Constitution. State v. Ellison, 213 Ariz. 116, 133 ¶ 63, 140
P.3d 899, 916 (2006).
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