State of Arizona v. Steven John Parker

SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0196-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2006-129786
STEVEN JOHN PARKER, )
) O P I N I O N
Appellant. )
_________________________________ )
Appeal from the Superior Court in Maricopa County
The Honorable Roland J. Steinle, Judge
AFFIRMED
________________________________________________________________
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation
John Pressley Todd, Assistant Attorney General
Jeffrey A. Zick, Assistant Attorney General
Attorneys for State of Arizona
DAVID GOLDBERG ATTORNEY AT LAW Fort Collins, CO
By David Goldberg
Attorney for Steven John Parker
________________________________________________________________
B E R C H, Chief Justice
¶1 Steven John Parker was sentenced to death for two
murders, and this automatic appeal followed. We have
jurisdiction under Article 6, Section 5(3) of the Arizona
Constitution and A.R.S. § 13–4031.
I. FACTS AND PROCEDURAL HISTORY1
¶2 Wayne and Faye Smith were found murdered in their home
on September 26, 2005. Faye’s ankles were bound, and she had
been stabbed to death. Wayne also had been stabbed several
times, but died from blunt force trauma to his head. The
medical examiner could not determine the time of death for
either victim, but they were last seen alive two days earlier,
on September 24.
¶3 Wayne’s wallet and Faye’s purse were missing from the
home. On September 24, 2005, between 4:50 and 5:30 p.m.,
someone used the Smiths’ credit and bank cards at several
locations near their home. The next day, the cards were used at
an ATM in Quartzsite, Arizona, and at a gas station in Temecula,
California.
¶4 At the time of the murders, Parker lived next door to
the Smiths with a roommate, Tasha Uhl. On September 24, the
likely day of the murders, Uhl could not find Parker around 2:30
or 3:00 in the afternoon, despite calling for him both inside
and outside the house. Parker later came in and told Uhl he had
been doing yard work and had not heard her call. Uhl left
around 5:00 p.m., and Parker’s girlfriend picked him up from the
1
“We view the facts in the light most favorable to
sustaining the verdict.” State v. Dann, 205 Ariz. 557, 562 ¶ 2,
74 P.3d 231, 236 (2003).
2
house just over an hour later. The two were together until the
morning of Sunday, September 25.
¶5 That day, Parker left in Uhl’s car without her
permission. At the time, Parker owed money to his employer. He
drove to Mexico and then to California. He abandoned the car in
San Diego and hitched a ride to Chino, California, where friends
told him he was a “person of interest” in the Smiths’ murders.
Parker then took a bus to Las Vegas, where he remained for four
days until he was arrested and jailed on October 13, 2005.
Police questioned Parker about the murders, but charged him only
with stealing Uhl’s car and his employer’s money. Parker
eventually pleaded guilty to stealing from his employer and was
sentenced to probation.
¶6 Shortly after Parker’s release from jail, testing
revealed that Parker’s DNA matched DNA from a drop of blood
found on the Smiths’ kitchen sink and DNA from a napkin found on
the kitchen counter. Police arrested Parker again on May 26,
2006, and charged him with the murders, first degree burglary,
and kidnapping.
¶7 At trial, Parker testified that he was not involved in
the crimes and asserted that another man killed the Smiths. The
jury found him guilty of all charges. The jury also found three
aggravating factors: pecuniary gain, A.R.S. § 13-751(F)(5);
especial cruelty, id. § 13-751(F)(6); and multiple homicides,
3
id. § 13-751(F)(8). After finding no mitigation sufficient to
call for leniency, the jury determined that Parker should be
sentenced to death for each murder.
II. DISCUSSION
A. Speedy Trial
¶8 Parker argues that he was denied his right to a speedy
trial in violation of the Sixth Amendment.2 We review issues of
constitutional law de novo and related factual determinations
for abuse of discretion. State v. Smith, 215 Ariz. 221, 233
¶ 57, 159 P.3d 531, 543 (2007).
¶9 The Sixth Amendment’s guarantee of a speedy trial
protects a defendant’s right to be brought to trial without
undue delay. There is no bright line rule for how quickly a
trial must occur. In evaluating such claims, courts weigh (1)
the length of the delay, (2) the reason for the delay, (3) the
defendant’s assertion of the right to a speedy trial, and (4)
the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514,
530 (1972); State v. Spreitz, 190 Ariz. 129, 139, 945 P.2d 1260,
1270 (1997). Parker’s trial began on March 15, 2010, three
years and nine months after his May 26, 2006 arrest and June 6,
2006 indictment. Under the first Barker factor, this delay is
sufficient to trigger the full Barker analysis.
2
Parker waived his state speedy trial claim under Rule 8 of
the Arizona Rules of Criminal Procedure and has not asserted a
speedy trial right under the Arizona Constitution.
4
¶10 The second Barker factor requires examination of the
reasons for the delay. See Vermont v. Brillon, 129 S. Ct. 1283,
1290 (2009) (analyzing “whether the government or the criminal
defendant is more to blame for th[e] delay”) (alteration in
original).
¶11 During the first year of the case, the defense spent
significant time pursuing a motion to remand the case to the
grand jury, seeking special action review of the denial of that
motion at the court of appeals, and petitioning for review to
this Court. On August 15, 2007, the State and defense counsel
agreed to exclude 305 days from the time calculation, and Parker
waived all applicable time limits.
¶12 Parker is also responsible for an eleven-month delay in
2008 and 2009. He asked to delay his trial date because his
lead defense attorney had another trial and needed more time to
investigate. The trial court rescheduled Parker’s trial and
excluded this time, with Parker’s consent.
¶13 Parker’s lead attorney then retired at the end of 2008.
This caused an additional ten-month delay until March 15, 2010.
The State is not responsible for defense counsel’s decision to
retire and the resulting delay. Cf. Dies v. State, 926 So. 2d
910, 916-17 ¶ 15 (Miss. 2006) (“original judge’s retirement and
his replacement by the assistant district attorney who was
5
prosecuting this case was [not attributable to] either the State
or [the defendant]”).
¶14 Parker argues that the delays occasioned by defense
counsel’s trial schedule should not be attributed to him because
they were caused by underfunding of the criminal justice system
and the high number of capital cases in Maricopa County at the
time. Delays caused by systemic breakdowns can be charged to
the state in certain cases. See Brillon, 129 S. Ct. at 1292.
This case, however, does not rise to that level. In State v.
Hanger, for example, the county refused to pay defense counsel.
146 Ariz. 473, 474, 706 P.2d 1240, 1241 (App. 1985). And in
Doggett v. United States, the government was negligent in
tracking down the defendant and took eight years to prosecute
the case. 505 U.S. 647, 652-53 (1992). Comparable
circumstances are not present here.
¶15 The third Barker factor requires the defendant to
assert his right to a speedy trial in order to establish a
constitutional violation. State v. Schaaf, 169 Ariz. 323, 327,
819 P.2d 909, 913 (1991) (stating that speedy trial violation
“is waived unless asserted promptly”). Parker did not assert
his right to a speedy trial until February 24, 2009, two years
and nine months after his arrest. Parker’s delay in asserting
his right weighs against him. See, e.g., State v. Henry, 176
Ariz. 569, 579, 863 P.2d 861, 871 (1993) (fourteen-month delay
6
in asserting right weighed against defendant); Phan v. State,
723 S.E.2d 876, 883 (Ga. 2012) (same, for three-and-a-half-year
delay). Parker clearly consented to delays through June 2008,
and once he began asserting his speedy trial right, his case
went to trial within a year.
¶16 The fourth and most important Barker factor is whether
the delay prejudiced the defendant. State v. Soto, 117 Ariz.
345, 348, 572 P.2d 1183, 1186 (1977). We assess prejudice in
light of the interests that the speedy trial right protects
against: (1) “oppressive pretrial incarceration,” (2) “anxiety
and concern of the accused,” and (3) “the possibility that the
defense will be impaired” by diminishing memories and loss of
exculpatory evidence. Barker, 407 U.S. at 532. Of these forms
of prejudice, “the most serious is the last, because the
inability of a defendant adequately to prepare his case skews
the fairness of the entire system.” Id.; see Soto, 117 Ariz. at
348, 572 P.2d at 1186.
¶17 The trial court found that Parker failed to show any
prejudice other than pretrial incarceration. The court allowed
Parker to supplement the record to show prejudice, but he did
not do so. Instead, Parker argues that he did not need to show
prejudice given the lengthy delay and the anxiety he suffered
from his pre-trial incarceration.
7
¶18 Trial occurred almost four years after Parker was
charged with the murders. But like the defendant in Spreitz,
Parker asserted no prejudice except that arising from his pre-
trial incarceration. See Spreitz, 190 Ariz. at 140, 945 P.2d at
1271 (noting that five years’ incarceration “may have increased
defendant’s anxiety[,] . . . [but] the delay did not prejudice
his ability to defend against the state’s claims”); Phan, 723
S.E.2d at 883-84. For these reasons, Parker has not established
a violation of his Sixth Amendment right to a speedy trial.
B. Voir Dire
¶19 Parker argues that the trial court abused its
discretion by limiting his questions during voir dire. Over
Parker’s objection, the trial judge refused to include in juror
questionnaires a question on whether prospective jurors would
automatically vote for the death penalty. The judge did,
however, ask each panel of potential jurors this question and
excused those who said they would automatically vote for death.
Defense counsel sought to probe further the remaining jurors’
views on the death penalty, but the judge precluded questions
about the jurors’ feelings on the death penalty and what types
of mitigation they would consider, characterizing them as
“stakeout questions.”
¶20 We review restrictions on the scope of voir dire for
abuse of discretion. State v. Johnson, 212 Ariz. 425, 434 ¶ 29,
8
133 P.3d 735, 744 (2006). Prohibiting any inquiry whatsoever
about whether prospective jurors would automatically impose a
death sentence, however, is structural error. State v. Moore,
222 Ariz. 1, 9 ¶ 33, 213 P.3d 150, 158 (2009) (citing Morgan v.
Illinois, 504 U.S. 719, 729-30, 735-36 (1992)).
¶21 In Morgan v. Illinois, the United States Supreme Court
held that defendants are entitled to discover through voir dire
“whether a potential juror will automatically impose the death
penalty once guilt is found.” State v. Jones, 197 Ariz. 290,
303 ¶ 27, 4 P.3d 345, 358 (2000) (discussing Morgan). Morgan
does not, however, require a trial court to permit open-ended
questions about jurors’ general views on the death penalty and
mitigation, or whether jurors would impose the death penalty if
they found specific aggravators. Smith, 215 Ariz. at 230-31
¶¶ 40-43, 159 P.3d at 540-41. We have repeatedly rejected
invitations to expand Morgan’s holding. See id.; Johnson, 212
Ariz. at 434-35 ¶¶ 31, 33, 133 P.3d at 744-45 (as to specific
mitigating factors that would warrant leniency); State v.
Glassel, 211 Ariz. 33, 45-46 ¶¶ 37, 39, 116 P.3d 1193, 1205-06
(2005) (as to jurors’ understandings of the phrase “sufficiently
substantial to call for leniency”). We similarly decline to do
so here.
¶22 Although he denied Parker’s request to include the
Morgan question in the questionnaire, the trial judge did ask
9
that question of each panel of prospective jurors and dismissed
those potential jurors who indicated they would automatically
vote for death. We find no abuse of discretion.
C. Excluded Testimony
¶23 Parker argues that the trial court erred by precluding
some testimony as hearsay. At trial, Parker argued that a third
party, Jason Randall, committed the murders. Parker attempted
to use testimony from Casandra Manery to place Randall in the
Smiths’ home around the time of the murders.
¶24 A few years after the murders, police discovered that
Manery had fraudulently accessed the Smiths’ bank accounts. She
testified at trial that she obtained the Smiths’ bank
information from Randall, who lived near the Smiths’ house. At
trial, Manery testified that she had told police during an
earlier interview that “It was almost like [Randall] was going
back to the house to try and get something out.” She also
recalled that Randall had taken the Smiths’ bank records from
their trash and had given them to her in late September or early
October of 2005.
¶25 In an earlier interview, however, Manery had told a
detective: “Really the way I remember it is that [Randall] told
me that he got the information through the trash. But I thought
at some point that he had told me that he had also gone inside
the house to look for other things.” Parker tried to elicit
10
this second statement from Manery as a statement against
Randall’s interest under Arizona Rule of Evidence 804(b)(3)
(2010),3 but the trial court excluded the statement.
¶26 During Parker’s offer of proof, Parker asked Manery
whether Randall said that he had gone into the Smiths’ house.
Manery stated, “I know I said that in these [police
interrogation transcripts]. I’ve read that.” She continued,
“But I don’t today remember if [Randall] told me that or not.”
The trial court excluded the prior statement, finding it “not
inherently reliable” because Manery “ha[d] no independent
recollection” of Randall having made the statement, and further
noting that even in the police interview Manery was never clear
that Randall had actually made the statement. We review a trial
court’s ruling on the admissibility of evidence under a hearsay
exception for abuse of discretion. State v. Tucker, 205 Ariz.
157, 165 ¶ 41, 68 P.3d 110, 118 (2003).
¶27 Even if we assume Randall’s statement qualified as a
statement against his interest under Rule 804(b)(3), Manery’s
prior statement about Randall’s statement is hearsay. Ariz. R.
Evid. 801(c). She does not remember making the statement and
cannot be examined about it. Further, during the police
3
We cite the Arizona Rules of Evidence in effect during
Parker’s trial, recognizing that the Rules were amended
effective January 1, 2012. See Ariz. R. Evid. prefatory cmt. to
2012 amends.
11
interview, Manery could not even say for sure that Randall ever
made such a statement, in part, she said, because her extensive
drug use affected her memory. And at trial, she had no memory
whatsoever of Randall making the statement or of telling police
about it.4 Given the deficient indicia of reliability
surrounding Manery’s statement and the fact that Manery was
allowed to testify that she had previously told police, “It was
almost like [Randall] was going back to the house to try and get
something out,” we cannot conclude that the trial judge abused
his discretion in precluding Manery’s similar statement, “I
thought at some point that he had told me that he had also gone
inside the house to look for other things.”
D. Admitted Business Records
¶28 Parker asserts that the trial court improperly admitted
a report of the Smiths’ credit card transactions and Wayne’s
handwritten timesheets under the business records exception to
the hearsay rule, Arizona Rule of Evidence 803(6). We review
these rulings for abuse of discretion. Tucker, 205 Ariz. at 165
¶ 41, 68 P.3d at 118. The business records exception requires
that the record be made at or near the time of the entry by or
from information transmitted by someone with knowledge, be kept
in the ordinary course of business, be made as a regular
4
Parker did not argue at trial that Manery’s prior statement
was admissible under Rule 803(5), the recorded recollection
exception to the hearsay rule.
12
practice, and be testified to by a qualified witness. Ariz. R.
Evid. 803(6).
1. Credit card report
¶29 At trial, the State introduced evidence of transactions
on the Smiths’ Capital One credit cards through videotaped
deposition testimony of Keri Ward, a Capital One fraud
investigator. The State also introduced a report Ward prepared
by copying and pasting the Smiths’ credit card transaction
information from Capital One’s database. Parker objected to the
report, arguing that it was not prepared in the regular course
of business. The trial court overruled the objection.
¶30 Documents prepared solely for purposes of litigation
generally are not made in the regular course of business. See
Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1258-59 (9th
Cir. 1984) (discussing Federal Rule of Evidence 803(6)). If
documents prepared for litigation are mere reproductions of
regularly kept database records, however, such documents may
qualify as business records. See U-Haul Int’l, Inc. v.
Lumbermens Mut. Cas. Co., 576 F.3d 1040, 1043-44 (9th Cir. 2009)
(discussing federal rule 803(6)); see also Jack B. Weinstein and
Margaret A. Berger, Federal Evidence § 901.08[2], at 901-84
(Joseph M. McLaughlin ed., 2d ed., rev. 2012) (“[P]rintouts
prepared specifically for litigation from databases that were
compiled in the ordinary course of business are admissible as
13
business records to the same extent as if the printouts were,
themselves, prepared in the ordinary course of business.”).
This is the case with the records at issue here.
¶31 Ward testified that Capital One regularly makes and
keeps records of all credit card transactions. She described
how merchants and other third parties transmit the information
used to create the records. Although the records aid in fraud
and police investigations, Ward indicated that the records serve
several other business purposes, including billing, tracking
spending habits, and resolving customer disputes. These facts
qualify the entries in Ward’s report as business records.
¶32 Further, Ward’s report did not change the character of
the records. Ward testified that she accessed the Smiths’
account information in Capital One’s computer and copied and
pasted that information into a document she faxed to the police.
Although Ward made the report at the request of the police, the
information provided was identical to Capital One’s business
records. Because the report simply repeated information that
was admissible as a business record, the report itself was
likewise admissible. See Ariz. R. Evid. 1006; U-Haul Int’l,
Inc., 576 F.3d at 1043-44 (noting that “evidence that has been
compiled from a computer database is also admissible as a
business record” under corresponding federal rule 803(6)).
14
¶33 Parker argues that there is a double hearsay problem
because Ward did not know who transmitted the information into
Capital One’s database. But courts regularly admit business
records even when the testifying witness did not assemble the
complete record. See, e.g., United States v. Langford, 647 F.3d
1309, 1326 (11th Cir. 2011) (records of credit card transactions
properly admitted under federal rule 803(6) despite custodial
witness “not hav[ing] personal knowledge of each of the
records”); State v. Veres, 7 Ariz. App. 117, 125, 436 P.2d 629,
637 (1968) (to same effect), overruled on other grounds by State
v. Osborn, 107 Ariz. 295, 295, 486 P.2d 777, 777 (1971); see
also Weinstein’s Federal Evidence § 803.08[8][a], at 803-84 to
803-86 (“The witness need not have . . . personally assembled
the records . . . [,] [and t]here is no requirement that the
records have been prepared by the entity that has custody of
them . . . .”). Trustworthiness and reliability stem from the
fact that Capital One regularly relies on the information that
third parties submit as part of their ordinary course of
business. See, e.g., United States v. Adefehinti, 510 F.3d 319,
326 (D.C. Cir. 2007) (listing cases that permit business records
of one entity to be admitted as a business record of another
entity if the latter entity relies on those records and keeps
them in the ordinary course of business). The trial court did
15
not abuse its discretion in admitting this evidence as a
business record.
2. Handwritten timesheets
¶34 The State introduced Wayne’s handwritten timesheets to
impeach Parker’s testimony about when he left the spot of blood
on the Smiths’ kitchen faucet and the DNA on the napkin. Parker
testified that he cut his finger while helping Wayne with yard
work around 2:00 p.m. on September 22, 2005. He further
testified that he went to the Smiths’ kitchen sink to clean the
wound but saw dirty dishes in the sink, so he went to the
bathroom to wash his hands. He said Faye gave him a napkin and
a bandage for his cut.
¶35 Wayne’s handwritten timesheets, however, showed that
Wayne was at work until 4:30 p.m. on September 22, 2005. To lay
the foundation for the timesheets, the State called Wayne’s co-
worker, Sean Kirk, who testified that Wayne routinely kept track
of his work hours on such timesheets. Kirk testified that he
saw Wayne write the week’s first entry for Monday, September 19,
2005, and it was Wayne’s habit to record or log his work hours
each day. Kirk also testified that he was familiar with Wayne’s
handwriting and that the writing on the timesheets was Wayne’s.
Parker objected, arguing that the State failed to lay adequate
foundation because Kirk did not actually see Wayne write the
16
entry on September 22. The trial court overruled this
objection.
¶36 Even though Kirk did not see Wayne write the record on
the day in question, his familiarity with Wayne’s handwriting
and process of writing timesheets was sufficient to allow him to
lay foundation. Kirk testified that he had worked alongside
Wayne for about a year and a half, he and Wayne performed the
same job, they used the same system to create timesheets, he had
seen Wayne fill out timesheets, and they prepared the records in
the course of business at about the time they performed the
work. This provides sufficient foundation. Cf. State v.
McCurdy, 216 Ariz. 567, 571-72 ¶¶ 8-10, 169 P.3d 931, 935-36
(App. 2007) (finding jail supervisor qualified to lay foundation
based on testimony that he had supervised new inmates, was
familiar with process for filing property receipts, and knew
that such receipts were a part of the jail’s normal course of
business).
¶37 Parker argues that Standard Chartered PLC v. Price
Waterhouse, 190 Ariz. 6, 945 P.2d 317 (App. 1996), shows that
the foundation was not adequate. But that case is inapposite.
There, the trial court excluded a memorandum because the author
did not prepare it “at or near” the time the events took place.
Id. at 46, 945 P.2d at 357. Here, the timesheets were admitted
based on Kirk’s testimony that, among other things, Wayne
17
recorded his work hours close to the time he performed the work.
The trial court did not abuse its discretion in admitting the
timesheets as business records.
E. Confrontation Clause
¶38 Parker argues that admission of the credit card
transaction information and timesheets violated his right to
confrontation under the Sixth Amendment. We “independently
review whether the government’s proffered guarantees of
trustworthiness satisfy the demands of the Clause.” Lilly v.
Virginia, 527 U.S. 116, 137 (1999). The Confrontation Clause
bars admission of out of court testimonial evidence unless the
defense has had an opportunity to cross-examine the declarant.
Crawford v. Washington, 541 U.S. 36, 68 (2004). Testimonial
evidence is “ex parte in-court testimony or its functional
equivalent – that is, material such as affidavits, custodial
examinations, prior testimony that the defendant was unable to
cross-examine, or similar pretrial statements that declarants
would reasonably expect to be used prosecutorially.” Id. at 51.
¶39 By their nature, business records ordinarily are not
testimonial. See id. at 56 (noting that most “hearsay
exceptions cover[] statements that by their nature [a]re not
testimonial – for example, business records”). This is so
because business records are generally “created for the
administration of an entity’s affairs and not for the purpose of
18
establishing or proving some fact at trial.” Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 324 (2009).
¶40 Parker argues that admission of the credit card
transaction information violated the Confrontation Clause
because Ward’s report, having been created at the request of
police, was testimonial, and he did not have the opportunity to
cross-examine the sources who transmitted the transaction
information to Capital One’s database. Although Ward created
the report at the request of the police, the transaction
information in the report is not testimonial. The credit card
records in Capital One’s database are maintained to facilitate
its business, not to aid police. The third parties who transmit
transaction information to Capitol One similarly do so to
facilitate their own businesses, not to aid police
investigations. Parker’s Confrontation Clause rights with
respect to Ward were not violated because Ward was subject to
cross-examination by Parker about the preparation of the report.
¶41 The Confrontation Clause does not require every person
who participated in compiling information to testify in court.
See id. at 311 n.1 (noting that gaps in the chain of custody go
to the weight, not the admissibility, of the evidence, and not
“everyone who laid hands on the evidence must be called”).
Thus, admitting the Capital One credit card evidence did not
violate the Confrontation Clause.
19
¶42 Parker also contends that admitting Wayne’s timesheets
violated the Confrontation Clause because Wayne was not
available as a witness and had not previously been cross-
examined. Wayne prepared his timesheets as part of a routine
business practice, not to aid a police investigation. This type
of record is nontestimonial because it is “created for the
administration of an entity’s affairs and not for the purpose of
establishing or proving some fact at trial.” Id. at 324; accord
United States v. Yeley-Davis, 632 F.3d 673, 679 (10th Cir.
2011). The admission of Wayne’s timesheets thus did not violate
the Confrontation Clause.
F. Flight Instruction
¶43 Parker argues that the trial court erred by instructing
jurors that they could consider flight as evidence of
consciousness of guilt. At trial, he testified that he left
Phoenix on Sunday, September 25, 2005, because his girlfriend
broke up with him that morning, and he had a history of leaving
when faced with personal troubles.
¶44 We review the trial court’s decision to give a flight
instruction for abuse of discretion. State v. Dann (Dann II),
220 Ariz. 351, 363-64 ¶ 51, 207 P.3d 604, 616-17 (2009). The
trial court may give a flight instruction if the state presents
evidence from which jurors may infer “consciousness of guilt for
20
the crime charged.” State v. Edwards, 136 Ariz. 177, 184, 665
P.2d 59, 66 (1983).
¶45 The record reflects that the murders probably occurred
the afternoon of Saturday, September 24, 2005. Sometime before
2:00 p.m. on Sunday, September 25, without notice to anyone and
without permission, Parker drove his housemate’s car to Mexico,
where he remained for several days before driving to San Diego
and abandoning the car. Parker then went to Chino, California,
where friends told him Phoenix police wanted to speak with him.
Instead of returning to Phoenix or contacting law enforcement,
Parker took a bus to Santa Barbara. A few days later, he took
another bus to Las Vegas, where police arrested him for theft on
October 13.
¶46 Parker first argues that the trial court should not
have given the flight instruction because he did not leave until
the day after the murders ostensibly occurred. But this delay
goes to the weight of the flight evidence; it does not preclude
the trial court from giving a flight instruction. Dann II, 220
Ariz. at 363-64 ¶ 51, 207 P.3d at 616-17; State v. Bible, 175
Ariz. 549, 592, 858 P.2d 1152, 1195 (1993). This Court has
approved flight instructions when the flight was more than one
day removed from the commission of the crime. E.g., Edwards,
136 Ariz. at 184, 665 P.2d at 66 (approving a flight instruction
21
where defendant fled fifteen months after the crime). The short
delay here did not make giving a flight instruction improper.
¶47 Parker next argues that the trial court should not have
given the flight instruction because law enforcement was not
pursuing him when he left, and he did not attempt to conceal his
identity. At least in part, this is not correct. While in
Mexico, Parker gave a false name to a hitchhiker. Additionally,
once he heard that police were looking for him, he did not
return to Phoenix or contact authorities, but instead went to
Santa Barbara and then Las Vegas.
¶48 In any event, neither pursuit by law enforcement nor
complete concealment is required to support a flight
instruction. See State v. Noleen, 142 Ariz. 101, 108, 688 P.2d
993, 1000 (1984) (approving flight instruction where defendant
left the state and abandoned his car, even though police were
not pursuing him and he used his own name when checking in at a
motel). Rather, “[l]eaving the state justifies a flight
instruction as long as it invites some suspicion of guilt.”
State v. Thornton, 187 Ariz. 325, 334, 929 P.2d 676, 685 (1996).
Such an inference is reasonable here.
¶49 Parker cites State v. Bailey, 107 Ariz. 451, 489 P.2d
261 (1971), which held a flight instruction unwarranted on the
unique facts presented. In Bailey, however, the defendant
presented unrefuted evidence that he was near the crime when it
22
occurred only because he was driving home to Texas from Los
Angeles, and he simply proceeded home. Id. at 451-52, 489 P.2d
at 261-62. Here, by contrast, Parker fled from his residence
rather than toward it and had no previous plans to leave the
state.
¶50 Finally, Parker’s explanation for his flight did not
preclude the trial court from giving a flight instruction. See
State v. Hunter, 136 Ariz. 45, 49, 664 P.2d 195, 199 (1983)
(defendant’s alternative explanation for flight does not make
instruction improper). It simply created a fact question for
the jury to decide.
G. Third-Party Culpability Instruction
¶51 Parker argues that the trial court erred by not
instructing the jury on third-party culpability at the close of
the guilt phase of the trial. The judge declined to give
Parker’s requested instruction because it commented on the
evidence. See Ariz. Const. art. 6, § 27 (instructions may not
comment on the evidence); State v. Roque, 213 Ariz. 193, 213
¶ 66, 141 P.3d 368, 388 (2006) (same). The judge suggested an
alternative instruction, but Parker objected because he believed
it incorrectly stated the law.
¶52 Parker then requested the following instruction:
Steven Parker contends that he did not kill Wayne
Smith or Faye Smith.
23
In order for you to consider a third-party culpability
defense, Defendant must show some evidence concerning
a third person or third persons that tends to create
reasonable doubt as to his guilt. Defendant does not
need to prove beyond a reasonable doubt that the third
party is guilty of the charged offenses. The evidence
need only tend to show that a third person or persons
committed the offenses and thus tend to create
reasonable doubt as to Defendant’s guilt.
You may also consider that Mr. Randall was served with
a subpoena, that he is under court order to appear,
that he has failed to appear, and that a warrant has
been issued for his arrest for the failure to appear.
Mr. Randall’s flight is not sufficient in itself to
establish guilt, but it is a fact which you may
consider in the light of all other facts concerning
Mr. Randall.
The judge declined to give this instruction because, among other
things, it set forth the standard for admitting third-party
culpability evidence, not the standard for the jury to use in
evaluating such evidence. Noting that other instructions
adequately dealt with the substance of the requested
instruction, the judge invited Parker to submit a modified
instruction, but the record does not reflect that Parker ever
did so. The judge also invited the parties to argue third-party
culpability in closing.
¶53 On appeal, Parker concedes that his proposed
instruction improperly comments on the evidence, but now argues
that the trial court should have given just the middle paragraph
from his instruction. We review a trial court’s decision to
24
refuse a jury instruction for abuse of discretion. State v.
Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995).
¶54 A trial judge must instruct the jury “on any theory
reasonably supported by the evidence.” State v. Moody, 208
Ariz. 424, 467 ¶ 197, 94 P.3d 1119, 1162 (2004). A trial judge,
however, need not give a proposed jury instruction when its
substance is adequately covered by other instructions or it
incorrectly states the law. State v. Rodriguez, 192 Ariz. 58,
61 ¶ 16, 961 P.2d 1006, 1009 (1998). Moreover, a trial judge
has no duty to parse the proposed instruction for the accurate
portions. Hammels v. Britten, 53 Ariz. 112, 120, 85 P.2d 992,
995 (1939).
¶55 In arguing that a third-party culpability instruction
was required, Parker cites State v. Gibson, 202 Ariz. 321, 44
P.3d 1001 (2002), and State v. Prion, 203 Ariz. 157, 52 P.3d 189(2002). But Gibson and Prion dealt with the admissibility of
third-party culpability evidence, not third-party culpability
jury instructions. See Prion, 203 Ariz. at 161-62 ¶¶ 19-27, 52
P.3d at 193-94; Gibson, 202 Ariz. at 323-24 ¶¶ 11-19, 44 P.3d at
1003-04. No Arizona case has required a third-party culpability
instruction.
¶56 Nor was such an instruction required here. Although
Parker contends that the proposed instruction was needed to
prevent the jury from improperly shifting the burden of proof
25
from the State, the court instructed the jury on the presumption
of innocence and the State’s burden of proving beyond a
reasonable doubt all elements of the crimes charged. See People
v. Abilez, 161 P.3d 58, 91-92 (Cal. 2007) (finding any error in
failure to give third-party culpability instruction harmless
where jury was instructed on presumption of innocence and burden
of proof); State v. Berger, 733 A.2d 156, 168 (Conn. 1999)
(holding third-party culpability instruction unnecessary where
jury was instructed on presumption of innocence and burden of
proof). Thus, the substance of the instruction was adequately
covered, and we find no reversible error.
H. Fifth Amendment
¶57 Parker argues that his Fifth Amendment rights were
violated by the admission of his videotaped interviews with
police and by the prosecutor’s comments on his statements in
those interviews.
¶58 Before trial, Parker sought to exclude two recorded
interviews with police on the grounds that his statements were
involuntary. After a hearing, the trial judge declined to
preclude the admission of either interview. At trial, both
interviews were admitted into evidence by stipulation and played
for the jurors. Parker ended each interrogation by invoking his
right to counsel, and both invocations were played to the jury
without objection.
26
¶59 In closing argument, the prosecutor commented on the
fact that Parker ended the first interview. The trial court
sustained Parker’s objection and granted his motion to strike.
¶60 The following morning, Parker moved for a mistrial,
arguing that the prosecutor had improperly commented on his
invocation of his Fifth Amendment rights. The trial court
denied the motion, noting that the jury had seen Parker end the
interview on the videotape.
¶61 Parker’s stipulation to admit the videotaped interviews
precludes him from asserting on appeal that their admission was
error. See State v. Pandeli, 215 Ariz. 514, 528 ¶ 50, 161 P.3d
557, 571 (2007) (discussing invited error doctrine).
¶62 Parker argues, however, that the voluntariness hearing
preserved his objection to the admissibility of the videos and
that the State had agreed to redact the invocations. But the
voluntariness hearing addressed whether Parker’s statements in
the videos were voluntary and did not involve objections to the
admissibility of the videos on other grounds. On appeal, Parker
does not challenge the voluntariness finding and cannot now
press objections to the admissibility of the videos that were
not made at or before trial. Moreover, the record does not
reflect that the State agreed to redact the invocations or that
Parker ever requested that they be redacted. As such, any error
in admitting the videotaped interviews was not fundamental.
27
¶63 We therefore review the trial court’s denial of
Parker’s motion for mistrial based on the prosecutor’s allegedly
improper comments. We review that ruling for abuse of
discretion. State v. Nelson, 229 Ariz. 180, 189 ¶¶ 35-36, 273
P.3d 632, 641 (2012).
¶64 A prosecutor may not comment on a defendant’s
invocation of his Fifth Amendment rights. Doyle v. Ohio, 426
U.S. 610, 618-19 (1976); State v. Carrillo, 156 Ariz. 125, 128,
750 P.2d 883, 886 (1988). On appeal, Parker argues that three
of the prosecutor’s statements during closing argument commented
on his invocation. The first two statements are as follows:
(1) But most importantly, why didn’t the Defendant
answer Detective Branch’s questions about those
credit cards?
(2) Because the person that took those credit cards
murdered these people, and the only person that
did that was this defendant. And this defendant
when he had the chance to deny it, didn’t.
¶65 Neither statement improperly commented on Parker’s
invocations of his Fifth Amendment rights. Rather, when viewed
in context, these statements highlighted Parker’s evasive
answers to questions about use of the Smiths’ credit cards. As
evidence of evasiveness, the prosecutor noted that, when asked
about the credit cards, Parker stated, “I don’t have them now,”
instead of denying having taken or used them. In addition,
instead of denying taking or using the cards, Parker said “[i]f
28
I tell you that I took them, if I tell you that I used them
. . . [t]hen you’re going to think I did it.” The prosecutor’s
statements were permissible comments on Parker’s statements, not
comments on his invocation of his Fifth Amendment rights. See
Anderson v. Charles, 447 U.S. 404, 408 (1980) (stating that
“[a]s to the subject matter of his statements, the defendant has
not remained silent at all”); State v. Anaya, 170 Ariz. 436,
441-42, 825 P.2d 961, 966-67 (App. 1991) (admitting co-
defendant’s failure to claim self-defense post-arrest because
statements were made).
¶66 The prosecutor’s third statement is more troubling. In
the first interview played to the jury, Parker asked to end the
interview until he could speak with counsel. During closing
arguments, defense counsel asserted that investigators had not
thoroughly interviewed Parker. In rebuttal, the prosecutor
said:
And [defense counsel] . . . accuses Detective Branch
of not doing a good enough interview of the defendant.
Watch that interview again, that first one, and take
account of who stopped that interview. Who terminated
it?
The trial court sustained Parker’s objections and granted his
motion to strike.
¶67 While the prosecutor arguably was responding to
Parker’s claim that the interview was not adequate, the
statement could also be interpreted as asking the jury to draw a
29
negative inference from Parker’s invocation of his Fifth
Amendment rights, and thus was improper. See Doyle, 426 U.S. at
618-19; State v. Bowie, 119 Ariz. 336, 341, 580 P.2d 1190, 1195
(1978). When a defendant in custody initially speaks with the
police but then asks to remain silent, the prosecutor may
comment on the statements made, but not on the defendant’s
invocation of his rights. State v. Guerra, 161 Ariz. 289, 296,
778 P.2d 1185, 1192 (1989). We have held similar comments to be
improper and have reversed convictions for improper comments on
a defendant’s invocation of his Fifth Amendment rights.5 See
State v. Sorrell, 132 Ariz. 328, 329-30, 645 P.2d 1242, 1243-44
(1982).
¶68 Here, however, the comment does not constitute
reversible error. Parker stipulated to the admission of the
videotapes and they were played for the jury; thus, the jurors
already knew that Parker had invoked his right to counsel in the
interviews. Although we urge prosecutors to refrain from
venturing even close to commenting on a defendant’s exercise of
the significant rights protected by the Fifth Amendment, the
prosecutor here was not suggesting that Parker was guilty or
lying because he invoked his right to counsel. Cf. id. at 329,
5
Parker argues that we should review this issue under the
cumulative prosecutorial misconduct analysis from State v.
Hughes, 193 Ariz. 72, 79 ¶¶ 26-27, 969 P.2d 1184, 1191 (1998).
This standard is inapplicable, however, where, as here, the
prosecutor made only one improper statement.
30
645 P.2d at 1243 (reversing where prosecutor suggested defendant
was lying because he invoked his right to remain silent for an
hour before telling police his story). Rather, the prosecutor
was responding to defense counsel’s charge that the police did
not thoroughly interview Parker, suggesting that detectives
might have asked more questions had Parker not terminated the
interview. Moreover, the trial court sustained Parker’s
objection to the statement and granted his motion to strike. In
these circumstances, the trial judge did not abuse his
discretion by striking the comment and denying Parker’s mistrial
motion.
I. Motion for Judgment of Acquittal
¶69 Parker contends that he was entitled to a judgment of
acquittal because the State failed to present substantial
evidence to support a conviction. See Ariz. R. Crim. P. 20(a).
We review the trial court’s denial of a Rule 20 motion de novo.
Bible, 175 Ariz. at 595, 858 P.2d at 1198.
¶70 On a Rule 20 motion for a judgment of acquittal, “the
relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979); State v. West, 226 Ariz. 559, 562 ¶ 16, 250 P.3d 1188,
1191 (2011). Substantial evidence is “such proof that
31
reasonable persons could accept as adequate and sufficient to
support a conclusion of defendant’s guilt beyond a reasonable
doubt.” West, 226 Ariz. at 562 ¶ 16, 250 P.3d at 1191.
¶71 The following circumstantial evidence links Parker to
the crime: DNA from a napkin and a drop of blood found in the
Smiths’ house, the latter of which also contained DNA consistent
with Faye; Parker’s trip to Mexico the day after the murders;
the use of the Smiths’ credit cards near Parker’s home,
including at a bar that Parker had visited, and on one route to
Mexico at the time Parker was driving there; Tasha Uhl’s
statements placing Parker near the Smiths’ home around the time
of the murders; and Parker’s evasive answers to police questions
regarding whether he had taken or used the Smiths’ credit cards.
Parker also admitted owing money to his employer at the time of
the crimes, making financial difficulties a potential motive.
We have held similar circumstantial evidence sufficient to
support a jury’s finding of guilt beyond a reasonable doubt.
See State v. Atwood, 171 Ariz. 576, 599, 832 P.2d 593, 616
(1992), overruled on other grounds by State v. Nordstrom, 200
Ariz. 229, 241 ¶ 25, 25 P.3d 717, 729 (2001).
¶72 Although Parker offered an explanation for the presence
of his blood and DNA in the Smiths’ home, other evidence
undercut that explanation, particularly Wayne’s timesheets and
phone records showing that Faye called Wayne’s cell phone during
32
the time Parker was allegedly helping Wayne work at the Smiths’
house. The same is true regarding Parker’s flight; a reasonable
juror could have rejected Parker’s explanations. Viewed in the
light most favorable to upholding the jury’s verdicts, this
evidence is sufficient to support the guilty verdicts.
¶73 Parker argues that substantial doubt exists concerning
his guilt because evidence shows that Jason Randall might have
had a motive to kill the Smiths and might have been inside the
Smiths’ home around the time of their murders, and Randall
failed to respond to a subpoena. The jurors heard most of this
evidence, but rejected it. They heard that Randall absconded
despite having been served with a subpoena. And although the
trial court did not permit Casandra Manery to testify that
Randall might have told her he had gone inside the Smiths’
house, Manery was permitted to confirm that she had previously
said, “It was almost like [Randall] was going back to the house
to try and get something out.” The jury also heard that hairs
found in Wayne’s mouth did not match either Parker or the
Smiths. Finally, Parker testified at trial and offered his
alternative explanations for his flight, the presence of his
blood and DNA in the home, and Randall’s potential role in the
murders. The jury rejected Parker’s defense. See State v.
Clemons, 110 Ariz. 555, 556-57, 521 P.2d 987, 988-89 (1974)
(noting that it is the jury’s exclusive role to weigh the
33
credibility of testimony, including the defendant’s). In sum,
the State presented substantial evidence to support the jury’s
verdicts.
J. Motion for New Trial
¶74 Parker argues that his convictions are contrary to the
weight of the evidence and that the trial judge applied the
wrong standard in reviewing his motion for a new trial. See
Ariz. R. Crim. P. 24.1(c)(1). A motion for new trial should be
granted “only if the evidence was insufficient to support a
finding beyond a reasonable doubt that the defendant committed
the crime.” State v. Landrigan, 176 Ariz. 1, 4, 859 P.2d 111,
114 (1993). We review the trial court’s decision for abuse of
discretion. Id. As explained, supra ¶¶ 71-73, sufficient
evidence supported the verdicts.
¶75 Further, there is no indication that the trial judge
applied an incorrect standard. The trial court denied the
motion “[b]ased upon [its] review, and for the reasons stated in
the responses filed by the State.” Parker’s motion for a new
trial did not raise any new issues or cite new legal authority.
We cannot say that the trial judge abused his discretion in
denying the motion.
K. Motion to Vacate the Judgment
¶76 Parker argues that the trial judge abused his
discretion by denying Parker’s motion to vacate the judgment
34
because newly discovered evidence undermined the verdicts. See
Ariz. R. Crim. P. 24.2(a)(2). During jury deliberations, Jason
Randall reappeared and Parker deposed him on May 21, 2010. At
the deposition, Randall repeatedly invoked his privilege against
self incrimination and stated that, if called to testify at
trial, he would refuse. Randall provided a hair sample for
testing to compare it to hairs found in Wayne’s mouth and hand.
¶77 Based on these developments, Parker filed a motion to
vacate the judgment, arguing that newly discovered material
facts existed that would have changed the verdict. After
briefing, the trial court denied this motion.
¶78 We review a trial court’s denial of a motion to vacate
a judgment for abuse of discretion. State v. Orantez, 183 Ariz.
218, 221, 902 P.2d 824, 827 (1995). We afford trial judges
great discretion given their “special perspective of the
relationship between the evidence and the verdict which cannot
be recreated by a reviewing court from the printed record.”
Reeves v. Markle, 119 Ariz. 159, 163, 579 P.2d 1382, 1386
(1978). To prevail on a motion to vacate the judgment based on
newly discovered evidence, the
[d]efendant must show that (1) the newly discovered
evidence is material; (2) the evidence was discovered
after trial; (3) due diligence was exercised in
discovering the material facts; (4) the evidence is
not merely cumulative or impeaching, unless the
impeachment evidence substantially undermines
testimony that was of critical significance at trial;
35
and (5) . . . the new evidence, if introduced, would
probably change the verdict or sentence in a new
trial.
Orantez, 183 Ariz. at 221, 902 P.2d at 827.
¶79 Parker asserts that Randall’s hair sample and the
opportunity to put Randall on the stand are newly discovered
evidence. Even if such evidence was newly discovered, material,
impeaching, and not cumulative, it is unlikely that the evidence
would have changed the result in this case. The jury already
heard that Randall absconded despite having been subpoenaed and
that the hairs in Wayne’s mouth did not match Parker or the
Smiths. Further, Parker’s counsel thoroughly argued during
closing argument that Randall could have been inside the Smiths’
house and that his hair could match the hair found in Wayne’s
hand and mouth. Given that the hairs were later found not to
match Randall’s, Parker actually benefitted from not being able
to test Randall’s hair earlier.
¶80 The trial court did not abuse its discretion in denying
the motion to vacate the judgment.
L. Cumulative Effect of Evidentiary Errors
¶81 Parker acknowledges that we have rejected the
cumulative error doctrine, but urges us to adopt the doctrine
and find that the cumulative effect of the evidentiary errors
here constitutes reversible error. We decline to revisit our
longstanding precedent. See Hughes, 193 Ariz. at 78-79 ¶ 25, 969
36
P.2d at 1190-91 (explaining that we do not recognize the
cumulative error doctrine).
III. ABUSE OF DISCRETION REVIEW
¶82 We review Parker’s death sentence 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). The trier of fact did not abuse its discretion if
“there is any reasonable evidence in the record to sustain it.”
State v. Delahanty, 226 Ariz. 502, 508 ¶ 36, 250 P.3d 1131, 1137
(2010).
A. Proper Standard of Review and Constitutionality of
A.R.S. § 13-756(A)
¶83 Parker argues that we have incorrectly applied abuse of
discretion review to capital cases and that abuse of discretion
review as now conducted violates the Eighth and Fourteenth
Amendments. Parker acknowledges that we have rejected these
arguments before. State v. Cota, 229 Ariz. 136, 153 ¶¶ 91-92,
272 P.3d 1027, 1044 (2012); Nelson, 229 Ariz. at 191 ¶ 50, 273
P.3d at 643. He argues, however, that we should reconsider
those holdings, because they misapply Clemons v. Mississippi,
494 U.S. 738 (1990), which requires “meaningful” appellate
review of death sentences. But in Cota, we observed that
“[m]eaningful appellate review requires only that an appellate
court ‘consider whether the evidence is such that the sentencer
37
could have arrived at the death sentence that was imposed,’ not
whether the appellate court itself would have imposed a death
sentence.” 229 Ariz. at 153 ¶ 92, 272 P.3d at 1044 (quoting
Clemons, 494 U.S. at 749). We decline to reconsider this
conclusion.
B. Aggravating Circumstances
¶84 In the aggravation phase, the jury found three
aggravators for each murder: pecuniary gain, especial cruelty,
and multiple homicides. A.R.S. § 13-751(F)(5), (6), (8). On
appeal, Parker contests these findings.
¶85 The jury did not abuse its discretion in finding the
pecuniary gain aggravator, § 13-751(F)(5). To prove this
aggravator, the state must show that “the expectation of
pecuniary gain is a motive, cause, or impetus for the murder and
not merely a result of the murder.” State v. Hyde, 186 Ariz.
252, 280, 921 P.2d 655, 683 (1996). Here, the State introduced
evidence that Wayne’s wallet and Faye’s purse were missing after
the murders. Their credit and bank cards were used several
times in the following days, including once at a bar that Parker
had visited for a poker tournament and possibly again during the
week of the murders, and on a route to Mexico at the time Parker
was driving there. In addition, the State introduced evidence
that Parker had financial problems when the murders occurred.
The evidence of Parker’s financial troubles, the use of the
38
Smiths’ credit and bank cards, and the inferences that can be
drawn from that evidence support the jury’s finding of the
pecuniary gain aggravator. Cf. State v. Lynch, 225 Ariz. 27, 40
¶¶ 69-73, 234 P.3d 595, 608 (2010) (finding on independent
review that use of the victim’s bank cards after the murder,
along with other evidence, was sufficient to establish the
(F)(5) aggravator).
¶86 The jury also did not abuse its discretion in finding
the especial cruelty aggravator, § 13-751(F)(6). To prove this
aggravator, the state must establish “that a victim was
conscious and suffered physical pain or mental anguish before
death and that the defendant knew or should have known that the
victim would suffer.” State v. Morris, 215 Ariz. 324, 341 ¶ 79,
160 P.3d 203, 220 (2007).
¶87 In this case, there was evidence that both Wayne and
Faye were conscious during the attack and that they suffered.
Wayne had several stab wounds, and the location of the wounds
and the blood spatter indicate that he was stabbed before
receiving the blunt force injury that killed him. Further, the
blood spatter expert testified that Wayne likely tried to come
to Faye’s aid after he was initially attacked, suggesting that
Wayne remained conscious and suffered physical pain and mental
anguish. See State v. Prince, 226 Ariz. 516, 540 ¶¶ 99-101, 250
P.3d 1145, 1169 (2011) (finding especial cruelty supported by
39
evidence that victim saw the assailant attack her mother
immediately before the murder).
¶88 As for Faye, her ankles were bound with speaker wire
and she had ligature marks and bruises, caused by blunt force
trauma likely inflicted before her death, on her leg and foot.
She also suffered knife wounds to her left hand and face.
Although she would have remained conscious only a short while
after her fatal injury — a stab wound to her chest that cut her
aorta — even this small period of suffering can establish
especial cruelty. See id. at 540 ¶ 98 n.7, 250 P.3d at 1169 n.7
(listing cases in which a finding of especial cruelty was upheld
based on time periods of suffering ranging from eighteen seconds
to three minutes). Further, that Faye was bound supports a
finding that she was conscious, and so would have suffered
mental anguish. See Lynch, 225 Ariz. at 41 ¶ 79, 234 P.3d at
609 (mental anguish proved by evidence that victim was bound and
showed signs of struggling). Given this evidence, the jury did
not abuse its discretion in finding the (F)(6) aggravator
proven.
¶89 Finally, the jury did not abuse its discretion in
finding the multiple homicides aggravator, § 13-751(F)(8). To
prove this aggravator, the state must show that the murders were
“temporally, spatially, and motivationally related, taking place
during one continuous course of criminal conduct.” Dann II, 220
40
Ariz. at 364 ¶ 57, 207 P.3d at 617. Parker argues that the
evidence suggesting that Wayne came to Faye’s aid indicates
that, even if Parker was the initial assailant, he killed Wayne
in self-defense and, thus, did not have the same motivation for
Wayne’s killing as for Faye’s. The jury, however, could have
inferred that both homicides were committed during the same
course of conduct and with the same motive, whether pecuniary
gain or another motive. In sum, the jury did not abuse its
discretion by finding the (F)(8) aggravator proven.
C. Death Sentence
¶90 Finally, we find that the jury did not abuse its
discretion in imposing the death sentence. Parker presented
mitigating evidence that “he is a highly intelligent, nonviolent
young man who loves his children and family and these acts are
diametrically opposed to his character, intellect and
psychology.” This evidence included IQ scores of 129 and 135,
grades in the top five percent of his class, participation in
high school sports, and attendance at the University of Arizona
where he worked in the library and residence halls. Friends and
family testified to Parker’s good character. The mitigation
specialist found no evidence of a troubled childhood, and a
forensic neuropsychologist testified that he found “no
indication of any psychiatric disturbance,” mental illness,
brain damage, or antisocial personality disorder in Parker.
41
Even if we assume that Parker proved all of his mitigating
factors, the jury did not abuse its discretion in concluding
that leniency was not warranted.
IV. CONCLUSION
¶91 We affirm Parker’s convictions and sentences.6
__________________________________
Rebecca White Berch, Chief Justice
CONCURRING:
_____________________________________
Scott Bales, Vice Chief Justice
_____________________________________
A. John Pelander, Justice
_____________________________________
Robert M. Brutinel, Justice
_____________________________________
Samuel A. Thumma, Judge*
* Pursuant to Article 6, Section 3 of the Arizona
Constitution, the Honorable Samuel A. Thumma, Judge of the
Arizona Court of Appeals, Division One, was designated to sit in
this matter.
6
Parker lists twenty-seven constitutional claims that he
states this Court has previously rejected, but he seeks to
preserve for federal review. We do not address those here.
42