STATE of Arizona, Appellee, v. Edward James ROSE, Appellant.
No. CR-10-0362-AP.
Supreme Court of Arizona.
April 5, 2013.
297 P.3d 906
Thomas A. Gorman Attorney at Law by Thomas A. Gorman, Sedona, Attorney for Edward James Rose.
OPINION
PELANDER, Justice.
¶ 1 After fatally shooting a police officer, Edward James Rose pleaded guilty to two counts of first degree murder for that killing and to eight other felony counts. He was sentenced to death on the murder counts and to prison terms on the other convictions. We have jurisdiction over his automatic appeal under
I. FACTUAL AND PROCEDURAL BACKGROUND
¶ 2 On July 25, 2007, Rose stole a truck that contained a company‘s checkbook. Over the next three days, Rose conspired with others to forge and cash checks from the checkbook.
¶ 3 On July 27, Rose and his girlfriend smoked methamphetamine and drank beer most of the day. That night, they went out to cash forged checks. Rose had said earlier that day he would shoot anyone who tried to
¶ 4 Shortly thereafter, Officer George Cortez, Jr. of the Phoenix Police Department arrived. The officer entered the store, approached Rose, and began to handcuff him. After his left hand was cuffed, Rose pulled out his gun and shot the officer twice, killing him. Rose ran from the store with the handcuffs dangling from his wrist. Surveillance cameras captured the shooting.
¶ 5 Early the next morning, officers went to a house where they suspected Rose was hiding. They eventually entered the house, discovered Rose hiding in a closet, and arrested him.
¶ 6 The State charged Rose with first degree murder of a law enforcement officer, first degree felony murder, and other noncapital felonies. On the day Rose‘s trial was to begin, he pleaded guilty to all charges. After finding four aggravating factors in the aggravation phase, and receiving evidence in the penalty phase, the jury sentenced Rose to death.
II. ISSUES ON APPEAL
A. Arraignment and absence from jury prescreening
¶ 7 Rose argues that he was denied an arraignment and the ability to participate in the first three days of jury selection in violation of the Fifth, Sixth, and Fourteenth Amendments. Because Rose did not object below, we review for fundamental error. State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005).
¶ 8 Contrary to Rose‘s first contention, the record indicates he was arraigned on August 17, 2007, when he entered a plea of “not guilty to all charges.” A week earlier, he and his counsel received notice of the indictment, including the two first degree murder counts. He did not object below to any alleged flaws in the arraignment process, and he has not established any error in that process.
¶ 9 Rose‘s argument regarding his absence from the initial portions of jury selection is also meritless. A defendant is entitled to be present at all phases of a trial, including jury selection.
¶ 10 The record reflects that Rose, through counsel, waived his presence for the first two days of jury selection, which involved the trial judge “time screening” potential jurors on the anticipated length of trial and their availability. Rose was under a medical quarantine for at least the first day, did not object to his absence on either day, and presents no exceptional circumstances that would render ineffective his attorney‘s waiver. On the third day, when the parties merely stipulated to which jurors did not need to return for additional questioning, the court granted defense counsel time to contact Rose before proceeding. Rose specifically told his attorney that he waived his presence. Rose was present on the next trial day and throughout the rest of jury selection and trial. Even if we assume that Rose, absent his waiver, “was entitled to attend the [juror] prescreening process,” State v. Morris, 215 Ariz. 324, 335 ¶ 45, 160 P.3d 203, 214 (2007), no fundamental error arose regarding Rose‘s absence from three days of that process.
B. Exclusion of non-English speaking jurors
¶ 11 Rose argues that the exclusion of non-English speaking jurors violated his Sixth and Fourteenth Amendment rights and that
C. Voluntariness of guilty plea
¶ 12 Rose argues on multiple grounds that his guilty plea was involuntary and not made knowingly and intelligently. This Court reviews a trial court‘s acceptance of a guilty plea for an abuse of discretion. State v. Djerf, 191 Ariz. 583, 594 ¶ 35, 959 P.2d 1274, 1285 (1998). We “must determine if reasonable evidence supports the finding that the defendant was competent to enter the plea” and will consider the facts “in a light most favorable to sustaining the trial court‘s finding.” Id. (internal quotation marks omitted).
¶ 13 When accepting a guilty plea, the trial judge must ensure that the plea is entered voluntarily, intelligently, and knowingly. Id. To ensure this,
(1) the nature of the charges, (2) the nature and range of possible sentences, including any special conditions, (3) the constitutional rights waived by pleading guilty, (4) the right to plead not guilty, and (5) that the right to appeal is also waived if the defendant is not sentenced to death.
Djerf, 191 Ariz. at 594 ¶ 36, 959 P.2d at 1285; see also
¶ 14 Rose first argues his plea was not voluntary because he was not arraigned and never received actual notice of the capital offenses to which he pleaded guilty. But as discussed above, supra ¶ 8, the record shows that, after receiving notice of the indictment, Rose was arraigned and pleaded “not guilty to all charges.”
¶ 15 At the subsequent change-of-plea proceeding, Rose acknowledged he had discussed with his counsel “the pros and cons” of pleading guilty and that it was his “free choice to plead guilty to these charges.” The trial court expressly told Rose he had “several charges pending” against him, “with the most serious charges” being the two “first degree murder” counts, for which he could face “a death penalty.” The court later repeated the first degree murder charges before asking Rose what his plea on each count was, to which he responded “[g]uilty.”
¶ 16 These facts distinguish this case from Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), on which Rose relies. There, the defendant pleaded guilty to second degree murder without any “indication that the nature of the offense had ever been discussed with [him].” Id. at 642-43, 96 S.Ct. 2253. No one informed the defendant that intent, an element that he explicitly denied, was required for the charged offense. Id. at 643, 96 S.Ct. 2253.
¶ 17 Here, in contrast, Rose‘s attorney avowed, and Rose acknowledged, that she had discussed the charges and the consequences of pleading guilty with Rose, who did not dispute the factual basis of his plea or whether the required mens rea was sufficiently established. The trial court had no obligation to advise Rose of each specific element of his crimes “[a]bsent the unique circumstances of Henderson v. Morgan.” State v. Devine, 114 Ariz. 574, 575, 562 P.2d 1072, 1073 (1977); cf. State v. Ovante, 231 Ariz. 180, 185 ¶ 17, 291 P.3d 974, 979 (2013) (“The trial court was not required to explain the distinction between first and second degree murder and was free to accept the guilty plea if it was satisfied that the record established premeditation.“).
¶ 18 Second, Rose argues the trial court failed to review a written plea agreement
¶ 19 Third, without citing any pertinent authority, Rose argues that his plea was not voluntary because the trial court did not secure a waiver of his guilty except insane (“GEI“) defense. Such a waiver, however, was not required. In accepting a guilty plea, a trial court need not “call to the attention of the accused every defense which might conceivably be suggested by the record.” State v. Hickey, 110 Ariz. 527, 529, 521 P.2d 614, 616 (1974). Rose similarly argues that the court failed to inquire into his sanity at the time of the shooting. Insanity, however, is an affirmative defense that a defendant must prove by clear and convincing evidence.
¶ 20 Fourth, Rose argues that the plea colloquy did not include any statement about his state of mind at the time of the shooting. To commit first degree murder of a police officer, one must intentionally or knowingly kill a law enforcement officer who is working in the line of duty.
[O]n or about July 27th, 2007, my client, Edward James Rose, entered the Southwest Check Cashing Store on 83rd Avenue and about Encanto. He entered that particular facility ... for the purpose of cashing a forged check....
When he entered that facility he had a gun on his person. While in the check cashing store Police Officer George Cortez, Jr. arrived, and in the line of duty, and he was in the line of duty, it was at that time that my client, using the gun that he had on his person, turned, shot and killed Officer George Cortez, Jr.
¶ 21
¶ 22 The factual basis Rose presented at the change of plea proceeding shows that Officer Cortez was on duty at the time of the murder and that Rose intentionally or knowingly shot and killed him. Rose argues, however, that earlier in the case he had maintained to various mental health experts that he did not know Officer Cortez was a police officer when he shot him, but rather believed he was a security guard. But Rose made inconsistent statements, and aggravation phase testimony established that Officer Cortez was wearing his police uniform with badge and was handcuffing Rose when Rose shot him.
¶ 23 Additionally, the trial court viewed the store‘s surveillance video footage that was admitted into evidence in the aggravation phase, and it showed Rose looking over his shoulder as Officer Cortez entered the store. Thus, if the factual basis at the change of plea proceeding did not adequately establish Rose‘s mental state at the time he shot Officer Cortez, other evidence in the record sufficiently shows that Rose knew that Officer Cortez was a police officer. Moreover, even if we assume that the factual basis was inadequate for the first degree murder charge arising from Rose‘s killing of an on-duty police officer, Rose does not challenge the factual basis for his plea of guilty to the felony murder charge. Cf. State v. Rios, 217 Ariz. 249, 251 ¶ 8, 172 P.3d 844, 846 (App.2007) (“The only intent required for felony murder is the intent required to commit the underlying felony.” (citing
¶ 25 Christensen is inapplicable here. That case involved a written jury trial waiver pursuant to Federal Rule of Criminal Procedure 23(a) and an abbreviated colloquy. This case, in contrast, involves an in-court guilty plea accepted by the judge after a colloquy that satisfied Rule 17.2. Additionally, although the trial judge might have been aware of Rose‘s subpar intelligence, there is no indication that the judge ever suspected Rose was incompetent.
¶ 26 Rose nonetheless argues the trial court erred by disregarding some indications of incompetence and failing to hold a competency hearing before accepting his plea. We have stated that “we will not uphold a guilty plea, where competency has been a valid issue, absent a proper finding of competency.” State v. Bishop, 139 Ariz. 567, 571, 679 P.2d 1054, 1058 (1984); see also State v. Brewer, 170 Ariz. 486, 495, 826 P.2d 783, 792 (1992) (“A criminal defendant is not competent to plead guilty if [his] mental illness has substantially impaired his ability to make a reasoned choice among the alternatives presented to him and understand the nature of the consequences of his plea.” (internal quotation marks omitted)). But a competency evaluation and hearing are not required in all cases in which the defendant pleads guilty. Cf. State v. Wagner, 114 Ariz. 459, 462-63, 561 P.2d 1231, 1234-35 (1977) (when the record raised “sufficient doubt of defendant‘s competency to enter a plea of guilty” to first degree murder, case was remanded for a post-conviction hearing to determine whether he made “a rational and reasoned decision in entering the plea“).
¶ 27 Either party may request a competency hearing.
¶ 28 After he was charged, Rose initially waived his right to have a mental health expert appointed pursuant to Rule 11 for a prescreening under
¶ 29 Sixth, Rose argues that the trial court‘s colloquy failed to secure a knowing, intelligent, and voluntary waiver of three constitutional rights: the privilege against self-incrimination, the right to trial by jury, and the right to confront one‘s accusers.
¶ 30 The record clearly reflects that the trial judge informed Rose of those rights and that Rose waived them. Rose nonetheless contends that the trial court‘s recitation of rights and his waiver referred only to the noncapital counts and that the court thus failed to secure a waiver of constitutional rights on the capital charges. Although the trial court‘s colloquy could have been clearer,
¶ 31 “The requirements of Boykin are met when it appears from a consideration of the entire record that the accused was aware that he was waiving [his constitutional] rights and it appears that it was a knowing and voluntary waiver.” State v. Henry, 114 Ariz. 494, 496, 562 P.2d 374, 376 (1977). When defense counsel informed the trial court in chambers that Rose had decided to plead guilty to all charges, counsel assured the court that they had “been working with [Rose] for a very long period of time” and, after much discussion during the previous few weeks, Rose had decided “to take responsibility and plead guilty to all of the charges that are in the indictment.” When the judge asked if that was a voluntary choice on Rose‘s part, his attorney responded, “Absolutely. It‘s not something that he thought of overnight. We‘ve talked about it, discussed the pros and cons, consulted with him, and that‘s exactly what he wants to do.”
¶ 32 After returning to the courtroom, the judge asked Rose if it was his “intention ... to plead guilty to the charges,” to which Rose responded, “Yes, sir.” Rose acknowledged that he had been in the same courtroom several times before and had “seen other defendants plead guilty.”1 The judge explained that he was “going to go through the same type of colloquy with you that you‘ve observed me go through with [those] defendants.” The judge asked Rose if he “had an opportunity to discuss with [his] lawyer the pros and cons” of pleading guilty, to which Rose responded, “Yes, sir.” Rose also acknowledged that it was his “free choice to plead guilty to these charges.”
¶ 33 The trial court then set forth the range of possible sentences for all charged offenses, both capital and noncapital. The court also explained that Rose had “the absolute right to have this jury determine whether or not you are guilty or not guilty on these charges,” to “cross-examine all of the government‘s witnesses [and] subpoena witnesses ... to testify [on] your behalf,” and “to remain silent,” and that “the government could not comment on your silence.” In its concluding statement, which is the lynchpin of Rose‘s argument, the court told him, “By pleading guilty to me here today, for the noncapital charges you would be giving up all of these important rights.” Rose stated that he understood his rights and still chose to proceed with his guilty pleas.
¶ 34 In context, the trial court‘s statements to Rose cannot reasonably be construed as limiting the admonition regarding the constitutional rights Rose was waiving to the noncapital charges. Viewed as a whole and in the light most favorable to sustaining the court‘s acceptance of Rose‘s pleas, the record reflects that Rose understood his constitutional rights and validly waived them on all charges. See State v. Allen, 223 Ariz. 125, 127 ¶ 13, 220 P.3d 245, 247 (2009).
¶ 35 Seventh, describing himself as “seriously mentally ill,” Rose argues that “[t]he trial court‘s failure to inquire and determine whether ... [he] was on medication or not and how the presence or absence of medication affected his decision making ability renders the plea unknowing and unintelligent” and a violation of due process. Rose relies on United States v. Cole, in which the Third Circuit stated that
Rule 11 counsels a district court to make further inquiry into a defendant‘s competence to enter a guilty plea once the court has been informed that the defendant has recently ingested drugs [in this case heroin] or other substances capable of impairing his ability to make a knowing and intelligent waiver of his constitutional rights.
813 F.2d 43, 46 (3d Cir.1987).
¶ 36 We agree that a trial judge has a duty to “make further inquiry into a defendant‘s competence” when the judge is aware that the defendant might be under the influence of any substance, including medication, “capable of impairing his ability to make a knowing and intelligent waiver of his constitutional rights.” Id. But in Cole the trial judge was informed during the colloquy that
¶ 37 At the end of the change of plea proceeding, the judge asked if “any of the lawyers have any concerns about the voluntariness of Mr. Rose‘s pleas of guilty.” The prosecutor responded that he did not, and neither Rose nor his counsel expressed any concerns. Nonetheless, the better practice is for judges to routinely inquire whether a pleading defendant is on any medication or other substance that might impair the defendant‘s ability to enter a plea. See Ariz. Civil/Criminal Bench Book, Guilty Plea, 10-3 (2013) (listing a series of questions a judge should ask when accepting a guilty plea, including inquiry into whether defendant “had any drugs, alcohol, or medication within the past 24 hours“). Despite that omission in the trial court‘s colloquy here, absent anything in the record casting doubt on Rose‘s competency, we cannot conclude the court abused its discretion in finding Rose‘s guilty pleas and waiver of rights valid.
¶ 38 Finally, Rose argues that the trial court erred by not informing him that “he was waiving his right of appellate review on his conviction of the capital counts if he pled guilty.” But no such warning was required because Rose did not, and could not, forego his right to appeal his capital convictions by pleading guilty. See
¶ 39 In sum, we find that Rose‘s guilty pleas were entered voluntarily, intelligently, and knowingly.
D. Victim impact evidence
¶ 40 Rose argues that the admission of “inflammatory” victim impact evidence (“VIE“) in the penalty phase violated his Eighth Amendment rights because it was not relevant to any mitigating circumstances and was unduly prejudicial. Rose also challenges the constitutionality of
¶ 41 Section 13-752(R) states that “[a] victim has the right to be present ... at the penalty phase” and may “present information about the murdered person and the impact of the murder on the victim and other family members and may submit a victim impact statement in any format to the trier of fact.” Similarly,
¶ 43 Turning to the VIE presented in this case, Rose first argues that the entire VIE presentation was overly emotional and highly prejudicial. Rose, however, did not object below on these grounds or move for a mistrial, and therefore fundamental error review applies. State v. Valverde, 220 Ariz. 582, 585 ¶ 12, 208 P.3d 233, 236 (2009).
¶ 44 The extensive VIE in this case consisted of prepared statements from Officer Cortez‘s widow, oldest son (whose written statement the widow read while the boy and his younger brother stood next to her), mother, and father-in-law. The VIE also included a short poem read by Officer Cortez‘s mother, the playing of a thirty-five second audio recording, and several photographs. Without question, the scripted VIE was quite emotional and forceful in its tone and tenor, and even the State concedes that the widow‘s statements were “admittedly emotional.”
¶ 45 VIE is generally admissible at sentencing unless it is “so unduly prejudicial that it renders the trial fundamentally unfair.” State v. Dann (Dann II), 220 Ariz. 351, 369 ¶ 98, 207 P.3d 604, 622 (2009) (quoting Payne, 501 U.S. at 825, 111 S.Ct. 2597). Our prior cases guide our analysis of the VIE presented here. For example, we did not find undue prejudice when the victim‘s parents spoke emotionally about the impact of their son‘s death on them, followed by playing of the 911 call the victim‘s father made after he discovered his son murdered. State v. Gallardo, 225 Ariz. 560, 567 ¶¶ 27, 29, 242 P.3d 159, 166 (2010). Nor did we find undue prejudice when at least half the jurors cried during a “powerful and emotional” victim impact presentation, and the presenters all cried during their statements as well. State v. Glassel, 211 Ariz. 33, 54 ¶¶ 85-86, 116 P.3d 1193, 1214 (2005). We likewise did not find undue prejudice when the victim‘s mother compared the pain she felt over her daughter‘s murder to the “universally painful” loss experienced by all Americans in response to the 9/11 terrorist attacks. State v. Garza, 216 Ariz. 56, 69 ¶¶ 61-62, 163 P.3d 1006, 1019 (2007).
¶ 46 Unlike those cases in which we reviewed the trial court‘s admission of VIE for abuse of discretion, however, in this case we review for fundamental, prejudicial error because Rose did not object below on the broad grounds he urges now. Roque, 213 Ariz. at 221 ¶ 113, 141 P.3d at 396. Here, the trial court instructed the jurors they “must not be influenced” by “passion, prejudice, public opinion, or public feeling,” nor “swayed by mere sympathy not related to the evidence presented.” But we have not yet been confronted with VIE as extensive as that presented in this case, and we find the presentation here troubling. There is no simple, mechanical test to determine when VIE crosses the line between permissible and unduly prejudicial. The presentation here, however, comes uncomfortably close to that line. Nonetheless, absent any objection or
¶ 47 It remains the responsibility of the trial judge, however, “to exercise sound discretion in balancing probative value against the risk of unfair prejudice.” Ellison, 213 Ariz. at 141 ¶ 115, 140 P.3d at 924 (quoting State v. Doerr, 193 Ariz. 56, 64 ¶ 32, 969 P.2d 1168, 1176 (1998)). We caution prosecutors and victims not to venture too close to the line, lest they risk a mistrial. And, recognizing the confines of
¶ 48 At trial, before presentation of the VIE, Rose objected to three aspects: the appearance of Officer Cortez‘s two young sons dressed in attire that looked like police uniforms, two photographs that were admitted into evidence and shown to the jury during the widow‘s statement, and the playing of an audio recording called the “Last Call.” We review the trial court‘s rulings on those particular VIE-related objections for abuse of discretion. Garza, 216 Ariz. at 69 ¶ 60, 163 P.3d at 1019.
¶ 49 Regarding the children‘s attire, Rose objected that “the officer‘s sons ... are dressed in—I can‘t say police uniform, but certainly something that looks like police uniform.” The trial judge noted the objection but declined to require the children to change clothes. Nothing in the record, and no authority cited by Rose, suggests the court abused its discretion in that regard.
¶ 50 Nor can we say the trial court erred in overruling Rose‘s objections to two photographs, one of which depicted Officer Cortez‘s sons and widow looking down into the grave as his casket was lowered, and the other photograph showing the boys, with their backs to the camera, sitting on a bench by the gravesite. Rose objected because, he argued, the photographs showed no interplay between the children and their father and appeared staged. This Court has recognized “the danger that photos of the victims may ‘be used to generate sympathy for the victim and his or her family.‘” Ellison, 213 Ariz. at 141 ¶ 115, 140 P.3d at 924 (quoting Doerr, 193 Ariz. at 64 ¶ 32, 969 P.2d at 1176). Nonetheless, we have declined “to adopt a per se rule barring all in-life photos in capital murder cases,” leaving the decision instead to the trial court‘s discretion. Id. Generally, “[w]hen assessing the admissibility of photographs, we ‘consider the photographs’ relevance, the likelihood that the photographs will incite the jurors’ passions, and the photographs’ probative value compared to their prejudicial impact.‘” State v. Pandeli, 215 Ariz. 514, 524 ¶ 23, 161 P.3d 557, 567 (2007) (quoting State v. McGill, 213 Ariz. 147, 154 ¶ 30, 140 P.3d 930, 937 (2006)).
¶ 51 As noted above, under Arizona‘s constitution, statutes, and court rules, survivors may speak at sentencing about the effect the victim‘s murder has had on them. And Arizona cases have permitted pre-murder, in-life photographs of the homicide victim, Garza, 216 Ariz. at 69 ¶ 63, 163 P.3d at 1019, as well as post-death autopsy photographs of the victim, Pandeli, 215 Ariz. at 524-25 ¶¶ 24-26, 161 P.3d at 567-68. But no Arizona case has addressed the admissibility of photographs of the victim‘s survivors, ostensibly to depict their response to the victim‘s death and its effect on them. Some California cases, however, have upheld admission in a capital case of photographs of the victim‘s gravesite. See, e.g., People v. Zamudio, 43 Cal.4th 327, 75 Cal.Rptr.3d 289, 181 P.3d 105, 137 (2008) (permitting a series of pre-death photographs of the victims, as well as three photographs of the victims’ grave markers); People v. Kelly, 42 Cal.4th 763, 68 Cal.Rptr.3d 531, 171 P.3d 548, 570 (2008) (permitting a video montage that ended with a close-up of victim‘s grave); People v. Harris, 37 Cal.4th 310, 33 Cal.Rptr.3d 509, 118 P.3d 545, 574 (2005) (permitting a photograph of the victim‘s gravesite as “further evidence relating to her death and the effect upon her family“).
¶ 53 Regarding the “Last Call” audio recording,2 Rose argued below that it was “irrelevant” and “put together purely for ... an emotional impact.” We have not addressed this type of issue before, but other jurisdictions have. In State v. Bixby, the South Carolina Supreme Court permitted a videotape depicting a deputy sheriff‘s funeral, including footage of an American flag over the closed coffin, the playing of “Taps,” assembly of mourners, and a recording of a fictional 911 call in which the deputy is given permission to “return home.” 388 S.C. 528, 698 S.E.2d 572, 586-87 (2010). The court reasoned that the “videotape was relevant to show the uniqueness of the victim, the harm committed by [the defendant], and the impact of the victim‘s death on his family and society.” Id. at 587; see also People v. Brady, 50 Cal.4th 547, 113 Cal.Rptr.3d 458, 236 P.3d 312, 338-39 (2010) (permitting the admission of a six-minute videotape highlighting the memorial and funeral services of the police officer victim). Although the relevance of the “Last Call” recording is dubious, the trial court did not abuse its discretion in admitting it as part of the VIE inasmuch as the recording was very brief and was not inflammatory in either its content or style of presentation.
¶ 54 On appeal, Rose also argues that “[t]he entire victim presentation linked the case not to the slain officer but to the entire police force.” Because he did not raise this claim below, we review for fundamental error. Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.
¶ 55 Rose is correct that victim impact statements are limited to the “impact of the crime on the victim‘s family.”
¶ 56 Rose further argues for the first time on appeal that the victims improperly asked the jury to impose the death penalty. We review for fundamental error because Rose made no such claim below. Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.
¶ 58 Nonetheless, we do not condone the type of vengeful language the widow used. And we strongly encourage prosecutors and trial courts to prevent VIE presenters from alluding to or addressing in any way the potential sentence, such as pressing for an “appropriate” or “just” sentence or asking for “closure.” Such references come dangerously close to infringing
¶ 59 Finally, Rose unsuccessfully proffered two items of evidence to rebut the VIE. He sought to present a petition for divorce filed by Officer Cortez‘s wife and an episode of the “Dr. Phil Show” featuring her and Officer Cortez. The trial court sustained the State‘s objection to both. “We review a trial court‘s determination of relevance and admissibility of evidence for an abuse of discretion.” State v. Hardy, 230 Ariz. 281, 291 ¶ 49, 283 P.3d 12, 22 (2012).
¶ 60
¶ 61 Rose sought to offer this evidence as mitigation more than two weeks after the VIE had been presented. The trial court ruled that “whether Ms. Cortez and her husband had marital difficulties at some point is simply not relevant mitigation,” and that nothing Officer Cortez‘s wife said was “materially inaccurate.” Therefore, the court concluded, the proffered evidence was not relevant to rebut her statement. Applying factors set forth in
¶ 62 “The trial court has considerable discretion in determining the relevance and admissibility of evidence, and we will not disturb its ruling absent a clear abuse of that discretion.” State v. Amaya-Ruiz, 166 Ariz. 152, 167, 800 P.2d 1260, 1275 (1990). Balancing of Rule 403 factors is also a matter particularly and appropriately left to the trial court‘s discretion. Id. We find no abuse in the trial court‘s decision to preclude evidence during Rose‘s mitigation of marital difficulties between Officer Cortez and his wife.
E. Exclusion of execution impact testimony
¶ 63 Rose argues that the trial court erred in excluding his proffered execution impact evidence, which he claims is relevant under the Eighth Amendment and admissible
¶ 64 “We have previously held that execution impact evidence is not relevant to mitigation.” Id. at 238 ¶ 30 (citing Roque, 213 Ariz. at 222 ¶ 119, 141 P.3d at 397). Such execution impact evidence is not relevant because it is “altogether unrelated to defendant, to his character, or to the circumstance of the offense.” Roque, 213 Ariz. at 222 ¶ 119, 141 P.3d at 397 (quoting State v. Williams, 183 Ariz. 368, 385, 904 P.2d 437, 454 (1995)).
¶ 65 Rose nonetheless contends that this Court has upheld the admissibility of execution impact evidence in prior cases.3 But we also noted in Chappell that “[a]lthough similar evidence has been admitted in some cases, in none of those cases was the admissibility of the execution impact evidence at issue on appeal.” 225 Ariz. at 238 ¶ 30 n. 8, 236 P.3d at 1185 n. 8. Rose neither cites nor challenges Chappell. Finding it dispositive, we uphold the trial court‘s exclusion of execution impact evidence.
F. Constitutionality of A.R.S. § 13-751(F)(10)
¶ 66 Rose argues that the (F)(10) aggravating factor violates the Eighth and Fourteenth Amendments on its face and as applied. Because Rose did not raise this claim below, we review it for fundamental error. Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.
¶ 67
¶ 68 We reject Rose‘s arguments that the (F)(10) aggravating factor draws an “arbitrary” and “irrational” distinction between a peace officer and a non-peace officer and that the factor violates equal protection and due process principles. As in Cruz, Rose “cites no authority suggesting that the legislature may not provide that any intentional killing of an on-duty peace officer should make a defendant death eligible.” 218 Ariz. at 170 ¶ 132, 181 P.3d at 217. “[S]pecification of punishment for crime is peculiarly a question of legislative policy,” and this Court will presume the constitutionality of a statute “when there is a reasonable, even though debatable, basis for the enactment of a statute.” State v. Arnett, 119 Ariz. 38, 47-48, 579 P.2d 542, 551-52 (1978). The legislature properly exercised its power and did not offend constitutional requirements by enacting the (F)(10) aggravating factor. Cf. State v. Nelson, 229 Ariz. 180, 186-87 ¶¶ 25-28, 273 P.3d 632, 638-39 (2012) (reaching same conclusion regarding
¶ 69 Likewise, we reject Rose‘s argument that application of the (F)(10) aggravating factor is cruel and unusual. The Supreme Court has stated that we must refer to “the evolving standards of decency that mark the progress of a maturing society” to determine whether particular punishments are cruel and unusual. Roper v. Simmons, 543 U.S. 551, 561, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (quoting Trop v. Dulles, 356 U.S. 86, 100-01, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion)). Rose has not persuaded us that Arizona‘s (F)(10) aggravating factor fails to conform to that standard. On the contrary, he acknowledges that several other states also recognize the murder of an on-duty peace officer as an aggravating factor. See, e.g.,
III. ABUSE OF DISCRETION REVIEW
¶ 70 Because the murder occurred after August 1, 2002, we review the jury‘s finding of aggravating circumstances and the imposition of a death sentence for abuse of discretion.
A. Constitutionality of A.R.S. § 13-756(A)
¶ 71 Rose contends that review of a capital sentence for abuse of discretion violates the Eighth Amendment because the Supreme Court mandates “meaningful” appellate review of death sentences under Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). We have previously rejected similar Eighth Amendment challenges to the statute and again do so here. See Cota, 229 Ariz. at 153 ¶ 92, 272 P.3d at 1044 (“Meaningful appellate review requires only that an appellate court ‘consider whether the evidence is such that the sentencer could have arrived at the death sentence that was imposed,’ not whether the appellate court itself would have imposed a death sentence.” (quoting Clemons v. Mississippi, 494 U.S. 738, 749, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990))); Martinez, 218 Ariz. at 434 ¶ 62, 189 P.3d at 361.
¶ 72 The jury found the following four aggravating circumstances proven beyond a reasonable doubt: (1) Rose was previously convicted of a serious offense,
1. (F)(5) aggravating factor—pecuniary gain
¶ 73 A defendant convicted of first degree murder is eligible for a death sentence if the state proves beyond a reasonable doubt that he “committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.”
¶ 75 Rose argues that his attempted theft in the check cashing store had “failed before the police officer arrived,” and he “received no money and was not going to receive any money from the clerk.” But “an absence of actual receipt of money or valuables [does not] negate[] a finding of expectation of pecuniary gain as an aggravating circumstance.” State v. LaGrand, 153 Ariz. 21, 23-25, 35-36, 734 P.2d 563, 565-67, 577-78 (1987). Rose had said earlier that day that he would shoot anyone who tried to stop him from cashing the forged check. The murder occurred temporally and proximally close to the underlying crime, which was undoubtedly motivated by Rose‘s desire for pecuniary gain. The murder also facilitated Rose‘s escape and temporary evasion from arrest, and Rose made no attempt to conceal his identity, a fact that provides “powerful circumstantial evidence of an intent to facilitate escape or hinder detection and thus advance the underlying pecuniary gain objective.” Cañez, 202 Ariz. at 159 ¶ 94, 42 P.3d at 590.
¶ 76 Finally, we reject Rose‘s argument that the (F)(5) aggravating factor is being bootstrapped to the felony murder charge, which was based on the underlying crime of burglary. This Court “has repeatedly held that a conviction for felony murder predicated on robbery or armed robbery does not automatically prove the (F)(5) aggravator.” State v. Anderson, 210 Ariz. 327, 351 ¶ 103, 111 P.3d 369, 393 (2005). “While armed robbery requires proof of a ‘taking of property from the victim,’ the pecuniary gain aggravator requires proof that the defendant‘s ‘motivation [for the murder] was the expectation of pecuniary gain.‘” Id. (alteration in original) (quoting State v. Carriger, 143 Ariz. 142, 161, 692 P.2d 991, 1010 (1984)). Likewise, in this case the evidence required to establish the (F)(5) aggravator is different from that for burglary, which requires proof of entry with “intent to commit any theft or any felony.”
C. Mitigating circumstances
¶ 77 In the penalty phase, the defendant is entitled to present any mitigating circumstances that the jury may consider in determining the appropriate sentence.
¶ 78 We will overturn a jury‘s imposition of a death sentence only if “no reasonable jury could have concluded that the mitigation established by the defendant was not sufficiently substantial to call for leniency.” Cota, 229 Ariz. at 153 ¶ 95, 272 P.3d at 1044 (internal quotation marks omitted). The State presented evidence to rebut much of Rose‘s mitigation evidence. Based on the facts of the crime and the four aggravating factors, a reasonable jury could find that Rose‘s mitigation did not warrant leniency.
IV. CONCLUSION
¶ 79 We affirm Rose‘s convictions and sentences.4
CONCURRING: REBECCA WHITE BERCH, Chief Justice, SCOTT BALES, Vice Chief Justice, ROBERT M. BRUTINEL and ANN A. SCOTT TIMMER, Justices.