State of Arizona v. Kenneth Wayne Thompson II

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellee,
v.
KENNETH WAYNE THOMPSON, II,
Appellant.
No. CR-19-0141-AP
Filed January 19, 2022
Appeal from the Superior Court in Yavapai County
The Honorable Patricia A. Trebesch, Judge (Retired)
No. P1300CR201200355
AFFIRMED
COUNSEL:
Mark Brnovich, Arizona Attorney General, Brunn (Beau) Roysden III,
Solicitor General, Jeffrey L. Sparks, Capital Litigation Section Chief, David
E. Ahl (argued), Assistant Attorney General, Phoenix, Attorneys for State
of Arizona
Stephen L. Duncan (argued), Law Offices of Stephen L. Duncan, P.L.C.,
Scottsdale, Attorney for Kenneth Wayne Thompson, II
STATE V. THOMPSON
Opinion of the Court
VICE CHIEF JUSTICE TIMMER authored the opinion of the Court, in which
JUSTICES BOLICK, LOPEZ, BEENE, MONTGOMERY, KING, and
PELANDER (Ret.) joined. *
VICE CHIEF JUSTICE TIMMER, opinion of the Court:
¶1 Kenneth Wayne Thompson was sentenced to death after a
jury found him guilty of multiple counts of first degree murder for the 2012
murders of Penelope Edwards and Troy Dunn in Prescott Valley. We
have jurisdiction over this automatic appeal under article 6, section 5(3) of
the Arizona Constitution and A.R.S. §§ 13-4031 and -4033(A). 1 We affirm
Thompson’s convictions and sentences. 2
BACKGROUND 3
¶2 The double murder here is rooted in a twisted family tale.
Edwards was Thompson’s sister-in-law and Dunn was Edwards’ fiancé.
Thompson was married to Edwards’ sister, Gloria, and they lived in
Missouri. Gloria previously had custody of Edwards’ two children
(“Daughter” and “Son”) from 2004 to 2008 after Edwards failed to report
Son’s father for molesting Daughter.
* Chief Justice Brutinel is recused from this case. Pursuant to article
6, section 3 of the Arizona Constitution, Justice John Pelander (Ret.), of the
Arizona Supreme Court was designated to sit in this matter.
1 We cite the current versions of statutes unless they have materially
changed since Thompson committed the offenses.
2 Thompson died shortly before issuance of this opinion. Because
whether the trial court properly imposed the death penalty, the harshest
sentence permitted in Arizona, is a matter of statewide concern, and
because resolution of many issues in this case would assist parties and
courts in future cases, we nevertheless decide this appeal. See State v. Reed,
248 Ariz. 72, 80–81 ¶¶ 29–31 (2020).
3 We view the facts in the light most favorable to sustaining the jury’s
verdicts. State v. Gallegos, 178 Ariz. 1, 9 (1994).
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STATE V. THOMPSON
Opinion of the Court
¶3 Gloria stayed in contact with Daughter through text messages
and emails after the children were returned to Edwards’ care in 2008. On
March 11, 2012, Gloria became upset and angry after learning Daughter
planned a trip that placed her at risk of engaging in sexual contact with an
adult, and that Son had been committed to the psychiatric department at a
children’s hospital after a physical altercation with Edwards. She spoke
to Thompson about her frustration and considered hiring a lawyer to
explore the possibility of having the children placed with her again in
Missouri.
¶4 Two days later, Thompson deposited an insurance check into
his bank account, reserving $10,000 in cash. Later that day, he activated a
prepaid “TracFone,” although he already owned a cell phone subscribed to
a Verizon plan. He did not provide the TracFone servicer with his
personal information when requested. Thompson used the TracFone to
arrange to purchase a handgun from an individual, whom he met at a gas
station later that day to complete the transaction.
¶5 The next evening, Thompson left his home in Missouri, telling
Gloria he would be in Tennessee for a few days to conduct personal
business. Instead, he headed for Prescott Valley in his car. He took the
TracFone and made various calls with it, but he did not take his personal
cell phone, and he did not communicate with Gloria during his drive.
¶6 Thompson purchased a GPS unit in New Mexico and used it
to navigate to Arizona, arriving in Prescott Valley late on March 15, where
he checked into a motel. Early the next morning, he took a taxi to a
Walmart. While the driver waited, Thompson purchased a change of
clothes, a camping axe, and a knife with a sheath that could be threaded
onto a belt.
¶7 After making other stops, the taxi took Thompson to the
victims’ home around 7:00 a.m. While en route, Thompson told the driver
he intended to visit “his sister” and that he didn’t get along with “her
husband” very well. After expressing surprise that the husband’s car was
parked outside the home, Thompson asked the driver to wait in case it was
a short visit. About five minutes later, Thompson returned and told the
driver everything was fine, and he could leave.
¶8 At 9:40 a.m., the same taxi driver picked Thompson up at the
victims’ residence and dropped him off at his motel. Thompson checked
out and drove to two stores, where he bought drain acid, a watering can,
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Opinion of the Court
bath towels, and a new shirt. During this time, Thompson used Dunn’s
cell phone to make calls.
¶9 Thompson returned to the victims’ home around 10:30 a.m.
and left again ten minutes later. After making several stops to purchase
gas cans, diesel fuel, and flares, Thompson used these items to set fire to the
victims’ home.
¶10 After the fire was extinguished, investigators found the
victims’ bodies. Dunn, who was found inside the home, had been dead
for several hours and had significant head trauma, including skull fractures
caused by “chop” type wounds. A trail of blood led from inside the house
to the side of the home, where Edwards’ body was found partially covered
by a blanket. She had injuries on her head, arms, and torso, likely caused
by “an axe or smaller axe, something like a hatchet,” according to the
medical examiner. Both bodies had chemical burns caused by an acid-
based drain cleaner. Edwards had defensive wounds, but Dunn did not.
Investigators found a hatchet lying on Edwards’ torso and a knife near
Dunn’s body. The knife was the same type as the one purchased by
Thompson before he went to the victims’ home.
¶11 Around 4:00 p.m., state trooper Matthew Bratz stopped
Thompson’s car traveling east on Interstate 40 near Flagstaff after
Thompson failed to slow down or change lanes for a stopped emergency
vehicle in violation of Arizona law. During the stop, Bratz noticed
Thompson seemed “very nervous” as “[h]e had a very rapid and heavy rise
and fall of his chest” and “his hand shook pretty grossly as he provided his
driver’s license, registration, [and] insurance.” Thompson was also
“argumentative about exiting the vehicle and rolling the window down.”
Bratz ultimately issued Thompson a warning and told Thompson the traffic
stop was over.
¶12 As Thompson turned back toward his car, Bratz asked if he
could ask additional questions, and Thompson consented. Thompson
refused Bratz’s request to search the car, but he agreed to permit Bratz to
run his drug-detector dog around the car’s outside. The dog alerted near
the trunk.
¶13 Before Bratz searched the car, Thompson asked repeatedly to
retrieve a water bottle from his backpack. Bratz retrieved the backpack
and opened it. He did not find a water bottle but instead found a gun and
a hatchet covered in bright red blood and what appeared to be a long
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Opinion of the Court
human hair stuck to the blade. A complete search of the car later yielded
blood-stained clothing; road flares; two gas cans; a watering can with acid
residue dripping from the spout; two cell phones (the TracFone and Dunn’s
cell phone); a belt with an empty knife sheath threaded onto it; and various
bags, packaging, and receipts for the items purchased at stores in Prescott
Valley. Thompson’s wallet contained over $3400, mostly in $100 bills.
The hatchet found in Thompson’s backpack was later determined to be the
same type as the one he purchased at Walmart on the morning of the
murders. Bratz contacted dispatch to determine if there had been a
homicide in the area and was informed of the murders and house fire in
Prescott Valley.
¶14 After Thompson was arrested, Prescott Valley Police
detectives Matt Hepperle and Ed Bills interviewed him. Thompson
explained he had traveled to Prescott Valley to convince Edwards to let him
take Son back to Missouri with him for the summer as an anniversary
surprise for Gloria. Upon arriving at the victims’ home, he heard
screaming coming from inside and ran in to discover Dunn attacking
Edwards with a hatchet. After Dunn dropped the hatchet and started
attacking Edwards with a knife, Thompson picked up the hatchet and killed
Dunn with it. According to Thompson, Edwards ran out the back door, he
followed and saw her collapse and die.
¶15 The detectives pointed out holes in Thompson’s story,
including the implausibility of Edwards being able to run outside after
being injured, but Thompson did not admit to killing Edwards. He
acknowledged he had placed the knife and hatchet on the victims to “save
you guys a step.” Thompson said he panicked after the killings and
sought to erase evidence of his DNA at the scene because he was a felon
and did not think the police would believe his story. He admitted pouring
drain cleaner on the bodies and, when the acid failed to adequately destroy
the evidence, using diesel fuel and flares to set fire to the house.
¶16 The State indicted Thompson on twelve counts, including
premeditated first degree murder (counts 1–2) and felony murder
predicated on burglary (counts 3–4). The State later gave notice of its
intent to seek the death penalty, listing seven aggravators pursuant to
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STATE V. THOMPSON
Opinion of the Court
A.R.S. § 13-751(F). 4 After a Chronis 5 hearing, the trial court found
probable cause for all aggravators.
¶17 After a ten-day trial, the jury found Thompson guilty of the
first degree murders of Dunn and Edwards under both premeditated and
felony murder theories (counts 1–4). The jury also found Thompson guilty
of burglary in the first degree and arson of an occupied structure (counts
7–8), both of which the jury found to be dangerous offenses. And the jury
found Thompson guilty of criminal damage ($10,000 or more) and
tampering with physical evidence (counts 9 and 12). The trial court
entered a judgment of acquittal on felony murder counts based on arson
(counts 5–6) and granted the State’s motion to dismiss weapons misconduct
charges (counts 10–11).
¶18 At the end of the aggravation phase, the jury found five
aggravating circumstances with regard to Edwards: (1) Thompson was
previously convicted of a serious offense, whether preparatory or
completed (F)(2); (2) Thompson committed the offense in an especially
cruel, heinous, or depraved manner (F)(6); (3) Thompson committed first
degree murder, burglary, arson, criminal damage, and tampering with
physical evidence while on probation for a felony offense (F)(7);
(4) Thompson was convicted of one or more other homicides, and those
homicides were committed during the commission of the offense (F)(8); and
(5) the offense was committed in a cold, calculated manner without
pretense of moral or legal justification (F)(13). See A.R.S.
§§ 13-751(F)(2), -751(F)(6), -751(F)(7), -751(F)(8), -751(F)(13) (2018).
¶19 Regarding Dunn, the jury found the aggravators (1) and
(3)–(5) above. It also found the especially heinous or depraved
designation under (F)(6). It was not asked to find the especially cruel
aggravator under (F)(6).
4 After this case was tried in 2019, the legislature amended § 13-751
and eliminated multiple aggravators, including, as relevant here, the cold-
and-calculated aggravator in subsection (F)(13). It also renumbered the
remaining subsections in subsection (F). See 2019 Ariz. Sess. Laws ch. 63,
§ 1 (1st Reg. Sess.). We cite the version of § 13-751 in effect at the time of
sentencing here.
5 Chronis v. Steinle, 220 Ariz. 559 (2009).
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STATE V. THOMPSON
Opinion of the Court
¶20 After the penalty phase of the trial, the jury returned death
verdicts for both murders. For the non-capital counts, the trial court
imposed concurrent prison sentences. This automatic appeal followed.
DISCUSSION
I. Pretrial issues
A. Merger
¶21 Thompson argues the trial court erred by denying his motion
to dismiss counts 3 and 4 (felony murder based on burglary) and permitting
imposition of the death penalty for his convictions on these counts. He
reasons that because the burglary was predicated on his intent to enter the
victims’ home to murder one or both of them, the burglary charges merged
into the first degree murder charges. We review the court’s ruling de novo
as a mixed question of fact and law. See State v. Moore, 222 Ariz. 1, 7 ¶ 17
(2009).
¶22 We have rejected arguments like Thompson’s in other cases.
See id. at 13–14 ¶¶ 57–63 (concluding that proof of entering with intent to
commit murder suffices to establish felony murder through burglary and
noting it would “be anomalous to conclude that first-degree murder occurs
if a burglary with intent to assault results in death but not if the burglary is
based on the more culpable intent to murder”); State v. Kuhs, 223 Ariz. 376,
382 ¶ 23 n.4 (2010) (rejecting argument that “one cannot commit felony
murder when one committed burglary in order to commit murder”); State
v. Hardy, 230 Ariz. 281, 287 ¶ 26 (2012) (“Because Arizona’s felony murder
statute applies when the predicate offense of burglary is undertaken with
the intent to murder the victim, it follows that the statute likewise applies
if the predicate offense is kidnapping based on intent to aid in committing
a murder.”).
¶23 Thompson does not offer any compelling reasons to overturn
these cases. For the most part, he refuses to acknowledge our holdings
that premeditated murder and burglary with the intent to murder are
separate offenses. See State v. Styers, 177 Ariz. 104, 112 (1993) (“Although
the jury findings in this case clearly demonstrate that the kidnapping was
pursuant to a plan to kill, that does not mean that only one crime was
committed. Thus, the merger doctrine would not apply here.”).
Thompson seeks to distinguish Kuhs and Hardy because the defendants in
those cases forced their way into their victims’ homes while he did not.
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STATE V. THOMPSON
Opinion of the Court
But this distinction is meaningless because burglary does not require forced
entry. See A.R.S. § 13-1507(A) (stating burglary can be committed “by
entering or remaining unlawfully in or on a residential structure with the
intent to commit any theft or any felony therein”).
¶24 Finally, as the State points out, any error here is harmless
because the jury imposed the death penalty for counts 1 and 2,
premeditated murder. See State v. Henderson, 210 Ariz. 561, 567 ¶ 18 (2005)
(describing the harmless error standard).
B. Motion to suppress
¶25 Thompson argues the trial court erred by denying his motion
to suppress the evidence recovered during the traffic stop and any “fruit”
of that search pursuant to the Fourth and Fourteenth Amendments to the
United States Constitution and article 2, sections 4 and 8 of the Arizona
Constitution. He asserts (1) the stop was unjustified; and (2) the dog sniff
did not create sufficient probable cause to search Thompson’s car.
¶26 We review the court’s ruling for an “abuse of discretion,
considering only the evidence presented at the suppression hearing and
viewing it in the light most favorable to sustaining the trial court’s ruling.”
State v. Primous, 242 Ariz. 221, 223 ¶ 10 (2017). An error of law in reaching
a discretionary conclusion may constitute an abuse of discretion. State v.
Johnson, 247 Ariz. 166, 186 ¶ 45 (2019) (quoting State v. Wall, 212 Ariz. 1, 3
¶ 12 (2006)). “Whether the probable cause determination here comports
with the Fourth Amendment is a mixed question of law and fact that we
review de novo.” State v. Cheatham, 240 Ariz. 1, 2 ¶ 6 (2016).
1. Reasonable suspicion to stop the car
¶27 Thompson generally recites the law concerning the propriety
of a traffic stop, but he never develops an argument that the trial court erred
by finding the stop here proper. He has therefore waived that argument.
See Johnson, 247 Ariz. at 194 ¶ 91.
¶28 At any rate, the court did not abuse its discretion because
evidence supports a conclusion that Bratz properly stopped Thompson’s
car. The Fourth Amendment and article 2, section 8 of the Arizona
Constitution protect people from unreasonable searches and seizures.
Law enforcement officers “seize” individuals by temporarily detaining
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Opinion of the Court
them during traffic stops. See Whren v. United States, 517 U.S. 806, 809–10
(1996); State v. Evans, 237 Ariz. 231, 233 ¶ 1 (2015). To pass constitutional
muster, the stop must be supported by reasonable suspicion that criminal
activity is occurring, even when probable cause is lacking. See Evans, 237
Ariz. at 234 ¶ 7. An officer’s subjective motivation for the stop does not
invalidate an otherwise lawful traffic stop. See Whren, 517 U.S. at 812–13.
¶29 The record supports the trial court’s ruling that the stop was
justified. Bratz was parked with his drug-detector dog, Leo, in a marked
highway patrol car and monitoring traffic on Interstate 40 when Thompson
drove by him. Bratz’s attention was drawn by Thompson’s rigid, erect
posture, and straight-ahead stare, which Bratz characterized as uncommon,
nervous behavior. After Thompson had traveled another half-mile, Bratz
followed. Soon, Bratz observed Thompson’s car traveling in the right-
hand lane between another car and a semi-truck. As the trio approached
another patrol car displaying flashing lights and a pulled-over semi-truck
in the right-hand emergency lane, all but Thompson pulled into the left-
hand lane to safely distance themselves from the stationary vehicles.
Thompson neither switched to the left lane, although there was room to do
so, nor slowed down.
¶30 Arizona law requires drivers approaching a stationary vehicle
displaying flashing lights on the side of the highway to either move to a
lane not adjacent to the vehicle or, if doing so would be unsafe, to slow
down while passing the vehicle. See A.R.S. § 28-775(E). Bratz saw
Thompson violate this law, giving Bratz reasonable suspicion to stop
Thompson. The trial court did not err by ruling that the stop was
reasonable and therefore justified under the state and federal constitutions.
See Whren, 517 U.S. at 812–13; Evans, 237 Ariz. at 234 ¶ 7.
2. Probable cause to search the car
¶31 Thompson argues the search was conducted without
probable cause. Warrantless searches are generally unconstitutional,
subject to a few exceptions. See Cheatham, 240 Ariz. at 2 ¶ 7. “One such
exception allows the warrantless search of an automobile, including
containers within, provided an officer has probable cause to believe
contraband or evidence will be found.” Id. Probable cause exists if the
facts available to the officer would “‘warrant a [person] of reasonable
caution in the belief’ that contraband or evidence of a crime is present.”
Florida v. Harris, 568 U.S. 237, 243 (2013) (quoting Texas v. Brown, 460 U.S.
730, 742 (1983)); see also id. at 244 (“All we have required is the kind of ‘fair
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STATE V. THOMPSON
Opinion of the Court
probability’ on which ‘reasonable and prudent [people], not legal
technicians, act.’” (quoting Illinois v. Gates, 462 U.S. 213, 238, 235 (1983))).
In evaluating whether probable cause exists, we consider the totality of the
circumstances. See id. at 244.
¶32 The trial court found probable cause based on Leo alerting to
the car. It found that Thompson had consented to the dog-sniff search and,
alternatively, that Bratz had reasonable suspicion to walk Leo around the
car. See State v. Driscoll, 238 Ariz. 432, 434 ¶ 8 (App. 2015) (acknowledging
that officers “may not ‘extend an otherwise-completed traffic stop, absent
reasonable suspicion, in order to conduct a dog sniff’” (quoting Rodriguez v.
United States, 575 U.S. 348, 353 (2015))).
¶33 Thompson argues the trial court erred by “sid[ing] with the
pretextual fantasy of probable cause based on the alleged valid alert by the
drug-detection dog.” Specifically, Thompson challenges the court’s
finding that he consented to Bratz walking Leo around the car. He asserts
Bratz was “an aggressive trooper looking for a reason to stop and search”
and maintains it was “unlikely” Thompson consented to the dog-sniff
search after initially refusing to get out of the car and later refusing the
request to search the car’s interior. Thompson also casts suspicion on
Bratz’s version of events by pointing out that the dash camera’s audio was
not working that day, and that Bratz had already requested back up to help
search the car before conducting the dog-sniff search.
¶34 We reject Thompson’s argument. Bratz’s version of events
was uncontested at the suppression hearing, and the court found Bratz
“very credible in his testimony.” Also, Thompson’s consent is not far-
fetched, as he contends. Thompson did not, in fact, possess illegal drugs,
so he had no reason to believe Leo would alert to the car. He therefore
may have consented to avoid suspicion. The court acted within its
discretion by finding that Thompson consented to Leo’s search. See State
v. Fritz, 157 Ariz. 139, 141 (App. 1988) (“The trial court is the sole arbitrator
of the credibility of witnesses.”).
¶35 Thompson next argues the trial court erred by finding that
Leo’s alert provided probable cause for the search. He claims that the fact
no drugs were found in the car, together with doubt about the accuracy of
Leo’s alert, suggests Bratz staged the alert as a pretext for searching the car.
As support for this argument, Thompson points to testimony from his
expert witness, professional dog trainer Steven Nicely. Nicely testified
that based on his review of Leo’s training records, Leo was not adequately
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Opinion of the Court
trained. Nicely also testified that Bratz’s increase in heartrate and
breathing “cued” Leo to alert to Thompson’s car. Nicely admitted this
“cue” was not detectable on the traffic-stop video.
¶36 The State presented two rebuttal witnesses, Edward Nicks, a
certified trainer from a company that selects, trains, and provides drug-
detector dogs to Arizona law enforcement agencies, and Brian Greene, the
officer who originally completed basic narcotics detection school with Leo
and helped Bratz learn to handle him. Nicks testified he had reviewed the
training records and found the Bratz-Leo team to be appropriately trained.
Based on his review of the traffic-stop video, Nicks also opined the stop was
consistent with the team’s training and that Leo was not cued. Greene
concurred, testifying that Bratz performed an appropriate inspection
during the stop and did not cue Leo. He characterized Bratz and Leo as a
highly reliable team.
¶37 The trial court did not err by discarding Nicely’s opinions and
finding that Leo had properly alerted to the car. See Fritz, 157 Ariz. at 141.
Nicely acknowledged he had not worked as a police officer since the 1990s,
had not trained police dogs since 2006, had only ever testified on behalf of
defendants, and had testified that the dogs involved had been cued “the
high majority of the time.” Conversely, Bratz and Greene had worked
directly with Leo and were familiar with his training, and Nicks was a
certified trainer familiar with Arizona drug-detector dogs. The training
records showed that Bratz and Leo had a 99.6% reliability rate based on
criteria used by the state. And significantly, the traffic-stop video did not
show that Leo had been cued.
¶38 Thompson relatedly argues the trial court violated his
substantive due process rights by finding probable cause considering
Bratz’s intent to search the car, Thompson’s unlikely consent to the dog-
sniff search, and Leo’s unreliable alert. But Thompson offers nothing in
addition to his previously made arguments challenging the probable cause
finding. The trial court acted within its discretion and not arbitrarily in
crediting the State’s witnesses over the defense’s witnesses and finding
probable cause.
¶39 Thompson finally argues the trial court violated Arizona Rule
of Evidence 702 by sustaining the State’s foundation objections during
defense counsel’s direct examination of Nicely. After Nicely testified that
dogs pick up odor on the downwind side of a vehicle, defense counsel twice
asked where Leo should have alerted based on the wind conditions on the
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Opinion of the Court
day of the stop if drugs had been in Thompson’s car. The court sustained
the State’s foundation objection, reasoning that because Nicely was not
present at the stop and “[w]e do not have any conclusion about wind
direction, wind speed, et cetera,” Nicely’s opinion would lack foundation.
¶40 The court did not abuse its discretion by sustaining the
foundation objection. See Ritchie v. Krasner, 221 Ariz. 288, 302 ¶ 45 (App.
2009) (applying abuse of discretion standard for trial court’s exclusion of
evidence based on lack of foundation). Experts may base opinions on facts
in evidence. See Ariz. R. Evid. 703; Lynn v. Helitec Corp., 144 Ariz. 564, 568
(App. 1984). Earlier in the suppression hearing, Bratz testified the wind
was blowing from the southwest at the time of the stop (moving from the
right rear of the car toward the left front), as recorded in his report of the
stop. But he also testified there were “sporadic gusts of wind” and that
passing semi-trucks made odors go in “all sorts of different directions.”
Nothing in the record addressed the wind conditions at the precise time
Leo alerted to the car. Nicely therefore lacked foundation to opine on
where Leo should have alerted had drugs been inside the car.
C. Precluding molestation evidence
¶41 Before trial, the State moved to preclude introduction of several
categories of evidence concerning the victims and the children as irrelevant
and inadmissible under Arizona Rule of Evidence 403. As pertinent here,
the trial court precluded evidence that Edwards allegedly participated in
molesting Daughter and possibly another child. The court explained that,
though “tangibly relevant,” this evidence consisted of “vague assertions”
that could not pass the Rule 403 balancing test. Specifically, the court
found that “[t]hese alleged factual assertions are unfair as they are
unproven, uncorroborated by any evidence, and on their surface appear to
suggest an improper purpose, and could potentially elicit or suggest
emotion, sympathy and horror.” We review this ruling for an abuse of
discretion. See Shotwell v. Donahoe, 207 Ariz. 287, 294 ¶ 27 (2004).
¶42 The trial court did not abuse its discretion. First, the precluded
evidence did not have great probative value. See State v. Gibson, 202 Ariz.
321, 324 ¶ 17 (2002) (“The greater the probative value . . . and the more
significant in the case the issue to which it is addressed, the less probable
that factors of prejudice or confusion can substantially outweigh the value
of the evidence.” (quoting 1 Joseph M. Livermore, Robert Bartels, & Anne
Holt Hameroff, Arizona Practice: Law of Evidence (formerly Udall on Evidence)
§ 403 at 82–83, 84–86 (4th ed. 2000))). Notably, the record does not reflect
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precisely what evidence was precluded. For example, we know neither
the exact content of the evidence nor whether the evidence was testimonial
or documentary. All we know is that the evidence consisted of “vague
assertions” that lacked corroboration and were unproven.
¶43 Second, other evidence sufficiently demonstrated
Thompson’s motive to travel to Arizona to protect the children. The court
permitted Thompson to introduce evidence of Edwards’ past failure to
report Daughter’s molestation, Edwards’ history of illegally using drugs,
Son’s hospitalization, and Daughter’s impending trip to an unsafe location.
The precluded, vague evidence would not have added much.
¶44 Conversely, admitting evidence suggesting Edwards had
molested her own daughter and another child could have certainly
inflamed the jury’s passions, resulting in unfair prejudice to the State’s case.
Indeed, Thompson acknowledged to the trial court that evidence of
Edwards’ participation in molesting Daughter “is not as essential as the
other items of evidence, and may have a greater prejudicial effect under
Rule 403.” On this slim record, the trial court did not abuse its discretion
by finding that this unfair prejudice substantially outweighed any minimal
probative value of the evidence.
II. Guilt phase issues
A. Jury selection
¶45 Thompson argues the trial court conducted voir dire in
violation of his Sixth Amendment right to an impartial jury. We review
the court’s objected-to rulings concerning voir dire for an abuse of
discretion. See State v. Glassel, 211 Ariz. 33, 45 ¶ 36 (2005); State v. Smith,
215 Ariz. 221, 230 ¶ 37 (2007). But whether a question to jurors is allowable
under Arizona law is reviewed de novo. State v. Kayer, 194 Ariz. 423, 431
¶ 22 (1999).
¶46 We review unobjected-to rulings for fundamental error. See
Henderson, 210 Ariz. at 567 ¶ 19. An error is fundamental if “(1) the error
went to the foundation of the case, (2) the error took from the defendant a
right essential to his defense, or (3) the error was so egregious that he could
not possibly have received a fair trial.” State v. Escalante, 245 Ariz. 135, 142
¶ 21 (2018). If a defendant shows the error was fundamental under prongs
one or two, he must also show the error prejudiced him. Id. The
appropriate inquiry is whether a reasonable jury, but for the error, “could
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have plausibly and intelligently returned a different verdict.” Id. at 144
¶ 31.
1. Scope of questioning
¶47 Thompson argues the trial court abused its discretion by
limiting his ability to ask prospective jurors about their predisposition to
impose the death penalty if he were found guilty. Specifically, he
challenges the trial court’s direction that defense counsel refrain from
precommitting prospective jurors to positions by asking whether they
would never consider certain circumstances, like child abuse, to be
mitigating factors. He also contests the court’s rulings prohibiting counsel
from asking one juror whether he was “leaning towards life,” so the
prosecutor would have to convince him that death was the appropriate
penalty, and asking another juror whether he would impose the death
penalty for certain murders even in the absence of aggravating
circumstances.
¶48 The Sixth and Fourteenth Amendments guarantee a
defendant’s right to an impartial jury. Morgan v. Illinois, 504 U.S. 719, 728
(1992). In a capital case, this includes the right to challenge for cause any
prospective juror who would automatically vote to impose the death
penalty, or in other words, any juror to whom “the presence or absence of
either aggravating or mitigating circumstances is entirely irrelevant . . . .”
Id. at 729.
¶49 Morgan is the seminal case governing the scope of voir dire
that must be permitted to identify any such prospective jurors. There, the
Court held that “general fairness and ‘follow the law’ questions” asked by
the trial judge were insufficient for determining which jurors would impose
the death penalty without regard for mitigation. Id. at 734. A
prospective juror may very well believe himself or herself committed to
follow the law, “and yet be unaware that maintaining . . . dogmatic beliefs
about the death penalty would prevent him or her from doing so.” Id.
at 735. Therefore, although the Supreme Court declined to write a script
for defense counsel, it instructed that a defendant must be permitted, upon
request, to make sufficient inquiry to determine which prospective jurors
may have predetermined to impose the death penalty. Id. at 729.
¶50 The trial court here did not violate Morgan by directing
defense counsel not to ask prospective jurors whether certain facts could
never constitute mitigating evidence. Defense counsel had no right to
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Opinion of the Court
“stake out” jurors’ views on the types of mitigation they would find
unpersuasive to identify jurors who would automatically impose the death
penalty upon a finding of guilt alone. See Smith, 215 Ariz. at 231 ¶ 42
(explaining that Morgan does not empower defense counsel to “ask a juror
to speculate or precommit on how that juror might vote based on any
particular facts” (quoting United States v. McVeigh, 153 F.3d 1166, 1207 (10th
Cir. 1998))); see also Glassel, 211 Ariz. at 46–47 ¶¶ 39–44 (rejecting argument
that Morgan entitled defense counsel to ask open-ended questions of jurors
about what categories of mitigators would be important to them or to ask
them to explain what “sufficiently substantial to call for leniency” meant);
Johnson, 247 Ariz. at 196 ¶ 102 (concluding Morgan did not permit defense
counsel to ask prospective jurors what type of evidence they would
consider mitigating); State v. Forde, 233 Ariz. 543, 561 ¶ 58 (2014) (rejecting
argument that the trial court erred by prohibiting defense counsel “from
asking prospective jurors both to identify mitigation they would consider
sufficient to call for leniency and to opine on whether specific circumstances
would constitute such mitigation”).
¶51 Also, the court allowed defense counsel a sufficient
opportunity to question prospective jurors at length and challenge any who
appeared unqualified because they were predisposed to impose the death
penalty without regard to mitigation. Questionnaires asked jurors about
their views on the death penalty, including whether they were generally or
strongly in favor or not in favor of the death penalty or neutral on its
imposition and whether “[f]or whatever reason” they would
“automatically vote for the death penalty without considering the evidence
and the instructions of law.”
¶52 Defense counsel also individually questioned jurors about
any predisposition towards imposing the death penalty. For example, he
provided a hypothetical scenario of an unjustified, premeditated murder
and then asked each prospective juror, “what are your feelings about the
death penalty being the only appropriate penalty for that guilty murder of
that innocent victim?” And of the sixteen jurors who were seated, fifteen
were asked if they would consider all mitigation evidence, and they
answered affirmatively.
¶53 The trial court also did not err by disallowing the questions to
two prospective jurors, see supra ¶ 47, because those questions rested on
misstatements of the law, which could have confused the venire panel. As
the court pointed out to defense counsel, the prosecution does not have to
convince jurors that death is the appropriate penalty, see State ex rel. Thomas
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Opinion of the Court
v. Granville, 211 Ariz. 468, 471 ¶ 11 (2005), and the death penalty cannot be
imposed in the absence of aggravating circumstances, see A.R.S. § 13-752(E).
2. Time limits
¶54 Thompson argues the trial court erred at the outset of voir
dire by imposing, without objection, a five-minute time limit per party to
question each prospective juror, thereby hindering his ability to probe into
prospective jurors’ views on the death penalty. But this limitation was
abandoned when the court agreed to permit each party to question
prospective jurors in small groups rather than individually. Regardless,
the court indicated it was flexible on timing. And when the venire panel
had winnowed to forty people, the court permitted individual voir dire
without time constraints. Significantly, Thompson points to no instance
when the court denied his request for more time. The court did not
commit error, much less fundamental error. See State v. Acuna Valenzuela,
245 Ariz. 197, 208 ¶¶ 17–19 (2018) (concluding a trial court did not abuse its
discretion by setting time limits for each side at the outset because it was
flexible about providing extra time).
3. “Packing” and “signaling”
¶55 Thompson argues, without apparent objection to the trial
court or elaboration here, that “the State was allowed to pack the jury with
pro-death jurors” through its questioning. From our review of the record,
the State acted properly by asking prospective jurors whether they would
commit to following the law regarding aggravating and mitigating
circumstances, and the court acted within its broad discretion by striking
jurors for cause who showed a predetermination not to impose the death
penalty. As we have noted, a trial judge 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.’” State v. Prince, 226 Ariz. 516, 528 ¶ 27 (2011) (quoting
Wainwright v. Witt, 469 U.S. 412, 433 (1985)); see also id. at 528–29 ¶¶ 26–34
(finding that the trial court acted within its discretion when it struck jurors
based on responses to the questionnaire that indicated they would not be
willing to impose the death penalty, noting jurors’ views do not need to “be
proven with ‘unmistakable clarity’” (quoting State v. Ellison, 213 Ariz. 116,
137 ¶ 89 (2006))).
¶56 Thompson relatedly argues the jury pool was “contaminated”
because group voir dire permitted the prosecutor to “signal” what kinds of
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Opinion of the Court
answers would result in a prospective juror’s dismissal. But defense
counsel, when asked by the court, consented to group voir dire.
Regardless, the parties moved to strike jurors for cause outside the
prospective jurors’ presence. As the court explained, “I certainly don’t
want to excuse them in the course of questioning so we don’t signal what is
an appropriate response to be released.” There is no error here.
4. Strikes by the trial court
¶57 Finally, Thompson asserts the trial court “repeatedly struck
jurors on its own for reasons stated on the record that did not merit
immediate dismissal.” But because he fails to develop this argument or
even point out which prospective jurors were improperly struck by the
court, Thompson has waived this argument. See State v. Moody, 208 Ariz.
424, 452 ¶ 101 n.9 (2004) (“Failure to argue a claim usually constitutes
abandonment and waiver of that claim.” (quoting State v. Carver, 160 Ariz.
167, 175 (1989))).
¶58 Alternatively, because Thompson did not object to striking
any of the struck jurors (in fact, defense counsel repeatedly stated he had
“no objection” to the trial court’s strikes), Thompson bears the burden of
showing any resulting error was fundamental. See Henderson, 210 Ariz.
at 567 ¶ 19. Because Thompson has not alleged that the jurors were struck
for discriminatory reasons or articulated how any of the strikes prejudiced
him, he has not met this burden. See Escalante, 245 Ariz. at 142 ¶ 21.
B. Expert testimony
¶59 Thompson argues the trial court erred by permitting the State
to solicit expert opinion testimony from witnesses Ed Bills and John Riley.
Because Thompson did not object to the challenged testimony, we review
for fundamental error. See Henderson, 210 Ariz. at 567 ¶ 19.
1. Bills
¶60 At the time of the murders, Bills was the lead detective for the
Prescott Valley Police Department. By the time of trial, he had retired
from the force and was serving as the chief investigator for the Yavapai
County Attorney’s Office.
¶61 Bills testified about “defensive wounds,” which occur when
victims put their arms up to fend off an assailant’s attack. At issue here,
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Opinion of the Court
Bills testified that after viewing pictures of the victims’ bodies and the
autopsy reports, and “based on [his] training and expertise,” Edwards had
defensive wounds and Dunn did not.
¶62 Thompson argues in his opening brief that Bills’ testimony
violated Arizona Rule of Evidence 701(c) because he “was not testifying
from his perception; he was testifying from an autopsy report and
photographs from others.” Rule 701(c) prohibits lay witnesses from
offering opinion testimony “based on scientific, technical, or other
specialized knowledge within the scope of Rule 702,” which addresses
expert testimony. After the State responded that Bills testified as an
expert, Thompson asserted in his reply brief that “Bills opined as an expert
without the requisite foundation to do so” because his opinions were not
based on sufficient facts or data and were not the product of reliable
principles and methods to determine the difference between types of
wounds.
¶63 An expert witness is someone qualified “by knowledge, skill,
experience, training, or education,” whose knowledge assists the jury in
understanding the evidence, who testifies based on sufficient facts and
applies reliable “principles and methods to the facts of the case.” Ariz. R.
Evid. 702. A qualified expert “need only possess ‘skill and knowledge
superior to that of [people] in general.’” State v. Romero, 239 Ariz. 6, 10
¶ 17 (2016) (alteration in original) (quoting State v. Girdler, 138 Ariz. 482, 490
(1983)). Extensive training is not required but only a degree of expertise
in the subject such that “a jury can receive help on a particular subject from
the witness.” State v. Davolt, 207 Ariz. 191, 210 ¶¶ 70, 75 (2004).
¶64 Bills testified as an expert, so Rule 701(c) did not apply. He
had been in law enforcement for twenty-five years, including seventeen
years as a detective who investigated numerous deaths and murders,
including those involving guns, knives, and other instruments. Bills
testified that as an investigating officer, he had seen “defensive wounds
typically from sharp instruments, knives, [and] razors.” His knowledge
regarding defensive wounds was superior to that of people in general,
meaning his insight would have assisted the jury in understanding what
they saw in the photographs. See id. ¶¶ 73–76 (finding no error in the
admission of blood spatter analysis testimony by a detective who, as part
of his advanced training for the police force, had taken classes in crime
scene management and homicide investigation and had watched two
training videos about blood spatter analysis); Ariz. R. Evid. 702. The
sufficiency of Bills’ training went to the weight of his testimony, not its
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Opinion of the Court
admissibility. See Davolt, 207 Ariz. at 210 ¶ 70. The trial court did not
commit error, much less fundamental error, by permitting Bills’ testimony
regarding defensive wounds. And even assuming fundamental error,
Thompson has not shown prejudice. Forensic pathologist Dr. William
Stano corroborated Bills’ explanation of defensive wounds and that
Edwards’ body exhibited them. The jury could not plausibly have
reached a different verdict had Bills’ testimony been precluded. See
Escalante, 245 Ariz. at 144 ¶ 31.
2. Riley
¶65 Riley was the evidence technician for the Prescott Valley
Police Department and also processed crime scenes by taking photographs,
lifting fingerprints, collecting DNA, calculating bullet trajectory, and the
like. Thompson argues Riley was not qualified as an expert to offer
opinions that a small hatchet found at the murder scene had a “chemical
smell and what appear[ed] to be blood and human tissue on the hatchet
itself,” or that Edwards’ body showed evidence of “blunt force—severe
trauma, impact trauma, of being struck” with a “sharp instrument.”
¶66 Riley’s opinion about the look and smell of the hatchet was
clearly based on his perception of the hatchet at the crime scene, assisted
the jury in determining what the evidence showed, and was not based on
scientific, technical, or other specialized knowledge. See Ariz. R. Evid. 701.
He did not identify the smell or definitively opine that the substance on the
hatchet was human tissue. As such, the opinion was admissible as a lay
opinion. See id.
¶67 Riley’s experience and training also qualified him to offer
these opinions as an expert. Riley worked for the Prescott Valley Police
Department for seventeen years, eventually becoming the department’s
head evidence technician. Before that, he worked for the Phoenix Police
Department for twenty-five years, spending fifteen of those years as a
sergeant supervising investigative squads in homicide, vice, burglary, and
robbery details. He also oversaw evidence collection during Phoenix
Police homicide investigations. This experience provided him with
superior knowledge to distinguish between blunt force and sharp
instrument injuries. See Davolt, 207 Ariz. at 210 ¶ 70. The trial court did
not commit error, much less fundamental error, by permitting the
challenged testimony.
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Opinion of the Court
¶68 Even assuming error, Thompson has not shown prejudice.
Dr. Stano corroborated Riley’s testimony by describing the difference
between “blunt force” and “sharp force” wounds and explaining that the
presence of both indicates that the injuries were likely caused by a heavy
object with a sharp edge, like an axe or a hatchet. Dr. Stano also testified
that Edwards’ body had both blunt force and sharp force wounds. The
jury could not plausibly have reached a different verdict had Riley’s
testimony been precluded. See Escalante, 245 Ariz. at 144 ¶ 31.
C. Admission of in-life photo
¶69 Thompson argues the trial court erred by admitting an in-life
photo of the victims in violation of his Fifth, Sixth, Eighth, and Fourteenth
Amendment rights and article 2, sections 4 and 24 of the Arizona
Constitution. Thompson further argues the photo was irrelevant and
unduly prejudicial because it showed a happy, engaged couple. We
review the admission of in-life photos for an abuse of discretion. See
Ellison, 213 Ariz. at 141 ¶ 115.
¶70 Trial courts follow a three-step process to determine whether
to admit an in-life photo. See State v. Doerr, 193 Ariz. 56, 64 ¶ 29 (1998).
The court initially must decide if the photo is relevant. Id. If it is, the
court must then consider “whether the photograph has a tendency to
inflame or incite passion in the jurors.” Id. The probative value of the
photo must then be weighed against the risk of unfair prejudice. Id.; see
also Ariz. R. Evid. 403. Courts have broad discretion in deciding whether
to admit photos. See State v. Spreitz, 190 Ariz. 129, 141 (1997).
¶71 The trial court did not abuse its broad discretion here. The
photo had slight relevance in depicting the victims before they incurred
their injuries. But as the trial court observed, the photo could “shed light
on the circumstances, given the gruesome photographs the jury [would] be
viewing.” See Doerr, 193 Ariz. at 64 ¶ 32 (observing it is not inappropriate
to “personalize the victim and help to complete the story for the jurors,” as
long as the photos do not “undermin[e] the defendant’s right to an objective
determination of guilt or innocence”).
¶72 We cannot say the court erred by finding that the photo’s
probative value was not substantially outweighed by a risk of unfair
prejudice. See Ariz. R. Evid. 403. The photograph, chosen among others
rejected by the court as overly emotional, merely showed Dunn and
Edwards smiling at the camera and leaning toward each other over a large
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Opinion of the Court
rock. See Ellison, 213 Ariz. at 141 ¶ 115 (stating photos that are “‘benign’
as compared to the victims’ post-death photos” are generally not at risk of
being unfairly prejudicial). The court also minimized any risk of unfair
prejudice by instructing the jury it “[m]ust not be influenced by sympathy
or prejudice.” See State v. Carson, 210 Ariz. 54, 71 ¶¶ 85–87 (2005).
¶73 Alternatively, even if the court erred in admitting the
photograph, the error was harmless because it did not materially contribute
to or affect the verdict. See Doerr, 193 Ariz. at 64 ¶ 33. Just as we found
in Doerr, “[g]iven the overwhelming physical evidence introduced at trial
and the benign nature of the photograph itself, we conclude that this exhibit
did not materially affect the outcome of the case.” Id.D. Prosecutorial error
¶74 Thompson argues his convictions were tainted by two
instances of prosecutorial error that individually and cumulatively violated
his Fifth, Sixth, and Fourteenth Amendment rights. Specifically, he asserts
that during rebuttal closing argument, the prosecutor improperly
commented on Thompson’s right not to testify and appealed to a
manufactured duty owed to the victims’ families.
¶75 To prevail on a claim of prosecutorial error, a defendant must
show “that the prosecutor’s [error] so infected the trial with unfairness as
to make the resulting conviction a denial of due process.” State v. Murray,
250 Ariz. 543, 548 ¶ 13 (2021) (quoting State v. Morris, 215 Ariz. 324, 335 ¶ 46
(2007)). To do so, the defendant must demonstrate that (1) prosecutorial
error exists; and (2) “a reasonable likelihood exists that the [prosecutorial
error] could have affected the jury’s verdict, thereby denying defendant a
fair trial.” Id. (quoting State v. Anderson (Anderson II), 210 Ariz. 327, 340
¶ 45 (2005)).
1. Comment on the right not to testify
¶76 During the rebuttal closing argument, the prosecutor said the
following, referring to defense counsel’s theory that the murders were
crimes of passion that occurred following an emotionally charged
conversation between Thompson and the victims:
Instead of discussing the evidence in painstaking fashion as I
did in my original closing argument, counsel asks you to
speculate again and again and again and again.
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Opinion of the Court
Few of those examples. There was some sort of conversation
in the house between the defendant and Troy and Penny.
Defendant came here with money. He was going to offer
money for the kids, that Penny reacted emotionally to
whatever this conversation that occurred in the house.
Penny and Troy reacted emotionally. Clearly something
went on in that house.
Is Penny considering this offer that there is no evidence for?
Does she get mad? Does she yell and scream? Something
more happened in that house, some sort of fight or altercation.
Speculation.
Two out of the three people that were in that house and know
what happened are dead. The only other person is the
defendant.
(Emphasis added). Defense counsel objected, and the court called a
sidebar conference wherein the prosecutor assured the court he planned to
comment on Thompson’s statements to police, not his failure to testify.
After the sidebar, the prosecutor continued his argument by stating, “In the
defendant’s statements that he gave to the police that we’ve established is
full of lies, it doesn’t mention any of these things.” The prosecutor then
went on to discuss the lack of evidence of the emotional altercation that
defense counsel asked the jury to assume took place. No mention was
made of Thompson’s decision not to testify.
¶77 A prosecutor is prohibited by the Fifth Amendment, its
Arizona counterpart, Ariz. Const. art. 2, § 10, and A.R.S. § 13-117(B) from
directly or indirectly bringing to the jury’s attention that the defendant did
not testify. See Griffin v. California, 380 U.S. 609, 615 (1965); see also State v.
Schrock, 149 Ariz. 433, 438 (1986). As relevant here, we have held that a
prosecutor cannot point out that the defendant supplied no evidence
concerning a factual circumstance if the defendant is the only person who
could provide that evidence because that serves as a comment on the
defendant’s failure to testify. See State v. Fuller, 143 Ariz. 571, 575 (1985)
(“The prosecutor may properly comment upon the defendant’s failure to
present exculpatory evidence, so long as the comment is not phrased to call
attention to the defendant’s own failure to testify. An exception to this
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Opinion of the Court
rule occurs when it appears that the defendant is the only one who could
explain or contradict the state’s evidence.” (internal citation omitted)).
¶78 We examine challenged statements in context to determine
whether “the jury would naturally and necessarily perceive them to be a
comment on the failure of the defendant to testify.” Schrock, 149 Ariz. at
438. “Further, to be constitutionally improper, the comment must (1) be
adverse, in that it supports an unfavorable inference against the defendant,
and (2) operate as a penalty for defendant’s exercise of his constitutional
right.” Id.¶79 The prosecutor’s argument here did not constitute a comment
on Thompson’s decision not to testify and was therefore proper. Defense
counsel challenged the State’s premeditation evidence during closing
argument, arguing the evidence also supported a finding that Thompson
killed the victims in the “heat of passion” after “a highly emotional
conversation” between the three about the children and while the victims
were either high on heroin or withdrawing from it. But Thompson had
told police he had interrupted an altercation between the victims, not that
he killed them during an emotional confrontation about the children. The
prosecutor relied on that statement—not Thompson’s failure to testify—as
suggesting that his crime-of-passion defense to premeditated murder was
implausible. In context, the jury would not have naturally and necessarily
perceived the argument as a comment on Thompson’s decision not to
testify. See id.
2. Appealing to a duty owed to victims’ families
¶80 Also during rebuttal closing argument, the prosecutor stated,
“[W]e know who the defendant is. He’s a cold-blooded, brutal murderer
times two. That’s who he is. If you do not find the defendant guilty of
first degree premeditated murder for Troy and Penny, you failed their
families.” (Emphasis added.) Defense counsel objected and moved to
strike the statement. The court sustained the objection, struck the
statement, and advised the jury, “You will disregard that last comment.”
After the prosecutor concluded his rebuttal closing, defense counsel asked
to approach and made an oral motion for a mistrial because the prosecutor
“[knew] better than to make that comment in front of a jury,” and because
failing the victims’ families is an improper basis for a conviction. The
court denied the motion on the grounds that the appropriate remedy had
already been administered.
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Opinion of the Court
¶81 A prosecutor’s statements are improper if (1) they call
attention to matters that jurors should not consider in reaching their verdict,
and (2) create a high probability that the jurors are, in fact, influenced by
those statements. See State v. Hulsey, 243 Ariz. 367, 391 ¶ 109 (2018). The
prosecutor’s statement that the jury should return a guilty verdict on
premeditated murder to avoid failing the victims’ families was clearly
improper and, frankly, inexcusable for an experienced prosecutor.
Whether the victims’ families are served or harmed by a particular verdict
is not a consideration in reaching that verdict, and suggesting jurors owed
a duty to victims’ families that can only be met by a guilty verdict on
premeditated murder constituted an emotional appeal that carried a high
likelihood of influencing jurors. See State v. Bible, 175 Ariz. 549, 602–03
(1993) (concluding that prosecutor erred by imploring the jury to protect
the victim’s rights and reasoning that “[a] jury in a criminal trial is not
expected to strike some sort of balance between the victim’s and the
defendant’s rights,” and “[t]he statements encouraged the jury to decide the
case on emotion and ignore the court’s instructions”); see also Acuna
Valenzuela, 245 Ariz. at 223 ¶ 117 (“The statement asking the jury to do
‘justice for Edgar’ was arguably inappropriate insofar as it asked the jury to
‘strike some sort of balance between the victim’s and the defendant’s
rights.’” (quoting Bible, 175 Ariz. at 603)). The prosecutor here needlessly
and impermissibly jeopardized Thompson’s due process rights. The trial
court correctly struck the statement and instructed the jury to ignore it. See
Bible, 175 Ariz. at 603.
¶82 The State does not contest the trial court’s ruling. Instead, it
argues the court correctly denied the motion for mistrial because the
comment did not so infect the trial with unfairness as to make the verdict a
denial of due process. Thompson does not offer any meaningful
counterargument, simply stating that the curative instruction was
insufficient.
¶83 We agree with the State. The prosecutor’s comment was
isolated and brief, and the court immediately struck it and instructed the
jury to disregard it. The court’s actions cured any sting from the comment.
See State v. Lynch, 238 Ariz. 84, 100 ¶ 48 (2015), rev’d on other grounds, 578
U.S. 613 (2016) (“The proper response to an improper prosecutorial
comment is an objection, motion to strike, and a jury instruction to
disregard the stricken comment.”); State v. Newell, 212 Ariz. 389, 403 ¶ 69
(2006) (finding an instruction that the jury must disregard statements after
a sustained objection curative even where the jury was not told to disregard
the statements at the time of the objection and noting that juries are
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Opinion of the Court
presumed to follow instructions). Under these circumstances, there is not
a reasonable likelihood that the statement could have affected the jury’s
verdict, thereby depriving Thompson of a fair trial and requiring a reversal.
See Murray, 250 Ariz. at 548 ¶ 13.
¶84 Finally, Thompson asserts in conclusory fashion that the
statements here were also improper because they misstated the law, shifted
the burden of proof, impugned the integrity of the defense, improperly
argued inferences and conclusions during closing, vouched for the victims,
vouched by implying facts not in evidence, and appealed to the jurors’
fears. Because these arguments are not developed, Thompson has
abandoned and waived them. See State v. Vargas, 249 Ariz. 186, 191 ¶ 22
(2020).
¶85 Because we conclude that only one instance of prosecutorial
error occurred here, there is no need to address cumulative error.
III. Aggravation phase
A. (F)(13) aggravator
¶86 Thompson argues the trial court abused its discretion and
violated his Eighth Amendment rights by denying his Rule 20 motion made
at the close of evidence to enter a judgment that the (F)(13) “cold and
calculated” aggravator was unproven. 6 See Ariz. R. Crim. P. 20(a)(2). We
review the court’s ruling on a Rule 20 motion de novo. State v. Escalante-
Orozco, 241 Ariz. 254, 282 ¶ 104 (2017), abrogated on other grounds by State v.
Escalante, 245 Ariz. 135 (2018).
¶87 Rule 20(a)(2) requires the trial court to enter a judgment that
an aggravating circumstance is unproven “if there is no substantial
evidence to support the allegation.” “Substantial evidence” exists if
reasonable persons could find the evidence, both direct and circumstantial,
sufficient to support the existence of the aggravator beyond a reasonable
doubt. See State v. (Randall) West, 226 Ariz. 559, 562 ¶ 16 (2011). In
6 Thompson also challenges the court’s denial of his pretrial motion
made on the same basis pursuant to Arizona Rule of Criminal Procedure
16.1(b). But he doesn’t develop a separate Rule 16.1 argument and,
indeed, the issues appear identical. Our disposition of the Rule 20 issue
resolves Thompson’s challenge to the Rule 16.1 ruling.
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Opinion of the Court
determining whether substantial evidence exists, we view the evidence in
the light most favorable to the prosecution. See id.¶88 The (F)(13) aggravator requires the state to prove beyond a
reasonable doubt that “[t]he offense was committed in a cold, calculated
manner without pretense of moral or legal justification.” A.R.S.
§ 13-751(B), (F)(13). In State v. Hausner, we held that the “cold and
calculated” part of the aggravator was unconstitutionally vague, but it
could be cured with proper jury instructions. 230 Ariz. 60, 82–83
¶¶ 102–03 (2012). Rather than arguing that the curative instructions here
were unhelpful, Thompson argues the State failed to prove that the murder
was committed “without pretense of moral or legal justification.”
¶89 Our cases have not extensively addressed what constitutes a
“pretense of moral or legal justification.” In Hausner, the trial court, like
the court here, instructed the jury that “without pretense of moral or legal
justification” means “anything of justification or excuse that, though
insufficient to reduce the degree of murder, nonetheless rebuts the
otherwise cold, calculated nature of the murder.” Id. at 83–84 ¶ 109. The
defendant there challenged the court’s failure to explain what legal
justifications existed under Arizona law. Id. at 84 ¶ 109. We rejected that
argument, explaining it “mistakenly presumes that the jury could only
consider legally recognized justifications” when, in fact, (F)(13) “refers
more broadly to a ‘pretense’ of legal or moral justification, and the trial
court reasonably defined this as ‘anything of justification or excuse.’” Id.¶90 Thompson argues substantial evidence did not exist that he
lacked a pretense of legal or moral justification for killing the victims
because both he and the State “presented evidence and argument that [he]
went to the home because he wanted to take the law into his own hands
and rescue the children from the victims.” Thompson does not specify
what evidence supports this assertion, and we are not aware of any direct
evidence to this effect, although a reasonable juror could have drawn this
inference. Indeed, the only direct evidence of Thompson’s reasoning was
his statement to officers that he killed Dunn to protect Edwards.
¶91 We agree with the trial court that a reasonable juror could also
have drawn an inference from the evidence that Thompson lacked a
pretense of legal or moral justification for killing the victims. Thompson’s
trip to Arizona coincided with him learning Gloria was upset about
Daughter’s risky travel plans and Son’s hospitalization, she wanted to have
the children placed with her, and that she was considering hiring a lawyer
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Opinion of the Court
to assist in that effort. Viewing this evidence in the light most favorable to
the State, a reasonable person could conclude Thompson murdered the
victims not for the altruistic purpose of rescuing the children, but simply to
regain custody of them without having to hire a lawyer and proceed
through the courts. Although these could be motives for the murders,
they would not constitute a pretense of legal or moral justification. The
trial court did not err by denying Thompson’s Rule 20 motion and
permitting the jury to decide whether the State had proven the (F)(13)
aggravator.
¶92 Furthermore, any error was harmless. The State bears the
burden of “prov[ing] beyond a reasonable doubt that the error did not
contribute to or affect the verdict or sentence.” See Henderson, 210 Ariz.
at 567 ¶ 18. It has satisfied that burden here. Use of the (F)(13)
aggravator did not allow the jury to consider any otherwise inadmissible
evidence. See Hausner, 230 Ariz. at 84 ¶ 113 (explaining harmless error can
exist when an inapplicable aggravator is used “so long as the error[] do[es]
not permit the sentencer to consider otherwise inadmissible evidence”
(citing Clemons v. Mississippi, 494 U.S. 738, 754 n.5 (1990))). Also, it was
only one of five aggravators found by the jury for each murder. We have
before held that the multiple homicides aggravator, found here, is given
“extraordinary weight.” State v. Poyson, 250 Ariz. 48, 57 ¶ 43 (2020); State
v. Dann (Dann II), 220 Ariz. 351, 376–77 ¶ 153 (2009). The cruelty
aggravator, also found here, is also “entitled to great weight.” Poyson, 250
Ariz. at 57 ¶ 42 (quoting State v. McKinney (McKinney I), 245 Ariz. 225, 228
¶ 15 (2018)). Given the weight and number of other aggravators the jury
found and the proffered mitigation evidence, see infra § IV(B)(2), the jury
clearly would have imposed the death penalty even absent the (F)(13)
aggravator.
IV. Constitutionality of death penalty
A. Felony murder
¶93 Thompson argued in his opening brief that imposing the
death penalty for the first degree felony-murder counts violated his due
process rights under the Fifth Amendment and article 2, section 4 of the
Arizona Constitution as well as the Eighth Amendment and article 2,
section 15 of the Arizona Constitution. Specifically, he asserted that
because the felony murders were based on an underlying felony (burglary)
that did not require a specific intent to kill, the death penalty was not
constitutionally imposed.
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STATE V. THOMPSON
Opinion of the Court
¶94 In his reply brief, Thompson concedes that imposing the
death penalty without a finding of premeditation is constitutional. We
agree and therefore accept the concession. See State v. McLoughlin, 139
Ariz. 481, 486 (1984) (“It is not unconstitutional for the Arizona Legislature
to mandate that an individual who causes the death of another while
seeking to accomplish one of several enumerated felonies, each of which
requires a showing of intent and/or knowledge for conviction, be subject
to the same criminal charges and punishment as a person who causes the
death of another person with premeditation.”); State v. Herrera, 176 Ariz. 21,
30 (1993) (“Arizona’s felony murder rule is not unconstitutional.”); see also
State v. (Thomas) West, 176 Ariz. 432, 445 (1993) (“The felony-murder rule,
designed as it is to protect human life, represents sound public policy, is
reasonably related to the end sought to be accomplished and is not
constitutionally impermissible.” (quoting State v. Celaya, 135 Ariz. 248, 255
(1983))), overruled on other grounds by State v. Rodriguez, 192 Ariz. 58, 64 ¶ 30
n.7 (1998).
¶95 Furthermore, any error was harmless. The jury also found
Thompson guilty of premediated murder of both victims and imposed the
death penalty for those convictions. See Anderson II, 210 Ariz. at 343 ¶ 59
(“In any event, the jury returned separate guilty verdicts for both felony
murder and premeditated murder as to each victim; therefore, the first-
degree murder convictions would stand even absent a felony murder
predicate.”).
B. Abuse of discretion review
¶96 Because Thompson committed the murders after August 1,
2002, this Court must review the jury’s findings of aggravating
circumstances and the imposition of a death sentence for an abuse of
discretion. A.R.S. § 13-756(A). We view the facts in the light most
favorable to sustaining the verdict. State v. Naranjo, 234 Ariz. 233, 249 ¶ 81
(2014). A finding of aggravating circumstances or the imposition of a
death sentence is not an abuse of discretion if there is “any reasonable
evidence in the record to sustain it.” Morris, 215 Ariz. at 341 ¶ 77 (quoting
State v. Veatch, 132 Ariz. 394, 396 (1982)). This Court must uphold a death
sentence “if any ‘reasonable juror could conclude that the mitigation
presented was not sufficiently substantial to call for leniency.’” Naranjo,
234 Ariz. at 250 ¶ 89 (quoting State v. Gallardo, 225 Ariz. 560, 570 ¶ 52 (2010)).
28
STATE V. THOMPSON
Opinion of the Court
1. Aggravating circumstances
¶97 The State alleged, and the jury found beyond a reasonable
doubt, five aggravating circumstances. See supra ¶¶ 18–19. Except for
the (F)(13) aggravator arguments addressed and rejected above, Thompson
does not assert the jury abused its discretion in finding the aggravating
circumstances. From our review of the record, we conclude that
reasonable evidence exists to sustain the jury’s finding that the State proved
each aggravator beyond a reasonable doubt. See Morris, 215 Ariz. at 341
¶ 77.
2. Propriety of the death sentences
¶98 The jury also did not abuse its discretion in finding that death
was an appropriate sentence. Thompson presented evidence of twenty-
five non-statutory mitigating circumstances. Significantly, defense
counsel sought to present Thompson as the survivor of a dysfunctional
childhood whose indoctrination in Scientology and undiagnosed autism
caused him to have a difficult time processing emotions, interpreting facial
expressions, and coping with emotionally charged situations without
becoming overwhelmed. Thompson himself gave an allocution that
lasted over three hours. He described his personality, his “black and
white” thinking, his intelligence, and his concern for Daughter and Son.
Notably, he said twice he was not sorry that Dunn and Edwards were dead,
and he told the jurors it was “okay” if they gave him the death sentence.
¶99 A reasonable juror could conclude that many of the mitigators
presented, such as “poverty,” “death of family members,” “important life
documents destroyed,” and “educational instability,” were weak, and that
none of the mitigators was “sufficiently substantial to warrant leniency,”
considering the number of aggravators and Thompson’s own admission he
was not sorry the victims were dead. See Naranjo, 234 Ariz. at 250 ¶ 89.
The jury did not abuse its discretion in finding that the death penalty was
appropriate.
V. Issues raised to avoid preclusion
¶100 Thompson raises twenty-one other claims to avoid their
preclusion. As Thompson concedes, this Court has previously rejected
each claim. Considering the lack of developed arguments from
Thompson, we do not address them. See Vargas, 249 Ariz. at 191 ¶ 22.
29
STATE V. THOMPSON
Opinion of the Court
CONCLUSION
¶101 For the foregoing reasons, we affirm Thompson’s convictions
and sentences.
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