State v. Stuard

light remand not reach this issue of our 863 P.2d 881 resentencing on the murder conviction. Arizona, Appellee, STATE the trial will have proceeding, In that place opportunity an the record STUARD, regarding any Appellant. findings disparity. such James William No. CR-90-0355-AP. NOTICE OF

VIII. AGGRAVATING Arizona, Supreme Court of FACTORS En Banc. argues Henry the state failed to Nov. timely aggra- notice give proffered sentencing vating mem- factors because its day

orandum was not filed until the before presentence evidentiary hearing. This issue is mooted our remand for resen- tencing.

IX. EIGHTH AMENDMENT previously has This court considered Henry's rejected argument Arizona’s penalty sufficiently death scheme fails to channel sentencer’s discretion. State Greenway,

DISPOSITION We have reviewed record for funda- mental error found none. 13- A.R.S. § resentencing remand for on the 4035. We degree only. first murder conviction Hen- ry's are convictions other sentences

affirmed, as is the trial of his court’s denial post-conviction

petition for relief. FELDMAN, C.J., MOELLER, V.C.J., and MARTONE, JJ., concur. CORCORAN photographed he the boots was wear-

ing.

The fourth victim was not attacked until nearly three months later. This victim Woods, Atty. by Grant Gen. Paul J. neighborhood and, lived in a different al- McMurdie, Knowles, Phoenix, L. for Linda though badly injured, was to call the able appellee. police. apprehended; Defendant was Trebesch, County Maricopa Dean W. the last any admitted attack denied Kemper, Public Defender James H. in the involvement three murders. Each Phoenix, appellant. incident is described turn. OPINION NO. VICTIM MRS. C FELDMAN, Justice. Chief seventy-seven years Mrs. C old and (“Defendant”) James Stüard William pounds weighed lived herself. She degree convicted of three counts of first and stood five feet seven inches tall. On murder, attempted one of first de- count evening May the her son-in-law murder, degree gree counts of three first being went her home after to unable to burglary, degree one count of second bur- by telephone. reach her He found her dead glary, of attempted two counts sexual as- body spare picture in a bedroom. A was sault, robbery. All and one count armed on the knocked over bed’s headboard. separate counts four on arise from attacks kitchen, the Mrs. eyeglasses C’s and a Defendant, elderly age fifty-three women. glass lay on the drinking broken floor. conviction, at the time of his was sentenced grating protective had knocked been to death for the murders and received off a near the fan kitchen entrance. remaining lengthy prison sentences for the house open top Mrs. C’s coat was at the to Appeal convictions. this court is auto- up pulled and and tucked the underneath 26.15, 31.2(b). matic. We Ariz.R.Crim.P. back, the expos- buttocks and small of the Const, jurisdiction pursuant to Ariz. ing part thighs. strap her A bra VI, 5(3), art. and Ariz.R.Crim.P. § her panties ly- unfastened and found were A.R.S. 13-4031. § top Dentures, ing on of her abdomen. C, apparently belonging to Mrs.

Although Defendant was were convicted body. the capi in found under numerous crimes addition to the offenses, tal appeal his three notices of fail The medical examiner determined that specify exactly ap to which he convictions strangulation, probably Mrs. from C died peals. Because Defendant’s brief does by hand. Her neck was and the bruised challenge non-capital specifically any of the tongue bone at the base of the was broken. convictions, solely we confine ourselves choking up to could have lasted five those issues raised and to a search for injuries There were as minutes. other Schaaf, State v. fundamental error. Cf well, some which would have been fatal strangulation. the had she survived Stab heart, spleen, found in her wounds were FACTS AND PROCEDURAL HISTORY bruising There on and stomach. was also forearms, chest, Beginning May elderly four back both A on the women were assaulted their homes. the back of both hands. bruise neighbor- due a general top probably Three same head was lived in the of the by C’s sternum days perhaps hood and within of each a fist. Mrs. were attacked blow— Following her also fractured. They other. not survive. and nine of ribs were did by attack, could have been caused questioned injuries the third Defendant was These general investigation, kneeling al- the sternum area were part up multiple and down though apparently yet he was not sus- consistent with blows body. Again, a fist could pect. fingerprints Police took Defendant’s side of injuries. Despite by these to the The upper have inflicted trauma sternum. one- clothing, the of Mrs. C’s medical her condition third of sternum was fractured. Such no injury examiner found consistent with an could injury caused a direct kick, sexual assault. punch, by kneeling on the pushing breast bone and it Death inward. linked Evidence Defendant the scene. likely occurred one within minute of the C, belong Hair did not to Mrs. injury. injury, In addition to the fatal Mrs. Defendant’s, clung to a was consistent with L multiple suffered rib and a fractures body on which was found. blanket her contusion to back of head. Also, Defendant knew Mrs. C because yard had work her. done There were also Evidence linked Defendant to this also mur- unusual similarities between this palm print His on the crime scene. attacks, in- der and the other where more body. door frame near the Police also criminating evidence existed. Aside from print a shoe in the dust on the car- found in age likeness victims’ obvious port driveway a “wave” or a “V” among gender, there was also a likeness pattern. wearing Defendant was boots injuries. Mrs. sternum rib C’s pattern with soles that had a similar when were, injuries according to the medical ex- picked early A initially up May.1 he was aminer, very in- “very, similar” those print similar was found on the kitchen Finally, flicted on the second victim. noted, had done floor. As also proximity close of the murders —both tem- yard for this work victim. single poral geographic pointed — perpetrator. VICTIM NO. WMRS. L VICTIM NO. MRS. and, years eighty-one W was old Mrs. others, like the lived herself. She years and seventy-five L was old Mrs. weighed pounds and was five feet nine weighed eighty-nine also alone. She lived 10, 1989, May inches tall. On concerned pounds and was five feet three inches tall. neighbors police they called the because body lying her May On was found day. had Mrs. a The home, not seen W for about hallway face in a her her up with police her in her home. Her found dead extending spare into head a bedroom. living in the room amid body was substan- C, clothing As Mrs. L’s was Mrs. with up right tial face with the clutter. She was Eyeglasses lay askew on her disheveled. leg up. slightly pulled and was bent She face, only The she wore one shoe. and wearing draped A not underwear. curtain nearby other in a bedroom. shoe was found over her abdomen concealed stab wounds. opened partially and Her house dress was sprayed the room with Blood was about waist, exposing legs pulled up to the her Although trails on the wall and curtains. slip was undergarments. Her torn wearing eyeglasses, pair was not Mrs. W up, exposing one pushed her bra breast. was on the kitchen floor. found body, on floor near her Panties were the down. girdle partially and her was rolled determined The medical examiner to death. She suf- that Mrs. W was stabbed The medical examiner estimated neck, day. multiple wounds the Mrs. for about one fered stab L had been dead chest, Although signs of and left forearm. found no obvious examiner fatal, than a there were more injury injury consistent with sexual three were and no wounds, likely inflicted be- fact, such all initially examiner be- dozen assault. the Mrs. Mrs. also suffered “blunt may L have died from fore death. W lieved that face, chest, right examination, Upon injuries force” her causes. further natural by a type injury This is caused however, examiner concluded buttock. medical body body striking the object blunt collapsed from a heart caused that she died arrested, definitely finally made Defendant's boots By whether time Defendant was prints. for test- themselves were available boots ing; impossible to ascertain it was therefore ARREST, TRIAL, striking a of the inju- hard surface. Some AND CONVICTION being ries her face were consistent with A local citizen heard of Mrs. V’s attack hands, knees, wrists, punched. legs, Her police on a scanner. way On the to Mrs. and forearms were bruised. The medical house, spotted V’s this citizen Defendant inju- examiner could not tell whether these carrying a box of food. citizen called ries occurred before after the fatal stab police, who arrested Defendant. The medical found wounds. examiner no trauma consistent sexual assault. V, attacking Defendant admitted Mrs. also Evidence connected Defendant gone explaining he had to her house fingerprints this scene. Numerous identi- looking According for work or food. fied as Defendant’s were discovered Chambers, Detective Michael the officer room, found, living body where the questioned him, who Defendant claimed he places well as other the house. Defen- hungry simply after “went off” prints tin, dant’s were discovered on a food Mrs. V raised her voice. He admitted stab- lamp hood, mantle, fireplace a soda V, bing beating hammer, Mrs. her with a bottle, door, a bathroom and a freezer door. fact, and stealing carefully her food. In On the tile next to the fireplace noted he hit her with the hammer’s room, living police print found a shoe side, flat and not its claw or head. again was similar to the boots Defendant similarity Because to the earlier Finally, parts was known to worn. murders, questioned Chambers also Defen- apple, apparently spit out, an chewed and C, L, dant Mrs. about Mrs. and Mrs. W. were found on the floor next to the fire- recognize did not immediately place fireplace itself. Like the any of in their these victims discussion. victims, other employed Mrs. W had Defen- however, did, recognize He after each yard dant to do work. photographs Chambers showed him their homes. provided Defendant also additional VICTIM NO. MRS. V photographs. information not in the He V, old, eighty years Mrs. discovered De- working admitted for all of the victims in her on August fendant home being any denied ever inside of their homes floor, He instructed Mrs. V to lie the on or confronted killing them. Even when sex, money demanded and and threatened fingerprint with the fact was found to kill her. Defendant also demanded that house, inside Mrs. W’s he still denied ever prepare Mrs. him food he V because was having been inside. hungry. He ate some tacos leftover and and bananas drank soda. He then took jury A guilty found Defendant the of change some and some frozen food from C, L, degree first murders of Mrs. Mrs. and Mrs. freezer and food V’s loaded the into a W; degree burglary Mrs. the first Mrs. Although V, did rape box. he Mrs. he C’s, W’s, residences; Mrs. and Mrs. V’s the repeatedly punched did He assault her. degree second burglary Mrs. L’s resi- thought her in the chest so hard that she dence; attempted the sexual assault literally each blow would her “break” L; robbery Mrs. C Mrs. the and armed repeatedly chest. Defendant also stabbed attempted jury Mrs. murder of V. The Mrs. the neck and chest and beat her V acquitted robbery all Defendant of other on head the with a hammer. charges attempted and also of the sexual Amazingly, Although hearing, Following Mrs. V survived. assault of Mrs. W. very serious, judge aggravating her wounds were none was the trial found cir- two immediately fortuitously statutory Mrs. suf- mitigating fatal. V cumstances and one However, fered from an ailment that her skull the trial did judge caused circumstance. thicken; may helped mitigating this condition have not find the evidence substantial leniency protect enough her from the hammer She to call for and sentenced attack. mur- enough consciousness to call the Defendant death for each of the retained police. ders. The also sentenced Defendant (2) Are on prison years total term of the based the same conduct or

to a are together non-capital otherwise connected their convictions. commission; or alleged part Are to have been of a DISCUSSION plan. or common scheme TRIAL A. ISSUES to sever Motion 13.4 RULE SEVERANCE on grand jury indicted Defendant fif- A In 2 or a. General. Whenever more arising separate felony counts out of teen 2 or more defendants offenses or trial, four Before as well as the attacks. trial, joined for and severance of been cases, presented its the Defen- after state offenses, any any or all or of or all involving the moved to sever counts dant defendants, both, pro- necessary murders, from each three both other the guilt mote fair determination from attack on Mrs. V. court any any innocence of defendant of of- Although motions. Defen- denied these fense, initiative, may the court on its own separate originally sought trials for dant party, shall motion of a order on incident, only that he now claims each severance. such should have severed court trial Right. shall b. As of The defendant arising out of the three murders counts right entitled as of sever offenses arising attempt- from those out of Mrs. V’s joined 13.3(a)(1). only by virtue of Rule ed murder. joinder court held that argues state had an (a)(2). 13.3(a)(1) appropriate under Rule against attempt- him in the “ice-cold” case quite apparent it The facts make count, in Mrs. V testified ed murder which charges were “of the same or similar char to the attack. and Defendant admitted Each involved an attack and beat acter.” contrast, correctly claims that there was alone; living ing elderly of an woman each convincing less evidence in mur- much injuries. of similar See involved infliction Defendant, According to cases. der 715 P.2d 743 Day, State v. strategy to win convictions state’s we that Rule 13.- Because believe murder cases based the weaker 3(a)(1) clearly supports joinder in this more strength attempted murder case. case, 13.3(a)(2). not address Rule we do Thus, by denying his the trial court erred sets of cases. The motion sever two entitled b. Was Defendant asserts, result, a trial so Defendant was to severance? him of fundamentally deprive unfair as points if Defendant out that Rule required by the Fourteenth process due 13.3(a)(1) joinder, the basis for Constitu- Amendment to the United States right matter of as a entitled severance tion. 13.4(b). agree. We do not Rule We under believe, however, failing error of properly joined? a. the counts Were 13.4(b) always Rule will sever under govern and 13.4 Ariz.R.Crim.P. 13.3 If of one the evidence require reversal. These joinder severance of counts. sep in a admissible crime would have been part: provide, in relevant rules others, unlikely it is trial arate for by the prejudice suffered JOINDER RULE 13.3 Day, 148 of severance. court’s denial Cf. is stat- Provided that each a. Offenses. (noting that 494, at 747 Ariz. at 715 P.2d count, 2 or more of- separate in a ed mitigated failing in to sever is prejudice indictment, joined in may an fenses same evidence would because the information, they: complaint, if trials); separate in the been admissible 108, 115, 704 P.2d character; Via, 146 Ariz. v. similar State Are the same or denied, (1985) (same), 475 238, cert. 245 1048, 1268, Roscoe, 212, 216, U.S. 106 S.Ct. 89 L.Ed.2d 577 State 700 (1986). 1312, (1984), denied, 1316 cert. 471 1094, 2169, U.S. 105 S.Ct. 85 L.Ed.2d 525 A on treatise Arizona evidence law notes (1985); 404(b). Thus, see also Ariz.R.Evid. 13.3(a)(1)(“Same Rule that when or similar separate murders, in a the three character”) joinder, is the basis for sever- the attack on Mrs. Y not would be admissi 13.4(b) ance is mandated under Rule even solely to ble show that Defendant’s bad in those cases in which the “similarities are likely character made it more that he com great permit so as to the introduction of evidence, mitted the murders. Such how prove identity perpetrator one to ever, may purposes, be admissible for other Udall, al., of the other.” Morris K. et motive, including “proof opportunity, in 84, Arizona Practice —Law Evidence § tent, preparation, plan, knowledge, identity, (3d 1991)(hereinafter at 184 n. 14 ed. “Ari- or absence of mistake or accident.” Ariz. Evidence”). According zona to the au- 404(b). R.Evid. We believe that the evi thors, however, preju- “there is little risk of attempted dence of the murder was admis joinder joined dice from if the offense “identity” exception. sible under this rule’s permitted would be to be introduced for an evidentiary purpose anyway.” again, Here identity exception to Ariz. agree. we The authors note that 404(b) Arizona applies identity issue, R.Evid. if is in problem by courts have avoided this inter- “and if the behavior of the accused both preting “identity” exception of Ariz. charged the occasion and on some other 404(b) distinctive, sufficiently R.Evid. the same manner as the occasion is then plan” exception— proof “common scheme or that the accused was involved on the prove where there is no severance as a matter of other occasion tends to his involve right. Id. We choose charged.” not to stretch the ment the crime Arizona Evi dence, 84, rule Merely showing to reach the result. Aside from the at 183-84. § themselves, series of crimes there is little that the crimes are of the same nature is any plan bring evidence of scheme or and consid- insufficient conduct within this Instead, Instead, contrary. exception. erable evidence to the pattern and “[t]he. simply any prejudice we look for occa- characteristics crimes must be so sioned the court’s sig failure to sever. and distinctive as to be like a unusual (quoting nature.” Id. at 185 Edward W. Other states have followed a similar al., Cleary et. McCormick on Evidence Miller, course. People v. 50 Cal.3d (3d 1984)); at 559-60 ed. see also § 492, 509, Cal.Rptr. Roscoe, 145 Ariz. at 700 P.2d at 1317. (1990)(cross-admissibility ordinarily dispels therefore, analysis, our we examine the prejudice accompanies inference of differences as well as the similarities counts), denied, joinder of cert. 498 U.S. Jackson, among the crimes. State v. (1991); S.Ct. L.Ed.2d 702 Hall, 103 Wis.2d N.W.2d identity every particular is not “While (1981)(risk prejudice caused required, there must be similarities be by joinder significant of counts is important tween the offenses in those as separate counts would in the be admissible pects expect normally ‘when there could be trials). this, light In we look see ” Roscoe, ed to differences.’ be found attempted the evidence of the murder (quoting Ariz. at separate would have in a been admissible 96). Jackson, 124 Ariz. at 603 P.2d at three for the murders. analysis to the facts of this apply We case. attempted c. the evidence Would murder have been admissible in a matter, preliminary note As a we separate trial the three murders? attempted murder that the evidence rule, course, general go jury. is that to the was sufficient See State Fierro, prove other acts are not “bad admissible (1990). Moreover, perpetrator.” the features of the

the bad character of the murder, compared attempted when to the der was the sexual overtones of the crimes. murders, completed operate evidence, three to set According to the uncontroverted apart from these crimes others of the same Defendant manifested a sexual interest in general variety point single to a assail- during attempted Mrs. V murder. Miller, Cal.Rptr. ant. 790 Likewise, there was evidence that Cf. Although P.2d at 1306. it is true that all perpetrator against of the crimes Mrs. C murderous attacks will share some charac- sexually and Mrs. L also tried to assault teristics, an examination in of the attacks Finally, them. Defendant ate and drank significant this case reveals similarities and V, during gruesome attack on Mrs. an only minor differences. indeed, prints unusual feature and his were found all over food-related items at Mrs.

First, in the victims the two sets of cases W’s house.3 shared distinct characteristics. The most they elderly obvious one is that were all were, course, There differences as addition, In V and the mur- women. Mrs. neighbor- well. Mrs. lived in a “different V in something der victims had else common hood” from the murder victims and was obvious, telling— that was less more Also, attacked three months later. about they yard had all hired Defendant to do victims, unlike the murder Mrs. V was not During work for them. the interview fol- living alone at the time of the attack. Her arrest, lowing his Defendant admitted staying temporarily son was at her house. working knowing and for each of these addition, type In exact extent and women, V, Finally, including Mrs. V. Mrs. injury among Finally, varied the victims. others, roughly the same like the lived difference,” “biggest according to De- area.2 fendant, was that Mrs. survived her at- V Moreover, Mrs. V’s shared dis- attack tack, obviously the others did not. while tinctive features with the murders. Mrs. “pale insignifi- These differences V, victims, the murder like all three of compared Day, cance” to the similarities. every attacked in her home. In case the 148 Ariz. at 715 P.2d at 747. The hand; by attacked the evi- victims were gap three-month time and the different punching probably dence showed neighborhoods significant are not so as to fact, all of the crimes. In two common to evidence, demand exclusion of the at least L) (Mrs. victims C and Mrs. suffered a conjunction not when considered fractured sternum and fractured ribs that connection with each of the Defendant’s punching. such could have been caused Furthermore, victims. because the victims examiner, According to the medical hand, the difference in were attacked broken; inju- easily sternum is not such an magnitude type injury likely due commonly in an ry is found automobile varying amounts of resistance each accident the victim slams into a steer- when reject Finally, flatly victim offered. we ing similarly Mrs. V testified that wheel. anything due to that Mrs. V’s survival was punched her in the chest “about her other than chance. Defendant beat thought so that she each 100 times” hard fists, struck her head severely with his literally would break her chest. blow hammer, chest her with a stabbed punching, to the three of the four addition neck, telephone. then V, disabled victims, multiple including Mrs. suffered that, immediate Evidence indicated absent Multiple stabbing, combined stab wounds. attention, Mrs. V would not have medical beating, manual is an uncom- with severe thickening very long. That she had a similarity lived mon Another be- combination. skull, telephone, attempted mur- of the had another the murders and the tween also found Nothing A soda can with crushed sides was in the record indicates the actual dis- Mrs. C’s son- on the counter at Mrs. C’s house. the various crime scenes. We tance between home, although C in the habit in-law testified that Mrs. was not V’s farther believe that Mrs. south, cans, crushing supporting the of her soda thus considered to be in the same would be contends, area, if, point her attacker also drank at some general idea that even as Defendant neighborhood.” during this murder. in a “different Mrs. V lived probative of help may a ensure that the value the evi- managed to call for have been distinguishing fac- purpose it is not a for the offered is sufficient- miracle—but dence Harding, tor. See State in the context of the case to war- ly great (fortuitous running Evi- rant risk.” Arizona of one victim was insufficient survival 180; v. Tay- dence at see also State § act). prior of prevent admission bad 121, 125, lor, Ariz. among that the similarities We conclude the sufficiently crimes distinct for

the were requirements that these were We believe identity excep evidence to fall within the First, in sufficiently met in this case. re- 404(b). Miller, Ariz.R.Evid. tion of Cf. instruction, the gard precautionary to the 509-10, Cal.Rptr. 790 P.2d at 1306-07 at jury the before delibera- instructed (numerous among murders and similarities tions: men); attempted murders of homosexual charged has been with Hall, (numerous The defendant 307 N.W.2d at 297-99 sim in the counts in among during separate which one crimes various ilarities robberies attempted give one murder occ jury murder and should this indictment. This, urred).4 however, our consideration, does not end sepa- separate and render inquiry. respect to each count. rate verdicts with to have his The defendant is entitled properly d. Did the court act each of the guilt or innocence as to prevent prejudice? charged from his own crimes determined though Even evidence of other ap- and from the evidence which conduct identity exception, fits the crimes within being tried on that plies to him if he were preju might still suffer unfair defendant the defen- jury count alone. If the finds identity jury dice if the uses the evidence guilty beyond dant a reasonable doubt of of Ariz. as character evidence violation charged in the any one of the crimes 404(b). Therefore, 404(a) R.Evid. when indictment, guilty of should be verdict prior of a bad act is admitted returned as to him on that count. The solely identity, is to show the defendant any of the counts guilt or innocence on limiting jury’s entitled to an instruction jury’s charged should not influence the permissible pur evidence to the use of the respecting verdict the other counts. 179; pose. Arizona Evidence See § (“R.T.”) May Reporter’s Transcript 197, 199-200, Canedo, Although this instruction 59-60. (1980). Moreover, impropriety of directly did not address the prior evidence of bad acts is inadmissible prove De- using the other act evidence engender prejudice unfair it would substan character and actions con- fendant’s bad outweighing probative tially its value. character, at least formity it did Thus, Ariz.R.Evid. 403. when such evi jury about the need to consider identity, caution solely dence is admitted to show charge.5 separately on each “special obligation trial court has a to the evidence strangled acquitted robbery person kind who would 4. Defendant was of C], having enough then stab her? and not charges as the [Mrs. in the murder cases as well attempted W. We need sexual assault of Mrs. relying propriety on the ac- not address the that the state has I think the conclusion quitted of this issue. you beginning conduct in our review of this offered to trial, since it, you today, exist. Even without sufficient similarities is that and offered to clearly guilty all assort- is of the defendant with____ charged we have him ed crimes that argued closing: its that the state 5. We note added). R.T., (emphasis May at 54-55 consider, you you just are in continuing ask I instruction on of a In the absence there, evidence, person argument might take a kind would what such the use of the 80-year-old lady interpreted to the side of an as a reference to Defendant’s hammer well be and, go prior pound pound crime ... character as shown and continue to bad jury, goes interpreted much too far person? stab that Is that if so to a knife and See Ariz. having character evidence. capable toward use as person same who inflicted 404(a), (b). judge’s W], light in- R.Evid. the same kind violence on [Mrs. 600 high

Finally, Q. attorney]: do not that the we believe What other [Defendant’s things you would have identity value of this discussed? probative substantially outweighed by the dan- was Well, A. I recall we dis- [Chambers]: prejudice. of unfair ger See Ariz.R.Evid. cussed, attempted to discuss his separate The evidence and dis- He having prison. been in would judge tinct for each count. The also sub- confirm that he had. separate mitted verdict forms tailored to 22, R.T., 1990, (emphasis May at 39-40 count, underscoring further their au- each added). Immediately following this collo- shows, nature. more- tonomous The record quy, defense for a counsel moved mistrial. over, jury judge’s that followed Although question admitting the instructions and the evidence considered “close,” Defendant’s denied mo- Indeed, separately charge. on each tion, commenting in a side-bar conference robbery jury acquitted of all the Defendant “[y]ou question that did ask that and he charges accompanied and theft that gave the answer it.” him acquitted three murders and also prohibited testimony a. theWas attempted Mrs. sexual assault of W. “invited”? sum, on the evidence of the attack that properly The state concedes evi- Mrs. V would been admissible prior dence of criminal record Defendant’s for three murders. separate case was inadmissible in this where Defen- Moreover, ar judge’s the trial instruction Bailey, did not v. testify. dant State 160 use, pro its guably prevented improper its 277, 280, 1130, (1989). 1133 Ariz. substantially out bative value was not however, argues, that The state defense danger prejudice, weighed by the of unfair questions any error. counsel’s invited jury’s the results demonstrate applies “The invited error doctrine proper of the evidence. careful consideration ‘where evidence adduced or to situations Hall, 307 N.W.2d at 298. Find Cf . make party comments made one other prejudice, we ing no hold court’s highly relevant or wise irrelevant evidence er sever was reversible refusal to neither ” require response some rebuttal’ deprivation process. ror nor a of due 455, Woods, Ariz. 687 v. 141 State (1984) (quoting 1210 Pool v. P.2d testimony 2. Detective Chambers’ Court, 98, 103, 677 Ariz. P.2d Superior 139 (1984)). prevents a 266 The doctrine the trial Defendant next contends introducing from forbidden evi defendant it his motion for a court erred when denied seeking and then reversal based on dence police after a detective revealed mistrial We have so its erroneous introduction. impris previously had been See, e.g., held on numerous occasions. trial, testi At Detective Chambers oned. Cook, 40, 52, 821 v. Ariz. P.2d 170 State extensively examina post-arrest to his fied - (1991), denied, U.S. -, 731, 743 cert. During Defendant. cross-examina tion of (1992); 113 S.Ct. 121 L.Ed.2d State following tion, exchange occurred: Stoneman, Ariz. during And Q. attorney]: [Defendant’s (1977). 1340, 1342 To hold otherwise would [interview], hour and did a half [the] simply conviction defendants to avoid allow things all you discuss testimony. eliciting inadmissible Cf. today, talked or were you’ve about Gilreath, things just wer- other discussed but denied, (1971), 406 U.S. cert. important enough to write en’t L.Ed.2d 92 S.Ct. down? purposefully case neither side in this While testimony, we interjected inadmissible be I’m sure we discussed A. [Chambers]: responsibility its introduction in the re- things aren’t lieve other defense counsel. lies with port. however, no

struction, appeal, we find error. objection either at trial or not faced with

601 knew that Chambers b. Was the error Defense counsel fundamental? dur- of Defendant’s criminal record learned When defense counsel unintention post-arrest pre-trial At a ing his interview. error, fun ally “invites” the error must be prosecutor ques- hearing, the voluntariness granted. will damental before relief be this in the about issue tioned Chambers 132, 138, Libberton, Ariz. 141 685 v. State counsel: presence 1284, 1290(1984).6 defense We described P.2d have going error to the fundamental error “as you Q. prosecutor]: At the time [the case or that takes foundation which defendant, interviewing the were right his a essential to from defendant you had made of wheth- been aware defense, magnitude error such history? er or not he had an arrest not possibly could defendant (citations omitted). a fair trial.” Id. had possesses broad The trial court told A. He me [Chambers]: himself of deciding grant in whether to discretion being prison in in California mistrial, so is if and failure to do error Arizona, discuss but he refused v. it was a clear of discretion. State abuse details that with me. 99, 101, 297, Koch, 673 299 138 Ariz. P.2d cases). (1983)(citing deciding In whether 11, added). R.T., 1990, May (emphasis at 49 required mistrial is court should defense pre-trial testimony, Given consider: directly in- question squarely and counsel’s (1) to the whether the remarks called prior reiterate testi- vited Chambers to his they jurors matters that attention mony. considering justified not would be makes much of Detec verdict, determining their experience Chambers’ extensive tive probability jurors, that the under argues any culpability Cham lies with case, particular the circumstances of he should have known bers because by the remarks. were influenced is true response inadmissible. It was 31, 37, Hallman, 668 v. 137 Ariz. State experienced police an officer should 874, (1983), on in P.2d 880 cited and relied general testimony that such is understand 279, 772 at 1132. Bailey, 160 Ariz. at P.2d and, event, any ought to be ly prohibited properly not consider jury Here the could See, e.g., testifying. so admonished before therefore, comment; first Chambers’ 12, 15-16, Brewer, 514 Hallman/Bailey satisfied. prong of 1008, (1973). equally It is prong, we must deter- the second Under true, however, lawyer conduct that an able case, whether, in the context of this mine usually can avoid the ing cross-examination in con- its discretion the trial court abused testimony injection of known inadmissible not influenced cluding jury so narrow, using leading questions. See that Defendant by Chambers’ comment 611(c). not vol Bailey, Ariz.R.Evid. Chambers did denied fair trial. See at at 772 P.2d testimony. broad Ariz. unteer unwanted for posed specifically him called question one short remark The comment was challenged. response now See State Defense tact- very end. counsel the trial’s Fish, 109 Ariz. 508 P.2d objecting in front fully, and without (1973); 104 Ariz. Maggard, State v. a side-bar conference jury, asked for light objec- preserve his his concerns voice testimony and the previous com- focused on the Chambers’ The attention tion. minimized, one nature, any error and no we find question’s broad ment was therefore mention of Defendant’s any made further invited. Arredondo, reversal) (citing Cook, grounds State v. P.2d at 170 Ariz. 6. But cf. (1974)). normally be (noting which that remarks would invited, error, may fundamental 602 jury. 280,

criminal record to the Nor did the 772 P.2d at Photographic evi jury learn of the reasons for Defendant’s dence is helps jury relevant if it the under prior imprisonment or any disputed Second, its duration. stand See issue. Id. 280, Bailey, photos 160 Ariz. at 772 P.2d the passion at 1133. would tend to incite or Moreover, following day judge jury, probative the the in- inflame the their value jury: weighed against structed the must be any preju unfair dice caused admission. Id. Photo give instruction, you I’d like to one it is graphs having tendency no prove part of the instructions that I will disprove any contested issue have little use you case, read to at the end of the its as purpose except usually inflame and follows: Detective testimony Chambers’ Moorman, are not admissible. 154 Ariz. at concerning matters not in contained 586, 687; 744 Chapple, P.2d at 135 Ariz. at report is stricken from the record. You 288, 660 P.2d at 1215. disregard are to such evidence and not your in discuss it deliberations. In photographs this case the were R.T., 23, 1990, May Although relevant. at 4-5. The also Defendant contested later neither the manner of testimony instructed that stricken death nor the identi victims, ty was not of the we jurors to be considered and have held that such that concessions necessarily pho should not do not render be concerned with the reasons tographic evidence for such a decision. inadmissible. See State fleeting Given the 152, 171, Amaya-Ruiz, 166 Ariz. matter, mention 800 of the inadmissible we be- - (1990), denied, 1279 cert. judge’s mitigated lieve the any instructions U.S.-, S.Ct. L.Ed.2d 129 potential prejudice. Correll, See State v. (1991); Chapple, 135 Ariz. at 660 P.2d 468, 477, (1986). 148 Ariz. at 1217. The photographs in this case factors, light of these say we cannot helped explain the state’s witnesses the any prejudice great was so that the See, various wounds and crime scenes. inadvertent admission of this evidence e.g., Amaya-Ruiz, 166 Ariz. at amounted to fundamental error. P.2d at 1279. Inflammatory photographs photographs the Chapple, Unlike in Defendant next claims that the trial photos these were relevant to the issue of admitted, court erred when it over his ob which, perpetrator’s identity, according jection, sixteen photographs color Defendant, “only” was the real issue in murder victims. Defendant does not claim the homicide cases. In each of the four photos merely inflammatory; were varying degrees cases there were of in argues they he instead that were irrelevant criminating evidence. The similarities of and inadmissible because conceded ev (as the attacks and wounds shown in both erything except that he was the killer. As autopsy photos) the crime scene and made support Chap Defendant relies on State v. likely it more that Defendant committed (it pie, 660 P.2d 1208 Roscoe, each crime. 145 Ariz. at Cf. is error to admit inflammatory photographs (finding 700 P.2d at 1323 no abuse of dis unrelated to the contested issue in the admitting photo cretion in sim showed case). ilarity prior between a bad act and the offense). charged The trial court has discretion to photographs admit challenged and will not be reversed Defendant also the state’s C, L, absent a clear abuse of that discretion. contention that Mrs. Mrs. and Mrs. W Bailey, attempted 160 Ariz. at 772 P.2d at 1133. victims of an sexual were as- counsel, case, two-part employed A test to determine sault. Defense each photographic whether evidence is examiner admissi cross-examined medical about Id.; Moorman, support- physical ble. see also 154 the absence of- ing attempted charges sexual assault First, photographs argued closing the lack of must be relevant to such acquittal an issue in Ariz. at to an Bailey, the case. evidence entitled Defendant Thus, depict dant neither his own instruction charges. photos offered on these objected given. ar and the nor one ing position of the bodies particular rangement clothing were argues jury Analogous facts were absent ly important. very process it “misinformed about Therefore, find we cannot Chapple. given in” in- engage to because the [was] by his discretion judge abused that the jury to inform the that struction “fail[ed] probative concluding photographs’ inferring circumstantial evidence involves danger of outweighed any unfair value Defendant, fact from another.” how- one by admission. prejudice created their ever, proposi- authority for this cites no 170, 800 P.2d at 166 Ariz. at Amaya-Ruiz, argues that it even tion.7 He also 280-81, Ariz. at 1278; Bailey, 160 at 772 significant jury told that more the no error. 1183-34. There was only two conclusions that could there were evidence, from the circumstantial drawn be 4. evidence instruc- Circumstantial According or innocence.” to Defen- “guilt tion dant, “metaphysical a concept” innocence argues that the trial next Defendant jury, is of no concern to the the by giv- error committed fundamental court true the evidence only question is whether following ing the instruction: beyond guilt a reason- shows Defendant’s may by A proved fact be either direct again no cites au- able doubt. Defendant Direct circumstantial evidence. evidence thority. one actu- testimony

is the of who asserts Normally, object to to a failure fact, knowledge eye- as al of a such an precludes a later claim of jury instruction witness; proof evidence is circumstantial 419, 424, King, v. 158 Ariz. error. State indi- set of facts and circumstances 239, (1988); Hunter, P.2d 244 763 State v. guilt cating the or innocence of a defen- 88, 90, (1984); Ariz. P.2d 142 688 982 The makes distinction be- dant. law no 21.3(c). Ariz.R.Crim.P. We will therefore weight given to either tween be only King, for fundamental error. reverse evidence; it re- or circumstantial direct 244; Hunter, 158 Ariz. at 763 P.2d weighing quires that after all Ariz. P.2d at 982. 142 688 you guilt evidence be convinced beyond a reasonable doubt the defendant no distinc Arizona law makes he can be convicted. before and direct evi tion between circumstantial jury contends that the should Defendant 386, 391, Harvill, 106 Ariz. dence. State instructed follows: been (1970). P.2d 846 Defendant does can divided into direct and Evidence be object giving of an instruction on Direct evidence. evidence circumstantial to the form of the matter but rather this of a an testimony is the witness saw Although given. the instruc instruction Circumstantial evidence is event. clarity, was not a model of we believe tion proof from which the existence fact that, whole, adequately it stated taken as may You inferred. of another fact be fact, told the law.8 In the instruction weight given to be must determine distinction law makes no jury “[t]he regard without to wheth- all the evidence given weight to either to be between er is direct or circumstantial. it evidence; it re direct or circumstantial instruction, weighing all quires only offered the latter state after guilt you Defen- be convinced it as “covered.” the. refused (“MARJI”) Clark, of- no. 207. instruction Cases 475 F.2d 7. But United States Cf. (2d Cir.1973) (finding cir- an erroneous is identical Recommended the state fered instruction, together ("RAJI") (Criminal) Jury cumstantial evidence Instructions Arizona instructions, required reversal other erroneous argues that the RAJI instruc- 24. no. Defendant objection). despite the absence of "obsolete.” instruction effect, made the MARJI tion any, RAJI no. what do not address We County Maricopa mirrors instruction This 24 had on MARJI no. Jury For Criminal Instructions Recommended beyond a reasonable doubt 2. Eighth Amendment defendant R.T., May he can convicted.” before 1990 at 59 argues also that Ari (emphasis added). Therefore we scheme, penalty zona’s death taken as a occurred, find that even if error it was not whole, Eighth violates the Amendment Duarte, fundamental. State v. Cf. failing genuinely narrow the class of 230, 232, persons eligible penalty. for the death We (finding no fundamental error in an errone- recently rejected have also argument. ous instruction where the sentence immedi- Spencer, 36, 45, See State v. 176 Ariz. ately preceding it set out the state’s burden (1993); State v. Landrigan, proof). We need not revisit the issue. reject We also argument Defendant’s concerning the use of the word “inno- C. SENTENCING ISSUES cence.” Elsewhere judge clearly laid capital out the relative In all proof. burdens of cases this court He stat- inde pendently ed: reviews the record to determine whether the appropriate. death sentence is require law does not a defendant Hill, 313, 326, State v. 174 Ariz. 848 P.2d prove presumed innocence. He is - 1375, (1993), denied, 1388 cert. U.S. by law to be innocent. This means the -, 268, (1993); 114 S.Ct. 126 L.Ed.2d 219 prove state must all against its case Gretzler, 42, 54, 57, State v. 135 Ariz. 659 the defendant. 1, 13, (1983), denied, P.2d 16 cert. 461 U.S. R.T., 23, 1990, May added). (emphasis 57 971, 2444, (1983). 103 S.Ct. 77 L.Ed.2d 1327 however, judge, stop did not there. “Thus, sentencing hearing we review the He went explain exactly on to what it aggravating mitigating and the circum prove meant to the state’s case: proper procedures stances to ensure that proper were followed and the factors deter prove The state must the defendant Hill, weighed.” mined and 174 Ariz. at guilty beyond a reasonable doubt. case, 848 P.2d at In 1388. this throughout The burden the trial is al- judge sentencing considered the trial and ways prove on the state to not only all of evidence, presentence report, counsel’s crime, the elements of the but also the sentencing memoranda, and several letters identity person who committed the and articles. We now undertake our re crime, beyond a reasonable doubt. The view of this evidence. burden never shifts. 1. Aggravating

R.T., 23, 1990, May judge, at 57-58. The factors therefore, concept moved the from the me- judge separate ag The trial held a taphysical to the real In light world. gravation-mitigation hearing and returned this, again we find no fundamental error. 13-703(B), special verdict. See A.R.S. §§ (D). statutory aggra The court found two B. GENERAL CONSTITUTIONAL IS- (1) vating pre factors: Defendant had been SUES (the viously convicted of another offense other murder previous counts and a rob Equal protection claim bery) the United States for which argues imprisonment Defendant that his Four sentence of life or death equal protection law, right imposed teenth Amendment could be under Arizona 703(F)(1); was violated when the him denied a A.R.S. § 13— jury aggrava especially trial on existence of the committed each murder in an heinous, cruel, manner, ting rejected recently depraved factors. This court A.R.S. 13-703(F)(6). argument. Spencer, v. Defendant contests See State § 36, 45, 146,155 (1993); finding. light holding Ariz. 859 P.2d the second of our State Landrigan, judge improperly interpreted that the trial (1993). misapprehended significant mitigating We need not revisit the issue. (1991) (Corcoran, J., sufficiently to call for substantial - denied, cert. concurring), weighing process, see A.R.S. specially U.S. leniency in the prolong -, 117 L.Ed.2d 439 13-703(E), unnecessary to 112 S.Ct. it is § Fulminante, evidentiary (1992); repeating the this review aff'd, (1988), Proce- facts set forth ante in “Facts and say it to History.” Suffice 113 L.Ed.2d 302 dural 111 S.Ct. U.S. pain suffered terrible must have victims held that We have beatings stabbings. We during the penalty requires the death gravity that the evidence estab- conclude therefore painstakingly examine the record that we beyond a reasonable doubt lished it has errone- to determine whether been 13-703(F)(6) aggravating circumstance § Furthermore, ously imposed. because present. out the factors which sets statute] [our by must found and considered Mitigating factors court, necessarily under- sentencing we Defendant’s judge found that The trial independent of the facts take an review re- his conduct to the capacity to conform presence or absence of that establish the significantly im- quirements of law was mitigating circum- aggravating that Defen- paired, rejected the claim but for our- We must determine stances. wrongful- appreciate to capacity dant’s outweigh latter the former selves He con- of his conduct was affected. ness present. to when we find both be mitigating this evidence cluded Richmond, 560 v. 114 Ariz. State outweigh aggravating not sufficient to omitted), cert. 41, (1976) (citations P.2d 51 nothing and that there was circumstances denied, 2988, 915, 53 433 U.S. 97 S.Ct. leniency. call for presented else would (1977). L.Ed.2d 1101 imposed then the death The trial for each murder. sentence duty indepen Pursuant to our review, the entire dent we have examined Propriety the death sentences of Defendant’s We find the issue record. ap During the course of aspect pivotal a psychiatric condition to be nor the state ad peal, neither Defendant case, sentencing process in this psychiat the issue of Defendant’s dressed impossible ignore. to We would one that is condition, though the issue was ric even such failed to consider remiss if we be note, in the trial court. We how addressed par solely crucial information because l.9 ever, sentencing judge duty to that a has argue appea it on ties did not “any aspect of the defendant’s consider task are sometimes Faced with this we any or record and circumstance character a death sentence upon called to reduce determining the offense relevant in cases where the imprisonment even life may death a sentence less than whether im- tragedy aggravated and facts are West, v. Ariz. appropriate.” State 176 Mauro, See, e.g., v. 159 Ariz. State mense. McCall, (1993) citing State 192 (re- 186, 207-08, 766 P.2d (1983), defendant’s ducing because of sentence denied, 104 S.Ct. cert. 467 U.S. brutally illness where defendant court, turn, mental in This 81 L.Ed.2d son). Three men- seven-year-old killed his support duty not to review the has a in Defendant experts evaluated tal health findings also trial court’s for the by were retained present case: two propri independently review the sentence’s now one the state. We Defendant and P.2d at ety. Spencer, 176 Ariz. at of each. White, 500, 520-21, the assessment consider 152; replete with argued appeal, the record is sponte suggests this court is sua The dissent concerning supported by qualified experts creating "psychological given theories P.2d at 903. Post at the evidence.” psychological condition. Defendant’s Although was not the issue is incorrect. This a. internal conflicts Dr. Tatro and environmental personality stresses. The disorder that Tatro, psychologist Dr. Donald retained ap- case evidence Mr. Stuard’s counsel, by defense examined one, pears combining to be a mixed his- twenty-three page report, In a Dr. first. trionic, paranoid, and narcissistic traits. his Tatro described detail the results of examination, and concluded that Defendant report at 18. The also revealed a trou- Id. personality from a disor- suffered “serious childhood, a ma- including the lack of bled He stated: der.” father, upbringing, an and an ternal absent would, oppressive grandmother for ex- who Stuard, thus, Mr. is a man The adult ample, force Defendant and his brother very who is out of touch with his own “get whip naked” each other with less-than-positive He characteristics. strap” punishment.10 Dr. Tatro “razor recognize short- does not his intellectual IQ also determined Defendant’s verbal comings. He is his own not aware of (73) was toward the end of the low border- socially unacceptable and sexual hostile range, step is “just line which one above He himself as impulses. does not see mentally range.” retarded having motives other than the ones high-blown, fit his estimate fault-free disorder, personality to a Dr. addition failings He himself. cannot admit inferred had sus- Tatro also that Defendant kind, failings that are any cognitive even organic damage tained brain as a result to the obvious casual observer. boxing career. He stated:

Intelligence-test that Mr. indications build, however, may impair- When the stresses have suffered some Stuard impulses intensify, higher cognitive in- negative begin to ment of earlier levels of functioning possible is recognizing question of it is he who raise the of stead feeling negative, damage resulting look of from his career the surface brain changes negative prizefighter. damage him in is a things about a as a Brain poison consequence inner lengthy direction. It is as if an common of involve- up spills sport the outer in is the object over onto ment a where the builds him, oppo- pummeling the world and all of of the skin of around continual violent excluding surprising, in him and the head. It not objects nent’s was it— therefore, handling him- of people image he in his of when Mr. includes Stuard’s His Test malignant coloration. Bender Visual-Motor Gestalt self—take malig- correspondingly turned out to be consistent with mood becomes also nant, damage. object organic he as the since sees himself likelihood brain around him. He negativity of all of Importantly, Dr. Tatro sur- Id. at 10-11. in a respond more to is much inclined con- organicity “may mised hostile, aggressive people way to when to the that were both stresses tributed kind of descends over the this murkiness to the building up in life and [Defendant’s] typically reacts. surfaces to which he that, up till this late weakening of defenses contin- Report at 13-14. Dr. Tatro Tatro life, had success- in his point [Defendant] ued: Ac- keep repressed____” fully employed there is shape cordingly, Dr. Tatro concluded that give The defensive habits which possibility organic brain personality strong un- Mr. are best a Stuard’s signifi- person- damage “may have contributed as of serious derstood indications acting-out vio- disorder, maladaptive, cantly usu- ality which is [Defendant’s] added). He (Emphasis coping impulses.” ally longstanding, pattern lent regarding family, im- replete questions Defendant report that De- his is with evidence offering mediately "[h]is noted “balked.” Dr. Tatro purposefully fendant was fact, manner, throughout, very guarded ... and finding mitigation. it to a favorable prob- any suggestion of to avoid his trou- he seemed set appears tried to conceal that Defendant Tatro ones.” giving char- between him his loved background to what he lems bled avoid Report "degrading” picture. When asked at 5. as a acterized placed be tested recommended Defendant Defendant “borderline range,” to determine full scale score being further whether his in the suffering percent population. from a known as condition bottom four “organic personality syndrome.” c. Dr. Scialli sentencing testimony Dr. Tatro’s report respects. his in most How- tracked Scialli, retained Dr. John a state V. ever, reviewing from the after the results psychiatrist, who also examined Defendant. (discussed below), subsequent examinations others, testing Like the Dr. Scialli’s also agreed diagnosis initial revised indicated that Defendant had “serious expert with the state’s that Defendant was He damage.” brain concluded that Defen- “dementia,” suffering from a in fact relat- from dant suffered “dementia.” At the more ed serious ailment. Dr. Tatro hearing, sentencing Dr. Scialli described adhered to his initial belief nevertheless as: dementia damaged that Defendant was brain —a neuropsychiatric a condition. The cause finding expert that the state’s not dis- did damage, brain of which is either from a pute ultimately confirmed. cause or from a known cause which suspected highly likely and most be a b. Dr. Blackwood damage. cause of brain Dementia is a Defense counsel H. Daniel retained Dr. encompasses term that dif- number of Blackwood, a clinical neuropsychologist, to symptoms and general ferent refers to a follow-up diagnosis. on Dr. Tatro’s Dr. acquired defect different brain func- suspi- Blackwood confirmed Dr. Tatro’s may reasoning which tions ... include that Defendant organic cions had brain judgment, memory, con- impulse dysfunction: trol, expression personality. These results Dr. serve to confirm R.T., 26,1990, response Nov. at 15.11 In Tatro’s concern brain organic about questioning regarding how Defendant’s dysfunction complicating factor may mental illness have affected him dur- presentation. Mr. Stuard’s The current attacks, ing one of the Dr. Scialli testified specific suggest test results do not that etiology dysfunc- for Mr. Stuard’s brain victim, when a his im- confronted Developmental his tion. factors and ca- tenuous, pulse control is so hair so reer as a boxer as Mr. described dementia, impaired triggered, by his certainly and Dr. ac- Stuard Tatro could have, suspect, that he would I would count for the current results. rage not into at the time and flown upon the Based information available situation that with handled a someone me, I have no that Mr. reason to think reasoning ability might more han- mental time of Stuard’s condition at the considerably dled less force. any than it is his offenses different (emphasis added). Id. at When asked clearly at this time. He does suffer explain “rage,” this Dr. Scialli testified: general- deficiency mental and from dysfunction. brain ized as associated rage The with dementia added). Report (emphasis provoked by at 4-5 those that are typically Blackwood is Tatro, IQ testing things might Dr. in provoke rage Like Dr. Blackwood’s which not Moreover, correctly contrary impli- - -, 206, R.T., 26, 20; U.S. 113 S.Ct. 121 L.Ed.2d tro’s Nov. assessment. 1990 at proposition of for the that evidence Report Scialli at 9. required impairment is before causation mental significant mitigating fac can be considered implications, Contrary post 14. to the dissent's at agree. tor. Post at Here, We and P.2d at 904 and Scialli, expert, the state’s own "I Dr. stated testimony is we believe this evidence that pre-meditated do not believe he murder. Rath murders, impairment predated the Stuard’s and er, Dementia, suddenly he due to his reacted and they were therefore existed when committed. overwhelmingly when he and was confronted Moreover, stated, my opinion "It is Dr. Scialli Report his victims.” Scialli at 10 confronted dysfunction] brain has existed [Stuard’s Moreover, added). (emphasis Dr. Scialli sus time, including period some the time around his pected memory impair that Stuard’s short-term presentation arrest. I base this on his not to “‘learn from his mis ment caused him day videotaped press his ar- conference of proceeded days takes’ and within to use answer rest. His confusion and reluctance to operandi, same modus encounter the same situ questions some to that which he dem- is similar way." in the Scialli ation and over-react same him.” Scialli Re- onstrated when I interviewed part company Report sent, however, 11. We the dis with report, port at 3. Dr. Blackwood’s ante See also implies insofar as it that Defen 3(b). proof infallible § While there is no fully control his actions. Post at dant could murders, impairment avail- at the time of the all weight of P.2d at 905. This contradicts the evidence, impaired, he was explicit able evidence indicates that as the trial as well court’s finding. and otherwise. special verdict at none indicates See (3d 1987) ed. impaired as to constitute a defense al Mental Disorders rev. so (“DSM-III-R”).15 The illness is character- prosecution. ized, part, by (citations omitted) Special verdict at impairment long-term in short- and mem- added). (emphasis ory, impairment associated in ab- with findings agree judge’s the trial We thinking, impaired judgment, stract other capacity to conform his that Defendant’s function, higher disturbances of cortical requirements to the of law was conduct change. personality or The disturbance However, significantly impaired. A.R.S. enough significant- is to interfere severe 13-703(G)(1) disjunctive is in the written § ly or usual social with work activities presence one of requires and relationships with others. significant impairment the two elements— capacity appreciate capacity Rossi, conform. See State v. Impaired judgment impulse and con- (1987); 251, 741 P.2d Rich- commonly trol are also observed. mond, 114 Ariz. at 560 P.2d at 52. language, inappropriate jokes, ne- Coarse Therefore, statutory conclude that the we personal appearance hy- glect of 13-703(G)(1) mitigating factor of A.R.S. § giene, general disregard for the Rossi, 154 Ariz. at was established. See rules of social conduct are conventional P.2d at 1229. judgment poor im- evidence of bad previously A cautious pulse control. judge explicitly state in The trial did not may a reck- businesswoman embark on any miti- special verdict that he found elderly An man less business venture. gating factors to exist. Neither did may ad- who never married make sexual (G)(1) specify all did not factor strangers. may A vances to retiree language conclude from exist. We considering shoplift without the conse- judge proba- the trial that he most used quences. impairment judg- Marked 13-703(G)(1) bly despite found his failure § impulse particu- control ment and believe, however, say so. We larly characteristic certain Dementi- judge give weight did not sufficient primarily that affect the frontal weighing psychiatric testimony in the lobes.16 process. added). (emphasis Id. at 103-04 judge’s The trial conclusion that Defen- (see any dant did not suffer mental The evidence described ‘from 3(a) (c)) plainly incorrect. indicates that the con illness or disease” is ante §§ diagnosed by illness undisputed and unanimous evidence ditions and mental significant factors significant experts had or- were causative showed that Defendant conclude that this miti ganic damage and suffered from de- of the crimes. We brain given the significant gating men- has not been recognized mentia—a weight Asso- it merits. Even the trial Psychiatric tal illness. American See finding 13- ciation, pursuant made a to A.R.S. Diagnostic and Manu- § Statistical referring argues "leading he stated that Defendant did authorities” to when 15. The dissent or do not characterize dementia as an "illness” disease. from a mental illness or not suffer 612, While "disease.” Post at 863 P.2d at 904. occasionally to even eminent scholars refer only demen- dissent focuses on one of 16. The "disease,” see, e.g., some forms of dementia as a memory memory While tia’s features: loss. Sadock, Benjamin Kaplan Com- Harold I. J. dementia, it is not its loss is a central feature of 1989) (5th Psychiatry prehensive ed. Textbook of feature, any implication to the con- 224, properly agree at we that dementia is more testimony trary incorrect. See Dr. Scialli’s is a "dis- to as a “mental disorder” than referred 3(c); Al- see also DSM-III-R at 103. ante § attempt a We do not to draw ease.” Id. at 604. case, though memory this loss is relevant to this "dis- the terms technical distinction between other fea- we should overlook does not mean tures, "disorder”; instead we use ease" or "illness” impaired judgment and lack such as opinion in its non- in this the term "illness" control, relevant impulse are those most which this do we believe that technical sense. Nor case. to this distinction is what the trial technical 610 Brookover, 207-08, 80-81; 124

703(G)(1), duty this affect our to 766 P.2d does not at Doss, independent 42, 1326; propri review of the Ariz. at 601 P.2d at v. make an State See, 1054, 156, 162, death 568 1060 ety e.g., sentence. State Ariz. P.2d 459-60, Jimenez, 444, (1977). 165 Ariz. v. 785, (1990); Mauro, 159 Ariz. at mitigating in this case the evi- Because 207-08, 80-81; 766 P.2d at Brook State v. homicides, all we applied dence to three 42, over, P.2d 1326 reduce for the first the three sentences (1979). judge’s The dissent notes the trial pris- degree murders from death to life study post of the record. careful See However, ill- on. of the mental because true, this P.2d at While is it 906. obviously ness which affects Defendant he law re settled that Arizona also is well dangerous to to very is and continue be will justice this court to do in death quires Therefore, others. each of the sentences cases, including necessary, substituting other consecutively to be to each served judgment judge, for that of its by prison and to terms be followed any “something anathema other con convictions, imposed the other so for Salazar, Ariz. text.” State never be released. Defendant will (Martone, J. specially way the se- holding Our in no discounts - denied, concurring) (1992), cert. U.S. Instead, verity tragedy of crimes. or these

-, 113 S.Ct. 125 L.Ed.2d 707 to consider because we are bound law (1993). evidence, must significant mitigating we question sentencing no There is here penalty inappropriate hold death accompanying reports pro- hearing and men- organically-caused where Defendant’s mitigating appli- duced substantial significant a causative tal illness was such degree all first murders. to three cable Bible, factor. Cf. sentencing require statute does Our 858 P.2d 1152 ag- mitigating to “outnumber” the factors to avoid death sen- gravating factors CONCLUSION 13-703(E). miti- tence. See A.R.S. “One § the rec- independently We have reviewed circumstance, example may for gating ord for error on all counts fundamental ‘sufficiently outweigh two substantial’ convicted, and have which Defendant Brookover, 124 aggravating factors.” affirm of Defendant’s found none. We all Ariz. at 601 P.2d at reduce three convictions. We Defendant’s carefully considering all of evi- After sentences, death to three life sentences dence, that Defendant’s men- we conclude for possibility parole each without impairment, included severe or- tal which pursuant A.R.S. twenty-five years, dementia, resulting an damage, ganic brain (E). 13-703(A) life sentences' These §§ retarded, and, according IQ bordering on consecutively, followed are to be served disorder, Tatro, personality Dr. serious prison sentences-.imposed in the non- mitigating fac- only a “was not substantial capital cases. case, major contributing in this tor ‘sufficiently that was cause of his conduct V.C.J., ZLAKET, J., MOELLER, outweigh aggravating substantial’ LANKFORD, Judge, concur. Jimenez, 165 Ariz. at present.” factors CORCORAN, J., participate did not The lack motive Const, decision; art. pursuant Ariz. explanation reason any other discemable L. VI, Honorable JEFFERSON § our conclu- killings these reinforces Divi- Appeals, the Court of LANKFORD of required. Leniency is therefore sions. designated in his stead. One, to sit sion Herrera, 174 Ariz. See, e.g., State v. Jimenez, (1993); Justice, MARTONE, dissenting. 459-60, 800-01; at Ariz. at the court’s 15-16, support not Rockwell, The record does of death. I Mauro, the sentence decision to vacate (1989); 159 Ariz. at agree do not with the court’s tors psychosis. characteriza- found Their tests collec- findings tively tion of the of the trial or that revealed the defendant had understanding opin- IQ with the court’s the memory impairment. of low More- over, expert the ions of three witnesses. More there nowas consensus that defi- the importantly, agree ciency crimes, I do not the slim existed at the of time the role, impairment evidence of and even certainty defendant’s out- less as to the weighed significant any, aggravating deficiency the the in played fac- the crimes. However, tors in this case. the doctors did discuss na- ture impairment of the defendant’s court first The describes scant evidence concluded that he did lose not contact with as crucial information and then reasons reality and was able to understand slight outweighs that this the two wrongfulness of his conduct. significant aggravating But factors. nei- experts ther the defendant nor his consid- Dr. Tatro concluded that the defendant slight ered this evidence to be crucial infor- had personality “mixed disorder: narcissis- mation. The defendant never raised the tic, histrionic, paranoid features.” Ta- question impairment of in his or brief at report tro suggested at He also argument. power independent oral Our might there an organic personality syn- does not sponte review extend to the sua drome. He said: psychological sup- creation theories not This suggest is not to that Mr. Stuard ported by the evidence. gets reality so off from cut that he does doing not know what he is or that what Special 1. The Verdict doing wrong he is is the eyes of soci- trial judge found “that while the ety, law, general, in particular. defendant suffers from some mental defi- Again, there is no indication that Mr. generalized ciency dysfunction brain psychotic Stuard is now that he has compromises ability respond which his to past. been in the effectively to the events in environ- his ment, impair it does not significantly his Id. at 20. to capacity appreciate the wrongfulness of addition, In Dr. Tatro did not think his Special his conduct.” verdict at He also tests diagnose were sufficient organic to capacity

found defendant’s “[t]he damage. this, brain He merely inferred id. appreciate wrongfulness of his conduct and thus recommended ex- “further affected, although capacity not his amination be done to confirm either or rule requirements conform his conduct to the out the form existence of mental significantly impaired, law was not so but at 22. defect.” Id. impaired as to constitute a defense prosecution.” words, Id. at 9. In other discussing whether im- the unverified G(l) the judge statutory found that pairment played a role in the defendant’s existed, mitigating factor but that it was crimes, commission of Dr. Tatro said sufficiently outweigh substantial to difficult assess what role “[i]t aggravating at 10. circumstances. Id. organicity that is Mr. evident Stuard’s responses may played test in the com- Experts 2. The mission of the crimes he committed.” Id. A at 21. review of the evaluations the three

experts shows that has some the defendant of Dr. report Scialli concluded that: impairment memory. Drs. Scialli and neurological testing my opinion Tatro recommended It is the time of the appreciate and a scan or MRI to wheth- crimes CT determine Mr. Stuard was able to er damage. wrongfulness the defendant had brain These of his conduct. How- Thus, performed. ability tests never it re- ever conform his were ... con- requirements duct mains unconfirmed whether defendant has to the the law was im- organic damage. significantly impaired brain the doc- not so None of defendant, pros- paired as to constitute a defense to all he did psy- was administer chological ecution. He not diagnose tests. did the having damage. defendant as brain He report at 1. Scialli simply intelligence stated that tests indicat- did Dr. Scialli believe that defendant had “may ed the defendant have suffered dementia, dys- presumably organic brain impairment of higher some earlier levels of He described the condition as function. cognitive functioning that raise the [sic] memory impairment. Importantly, he stat- question possible damage.” of brain Tatro way of knowing that he had no whether ed report diagnosis at Dr. 10. Tatro’s final at dementia existed the time of the the personality was “mixed disorder.” Id. at of the three murders. Id. at commission 3. already 23. But we a “per- held that conclusion, In order to reach this he would sonality disorder alone is insufficient neurologi- scan need brain imaging mitigating constitute circumstance." at cal consultation. Id. Brewer, State v. disagreed Dr. Dr. Scialli Tatro’s di- P.2d organic personality agnosis syndrome. of court characterizes trial court’s disagreed He also with Dr. Tatro’s conclu- conclusion not defendant did suf- that the defendant had some loss of sion fer from a mental illness or disease reality “[njeither Dr. contact. He said Ta- Ante, “incorrect.” at 863 P.2d at 901. description his tro’s of conversation with leading But state that authorities dementia my experience support Mr. Stuard nor own is not a mental illness disease: Indeed, at 9. Dr. Scialli this.” Id. said: Both dementia delirium are included summary, regarding Dr. re- Tatro’s diagnostic general category under the of port, Mr. imply he seems to Stuard syndromes. But the term organic brain appreciate wrongfulness could not useful, particularly nonspe- is not for it is conduct, justified his and felt in commit- conveys cific and little information about ting “paranoid the crimes due to a the conditions it is meant to describe. I disagree stance.” with this. at 10. Id. Instead, Dr. “Mr. Stuard Scialli said did are Dementia and delirium not diseases. appreciate wrongfulness of his conduct. Waldinger, Psychiatry Robert J. Medi- extent, he To a certain also exercised his (1984)(emphasis origi- cal Students comply not to with the law.” Id. choice nal). Dr. concluded that the defen- Blackwood Nor de- does the DSM-III-R characterize deficiency generalized mental

dants Psychi- mentia as an illness. American See dysfunction significantly would not brain Association, atric Statisti- Diagnostic and impair capacity appreciate his cal Manual Mental Disorders conduct, wrongfulness of af- his but could (3d 1987). rev. ed. ability his fect to conform conduct to dementia, if as the Even Stuard had requirements of the law. Blackwood notes, ante, at n. P.2d at court report at 5. 11, it to moderate. More- 899 n. was mild Impairment over, said: Dr. Scialli present knowing at way I have no questions weight the trial court existed at the time of the testimony. this Dementia psychiatric accorded the Ante, commission of three murders. judge’s evalua- at 38. But the trial re- evidence and the doctors’ tion suggests Dr. report 3. The court Scialli at ports was accurate. murders ... were Scialli found that “the impair- result of his mental Tatro, psychologist, and not the unfortunate Dr. a clinical Ante, 900. But doctor, pretend to be in ment.” a medical did not conclusion, Dr. organic Scial- diagnosing brain this is the court’s the business equivocated question li’s. He his interview of the injuries. Other than ty point, acknowledged At one he causation. control his actions. For example, exactly he did police that not know what caused after the neighborhood secured the during defendant to act the occurred, the course of where the three murders the homicides. R.T. 1990 at rampage stopped. the Nov. Stuard waited three point at another said But he due months to and again strike did so in an “[r]ather dementia, his entirely neighborhood. reacted different The doc- [the defendant] suddenly overwhelmingly agree and when he con- tors appreciated wrongfulness he the by and fronted was confronted his vic- of his that conduct and he did not lose Report light tims.” Scialli reality. at touch with testimony, judge trial equivocal the was in position best one the to choose version over 4. Weighing court, instead, This relies another. on But if impaired, even defendant were and part testimony that of the Scialli that sup- even if there were evidence that he

ports its conclusion. impaired crimes, at the time of the We have said that the exis- if causation, even there were evidence of a tence disorder is insufficient. “It does we still against aggrava- must balance that, prove crimes, at the time of the ting judge factors. The trial heard the the disorder controlled defendant’s conduct did not. The witnesses —we impaired capacity his mental to such a presided aggravation/mitigation over the degree required.” Brewer, leniency is hearing did He thoughtfully not. con- —we Ariz. at at 802. We also cluded that whatever the nature of the recognized mitigating strength condition, defendant’s it require did not le- impairment depends upon degree the is, niency in this case. That it was insuffi- impairment. nature of the “Such condi- significant cient outweigh aggrava- slow, degree tions differ in from a dull ting factors. damaged judgement brain defendant whose marginal____ rationality are Mental agree I judge. with the trial He found impairments greater have a mitigating far aggravating two factors. defendant they may effect because evidence an inabil- did validity not contest 13- § ity of the defendant to control his 703(F)(1) And, conduct.” per- factor. the court is so Thus, at Id. at 802. assum- by suaded the second factor—that his mur- ing that defendant indeed suffers heinous, from de- ders especially were cruel or de- mentia, a primarily inhibiting disorder praved “it says unnecessary it —that review____ memory, what is its effect? prolong this Suffice say it to that each victim must have suffered terri- whether, In Brewer we despite evaluated pain during beatings stabbings ble defendant’s impairment —borderline Ante, they endured.” 863 P.2d at personality disorder—he could control his 897. But this understates the horror and under precip- actions. We noted that ghastliness multiple murders Stuard itating homicide, stress of the Brewer’s frail, elderly committed. The victims en- impairment compromised ability his to rea- dured They torturous deaths. were anger. son he lashed out Id. choked, stabbed, beaten to death However, 826 P.2d at 803. we found then arranged former boxer. He each possessed ability restrain corpse perverse display. into a and morbid himself, wrongfulness understood the conduct, lose his and did not touch with judge carefully weighed The trial reality. his disorder We concluded that did enormity of the defendant’s atrocities leniency. not warrant Id. against his mental and concluded condition tipped overwhelmingly The effect of dementia on Stuard resem- the scale on the personality of aggravating effect of borderline side circumstances. Even bles Stuard, suggest disorder on Even like the defendant does not otherwise Brewer. Brewer, enraged appeal. brutally when confronted mur- became defendant victims, displayed dered defenseless elderly, he still some abili- three women. he did it shows cruel-

The manner which depravity in the extreme. ty and obligation an to ensure We have imposed is not an arbi- death sentence way. Furman v. trary and freakish Geor- S.Ct. 408 U.S. gia, (1972); Florida, L.Ed.2d 346 Proffit 242, 252-53, 428 U.S. 96 S.Ct. of no We are aware 49 L.Ed.2d dementia, primari- a condition case which memory, held to ly affecting has been aggrava- outweigh sufficient to substantial arbitrary impose ting It is factors.11 relieve the defen- on others and then death sentence on inconclusive dant of the death psychological evidence. and insubstantial page judge’s comprehensive The trial very careful and special reflects a verdict of evidence. impartial evaluation requires us to justice sometimes sub- While the trial judgment for that of stitute our cases, case is not one of judge in death Maricopa County Romley, M. Richard them. Ainley, Deputy County Atty. by K. Mark Phoenix, petitioner.

Atty., Trebesch, Maricopa County Dean W. Watson, Deputy by Rickey Defender Public Phoenix, Defender, party in for real Public interest. Arizona, Petitioner, STATE OPINION Ari-

SUPERIOR COURT zona, For the COUNTY OF In and VOSS, Presiding Judge. MARICOPA, Lindsay The Honorable thereof, Respondent Ellis, that a defendant In this case we hold driving un- Judge, charged aggravated while with intoxicating liquor or the influence of der WALKER, Real Edward A. DUI”) pursuant drugs (“aggravated Party in Interest. (“A.R.S.”) 28- Ann. Ariz.Rev.Stat. § 697(A)(2) to a bifurcated is not entitled No. 1 93-0037. CA-SA trial. Arizona, Appeals Court 1, Department E. Division HISTORY AND PROCEDURAL FACTS Aug. (“de- A. Walker August Edward Dec. Denied Reconsideration fendant”) two counts charged in- DUI, class 5 felonies. aggravated had two alleges that defendant dictment 28- to A.R.S. pursuant DUI convictions § by the suggests issue not raised an dent review on an issue not the court reverses 11. Because supplemental briefs defendant, parties solicit we should had no the state has raised deciding it. indepen- before opportunity If our to brief the issue. dissent notes Scialli’s dis- at to the 11. The Dr. dissent’s organic agreement diagnosis with Dr. Tatro’s unimpaired, post at cation that Defendant was However, syndrome. personality Dr. Scialli did that P.2d Dr. Scialli testified find, Psychia- capacity his as a board certified “severely impaired defendant was in terms Dementia, trist, Defendant suffered from damage damage,” and also brain described the impairment. Scialli testi- serious Dr. far more "significant.” Id. at re- 33-34. Dr. Scialli's “somewhere fied that Defendant’s dementia was "performance port also states Stuard’s moderate, he mild and mild in that is between extremely poor, cognitive examination is [the] personal hygiene moder- care for his ... able to ate damage." Scial- serious brain does indicate functions terms of the extent of brain added). (emphasis Report li 9at R.T., have been affected.” Nov. which Usually rage, impairment others. which is relative- contributed to the homi- uncontrolled, ly poorly controlled cides. indicated Other evidence that De- particular towards a not directed mentally fendant ill had been for some —not particular necessarily goal, toward a testimony time. addition to the may there be—there usually a sud- experts, mental defense pre- health counsel rage, den acceleration not a slow sented evidence that was denied bum, have, people might as some but early a license in the 1960’s to box because explosive rage degree with a sudden damage previous of brain from suffered violence. boxing injuries.14 added). (emphasis Id. The judge, special verdict, in his any implication Dr. refuted Scialli concluded: organic factors caused Defendant’s finds that while Court the defen- [T]he Instead, non-violent criminal behavior. he dant suffers from some mental deficien- Defendant’s im believed that mental illness cy generalized dysfunction brain paired ability carry his out his criminal ability compromises which his to re- goals efficiently. Essentially, impair spond effectively to the events in his ment caused Defendant to murder when he environment, significantly it does not im- originally ventured out commit a much pair capacity appreciate his the wrong- murders, less serious crime. The there fulness of his conduct. Neither fore, the unfortunate of his were result two nor the one psychologists psychia- impairment. mental caused dementia trist examined the defendant suddenly Defendant to and over “[react] any that he men- found whelmingly suffered from when confronted and was tal illness or disease or that he was by his confronted victims.”12 Like the oth psychotic or a compul- doctors, suffered from er Dr. Scialli believed Defendant’s personality sive disorder. boxing could have his career caused brain damage. d. Discussion capacity to appreciate defendant’s wrongfulness minor of his conduct With variations was not certainty, affected, capacity experts13 although all three his to con- theme requirements agreed mentally that Defendant was im form conduct to the paired significantly impaired, the time of the and that law murders Brewer, State v. 13. Dr. concurred with Dr. The dissent cites Scialli Blackwood's diagnosis “generally” agreed cert. denied with Dr. Ta-

Case Details

Case Name: State v. Stuard

Court Name: Arizona Supreme Court

Date Published: Nov 18, 1993

Citation: 863 P.2d 881

Docket Number: CR-90-0355-AP

Court Abbreviation: Ariz.