IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,

Appellee,

v.

ANDRE MICHAEL LETEVE,

Appellant.

No. CR-12-0535-AP

Filed August 12, 2015

Appeal from the Superior Court in Maricopa County

The Honorable Karen L. O'Connor, Judge

No. CR2010-005965

AFFIRMED

COUNSEL:

David Goldberg (argued), Attorney at Law, Fort Collins, CO, Attorney for 

Andre Michael Leteve

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor 

General, Lacey Stover Gard, Chief Counsel, Capital Litigation Section, Julie 

A. Done (argued), Assistant Attorney General, Phoenix, Attorneys for State 

of Arizona

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE

CHIEF JUSTICE PELANDER and JUSTICES BERCH, BRUTINEL, and 

TIMMER joined.

CHIEF JUSTICE BALES, opinion of the Court:

¶1 This automatic appeal arises from Andre Michael Leteve’s 

convictions and death sentences for murdering his two young sons. We 

have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution 

and A.R.S. §§ 13-4031 and 13-4033(A)(1).
STATE V. LETEVE

Opinion of the Court

2

BACKGROUND

¶2 Leteve married Laurie in 1998. They had two sons: Alec in 

2004 and Asher in 2008. After Leteve revealed a series of marital infidelities,

Laurie moved out of their home in August 2009 and filed for divorce two 

months later. On the day Laurie filed for divorce, Leteve bought a 

handgun. In the following months, he retaliated against Laurie in several 

ways. Events tragically culminated in late March 2010, when Alec and 

Asher were staying at Leteve’s home. On the morning of March 31, Leteve 

called 911 to report that he had killed his two sons and attempted to commit 

suicide. When police arrived, they found each child shot to death, and

Leteve had a gunshot wound to his face. He repeated that he had shot his 

sons. Police also found a letter to Laurie that Leteve had prepared days

earlier. It ended by saying, “Enjoy the rest of your life without us.”

¶3 A jury found Leteve guilty of two counts of first degree 

murder. The jury also found three aggravating circumstances: Leteve had 

committed the murders in an especially heinous or depraved manner, he 

was convicted of multiple homicides committed on the same occasion, and 

each victim was under the age of fifteen. A.R.S. §§ 13-751(F)(6), (F)(8), 

(F)(9). Considering these factors and the mitigation evidence, the jury 

sentenced Leteve to death for each murder.

DISCUSSION

A. Admissibility of Leteve’s Statements to Police at His Home

¶4 Statements made by a suspect during custodial interrogation

generally are not admissible unless preceded by the warnings required by 

Miranda v. Arizona, 384 U.S. 436, 444 (1966). Leteve argues that the trial 

court erred by admitting statements he made to police officers at his home 

before he was given Miranda warnings. We reject this argument because 

the statements were admissible under the “public safety” exception to the 

Miranda rule recognized in New York v. Quarles, 467 U.S. 649, 656 (1984).

¶5 Just after he killed his sons, Leteve shot himself in the chin 

and the bullet exited through his nose. These wounds made it difficult for 

the 911 operator to understand him. When he tried to tell her that he had 

shot his sons, ages one and five, the operator understood him to say that he 

had shot one son, age fifteen. She relayed this information to the police.
STATE V. LETEVE

Opinion of the Court

3

¶6 When the police arrived at Leteve’s home, they saw Leteve 

bleeding profusely from his face and a young child lying on a couch. For 

safety reasons, Leteve was handcuffed and questioned by two officers. One 

officer asked Leteve if he had killed the child on the couch, and Leteve 

nodded up and down. As officers inspected the child, they asked Leteve 

where he had shot the child and he said, “In the back of the head.”

¶7 A second officer opened Leteve’s shirt to check for other 

injuries, asking Leteve what had happened. Leteve responded that he had 

shot his children. The officer asked where his children were and Leteve 

said one was on the couch and the other was upstairs. The officer asked 

Leteve to be more specific, and he said the second child was in the crib. 

When the officer asked Leteve where he had shot his children, Leteve again 

said, “In the back of the head.” The officer asked Leteve what had 

happened to him, and Leteve answered that he had shot himself in the chin, 

lifting his head to show the officer the injury. The officer asked if anyone 

else was home, and Leteve said no. Noting Leteve’s wedding ring, the 

officer asked, “Where is your wife?” Leteve answered, “At work.” The 

officer then asked, “Why did you do this?” Leteve replied, “I don’t know.”

¶8 Leteve moved to suppress these statements, arguing that they 

were involuntary and made before he received Miranda warnings. The trial 

court ruled that the statements were voluntary and, except for Leteve’s 

answer to the final question, admissible under Quarles. (At trial, after the 

State introduced evidence of Leteve’s other statements, Leteve elicited 

through cross-examination that he had said “I don’t know” when asked 

why he had done this.) On appeal, Leteve argues only that his statements 

were admitted in violation of Miranda; the State does not dispute that he 

was in custody and being questioned when he made the statements.

¶9 Under Quarles, a suspect’s statements made in response to 

“questions necessary to secure [the officers’] own safety or the safety of the 

public” are admissible even if Miranda warnings have not been given. 467 

U.S. at 659. Whether questioning falls within the public safety exception 

turns on “whether there was an objectively reasonable need to protect the 

police or the public from any immediate danger.” State v. Ramirez, 178 Ariz. 

116, 124, 871 P.2d 237, 245 (1994) (quoting United States v. Brady, 819 F.2d 

884, 888 n.3 (9th Cir. 1987)).
STATE V. LETEVE

Opinion of the Court

4

¶10 Here, the officers reasonably asked questions to assess what 

had occurred (particularly given their misimpression that Leteve had 

reported shooting one fifteen-year-old child), to determine the nature of the 

injuries to those present, and to identify any remaining threats. The only 

question that might be characterized as “designed solely to elicit 

testimonial evidence from a suspect,” Quarles, 467 U.S. at 659, was the police 

asking Leteve why he had committed the murders. Leteve, having himself 

introduced his response at trial, cannot object on appeal to its admission. 

The trial court did not abuse its discretion in admitting evidence of Leteve’s 

other statements to officers at his home.

B. Admissibility of Evidence of Leteve’s Other Acts

¶11 Leteve argues that the trial court abused its discretion in 

admitting other acts evidence under Arizona Rule of Evidence 404(b). That 

rule precludes evidence of “other crimes, wrongs, or acts” to prove the 

character of a defendant or “action in conformity therewith.” Ariz. R. Evid. 

404(b). Such evidence may be admissible, however, for other purposes, 

such as “proof of motive, opportunity, intent, preparation, plan, 

knowledge, identity, or absence of mistake or accident.” Id. When other 

acts evidence is offered for a non-propensity purpose under Rule 404(b), it 

is also subject to Rule 402’s relevance test, Rule 403’s balancing test, and 

Rule 105’s requirement that certain limiting jury instructions be given. State 

v. Ferrero, 229 Ariz. 239, 242 ¶ 12, 274 P.3d 509, 512 (2012).

¶12 The trial court admitted evidence of Leteve’s other acts to 

show Leteve’s intent or motive. Leteve did not object to the admission of 

two notes he wrote to Laurie contemporaneously with the killings. In the 

first, Leteve predicted that “This should fuck you up for a good long time 

to come,” and admonished that “none of this had to happen this way if you 

had made the effort.” The second note, left at the scene of the shootings 

and signed by both Leteve and Alec, said “For everything you get in life, 

you must give something up. I wonder if you’ll understand what price 

you’ll have paid for your freedom?”

¶13 Leteve objects to evidence of various other acts reflecting that 

he killed his sons out of long-seething anger with Laurie and in retaliation 

against her. These acts include Leteve’s telling Laurie and others before 

their separation about his several extramarital affairs, Leteve’s calling 

police in July 2009 in an attempt to have Laurie removed from their home, 
STATE V. LETEVE

Opinion of the Court

5

Laurie’s obtaining an order of protection a few weeks later, and police 

serving Leteve at his home with the order. A babysitter testified that when 

she was helping Laurie move out in August 2009, Leteve called Laurie and 

said, “I will find you guys” and something about having “a GPS system on 

the car.”

¶14 After Laurie moved out and filed for divorce, she began 

dating A.M., who worked with her at a hospital. One week before the 

murders, Leteve sent a dozen roses, accompanied by a note purportedly 

written by A.M. to Laurie, to the hospital’s administrator responsible for 

human resources. Evidently, Leteve was attempting to create problems at 

work for Laurie. In the days before the murders, Leteve also sent both 

Laurie and A.M. an email along with a sexually explicit video that Leteve 

and Laurie had made during their marriage. Leteve also obtained 

background checks on A.M. and A.M.’s ex-wife.

¶15 Finally, the State presented evidence that Leteve had

substantial debt and little or no money in his bank account at the time of 

the murders. This evidence, the State argues, was relevant to explain why 

Leteve would attempt to kill himself after murdering his sons.

¶16 The challenged other acts evidence was admissible under 

Rule 404(b) to show Leteve’s intent or motive. Leteve unpersuasively 

argues that his retaliatory actions against Laurie should not have been 

admitted because she was not the murder victim. We have long recognized 

that evidence of prior ill will or difficulties between a defendant and a 

murder victim may be relevant to show motive or premeditation. See, e.g., 

State v. Wood, 180 Ariz. 53, 62, 881 P.2d 1158, 1167 (1994); State v. Jeffers, 135 

Ariz. 404, 418, 661 P.2d 1105, 1119 (1983). Here, the past difficulties between 

Leteve and Laurie were similarly relevant to his intent and motive in killing 

their sons. Evidence of Leteve’s financial difficulties was relevant to his 

motive in attempting to commit suicide and to establishing that the killings 

were planned. See State v. DePiano, 187 Ariz. 41, 46, 926 P.2d 508, 513 (App. 

1995), vacated in part, 187 Ariz. 27, 926 P.2d 494 (1996).

¶17 We further conclude that the trial court did not abuse its 

discretion in ruling, under Rule 403, that the probative value of the other 

acts evidence was not substantially outweighed by the danger of unfair 

prejudice or needlessly presenting cumulative evidence. The trial court 

properly instructed the jury on the limited purposes for which the other 
STATE V. LETEVE

Opinion of the Court

6

acts evidence could be considered, thus mitigating any prejudicial impact. 

See State v. Villalobos, 225 Ariz. 74, 80 ¶ 20, 235 P.3d 227, 233 (2010).

C. Trial Court Rulings Limiting Leteve’s Mental Health and 

Prescription Drug Use Evidence and Denying a Mistrial

¶18 Leteve claims that he was prevented from introducing certain 

admissible evidence that he lacked the mens rea necessary to commit first

degree murder. We review a trial court’s rulings on the admission of 

evidence for abuse of discretion. State v. Davolt, 207 Ariz. 191, 208 ¶ 60, 84 

P.3d 456, 473 (2004). We review questions of law related to the admissibility 

of evidence de novo. State v. Moran, 151 Ariz. 378, 381, 728 P.2d 248, 251 

(1986). Although the trial court erred in excluding some evidence, we hold 

that the error was harmless beyond a reasonable doubt. See State v. Ellison, 

213 Ariz. 116, 131 ¶ 51, 140 P.3d 899, 914 (2006).

1. Observation Evidence

¶19 At trial, Leteve sought to introduce testimony by his parents

and by his psychological expert, Dr. Rafael Morris, to show his character 

trait for impulsivity. He contends that this evidence was properly 

admissible as “observation evidence” under Clark v. Arizona, 548 U.S. 735 

(2006), and State v. Christensen, 129 Ariz. 32, 628 P.2d 580 (1981), and would 

have rebutted the State’s premeditation evidence.

¶20 The legislature has not provided for, and this Court has 

refused to allow, an affirmative defense of diminished capacity. See A.R.S. 

§ 13-502(A); State v. Schantz, 98 Ariz. 200, 212–13, 403 P.2d 521, 529 (1965). 

As a result, “Arizona does not allow evidence of a defendant’s mental 

disorder short of insanity either as an affirmative defense or to negate the 

mens rea element of a crime.” State v. Mott, 187 Ariz. 536, 541, 931 P.2d 

1046, 1051 (1997).

¶21 We have, however, allowed a defendant to offer “evidence 

about his behavioral tendencies” to show “that he possessed a character 

trait of acting reflexively in response to stress.” Id. at 544, 931 P.2d at 1054 

(citing Christensen, 129 Ariz. at 34, 628 P.2d at 582). Such evidence has been 

termed “observation evidence” by the United States Supreme Court. Clark, 

548 U.S. at 757. That Court distinguished “observation evidence” from 

“mental-disease evidence,” which is “opinion testimony that [the 
STATE V. LETEVE

Opinion of the Court

7

defendant] suffered from a mental disease with features described by the 

witness,” and “capacity evidence” which concerns a defendant’s “capacity 

to form mens rea,” both of which are prohibited by Arizona law. Id. at 

757–59.

¶22 At a pretrial hearing, Leteve argued that Dr. Morris and 

Leteve’s parents had observed his character trait for impulsivity and that 

their testimony was thus admissible observation evidence under Clark. The 

trial court flatly prohibited any testimony from Dr. Morris, reasoning that 

he had only interviewed Leteve after the murders and that his testimony 

would be relevant only to a diminished capacity defense. Because Leteve’s 

parents had observed Leteve around the time of the murders, the trial court 

permitted them to testify about Leteve’s impulsivity, but limited that 

testimony to events occurring the night before and the day of the murders.

¶23 Leteve does not dispute that Arizona law prohibited Dr. 

Morris from testifying that he lacked the capacity to form the mens rea for 

first degree murder or that he acted impulsively when he shot his children. 

As we said in Christensen, “[a]n expert witness may not testify specifically 

as to whether a defendant was or was not acting reflectively at the time of 

a killing.” 129 Ariz. at 35–36, 628 P.2d at 583–84. But we also acknowledged 

that a defendant who can show that he has a character trait for acting 

without reflection presents a fact that makes it more likely that he acted 

impulsively at the time of the murders. Id. at 35, 628 P.2d at 583.

¶24 That Dr. Morris did not observe Leteve’s character trait on the 

night before or the day of the murders is not dispositive. In Christensen, we

found that an expert witness who “had interviewed [the defendant] and 

had reviewed tests which had been administered to him” after the crimes

should have been allowed to testify. Id. at 34, 628 P.2d at 582. Because Dr. 

Morris would have testified that Leteve had a general character trait for 

impulsivity, and not that he acted impulsively at the time of the murders,

the trial court erred by excluding the testimony merely because the expert’s 

observations were not contemporaneous with the crime. Were we to 

uphold such a restriction, it would effectively prohibit a defendant from 

offering any expert testimony about general behavioral characteristics that 

relate to the issue of premeditation, in contravention of Christensen. 129 

Ariz. at 35, 628 P.2d at 583. The trial court likewise erred by placing

temporal restrictions on the observation testimony by Leteve’s parents.
STATE V. LETEVE

Opinion of the Court

8

¶25 Although the trial court erred, we will not reverse if the error 

was harmless. In deciding whether error is harmless, the question “is not 

whether, in a trial that occurred without the error, a guilty verdict would 

surely have been rendered, but whether the guilty verdict actually rendered 

in this trial was surely unattributable to the error.” Sullivan v. Louisiana, 508 

U.S. 275, 279 (1993). “We must be confident beyond a reasonable doubt that 

the error had no influence on the jury’s judgment.” State v. Bible, 175 Ariz. 

549, 588, 858 P.2d 1152, 1191 (1993).

¶26 Leteve offered the precluded observation evidence to rebut

the premeditation element of first degree murder. “To prove 

premeditation, the state must establish actual reflection and more than 

mere passage of time, but it may do so with all the circumstantial evidence 

at its disposal in a case.” State v. Boyston, 231 Ariz. 539, 551 ¶ 60, 298 P.3d 

887, 899 (2013) (internal quotation marks omitted). Here, however, the 

evidence that Leteve reflected on the murders was overwhelming. On the 

day Laurie filed for divorce, he purchased the weapon he used to carry out 

the murders. He sent messages to Laurie that she would be alone and that 

“this will end badly.” When he killed his sons, he shot each in the back of 

the head through a pillow or blanket, and he had to walk about 100 feet 

after he shot Alec to then shoot Asher. Most significantly, he left several 

notes and letters, one of which was typed several days before the murders 

and signed both by Leteve and Alec. In short, even had evidence of Leteve’s 

character trait for impulsivity been admitted, no reasonable juror could 

have concluded that Leteve had not reflected on the killings before he 

committed them. Cf. Christensen, 129 Ariz. at 35, 628 P.2d at 583 (noting, in 

particular circumstances, that jury could have concluded from evidence of 

impulsivity that defendant did not premediate the homicide). Any error in 

excluding the evidence was harmless.

2. Prescription Drug Evidence

¶27 Leteve argues that the trial court erred by precluding 

evidence of his prescription drug use at the time of the murders, which Dr. 

Morris asserted exacerbated Leteve’s impulsivity. Leteve argues that this 

evidence should also have been admitted to rebut premeditation. The trial 

court ruled this evidence inadmissible because there was no proffered 

evidence that Leteve took the medication as prescribed. The only way to 

make the evidence admissible, the court reasoned, would be for Leteve 

himself to testify that he was properly taking his medication.
STATE V. LETEVE

Opinion of the Court

9

¶28 Arizona law prohibits the defense of voluntary intoxication 

“resulting from . . . the abuse of prescribed medications.” A.R.S. § 13-503. 

Our court of appeals, however, has held that this statute “does not preclude 

the assertion of temporary intoxication arising from the non-abusive use of 

prescription medication to negate the requisite state of mind for a criminal 

act.” State v. McKeon, 201 Ariz. 571, 575 ¶ 20, 38 P.3d 1236, 1240 (App. 2002). 

That court has also held that involuntary intoxication is not an affirmative 

defense that has been statutorily abrogated. State v. Edmisten, 220 Ariz. 517, 

521 ¶ 8, 207 P.3d 770, 774 (App. 2009). Though a patient may voluntarily 

take prescription drugs, intoxication as a result of such use may be 

involuntary so long as it is done pursuant to medical advice. See, e.g., People 

v. Garcia, 113 P.3d 775, 780 (Colo. 2005); State v. Gardner, 870 P.2d 900, 902 

n.8 (Utah 1993); State v. Gilchrist, 552 P.2d 690, 692 (Wash App. 1976). 

Therefore, if Leteve could establish use of prescription drugs in accordance 

with a doctor’s instructions, he should have been allowed to present a 

defense of involuntary intoxication.

¶29 At trial, Leteve sought to introduce expert testimony derived 

from interviews with him about his use of prescription drugs, as well as 

circumstantial evidence in the form of testimony from others that he was 

taking prescription medication and pharmacy records identifying his 

prescribed medication. Although the best evidence of Leteve’s use of 

prescription drugs would have been his own testimony, we do not preclude 

a defendant from offering evidence to prove a fact solely because it is not 

the best evidence. See State v. Jones, 203 Ariz. 1, 7 ¶¶ 18–19, 49 P.3d 273, 279 

(2002) (holding that oral testimony of confession, rather than audio 

recording of confession, was admissible at trial to prove defendant 

confessed); cf. People v. Hari, 843 N.E.2d 349, 361 (Ill. 2006) (holding that 

involuntary intoxication instruction should have been given based on 

testimony of expert who had interviewed defendant).

¶30 Although the question is close, we hold that the trial court 

erred by precluding any evidence of the use of medication unless Leteve 

testified. This evidence would have been offered solely to show that Leteve 

did not premeditate the murders. As noted previously, see supra ¶ 26, the 

State presented overwhelming evidence that Leteve acted systematically 

and deliberately. Even had the prescription drug evidence been presented 

in conjunction with the observation evidence the defense offered, no 

reasonable juror could have found that the murders were not premeditated. 

The error, therefore, was harmless.
STATE V. LETEVE

Opinion of the Court

10

3. Waiver of Fifth Amendment Privilege to Exercise Sixth 

Amendment Right

¶31 Leteve also argues that the trial court improperly forced him 

to choose between waiving his Fifth Amendment privilege against selfincrimination by testifying that he had taken the medication as prescribed 

or waiving his Sixth Amendment right to present a defense by forgoing the 

medication evidence. Cf. Simmons v. United States, 390 U.S. 377, 394 (1968) 

(holding that forcing a defendant to either waive a valid Fourth 

Amendment claim or waive his Fifth Amendment privilege against selfincrimination is unconstitutional); Brooks v. Tennessee, 406 U.S. 605, 610–11

(1972) (holding that a statute requiring defendant to testify, if at all, before 

any other defense witnesses is unconstitutional). We need not reach this 

issue because we have held that the exclusion of the prescription drug 

evidence was harmless error.

4. The Mistrial Motion

¶32 Leteve argues that the trial court erred by refusing to declare 

a mistrial during the penalty phase based on the testimony of the State’s 

expert witness, Dr. Edward Barbieri, who testified that the level of 

Lorazepam in Leteve’s system was within “low therapeutic levels.” 

Previously, during the pretrial hearing addressing the admission of 

Leteve’s prescription drug use, the State’s offer of proof regarding Dr. 

Barbieri’s testimony indicated that the levels were potentially outside the 

therapeutic range. Had the offer of proof been made accurately, Leteve 

argues, he could have called Dr. Barbieri as a witness during the guilt phase 

to lay the proper foundation for admission of the medication evidence 

because he would have testified that the level of Lorazepam in Leteve’s 

system immediately after the murders was within therapeutic levels.

¶33 “A declaration of a mistrial is the most dramatic remedy for 

trial error and should be granted only when it appears that justice will be 

thwarted unless the jury is discharged and a new trial granted.” State v. 

Adamson, 136 Ariz. 250, 262, 665 P.2d 972, 984 (1983). We review the denial 

of a motion for a mistrial for abuse of discretion. State v. Kuhs, 223 Ariz. 

376, 380 ¶ 18, 224 P.3d 192, 196 (2010).

¶34 At the pretrial hearing, the State made an offer of proof that 

Dr. Barbieri would testify that, although the Lorazepam in Leteve’s blood 
STATE V. LETEVE

Opinion of the Court

11

immediately following the murders was within therapeutic levels, the 

blood sample had been diluted by blood transfusions Leteve received 

during his treatment. Dr. Barbieri made the same assertion in his initial 

interview with the defense. No new information was presented during the 

penalty phase, and Dr. Barbieri did not alter his testimony from the 

testimony offered during the pretrial hearing. The trial court did not abuse 

its discretion by refusing to grant a mistrial.

D. Jury Instruction Defining the (F)(6) Aggravator

¶35 Leteve argues that the trial court improperly instructed the 

jury that it need find only that he had a “parental relationship of trust” with 

the victim to determine that the murder was “heinous or depraved” for 

purposes of the (F)(6) aggravating factor. Relying on State v. Milke, 177 Ariz. 

118, 126, 865 P.2d 779, 787 (1993), Leteve argues that the jury should have 

been instructed that it also had to find that the murder was senseless and 

the victim helpless. “[W]e review de novo whether a jury instruction

correctly states the law,” State v. Zaragoza, 221 Ariz. 49, 53 ¶ 15, 209 P.3d 

629, 633 (2009), but “we will not reverse a conviction unless the instructions, 

taken as a whole, misled the jurors,” Kuhs, 223 Ariz. at 384 ¶ 37, 224 P.3d at 

200.

¶36 Under A.R.S. § 13-751(F)(6), a first degree murder is 

aggravated if “[t]he defendant committed the offense in an especially 

heinous, cruel or depraved manner.” We have identified five factors that 

can lead to a finding of heinousness or depravity: (1) relishing the murder; 

(2) infliction of gratuitous violence; (3) needless mutilation; (4) the 

senselessness of the killing; and (5) the helplessness of the victim. State v. 

Gretzler, 135 Ariz. 42, 52, 659 P.2d 1, 11 (1983). The killing of a child satisfies 

the senselessness and helplessness factors. State v. Stanley, 167 Ariz. 519,

528, 809 P.2d 944, 953 (1991). But by themselves, these two factors generally 

will not render a murder especially heinous or depraved. State v. Wallace, 

219 Ariz. 1, 6 ¶ 25, 191 P.3d 164, 169 (2008).

¶37 The State argues that Stanley recognized that a father’s 

murder of his own child “warrants a finding that the murder was 

committed in an especially depraved manner.” 167 Ariz. at 529, 809 P.2d at 

954. But we noted in Stanley that the murder was senseless and involved a 

helpless victim. We have subsequently explained that using the parentchild relationship as “partial support” for an (F)(6) finding, along with 
STATE V. LETEVE

Opinion of the Court

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helplessness and senselessness, “is constitutionally permissible.” See State 

v. Carlson, 202 Ariz. 570, 584 ¶ 55, 48 P.3d 1180, 1194 (2002) (observing that

Milke approved the use of the parent-child relationship “in partial support 

of a finding of heinousness or depravity”).

¶38 The trial court thus erred by instructing the jury that it could 

find the (F)(6) aggravator based on the parental relationship alone. But the 

error was harmless because there was overwhelming evidence that the 

murders were senseless and the victims helpless. Cf. State v. Moore, 222 

Ariz. 1, 14–15 ¶ 69, 213 P.3d 150, 163–64 (2009) (holding that, where jury 

was erroneously instructed that actual reflection was not required to prove 

premeditation for first degree murder, the error was harmless with respect 

to a murder for which there was overwhelming evidence of premeditation). 

Senselessness was incontrovertibly established because even if Leteve 

sought to retaliate against Laurie, it was unnecessary for him to murder his 

children to accomplish that goal. Cf. Milke, 177 Ariz. at 125, 865 P.2d at 786 

(noting that “[t]his crime most certainly was senseless in that it was 

unnecessary for [the defendant] to kill her son to free herself from the 

responsibility of being a single mother or to prevent the boy from growing 

up like his father”). Similarly, each murder involved a helpless victim: each 

was younger than six years old and apparently sleeping when killed. See 

Stanley, 167 Ariz. at 528–29, 809 P.2d at 953–54 (noting helplessness of fiveyear old victim was “apparent” because she was alone with her parents and 

twelve-month old brother and father had just shot mother).

E. Preclusion of Prison Expert’s Testimony

¶39 During the penalty phase, Leteve sought to introduce 

testimony by Carson Williams, a former warden in the Department of 

Corrections, that Leteve would have a very difficult time in prison because 

of the notoriety of his crimes. The trial court did not abuse its discretion by 

precluding his testimony.

¶40 “A penalty phase jury may not be precluded from considering 

relevant mitigating evidence,” including a defendant’s potential for future 

rehabilitation and future dangerousness. Villalobos, 225 Ariz. at 82 ¶ 34, 235 

P.3d at 235. Williams’ testimony would not address either of those factors, 

but would instead show generally the harsh conditions a child-killer might

face in prison. Such speculative evidence does not constitute a mitigating 

circumstance because it is not specific to a defendant’s character, 
STATE V. LETEVE

Opinion of the Court

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propensities, or prior record, nor does it go to the circumstances of his 

offense. Cf. A.R.S. § 13-751(G); Lockett v. Ohio, 438 U.S. 586, 604 n.12 (1978). 

Courts in other jurisdictions agree. See, e.g., People v. Quartermain, 941 P.2d 

788, 807 (Cal. 1997); Burns v. Commonwealth, 541 S.E.2d 872, 893 (Va. 2001).

F. Rebuttal Testimony on Impact on Neighbors

¶41 Leteve argues that the trial court erred in admitting testimony 

of C.P., a former neighbor, about the impact of the murders on him and two 

other neighbors. We review the admission of evidence for abuse of 

discretion and constitutional and statutory interpretation issues de novo. 

State v. Nordstrom, 230 Ariz. 110, 114 ¶ 8, 280 P.3d 1244, 1248 (2012).

¶42 C.P.’s testimony was not offered as part of a victim impact 

statement. Instead, after Leteve presented mitigation, C.P. testified as a 

rebuttal witness. He told the jury that he lived two houses down from the 

Leteve home, had known Leteve and Laurie for two years, and had dined 

and otherwise socialized with them and other couples in the neighborhood. 

C.P. said that three days before the murders occurred, he and his adult son 

had talked with Leteve while C.P.’s three grandchildren played with Alec. 

C.P. said that although Leteve seemed “a little bit down and a little bit 

heavy,” from the strain of his divorce and financial issues, there “was no 

dramatic difference between him that day and what [C.P.] had seen in the 

months and years before that.”

¶43 The prosecutor then asked C.P. to recount events on the day 

of the murders. Defense counsel objected that this was improper rebuttal. 

The trial court overruled the objection. C.P. then described a telephone call 

with his wife, which culminated with his overhearing her and another 

woman reacting hysterically upon learning that Leteve had shot his 

children. C.P. further testified that another neighbor, Kathleen - who was 

close to Laurie, had children Asher’s age, and had given Laurie baby items 

to use - had been “hugely impacted” by the murders and had to be 

hospitalized for anxiety and panic attacks. When asked if the murders had 

been tough on him, C.P. emotionally responded that a year before the 

murders, his own adult son had suddenly died from an illness, and “so 

when I saw this, I could not get it. How someone could shoot their child. 

So it affected me deeply.”
STATE V. LETEVE

Opinion of the Court

14

¶44 After C.P. finished testifying, Leteve moved for a mistrial. 

The State argued that the testimony was appropriate rebuttal to emotional 

testimony by Leteve’s mother and grandmother about their love for Leteve. 

The trial court denied the motion for mistrial. In closing argument, the 

prosecutor urged the jury to sentence Leteve “to the appropriate 

punishment for what he did to these children, to the neighbors, to everyone 

who knew them.” The prosecutor did not otherwise mention the effect on 

the neighbors. The trial court instructed the jurors, and the prosecutor 

reminded them, that rebuttal evidence could not be considered as 

aggravation.

¶45 The issue here is whether the trial court abused its discretion 

by admitting the testimony about the effect of the murders on C.P. and the 

two other neighbors. Resolving this issue turns on whether the evidence 

was relevant to the jury’s determination whether to impose a death 

sentence, whether Arizona law bars evidence of a murder’s impact on nonfamily members, and, if not, whether the admission of this evidence was so 

unfairly prejudicial as to violate due process.

¶46 The challenged evidence does not involve “victim” impact 

testimony, which we have recognized is “limited to the ‘impact of the crime 

on the victim’s family.’” State v. Rose, 231 Ariz. 500, 512 ¶ 55, 297 P.3d 906, 

918 (2013) (quoting Ariz. R. Crim. P. 19.1(d)(3)); see also A.R.S. § 13-752(S)(2) 

(“‘Victim’ means the murdered person’s spouse, parent, child, grandparent 

or sibling, any other person related to the murdered person by 

consanguinity or affinity to the second degree or any other lawful 

representative of the murdered person . . . .”). Thus, C.P.’s testimony was 

not governed by our victims’ rights laws, but instead by A.R.S. §§ 13-751(C)

and (G), and 13-752(G).

¶47 During the penalty phase, the state may offer evidence that is 

relevant to determining if the mitigation is sufficiently substantial to 

warrant leniency. See id. Irrespective of the mitigation evidence presented 

by the defendant, the state may present evidence of the circumstances of 

the crime. Nordstrom, 230 Ariz. at 114 ¶ 10, 280 P.3d at 1248 (noting that, 

taken together, A.R.S. §§ 13-751(G) and 13-752(G) “evince a legislative 

intent to permit the state to introduce relevant evidence whether or not the 

defendant presents evidence during the penalty phase”). Thus, the state 

may “rebut” mitigation - that is, a conclusion that the defendant should be 

shown leniency - by introducing evidence of the “specific harm caused by 
STATE V. LETEVE

Opinion of the Court

15

the defendant.” State v. Forde, 233 Ariz. 543, 572 ¶ 126, 315 P.3d 1200, 1229 

(2014). The state’s evidence must not be so unduly prejudicial that it 

renders the trial fundamentally unfair under the Due Process clause. State 

v. Hampton, 213 Ariz. 167, 179 ¶ 48, 140 P.3d 950, 963 (2006); Payne v. 

Tennessee, 501 U.S.808, 825 (1991).

¶48 The evidence of the murders’ impact on the identified 

neighbors is relevant to whether Leteve should be shown leniency 

inasmuch as it demonstrated the specific harm his killings caused to people 

closely linked to the family. “The threshold for relevance is a low one,” 

State v. Roque, 213 Ariz. 193, 221 ¶ 109, 141 P.3d 368, 396 (2006), and the 

harm caused by a defendant’s killing is a relevant factor for the jury to 

consider in making its sentencing determination. See Payne, 501 U.S. at 808

(noting that the victim impact evidence “illustrated quite poignantly some 

of the harm that [the defendant’s] killing had caused” and that “there is 

nothing unfair about allowing the jury to bear in mind that harm at the 

same time as it considers the mitigating evidence introduced by the 

defendant”); Forde, 233 Ariz. at 572 ¶ 126, 315 P.3d at 1229 (holding that 

victim impact testimony is not limited to mitigation topics presented by 

defense).

¶49 Nor does it necessarily violate due process for the jury to hear 

evidence of a murder’s impact beyond that of the victim’s family. See Beck 

v. Commonwealth, 484 S.E.2d 898, 903-04 (Va. 1997) (holding that victim 

impact testimony is not “constitutionally limited to that received from the 

victim’s family members”). Indeed, several of our sister states and the 

federal courts of appeal allow “impact” testimony by non-family members

in appropriate circumstances. See, e.g., People v. Ervine, 220 P.3d 820, 858 

(Cal. 2009) (“[V]ictim impact evidence is not limited to the effect of the 

victim’s death on family members, but may include its effects on the 

victim’s friends, coworkers, and the community.”) (citations omitted); 

United States v. Lawrence, 735 F.3d 385, 405–06 (6th Cir. 2013) (collecting 

cases interpreting the Federal Death Penalty Act, 18 U.S.C. §§ 3591 - 3599, 

not to limit victim impact evidence to family members).

¶50 But just as “[t]rial courts should not allow the penalty phase 

to devolve into a limitless and standardless assault on the defendant’s 

character and history,” Hampton, 213 Ariz. at 180 ¶ 51, 140 P.3d at 963, they 

should not allow evidence of a murder’s impact on persons who are not 

immediately and closely connected to the victim. The Tenth Circuit aptly 
STATE V. LETEVE

Opinion of the Court

16

has observed that “[i]ncluding the community in the victim-impact inquiry 

is fraught with complication,” as doing so replaces “a close-in focus on 

persons closely or immediately connected to the victim with a wide view 

encompassing generalized notions of social value and loss.” United States 

v. Fields, 516 F.3d 923, 947 (10th Cir. 2008).

¶51 Allowing testimony about the impact of a murder on persons 

who are not victims under Rule 19.1(d)(3) poses a substantial risk of 

injecting unfairly prejudicial evidence and threatening a mistrial. 

Accordingly, such evidence generally should be disallowed absent a 

showing that it is necessary to inform the jury of the harm resulting from 

the crime. Cf. Rose, 231 Ariz. at 511 ¶ 47, 297 P.3d at 917 (cautioning 

prosecutors not to risk mistrial by introducing unfairly prejudicial evidence 

with minimal probative value). There is no need for such evidence when

the State has already introduced extensive victim impact evidence, as the 

additional admission of evidence of a murder’s impact on community 

members is not likely to aid in the jury’s decision making. Cf. Ariz. R. Evid. 

403 (evidence is properly excluded “if its probative value is substantially 

outweighed by a danger of . . . needlessly presenting cumulative 

evidence”).

¶52 Because C.P.’s testimony was relevant to whether Leteve 

should be shown leniency and did not violate due process, the trial court 

did not abuse its discretion in admitting it. Prospectively, trial courts 

should limit the admission of such testimony in accordance with this 

opinion.

G. Abuse of Discretion Review

¶53 We review the jury’s imposition of a death sentence for abuse 

of discretion. A.R.S. § 13-756(A). A finding of an aggravating circumstance 

is not an abuse of discretion if it is supported by the evidence. State v. 

Manuel, 229 Ariz. 1, 9 ¶ 42, 270 P.3d 828, 836 (2011). The jury’s

determination that death is the appropriate sentence will not be reversed 

“so long as any reasonable jury could have concluded that the mitigation 

established by the defendant was not sufficiently substantial to call for 

leniency.” Id. (quoting State v. Morris, 215 Ariz. 324, 341 ¶ 81, 160 P.3d 203, 

220 (2007)).
STATE V. LETEVE

Opinion of the Court

17

1. Aggravating Circumstances

¶54 As explained above, ¶35–38, the jury’s finding that each 

murder was heinous or depraved (the (F)(6) aggravating circumstance) is 

supported by the evidence. Leteve does not contest the sufficiency of the 

evidence to support the other two aggravators found by the jury with 

respect to each murder — (F)(8) (multiple homicides) and (F)(9) (victims

under the age of fifteen). Because the record supports these findings, the 

jury did not abuse its discretion.

2. Mitigating Circumstances

¶55 “The defendant must prove the existence of the mitigating 

circumstances by a preponderance of the evidence,” but “the jurors do not 

have to agree unanimously that a mitigating circumstance has been 

proven to exist.” A.R.S. § 13-751(C).

¶56 Leteve presented extensive mitigation evidence, including 

that he was thirty-nine years old at the time of the murders; his capacity to 

appreciate the wrongfulness of his conduct or to conform his conduct to the 

law was substantially impaired; he was a good father and son and tried to 

be a good husband and a good provider for his family; he was a good friend

and employee; he suffered from alcoholism; he suffered from bipolar 

disorder and other mental illnesses and did not receive proper treatment;

he self-medicated with drugs and alcohol; he was devastated by the 

collapse of his marriage; he lacked support from his family; he suffered 

financial ruin, overwhelming stress, and abuse and neglect as a child; he 

tried to make the best of his life; he was a good student and consistently 

tried to improve himself; and he lacked a positive male role model.

3. Propriety of Death Sentences 

¶57 Given the three aggravating circumstances and the mitigation 

presented, a reasonable juror could conclude that the mitigating 

circumstances were not sufficiently substantial to call for leniency.
STATE V. LETEVE

Opinion of the Court

18

H. The Trial Court’s Restitution Order

¶58 The trial court ordered Leteve to pay restitution for the 

victims’ out-of-pocket expenses to attend the trial and attorney fees 

incurred to enforce victims’ rights. Leteve challenges the restitution order 

on several grounds. Reviewing the facts in the light most favorable to 

upholding the order, State v. Lewis, 222 Ariz. 321, 323 ¶¶ 2, 5, 214 P.3d 409, 

411 (App. 2009), we conclude that the trial court did not abuse its discretion. 

(We assume, without deciding, that attorney fees incurred to enforce 

victims’ rights may be compensable in restitution, as Leteve has not raised 

that issue on appeal.)

¶59 Leteve first argues that, because the victims’ counsel did not 

provide itemized billing statements, it is impossible to identify the amount 

of the fees attributable to enforcing victims’ rights. But neither the victims’

rights laws nor their implementing rules explicitly require itemized billing. 

Cf. ARCAP 21(b) (requiring a party seeking attorneys’ fees incurred on 

appeal to file an itemized statement of fees and costs). And the trial court 

held a hearing on the requested restitution and received evidence to which 

Leteve could object. Cf. Sparks v. Republic Nat’l Life Ins. Co., 132 Ariz. 529, 

544–45, 647 P.2d 1127, 1142–43 (1982) (holding that there is no violation of 

due process when “[a] full hearing was conducted on the issue of attorney’s 

fees”). Because counsel’s affidavits supported the restitution order, the 

State met its burden of proving the amount by a preponderance of the 

evidence. See Lewis, 222 Ariz. at 324 ¶ 7, 214 P.3d at 412.

¶60 Leteve next argues that restitution should be offset by the 

value of property Laurie received after their divorce. Because Laurie would 

have received her share of marital property even if the murders had not 

occurred, any property she received from the divorce proceedings is 

irrelevant.

¶61 Finally, Leteve argues that restitution should be reduced by 

the amount he alleges Laurie received from a charitable fund established 

after the murders. A victim’s reimbursement from collateral sources does 

not reduce a defendant’s restitution obligation. At most, such 

reimbursement, if made by a qualifying entity, would require a defendant 

to pay restitution to the entity instead of the already-compensated victim. 

A.R.S. § 13-804(E).
STATE V. LETEVE

Opinion of the Court

19

I. Additional Issues

¶62 Stating that he wishes to preserve certain issues for federal 

review, Leteve lists thirty one constitutional claims and previous decisions 

rejecting them. We decline to revisit these claims.

CONCLUSION

¶63 We affirm Leteve’s convictions and sentences.