*1 Arizona, Appellee, STATE MANN, Appellant.
Eric Owen
No. CR-95-0077-AP.
Supreme Arizona, Court of
En Banc.
March *4 Woods, Attorney
Grant Arizona General Howe, MeMurdie, Randall M. Paul J. Phoenix, of Arizona. for State Romo, de Tucson Pima Isabel G. Garcia Yankowski, County by Lois Legal Defender Heveri, Tucson, for Eric Alex D. Owen Mann.
OPINION FELDMAN, Justice. Erie Mann was convicted
Defendant Owen degree first and sentenced murder killings of Richard Alberts for during drug Appeal deal. Ramon Bazurto a capital this automatic on counts court is jurisdiction pursuant to A.R.S. and we have 31.2(b). 13-4031 and Ariz.R.Crim.P. judgment. affirm the PROCEDURAL HISTORY AND FACTS Miller, girlfriend, Karen and his they where sold rented a house Tucson cocaine, marijuana, guns. Typically, “eight-balls” (one-eighth Karen sold of an Bazurto had come the house but left after packets) evening drug ounce of cocaine in the deal failed. bigger drug
while Defendant worked on Nothing more came of the ease until Janu- deals. ary when Karen her rela- Miller ended In late November told Defendant, tionship allegedly with because of Alberts, plan rip Karen of his off Richard escalating domestic violence and his threats a friend also the cocaine involved trade. it again.” moving, to “do After told she up deal Defendant set to sell about police about the murder. Police tracked $20,000. kilogram roughly of cocaine for Ac- Alejandro person down and the to whom the Karen, cording to Defendant knew would given car been had and were able to corrob- (kill) taking have “whack” Alberts after story. orate Karen’s then was money and giving Alberts shoebox charged arrested and with the murders of newspaper filled with instead of cocaine. and Bazurto. Alberts Karen Miller Ale- jandro part plan charged were never changed up their when Alberts showed man, cover-up. with the murders or another Ramon Bazurto. Defen- dant, however, quickly up made his mind “to trial, guilty At it.” do The men entered house and murders, primarily based on the followed Defendant back the master bed- *5 Alejandro. Miller and At sen- Karen Carlos room. Karen followed behind and stood in tencing, judge aggrava- the trial found three doorway, the between Alberts and Bazurto. (§ 703(F)(2)); ting pecuniary gain factors: 13— trading bag money After the the shoe- (§ and, multiple 13-703(F)(8)); murders box, top Alberts lifted box the the that Bazurto, cruelty depravity the case of and contained newspaper. Almost instanta- (§ 703(F)(6)). judge The the statu- 13— neously, Defendant shot Alberts and then tory non-statutory mitigators and were insuf- once, Bazurto. Each shot was Alberts weighed against aggravators ficient through through heart and Bazurto to and sentenced Defendant death for both lung, severing the aorta. Both bullets murders. passed through the and bodies traveled
through the walls the house. DISCUSSION instantly Alberts almost Bazurto died but A. Trial issues Karen, not. According feebly did at- he tempted gun carrying to reach for the he was stipulation 1. The placed in his waistband. Defendant his foot com Defendant claims stop on Bazurto’s hand to him and described by admitting mitted fundamental error an happening to Karen what was as victim inculpatory determining statement without motor lost control and died. it She testified whether the waiver of Defendant’s Fifth from took three to five minutes for Bazurto rights knowing, intelligent, Amendment was to die. voluntary. stipulation The read: “De friend, got Alejandro, Carlos with area fendant was familiar where the help dump him the bodies near a rural had [sic] victim’s bodies were found and been vicinity prison, Fort road Grant in that area at the time the bodies were left day, near Safford. The next Defendant and stipulation pre there.” This was made job thorough cleaning Karen did a to erase prosecution submitting evi clude all traces of murder. All the walls and that dence Defendant was familiar with the patched, floors were scrubbed and and the previously area because he had been incar repainted. gave room was Al- cerated Fort Grant. an acquaintance berts’ car to whom he however, money. guns, jury, He that owed also dismantled his told the it hammer, destroyed prosecution stipulated the mechanisms with “is between the defendant, Mann, pieces, as as that Eric and scattered well the re- defense was bullets, along questioned in a with the area route covered lake. When familiar Arizona by police, of Richard Defendant told them Alberts and 666 when the bodies Alberts and testimony Re- of witness Ramon Bazurto were found.” 2. Correction Junior (R.T.), Transcript Oct. at 5 porter’s claims there revers added). (emphasis Miller she error because Karen testified ible read, stipulation prose- granted immunity After the not been when she had interjected stipulation prosecutor that the should did not her cutor and the correct had ... testimony. questioned when] have read “where the bodies counsel [not Defendant’s found,” Miller, it to the asking: were reread Karen jury. prosecutor After lunch break the your understanding DEFENSE: And is it again told the a mistake had been you’re going charged to be with that made, stating stipulation have should any crime this ease? read that Defendant had been in the area any KAREN MILLER: I don’t un- have “prior to” not “on” the date the bodies I derstanding on that at all. know. don’t exchange left. The was: you hopeful you will DEFENSE: Are Well, you THE do me to COURT: want charged with on not be crime based it again?
read to them this case? your call. DEFENSE: It’s Yes, MILLER: I am. your PROSECUTOR: It’s call. You want you’re your hoping DEFENSE: And to leave it alone? today will lead that re- here I’ll it DEFENSE: leave alone. I wasn’t sult; right? isn’t say there, going closing wasn’t Yes, I MILLER: am. wasn’t familiar with the area. R.T., 115-16. Oct. Id. at 55. *6 the argues prosecutor committed mis- Miller, In United v. 588 F.2d States by bring out failing conduct that the State (9th Cir.1979), 1256 the court that when held had made a deal with Karen. stipulation guilty plea, to a Rule amounts prosecutor But the did not deal or hide the procedures 11 followed. must be Id. at jurors. argu- During Karen’s bias from the stipulations Fed.R.Crim.P. 11. But where prosecutor jurors, ment the told the “[s]he’s guilty plea, are not tantamount to a trial granted not prosecut- been or told she will be stipulation court need assure that the simply on this case because without that ed West, voluntarily. In
was made
Id.
State v.
promise,
have the
who
person
we would not
may
this court stated a defendant
bound
be
R.T.,
1994,
25,
pulled the trigger.”
had
Oct.
strategic
trial counsel’s
decisions to waive
point
at 143. This
was driven home as well
Only
rights.
are
circumstances
opening
his
statement and
exceptional must a defendant
to the
consent
closing argument.
that these
Counsel stated
432, 447,
192,
waiver. 176 Ariz.
862 P.2d
“self-serving
people,
statements of two
(1993). Here,
clearly
defense counsel
made
Alejandro,
Karen Miller and
who both
Carlos
stipulate
tactical decision to
and avoid reveal
R.T.,
immunity.”
gotten
Nov.
complete
have
Furthermore,
ing
prior
incarceration.
1994,
Mil-
at 30.
do not believe that
We
corrected,
stipulation
not to have the
decided
testimony
arguably
ler’s
false
“in reasonable
presumably
emphasizing
it to the
avoid
judgment
affected
[could]
likelihood
have
jury. The tactical decisions had merit and
Illinois,
jury____” Napue v.
West,
stated,
360 U.S.
this
were reasonable.
court
264, 271,
1173, 1178, 3
79 S.Ct.
L.Ed.2d
stipulation
not
do
believe
to facts
‘We
(1959) (where
question
witness answered a
easily
proved
could
have
the state
amounts
falsely,
prosecutor knew of
falsehood
prin
exceptional
an
circumstance.” Id. That
it);
Giglio
see
ciple
appropriately applied
present
and did
correct
also
is
States,
150, 154,
case,
92 S.Ct.
in which
self-de United
Defendant claimed
(1972) (the
lie must
deny killing
did
victims and
view of and cert. de nied, U.S. S.Ct. independently court This reviews explained L.Ed.2d The error, sentences determines wheth compelling testimony believed Karen’s and aggravating er the have been circumstances pathologist’s discounted the be doubt, proved beyond a reasonable considers cause the medical examiner was uncertain circumstances, mitigating and then Bazurto whether would have suffered. weighs aggravating mitigating and cir testimony and judge’s Given Karen’s deciding mitigat cumstances in whether the findings, the evidence was sufficient to find ing circumstances are substantial and war the murder was cruel Bazurto because Brewer, leniency. rant appreciable period alive conscious for an denied, cert. 506 U.S. Herrera, of time. See State v. S.Ct. L.Ed.2d (1993) (a Aggravating factors period eighteen between seconds and several A is eligible penal- defendant for the death sufficient). Moreover, minutes was Defen ty proven beyond when the state has a rea- dant did not Karen’s contend observations sonable least doubt existence of at one Bazurto and attempted was conscious statutory aggravating circumstance. A.R.S. scientifically defend himself were or medical 13-703(E) (amended 1993). case, In this ly impossible, provide any nor did Defendant three circum- to that evidence effect. (§ 13-703(F)(5)), pecuniary gain stances: cruelty in the murder of Ramon Bazurto (F)(6) application b. is not un- n (§ 13-703(F)(6)), multiple homicides vague constitutionally (§ 13-703(F)(8)). Defendant contests the argues the sole definition findings. first two (F)(6) required satisfy conduct Arizona, factor stated Walton Heinous, cruel, depraved
a.
or
3047, 111
U.S.
L.Ed.2d 511
13-703(F)(6)
disjunctive,
A.R.S.
is
Because the
did not base his
finding
cruelty
and a
either
findings
special
heinous/de
specifically
verdict
on
*7
praved
ag
conduct is sufficient
find this
Walton,
language
argues
the
Defendant
Roscoe,
gravating factor. State v.
184 Ariz.
(F)(6)
application
of the
factor was un
484, 500,
635,
(1996).
651
The
constitutionally
disagree.
vague. We
(F)(6)
applicable
found the
factor
to the mur
Findings
cruelty,
heinousness and de
Bazurto,
der of Ramon
and we believe the
pravity
aggravating
warranting
as
factors
support
finding
cruelty.
circumstances
penalty
usually
are
based on
(the
in
definitions used
State v. Gretzler
Gret
especially
To
a murder
show
was
factors).
42,
1,
zler
135 Ariz.
cert.
cruel,
prove beyond
the state must
a reason
denied,
971,
2444,
461 U.S.
103 S.Ct.
77
consciously
able
the victim
doubt that
suf
posits
1327
L.Ed.2d
Defendant
that
physical
fered
or
pain.
emotional
State v.
the Ninth Circuit held the Gretzler factors
Bible,
549, 604,
1152,
175 Ariz.
1207
P.2d
Ricketts,
vague
too
in
v.
Adamson
(1993),
cert.
U.S.
S.Ct.
(9th Cir.1988). Furthermore,
F.2d 1011
De
128 L.Ed.2d
Defendant
argues
fendant
definitions were
Gretzler
argues that
the medical
testified
examiner
completely approved
Supreme
probably
Bazurto
was
for
conscious
application
Court considered the
of Arizona’s
twenty
during
ten to
seconds and
that time
aggravating
in
factors Walton.
may
in a
have been
state of shock. But
Karen
specifically
Miller testified that Bazurto was alive
Adamson was not
overruled in
Walton,
although
denying
for
in
three to five minutes. The
certiorari on
case,
justices
persuasive.
Karen
in a
three
Miller’s
more
this issue
later
would
Conflicts in the evidence are for the trial
have remanded Adamson’s case to the Ninth
502, 513,
Gonzales,
gain.
light
of Walton.
to reconsider
Circuit
-
Adamson,
110 S.Ct.
497 U.S.
Lewis v.
denied
(1990). Walton,
-,
sentencer. Court (F)(6) R.T., $20,000. 23-24. passed constitutional tion of the factor Oct. Walton, up at unexpectedly showed Bazurto muster. When specific house, defi- argues the made a choice after at 3057. Defendant Walton, said, ‘Well, and not got I to do thought nitions used Court period of Gretzler, only defi- it,” through articulation in are the meaning go that to apparently constitutionally allowable. nitions that are also have to murder plan with the he would R.T., if at 38. Even Bazurto. Oct. Jeffers, the United States But Lewis original killing part Bazurto was Supreme stated: Court “motive, money plan, stealing the squarely therefore forecloses Walton cause, impetus,” of both or for the murders (F)(6) argument that Arizona’s subsection gain pecuniary Bazurto. The Alberts and circumstance, [previously] as applies in this case. aggravator therefore Supreme the Arizona Court construed Ariz. at 908 P.2d at Spears, 184 See ], the sentenc- fails to channel [in Gretzler objective by ‘clear and stan- er’s discretion provide ‘specific and detailed dards’ rationally guidance,’ and that ‘make re- (F)(6) (F)(8) d. Consideration of process imposing a sen-
viewable the
for
punishment
factors is not double
tence
death.’
weighing process the trial
In the
777-78, 110
3092, 3100-01,
homicide,
multiple
court considered both
(citations
(1990)
omitted);
13-703(F)(8),
and that the murders
A.R.S.
Mata,
see
also State
heinous,
especially
in an
had been committed
(1996)
V.C.J.,
(Zlaket,
dis
13-703(F)(6).
cruel,
manner, §
depraved
senting).
argues that these
c. The murder of Ramon Bazurto
constitute elements of the
circumstances
pecuniary gain
formulating
offense.
argues
murder,
degree
legisla-
statute for first
finding pecuniary gain
13-
erred
under
ture must have well understood
703(F)(5)
appeared
Bazurto
unex
because
There-
loss of human life was involved.
previously
had not
pectedly and Defendant
fore,
not have consid-
the trial court should
contemplated killing him.
the mur
Because
*8
or number
the manner
[both]
ered
rip-off
part
Bazurto was not
der of
aggravating
for
of deaths as factors
argues
judge
plan, Defendant
erroneous
defendant’s sentence.
pecuniary gain aggravating fac
ly found the
tor.
reject
argument.
this
Because these
We
cruelty
multiple homi-
circumstance exists when
This
circumstances —
first-degree mur-
not elements of
cide—are
pecuniary gain is a motive or cause for
(a
in a
277, 292,
crime that can be committed
der
Spears,
murder.
v.
184
State
ways),
the Unit-
(1996);
neither
1062,
Murray,
number of different
1077
v.
908 P.2d
State
is
542,
(1995);
nor A.R.S. 13-116
9, 36,
ed States Constitution
569
184
problem
punishment
ex-
violated. No double
Runningeagle, 176 Ariz.
859
State v.
175, cert.
1015, 114
Phelps,
v.
484 U.S.
ists. See
P.2d
Lowenfield
(1988);
L.Ed.2d 568
Murder
108 S.Ct.
2. Victim
evidence
improperly
that
influenced
family recommendations.
Supreme
United States
Court
circumstances,
In similar
we have stated:
may
has held
legitimately
that
“State
con
acknowledge
family testimony
We
that
that
clude
evidence about
the victim and
concerning
appropriate
may
sentence
impact
about the
of the murder on the vic
presented
violate the
if
Constitution
to a
family
tim’s
is relevant
... as to whether or
capital sentencing jury.... We also ac-
penalty
not the death
imposed.”
should be
knowledge
impact
victim
is
Tennessee,
Payne
808, 827,
statutory aggra-
relevant to
of our
2597, 2609,
(1991)
229
accompa
claims
not
tion that
sentencing
the
Defendant
at
he found
ed
by
his
a full waiver of
Fifth Amendment
“solely on
adduced at
nied
factors
the evidence
Smith,
454,
trial,”
clearly
rights.
Estelle v.
451 U.S.
estab-
See
the record
(1981).
1866, L.Ed.2d 359
How
the
101 S.Ct.
68
beyond a
doubt
three
reasonable
lishes
ever,
objecting
precluded
is
judge.
aggravators found
the
psychological
of the
evaluation
admission
points
that the
made
out
object at
at
because
failed
evidence,
impact
personal remarks about the
the time
evaluations were admitted
the
merely
the
were
ex-
but in context
remarks
Tison,
526,
conducted.
v.
State
empathy,
preju-
evidence of
pressions of
not
(1981),
633
344
P.2d
Furthermore,
judge’s comments
dice.
the
147
459 U.S.
103 S.Ct.
74 L.Ed.2d
clarify
meant to
the statement
were
(1982);
Anaya, 170 Ariz.
mother’s,
interpreted
victim’s
which could be
(App.1991).
P.2d
968
825
rather than
requesting
imprisonment
life
as
penalty. Sentencing
place
took
Furthermore,
of Estelle
facts
Williams,
opinion in
v.
before our
State
183
Here,
vary greatly from those
us.
before
(1995),
Ariz.
4. Use of (not Cir.1992) error); (9th harmless F.2d Amaya-Ruiz, during obtained an State Statements were in-custody, psychiatric evalua- court-ordered *10 Having plained by culpability made motion for re in the difference —-De
consideration, cannot complain instigator fendant was of crime and judge by hearing that the erred that motion. grant killer —and also because the state Diaz, 363, 365, See State Ariz. 813 P.2d Alejandro immunity ed pros Miller and (1991). Moreover, courts have the testimony necessary any ecution to obtain authority clarify modify inherent their prosecution for killings. Apelt, State v. judgments own and orders. Skinner v. Su (1993), 176 Ariz. 861 P.2d Court, perior 475 P.2d (1970); Freeman, State v. L.Ed.2d 59 (App.1993). Be judge findings cause the made no additional Rejection mitigation b. of for remorse merely explained but reasons for a few previous findings, hearing his was not sentencing At re part sentencing of the and was not a critical ferred to fatal in traffic accident which stage proceedings in Defendant’s case. Defendant was involved and said Defen dant no judge’s indicated remorse. The Fulminante, Arizona v. concerning statement the car accident indi probative cates the he found that incident Hays and held a defendant’s absence from character in rebuttal Defendant’s to miti sentencing hearing was structural error gation evidence. Defendant invited the because the defendant could not communi by mentioning the accident consider attorney testimony given cate with the about autobiography prepared it in the show there. Such errors are harmless because mitigation. complain cannot one cannot know might what defendant about considering the evidence that in that have said situation. The Fulminante he offered. Hays apply rationales do here be hearing evidentiary not an cause
type proceeding where Defendant re could history, cooperation c. Non-violent spond to witnesses. Nor was it a hearing with authorities impose determine or purpose sentence. The his claims conviction hear argument counsel’s for clarifica possession weapon of a a convicted judge’s reasoning tion of the on a sentence aggravated felon and an arrest for error, assault already imposed. If there was it was mitigating were insufficient to rebut fac obviously not structural and was harmless. Furthermore, history. tor of a non-violent Mitigation argues, weigh did not the fact flee, showing that Defendant did not thus Disparity a. of accom- cooperation with authorities. plices par 'Karen Miller was an claim active Defendant’s actions belie his of non- ticipant drug rip-off history. Considering scheme and mur violent criminal Reporting years ders. four major partic- the crime after it turn life Defendant’s took with occurred, granted immunity ipation drug allegedly peacea- she was dealing, his Moreover, charged weight. never with offense in ble life little connection carried con- Disparity with the case. sidering the sentences that Defendant obstructed the given accomplice investigation a defendant and an can criminal be from the time of the mitigating deciding factor in whether a crime in to the his arrest four time of later, appropriate. years cooperation sentence is See State Mar Defendant’s claim low, frivolity. Ariz. approaches When considered, disparity it is is mitigating unexplained. Stokley, when it is non-statutory mitigators d. Review Schurz, 176 asserted non-stat several disparity primarily utory mitigators. here is ex- These include: *11 (which relationship required review for fundamental
1. His with his children and error), if he but also on the realization funda- the effect on them were executed. He its always attempted mental review has outlived necessi- says he them and has error loves § daughter ty. repeal of 13-4035 a We are aware good to be father. His eldest in engaging his us such a sentencing good preclude as to does not from testified at necessary of parent, youngest a his sent review to serve ends character as and where Const, 5(5). VI, § relationship. justice. about their As a letter to the art. well, analysis we consider waiver do not here life 2. of sen- possibility The consecutive pertaining arguments raised for the first penalty. than the tences rather death on appeal. time 3. evidence that his Defendant submitted believe, however, We fundamental error father an alcoholic beat his mother who longer necessary review under modern is no half-brother, although never and abused practice The arose in the circumstances. Also, says, father Defendant. his days government, of the territorial when types in well-connected with “mafioso” Tuc- lawyer, most did have a nor defendants not early age arranged type and an a son required always appointed lawyers or in apprenticeship thuggery for Defendant. by the courts. See Ariz.Pen.Code directly This influence contributed Defen- 1059; § see also Ariz.Pen.Code “healthy dant’s behavior because he lacked Thus, §§ 1024 appeals and 1025. and such experiences.” Psychological socialization post-conviction relief as was available were Evaluation, at 9. options of reach for most defendants. out 4. states that after the mur- therefore, appealed, aWhen case was funda- changed life-style, quit using ders he his mental a vital in error review served role alcohol, drugs steady job, held a and was protecting the defendant’s constitutional repairing relationship his with his oldest Today, rights. almost all of our counties daughter. addition, a public have defender. we now The trial these miti panoply mandatory protections— have a gators leniency insufficient call for appointment and appeal, of counsel for trial weighed against three fac readily briefs, appeals, post- available Anders possibility tors. a life sentence is not procedures, ap- relief and direct conviction mitigating only factor but peals in post-conviction review option. Murray, 184 Ariz. at at P.2d penalty All of eases. this is followed family An background abusive is usual availability of some federal habeas review. ly given significant weight mitigating as a We therefore believe that fundamental error factor when the affected abuse the de longer necessary. review nois fendant’s at time of the behavior crime. We affirm Defendant’s convictions West, Id. at P.2d at Ariz. at sentences. 451-52, 211-12; Wallace, (1989), P.2d ZLAKET, C.J., JONES, V.C.J., and MOELLER, J., concur. did independent show connection. On re Justice, MARTONE, concurring. view, we do believe Defendant estab mitigation weight join lished to call I sufficient the court all but its fundamental conclusion, leniency. in its error review dicta contained
ante, says P.2d at 795. The court it CONCLUSION not conducted a fundamental er- has will it in future cases. so ror review nor We no prejudicial We find error Smith, year ago held sentencing rulings. trial have not where we said: review, a fundamental error nor conducted procedural repeal effect [A.R.S. we eases. decision rests of that will in future This retroactively applies cases great part repeal 13-4035] on the of A.R.S. 13- *12 Thus, yet longer sponte not final. is not entitled We no Smith conduct sua funda- long- mental no to error review because the law fundamental error review. it, requires er not because we choose to upon holding, that reliance we have not properly legislative it. discontinue This is reviews, performed fundamental error unless make., to decision they were undertaken before effective statute, capital of the in date our cases here See, appellate e.g., direct
on review. State
Rogovich, 188 Ariz. 932 P.2d 800-01
(1997); Thornton, Ariz. Miller,
929 P.2d
Ariz. The issue was thus decided Smith and DEPARTMENT ARIZONA OF REVE our implemented in cases. I do not see NUE, agency Arizona, an of State of it need to revisit now. It is not an issue Plaintiff-Appellant, Cross-Appellee, by raised in this case. defendant thought if it important But were otherwise COMPA ARIZONA PUBLIC SERVICE repeat say to that ourselves we are NY, corporation, an Arizona Defen going perform to sponte1 sua fundamental dant-Appellee, Cross-Appellant. appeal, error review on direct then ought we 1No. CA-TX 96-0009. plainly acknowledge to that the reason we Smith, that, doing is are it as we held in Arizona, Appeals Court of of requiring repealed. statute it been has 1, Department Division T. today says But it going the court is not March perform sponte to sua error fundamental repeal review not because of the of the
statute “but on the also realization fun-
damental error review has outlived its neces- Ante,
sity.” at 795. The goes say as repeal
court so far that “the
§ preclude engag- 13^4035 does not us from
ing necessary such a review where Const, justice. serve ends art. 5(5).” 5(5) VT,
VI, § § But Id. article
Arizona Constitution is the source of our rule
making power.2 provides It authority no proposition may engage in that we sua
sponte fundamental error review the ab- of a requiring
sence statute rule it. sponte way appeal I1. use the term sua we fundamental error stumble across fundamental distinguish separate error, review to it from two but we address it. then have the discretion to sponte Sua related doctrines. fundamental error Taylor, Having just denied review State v. solely by § imposed review A.R.S. 13-4035 567, 571-72, (App. 1081-82 required every read us to item in the record 1996), Curry, and State v. eye looking an with towards for fundamental (App.1996), is 1136-37 this court unani- repealed, having error. The statute been we no point. only disagreement Our mous on is longer do This is this. not to be confused with sponte which “cover cover” sua review repeal of two other doctrines unaffected beginning end finds in A.R.S. 13-4035. its First, cases, statute. in criminal we continue actually ap- review of error made on claims Supreme "[p]ower 2. The Court have the shall unpreserved peal but which Second, procedural make relative all matters in rules level fundamental error standard. Const, VI, 5(5). process presented by examining in the art. if issues court.” Ariz.