as: 188 Ariz. 220, 934 P.2d 784)
of Arizona, Appellee,
Owen MANN, Appellant.
Court of Arizona,
Eric Owen Mann was convicted of first degree murder and sentenced to death for
the killings of Richard Alberts and Ramon Bazurto during a drug deal.
Appeal to this court is automatic on capital counts and we have jurisdiction
pursuant to A.R.S. § 13-4031 and Ariz.R.Crim.P. 31.2(b). We affirm the
AND PROCEDURAL HISTORY
and his girlfriend, Karen Miller, rented a house in Tucson where they sold
cocaine, marijuana, and guns. Typically, **788 *224 Karen sold
"eight-balls" (one-eighth of an ounce packets) of cocaine in the
evening while Defendant worked on bigger drug deals.
late November 1989, Defendant told Karen of his plan to rip off Richard
Alberts, a friend also involved in the cocaine trade. Defendant set up a
deal to sell about a kilogram of cocaine for roughly $20,000. According
to Karen, Defendant knew he would have to "whack" (kill) Alberts
after taking the money and giving Alberts a shoebox filled with newspaper
instead of cocaine.
plan changed when Alberts showed up with another man, Ramon Bazurto.
Defendant, however, quickly made up his mind "to do it." The
men entered the house and followed Defendant back to the master bedroom.
Karen followed behind and stood in the doorway, between Alberts and Bazurto.
After trading the bag of money for the shoebox, Alberts lifted the top of the
box that contained only newspaper. Almost instantaneously, Defendant
shot Alberts and then Bazurto. Each was shot once, Alberts through the heart
and Bazurto through the lung, severing the aorta. Both bullets passed
through the bodies and traveled through the walls of the house.
died almost instantly but Bazurto did not. According to Karen, he feebly
attempted to reach for the gun he was carrying in his waistband. Defendant
placed his foot on Bazurto's hand to stop him and described to Karen what was
happening as the victim lost motor control and died. She testified it
took from three to five minutes for Bazurto to die.
got a friend, Carlos Alejandro, to help him dump the bodies near a rural road
in the vicinity of Fort Grant prison, near Safford. The next day,
Defendant and Karen did a thorough cleaning job to erase all traces of the
murder. All the walls and floors were scrubbed and patched, and the room
was repainted. Defendant gave Alberts' car to an acquaintance to whom he
owed money. He also dismantled his guns, destroyed the mechanisms with a
hammer, and scattered the pieces, as well as the recovered bullets, in a lake.
When questioned by police, Defendant told them Alberts and Bazurto had come to
the house but left after the drug deal failed.
more came of the case until January 1994 when Karen Miller ended her
relationship with Defendant, allegedly because of escalating domestic violence
and his threats to "do it again." After moving, she told the
police about the murder. Police tracked down Alejandro and the person to
whom the car had been given and were able to corroborate Karen's story.
Defendant then was arrested and charged with the murders of Alberts and
Bazurto. Karen Miller and Alejandro were never charged for their part in
the murders or cover-up.
trial, Defendant was found guilty of the murders, based primarily on the
testimony of Karen Miller and Carlos Alejandro. At sentencing, the trial
judge found three aggravating factors: pecuniary gain (§ 13-703(F)(2));
multiple murders (§ 13-703(F)(8)); and, in the case of Bazurto, cruelty
and depravity (§ 13-703(F)(6)). The judge found the statutory and non-statutory
mitigators were insufficient when weighed against the aggravators and
sentenced Defendant to death for both murders.
Defendant claims the trial judge committed fundamental error by admitting an
inculpatory statement without determining whether the waiver of Defendant's
Fifth Amendment rights was knowing, intelligent, and voluntary. The
stipulation read: "Defendant was familiar with the area where the
victim's [sic] bodies were found and had been in that area at the time the
bodies were left there." This stipulation was made to preclude the
prosecution from submitting evidence that Defendant was familiar with the area
because he had been previously incarcerated at Fort Grant.
judge told the jury, however, that it "is stipulated between the
prosecution and defense that the defendant, Eric Mann, was familiar with the
area along Arizona route 666 when the bodies of Richard Alberts and **789 *225
Ramon Bazurto Junior were found." Reporter's Transcript (R.T.),
Oct. 28, 1994, at 5 (emphasis added).
the stipulation was read, the prosecutor interjected that the stipulation
should have read "where [not when] the bodies ... were found," and
the judge reread it to the jury. After the lunch break the prosecutor
again told the judge a mistake had been made, stating the stipulation should
have read that Defendant had been in the area "prior to" not
"on" the date the bodies were left. The exchange was:
COURT: Well, do you want me to read it to them again?
It's your call.
It's your call. You want to leave it alone?
I'll leave it alone. I wasn't going to say in closing he wasn't there,
he wasn't familiar with the area.
In United States v. Miller, 588 F.2d 1256 (9th Cir.1979), the court held that
when a stipulation amounts to a guilty plea, Rule 11 procedures must be
followed. Id. at 1263; Fed.R.Crim.P. 11. But where
stipulations are not tantamount to a guilty plea, the trial court need only
assure that the stipulation was made voluntarily. Id. In State v. West,
this court stated a defendant may be bound by trial counsel's strategic
decisions to waive rights. Only when the circumstances are exceptional
must a defendant consent to the waiver. 176 Ariz. 432, 447, 862 P.2d
192, 207 (1993). Here, defense counsel clearly made a tactical decision
to stipulate and avoid revealing the prior incarceration. Furthermore,
he decided not to have the stipulation corrected, presumably to avoid
emphasizing it to the jury. The tactical decisions had merit and were
reasonable. In West, this court stated, "We do not believe a
stipulation to facts that the state could easily have proved amounts to an
exceptional circumstance." Id. That principle is appropriately
applied to the present case, in which Defendant claimed self-defense and did
not deny killing the victims and disposing of their bodies. We see no
Correction of witness testimony
Defendant claims there was reversible error because Karen Miller testified she
had not been granted immunity when she had and the prosecutor did not correct
her testimony. Defendant's counsel questioned Karen Miller, asking:
And is it your understanding that you're not going to be charged with any
crime in this case?
MILLER: I don't have any understanding on that at all. I don't
Are you hopeful that you will not be charged with any crime based on this
Yes, I am.
And you're hoping that your testimony here today will lead to that result;
isn't that right?
Yes, I am.
Oct. 26, 1994, at 115-16. Defendant argues that the prosecutor committed
misconduct by failing to bring out that the State had made a deal with Karen.
the prosecutor did not hide the deal or Karen's bias from the jurors.
During argument the prosecutor told the jurors, "[s]he's been granted or
told she will not be prosecuted on this case simply because without that
promise, we would not have the person who had pulled the trigger."
R.T., Oct. 25, 1994, at 143. This point was driven home as well by
Defendant in his opening statement and closing argument. Counsel stated
that these were "self-serving statements of two people, Karen Miller and
Carlos Alejandro, who both have gotten complete immunity." R.T.,
Nov. 1, 1994, at 30. We do not believe that Miller's arguably false
testimony "in reasonable likelihood [could] have affected the judgment of
the jury...." Napue v. Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173,
1178, 3 L.Ed.2d 1217 (1959) (where witness answered a question falsely, the
prosecutor knew of the falsehood and did not correct it); see also
Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104
(1972) (the lie must be material and affect the verdict).
*226 B. Sentencing issues and independent review of aggravators and mitigators
This court independently reviews death sentences for error, determines whether
the aggravating circumstances have been proved beyond a reasonable doubt,
considers any mitigating circumstances, and then weighs the aggravating and
mitigating circumstances in deciding whether the mitigating circumstances are
substantial and warrant leniency. State
v. Brewer, 170 Ariz. 486, 500, 826 P.2d 783, 797, cert. denied, 506 U.S. 872,
113 S.Ct. 206, 121 L.Ed.2d 147 (1992).
defendant is eligible for the death penalty when the state has proven beyond a
reasonable doubt the existence of at least one statutory aggravating
circumstance. A.R.S. § 13-703(E) (amended 1993). In this case,
the judge found three aggravating circumstances: pecuniary gain (§ 13-703(F)(5)),
cruelty in the murder of Ramon Bazurto (§ 13-703(F)(6)), and multiple
homicides (§ 13-703(F)(8)). Defendant contests the first two findings.
Heinous, cruel, or depraved
A.R.S. § 13-703(F)(6) is disjunctive, and a finding of either cruelty or
heinous/depraved conduct is sufficient to find this aggravating factor.
State v. Roscoe, 184 Ariz. 484, 500, 910 P.2d 635, 651 (1996). The judge
found the (F)(6) factor applicable to the murder of Ramon Bazurto, and we
believe the circumstances support a finding of cruelty.
To show a murder was especially cruel, the state must prove beyond a
reasonable doubt that the victim consciously suffered physical or emotional
pain. State v. Bible, 175 Ariz. 549, 604, 858 P.2d 1152, 1207 (1993),
cert. denied, 511 U.S. 1046, 114 S.Ct. 1578, 128 L.Ed.2d 221 (1994).
Defendant argues that the medical examiner testified that Bazurto probably was
conscious only for ten to twenty seconds and during that time may have been in
a state of shock. But Karen Miller testified that Bazurto was alive for
three to five minutes. The judge found Karen Miller's testimony more
persuasive. Conflicts in the evidence are for the trial judge to
resolve. State v. Milke, 177 Ariz. 118, 128, 865 P.2d 779, 789 (1993),
cert. denied, 512 U.S. 1227, 114 S.Ct. 2726, 129 L.Ed.2d 849 (1994). The
judge explained he believed Karen's compelling testimony and discounted the
pathologist's testimony because the medical examiner was uncertain whether
Bazurto would have suffered.
Karen's testimony and the judge's findings, the evidence was sufficient to
find the murder was cruel because Bazurto was alive and conscious for an
appreciable period of time. See State v. Herrera, 176 Ariz. 21, 34, 859
P.2d 131, 144, cert. denied, 510 U.S. 951, 114 S.Ct. 398, 126 L.Ed.2d 346
(1993) (a period between eighteen seconds and several minutes was sufficient).
Moreover, Defendant did not contend Karen's observations that Bazurto was
conscious and attempted to defend himself were scientifically or medically
impossible, nor did Defendant provide any evidence to that effect.
The application of (F)(6) is not unconstitutionally vague
Defendant argues the sole definition of the conduct required to satisfy the
(F)(6) factor was stated in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047,
111 L.Ed.2d 511 (1990). Because the judge did not base his findings and
special verdict specifically on the language of Walton, Defendant argues the
application of the (F)(6) factor was unconstitutionally vague. We
of cruelty, heinousness and depravity as aggravating factors warranting the
death penalty are usually based on the definitions used in State v. Gretzler
(the Gretzler factors). 135 Ariz. 42, 659 P.2d 1, cert. denied, 461 U.S.
971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). Defendant posits that the Ninth
Circuit held the Gretzler factors were too vague in Adamson v. Ricketts, 865
F.2d 1011 (9th Cir.1988). Furthermore, Defendant argues the Gretzler
definitions were not completely approved when the Supreme Court considered the
application of Arizona's aggravating factors in Walton.
was not specifically overruled in Walton, although in denying certiorari on
this issue in a later case, three justices would have remanded Adamson's case
to the Ninth **791 *227 Circuit to reconsider in light of Walton.
Lewis v. Adamson, 497 U.S. 1031, 110 S.Ct. 3287, 111 L.Ed.2d 795 (1990).
In Walton, the Supreme Court examined Arizona's aggravating factors to
determine if this court's definitions provided sufficient guidance to the
sentencer. The Court held that our definition of the (F)(6) factor
passed constitutional muster Walton, 497 U.S. at 654, 110 S.Ct. at 3057.
Defendant argues the specific definitions used by the Court in Walton, and not
the articulation in Gretzler, are the only definitions that are
in Lewis v. Jeffers, the United States Supreme Court stated:
therefore squarely forecloses any argument that Arizona's subsection (F)(6)
aggravating circumstance, as [previously] construed by the Arizona Supreme
Court [in Gretzler ], fails to channel the sentencer's discretion by 'clear
and objective standards' that provide 'specific and detailed guidance,' and
that 'make rationally reviewable the process for imposing a sentence of
U.S. 764, 777-78, 110 S.Ct. 3092, 3100-01, 111 L.Ed.2d 606 (1990)
(citations omitted); see also State v. Mata, 185 Ariz. 319, 339, 916
P.2d 1035, 1055 (1996) (Zlaket, V.C.J., dissenting).
The murder of Ramon Bazurto was for pecuniary gain
Defendant argues the trial judge erred in finding pecuniary gain under
§ 13-703(F)(5) because Bazurto appeared unexpectedly and Defendant had not
previously contemplated killing him. Because the murder of Bazurto was
not part of the rip-off plan, Defendant argues the judge erroneously found the
pecuniary gain aggravating factor.
This circumstance exists when pecuniary gain is a motive or cause for the
murder. State v. Spears, 184 Ariz. 277, 292, 908 P.2d 1062, 1077 (1996);
State v. Murray, 184 Ariz. 9, 36, 906 P.2d 542, 569 (1995); State v.
Runningeagle, 176 Ariz. 59, 65, 859 P.2d 169, 175, cert. denied, 510 U.S.
1015, 114 S.Ct. 609, 126 L.Ed.2d 574 (1993). Murdering a person to
facilitate a robbery and escape constitutes murdering for pecuniary gain.
State v. Gonzales, 181 Ariz. 502, 513, 892 P.2d 838, 849 (1995), cert. denied,
--- U.S. ----, 116 S.Ct. 720, 133 L.Ed.2d 673 (1996); Runningeagle, 176 Ariz.
at 65, 859 P.2d at 175; State v. Williams, 166 Ariz. 132, 140, 800 P.2d
1240, 1248 (1987). Defendant planned to and did murder Alberts to steal
$20,000. R.T., Oct. 26, 1994, at 22, 23-24. When Bazurto
unexpectedly showed up at the house, Defendant made a choice after a period of
thought and said, "Well, I got to do it," apparently meaning that to
go through with the plan he would also have to murder Bazurto. R.T.,
Oct. 26, 1994, at 38. Even if killing Bazurto was not part of the
original plan, stealing the money was the "motive, cause, or
impetus," for the murders of both Alberts and Bazurto. The
pecuniary gain aggravator therefore applies in this case. See Spears,
184 Ariz. at 292, 908 P.2d at 1077.
Consideration of (F)(6) and (F)(8) factors is not double punishment
In the weighing process the trial court considered both multiple homicide,
A.R.S. § 13-703(F)(8), and that the murders had been committed in an
especially heinous, cruel, or depraved manner, § 13-703(F)(6).
Defendant argues that these
constitute elements of the offense. In formulating the sentencing
statute for first degree murder, the legislature must have well understood
that the loss of human life was involved. Therefore, the trial court
should not have considered [both] the manner of death or number of deaths as
factors for aggravating the defendant's sentence.
reject this argument. Because these circumstances--cruelty and multiple
homicide--are not elements of first-degree murder (a crime that can be
committed in a number of different ways), neither the United States
Constitution nor A.R.S. § 13-116 is violated. No double punishment
problem exists. See Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546,
98 L.Ed.2d 568 (1988); State v. Lara, 171 Ariz. 282, 285, 830 P.2d 803,
*228 2. Victim impact evidence
The United States Supreme Court has held that a "State may legitimately
conclude that evidence about the victim and about the impact of the murder on
the victim's family is relevant ... as to whether or not the death penalty
should be imposed." Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct.
2597, 2609, 115 L.Ed.2d 720 (1991) (overruling in part Booth v. Maryland, 482
U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987)). Arizona has made that
choice and thus, under the Arizona Constitution, and to the extent allowed by
Payne and our cases, victim impact evidence should be considered by the court
to rebut the defendant's mitigation evidence. Ariz. Const. art. II, §
2.1(A); State v. Bolton, 182 Ariz. 290, 315, 896 P.2d 830, 855 (1995);
see also State ex rel. Romley v. Superior Court, 172 Ariz. 232, 836 P.2d 445
(App.1992) (Ariz. Const. art. II, § 2.1 limited by rights granted by federal
Consideration of recommendations of victims' families
Defendant asserts that the trial judge was barraged with letters from the
victims' immediate family members that explicitly requested the death penalty
be imposed. Furthermore, he claims, the judge solicited, considered, and
gave weight to the survivors' recommendations in determining the sentence.
have held that such recommendation do not tend to establish an aggravating
circumstance and are therefore irrelevant for that purpose. Spears, 184
Ariz. at 292, 908 P.2d at 1077; Roscoe, 184 Ariz. at 502, 910 P.2d at
653; State v. Gulbrandson, 184 Ariz. 46, 66, 906 P.2d 579, 599 (1995).
The record in the present case, however, does not indicate that the judge gave
weight to family opinions. In fact, he stated that the finding of
aggravating circumstances was based solely on the evidence adduced at trial.
In commenting about the families' opinions, furthermore, the judge merely
stated that he understood their feelings. We see nothing in this record
or the circumstances surrounding this trial from which to assume that the
judge was improperly influenced by family recommendations.
similar circumstances, we have stated:
acknowledge that family testimony concerning the appropriate sentence may
violate the Constitution if presented to a capital sentencing jury....
We also acknowledge that victim impact testimony is not relevant to any of our
statutory aggravating factors.
nonetheless find no reversible error. Defendant ... was sentenced by a
judge, and the judge expressly stated on the record that he would consider the
parents' statements only in connection with the non-capital counts.
Absent evidence to the contrary, we have assumed that the trial judge in a
capital case is capable of focusing on the relevant sentencing factor and
setting aside the irrelevant, inflammatory and emotional factors....
Given this assumption and the trial judge's express avowal, we find no error.
182 Ariz. at 315-16, 896 P.2d at 855-56 (citations omitted);
see also Roscoe, 184 Ariz. at 502, 910 P.2d at 653.
Improper ex parte communications
Defendant claims the manner in which victim impact evidence was directed to
the trial judge was an improper ex parte communication that created error in
the sentencing procedure. Both the victims' immediate and extended
family and friends sent letters directly to the judge. We do not find
error simply because letters were sent to the judge by persons not
specifically defined in the Arizona Constitution as victims with the right to
be heard at sentencing. See Ariz. Const. art. II, § 2.1 (defining
"victim"). We have no way of preventing members of the
community from writing judges. Approximately thirty-five letters were sent to
the judge. In accordance with normal procedure, he gave them to the
clerk's office for filing. Copies of the letters were also attached to
the presentence report, a copy of which was given to Defendant. See
As previously noted, we presume the trial judge will ignore irrelevant
information. This is particularly true when the judge stated*229 **793
at sentencing he found the aggravating factors "solely on the evidence
adduced at trial," and when the record clearly establishes beyond a
reasonable doubt the three aggravators found by the judge.
points out that the judge made personal remarks about the impact evidence, but
in context the remarks were merely expressions of empathy, not evidence of
prejudice. Furthermore, the judge's comments were meant to clarify the
statement by the victim's mother's, which could be interpreted as requesting
life imprisonment rather than the death penalty. Sentencing took place
before our opinion in State v. Williams, 183 Ariz. 368, 904 P.2d 437 (1995),
when the judge might have believed that a request for leniency was relevant.
Insufficient materials for appellate review
Defendant claims the sentencing materials were not complete because they were
not paginated or indexed, there was no certification as to their completeness,
and the record of the prior presentence report was not included, thus
violating the stringent constitutional requirements that attach to death
penalty proceedings. He asserts that the absence of an adequate record
requires remand for a new sentencing hearing. Dobbs v. Zant, 506 U.S.
357, 113 S.Ct. 835, 122 L.Ed.2d 103 (1993); Wilson v. Allgood, 391 F.2d
285 (5th Cir.1968); State v. Schackart, 175 Ariz. 494, 858 P.2d 639
(1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1578, 128 L.Ed.2d 220 (1994).
We find the record is sufficiently complete for this court to review on
appeal. See Schackart, 175 Ariz. at 499, 858 P.2d at 644. The
court does not require a perfect record, and when materials have been omitted,
the defendant may move to have the record on appeal expanded. In the
present case, remanding for resentencing is no remedy for the problem because
the alleged error did not occur in the trial court.
Use of psychological evaluation
Statements were obtained during an in-custody, court-ordered psychiatric
evaluation that Defendant claims was not accompanied by a full waiver of his
Fifth Amendment rights. See Estelle v. Smith, 451 U.S. 454, 101 S.Ct.
1866, 68 L.Ed.2d 359 (1981). However, Defendant is precluded from
objecting to admission of the psychological evaluation at sentencing because
he failed to object at the time the evaluations were admitted or conducted.
State v. Tison, 129 Ariz. 526, 535, 633 P.2d 335, 344 (1981), cert. denied,
459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982); State v. Anaya, 170
Ariz. 436, 443, 825 P.2d 961, 968 (App.1991).
Furthermore, the facts of Estelle vary greatly from those before us.
Here, Defendant's attorney requested the post-trial evaluation for sentencing
purposes, Defendant told the psychologist he could not talk about the murders,
and Defendant used significant portions of the interview for his mitigation
argument. Therefore, Defendant opened the door to use of the full
report. See Ariz.R.Evid. 106; Buchanan v. Kentucky, 483 U.S. 402,
422- 23, 107 S.Ct. 2906, 2917-18, 97 L.Ed.2d 336 (1987).
Hearing on motion for reconsideration
sentencing, the judge heard argument on motions for clarification of sentence
and reconsideration of the (F)(6) finding. Defendant was not present at
the argument. The judge denied the motion for reconsideration and, in
response to issues raised in the motion, commented on the (F)(6) factor and
imposition of the death penalty. Defendant now claims there was no
authority to conduct the post-sentencing proceeding, State v. Pike, 133 Ariz.
178, 650 P.2d 480 (App.1982). In addition, he contends his absence
violated his rights under the Sixth and Fourteenth Amendments to the United
States Constitution and article II, § 24 of the Arizona Constitution to be
present at all stages of the proceedings. Diaz v. United States, 223
U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912); Rice v. Wood, 44 F.3d 1396
(9th Cir.1995), modified, 77 F.3d 1138 (1996); Hays v. Arave, 977 F.2d
475 (9th Cir.1992) (not harmless error); State v. Amaya-Ruiz, 166 Ariz.
152, 175, 800 P.2d 1260, 1283 (1990).
 *230 Having made the motion for reconsideration, Defendant cannot
complain that the judge erred by hearing that motion. See State v. Diaz,
168 Ariz. 363, 365, 813 P.2d 728, 730 (1991). Moreover, courts have the
inherent authority to clarify or modify their own judgments and orders.
Skinner v. Superior Court, 106 Ariz. 287, 288, 475 P.2d 271, 272 (1970);
State v. Freeman, 174 Ariz. 303, 305, 848 P.2d 882, 884 (App.1993).
Because the judge made no additional findings but merely explained the reasons
for a few of his previous findings, the hearing was not part of the sentencing
and was not a critical stage of the proceedings in Defendant's case.
Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991),
and Hays held a defendant's absence from the sentencing hearing was structural
error because the defendant could not communicate with the attorney about
testimony given there. Such errors are not harmless because one cannot
know what a defendant might have said in that situation. The Fulminante
and Hays rationales do not apply here because the hearing was not an
evidentiary type proceeding where Defendant could respond to witnesses. Nor
was it a hearing to determine or impose sentence. The purpose was to
hear counsel's argument for clarification of the judge's reasoning on a
sentence already imposed. If there was error, it was not structural and
was obviously harmless.
Disparity in sentencing of accomplices
Karen Miller was an active participant in the drug rip-off scheme and murders.
Reporting the crime four years after it occurred, she was granted immunity and
never charged with any offense in connection with the case. Disparity in the
sentences given a defendant and an accomplice can be a mitigating factor in
deciding whether a death sentence is appropriate. See State v. Marlow,
163 Ariz. 65, 786 P.2d 395 (1989). When it is considered, disparity is
mitigating only when it is unexplained. State v. Stokley, 182 Ariz. 505,
523, 898 P.2d 454, 472 (1995); State v. Schurz, 176 Ariz. 46, 57, 859
P.2d 156, 167 (1993). The disparity here is primarily explained by the
difference in culpability--Defendant was the instigator of the crime and the
killer--and also because the state granted Miller and Alejandro immunity from
prosecution to obtain testimony necessary to any prosecution for the killings.
State v. Apelt, 176 Ariz. 349, 368, 861 P.2d 634, 653 (1993), cert. denied,
513 U.S. 834, 115 S.Ct. 113, 130 L.Ed.2d 59 (1994).
Rejection of mitigation for remorse
At sentencing the trial judge referred to a fatal traffic accident in which
Defendant was involved and said that Defendant indicated no remorse. The
judge's statement concerning the car accident indicates the he found that
incident probative of Defendant's character and in rebuttal to mitigation
evidence. Defendant invited the judge to consider the accident by
mentioning it in the autobiography he prepared to show mitigation.
Defendant cannot complain about the judge considering the evidence that he
Non-violent history, cooperation with authorities
Defendant claims his conviction for possession of a weapon by a convicted
felon and an arrest for aggravated assault were insufficient to rebut the
mitigating factor of a non-violent history. Furthermore, he argues, the
judge did not weigh the fact that Defendant did not flee, thus showing
cooperation with authorities.
actions belie his claim of non-violent criminal history. Considering the
turn Defendant's life took with major participation in drug dealing, his
allegedly peaceable life carried little weight. Moreover, considering
that Defendant obstructed the criminal investigation from the time of the
crime in 1989 to the time of his arrest four years later, Defendant's claim of
cooperation approaches frivolity.
Review of non-statutory mitigators
Defendant asserted several non-statutory mitigators. These include:
*231 1. His relationship with his children and the effect on them if he were
executed. He says he loves them and has always attempted to be a good
father. His eldest daughter testified at the sentencing as to his good
character as a parent, and his youngest sent a letter to the judge about their
The possibility of consecutive life sentences rather than the death penalty.
Defendant submitted evidence that his father was an alcoholic who beat his
mother and half-brother, although he never abused Defendant. Also, he
says, his father was well-connected with "mafioso" types in Tucson
and from an early age arranged a type of apprenticeship in thuggery for
Defendant. This influence directly contributed to Defendant's behavior
because he lacked "healthy socialization experiences." Psychological
Evaluation, at 9.
Defendant states that after the murders he changed his life-style, quit using
drugs and alcohol, held a steady job, and was repairing his relationship with
his oldest daughter.
The trial judge found these mitigators insufficient to call for leniency when
weighed against the three aggravating factors. The possibility of a life
sentence is not a mitigating factor but only a sentencing option. Murray, 184
Ariz. at 39, 906 P.2d at 572. An abusive family background is usually
given significant weight as a mitigating factor only when the abuse affected
the defendant's behavior at the time of the crime. Id. at 40, 906 P.2d
at 573; West, 176 Ariz. at 451-52, 862 P.2d at 211-12; State v.
Wallace, 160 Ariz. 424, 427, 773 P.2d 983, 986 (1989), cert. denied, 494 U.S.
1047, 110 S.Ct. 1513, 108 L.Ed.2d 649 (1990). Defendant did not show any
connection. On independent review, we do not believe Defendant
established mitigation of sufficient weight to call for leniency.
We find no prejudicial error in the trial or sentencing rulings. We have
not conducted a fundamental error review, nor will we in future cases. This
decision rests in great part on the repeal of A.R.S. § 13-4035 (which
required review for fundamental error), but also on the realization that
fundamental error review has outlived its necessity. We are aware the
repeal of § 13-4035 does not preclude us from engaging in such a review where
necessary to serve the ends of justice. Ariz. Const. art. VI, § 5(5).
As well, we do not consider here waiver analysis pertaining to arguments
raised for the first time on appeal.
believe, however, fundamental error review is no longer necessary under modern
circumstances. The practice arose in the days of the territorial
government, when most defendants did not have a lawyer, nor were lawyers
required or always appointed by the courts. See Ariz.Pen.Code 1901, §
1059; see also Ariz.Pen.Code 1901, §§ 1024 and 1025. Thus, appeals and
such post-conviction relief as was available were options out of reach for
most defendants. When a case was appealed, therefore, fundamental error
review served a vital role in protecting the defendant's constitutional
rights. Today, almost all of our counties have a public defender. In
addition, we now have a panoply of mandatory protections--appointment of
counsel for trial and appeal, readily available appeals, Anders briefs, post-conviction
relief procedures, and direct appeals and post-conviction review in death
penalty cases. All of this is followed by the availability of some
federal habeas review. We therefore believe that fundamental error
review is no longer necessary.
affirm Defendant's convictions and sentences.
C.J., JONES, V.C.J., and MOELLER, J., concur.
join the court in all but its fundamental error review dicta contained in its
conclusion, ante, at 231, 934 P.2d at 795. The court says that it has
not conducted a fundamental error review nor will it in future cases. We
so held a year ago in State v. Smith, 184 Ariz. 456, 460, 910 P.2d 1, 5
(1996), where we said:
procedural effect of that repeal [A.R.S. § 13-4035] applies retroactively to
cases **796 *232 not yet final. Thus, Smith is not entitled to
fundamental error review.
reliance upon that holding, we have not performed fundamental error reviews,
unless they were undertaken before the effective date of the statute, in our
capital cases here on direct appellate review. See, e.g., State v.
Rogovich, 188 Ariz. 38, 932 P.2d 794, 800-01 (1997); State v. Thornton,
187 Ariz. 325, 335, 929 P.2d 676, 686 (1996); State v. Miller, 186 Ariz.
314, 328, 921 P.2d 1151, 1165 (1996).
issue was thus decided in Smith and implemented in our cases. I do not
see the need to revisit it now. It is not an issue raised by the
defendant in this case.
if it were otherwise thought important to repeat ourselves and say that we are
not going to perform sua sponte [FN1] fundamental error review on direct
appeal, then we ought to plainly acknowledge that the reason we are not doing
it is that, as we held in Smith, the statute requiring it has been repealed.
But today the court says that it is not going to perform sua sponte
fundamental error review not only because of the repeal of the statute
"but also on the realization that fundamental error review has outlived
its necessity." Ante, at 231, 934 P.2d at 795. The court goes
so far as to say that "the repeal of § 13-4035 does not preclude us from
engaging in such a review where necessary to serve the ends of justice.
Ariz. Const. art. VI, § 5(5)." Id. But article VI, § 5(5)
of the Arizona Constitution is the source of our rule making power. [FN2]
It provides no authority for the proposition that we may engage in sua sponte
fundamental error review in the absence of a statute or rule requiring it.
I use the term sua sponte fundamental error review to distinguish it from two
separate but related doctrines. Sua sponte fundamental error review was
imposed solely by A.R.S. § 13-4035 and required us to read every item in the
record with an eye towards looking for fundamental error. The statute
having been repealed, we no longer do this. This is not to be confused
with two other doctrines unaffected by the repeal of the statute. First,
in criminal cases, we continue to review claims of error actually made on
appeal but which were unpreserved at the trial level by a fundamental error
standard. Second, if in the process of examining issues presented by way
of appeal we stumble across fundamental error, then we
have the discretion to address it. Having just denied review in State v.
Taylor, 187 Ariz. 567, 571-72, 931 P.2d 1077, 1081-82 (App.1996), and State v.
Curry, 187 Ariz. 623, 931 P.2d 1133, 1136-37 (App.1996), this court is
unanimous on that point. Our only disagreement is the "cover to
cover" sua sponte review which finds its beginning and end in A.R.S. §
The Supreme Court shall have the "[p]ower to make rules relative to all
procedural matters in any court." Ariz. Const. art. VI, § 5(5).
no longer conduct sua sponte fundamental error review because the law no
longer requires it, not because we choose to discontinue it. This is
properly a legislative decision to make.
END OF DOCUMENT