Executed June 30, 2011 at 11:10 a.m. by Lethal Injection in Arizona
27th murderer executed in U.S. in 2011
1261st murderer executed in U.S. since 1976
4th murderer executed in Arizona in 2011
28th murderer executed in Arizona since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Thomas Paul West
W / M / 28 - 52
|Donald Lee Bortle
W / M / 53
State v. West, 176 Ariz. 432, 862 P.2d 192 (Ariz. 1993). (Direct Appeal)
West v. Ryan, 608 F.3d 477 (9th Cir. 2010). (Habeas)
Final / Special Meal:
Arizona Department of Corrections
Inmate: WEST THOMAS P
Hair Color: Black
Eye Color: Brown
Conviction: IMPOSED : MURDER 1ST DEGREE, : BURGLARY 2ND DEGREE : THEFT
Date of Offense: 07-12-87
Arizona Daily Sun
"Arizona executes man for 1987 Tucson-area killing." (Associated Press Tuesday, July 19, 2011 3:07 pm)
A death-row inmate was executed by injection Tuesday despite a flurry of last-minute appeals over a sedative used in a previous execution and a challenge over how the Arizona Department of Corrections carries out the state's death penalty.
Thomas Paul West, 52, was pronounced dead at the state prison in Florence at 11:10 a.m., about four minutes after he was declared sedated. Unlike recent executions in which the inmate was covered to his neck by a sheet, a catheter in West's right arm was visible because the sheet had been pulled aside.
West's lawyers had argued in a Monday court filing that the last four inmates Arizona executed did not have catheters in their arms, but rather in the femoral vein, which the lawyers described as a painful process. They said the Corrections Department violated its own protocol in those executions by using the femoral vein first and not having a backup catheter in place. The 9th U.S. Circuit Court of Appeals in San Francisco refused to block West's execution based on those arguments, ruling that West failed to prove there was a substantial risk that he would experience severe pain during the execution.
When a curtain was pulled to reveal the execution chamber Tuesday, a calm-looking West looked directly at his lawyers, nodded twice, then pointed to an area below his waist and then back toward his catheter. He then held up two fingers in what his lawyer later said was a "peace" sign. Defense attorney Dale Baich said West was pointing to the primary catheter in his arm and a backup catheter in his femoral vein. He said although the primary catheter was in an arm, he is still concerned that the femoral vein was used at all because it's invasive and painful. He said as far as he knows, Arizona is the only state that has been using the femoral vein for executions.
When Warden Carson McWilliams asked if West had any last words, West ignored him, lying still on the table with his eyes closed. He breathed heavily when the sedative began and then appeared to fall asleep as about two dozen witnesses watched. Prison officials said he declined to request a last meal.
West's execution came 24 years after he beat Donald Bortle to death while robbing his home just outside Tucson. Bortle's decomposing body was found in a closet on July 17, 1987, covered in blood with his hands tied behind his back. West fled Arizona but was arrested in Hodgkins, Ill., during a traffic stop soon after the crime. He had four boxes of Bortle's belongings, mostly electronic equipment.
West became the 91st inmate to be put to death in Arizona. The previous execution was that of Richard Lynn Bible on June 30 for the molestation and murder of a 9-year-old girl in Flagstaff.
The Arizona Supreme Court on Monday refused to consider a challenge of the state's lethal-injection law on behalf of four death-row inmates, including West, and denied an accompanying motion asking to delay West's execution. The challenge argued that the state's injection law is unconstitutional because the Legislature gave unfettered discretion to the Corrections Department on how to conduct executions, violating the separation of branches of government. The challenge cited an autopsy report that lawyers said indicated two different sedatives were used in the March execution of Eric John King, but the state's top death-penalty prosecutor said only one sedative was used and it turns into a different sedative once in the body.
Last month, the state Supreme Court denied a request by West to delay his execution after he argued that he had ineffective trial lawyers and that, had he been diagnosed with post-traumatic stress disorder at the time, he likely would have received a lesser sentence. West also narrowly lost his pleas for mercy from Arizona's clemency board. It voted 3-2 Thursday to allow the execution.
Two psychologists spoke at the hearing about the toll that a rocky home life and years of sexual abuse by three different men took on West, saying that's why he turned to alcohol and drugs, worsening an already bad psychological state. The experts said one of the symptoms of West's PTSD is a classic "startle response" and explains why he killed Bortle. West said he "freaked out" during the robbery when Bortle appeared in a hallway and began yelling at him.
Deputy Pima County Attorney Rick Unklesbay disagreed, saying that Bortle did not have any wounds to his arms or hands indicating that he put up a fight during the beating. "What this tells me is that Mr. Bortle was not the one who snuck up on Mr. West. Mr. Bortle didn't see it coming," Unklesbay said. He said Bortle's wounds were so severe "the bones in his face were essentially a floating mask."
West himself apologized repeatedly to the clemency board and said he thought Bortle had survived the beating when he left his house. "I did not realize I hurt him that bad," he said. "I thought he was up and walking around and safe by the time I got to the end of the block." West also apologized to Bortle's son, David Bortle, who attended the hearing by phone. "As ridiculous as it was and as hollow as it sounds, I really am sorry for your loss," West said.
David Bortle did not sound moved by West's apology, saying it was time for him to take responsibility for his choices. "Mr. West is now begging for mercy, but he showed my dad no mercy at all," he told the board, adding that he believes his father would have lived at least another 20 years. "Mr. West took those years away from our dad and our family, resulting in my dad missing the birth and life of his seven grandchildren."
West's attorneys argued at the hearing that West's father was verbally and physically abusive and that West was sexually abused by a teacher, a neighbor and a priest at various times in his childhood, leading to his recently diagnosed PTSD. The priest has been convicted of abusing other boys, and the neighbor acknowledged abusing him. West, who worked as a drywaller, grew up in Kankakee, Ill., and had only been living in Arizona a short time before the crime. He has a daughter.
West's older brother and aunt, who said she was more like a sister to him, attended the hearing and spoke emotionally about West's and their own abusive childhood. "He hasn't ever got a break in his life," brother James West said. "He should get a break in his death."
Arizona Daily Star
Thomas Paul West
Date of Birth: April 28, 1959.
On June 26, 1987, West and some friends went to Don Bortle's trailer outside Tucson to buy some electronic goods Bortle had advertised for sale. On July 12, 1987, West returned to the trailer, tied Bortle up, beat him and stole numerous items. West stole Bortle's car and took the stolen goods to Phoenix, where he intended to sell them. While in Phoenix, West told friends what he had done. One of his friends called the Pima County Sheriff's Office and told deputies to check on Bortle. On July 17, 1987, a deputy entered Bortle's trailer and found Bortle's bound and gagged body. Bortle had died from blunt force injuries to his head.
Convicted: March 17, 1988.
Sentenced to death: August 1, 1988.
Aggravating Circumstances: (1)Prior convictions involving violence, (2) Pecuniary gain, (3) Especially heinous/cruel/depraved.
Mitigating Circumstances: None sufficient to call for leniency.
Source: "Profiles of Arizona Death Row Inmates," Arizona Attorney General's Office.
"Arizona executes convicted killer," by Catherine Holland. (July 19, 2011 at 7:21 AM)
FLORENCE, Ariz. – Arizona executed another convicted killer Tuesday morning. Thomas Paul West, 52, was executed via lethal injection for the 1987 beating death of a Tucson man. West was the fourth Arizona death-row inmate to be executed this year and the third in as many months. He was pronounced dead at 11:10 a.m.
According to 3TV's Javier Soto, West didn't have any last words or a final meal before being executed. He said witnesses described the execution as quiet. The state Supreme Court on Monday refused to block his execution over a challenge involving a sedative used in an Arizona lethal injection earlier this year. Arizona's clemency board was torn over whether to recommend mercy for West. It ultimately voted 3-2 on Thursday to allow the execution.
West’s execution comes almost exactly 24 years after he beat Donald Bortle to death while robbing his home just outside Tucson. According to the Arizona Department of Corrections, West took the stolen goods to Phoenix, apparently intended to sell them. While in Phoenix, West told friends what he had done. One of those friends called the Pima County Sheriff’s Office.
Based on that call, deputies checked on Bortle. They discovered Bortle's decomposing body in a closet in his home on July 17, 1987. He had been gagged, his hands were tied behind his back and he was covered with blood. He had been dead for five days.
West was sentenced to death in 1988. The Arizona Supreme Court issued the warrant for his execution in late May, just one day after Donald Edward Beaty was executed by lethal injection for the 1984 rape and murder of Christy Ann Fornoff, 13, of Tempe.
Arizona reinstated the death penalty in 1992. It has executed 28 people since then, five of them in the past 10 months alone. According to the Arizona Department of Corrections, there are currently 127 people on Arizona’s death row.
Recent executions in Arizona:
Thomas West - July 19, 2011
Richard Bible - June 30, 2011
Donald Beaty - May 25, 2011
Eric King - March 29, 2011
Jeffrey Landrigan, Oct. 26, 2010
Robert Charles Comer, May 22, 2007
"Thomas Paul West executed by Arizona for killing in 1987," by Michael Kiefer. (July 19, 2011)
FLORENCE – Thomas West went quietly. The convicted killer turned down a last meal Monday night and decided not to pronounce any last words Tuesday morning as he lay strapped to a table in the death chamber at the state prison in Florence. Instead, he sent a message to his attorneys with pre-arranged hand signals and flashed them a peace sign. Then he closed his eyes as the prison warden read the warrant for execution and never opened them again. Lethal chemicals coursed through his veins at 11:01 a.m., and nine minutes later, he was pronounced dead. He was 52.
But West had talked plenty last week during a clemency hearing at the Eyman prison in Florence, apologizing to the family of his victim and explaining how he had killed Donald Bortle 24 years ago in Tucson. Relatives, lawyers and psychologists explained that West suffered from post-traumatic stress disorder because of physical and sexual abuse as a child. Two of the five members of the Arizona Board of Executive Clemency were moved enough to suggest his death sentence be commuted to life in prison. The other board members prevailed, and West’s execution went forward.
In July 1987, while visiting Arizona from his native Kankakee, Ill., West burglarized Bortle’s trailer because he knew Bortle had TV and stereo equipment. But Bortle surprised him in the act, and West struck out with his fists, knocking Bortle unconscious. West then tied him up and left him on the floor of the trailer. Bortle died of the blows, though West said he did not think he had hit him hard enough to kill him. He was arrested in Illinois, sent to trial and sentenced to death.
Over the weekend and into Monday, West’s attorneys lobbied the courts, not only on the PTSD matter but claiming that the director of the Arizona Department of Corrections had too much authority in determining how death-row prisoners are put to death. The lawyers cited a last-minute lethal-drug switch 18 hours before a May execution and the department’s continued use of catheters that are surgically implanted in a vein in the prisoner’s groin to deliver the fatal dose of drugs, when the official execution protocol, hammered out during litigation in 2009, expressly said that the chemicals are supposed to be injected through “peripheral lines,” much like a common IV, in an arm, hand or ankle. The femoral line is supposed to be used as a backup when peripheral access is impossible.
During a hearing before the 9th U.S. Circuit Court of Appeals on Monday, Judge Kim Wardlaw took a Corrections Department attorney to task when he assured her that the protocol would be followed. “The whole problem that’s being questioned here is that ADC says that every time, and something else happens,” Wardlaw said. The three-judge panel allowed the execution to go forward but with strict orders that the protocol be followed.
So on Tuesday, for the first time in six executions, the condemned man was inserted with a catheter in his arm that was uncovered and visible to witnesses. But according to Dale Baich from the Office of the Federal Public Defender in Phoenix, West signaled his attorneys to show that the executioners had inserted the femoral line as well. Corrections officials responded by saying they had a medical need to use a femoral line in all of those executions and did not use two peripheral lines on West because “the left arm vein would not support a peripheral IV.”
During Monday’s hearing before the 9th Circuit, Wardlaw also raised issues about the department’s use of a controversial sedative, sodium thiopental, in three of four Arizona executions since October. Defense attorneys maintained that the drug had been illegally obtained from England, and this spring the U.S. Drug Enforcement Administration confiscated the drug from prisons in several East Coast states. In May, the DEA forbade its use in an Arizona execution.
In a May 24 letter to the Arizona Attorney General’s Office, Associate Deputy U.S. Attorney General Deborah A. Johnson wrote, “The Drug Enforcement Administration (DEA) has discovered that the Arizona Department of Corrections is presently in possession of sodium thiopental which was imported without compliance with the Controlled Substance Act and, therefore, cannot be used.”
Nonetheless, on Tuesday, Corrections director Charles Ryan published a letter in The Arizona Republic saying the newspaper was wrong in saying that the drug had been obtained illegally. He called the situation “an error in paperwork (that) does not equate by any means to illegal activity, and the department has acted lawfully in its acquisition of these chemicals.”
That was not the opinion of the 9th Circuit judges Monday. “We all know . . . the drug was unlawfully obtained,” Wardlaw said. “We know that as a historical fact.” Even though Wardlaw made her comments on the record in open court, Bill Lamoreaux of the Arizona Department of Corrections said, “Judge Wardlaw’s statement is not a representation on behalf of the court and does not suggest wrongful conduct on the part of ADC.”
Canadian Coalition against the Death Penalty
Thomas Paul West
Arizona Death Row
THOMAS PAUL WEST'S PEN PAL REQUEST:
Hi !, I am Thomas Paul West. Single 35, brown/black hair, Hazel eyes, 170 lbs, 5'8", would love to receive mail from interesting people, I'm a happy go unlucky, lonely dude, love music, mostly hard rock, sunshine and outdoors, kids, & puppy dogs & hip people that understand that opportunity does NOT come knocking at your door BUT shows up in your Mailbox !
Here is your opportunity to bring a rainbow of life and introduce yourself ! Peace & Love & Respect to you! On Death Row, need mail yesterday !
Thomas Paul West #068781
ARIZONA STATE PRISON
EYMAN SMU II
PO BOX 3400
FLORENCE, ARIZONA 85232-3400 USA
Other postings about Thomas Paul West from the internet...
From Lamp of Hope: http://www.lampofhope.org/AZ68781.html
Single white male, 35, brown/black hair, 170 lbs, 5'8", hazel eyes, would love to receive mail from interesting people. Ask whatever your little old heart desires, I'll always be 100% honest with you! Can you handle that? I hope so! What you're not writing me yet! Please send letters and a few stamps to:
I'm a happy go un-lucky, lonely dude, I love music, "mostly hard rock", sunshine & outdoors, kids & puppy dogs & hip people that understand that this is the first day of the rest of our lives and that oppourtunity does NOT come knocking at your door BUT shows up in your mailbox! Life in 100% isolation for the past 7 years is a drag to say the least! Here's your opportunity to bring a rainbow of life & introduce yourself!
Peace and love and respect to you!
Wikipedia: List of People executed in Arizona Since 1976
1 Donald Eugene Harding White 43 M 06-Apr-1992 Lethal gas Allen Gage, Robert Wise, and Martin Concannon
2 John George Brewer White 27 M 03-Mar-1993 Lethal injection Rite Brier
3 James Dean Clark White 35 M 14-Apr-1993 Lethal injection Charles Thumm, Mildred Thumm, Gerald McFerron, and George Martin
4 Jimmie Wayne Jeffers White 49 M 13-Sep-1995 Lethal injection Penelope Cheney
5 Darren Lee Bolton White 29 M 19-Jun-1996 Lethal injection Zosha Lee Picket
6 Luis Morine Mata Latino 45 M 22-Aug-1996 Lethal injection Debra Lee Lopez
7 Randy Greenawalt White 47 M 23-Jan-1997 Lethal injection John Lyons, Donnelda Lyons, Christopher Lyons, and Theresa Tyson
8 William Lyle Woratzeck White 51 M 25-Jun-1997 Lethal injection Linda Leslie
9 Jose Jesus Ceja Latino 42 M 21-Jan-1998 Lethal injection Linda Leon and Randy Leon
10 Jose Roberto Villafuerte Latino 45 M 22-Apr-1998 Lethal injection Amelia Shoville
11 Arthur Martin Ross White 43 M 29-Apr-1998 Lethal injection James Ruble
12 Douglas Edward Gretzler White 47 M 03-Jun-1998 Lethal injection Michael Sandsberg and Patricia Sandsberg
13 Jesse James Gillies White 38 M 13-Jan-1999 Lethal injection Suzanne Rossetti
14 Darick Leonard Gerlaugh Native American 38 M 03-Feb-1999 Lethal injection Scott Schwartz
15 Karl-Heinz LaGrand White 35 M 24-Feb-1999 Lethal injection Kenneth Hartsock
16 Walter Bernhard LaGrand White 37 M 03-Mar-1999 Lethal gas
17 Robert Wayne Vickers White 41 M 05-May-1999 Lethal injection Wilmar Holsinger
18 Michael Kent Poland White 59 M 16-Jun-1999 Lethal injection Cecil Newkirk and Russell Dempsey
19 Ignacio Alberto Ortiz Latino 57 M 27-Oct-1999 Lethal injection Manuelita McCormack
20 Anthony Lee Chaney White 45 M 16-Feb-2000 Lethal injection John B. Jamison
21 Patrick Gene Poland White 50 M 15-Mar-2000 Lethal injection Cecil Newkirk and Russell Dempsey
22 Donald Jay Miller White 36 M 08-Nov-2000 Lethal injection Jennifer Geuder
23 Robert Charles Comer White 50 M 22-May-2007 Lethal injection Larry Pritchard and Tracy Andrews
24 Jeffrey Timothy Landrigan Native American 50 M 26-Oct-2010 Lethal injection Chester Dean Dyer
25 Eric John King African American 47 M 29-Mar-2011 Lethal injection Ron Barman and Richard Butts
26 Donald Beaty White 25-May-2011 Lethal Injection Christy Ann Fornoff
27 Richard Lynn Bible 30-June-2011 Lethal Injection Jennifer Wilson
28 Thomas Paul West 19-July-2011 Lethal Injection Don Bortle
State v. West, 176 Ariz. 432, 862 P.2d 192 (Ariz. 1993). (Direct Appeal)
Defendant was convicted before the Superior Court, Pima County, No. CR-21715, Thomas Meehan, J., of first-degree felony-murder, second-degree burglary, and theft, and was sentenced to death for the murder. On automatic appeal, the Supreme Court, Moeller, V.C.J., held that: (1) evidence that victim had threatened suicide was properly excluded as irrelevant, as evidence negated any possibility that victim killed himself; (2) photograph of victim was relevant and admissible to corroborate testimony of witnesses, and to show that death resulted from underlying felony; (3) there was no obligation to instruct jury on premeditated murder theory which was withdrawn by the state; and (4) aggravating factors outweighed mitigating factors, and sentence of death was appropriate. Affirmed.
MOELLER, Vice Chief Justice.
Thomas Paul West (defendant) was convicted by a jury of first degree felony murder, second degree burglary, and theft. He was sentenced to death for murder and to concurrent 10 year terms for burglary and theft, to be served “consecutively” to the death sentence. This is an automatic appeal pursuant to A.R.S. § 13-4031 and Ariz.R.Crim.P. 26.15 and 31.2(b). We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031, 13-4033.
Defendant came to Phoenix from Illinois in June of 1987. He first stayed with his friends Scott and Lisa at their Glendale apartment and later went to Tucson to stay with Polly, another friend. Polly worked at a Circle K in Tucson and was acquainted with the victim, who was a regular customer. The victim told Polly's boss that he had several items for sale. Polly was interested in purchasing a VCR and, on June 26, 1987, using a map that the victim had given her boss, she and defendant went to the victim's home. The victim had a large amount of electronic equipment for sale. Polly and defendant spent more than an hour at victim's home viewing the items for sale and talking with the victim. Polly bought a VCR, a video camera, and a typewriter.
Two-and-a-half weeks later, defendant showed up at Scott and Lisa's Glendale apartment. Lisa told defendant to come back later because Scott was sleeping. Defendant left and went to another apartment in the same complex to see Richard, another friend. Several hours later the two left for Tucson. Defendant did not own a car, but he was driving a station wagon that he told Richard he had borrowed from friends in Tucson.
Richard accompanied defendant to Tucson where defendant stopped to make a phone call, after which, according to Richard, defendant was “really upset.” Defendant drove a few more blocks before making another phone call. After this call, he calmed down. Defendant and Richard then drove to a secluded desert area and met Polly. Defendant spoke to Polly for several minutes, telling her that “he was in trouble and he was going to be out of town for a while.” Defendant then got back in the car and drove approximately 300 to 400 yards into the desert.
Hidden beneath a tree was a cache of electronic equipment, including VCRs, videocassettes, and stereo equipment. Richard helped defendant load many of these items into the station wagon, but they left behind several items that would not fit. Defendant and Richard then returned to Phoenix and stored the equipment in Scott and Lisa's apartment.
On the return trip to Phoenix, defendant told Richard that he had beaten “some guy” up and had been covered with blood. In Phoenix, defendant told Scott that he had “ripped some old man off.” Later, defendant told Scott that he wanted to “dump the car” because “it was the old man's that he had robbed.” Scott and defendant drove separately out to the far west side of Phoenix, where defendant told him that “he was going to go out in the field and either just dump it or burn it.” Defendant asked Scott if he had a gas can. Scott did not. Defendant drove off in the station wagon and returned a short time later on foot. Scott saw a big cloud of smoke, and defendant told him that he had burned the car.
On Tuesday afternoon, July 14, Polly called Scott and Lisa's apartment looking for defendant. Lisa went to Richard's apartment to tell defendant about the call. She there heard defendant tell Richard and another person that he was “trying to get rid of some merchandise.” Lisa asked defendant if he was in trouble, and he told her “not to worry about it.” Later defendant told Scott that “he had beat this old man up and tied his arms and legs behind his back and threw him in the closet and then he ripped his stuff off and the car.” Defendant had scratches on his hands and told Scott that “he got them beating up the old man.”
The next day, while he was in her apartment, Lisa heard defendant say that he “had beat the fuck out of this old man and [had] thrown him in a closet.” Lisa asked defendant, “[Y]ou did what?” to which defendant replied, “[T]his isn't for your ears, don't worry about it.”
Later, Lisa's friend Patty called, and Lisa told her what she had heard about defendant's activities. About 45 minutes later, Lisa went to Richard's apartment and confronted defendant. She told him that she had a “pretty good idea of what had happened” and that, if the victim could be helped, he should be. Lisa told defendant that “he should call Silent Witness or somebody that would go check to see if this man was alive and that he probably had family that loved him.” Defendant replied, “[N]o, this man had nobody,” and that Lisa “would have to live with it.”
On Thursday, July 16, defendant asked Scott to make plane reservations for his return to Illinois. Defendant packed the equipment that had not been disposed of into boxes and, on Thursday night, left Phoenix with the items. In the meantime, Patty had contacted the Pima County Sheriff's Department. Detective Petropoulos spoke to Patty several times during the morning of Friday, July 17 and, using the information that she provided, contacted Polly. While interviewing Polly, the detective noticed the map to the victim's house. After obtaining the map from Polly, the detective called the number written on the map. Receiving no response, he went to the victim's home to investigate.
Detective Petropoulos entered the trailer and found the victim's decomposing body in the north bedroom. The victim's hands and feet were tied behind his back with a vacuum cleaner cord and a lamp wire. The medical examiner later testified that the victim had been beaten severely about the face with a blunt instrument and that he probably had bled to death within 45 minutes to an hour. Although a knife was found in the trailer, the medical examiner found no evidence that the victim had been stabbed. Because of the body's decomposed condition, the medical examiner could only estimate the time of death. In his opinion, the victim had been dead between three and seven days, placing the killing between Saturday, July 11 and Wednesday, July 15.
Some time after 3:00 a.m. on Saturday, July 18, Sergeant Mark Wilkans of the Hodgkins, Illinois, police department stopped a vehicle for speeding. Defendant was one of two passengers in the car. After arresting the driver for driving under the influence, Wilkans asked defendant for identification. Having none, defendant gave Wilkans his name and birth date. Wilkans radioed this information to his base and was informed that defendant was wanted in Arizona for murder. Wilkans arrested defendant. A search of the car at the Hodgkins police station yielded boxes that defendant had brought from Arizona. The boxes were inventoried and contained electronic equipment later identified as having been taken from the victim. On Monday, July 20, Detective Petropoulos arrived in Illinois from Tucson and took custody of defendant and the stolen property. He sealed the boxes and mailed them to Tucson where, after obtaining a warrant, he searched them.
Defendant raises 10 trial issues, 11 sentencing issues, and one issue relating to appellate procedure. Many of the issues have numerous subparts. FN1 The issue relating to appellate procedure is:
FN1. Defendant lists as two other issues “independent review” and “proportionality reviews.” We automatically conduct an independent review of the record, see State v. Schad, 129 Ariz. 557, 573, 633 P.2d 366, 382 (1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 693 (1982), and we do not conduct proportionality reviews, see State v. Salazar, 173 Ariz. 399, 844 P.2d 566 (1992), cert. denied, 509 U.S. 912, 113 S.Ct. 3017, 125 L.Ed.2d 707 (1993). We therefore do not address these two items as separate issues.
1. Whether our order limiting defendant's opening brief to 150 pages violated his due process right to effective assistance of counsel.
The trial issues are: 1. Whether the trial court erred by “death qualifying” the jury; 2. Whether the trial court improperly admitted evidence seized in Illinois as a result of a warrantless automobile inventory search; 3. Whether the trial court erred by precluding defendant from raising as a defense that the victim had suicidal tendencies and had arranged his own death; 4. Whether the trial court erred by admitting a gruesome photograph of the victim; 5. Whether defendant was deprived of his right to be informed of the nature of the charges against him; 6. Whether the trial court erred in instructing the jury; 7. Whether Arizona's felony murder statute is unconstitutional; 8. Whether conduct of the judge during trial denied defendant a fair trial; 9. Whether the prosecutor engaged in misconduct during closing argument; and 10. Whether the trial court erred by failing to provide the defense with the juror's names and addresses after the trial.
The sentencing issues are: 1. Whether the State failed to prove beyond a reasonable doubt that defendant previously had been convicted of a violent felony within the meaning of A.R.S. § 13-703(F)(2); 2. Whether the State failed to prove beyond a reasonable doubt that the killing was especially cruel or heinous. 3. Whether the application of A.R.S. § 13-703(F)(5) (expectation of pecuniary gain as aggravating circumstance) to this case is unconstitutional and, if not, whether the State nonetheless failed to prove beyond a reasonable doubt that defendant killed in expectation of pecuniary gain; 4. Whether the trial court erred by failing to find additional mitigating circumstances; 5. Whether the trial court gave insufficient weight to the two mitigating circumstances that it did find; 6. Whether imposing the death penalty for felony murder is unconstitutional, and whether the trial court erred by failing to conduct an Enmund/Tison hearing; 7. Whether defendant received adequate notice of the aggravating circumstances that would be used to support the death penalty; 8. Whether defendant's request to voir dire the trial judge was improperly denied; 9. Whether the prosecutor engaged in misconduct during sentencing; 10. Whether the trial judge improperly considered statements in the presentence report; and, 11. Whether Arizona's death penalty statute is unconstitutional.
I. The Appeal
1. Limiting the Size of Defendant's Brief
In this case, after defendant requested permission to file a tendered 286-page opening “brief,” we allowed him to file a 150-page brief and a 65-page reply. We also granted defendant eight extensions of time on his opening brief and two more extensions on his reply brief. Notwithstanding these concessions departing from the rules, see Ariz.R.Crim.P. 31.13(f), defendant argues that, by limiting the length of his brief, this court violated his right to due process. We have rejected this argument before. See State v. Cruz, 175 Ariz. 395, 400-401, 857 P.2d 1249, 1254-1255 (1993); State v. Atwood, 171 Ariz. 576, 658-59, 832 P.2d 593, 675-76 (1992), cert. denied, 506 U.S. 1084, 113 S.Ct. 1058, 122 L.Ed.2d 364 (1993); State v. Amaya-Ruiz, 166 Ariz. 152, 182-83, 800 P.2d 1260, 1290-91 (1990), cert. denied, 500 U.S. 929, 111 S.Ct. 2044, 114 L.Ed.2d 129 (1991). We do so again.
While this case was pending, the court amended Rule 31.13(f) to permit oversize briefs in capital cases, as well as to provide extra time to file them. If typed, as the briefs in this case are, opening briefs of up to 80 pages per side are permitted, and the appellant gets up to 40 more pages to reply. The briefs in this case could easily have been filed within the parameters of the amended rules, which provide ample opportunity for effective representation. Indeed, had the briefs in this case been edited to shorten them, they would have been much better. Winnowing of issues and argument is essential to good appellate advocacy. Here the “kitchen sink” approach has again been used. Many “issues” presented were not raised in the trial court. Other “issues” raised have been repeatedly and recently decided adversely to defendant. If preservation is sought to avoid issue preclusion, brevity should be employed. Many of defendant's issues are patently frivolous. Excessively long briefs confer no benefit on defendants, unless bulk and congestion for delay's sake is considered a benefit.
The most effective briefs this court receives, including those in death penalty cases, all comply with the liberal page limitations of the rules. Only a few offices in the state chronically abuse the rules in death penalty cases. Most have no trouble providing effective representation while filing sensibly sized briefs. Barring an advance showing of the most extraordinary circumstances, this court is committed, in all future cases, to enforcing the page limitations set by the rules.
II. The Trial
1. “Death Qualification” of the Jury
Defendant argues that the trial court violated his state and federal constitutional rights by creating a conviction-prone jury when it excused seven jurors because of their alleged views on the death penalty. The record discloses that all of these jurors were excused because they could not be fair and impartial. Six of the jurors were removed without any discussion of the death penalty because they could not be fair and impartial in a first degree murder case. The seventh juror was removed because he could not be fair and impartial if the death penalty might be imposed. Because defendant did not object when these jurors were excused and affirmatively passed the jury panel at the close of voir dire, he is precluded from challenging the jurors on appeal. See State v. Richmond, 114 Ariz. 186, 192-93, 560 P.2d 41, 47-48 (1976); cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101 (1977); State v. Diaz, 142 Ariz. 136, 137, 688 P.2d 1028, 1029 (App.), aff'd as modified, 142 Ariz. 119, 688 P.2d 1011 (1984).
In any event, we have stated previously that [J]ury questioning regarding capital punishment is permissible where the questioning determines bias of a nature which would prevent a juror from performing his duty.... [V]oir dire questioning related to a juror's views on capital punishment is permitted to determine whether those views would prevent or substantially impair the performance of the juror's duties to decide the case in accordance with the court's instructions and the juror's oath. State v. Martinez-Villareal, 145 Ariz. 441, 449, 702 P.2d 670, 678, cert. denied, 474 U.S. 975, 106 S.Ct. 339, 88 L.Ed.2d 324 (1985); see also Lockhart v. McCree, 476 U.S. 162, 167 n. 1, 106 S.Ct. 1758, 1761 n. 1, 90 L.Ed.2d 137 (1986). There are valid reasons for these questions, and the procedures employed by the trial court in asking these questions in this case were adequate. We find no error.
Defendant also argues, however, that excusing the jurors because they were allegedly against capital punishment violated article 2, section 12 of the Arizona Constitution because the framers “intended to forbid a trial court or prosecutor from attempting to disqualify or excuse prospective jurors solely on the basis of their philosophical, conscientious or religious beliefs.” (Appellant's Opening Brief at 11.) We find no merit to this argument. Article 2, section 12 reads, in part: No religious qualification shall be required for any public office or employment, nor shall any person be incompetent as a witness or juror in consequence of his opinion on matters of religion.... (Emphasis added.)
As we have noted, Art. 2, § 12 provides that no person shall be incompetent as a juror solely because of his opinion on matters of religion. It does not say an individual will be qualified as a juror despite his religious beliefs if those beliefs prevent him or her from being fair and impartial in a given case.... A person whose religious beliefs prevent him or her from finding a defendant guilty, notwithstanding proof beyond a reasonable doubt that defendant is guilty, is not impartial. State v. Fisher, 141 Ariz. 227, 249, 686 P.2d 750, 772 (emphasis in original), cert. denied, 469 U.S. 1066, 105 S.Ct. 548, 83 L.Ed.2d 436 (1984). Whether or not religious scruples affected any juror's views on the death penalty, Fisher controls.
2. Evidence From the Automobile Search
Defendant argues that the trial court abused its discretion in denying his motion to suppress the victim's property, which was seized during a search of the car in which defendant was riding when arrested in Illinois. Defendant contends that the search violated both the Fourth Amendment of the United States Constitution and article 2, § 8 of the Arizona Constitution.
At trial, defendant argued that the Illinois police conducted an illegal investigative search without a warrant. The trial court found the search to be a valid inventory search performed incident to a lawful arrest. We agree. On appeal, defendant expands his argument and argues for the first time that the inventory search was not conducted pursuant to established police procedures.
Defendant was one of two passengers in a car stopped by Mark Wilkans of the Hodgkins, Illinois, police department. Wilkans smelled alcohol on the breath of the driver, who was then arrested for driving under the influence after failing field sobriety tests. Pursuant to departmental policy, Wilkans attempted to determine whether the car could be released to either of the passengers. When Wilkans radioed in information about both men, the dispatcher replied that one of the two was wanted on an outstanding felony warrant. Wilkans secured the passengers and arrested defendant after determining that he was wanted for murder in Pima County, Arizona. The other passenger was also detained because he was too intoxicated to drive.
Under Hodgkins police policy, the car had to be impounded because no occupant could legally operate it. Police policy was to inventory items in cars that were impounded. Given the large number of items in the car, Wilkans had the car towed to the station before conducting the inventory. At the station, police inventoried the contents of several sealed boxes and a duffle bag belonging to defendant.
On appeal, defendant argues for the first time that this search violated his constitutional rights because the state did not show that Hodgkins police policy was to inventory the contents of closed containers. In fact-intensive inquiries on motions to suppress, the court is not obliged to consider new theories from either side asserted for the first time on appeal, and there are good reasons for not doing so. State v. Brita, 158 Ariz. 121, 124, 761 P.2d 1025, 1028 (1988). Aside from this, defendant's position still lacks merit. “[I]nventory searches are now a well-defined exception to the warrant requirement of the Fourth Amendment.” Colorado v. Bertine, 479 U.S. 367, 371, 107 S.Ct. 738, 741, 93 L.Ed.2d 739 (1987). Police may conduct inventory searches as long as they are conducted pursuant to standardized criteria and not because of mere suspicions of criminal activity. Id. at 375, 107 S.Ct. at 743. An officer “may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself.” Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990). When questioned about the department's policy for inventory searches, Wilkans testified that All property that comes into our possession from any vehicles that we are going to take and separate from the driver or owner has to be inventoried, the contents therein have to be listed, and any pre-existing damage to the car noted on the towing. (Emphasis added.)
Hodgkins police policy is to inventory the contents of property taken into possession. That is what occurred here. The trial court, on the record before it, reasonably found this search to be a valid inventory search conducted pursuant to Hodgkins police policy. Because we agree with the trial court's finding, we do not reach the state's alternative theory of “inevitable discovery.”
3. Precluding Evidence of Victim's Suicidal Tendencies
Defendant contends that the trial court deprived him of his state and federal constitutional rights because the court would not allow him to present evidence that the victim was suicidal and may have planned his own death.
On a motion in limine based on relevancy grounds, the trial court ruled that it would not permit evidence of the victim's alleged suicidal tendencies without some showing of relevance. Defendant, however, argues that the trial court impermissibly burdened his right against self-incrimination by allowing this evidence only if defendant testified. Defendant points to the following exchange: MR. PEASLEY [THE PROSECUTOR]: Can I say for the record, I think it's clear from discussions, I assume from discussions yesterday, that if the defendant were to get on the witness stand and say he helped this guy commit suicide, that the state's motion and the Court's ruling would change? THE COURT: It would be a different ballgame.
The trial court was merely stating that the defendant's testimony could make the suicide evidence relevant. The trial court did not state, however, that only the defendant's testimony could establish relevance. Defendant's reliance on State v. Rose, 121 Ariz. 131, 138-39, 589 P.2d 5, 12-13 (1978), is therefore misplaced. In Rose, a burglary case, the defendant wanted to show that, on entering the victim's home, he lacked intent to commit a felony. The trial court would not allow the defendant to introduce evidence on this point unless the defendant first testified. Id. We held that forcing defendant to give up his right not to testify in order to present the defense of lack of intent violated his Fifth Amendment rights. Id.
All the defendant here was required to do was show relevance. Contrary to defendant's argument, that requirement violates neither the state nor federal constitutions. Judges have wide latitude in determining relevance. Crane v. Kentucky, 476 U.S. 683, 689, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (1986). Of course, in a proper case, evidence of a victim's suicidal tendencies may be relevant and competent, see Marcum v. Commonwealth, 308 Ky. 740, 215 S.W.2d 846, 847 (1948), but it is generally inadmissible if the facts preclude the possibility of suicide. People v. Duncan, 72 Cal.App.2d 247, 164 P.2d 313, 316 (1945); Marcum, 215 S.W.2d at 847-48.
In Duncan, the victim was found sitting on a sofa with a fatal knife wound through her heart. The knife that had inflicted the fatal wound was found on the roof of a neighboring apartment building. When the defendant attempted to introduce evidence that the victim had threatened to commit suicide several years before, the court held the evidence inadmissible because the facts precluded any possibility that suicide had been the cause of death. The court of appeals affirmed. Duncan, 164 P.2d at 316.
Similarly, here the evidence of the victim's suicidal tendencies was also irrelevant. The victim was brutally beaten, hogtied, and left to die. The offer of proof was that the victim had threatened suicide, had attempted to persuade a movie producer to film the event, and had wanted to deprive his estranged wife of their property. The evidence negates any possibility that the victim killed himself, and the offer of proof does not suggest that the victim arranged for someone else to kill him. Trial court evidentiary rulings will not be disturbed on appeal absent a clear abuse of discretion. State v. Oliver, 158 Ariz. 22, 30, 760 P.2d 1071, 1079 (1988). We find no abuse.
Finally, defendant argues that the trial court should have allowed the evidence in anyway because the state's motion in limine to exclude it was untimely. A pretrial motion in limine is merely a convenient substitute for evidentiary objections at trial. Moreover, “if a court has the power to extend the time to file motions, it has the discretion to hear late motions.” State v. Zimmerman, 166 Ariz. 325, 328, 802 P.2d 1024, 1027 (App.1990) (citing State v. Vincent, 147 Ariz. 6, 8, 708 P.2d 97, 99 (App.1985)). If a trial court wishes to entertain a late motion in limine, it may do so. It may well consider that procedure preferable to hearing objections piecemeal at trial.
4. The Gruesome Photograph
Defendant argues that admission of a photograph of the victim deprived him of a fair trial under the state and federal constitutions because it was gruesome, had no probative value, and was highly inflammatory. Although we agree that it is gruesome, its admissibility was within the trial court's discretion.
“The trial court has discretion to decide whether to admit photographs, and we will not disturb its ruling absent a clear abuse of that discretion.” Amaya-Ruiz, 166 Ariz. at 170, 800 P.2d at 1278 (citing State v. Bailey, 160 Ariz. 277, 772 P.2d 1130 (1989)). We apply a two-part analysis to determine whether potentially inflammatory photographs are admissible: (1) the photograph must be relevant to an issue in the case; and (2) the photograph's probative value must outweigh its prejudicial effect. State v. Chapple, 135 Ariz. 281, 288, 660 P.2d 1208, 1215 (1983); see also Ariz.R.Evid. 403.
The photograph is relevant first because it corroborates the testimony of Scott, Lisa, and Richard regarding defendant's statements that he had beaten and tied up the victim. Second, the photograph is relevant because it tends to show that the death was intentional or premeditated, which was at issue when the photograph was introduced. Both of these grounds are proper uses of photographic evidence. State v. Thomas, 110 Ariz. 120, 130, 515 P.2d 865, 875 (1973).
Although the state eventually relied solely on a theory of felony murder, the photo is still relevant. The state must prove each element of first degree murder beyond a reasonable doubt. Besides corroborating the testimony of several witnesses, the photograph tends to show that the death resulted from the underlying felony and tends to negate a natural or accidental death. The admission of the photograph was well within the trial court's discretion.
5. Pretrial Notice of State's Theory
An indictment must give defendant notice of the crimes charged. State v. Arnett,, 158 Ariz. 15, 18, 760 P.2d 1064, 1067 (1988). Defendant submits, however, that the state is also required to provide him with notice of the theory under which it will proceed at trial. We have previously rejected this argument and do so again. See Arnett, 158 Ariz. at 18, 760 P.2d at 1067; State v. Tison, 129 Ariz. 526, 538, 633 P.2d 335, 347 (1981), cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982).
Defendant argues alternatively that, even if he originally received sufficient notice of the charges, the prosecutor misled him into believing that the state would proceed on a premeditated theory as well as on a felony murder theory. The gist of defendant's argument is that he was surprised and prejudiced by the state's election during trial to abandon premeditation and proceed solely on felony murder. From this, defendant argues that “reversal is required even if the formal charge gives notice appropriately.” Defendant offers no authority for this proposition, and we reject it. The record belies defendant's present claim of surprise, which is, in any event, immaterial. The law requires notice of the charges. The rules of procedure thereafter provide for discovery. The prosecutor has no independent duty to tell the defendant how the state intends to proceed or to elect theories in advance. Arnett, 158 Ariz. at 18, 760 P.2d at 1067; Tison, 129 Ariz. at 538, 633 P.2d at 347.
6. Jury Instructions
Defendant contends that the jury should have been instructed on premeditated murder despite the state's withdrawal of that theory. According to defendant, instructing on premeditation would also require instructing on other types of homicide as lesser included offenses of premeditated murder. The state contends that, under the facts of this case, defendant would not have been entitled to lesser included homicide instructions even if premeditation had not been withdrawn. We need not resolve this dispute, which involves a factual analysis of the record, because there is no obligation to instruct the jury on theories withdrawn in the prosecutor's discretion. See State v. LaGrand, 153 Ariz. 21, 30 n. 4, 734 P.2d 563, 572 n. 4 (prosecutor has discretion on what crimes to charge and prosecute), cert. denied, 484 U.S. 872, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987).
Defendant argues that because he was originally charged with both premeditated and felony murder Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), constitutionally required the submission of premeditated murder and lesser included homicide offenses. We disagree. In Beck, the Court stated only that, in a capital case, due process entitles the defendant to instructions on any existing lesser included offenses to the crime charged that are factually supported by the evidence. Id.; see also State v. Vickers, 129 Ariz. 506, 513, 633 P.2d 315, 322 (1981). Even assuming the factual applicability of lesser included offenses in this case if premeditation had gone to the jury, Beck does not require the court to give instructions on crimes or theories no longer in issue.
Although this court has consistently held that felony murder contains no lesser included homicide offenses, defendant asks us to reconsider those holdings and to require trial judges to instruct juries on second degree murder and manslaughter in felony murder cases. We decline to do so. Defendant also contends that burglary is a lesser included offense of the felony murder in this case and the jury should have been so instructed. We disagree but, in any event, the jury was instructed on both burglary and felony murder and defendant was convicted of both, so we fail to see how defendant would benefit by labelling burglary a lesser included offense of felony murder.
Finally, defendant argues that state and federal due process require that the jury be instructed on lesser related offenses, as distinguished from lesser included offenses. Lesser related offenses are offenses supported by the facts of the case, although not included in the charging document. Some states recognize the doctrine of lesser related offenses. See, e.g., People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974). However, Arizona does not. The application of Arizona's doctrine of lesser included offenses depends on an analysis of the terms of the charging document or the elements of the crimes charged, rather than the evidentiary facts produced at trial. “The elements of the crime ... determine whether a crime is a lesser included offense ..., not the facts of a given case.” State v. Laffoon, 125 Ariz. 484, 487, 610 P.2d 1045, 1048 (1980); State v. Teran, 130 Ariz. 277, 279, 635 P.2d 870, 872 (App.1981). Our rule is consistent with federal practice. Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). The trial court did not err.
Defendant next argues that under Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), defendant could be convicted of felony murder only if the jury found that he displayed a reckless indifference to human life. We disagree. Tison does not speak to the mens rea necessary for a conviction for felony murder. Instead, Tison discusses the mens rea necessary to be sentenced to death after being convicted of felony murder. See generally id.
There is also no merit to defendant's argument that the trial court should have instructed the jury to acquit if they had a reasonable doubt about whether defendant was at the scene. Jury instructions are to be instructions on the applicable law, not comments on bits and pieces of evidence. See Ariz. Const., art. VI, § 27; cf. State v. Goldston, 126 Ariz. 171, 173, 613 P.2d 835, 837 (App.1980) (error to instruct that recent false statements by defendant, if made, were evidence of theft and burglary). The trial judge properly declined to give the requested instruction. Defendant's contention that a proximate cause instruction was necessary fails because causation was not in issue. See State v. Smith, 160 Ariz. 507, 510, 774 P.2d 811, 814 (1989).
Defendant requested a Willits FN2 instruction based on the state's alleged failure to test for fingerprints a knife found at the scene. Willits requires that an instruction be given when the State loses or destroys evidence that could help defendant's case. Willits, 96 Ariz. at 191, 393 P.2d at 279. No evidence suggests that the knife was used in the killing. Moreover, the state did not lose or destroy the knife, and defendant has not shown how the knife might be exculpatory. Finally, defendant had every opportunity to test the knife for himself and failed to do so; therefore, a Willits instruction would have been inappropriate. FN2. State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964).
Defendant also raises several additional objections, not raised at trial, concerning jury instructions. Absent fundamental error, these objections are precluded on appeal. Ariz.R.Crim.P. 21.3(c); see also State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991).
First, defendant argues that the trial court erred by not giving an instruction defining “intentionally.” Failure to define “intentionally,” as used in an instruction, is not fundamental error. State v. Barnett, 142 Ariz. 592, 594-95, 691 P.2d 683, 685-86 (1984). Defendant contends that the court's instruction defining reasonable doubt is erroneous.FN3 Giving this instruction is not fundamental error; therefore, we do not consider its merits in this case. State v. Duzan, 176 Ariz. 463, 862 P.2d 223 (App.1993). FN3. The court's instruction reads as follows: ... The State must prove the defendant guilty beyond a reasonable doubt. The term reasonable doubt means doubt based upon reason. It does not mean an imaginary or possible doubt. It is a doubt which may arise in your minds after a careful and impartial consideration of all of the evidence or from the lack of evidence.
The trial court also committed no error, fundamental or otherwise, by failing to instruct the jury that informer testimony is inherently unreliable. see state v. gretzler, 126 ariz. 60, 89, 612 P.2d 1023, 1052 (1980) (instructing the jury to consider the testimony of an interested witness with skepticism is an impermissible comment on the evidence); State v. Korte, 115 Ariz. 517, 519, 566 P.2d 318, 320 (App.1977).
Defendant contends that the trial court committed fundamental error in failing to define “in furtherance of” as that term is used in Arizona's felony murder statute. That term, in the context of felony murder, is defined in Arizona case law to mean “death result[ing] ‘from an action taken to facilitate the accomplishment of [the felony].’ ” State v. Hallman, 137 Ariz. 31, 38, 668 P.2d 874, 881 (1983) (quoting State v. Arias, 131 Ariz. 441, 443, 641 P.2d 1285, 1287 (1982)). “In furtherance of” is a common term. Assuming, however, that the term should have been defined, the failure to do so certainly is not fundamental error under the facts of this case. Consistent with defendant's boasts to his friends in Phoenix that he had “beaten the fuck out of some old man” and tied him up while burglarizing his house, the victim was found bound and bludgeoned. No evidence suggests that the death was not “in furtherance of” the burglary. Therefore, we find no fundamental error. Cf. Gendron, 168 Ariz. at 155, 812 P.2d at 628 ( citing Kentucky v. Whorton, 441 U.S. 786, 789, 99 S.Ct. 2088, 2090, 60 L.Ed.2d 640 (1979)) (whether failure to give an instruction amounts to fundamental error “must be evaluated in light of the totality of the circumstances” of the case).
7. Arizona's Felony Murder Statute
Defendant asserts that Arizona's felony murder statute creates an unconstitutional mandatory presumption of guilt in violation of the due process clause or creates a strict liability crime that may lead to the death penalty in violation of the Eighth Amendment's ban on cruel and unusual punishment. Similar arguments have been rejected as meritless. See State v. McLoughlin, 139 Ariz. 481, 485, 679 P.2d 504, 508 (1984). We have stated previously: “[t]he felony-murder rule, designed as it is to protect human life, represents sound public policy, is reasonably related to the end sought to be accomplished and is not constitutionally impermissible.” State v. Celaya, 135 Ariz. 248, 255, 660 P.2d 849, 856 (1983) (quoting State v. Goodseal, 220 Kan. 487, 553 P.2d 279, 286 (1976)); LaGrand, 153 Ariz. at 30, 734 P.2d at 572; State v. Montes, 136 Ariz. 491, 498, 667 P.2d 191, 198 (1983).
8. Conduct of Trial Judge
Defendant complains that the trial judge's behavior during trial prejudiced him. Late in the case, defendant claimed that the trial judge had looked away from the jury during defendant's opening statement. A second claim is that the trial court was impatient with defense counsel during the defense case. Defendant's claims are based on counsel's subjective impressions. Both parties are entitled to a trial presided over by a fair and impartial judge. State v. Carver, 160 Ariz. 167, 172, 771 P.2d 1382, 1387 (1989). The trial court is presumed to be impartial, and the party alleging bias must prove bias by a preponderance of the evidence. Id.
Defendant has placed no evidence in the record of bias by the trial judge. All that is referred to are unsupported assertions by defense counsel during trial, at least one of them long after the alleged fact. There is no substantiation of the claim of judicial misconduct, nor is there any showing of resulting prejudice.
9. Prosecutorial Misconduct
Defendant makes several claims of prosecutorial misconduct. Because none was raised at trial, all are precluded absent fundamental error. Ariz.R.Crim.P. 21.3; see also State v. Smith, 138 Ariz. 79, 83, 673 P.2d 17, 21 (1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1429, 79 L.Ed.2d 753 (1984). Defendant claims that the state impermissibly commented on his failure to call a witness, “Shorty.” Defense counsel, in the presence of the jury, promised to call Shorty if the state did not. However, Shorty was not called. All the state did was remind the jury, in argument, that defense counsel had not done what she had promised to do. In the context of this case, the state's comment was not improper. See State v. Jerdee, 154 Ariz. 414, 417, 743 P.2d 10, 13 (App.1987).
Defendant claims that the state engaged in misconduct by stating in closing argument that certain questions by defense counsel were “a defense ploy,” “improper,” and “outrageous.” The argument, in context, was well within the wide latitude afforded both parties in closing argument. See, e.g., Amaya-Ruiz, 166 Ariz. at 171, 800 P.2d at 1279.
Defendant complains of the prosecutor's statement in argument that defendant would be “tickled pink” if he were convicted of only one charge. Defendant contends that the statement is an impermissible statement of the prosecutor's personal opinion of defendant's guilt, citing Ariz.R.Sup.Ct. 42, ER 3.4(e); State v. Abney, 103 Ariz. 294, 440 P.2d 914 (1968); State v. Van Den Berg, 164 Ariz. 192, 196, 791 P.2d 1075, 1079 (App.1990); and State v. Woodward, 21 Ariz.App. 133, 134, 516 P.2d 589, 590 (1973). In the cases cited by defendant, the prosecutor commented directly on the defendant's guilt.
Here, defense counsel argued in closing that the jury could “acquit [defendant] of three charges, you can acquit him of two charges. But acquit him.” In response, the prosecutor argued that “[i]f you convict [defendant] of one, he will be tickled pink, that is not holding him accountable for what he did. When you consider the evidence and testimony, return verdicts of guilty of all three counts.” In the context of this case, the prosecutor's statement was within the latitude afforded attorneys in final argument. See Amaya-Ruiz, 166 Ariz. at 171, 800 P.2d at 1279. Certainly, nothing approaching fundamental error occurred. See Gendron, 168 Ariz. at 155, 812 P.2d at 628. Likewise, the prosecutor's statement in closing argument that if the jury found defendant guilty of burglary it had decided the felony murder charge as well did not amount to error, let alone fundamental error. See Smith, 138 Ariz. at 83, 673 P.2d at 21.
Finally, defendant argues that the prosecutor impermissibly shifted the burden of proof during closing argument. The prosecutor argued: But defense has to consider what to say, knowing there is a killing, knowing that three witnesses are going to come into court and say what the defendant said, talk about what he said he did to [the victim], what's the explanation? (Emphasis added.) Both the prosecutor and the judge informed the jury that, in the words of the prosecutor, “what the lawyers say is not evidence ...” and “ [t]he defendant doesn't have to do anything in a criminal trial, they don't have to do a thing, they don't have to call a witness [.] ...”
The cases cited by defendant in support of his argument on this point deal with situations where the trial court instructed the jury in a manner that impermissibly shifted the burden of proof to the defendant. See, e.g., State v. Tittle, 147 Ariz. 339, 342, 710 P.2d 449, 452 (1985); State v. Mincey, 130 Ariz. 389, 397, 636 P.2d 637, 645 (1981); cert. denied, 455 U.S. 1003, 102 S.Ct. 1638, 71 L.Ed.2d 871 (1982); State v. Sterling, 148 Ariz. 134, 136, 713 P.2d 335, 337 (App.1985). Here, however, defendant claims that arguments by the prosecutor shifted the burden of proof to the defendant. The challenged statements could not possibly have affected the jury's view of the burden of proof.
10. Release of Juror's Names and Addresses
After trial, defendant asked the judge to provide him with the names and addresses of the trial jurors, contending he was entitled to this information to investigate and see whether any juror was guilty of misconduct. The judge refused. Defendant contends that, because this is a capital case, it justifies “the exercise of judicial authority to order more liberal discovery than usual.” We disagree. For a discussion by this court of our concerns in this area in the grand jury context, see State ex rel. Hastings v. Sult, 162 Ariz. 112, 781 P.2d 590 (1989). In researching the cases cited by counsel, and through our own research, we find the judge's refusal of this information to be entirely proper.
III. The Sentencing
1. The Prior Conviction
Defendant contends that the state did not prove beyond a reasonable doubt that he has a prior conviction for a crime of violence under § 13-703(F)(2). He argues that no certified copy of the conviction was entered in the record and no stipulation between the parties exists. We agree that no certified copy of the conviction was introduced. Instead, the record discloses only an FBI report disclosing that a Thomas West was convicted of manslaughter in Illinois. Defendant argues that the rap sheet is not tied to him and is hearsay. These foundational and hearsay objections were not made in the lower court; therefore, we consider them precluded absent fundamental error. State v. Allen, 157 Ariz. 165, 170, 755 P.2d 1153, 1158 (1988). However, even considering the rap sheet to be properly in evidence, we agree with defendant that the information it contains is insufficient to prove an aggravating factor under § 13-703(F)(2).
We do not, however, agree with defendant's contention that there was no stipulation concerning the prior conviction. The absence of a certified copy is, perhaps, not surprising, in view of the following statement made by defense counsel at the first sentencing hearing: We are agreeable to stipulating that Mr. West has suffered a prior manslaughter conviction which satisfies the aggravation, the aggravating circumstance described in 13-703 which is that it was a crime involving violence I think is the language. We read this for what it was intended to be-a stipulation.
The defendant complains, however, that he did not personally participate in the stipulation. “It is well established that a defendant may be bound by his counsel's trial strategy decision to waive even constitutional rights.” State v. Corrales, 138 Ariz. 583, 595, 676 P.2d 615, 627 (1983). The only exception to this rule is that the defendant himself must consent to the waiver of his constitutional rights when the circumstances of the case are exceptional. Henry v. Mississippi, 379 U.S. 443, 451, 85 S.Ct. 564, 569, 13 L.Ed.2d 408 (1965) (counsel has authority to waive introduction of illegally seized evidence without defendant's consent). We do not believe a stipulation to facts that the state could easily have proved amounts to an exceptional circumstance requiring defendant's consent. The stipulation is binding until and unless it is withdrawn.
A court may, of course, relieve a party of a stipulation on a motion for good cause shown, State v. Sorrell, 109 Ariz. 171, 173, 506 P.2d 1065, 1067 (1973) ( citing Gangadean v. Flori Investment Co., 106 Ariz. 245, 474 P.2d 1006 (1970)), but defendant never made such a request. Defense counsel said nothing at the second sentencing about the stipulation and did not request permission to withdraw from it. An Illinois appellate court opinion issued after the sentencing discloses that the defendant was indeed convicted of voluntary manslaughter, a crime included under § 13-703(F)(2). See People v. West, 209 Ill.App.3d 1019, 154 Ill.Dec. 724, 724-25, 568 N.E.2d 945, 945-46 aff'd, 145 Ill.2d 517, 164 Ill.Dec. 912, 584 N.E.2d 124 (1991).
We encourage stipulations to narrow issues and to promote judicial economy. Id. Defendant may have had good reasons for concentrating his sentencing hearing on issues other than his prior conviction. Even if it were error for the trial court to find the aggravating factor based on the stipulation, it was invited by the defendant. See State v. Diaz, 168 Ariz. 363, 365, 813 P.2d 728, 730 (1991) (party could not complain on appeal about the giving of an instruction he himself requested). We therefore reject defendant's argument that the aggravating factor of a prior violent felony conviction was not adequately proved.
2. Especially Cruel, Heinous or Depraved
The trial court found this murder to be both especially cruel and especially heinous within the meaning of A.R.S. § 13-703(F)(6). Defendant challenges these findings. We agree with the trial court's finding that the murder was especially heinous. This aggravating factor focuses on the murderer's state of mind. Amaya-Ruiz, 166 Ariz. at 178, 800 P.2d at 1286; State v. Fulminante, 161 Ariz. 237, 255, 778 P.2d 602, 620 (1988). In State v. Gretzler, 135 Ariz. 42, 52, 659 P.2d 1, 11, cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), we set forth several specific factors suggested by earlier cases as appropriate in determining whether heinousness is present. Later cases have found additional factors to be appropriate considerations, but they are not present here. State v. Stanley, 167 Ariz. 519, 529, 809 P.2d 944, 954, cert. denied, 502 U.S. 1014, 112 S.Ct. 660, 116 L.Ed.2d 751 (1991) (relationship between defendant and victim); State v. Smith, 141 Ariz. 510, 511-12, 687 P.2d 1265, 1266-67 (1984) (killing to eliminate witness). The Gretzler factors are (1) whether the murderer relished the murder; (2) whether the murderer inflicted gratuitous violence on the victim beyond that necessary to commit the crime; (3) whether the murderer inflicted needless mutilation on the victim; (4) whether the murder was senseless; and (5) whether the victim was helpless. Gretzler, 135 Ariz. at 52, 659 P.2d at 11.
Four of the five Gretzler factors are present here. Defendant relished the murder, he inflicted gratuitous violence beyond that necessary to commit the crime, the victim was helpless, and the murder was senseless. When defendant returned to Phoenix, he told people that he “beat the fuck out of some old man” and bragged about cuts and bruises on his hand coming from beating up “the old man he ripped off.” This shows that defendant relished his crime. Certainly, tying the victim up and pummeling his face until many bones were broken and the victim's hard palate detached, was gratuitous violence far beyond anything necessary to commit burglary. Just as certainly, the victim was helpless. Finally, the murder was senseless. A murder is senseless if it was unnecessary to achieve the defendant's goal. State v. Comer, 165 Ariz. 413, 429, 799 P.2d 333, 349 (1990), cert. denied, 499 U.S. 943, 111 S.Ct. 1404, 113 L.Ed.2d 460 (1991). Defendant did nothing to render aid after the crime, even when urged to.
The trial judge correctly found the murder to be especially heinous. Because the words in the statute “especially cruel, heinous, or depraved,” are stated in the disjunctive, a finding of any one of the three factors will suffice for finding that this aggravating factor exists. See, e.g., State v. Walton, 159 Ariz. 571, 587, 769 P.2d 1017, 1033 (1989), aff'd, Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). We, therefore, do not separately analyze defendant's attack on the trial court's finding that the murder was also especially cruel.
3. Pecuniary Gain
Defendant challenges the trial judge's finding that the murder was committed for pecuniary gain. In State v. Clark, 126 Ariz. 428, 436, 616 P.2d 888, 896, cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980), this court held that if the expectation of pecuniary gain is among the causes of the killing, the aggravating factor of pecuniary gain is established. See also LaGrand, 153 Ariz. at 36, 734 P.2d at 578. The evidence here showed that defendant was motivated by a desire to steal the victim's property. Certainly, the expectation of pecuniary gain was among the causes of the victim's death. The trial judge's finding is correct.
Defendant argues, however, that the pecuniary gain finding violates the Eighth Amendment because it repeats an element of the crime of burglary, resulting in an insufficient narrowing of the class of death eligible defendants. Dealing with a similar argument in the robbery context, we have held that the facts necessary to prove pecuniary gain are not the same as those necessary to prove robbery. State v. Carriger, 143 Ariz. 142, 161, 692 P.2d 991, 1010 (1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 864 (1985). In Carriger, we stated that “[p]roving a taking in a robbery does not necessarily prove the motivation for a murder, and the state cannot be said to be using one fact to prove two different items.” Id. (Emphasis added.) This distinction is equally true for burglary. The defendant need not intend to kill the victim or even to take his property to be guilty of burglary. Additionally, a felony murder committed in the course of a burglary does not necessarily result in a finding of pecuniary gain, because burglary may be based on the defendant's intent to commit any felony, not just theft. See A.R.S. § 13-1506; State v. Miller, 108 Ariz. 441, 445, 501 P.2d 383, 387 (1972). Proving a burglary, therefore, does not necessarily prove pecuniary motivation for the murder.
Federal cases hold that Arizona's capital sentencing scheme, as construed by this court, does narrow the class of death eligible defendants sufficiently to comply with the Eighth Amendment. A capital sentencing scheme is constitutional if it “ ‘genuinely narrow[s] the class of persons eligible for the death penalty and ... reasonably justif[ies] the imposition of a more severe sentence on the defendant compared to others found guilty of murder.’ ” Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 554, 98 L.Ed.2d 568 (1988) (quoting Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983)).
Defendant's argument that we must narrow the class of first degree murderers for pecuniary gain into death eligible and non-death eligible cuts too narrowly. What is required is that the class of murderers in general be narrowed into death eligible and non-death eligible. Arizona does this first at the guilt phase, by making only those guilty of first degree murder potentially death eligible. A.R.S. § 13-703(A). Further, only certain first degree murderers are death eligible-those who commit a first degree murder with one or more aggravating circumstances present. A.R.S. § 13-703(E). That all first degree murders committed for pecuniary gain are death eligible does not render Arizona's capital sentencing scheme unconstitutional. See Lowenfield, 484 U.S. at 241-46, 108 S.Ct. at 553-55 (upholding Louisiana's capital sentencing scheme where only first degree murderers were death eligible, and four of the five types of first degree murder led automatically to a death qualifying aggravating circumstance that was identical to an element of the crime). We therefore reject defendant's argument and conclude that Arizona's aggravating factor of pecuniary gain is constitutional.
4. Mitigating Circumstances Found Not to Exist
Defendant argues that the trial judge improperly rejected several mitigating factors. The sentencing judge must consider “any aspect of the defendant's character or record and any circumstance of the offense relevant to determining whether a sentence less than death might be appropriate.” State v. McCall, 139 Ariz. 147, 162, 677 P.2d 920, 935 (1983), cert. denied, 467 U.S. 1220, 104 S.Ct. 2670, 81 L.Ed.2d 375 (1984). Defendant must establish mitigating factors by a preponderance of the evidence. See State v. McMurtrey, 143 Ariz. 71, 73, 691 P.2d 1099, 1101 (1984), appeal after remand, 151 Ariz. 105, 726 P.2d 202 (1986), cert. denied, 480 U.S. 911, 107 S.Ct. 1359, 94 L.Ed.2d 530 (1987). Additionally, the trial court has discretion in deciding how much weight to give to the mitigating factors that the defendant offers. State v. Atwood, 171 Ariz. at 648, 832 P.2d at 665. On an independent review of the record, see State v. Gillies, 135 Ariz. 500, 511, 662 P.2d 1007, 1018 (1983), we find that the trial judge correctly concluded that defendant has established two mitigating factors.
Defendant claims that the fact that his conviction was based on a felony murder theory should be considered a mitigating circumstance. However, in a similar case, we rejected that claim, and we reject it here as well. See State v. Zaragoza, 135 Ariz. 63, 70, 659 P.2d 22, 29, cert. denied, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1356 (1983); see also Atwood, 171 Ariz. at 648-49, 832 P.2d at 665-666. In Zaragoza, we stated that giving a felony murder instruction may be mitigating if defendant can show that he did not intend to kill the victim or know with substantial certainty that his acts would cause death. 135 Ariz. at 70, 659 P.2d at 29.
There, the defendant “repeatedly hit the victim on the head and left her bleeding in the alley.” Id. The court concluded that “[i]t is reasonable to conclude, in the absence of any evidence to the contrary, that one who beats a 78 year old woman on the head and leaves her bleeding in an alley intends to kill or knows with substantial certainty that his action will cause death.” Id. Here, defendant repeatedly beat a 53-year-old man on the head and left him bound hand and foot and bleeding in an empty house. Later, he deliberately refused to seek aid, although urged to do so. Certainly, it is reasonable to conclude that defendant “intend[ed] to kill or [knew] with substantial certainty that his action [would] cause death.” Id. Thus, the fact that it was a felony murder is not mitigating.
Almost unbelievably, defendant argues that the facts of the crime (victim left ungagged, door left open, and light left on) should be considered mitigating. We easily reject this contention.
Next, defendant claims intoxication as mitigation. Defendant's own evidence refutes that claim. A defense expert testified: MR. DAWLEY: Okay. So you are not offering an opinion, so everyone is clear, as to whether he was under the influence at the particular time of the offense? EXPERT: No. I am not willing to do that. The trial judge was justified in rejecting intoxication as a mitigating factor. See Atwood, 171 Ariz. at 650-51, 832 P.2d at 667-68.
The trial judge also was justified in finding that defendant's chemical dependency did not significantly impair his ability to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law under A.R.S. § 13-703(G)(1). See Zaragoza, 135 Ariz. at 70, 659 P.2d at 29. Although defendant presented evidence that his chemical dependency made his choices in life more difficult, and that he made poor choices as a result of his addiction, the defense expert would not testify that defendant could not differentiate between right and wrong or conform his conduct to the requirements of the law. The trial court correctly determined that defendant's substance abuse did not establish the statutory mitigating factor specified in § 13-703(G)(1). See Atwood, 171 Ariz. at 651, 832 P.2d at 668. The trial court did find defendant's substance abuse to be a nonstatutory mitigating factor, discussed infra.
Defendant also argues that his failure to complete a drug rehabilitation program should have been considered in mitigation. The evidence suggests that defendant turned down the opportunity to enter such a program on three separate occasions; therefore, the trial judge correctly rejected this claim of mitigation. See Atwood, 171 Ariz. at 653-54, 832 P.2d at 670-71 (defendant's failure to take advantage of available therapy indicated unwillingness to be rehabilitated). Defendant submits that when drug free he has good work skills, is nonviolent, and is law abiding. Given defendant's repeated rejection of opportunities to enter drug rehabilitation, even if what defendant claims is true, the evidence is not mitigating in this case. Cf. id.
Defendant submits that he had trouble in school, possibly had a learning disability, and only completed nine years of education. He claims that this is mitigating. There is no showing at all that defendant did not know the difference between right and wrong or could not conform his conduct to the dictates of the law. See A.R.S. § 13-703(G)(1). Nor does the evidence on these subjects show any nonstatutory mitigation.
Defendant claims his age, 28 at the time of the crime, is a mitigating circumstance. We reject this claim, particularly in light of defendant's prior criminal history and experience with law enforcement. See, e.g., Walton, 159 Ariz. at 589, 769 P.2d at 1035; State v. Vickers, 159 Ariz. 532, 546, 768 P.2d 1177, 1191 (1989), cert. denied, 497 U.S. 1033, 110 S.Ct. 3298, 111 L.Ed.2d 806 (1990).
Defendant claims that he expressed remorse and that is a mitigating factor. State v. Wallace, 151 Ariz. 362, 368-69, 728 P.2d 232, 238-39 (1986). Defendant never publicly accepted responsibility for his crime; therefore, his remorse for the death of the victim, if any, is ineffectual. See Carriger, 143 Ariz. at 162, 692 P.2d at 1011. Much of the evidence, including defendant's own actions and words, belie his present claim of remorse.
Defendant contends that he enjoys the support of his family and has a child, which should be considered in mitigation. When not in prison, defendant's contact with his family and child was minimal. We do not see how this “family support,” to the extent that it exists, is mitigating. See Smith, 141 Ariz. at 512, 687 P.2d at 1267 (rejecting claim that the defendant having a small child was mitigating when there was little contact and no apparent “family tie”). We also find no merit to defendant's contention that his work skills, to the extent that they exist, should be considered mitigating.
Defendant's claim that his cooperation with authorities in waiving his extradition hearing is a mitigating factor is meritless. See State v. Jordan, 126 Ariz. 283, 289, 614 P.2d 825, 831, cert. denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980). The trial judge correctly found that defendant's failure to contest an event that would certainly have occurred without his consent did not create a mitigating circumstance.
The trial judge also correctly declined to find the circumstances of defendant's prior manslaughter conviction to be mitigating. The trial judge found that the defense version of the facts of the Illinois offense, a version not brought out at trial in Illinois, was incredible. The trial judge is in the best position to determine the credibility of witnesses. State v. Fierro, 166 Ariz. 539, 553, 804 P.2d 72, 86 (1990). We accept the trial judge's finding that the circumstances of defendant's previous manslaughter conviction were not mitigating. Cf. Atwood, 171 Ariz. at 654-55, 832 P.2d at 671-72 (finding meritless the defendant's argument that facts of prior conviction were mitigating after reviewing record of that prior conviction).
5. Mitigating Circumstances Found to Exist
The trial judge determined that defendant had proved, by a preponderance of the evidence, two mitigating factors: defendant had a substance abuse problem and suffered a deprived childhood. Based on our independent review of the record, we agree that these two mitigating factors have been established by a preponderance of the evidence. Defendant claims, however, that the two mitigating factors were given insufficient weight at sentencing.
We agree with the trial judge that these two mitigating factors are insufficient to overcome the aggravating factors; therefore, leniency is not appropriate. See A.R.S. § 13-703(E). Defendant had ample opportunities to overcome his substance abuse problem. Defendant declined three separate referrals to drug treatment. We cannot ascribe much weight in mitigation to a problem for which defendant refuses to take responsibility. Cf. Atwood, 171 Ariz. at 653-54, 832 P.2d at 670-71 (defendant's lack of interest in available therapy does not warrant leniency).
We also cannot ascribe much weight to defendant's difficult family background, because defendant has not shown how his difficult background affected his behavior. State v. Wallace, 160 Ariz. 424, 427, 773 P.2d 983, 986 (1989), cert. denied, 494 U.S. 1047, 110 S.Ct. 1513, 108 L.Ed.2d 649 (1990). Every person is affected by the circumstances of his or her upbringing. Evidence showed that defendant's brother, a product of the same home, has undertaken considerable effort to straighten out his life and avoid the troubles that have plagued defendant. We see nothing in the record by way of difficult family background that excuses defendant from the rules of conduct that apply to everyone else. See Gretzler, 135 Ariz. at 58, 659 P.2d at 17.
After conducting an independent review of the record, see Gillies, 135 Ariz. at 511, 662 P.2d at 1018, we find that the mitigating factors in defendant's favor are not weighty enough to overcome the aggravating factors against him.FN4 FN4. We stated earlier in this opinion that we believe this to be an appropriate death penalty case even if it be assumed that the Illinois voluntary manslaughter conviction was not properly proved.
6. Felony Murder; Enmund/Tison Hearing
Defendant argues that the trial court did not make a finding sufficient to comply with Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and, therefore, his death sentence must be vacated. We disagree. The trial court found on the record that “the defendant knew or had reason to know that the deceased was dying or had suffered serious physical injuries.” Under the United States Supreme Court's holding in Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), when the defendant is convicted of felony murder, he can be sentenced to death only if he was a major participant in the crime and displayed reckless indifference to human life. The trial court's statement is sufficient under Tison.
Aside from that, the jury's verdict here supplies the necessary finding to meet the more stringent Enmund requirement that defendant either killed, attempted to kill, or intended to kill the victim. See State v. Atwood, 171 Ariz. at 649-50, 832 P.2d at 666-67. In Atwood, this court held that when the case involves a single defendant who actually kills, the jury's verdict, based on instructions given them by the trial judge, supplies the necessary Enmund finding. Id.
Here, the trial judge instructed the jury: A person commits first degree murder if such person acting alone or with one or more other persons commits or attempts to commit burglary and in the course of and in furtherance of such offense or immediate flight from such offense such person or another person causes the death of any person. Unlike Atwood, the instruction here theoretically allowed the jury to find defendant guilty of first degree murder upon the participation of another in the felony. However, the evidence in this case showed that no one else participated in the burglary. Therefore, the jury could only have reached its verdict if it found that defendant killed the victim.FN5
FN5. Defendant also argues that notwithstanding Tison, State v. McDaniel, 136 Ariz. 188, 199, 665 P.2d 70, 81 (1983), prevents a defendant from being sentenced to death under the Arizona Constitution if the defendant merely displayed a reckless indifference to human life in committing felony murder. Defendant also argues that A.R.S. § 13-703 requires more than the reckless indifference to human life standard enunciated in Tison. Because the jury found that defendant actually killed, we need not reach this argument in this case.
7. Notice of Aggravating Circumstances
Defendant contends that the state is required to give him pretrial notice of the statutory aggravating factors it will rely on at sentencing. “There is no requirement that a defendant be advised in the indictment or information of the statutory penalty, or that he be advised what aggravating circumstances will be presented at sentencing in the event of a conviction.” State v. Richmond, 136 Ariz. 312, 316, 666 P.2d 57, 61, cert. denied, 464 U.S. 986, 104 S.Ct. 435, 78 L.Ed.2d 367 (1983). Instead, due process requires only that the prosecution disclose aggravating circumstances “sufficiently in advance of the hearing that the defendant will have a reasonable opportunity to prepare rebuttal.” State v. Ortiz, 131 Ariz. 195, 207, 639 P.2d 1020, 1032 (1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2259, 72 L.Ed.2d 863 (1982), disapproved on other grounds, State v. Gretzler, 135 Ariz. 42, 57 n. 2, 659 P.2d 1, 16 n. 2 (1983).
Defendant received notice of the aggravating factors to be used against him on April 19, 1988. The sentencing hearing was not held until August 1, 1988. Defendant had ample time to prepare rebuttal to the aggravating factors to be used against him. We hold that the post-trial notice of aggravating factors was adequate.FN6 Id. FN6. After the sentencing in this case, Ariz.R.Crim.P. 15.1(g) was adopted. It provides that the state shall, within 10 days after verdict, give notice of the aggravating factors upon which it intends to rely.
8. Request to Voir Dire the Trial Judge
Defendant contends he has a due process right to voir dire the trial judge concerning possible bias or predisposition to impose the death penalty. He does not. Stanley, 167 Ariz. at 527, 809 P.2d at 952; State v. Rossi, 154 Ariz. 245, 247-48, 741 P.2d 1223, 1225-26 (1987).
9. Prosecutorial Misconduct
Defendant complains of alleged prosecutorial misconduct at the sentencing hearing. Defendant did not object below; therefore, his claims are precluded absent fundamental error. Gendron, 168 Ariz. at 155, 812 P.2d at 628. In a legal argument to the court in support of the validity of Arizona's “especially cruel, heinous or depraved” factor as limited and defined by case law, the prosecutor argued: The MaynardFN7 situation is absolutely distinguishable from this case ... in Arizona, not only does your Honor look at this case, make that kind of proportionality review but our Arizona Supreme Court in every single case makes the same kind of review. FN7. Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). Defendant claims this argument runs afoul of Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S.Ct. 2633, 2639, 86 L.Ed.2d 231 (1985). There the United States Supreme Court stated: [I]t is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere. Id.
Caldwell is easily distinguishable. There, the prosecutor told a sentencing jury that a death sentence is automatically reviewable by the Supreme Court. Id. at 325-26, 105 S.Ct. at 2637-38. This argument could be considered a plea for the jury to take its responsibility for the death penalty less seriously. Here, the sentencer is the judge. The judge is presumed to know the law. See Walton, 497 U.S. 639, 110 S.Ct. 3047 (1990) (when jury is sentencer, it is important that it be instructed properly; judge-sentencer is presumed to know the law). The prosecutor here was merely trying to show the judge how the Arizona sentencing scheme differs from that at issue in Maynard. Obviously, the state was not suggesting that the judge should abandon responsibility for his decision.
Defendant also claims that the state's reference to defendant's failure to call two psychological witnesses was prosecutorial misconduct. Defendant retained experts to assess his psychological condition. The trial judge knew this; indeed, he precluded the state from interviewing the experts or discovering the results of their examinations until and unless they testified, because of physician-patient privilege. At sentencing, the prosecutor pointed out that the defendant had not called the experts. This was not misconduct. State ex rel. McDougall v. Corcoran, 153 Ariz. 157, 160, 735 P.2d 767, 770 (1987).
10. Presentence Report
Defendant argues that inadmissible information was included in the presentence report. Specifically, defendant refers to hearsay in the report and to references to his refusal to meet with the probation officer. Defendant did not object in the trial court; therefore, the issue is precluded on appeal absent fundamental error. State v. Marquez, 127 Ariz. 3, 7, 617 P.2d 787, 791 (App.1980); see also Van Den Berg, 164 Ariz. at 196, 791 P.2d at 1079 (failure to object to closing argument precludes consideration on appeal absent fundamental error). Where inadmissible material has been included in a presentence report in a capital case, we have stated:
Absent proof to the contrary, the trial judge in a capital case must be presumed to be able to focus on the relevant sentencing factors and to set aside the irrelevant, the inflammatory, and the emotional factors. State v. Beaty, 158 Ariz. 232, 244, 762 P.2d 519, 531 (1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 708 (1989); see also Fierro, 166 Ariz. at 548, 804 P.2d at 81. Even if the complained-of material was inadmissible, defendant has not shown that the trial judge considered it and, hence, defendant has shown no prejudice.
11. Arizona's Death Penalty Statute
Defendant makes a host of arguments challenging the constitutionality of Arizona's capital sentencing scheme. We find no merit in any of them. The great majority of defendant's arguments have been resolved by the United States Supreme Court in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), or by previous decisions of this court. Defendant has advanced no sufficient argument why we should change our earlier rulings, and we decline to do so.
Defendant argues that the death penalty cannot be imposed unless a jury, as opposed to a judge, determines whether aggravating and mitigating circumstances exist, because aggravating and mitigating factors are the functional equivalent of elements of the crime. Walton rejects this contention. Id. at 647-50, 110 S.Ct. at 3054-55; see also State v. Correll, 148 Ariz. 468, 483-84, 715 P.2d 721, 736-37 (1986). Defendant, however, argues that the equal protection clause also demands that a jury make the determination, because in Arizona certain noncapital defendants are entitled to a jury determination of sentence enhancement factors. See A.R.S. § 13-604(K). Notwithstanding the fact that sentence enhancement and aggravation are different, compare A.R.S. § 13-604(K) with A.R.S. §§ 13-702, 13-703, this precise argument has also been rejected by the Ninth Circuit Court of Appeals. See Clark v. Ricketts, 958 F.2d 851, 859 (9th Cir.1991), cert. denied, 506 U.S. 838, 113 S.Ct. 117, 121 L.Ed.2d 73 (1992). We agreed with the Ninth Circuit's position in State v. Landrigan, 176 Ariz. 1, 6, 859 P.2d 111, 116 (1993). See also State v. Spencer, 176 Ariz. 36, 45, 859 P.2d 146, 155 (1993); State v. Lopez, 175 Ariz. 407, 857 P.2d 1261 (1993).
Next, defendant argues that Arizona's death penalty statute is unconstitutional because it does not sufficiently channel the sentencer's discretion in imposing the death penalty. We rejected this argument in State v. Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31 (1991). That the prosecutor has discretion to request the death penalty does not alter this conclusion. See, e.g., State v. White, 168 Ariz. 500, 515, 815 P.2d 869, 884 (1991), cert. denied, 502 U.S. 1105, 112 S.Ct. 1199, 117 L.Ed.2d 439 (1992); Rossi, 146 Ariz. 359, 366, 706 P.2d 371, 378.
We have also previously dealt with and again reject defendant's argument that Arizona's death penalty statute mandates that the death sentence be imposed without considering whether death is the appropriate penalty in an individual case. See Walton, 497 U.S. at 651-52, 110 S.Ct. at 3056; Vickers, 159 Ariz. at 543-44, 768 P.2d at 1188-89. We also find no merit in defendant's argument that Arizona's death penalty statute is unconstitutional because it does not allow consideration of mitigating factors that are not proved by the defendant by a preponderance of the evidence. Walton, 497 U.S. at 649-52, 110 S.Ct. at 3055-56.
We also reject defendant's argument that imposing the death penalty is cruel and unusual punishment under article 2, section XV of the Arizona Constitution. See White, 168 Ariz. at 515, 815 P.2d at 884. Further, we have previously rejected defendant's argument that the death penalty has been applied in a discriminatory fashion in Arizona, and we reject the argument once again. See id. at 513-14, 815 P.2d at 882-83 (death penalty must be decided on a case-by-case basis and, in any event, defendant had produced no evidence of discriminatory intent); see also Richmond, 136 Ariz. at 321-22, 666 P.2d at 66-67.
Defendant also contends that the death penalty statute is unconstitutional because this court has not differentiated adequately the meaning of “heinousness” and “depravity” under A.R.S. § 13-703(F)(6). This argument is without merit, and we reject it. See, e.g., Amaya-Ruiz, 166 Ariz. at 178, 800 P.2d at 1286; Fulminante, 161 Ariz. at 254, 778 P.2d at 619 (citing Ortiz, 131 Ariz. at 206, 639 P.2d at 1031) (defining “heinous” to mean “hatefully or shockingly evil” and “depraved” to mean “marked by debasement, corruption, perversion, or deterioration,” with both referring to the defendant's state of mind at the time of the crime). In sum, we find no merit in defendant's arguments that Arizona's capital sentencing scheme is unconstitutional under the state and federal constitution, and we reject them.
Finally, defendant urges us to conduct a proportionality review and, based upon that review, to reduce his death penalty to life imprisonment. Although this court, in every death penalty case, independently considers and weighs aggravating and mitigating circumstances, and has done so in this case, it does not conduct comparative proportionality reviews. State v. Salazar, 173 Ariz. at 416-17, 844 P.2d at 583-84.
We have considered the issues presented on appeal and find that defendant's convictions are proper. We have conducted an independent review of the defendant's death sentence and have independently weighed the aggravating and mitigating factors applicable thereto. We find the sentence appropriate. We have searched the record for fundamental error pursuant to A.R.S. § 13-4035; Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), and have found none. We therefore affirm the convictions and sentences. FELDMAN, C.J., and CORCORAN, ZLAKET, and MARTONE, JJ., concur.
West v. Ryan, 608 F.3d 477 (9th Cir. 2010). (Habeas)
Background: After defendant's state court convictions for first degree murder, second degree burglary, and theft, and his sentence of death, were affirmed, 176 Ariz. 432, 862 P.2d 192, he petitioned for writ of habeas corpus. The United States District Court for the District of Arizona, David C. Bury, J., 2007 WL 4240859, without evidentiary hearing, denied defendant's petition, and granted defendant certificate of appealability as to his claim of ineffective assistance of counsel at sentencing. Defendant appealed.
Holdings: The Court of Appeals, Callahan, Circuit Judge, held that: (1) defendant was diligent in pursuing his mental impairments claim in state court, as required for evidentiary hearing on defendant's habeas petition, but (2) defendant failed to raise colorable claim that sentencing counsel's performance fell below an objective standard of reasonableness, and thus defendant was not entitled to evidentiary hearing on habeas petition. Affirmed.
CALLAHAN, Circuit Judge:
Thomas Paul West (“West”) appeals the district court's denial, without an evidentiary hearing, of his claim of ineffective assistance of sentencing counsel. We conclude that the district court did not abuse its discretion in denying his claim without a hearing and therefore affirm the judgment of the district court.
A. Murder and Trial
West moved to Arizona from Illinois in June 1987. While living in Tucson with a family friend, he met Donald Bortle (“Bortle”). Bortle had various items for sale in his home, including assorted electronic equipment and videotapes of popular movies. West's friend wanted to buy some things from Bortle, and West accompanied her to his house. About two weeks later in mid-July 1987, West broke into Bortle's home, beat him severely about the head, and bound his limbs. He left Bortle to die, stealing his car and various other items, including several pieces of electronic equipment.
West transported the stolen goods to the desert where he hid them, and then drove to Glendale where some of his friends lived. After retrieving the goods from Tucson with an acquaintance, West returned to Glendale and spent a couple of days with his friends.FN1 He made several allusions to beating up and robbing “some guy,” but expressed no remorse about it. West then absconded to Illinois with much of the stolen property. Soon thereafter, one of West's acquaintances contacted the Pima County Sheriff's Office, and an investigation led officers to Bortle's home where they discovered his dead and decaying body. His hands and feet were bound with a vacuum cleaner cord and lamp wire, and he had extensive fractures on the right side of his face. The fractures were so severe that his hard pallet had detached from his skull. The coroner estimated that he had bled to death within forty-five minutes to an hour after the beating.
FN1. The record shows that West was buying and taking large amounts of drugs around the time of the murder and immediately thereafter. Defense counsel successfully excluded this evidence from trial but introduced it during sentencing to establish the extent and effects of West's substance abuse.
West was arrested in Illinois when the car in which he was riding was stopped for speeding, and the officer discovered he was wanted for murder in Arizona. A search of the car revealed several pieces of electronic equipment and other items stolen from Bortle's home. West was charged in Arizona state court with first degree murder, second degree burglary, and theft. On July 27, 1987, the court appointed two public defenders, Frank Dawley (“Dawley”) and Maddalena Fiorillo (“Fiorillo”), to represent him. Soon after their appointment, they arranged for two neuropsychologists, Dr. Overbeck and Dr. Allender, to evaluate West for possible brain damage from substance abuse and purported head injuries. Dr. Overbeck's report, if one was ever made, does not appear in the record. As discussed in more detail below, Dr. Allender evaluated West over a two-day period and concluded that the test results were “more consistent with an individual of low educational status who may have some evidence of a learning disability” than with a cognitive impairment.
It appears that no question was raised about West's competency to stand trial, and following a week-long jury trial at which West did not testify, the jury returned guilty verdicts on all three counts.
The prosecution sought the death penalty, citing the following aggravating factors: (1) the murder was committed for pecuniary gain; (2) the murder was committed in an especially cruel and heinous manner; and (3) West had a prior conviction for a crime of violence (a 1981 manslaughter conviction). FN2. The record contains conflicting information as to whether the conviction was for voluntary or involuntary manslaughter.
At the initial sentencing hearing on May 4, 1988, West's counsel argued that a conviction for felony murder precluded imposition of the death penalty. Dawley indicated that, as “a matter of strategy,” he and Fiorillo chose to rely solely on this “legal argument” and not to present mitigation witnesses. Dawley said that they had looked for mitigating factors, explaining that West had been “examined” from “a mental health standpoint,” but that he and Fiorillo had determined that the evidence “was not worth bringing” to the court.
The judge disagreed with the defense's legal theory that the death penalty could not be imposed for a felony murder conviction and asked West if there was anything he wished to say prior to sentencing. West indicated that there were a lot of people who would testify that he was not a “wicked mad man,” but that he did not feel like “dragging them in” because he felt the court had already made up its mind. The court responded that it would consider any such evidence and would delay sentencing so that West could present it. West agreed, and the court rescheduled the hearing for June 6.
On May 11, Dawley sought and obtained another continuance, delaying the sentencing hearing until August 1. During the interim, defense counsel sent two investigators to Illinois and Oklahoma to interview thirteen witnesses about West's childhood, drug addiction, and the circumstances surrounding the earlier 1981 homicide. Counsel also retained a substance abuse expert, Terry Hickey (“Hickey”), who interviewed West, West's mother, his brother, and LuAnn St. Aubin (West's girlfriend at the time of the 1981 homicide). Hickey reviewed the transcripts of the interviews with West's family and friends, as well as West's Illinois prison records, his medical records, and Dr. Allender's neuropsychological evaluation.
Meanwhile, the probation office submitted an amended presentence report (“PSR”), which described positive letters from West's father, grandmother, maternal aunt, and a family friend. The letter from West's father stated that West was well-liked and that drugs and alcohol were “the bottom line to all of [his] problems.” Other letters opined that West needed drug treatment and that he was a good person when he was not using drugs. The PSR took note of the numerous interviews conducted by the defense investigators and advised the court to consider that West's actions may have been the result of chronic and acute drug abuse, which may have reduced his ability to appreciate the wrongfulness of his actions. It also opined that West's actions may have resulted from an unstable and abusive home environment.
In its pre-hearing sentencing brief, the defense argued that West (1) had an emotionally deprived childhood, (2) suffered from substance abuse, which diminished his capacity to conform his conduct to social and legal norms, (3) could be rehabilitated, (4) did not intend to kill Bortle, (5) could not legally be put to death for felony murder, and (6) had acted in self-defense and defense of another in connection with his 1981 homicide conviction.
At the August 1 sentencing hearing, Hickey and five lay witnesses testified on West's behalf. The defense also submitted newspaper articles about the 1981 homicide, hospital records from West's drug-related hospitalizations in 1983 and 1986, a rap sheet from the Department of Justice, and transcripts of interviews with thirteen witnesses who discussed the extent of West's substance abuse, his emotionally deprived childhood, and/or the circumstances surrounding the 1981 homicide. FN3. LuAnn St. Aubin and Mike Richmond, both of whom witnessed the 1981 homicide, testified that the victim was a violent drug dealer who had been terrorizing people at a party and was participating in an attack on St. Aubin when West shot him. Although St. Aubin testified at the sentencing hearing that the victim had pulled a gun on West, she did not offer such testimony during the manslaughter trial, and Richmond provided a contrary account. According to Richmond, when West pointed a gun at the victim, the victim taunted him by saying he “didn't have the balls” to pull the trigger. West then shot him.
Hickey testified that West came from a chemically dependent family, that West's chemical dependency began at age ten, and that it significantly impaired his judgment. He testified that addicts cannot reason normally and that they make increasingly bad decisions as their addiction progresses. He testified that extreme addictions cause “cognitive impairment[s]” similar to brain damage.
With regard to West's family, Hickey testified that West's father was an alcoholic and that West witnessed physical violence in the family from an early age. Hickey noted that West's father withdrew affection and refused to call the children by their names, calling them “pothead number one” and “pothead number two.” On cross-examination, Hickey admitted that West's prognosis was poor, noting that West had dropped out of treatment programs in 1983 and 1986, but explaining that it is not uncommon for addicts to fail such programs on their first attempts.
At the close of evidence, West made a lengthy statement in which he denied any responsibility for the crime. The sentencing court found three aggravating circumstances: (1) that West previously committed a felony involving the use of violence upon another, (2) that West committed the present offense in expectation of pecuniary gain, and (3) that West committed the present offense in an especially cruel and heinous manner, in that, A, the [victim] was hogtied, bound and beaten repeatedly; B, death was not immediate, the deceased was left dying and in a position unable to seek assistance; and C, that the defendant knew or had reason to know that the deceased was dying or had suffered serious physical injuries.
The court found West's emotionally deprived childhood and substance abuse problem to be mitigating, but not sufficiently so as to outweigh the aggravating factors. It sentenced West to death.
C. State Post-Conviction Proceedings
West appealed his conviction and sentence to the Arizona Supreme Court, which affirmed both in a published opinion on September 30, 1993. State v. West, 176 Ariz. 432, 862 P.2d 192 (1993). Prior to filing his petition for post-conviction relief, West filed a request in Pima County Superior Court for the appointment of a mental health expert, a pharmacologist, and an investigator to help prepare his petition. FN4 At the hearing on this motion, West's counsel, Carla Ryan (“Ryan”), stated that she sought a mental health expert because West had recently “taken a turn for the worse” and was writing “gibberish.” She said nothing about West's purported mental impairments or evidence that trial counsel allegedly failed to present at sentencing. The court granted the motion as to the investigator but denied funds for a mental health expert or pharmacologist, indicating that it would reconsider if Ryan could present more specific information about the need for such experts. FN4. In addition to other claims, West alleged that someone else had murdered Bortle, and he sought assistance in investigating this theory. West does not advance this theory in the present appeal.
West filed his petition for post-conviction relief in Pima County Superior Court on March 15, 1996. He raised numerous claims, including ineffective assistance of counsel at sentencing. On March 26, 1996, Ryan again requested funding for experts and discovery and specifically sought funds for a formal consultation with Dr. Thomas Thompson, a psychiatrist with whom she had discussed West's case, and who allegedly told her that testing could be done to explore West's “possible epileptic seizures leading to blackouts.” FN5 It is unclear whether or not the trial court ruled on this request before West filed a motion for an evidentiary hearing on July 17, 1996. The bulk of this motion sought a hearing on issues not relevant to the present appeal, but it also alleged that trial counsel failed to have Drs. Allender and Overbeck perform brain scans and other tests on West, and that without such tests “there [was] no way to know exactly what potential mitigation could have been presented.” The superior court denied the petition without an evidentiary hearing. FN5. West does not allege in this appeal that counsel failed to explore an alleged “seizure-related impairment.” Other than a single notation in a 1983 hospital record indicating that West claimed to have had a seizure from a drug overdose years earlier, there is no evidence that he suffered from seizures.
In a motion for reconsideration, Ryan-for the first time-supported her request for funding and an evidentiary hearing with an affidavit. Ryan's affidavit recounted her conversation with Dr. Thompson, who believed West might benefit from further neurological testing. The court denied the motion and West filed a petition for review with the Arizona Supreme Court. Among other claims of error, he challenged the denial of his requests for an evidentiary hearing and expert funding. The Arizona Supreme Court summarily denied the petition.
D. Federal Habeas Proceedings
On May 6, 1998, West filed a timely petition for a writ of habeas corpus in district court, raising thirty-two claims. It included a claim for ineffective assistance of sentencing counsel based on the alleged failure to investigate and present “valid mental health mitigation,” including evidence of head injuries, “continual[ ]” psychiatric counseling, and a “possible” cognitive impairment. West also alleged that counsel performed deficiently by failing to present Dr. Allender's report at sentencing. West asked for “an opportunity to present his arguments in an evidentiary hearing” after allowing him time “to investigate, hire experts, and properly prepare.”
The district court denied West's penalty phase ineffective assistance of counsel claim on the merits without a hearing. It reasoned that counsel's strategy at sentencing was to focus on the damaging effects of Petitioner's dysfunctional childhood and long-term addiction to drugs and alcohol and to emphasize that Petitioner was basically a good person who with the proper help could be rehabilitated. This was a sound strategy, and Petitioner has offered no support for the proposition that emphasizing evidence of cognitive impairments due to head injuries-if such evidence existed-would probably have led to a different sentence.
In denying West's request for an evidentiary hearing, the district court assumed without deciding that West had been diligent in seeking a hearing in state court, but held that a hearing was unnecessary because the record “clearly show[ed] that counsel presented a strong case in mitigation based on a thorough investigation of Petitioner's background.” Further, the district court reasoned that “a review of the entire record indicate[d] that the facts now alleged by Petitioner, even if proved true, would not entitle him to relief on this claim.”
The district court granted West a certificate of appealability as to his claim of ineffective assistance of counsel at sentencing. On appeal, West argues that the district court erred in denying this claim without first granting him an evidentiary hearing.
We review the district court's denial of a habeas petitioner's request for an evidentiary hearing for abuse of discretion. Schriro v. Landrigan, 550 U.S. 465, 468, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007); Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir.2005).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which governs this case, prohibits an evidentiary hearing where a petitioner has not been diligent in pursuing his claims in state court. 28 U.S.C. § 2254(e)(2); Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). “Diligence ... depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court,” and requires “in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law.” Id. at 435, 437, 120 S.Ct. 1479. “We review de novo whether,” due to a lack of diligence, AEDPA “removes from the district court's discretion the decision to grant or deny a request for an evidentiary hearing.” Baja v. Ducharme, 187 F.3d 1075, 1077 (9th Cir.1999).
Although respondent contends that AEDPA precluded an evidentiary hearing in district court due to West's lack of diligence in state court, the record reveals West's persistent, though imperfect, efforts to obtain a hearing. We acknowledge that many of his requests for an evidentiary hearing concerned other theories of relief and otherwise failed to specify the “mental impairment” evidence that trial counsel allegedly failed to investigate.FN6 We also note that, contrary to the requirements of Arizona Rule of Criminal Procedure 32.5, West failed to support his requests for a hearing with sworn affidavits.FN7
FN6. Because trial counsel and sentencing counsel were the same, we use these terms interchangeably. FN7. Arizona Rule of Criminal Procedure 32.5 provides, in relevant part: “Facts within the defendant's personal knowledge shall be ... under oath. Affidavits, records, or other evidence currently available to the defendant supporting the allegations of the petition shall be attached to it.”
However, despite these deficiencies, the record shows that West sought a hearing and funding for experts on more than one occasion in an effort to develop his claim that he suffered from mitigating mental impairments. Cf. Bragg v. Galaza, 242 F.3d 1082, 1090 (9th Cir.2001) (concluding that AEDPA prohibited a remand for an evidentiary hearing where petitioner never sought a hearing in state court). Accordingly, we, like the district court, assume that West was diligent for purposes of AEDPA. FN8. We reject respondent's contention that West “abandoned” his “mental impairment claim” in district court. Although West's request for an evidentiary hearing in district court focused on other issues, he nonetheless made specific allegations concerning ineffective assistance of sentencing counsel, and he arguably sought to develop that issue at a hearing. Even though he did not request funds for mental health experts in district court, respondent cites no law holding that such a failure is tantamount to abandonment of claim.
B. No Abuse of Discretion in Declining to Hold a Hearing
1. Governing Standards
To obtain an evidentiary hearing in district court, a habeas petitioner must, in addition to showing diligence in state court, allege a colorable claim for relief. See Landrigan, 550 U.S. at 474-75, 127 S.Ct. 1933; Earp, 431 F.3d at 1167. To allege a colorable claim, he must allege facts that, if true, would entitle him to habeas relief. Landrigan, 550 U.S. at 474, 127 S.Ct. 1933. Thus, “[i]n deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations,” and whether those allegations, if true, would entitle him to relief. Id. “[I]f the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Id. Furthermore, because AEDPA's deferential standards “control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate.” Id.; see also Earp, 431 F.3d at 1166-67.
Under the familiar AEDPA standard, a federal court may not grant “habeas relief unless a state court's adjudication of a claim ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,’ or the relevant state-court decision ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ ” Landrigan, 550 U.S. at 473, 127 S.Ct. 1933 (quoting 28 U.S.C. § 2254(d)) (internal citations omitted).
The relevant Supreme Court law governing West's penalty phase ineffective assistance of counsel claim is Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish a colorable claim of ineffective assistance of counsel, a petitioner must satisfy Strickland's two-pronged test by showing that (1) “counsel's representation fell below an objective standard of reasonableness” and (2) there is a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 687-88, 694, 104 S.Ct. 2052; see also United States v. Thomas, 417 F.3d 1053, 1056 (9th Cir.2005) (reciting “the familiar, two-part test of Strickland ”).
“Judicial scrutiny of counsel's performance must be highly deferential,” and courts “must indulge a strong presumption that counsel's conduct falls within the wide range of reason able professional assistance....” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Thus, “counsel is strongly presumed to have ... made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690, 104 S.Ct. 2052. Furthermore, the Supreme Court has recently reiterated that “because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Knowles v. Mirzayance, --- U.S. ----, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009).
2. No Colorable Claim under the First Prong of Strickland
Applying the deferential AEDPA and Strickland standards to the present case, we conclude that the district court did not abuse its discretion in denying West's claim without an evidentiary hearing. Although the state court did not explain its reasons for denying West's claim of ineffective assistance of sentencing counsel, our independent review of the record compels us to conclude that its decision on this issue was reasonable. See Richter v. Hickman, 578 F.3d 944, 951 (9th Cir.2009) (en banc), cert. granted sub nom. Harrington v. Richter, --- U.S. ----, 130 S.Ct. 1506, 176 L.Ed.2d 108 (2010). Moreover, the district court did not abuse its discretion in denying West's claim without an evidentiary hearing because West failed to raise factual disputes that, if decided in his favor, would present a colorable claim under the first prong of Strickland.
First, we reject West's contention that counsel's initial reliance on an erroneous legal theory, and the allegedly resultant delay in investigating mitigating evidence, constituted deficient performance. Although West argues that counsel's initial reliance on the “felony murder” argument delayed the investigation until after trial, the record shows that counsel acted promptly to investigate possible mitigation defenses. Counsel were appointed in late July 1987, and by September they had arranged for an evaluation by Dr. Overbeck. Soon thereafter, counsel retained Dr. Allender to evaluate West for possible cognitive impairments resulting from purported head injuries and alcohol abuse. At the initial sentencing hearing, Dawley indicated that the evaluations had been conducted for purposes of mitigation, but that he and his co-counsel ultimately found them unsupportive. Accordingly, it is clear that counsel promptly made appropriate mitigation inquiries and did not wait until after trial to begin their investigation.FN9
FN9. West argues that counsel did not comply with the 1989 ABA Guidelines for the Appointment and Performance of Counsel In Death Penalty Cases, which exhort counsel to launch a full-scale mitigation investigation immediately after appointment. However, the Supreme Court has held that the ABA guidelines are “only guides,” and may only be relevant to the extent they reflect prevailing norms at the time of counsel's performance. Bobby v. Van Hook, --- U.S. ----, 130 S.Ct. 13, 17 & n. 1, 175 L.Ed.2d 255 (2009) (per curiam). Under Van Hook, the 1989 guidelines are inapplicable to the present case since they did not come into effect until after West's trial. Id.
Furthermore, any delay between counsel's initial mitigation investigation and their subsequent post-trial investigation was immaterial. Despite counsel's initial reliance on an unavailing legal argument regarding the applicability of the death penalty to West, the record shows that, after the trial court rejected that argument, counsel capably used multiple extensions of time to marshal a substantial amount of mitigating evidence concerning West's substance abuse, his family background, and the extenuating circumstances surrounding his prior homicide conviction. During the nearly three months between the initial sentencing hearing and the August 1 hearing, counsel sent investigators out of state to interview thirteen different witnesses; they gathered records from West's multiple Illinois incarcerations and information about his 1981 conviction; they solicited letters from West's family and friends; and, they retained a substance abuse expert who conducted a thorough review of West's background. Counsel presented all of this evidence to the sentencing judge, and counsel then effectively used Hickey's testimony to establish the severity of West's substance abuse and to suggest that it resulted in problems similar to those caused by a cognitive impairment.
Given counsel's considerable and productive efforts during this time period, we cannot say that any delay caused by their initial approach amounted to constitutionally deficient performance. Moreover, West fails to explain how an evidentiary hearing would allow him to establish ineffective assistance of counsel regarding this aspect of their representation.
We likewise reject West's contention that counsel performed deficiently by failing to provide Dr. Allender with a more complete picture of his family, prison, and social background prior to the evaluation and by failing to follow up on purported “red flags” in the subsequent report. West relies on the pre-AEDPA case of Caro v. Woodford, 280 F.3d 1247 (9th Cir.2002), to argue that counsel should have given Dr. Allender more extensive information about his background prior to the evaluation. However, unlike counsel in Caro, who were aware of the petitioner's “extraordinary history of exposure to pesticides and toxic chemicals” yet failed to inform the experts who examined him of these facts, see id. at 1254, here, there is no indication that, at the time of Dr. Allender's examination, counsel knew about West's dismal family background or that such information would have been relevant to an examination exploring a suspected “organic impairment.” Indeed, during his evaluation, West downplayed the emotional abuse he suffered as a child, and there is no indication that he had been more forthcoming with counsel. Moreover, the record indicates that West did, in fact, provide Dr. Allender with information relevant to his psychiatric and social history. For example, he told Dr. Allender that he did not complete seventh grade, had received counseling in Illinois state prison, and had begun using drugs at an early age and continued to use them. Thus, there is no evidence that counsel's actions somehow impeded Dr. Allender's ability to perform a thorough neuropsychological evaluation.FN10
FN10. West attempts to prove otherwise by submitting for the first time in this appeal a letter written by Dr. Allender in 2008-more than twenty years after his initial evaluation of West in 1987. Even were we to over-look the tardiness of this evidence, it does not establish deficient performance with respect to Dr. Allender's evaluation. In the letter, Dr. Allender indicates only that, had he known the extent of West's abusive childhood, he would have done “additional questioning” and “may have” diagnosed West with post-traumatic stress syndrome, which he opined “may have helped the judge to understand the source of Mr. West's drinking and drug problems” and difficulty staying in treatment. These equivocal statements fail to undermine the state court's conclusion that sentencing counsel provided constitutionally sufficient performance.
Furthermore, contrary to West's assertions, there were no “red flags” that counsel overlooked in Dr. Allender's report. Although the report mentioned that West had been given psychoactive medication upon his initial incarceration, it also noted that West was no longer taking the medication, that his thinking had cleared, and that he was currently relying only on Tryptophan for sleep. West has never submitted affidavits or other evidence indicating that this brief period of medication was for treatment of something other than detoxification or aid in sleeping. Further, although West told Dr. Allender that he was currently depressed and had suicidal thoughts, he said nothing to suggest a history of mental illness that might be relevant to mitigation. Cf. Rompilla v. Beard, 545 U.S. 374, 391-93, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (finding deficient performance where counsel failed to examine files related to petitioner's prior convictions, which indicated he suffered from schizophrenia and other disorders); Lambright v. Stewart, 241 F.3d 1201, 1207 (9th Cir.2001) (remanding for an evidentiary hearing where counsel failed to obtain a psychiatric evaluation despite his awareness of evidence indicating petitioner's hospitalization in a mental facility and two prior suicide attempts); Earp, 431 F.3d at 1177-78 (remanding for an evidentiary hearing where counsel failed to do follow-up investigation of records indicating that petitioner had a history of troubled mental health).
Indeed, the record shows that West's “history” of psychiatric treatment was situational and unremarkable. Records from one period of imprisonment in Illinois indicate that he had a few visits with a psychologist, but that the psychologist's primary diagnosis was “substance abuse.” The same records mention possible “secondary” and “third” diagnoses of borderline personality disorder and “learning disability,” respectively, but also note that West's intellect was not impaired, his insight and judgment were good, and that previous blackouts and amnesic attacks were from excessive drug use. Another record from a different period of incarceration shows that West talked to a psychologist when he was depressed about relationship problems with his girlfriend. These records, far from casting doubt on the reasonableness of counsel's performance, support their decision to focus on West's substance abuse as a primary mitigation factor.
Similarly, Dr. Allender's report, rather than revealing alleged deficits in “intellectual memory, language and perceptual functioning” as West contends, indicates that West had normal performance in those areas. Further, contrary to West's contention that counsel ignored the report's mention of his purported head injuries, the record shows that it was counsel who retained Dr. Allender in the first instance to evaluate whether the alleged injuries affected his neuropsychological functioning. Not incidentally, the record does not support West's claims of having suffered numerous head injuries, and West has never submitted any evidence to create a material factual dispute on this issue.FN11 Dr. Allender, however, accepted West's contentions as true, but nonetheless concluded that the “results ... [of the evaluation were] more consistent with an individual of low educational status who may have some evidence of a learning disability” than with any cognitive impairment resulting from head injuries or substance abuse.
FN11. West told Dr. Allender that he tripped while running, fell on his head, and ruptured his spleen, but his 1983 hospital records indicate that his splenectomy was the result of a car accident. Further, West's claim about being thrown on his head while in Illinois state prison is inconsistent with the related medical records. Contrary to West's assertion that he could not move one side of his body after this incident and that the prison hospital wanted to admit him, the medical records indicate that West could move all of his extremities, had normal x-rays, and left the emergency room in fair condition with follow-up to be provided “as needed.”
The only arguably abnormal finding by Dr. Allender was that West's right hand was “somewhat” slow and “did not demonstrate the expected right hand advantage.” Based on this finding, Dr. Allender commented that a cognitive impairment could not be “ruled out” absent further testing. However, such an equivocal finding, in light of his ultimate conclusion that the test results were more consistent with someone of a “low educational status” than with a cognitive impairment, is not the kind of “powerful mitigating evidence” sufficient to overcome Strickland's presumption that counsel acted reasonably in declining to investigate further the possibility that West might suffer from a cognitive impairment. See Van Hook, 130 S.Ct. at 19 (citing Rompilla, 545 U.S. at 389-93, 125 S.Ct. 2456).
In the same vein, it was not objectively unreasonable for counsel not to introduce Dr. Allender's underwhelming report at sentencing. At the initial sentencing hearing, counsel indicated that they did not believe the report was “worth” bringing to the court's attention. This was a reasonable strategic decision as Dr. Allender concluded that West did not have any impairments. Counsel also acted reasonably by declining to present the report at the second hearing because doing so would have risked undermining Hickey's testimony that severe addiction can result in cognitive impairments and actual brain damage. Indeed, Hickey, a “substance abuse expert,” was able to offer such an opinion without the risk of impeachment that Dr. Allender would have faced. In other words, if Dr. Allender had testified that West's cognition was impaired, the prosecution surely would have impeached such testimony with his contrary written report. Furthermore, even if defense counsel had just introduced the report, the prosecution could have used it to impeach Hickey's testimony that severe addiction could result in cognitive impairments.
For these same reasons we reject West's contention that counsel performed deficiently by retaining Hickey rather than a true “mental health” expert. The record shows that Hickey presented persuasive testimony about the links between West's childhood, his substance abuse, and its effects on his judgment. West fails to explain how a “mental health expert” could have offered more compelling evidence, especially when there was no evidence that he actually suffered from a cognitive impairment.
As the Supreme Court recently emphasized in Van Hook, “the Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices.” 130 S.Ct. at 17 (quoting Roe v. Flores-Ortega, 528 U.S. 470, 479, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000)). Here, the record shows that, in light of Dr. Allender's underwhelming evaluation, counsel reasonably chose not to investigate further the possibility that West suffered from a cognitive impairment and to focus instead on West's long-standing substance abuse and his dysfunctional family background. Counsel made efficient use of a nearly three-month extension of time to marshal numerous witnesses and an expert to testify in support of these factors. They also ably presented evidence of the extenuating circumstances surrounding his prior manslaughter conviction. Cf. Williams, 529 U.S. at 395, 120 S.Ct. 1495 (finding deficient performance where counsel began mitigation investigation one week prior to trial and failed to uncover extensive records graphically describing petitioner's nightmarish childhood); Allen v. Woodford, 395 F.3d 979, 1002 (9th Cir.2005) (finding deficient performance where counsel had only one week in which to prepare the witnesses and evidence, contacted only a few of more than twenty-six potential witnesses, and failed to request a continuance).
West has failed to cite any potentially powerful mitigating evidence that counsel overlooked, nor has he raised any factual disputes regarding counsel's performance that require resolution in an evidentiary hearing, and that, if decided in his favor, would entitle him to relief.FN12 Accordingly, we conclude that West has failed to raise a colorable claim of deficient performance under the first prong of Strickland, and therefore, we do not reach the second, “prejudice” prong of the Strickland analysis.FN13 Thus, based on our independent but deferential review of the record, we conclude that it was not unreasonable for the state court to deny West's penalty phase claim of ineffective assistance of counsel and that the district court did not abuse its discretion in denying that claim without an evidentiary hearing.
FN12. For the first time on appeal, West submits a 2008 letter from Dr. Richard M. Kolbell, Ph.D., who opines that West has “episodic dyscontrol” (an impulse control disorder characterized by periods of rage and violent behavior) and Attention-Deficit/Hyperactivity Disorder. Dr. Kolbell opines that both conditions have a “prominent organic basis,” and that it would have been “reasonable” to explore these at the time of West's trial and sentencing. Even overlooking the tardiness of this new evidence, it nonetheless fails to establish West's entitlement to an evidentiary hearing, as it is speculative in nature and does not establish deficient performance. These diagnoses were not obvious from the record at the time of sentencing, and the episodic dyscontrol diagnosis would have been inconsistent with presenting West as non-violent and the murder as accidental.
FN13. To the extent that West seeks a hearing in order to develop “new” mitigating evidence in the first instance, AEDPA prohibits such proceedings. See Williams, 529 U.S. at 437, 120 S.Ct. 1479 (explaining that “[f]ederal courts sitting in habeas are not an alternative forum for trying facts and issues” that were not developed in state proceedings).
The present record, when viewed through the deferential lenses of AEDPA and Strickland, does not support West's claim that counsel failed to provide effective assistance at sentencing. West has pointed to no potentially powerful mitigating evidence that counsel overlooked or failed to develop, nor has he alleged facts that, if decided in his favor, would establish a colorable claim under the first prong of Strickland. Accordingly, there is nothing to be determined in an evidentiary hearing, and the district court did not abuse its discretion by denying his claim without one. AFFIRMED.