SUPREME COURT OF ARIZONA

En Banc

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-10-0177-AP 

 Appellee, ) 

 ) Maricopa County 

 v. ) Superior Court 

 ) No. CR2006-007790-001 DT 

GILBERT MARTINEZ, ) 

 ) 

 Appellant. ) 

 ) O P I N I O N

__________________________________) 

Appeal from the Superior Court in Maricopa County 

The Honorable Rosa Mroz, Judge

AFFIRMED

________________________________________________________________

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix

 By Kent E. Cattani, Division Chief Counsel 

 Jeffrey A. Zick, Section Chief Counsel 

 Jon G. Anderson, Assistant Attorney General 

 Criminal Appeals/Capital Litigation Section

Attorneys for State of Arizona

DROBAN & COMPANY, PC Anthem

 By Kerrie M. Droban

Attorney for Gilbert Martinez

________________________________________________________________

B R U T I N E L, Justice

¶1 A jury found Gilbert Martinez guilty of one count of 

first degree burglary, four counts of aggravated assault, four 

counts of kidnapping, one count of theft, and one count of first 

degree murder. After a mistrial in the penalty phase, a second 

jury determined he should be sentenced to death. We have 
2

jurisdiction over this automatic appeal under Article 6, Section 

5(3) of the Arizona Constitution and A.R.S. § 13-4031 (2010). 

I. FACTUAL AND PROCEDURAL BACKGROUND 

¶2 On March 31, 2006, Betty L.’s daughters, Karen B. and 

Colleen J., and their husbands, Forest B. and Vern J., were 

visiting Betty and her husband, Laurel L., at their home in Sun 

City.1 Martinez and Robert Arbolida watched the home, planning 

to burglarize it. They left to get a gun, returning to the 

house after its six occupants had gone to bed. 

¶3 Martinez broke a patio door at the back of the house, 

went inside, and let Arbolida in through the kitchen door. 

Hearing a loud noise, Betty and Laurel went to investigate. In 

the hallway, they encountered the two intruders, who were 

wearing masks and gloves. Martinez and Arbolida pushed Betty 

and Laurel into the room where Karen and Forest were staying. 

Martinez threatened them, yelling profanities and telling them 

to cooperate or he would kill them. When Laurel moved too 

slowly because of his age and asthma, Martinez became frustrated 

and pushed him. When Forest attempted to help Laurel, Martinez 

pistol-whipped Forest, permanently injuring his eye. Martinez 

then directed Arbolida to bind the four victims with zip ties. 

Apparently having seen a third woman earlier when casing the 

                                                           

1

 “We view the facts in the light most favorable to upholding 

the verdicts.” State v. Chappell, 225 Ariz. 229, 233 ¶ 2 n.1, 

236 P.3d 1176, 1180 n.1 (2010). 
3

house, Martinez said to Arbolida, “Let’s go find the other 

bitch.” 

¶4 Colleen and Vern heard the commotion and Martinez’s 

statement from their bedroom. Vern pushed Colleen into the 

closet and closed the door. Vern, weaponless, went to the 

bedroom door to stand between his wife and the intruders.

¶5 Martinez met Vern in the hallway, a scuffle ensued, 

and Martinez fatally shot Vern. Martinez and Arbolida then fled 

with various items belonging to the victims. They went to 

Martinez’s sister’s house, where they cleaned blood off 

themselves and divided the stolen property.

¶6 Martinez was later arrested and indicted on twentythree counts, including felony murder, stemming from this 

burglary and six other burglaries and robberies in the same 

area. The State sought the death penalty, alleging two 

aggravating circumstances: Martinez previously had been 

convicted of a serious offense, A.R.S. § 13-751(F)(2), and had 

committed the murder for pecuniary gain, § 13-751(F)(5).

¶7 The trial court severed the charges by occurrence and, 

after the State dismissed charges related to one of the 

burglaries, ordered six separate trials. Martinez was acquitted 

on one burglary (“the Krusenstjerna burglary”), but found guilty 

on all other charges.

¶8 The jury in this case found Martinez guilty of eleven 
4

charges, including felony murder, relating to the burglary of 

Betty and Laurel’s home. The jury then found both alleged 

aggravating circumstances proven beyond a reasonable doubt. It 

also found that Martinez actually killed Vern and was a major 

participant in his murder. The jury, however, hung in the 

penalty phase, and the trial court declared a mistrial.

¶9 Following a second penalty-phase trial, a new jury 

determined Martinez should be sentenced to death. The court 

also sentenced him to 124 years’ imprisonment on the non-capital 

charges.

II. ISSUES ON APPEAL 

A. Denial of motions to strike potential jurors 

¶10 Martinez challenges the trial court’s denial of his 

motions to strike prospective jurors 2, 4, 15, 27, 44, and 59 in 

the first trial and jurors 4, 10, and 105 in the second penalty 

phase trial.2 Because none of those jurors served on either of 

the juries that decided this case, “any error by the trial judge 

in refusing to strike them [is] not reversible error absent 

prejudice to [Martinez].” State v. Moore, 222 Ariz. 1, 18 ¶ 99, 

213 P.3d 150, 167 (2009). Martinez is not entitled to relief 

                                                           

2

 Martinez alleges violations of our state constitution on 

this and other issues. Because he has not separately argued any 

Arizona constitutional claims, however, we do not address them. 

See, e.g., State v. Dean, 206 Ariz. 158, 161 ¶ 8 n.1, 76 P.3d 

429, 432 n.1 (2003); State v. Altieri, 191 Ariz. 1, 2 ¶ 4 n.1, 

951 P.2d 856, 867 n.1 (1997). 
5

because he has not alleged or shown any prejudice, and “[n]o 

evidence suggests that the sentencing jury was not fair and 

impartial.” Id.; see also State v. Martinez, 218 Ariz. 421, 429 

¶ 35, 189 P.3d 348, 356 (2008) (“We need not address this 

argument because the juror in question was not seated and [the 

defendant] makes no claim that any of the jurors who decided his 

case should have been struck for cause.”).

B. Admission of bag with ammunition 

¶11 Martinez asserts that the trial court, in the guilt 

phase, abused its discretion by admitting exhibit 344, a brown 

bag and its contents, and denying his subsequent motion for a 

mistrial. 

¶12 A detective testified that when officers executed a 

search warrant at Martinez’s home, they found in the garage a 

brown bag containing a gun case, a 9 mm handgun magazine, six 

spent 9 mm casings, two boxes of .357 Magnum ammunition, a box 

of .38 Special ammunition, an empty .22 caliber ammunition box, 

loose .22 caliber rounds, a live 9 mm cartridge, an empty knife 

scabbard, a pair of brown gloves, and ear plugs. 

¶13 During the detective’s testimony, the State offered 

into evidence the bag and its contents, along with zip ties, 

labeled exhibit 345, also found in Martinez’s garage. Martinez 

objected only to the admission of the zip ties. The court 

admitted both exhibits. The State then had the detective remove 
6

each item from the bag and describe it. Martinez objected on 

relevance grounds to the bag’s contents. The trial court 

overruled his objection, noting that the bag had already been 

admitted. After a break, Martinez moved for a mistrial “based 

on the prejudice of those items in that [bag].” The court 

denied the motion, finding the contents of the bag “pretty 

innocuous.” 

¶14 Because Martinez did not object before the exhibit was 

admitted into evidence, we review for fundamental error.3

 State 

v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005); 

see Ariz. R. Evid. 103(a)(1). To prevail under this standard, 

Martinez must first establish that an error occurred, then show 

that the error was fundamental in nature and caused prejudice. 

State v. Hargrave, 225 Ariz. 1, 8 ¶ 13, 234 P.3d 569, 576 

(2010). 

¶15 Evidence of ammunition other than 9 mm, the caliber 

used to kill Vern, was irrelevant and should not have been 

admitted. But even if the trial court erred in admitting the 

contents of the bag, Martinez has not shown prejudice. As the 

trial court stated, in context the evidence was innocuous, and 

the State never suggested that these items were connected to the 

                                                           

3

 The State noted that this exhibit had been marked and 

available for Martinez to view for months, and Martinez did not 

dispute that assertion. 
7

crime or that they confirmed Martinez as the killer. See United 

States v. King, 254 F.3d 1098, 1101-02 (D.C. Cir. 2001) (finding 

admission of evidence that defendant possessed a knife harmless 

because it was “tangential to the Government’s case”). 

C. Admission of nineteen prior offenses to prove (F)(2) 

aggravator 

¶16 Martinez argues that the trial court erred in allowing 

the State to use nineteen prior serious felony convictions to 

prove the (F)(2) aggravator, contending this evidence was unduly 

prejudicial and denied him due process. We review a trial 

court’s admission of evidence in the aggravation phase for an 

abuse of discretion. See State v. Tucker, 215 Ariz. 298, 313 

¶ 46, 314-15 ¶ 58, 160 P.3d 177, 192, 193-94 (2007).

¶17 Before trial, the State noticed its intent to prove 

the (F)(2) aggravating circumstance by using Martinez’s 

convictions from the five prior trials, a burglary conviction 

from 1999, and the non-murder convictions arising from the 

burglary of Betty and Laurel’s home. Martinez filed a “Motion 

to Preclude Extraneous (F)(2) Aggravator Evidence,” arguing that 

evidence of any serious offenses extraneous to those that 

occurred with the murder would be unduly prejudicial and 

cumulative and thus barred by Arizona Rule of Evidence 403. The 

trial court denied the motion.

¶18 The (F)(2) aggravator requires proof beyond a 
8

reasonable doubt that: 

The defendant has been or was previously convicted of 

a serious offense, whether preparatory or completed. 

Convictions for serious offenses committed on the same 

occasion as the homicide, or not committed on the same 

occasion but consolidated for trial with the homicide, 

shall be treated as a serious offense under this 

paragraph. 

§ 13-751(F)(2). Although we have never squarely addressed 

whether to limit the number of prior convictions the state can 

use to prove this aggravating circumstance, we have upheld 

without comment (F)(2) findings based on multiple prior 

convictions. See, e.g., State v. Phillips, 202 Ariz. 427, 438-

39 ¶¶ 56-57, 46 P.3d 1048, 1059-60 (2002) (finding (F)(2) 

aggravator supported by evidence of twenty-seven prior 

convictions). 

¶19 The trial court correctly observed that the “decision 

to offer evidence of aggravation or not offer such evidence is 

the responsibility of the prosecutor.” State v. Murphy, 113 

Ariz. 416, 418, 555 P.2d 1110, 1112 (1976). But because § 13-

751(B) provides that the Arizona Rules of Evidence govern the 

aggravation phase, the trial court must exclude evidence “if its 

probative value is substantially outweighed by a danger of . . . 

unfair prejudice.” Ariz. R. Evid. 403. Therefore, the 

pertinent inquiry is whether the probative value of the evidence 

of Martinez’s nineteen other convictions was substantially 
9

outweighed by the danger of unfair prejudice or other factors 

identified in Rule 403. 

¶20 Martinez argues that evidence of only one prior 

conviction is necessary to prove the (F)(2) aggravator. 

Although that is true, we have never suggested that once 

sufficient evidence is admitted to prove an aggravator, the 

state cannot present further evidence in support of that 

aggravator. Martinez has not challenged the validity of any of 

the nineteen convictions or otherwise identified how the State’s 

proving the (F)(2) aggravator with multiple convictions 

unfairly prejudiced him in the aggravation phase. 

¶21 Martinez’s claim of prejudice arises from the State’s 

later use of the evidence in the penalty phase. Although the 

rules of evidence do not apply to the penalty phase, A.R.S. 

§ 13-751(C), trial courts, pursuant to the Due Process Clause of 

the Fourteenth Amendment, must still exclude evidence that is 

unfairly prejudicial. See State v. Pandeli, 215 Ariz. 514, 527-

28 ¶ 43, 161 P.3d 557, 570-71 (2007) (noting that the 

determination of unfair prejudice in penalty phase “involves 

fundamentally the same considerations” as prejudice 

determinations under Arizona Rule of Evidence 403). “Not all 

harmful evidence, however, is unfairly prejudicial.” State v. 

Mott, 187 Ariz. 536, 555-56, 931 P.2d 1046, 1055-56 (1997). 

“Unfair prejudice results if the evidence has an undue tendency 
10

to suggest decision on an improper basis, such as emotion, 

sympathy, or horror.” Id. at 545, 931 P.2d at 1055. 

¶22 Here, as the trial court found, each conviction went 

to the “severity of the (F)(2) aggravator.” Each was probative 

in the penalty phase to show Martinez’s “character and 

propensities” and to strengthen the weight of the aggravator. 

See State v. Gretzler, 135 Ariz. 42, 54, 659 P.2d 1, 13 (1983) 

(noting that “the purpose of an aggravation/mitigation hearing 

is to determine the character and propensities of the defendant” 

because “[t]he punishment should fit the offender” (internal 

quotation omitted)); State v. Howell, 868 S.W.2d 238, 261 (Tenn. 

1993) (“[T]he effect of the aggravating circumstance on sentence 

may increase where there is proof of more than one prior violent 

felony conviction.”). In Arizona, an aggravating circumstance 

not only qualifies a defendant for the death penalty, but is 

also considered “in determining whether to impose a sentence of 

death.” A.R.S. § 13-751(F); see also id. § 13-752(D), (G). 

Therefore, the trial court correctly found the prior convictions 

to be highly probative. 

¶23 Nor did the trial court abuse its discretion in 

implicitly finding that the probative value of the evidence was 

not substantially outweighed by the danger of unfair prejudice. 

In death penalty sentencing, the trier of fact must make an 

individualized decision based on the “character and record of 
11

the individual offender and the circumstances of the particular 

offense.” Romano v. Oklahoma, 512 U.S. 1, 7 (1994) (internal 

quotation omitted); see also A.R.S. §§ 13-751(G), -752(G). Such 

evidence will often be prejudicial, but evidence of prior 

convictions is not unfairly prejudicial because it is highly 

relevant to making an individualized sentencing decision. 

D. Prosecutorial misconduct 

¶24 Martinez argues that the prosecutor’s “pervasive 

prosecutorial misconduct” mandates reversal of his death 

sentence and that Double Jeopardy bars retrial. Prosecutorial 

misconduct warrants reversal if “(1) misconduct is indeed 

present; and (2) a reasonable likelihood exists that the 

misconduct could have affected the jury’s verdict, thereby 

denying [the] defendant a fair trial.” State v. Anderson, 210 

Ariz. 327, 340 ¶ 45, 111 P.3d 369, 382 (2005) (internal 

quotation omitted). “To prevail on a claim of prosecutorial 

misconduct, a defendant must demonstrate that the prosecutor’s 

misconduct ‘so infected the trial with unfairness as to make the 

resulting conviction a denial of due process.’” State v. 

Hughes, 193 Ariz. 72, 79 ¶ 26, 969 P.2d 1184, 1191 (1998) 

(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). 

¶25 This Court separately reviews “each instance of 

alleged misconduct, and the standard of review depends upon 

whether the defendant objected.” State v. Morris, 215 Ariz. 
12

324, 335 ¶ 47, 160 P.3d 203, 214 (2007). If Martinez objected, 

the Court reviews for harmless error; if he did not, we review 

for fundamental error. State v. Gallardo, 225 Ariz. 560, 568 

¶ 35, 242 P.3d 159, 167 (2010). 

1. Courtroom conduct 

¶26 The first allegation of misconduct concerns the lead 

prosecutor’s courtroom conduct throughout both trials. During 

voir dire in the guilt phase, the court warned the prosecutor to 

watch her conduct because, she “tend[ed] to give a big sigh, 

audible sigh, and throw up [her] hands and roll [her] eyes” when 

the court ruled against her. But the judge also noted this 

conduct was infrequent. Later, defense counsel noted on the 

record that the same prosecutor continued to roll her eyes 

during witness testimony. The trial court stated it had not 

seen the prosecutor do this, but admonished all the attorneys to 

“try to keep [their] facial expressions neutral as to not 

influence the Jury one way or the other.” 

¶27 After the first penalty phase ended in a mistrial, 

Martinez moved to strike the notice of intent to seek the death 

penalty based on the prosecutor constantly “rolling her eyes;” 

“quipping,” “ad-libbing,” and her “running commentary on various 

events as they occur during trial;” as well as her “propensity 

to display irritation, displeasure or skepticism over rulings by 

the Court adverse to her.” Defense counsel said a juror 
13

mentioned this conduct during a “post-deadlock debriefing,” in 

which the juror said the lead prosecutor’s eye-rolling was 

“counter-productive and damaging to her credibility.” The trial 

judge denied the motion, finding that the prosecutor did not 

commit any intentional misconduct and that her behavior did not 

prejudice the defendant. The judge noted that “the one juror 

who did make a comment said it damaged [the prosecutor]’s 

credibility. And, in fact, the jury deadlocked . . . on the 

penalty for the Defendant.” 

¶28 After the second penalty phase, Martinez moved for a 

new trial, based in part on prosecutorial misconduct. He again 

alleged that the prosecutor engaged in both “vouching and exparte communication” with the jury throughout the trial by 

making “various facial expressions.” He said he did not make a 

motion during the trial because the conduct came to light only 

after the verdict, when a juror likened the prosecutor’s facial 

expressions to “a message board,” noting “that he could tell her 

emotions throughout the trial.” The trial court denied the 

motion. 

¶29 Martinez argues that this misconduct constituted 

“improper ‘vouching’ and ex-parte communication with jurors.” 

“Prosecutorial vouching takes two forms: ‘(1) where the 

prosecutor places the prestige of the government behind its 

[evidence] [and] (2) where the prosecutor suggests that 
14

information not presented to the jury supports the [evidence].’” 

State v. Newell, 212 Ariz. 389, 402 ¶ 62, 132 P.3d 833, 846 

(2006) (quoting State v. Vincent, 159 Ariz. 418, 423, 768 P.2d 

150, 155 (1989)) (alterations in Newell). Any eye-rolling or 

disapproving facial expressions signaled that the State did not 

believe the evidence Martinez was presenting. Although 

improper, this behavior does not amount to vouching. Nor did it 

suggest that information outside the record supported the 

witness’s testimony. 

¶30 These allegations, however, are very troubling. It is 

highly inappropriate for “[a] prosecutor . . . to convey his [or 

her] personal belief about the credibility of a witness,” State 

v. Lamar, 205 Ariz. 431, 441 ¶ 54, 72 P.3d 831, 841 (2003), and 

to relay to the jury disagreement with trial court rulings by 

facial expression. From the record, it is clear that this 

prosecutor’s courtroom demeanor was inappropriate. However, the 

conduct during the first trial was documented only twice, and 

the trial judge was not certain it had occurred the second time. 

The trial court’s firsthand observations and assessments are 

entitled to substantial deference in this context. Although one 

juror commented on the prosecutor’s behavior, the record does 

not show reversible error based on this conduct. 

¶31 Because Martinez did not object to any of the alleged 

misconduct during the second penalty phase, we review those 
15

matters for fundamental error. Gallardo, 225 Ariz. at 568 ¶ 35, 

242 P.3d at 167. The trial court was in the best position to 

assess the prosecutor’s courtroom demeanor and its effect on the 

jury, Newell, 212 Ariz. at 402 ¶ 61, 132 P.3d at 846, and denied 

Martinez’s motion for a new trial. Even if some misconduct 

occurred during the second trial, Martinez has not shown 

prejudice and is not entitled to relief on this ground. See 

Henderson, 210 Ariz. at 567 ¶ 20, 115 P.3d at 607. 

¶32 Martinez also argues that Pool v. Superior Court, 139 

Ariz. 98, 677 P.2d 261 (1984), mandates reversal and bars 

retrial in this case. But the misconduct in that case was 

continuous and well-documented. Id. at 102-03, 677 P.2d at 265-

66. Here, although the prosecutor’s courtroom conduct was 

inappropriate, it was confirmed only twice by the trial judge, 

who did not think it amounted to such pervasive misconduct as to 

bar retrial of the penalty phase. 

¶33 Although the prosecutor’s conduct does not amount to 

reversible error, we again strongly disapprove of such courtroom 

behavior. Trial courts should promptly address this type of 

misbehavior by warnings to counsel and other steps as may be 

appropriate. Arizona attorneys pledge to “maintain the respect 

due to courts of justice and judicial officers,” to “abstain 

from all offensive conduct,” and to adhere to “a lawyer’s creed 

of professionalism.” Ariz. R. Sup. Ct. 31 (The Oath of 
16

Admission to the Bar). Eye-rolling, dramatic sighing, and other 

expressions of displeasure in a courtroom violate these 

standards. This is unacceptable behavior from any attorney, but 

especially from a prosecutor, who serves as a “minister of 

justice.” See Hughes, 193 Ariz. at 80 ¶ 33, 969 P.2d at 1192; 

Ariz. R. Sup. Ct. 42, E.R. 3.8, cmt. 1. 

2. Comparison between Martinez and the victims 

¶34 The next alleged instance of misconduct occurred 

during the prosecutor’s cross-examination of a defense expert 

during the first penalty phase. The expert testified about the 

effect on Martinez of the domestic violence that occurred in his 

childhood home. In response, and without objection, the 

prosecutor asked the witness about the impact on a widow of 

“hearing your husband being shot.” 

¶35 Because Martinez did not object to the prosecutor’s 

question or move for a mistrial, we review for fundamental 

error. Gallardo, 225 Ariz. at 568 ¶ 35, 242 P.3d at 167. The 

question did not compare the victim to Martinez, but went to 

victim impact. See id. at 567 ¶ 25, 242 P.3d at 166 (“Arizona 

law generally allows victim impact evidence during the penalty 

phase to rebut mitigation.”). The prosecutor did not later 

attempt to argue any comparison, and even if the question was 

objectionable, Martinez has failed to show the prejudice 

necessary to establish fundamental error.
17

3. First penalty phase closing argument 

¶36 Martinez further argues the prosecutor committed 

misconduct during her first penalty phase closing argument when 

she said: 

 Now Judge Mroz told you, quote, “that you are not 

required to find a connection between a mitigating 

circumstance and the crime committed in order to 

consider the mitigating evidence,” but I suggest to 

you a lack of any connection between the mitigating 

circumstance and the murder is one thing to consider 

in deciding how compelling any mitigating 

circumstance[] you may find to have been proven really 

is.

Martinez did not object.

¶37 Martinez argues that this statement improperly implied 

that the jurors had to find a nexus between Martinez’s childhood 

and the murder. But the prosecutor did not tell the jury that a 

nexus was required; rather she said lack of a connection can be 

considered in determining “how compelling any mitigating 

circumstance[] you may find to have been proven really is.” 

This is a proper statement of the law. “Although a connection 

between a defendant’s proffered mitigation and the crime is not 

required, the state may fairly argue that the lack of a nexus to 

the crime diminishes the weight to be given alleged mitigation.” 

State v. Prince, 226 Ariz. 516, 539 ¶ 91, 250 P.3d 1145, 1168 

(2011) (internal quotation omitted). 
18

4. Second penalty phase opening statement 

¶38 The final alleged misconduct occurred during the 

State’s opening statement in the second penalty phase. The 

prosecutor discussed the circumstances of the murder and the 

facts relating to each prior conviction used to support the 

(F)(2) aggravating circumstance. One of the prior acts the 

prosecutor discussed was a burglary of the Krustenstjernas’ 

home, and she acknowledged that Martinez was acquitted on that 

charge. Later in her statement, she also talked about the 

State’s expert who would testify and suggested Martinez 

malingered on that expert’s test because he “will do anything, 

say anything, use anyone to save his own skin.” After the 

prosecutor finished, Martinez moved for a mistrial, which the 

trial court denied.

¶39 Martinez argues that the prosecutor committed 

misconduct by mentioning the burglary for which he was acquitted 

and by insinuating that he had concocted his mental health 

mitigation. Because he objected to both lines of argument, we 

review for harmless error if prosecutorial misconduct occurred. 

Gallardo, 225 Ariz. at 568 ¶ 35, 242 P.3d at 167.

¶40 Any error in the prosecutor’s mention of the 

Krustenstjerna burglary was harmless. The jurors were 

instructed that Martinez had been acquitted of that burglary and 

they should not use it against him. We presume jurors follow 
19

instructions. Tucker, 215 Ariz. at 319 ¶ 89, 160 P.3d at 198.

¶41 As for the insinuation that Martinez concocted his 

mental health mitigation, the prosecutor’s statement was not 

improper because it was supported by testimony from the State’s 

expert that Martinez malingered on examinations. The trial 

court correctly denied the motion for mistrial. See State v. 

Hallman, 137 Ariz. 31, 37, 668 P.2d 874, 880 (1983) (noting 

first prong of test to determine if trial court should grant 

mistrial after improper remarks are made is whether it called 

jurors’ attention to “matters that they would not be justified 

in considering in determining their verdict”).

5. Cumulative effect 

¶42 Martinez argues that the prosecutor’s misconduct 

permeated the proceedings, rendering his trials fundamentally 

unfair. When reviewing such claims, this Court considers 

whether “the cumulative effect of the incidents shows that the 

prosecutor intentionally engaged in improper conduct and ‘did so 

with indifference, if not a specific intent, to prejudice the 

defendant.’” State v. Roque, 213 Ariz. 193, 228 ¶ 155, 141 P.3d 

368, 403 (2006) (quoting Hughes, 193 Ariz. at 80 ¶ 31, 969 P.2d 

at 1192).

¶43 The record does not support Martinez’s argument. 

Although Martinez contends the prosecutor continuously was 

inappropriate in the courtroom, he objected only twice. Both 
20

times, the trial court overruled the objections; it also denied 

Martinez’s mistrial motions. The first penalty phase ended in a 

hung jury, and the trial court noted that any misconduct seemed 

to have prejudiced the jury against the State, not Martinez. 

Although the record reflects a few instances in the second 

penalty phase in which a witness and defense counsel noted that 

the prosecutor was “making faces” and “rolling [her] eyes,” 

Martinez did not object and has not shown prejudice.

E. Challenged rebuttal evidence 

¶44 Martinez contends that, in the second penalty phase 

trial, the trial court erred by admitting as rebuttal evidence 

four photographs of stolen items connected to other burglaries 

and testimony regarding his visit to a strip bar. “A trial 

court’s ruling on the admission of evidence in the penalty phase 

is reviewed for an abuse of discretion.” State v. Harrod, 218 

Ariz. 268, 279 ¶ 38, 183 P.3d 519, 530 (2008). Because Martinez 

objected at trial to the admission of this evidence, if we find 

it was improperly admitted, we review for harmless error. 

Henderson, 210 Ariz. at 567 ¶ 18, 115 P.3d at 607.

¶45 During the penalty phase, the prosecution “may present 

any information that is relevant to any of the mitigating 

circumstances,” A.R.S. § 13-751(C), and “any evidence that is 

relevant to the determination of whether there is mitigation 

that is sufficiently substantial to call for leniency,” 
21

including “evidence that demonstrates that the defendant should 

not be shown leniency,” § 13-752(G). Although our Rules of 

Evidence do not apply to the penalty phase, § 13-751(C), trial 

courts must exclude rebuttal “evidence that is either irrelevant 

to the thrust of the defendant’s mitigation or otherwise 

unfairly prejudicial.” State v. Hampton, 213 Ariz. 167, 180 

¶ 51, 140 P.3d 950, 963 (2006). “A judge’s analysis in 

determining the relevance of rebuttal evidence involves 

fundamentally the same considerations as relevance and prejudice 

determinations under Arizona Rules of Evidence 401 and 403.” 

Pandeli, 215 Ariz. at 528 ¶ 43, 161 P.3d at 571.

1. Photographs 

¶46 The State introduced photographs of some of the items 

the police found in a search of Martinez’s sister’s house. 

These items included a box that contained an empty zip tie bag, 

a boom box connected to another burglary, and a wheelbarrow that 

contained burnt items including a driver’s license connected to 

the Krustenstjerna burglary. Because the zip tie bag, boom box, 

and wheelbarrow were not directly connected to Martinez and did 

not rebut his mitigation evidence, they were irrelevant and 

should have been excluded. The burnt driver’s license should 

have been excluded because it related to the burglary for which 

Martinez was acquitted. Any probative value of that evidence 

was outweighed by the danger of unfair prejudice.
22

¶47 But the error in admitting this evidence was harmless. 

That Martinez’s sister had some stolen items at her house was 

relatively minor compared to the strength of the aggravating 

circumstances and certainly did not influence the jury’s 

decision that the mitigation was not sufficiently substantial to 

warrant leniency. Moreover, the jury was instructed to not use 

evidence relating to the Krustenstjerna burglary against 

Martinez. See Tucker, 215 Ariz. at 319 ¶ 89, 160 P.3d at 198. 

 2. Strip club 

¶48 The State presented evidence that, during an 

interrogation after his arrest, Martinez claimed to have been at 

a strip club at the time of the murder. The State offered timestamped video-surveillance photographs from the club that showed 

Martinez paying his entry fee at 1:28 a.m. the morning after the 

murder. Martinez objected to the admission of his statement and 

the photographs, arguing they were irrelevant and prejudicial. 

The trial court overruled the objection. 

¶49 The court did not err in admitting this evidence 

during the penalty phase because it pertained to whether “the 

mitigation was sufficiently substantial to call for leniency.” 

See A.R.S. § 13-752(G). Because Martinez claimed he had a low 

IQ and brain damage, the evidence that he claimed to have been 

at a club when the murder occurred showed he was able to 

fabricate an alibi. In addition, the trial court took the extra 
23

precaution of precluding the State from referring to the club as 

a “strip club” to minimize any unfair prejudice. 

F. Admission of accomplice’s prior statements in second penalty 

phase 

¶50 Martinez argues that the trial court violated his 

Sixth Amendment right to confrontation by allowing the State to 

introduce in the second penalty phase his accomplice’s 

statements through a detective’s testimony. 

¶51 In the guilt phase, Martinez’s accomplice, Robert 

Arbolida, testified for four days. He testified about the 

burglary and murder, stating that Martinez was the shooter and 

had attempted to dispose of evidence at his sister’s house. 

Martinez’s counsel cross-examined Arbolida for two days, 

eliciting testimony showing he had made inconsistent statements 

to police. 

¶52 Before the second penalty phase, the State noticed its 

intent to introduce through Detective Acosta some of Arbolida’s 

statements that implicated Martinez as the shooter and that 

provided details about the burglary. Martinez objected, arguing 

that this testimony violated his Sixth Amendment right to 

confrontation under Crawford v. Washington, 541 U.S. 36 (2004). 

The trial court overruled Martinez’s objection, citing State v. 

McGill, 213 Ariz. 147, 140 P.3d 930 (2006). 

¶53 During the second penalty phase, Detective Acosta 
24

testified about the statements Arbolida had made to him, 

including details of the burglary, the fact that Martinez shot 

Vern, and subsequent events. Before completing its direct 

examination, the State asked the trial court to limit crossexamination and not allow defense counsel to “go over all the 

inconsistencies that Arbolida ever said” because that would be 

attacking the underlying conviction and would be irrelevant, 

improper, and a “needless consumption of time.” Defense counsel 

stated that he intended to probe the inconsistencies and that it 

would not be “fair for the State to be able to present this 

sanitized version” and to “cherry-pick the facts.” The trial 

court precluded Martinez from revisiting all the inconsistent 

statements Arbolida made because they were only relevant to 

Martinez’s guilt and the Enmund/Tison4 finding, not Martinez’s 

mitigation. But the court indicated that if the inconsistent 

statements were relevant to mitigating factors, it would allow 

Martinez to ask about them. Martinez protested the trial 

court’s ruling, but did not make an offer of proof to show what 

statements he would have offered. 

¶54 Admission of Arbolida’s statements through the 

detective’s testimony did not violate Martinez’s right to 

confrontation. We held in McGill that “the Confrontation Clause 

                                                           

4 Enmund v. Florida, 458 U.S. 782 (1982); Tison v. Arizona, 

481 U.S. 137 (1987). 
25

does not apply to rebuttal testimony at a sentencing hearing.” 

213 Ariz. at 159 ¶ 52, 140 P.3d at 942. We decline to revisit 

that holding. See State v. Chappell, 225 Ariz. 229, 240 ¶¶ 40-

41, 236 P.3d 1176, 1187 (2010); State v. Martinez, 218 Ariz. 

421, 431 ¶ 44, 189 P.3d 348, 358 (2008). Moreover, Martinez had 

a full opportunity to confront Arbolida when he initially 

testified. The trial court properly admitted this testimony. 

¶55 On appeal, Martinez relies only on the Confrontation 

Clause to challenge the admission of Arbolida’s statements and 

does not now argue that he should have been permitted to impeach 

those statements. See State v. Bolton, 182 Ariz. 290, 298, 896 

P.2d 830, 838 (1995) (“Failure to argue a claim on appeal 

constitutes waiver of that claim.”) Nonetheless we review the 

preclusion of impeachment for fundamental error because if a 

defendant is deprived of the chance to present relevant 

mitigation, “[t]he resulting death sentence cannot stand.” 

Skipper v. South Carolina, 476 U.S. 1, 8 (1986); see also 

Tennard v. Dretke, 542 U.S. 274, 284-85 (2004) (noting that, 

pursuant to the Eighth Amendment, the jury must be able to 

consider and give effect to all relevant mitigation evidence 

proffered by a defendant). 

¶56 Although the trial court did not err in admitting the 

detective’s hearsay testimony about Arbolida’s statements, it 

should have allowed Martinez to present any inconsistent 
26

statements for impeachment. When one party properly introduces 

hearsay testimony, cross-examination that calls into question 

the veracity of that testimony is relevant to the issue of 

leniency. See A.R.S. § 13-752(G) (“At the penalty phase, the 

defendant and the state may present any evidence that is 

relevant to the determination of whether there is mitigation 

that is sufficiently substantial to call for leniency.”); see 

also Tennard, 542 U.S. at 284-85 (similarly defining relevant 

mitigating evidence); State v. Prince, 226 Ariz. 516, 526-27 

¶¶ 13-20, 250 P.3d 1145, 1155-56 (2011) (discussing relevant 

evidence in penalty phase). 

¶57 Because Martinez did not make an offer of proof, 

however, we are unable to find prejudice. See Ariz. R. Evid. 

103(a)(2); State v. Kaiser, 109 Ariz. 244, 246, 508 P.2d 74, 76 

(1973) (“As a general rule evidence cannot be reviewed on appeal 

in the absence of an offer of proof showing that the excluded 

evidence would be admissible and relevant.”). We therefore 

cannot find fundamental error. See Henderson, 210 Ariz. at 607 

¶ 20, 115 P.3d at 567 (holding that fundamental error consists 

of both fundamental error and a finding of prejudice). 

¶58 In any event, we have reviewed Arbolida’s testimony in 

the guilt phase and determined that his inconsistent statements 

either concerned the sequence of events for the burglary, his 

involvement, or whether a third person may have been involved. 
27

These statements concerned matters that were already decided in 

the guilt and aggravation phases, and the second penalty phase 

jury was instructed to accept the previous findings that 

Martinez was guilty of felony murder, that he actually killed 

Vern, and that he was a major participant in the crime. None of 

Arbolida’s allegedly inconsistent statements would have 

constituted mitigating circumstances, nor were they relevant to 

the jury determining whether to “impose a sentence less than 

death.” § 13-751(G); see State v. Nordstrom, ___ Ariz. ___, ___ 

¶ 15, ___ P.3d ___ (2012) (“A defendant has no constitutional 

right to present residual doubt evidence at sentencing.”) 

(internal quotation omitted). No prejudice is apparent from the 

record. 

G. Alleged issues with a second penalty phase 

¶59 Martinez raises two arguments with respect to holding 

a second penalty phase before a different jury. He did not 

object on either ground in the trial court, so we review for 

fundamental error. Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d 

at 607. 

¶60 Because the first jury was unable to reach a verdict 

in the penalty phase, the trial court discharged it and 

impaneled a new jury to sentence Martinez pursuant to A.R.S. 

§ 13-752(K). Martinez argues that because the court instructed 

the jury to accept the aggravating circumstances as proven, it 
28

encouraged the jury to abdicate its responsibility in imposing a 

death sentence to the other jury in violation of Caldwell v. 

Mississippi, 472 U.S. 320 (1985). 

¶61 In Caldwell, the Supreme Court concluded “that it 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.” 472 U.S. at 328-29. 

“We have previously concluded that Caldwell’s dictate is not 

violated when different juries determine guilt and sentence if 

the sentencing jury is not misled as to its role.” State v. 

Moore, 222 Ariz. 1, 18 ¶ 93, 213 P.3d 150, 167 (2009). As long 

as “the resentencing jury received clear instruction that it 

alone would determine the appropriate sentence,” there is no 

Caldwell violation. State v. Dann, 220 Ariz. 351, 361 ¶ 30, 207 

P.3d 604, 614 (2009). 

¶62 Here, the trial court twice instructed the jury in the 

second penalty phase that it alone would determine whether to 

impose a death sentence and that its decision would be binding. 

Although the court told the jurors to accept the two aggravators 

as proven, it also instructed them to separately assess the 

severity of the aggravators in making their sentencing 

determination. No Caldwell violation occurred. See People v. 

Murtishaw, 773 P.2d 172, 183 & n.8 (Cal. 1989) (rejecting the 
29

same argument and stating that “the prior jury was not 

defendant’s ‘sentencer;’ . . . it merely resolved a factual 

issue which rendered defendant eligible for the death penalty. 

The normative function of deciding which penalty should actually 

be imposed was entirely in the second jury’s hands.”). 

¶63 Martinez also argues that § 13-752(K), as applied to 

him, is unconstitutionally vague because it “does not establish 

procedures governing the admission, to a new jury during the 

second penalty phase, of evidence of the aggravating factors 

previously found by the aggravation-phase jury.” In Prince, we 

rejected this argument, finding that “the statutes governing the 

second penalty phase provide sufficient guidance” and are not 

vague. 226 Ariz. at 527 ¶ 20, 250 P.3d at 1156. Moreover, as 

the State asserts, Martinez has not shown any prejudice because 

all of the information presented to the aggravation phase jury 

was also provided to the second penalty phase jury.

H. Motion to disqualify the Maricopa County Attorney’s Office 

¶64 Martinez argues that the superior court abused its 

discretion when it denied his motion to disqualify the Maricopa 

County Attorney’s Office. We review a trial court’s ruling on a 

motion to disqualify the prosecutor for an abuse of discretion. 

State v. Williams, 136 Ariz. 52, 57, 664 P.2d 202, 207 (1983).

¶65 Before the second penalty phase, Martinez moved to 

disqualify the Maricopa County Attorney’s Office based on its 
30

filing of a RICO complaint against two Maricopa County Superior 

Court judges, as well as its filing felony criminal charges 

against one of those judges. But Martinez subsequently withdrew 

his motion after it was assigned, along with similar motions in 

other cases, to a judge from Cochise County.

¶66 A few days later, Martinez and thirty other defendants 

filed a joint motion to disqualify the Maricopa County 

Attorney’s Office, alleging that “[t]he appearance of judicial 

impropriety caused by [former Maricopa County Attorney] Andrew 

Thomas and [Maricopa County Sheriff] Joe Arpaio is supported by 

overwhelming evidence that requires Thomas’ disqualification 

under Arizona law.” While this motion was pending, Thomas 

resigned from office. Subsequently, the Cochise County judge 

dismissed the motion as moot.

¶67 There was no abuse of discretion. The thrust of 

Martinez’s motion concerned Thomas and did not allege any 

improper conduct by other members of his office. Once Thomas 

resigned, the issue was moot. Martinez generally alleged that 

judges in his case were intimidated into ruling unfairly when 

Thomas was in office. But the only specific allegation of bias 

was another judge’s denial of two of Martinez’s motions. In 

ruling on both motions, that judge made detailed findings and 

noted his dissatisfaction with the handling of capital cases in 

Maricopa County. Although these rulings went against Martinez, 
31

they clearly were not the product of fear of repercussions from 

the County Attorney. Martinez generally alleges that Thomas 

likely intimidated the other judges involved in his case. But 

he provides no support for this allegation, and any intimidation 

necessarily ended with Thomas’s resignation.

III. REVIEW OF DEATH SENTENCE 

¶68 Martinez asks this Court to reduce his sentence to 

life imprisonment. Because Martinez committed the murder after 

August 1, 2002, we review “whether the trier of fact abused its 

discretion in finding aggravating circumstances and imposing a 

sentence of death.” A.R.S. § 13-756(A).

A. Aggravating circumstances 

¶69 Martinez does not challenge the jury’s finding of the 

(F)(2) and (F)(5) aggravating circumstances. Nonetheless, we 

review whether the jury abused its discretion in finding them. 

Morris, 215 Ariz. at 340-41 ¶ 77, 160 P.3d at 219-20. “Under 

this standard of review, we uphold a decision if there is any 

reasonable evidence in the record to sustain it.” Id. (internal 

quotation omitted).

¶70 The jury did not abuse its discretion in finding each 

aggravating circumstance. The State proved the (F)(2) 

aggravator by showing Martinez had nineteen serious offense 

convictions. See supra § II(C), ¶¶ 16-23.

¶71 The record also contains sufficient evidence 
32

supporting the jury’s finding that Martinez committed the murder 

for pecuniary gain. See § 13-751(F)(5). Martinez and Arbolida 

“scoped out” Betty and Laurel’s home, left to retrieve a gun, 

and then returned wearing gloves and masks to commit the 

burglary and theft. They took various items from the home, 

Martinez shot Vern, and then he and Arbolida fled with the 

stolen property. Martinez went to the victims’ home expecting 

pecuniary gain, and the murder allowed him “to keep the stolen 

property and avoid capture.” See Martinez, 218 Ariz. at 435 

¶ 68, 189 P.3d at 362; see also State v. Ellison, 213 Ariz. 116, 

143 ¶ 125, 140 P.3d 899, 926 (2006) (finding pecuniary gain 

aggravating circumstance proven when defendant went to victims’ 

home to commit burglary and committed the murders to “escape and 

avoid identification”).

B. Propriety of death sentence 

¶72 Martinez argues the jury abused its discretion by 

finding a death sentence appropriate because he introduced 

substantial mitigation warranting leniency. This Court “will 

not reverse the jury’s decision [to impose the death penalty] so 

long as any reasonable jury could have concluded that the 

mitigation established by the defendant was not sufficiently 

substantial to call for leniency.” Morris, 215 Ariz. at 341 

¶ 81, 160 P.3d at 220.

¶73 The jury did not abuse its discretion. Although 
33

Martinez presented evidence of his low IQ and brain damage, the 

State effectively rebutted it with evidence that he malingered, 

lowering his performance on the tests. See State v. Cruz, 218 

Ariz. 149, 170-71 ¶ 138, 181 P.3d 196, 217-18 (2008). Also, 

because Martinez was forty-one years old when he committed the 

murder, the jury was entitled to give less weight to mitigating 

evidence stemming from his childhood. See Prince, 226 Ariz. at 

541 ¶ 109, 250 P.3d at 1170 (“Difficult childhood circumstances 

also receive less weight as more time passes between the 

defendant’s childhood and the offense.”). Based on the facts of 

the crime, the two strong aggravating factors, and the 

Enmund/Tison finding that Martinez actually killed the victim, a 

reasonable jury could find Martinez’s mitigation did not warrant 

leniency. See State v. Cota, 229 Ariz. 136, ___ ¶ 95, 272 P.3d 

1027, 1044 (2012) (“Even if we assume that Cota proved each of 

his alleged mitigating factors, the jury still did not abuse its 

discretion here by finding the mitigation insufficient to 

warrant leniency.”); State v. Villalobos, 225 Ariz. 74, 85 ¶ 51, 

235 P.3d 227, 238 (same).

CONCLUSION 

¶74 For the foregoing reasons, we affirm Martinez’s 

convictions and sentences.5

                                                           

5

 Martinez raises twelve issues to avoid preclusion on 

federal review. His statements of those issues and the cases he 
34

 _____________________________________

 Robert M. Brutinel, Justice

CONCURRING:

_____________________________________

Rebecca White Berch, Chief Justice

_____________________________________

Scott Bales, Vice Chief Justice 

_____________________________________

A. John Pelander, Justice 

APPENDIX 

1. The fact-finder in capital cases must be able to consider 

all relevant mitigating evidence in deciding whether to give 

the death penalty. See Woodson v. North Carolina, 428 U.S. 

280, 304, 96 S. Ct. 2978, 49 L.Ed.2d 944 (1976). The trial 

court’s failure to allow the jury to consider and give 

effect to all mitigating evidence in this case by limiting 

its consideration to that proven by a preponderance of the 

evidence is unconstitutional under the Eighth and Fourteenth 

Amendments. This Court rejected this argument in McGill, 

213 Ariz. at 161 ¶ 59, 140 P.3d at 944. 

2. By allowing victim impact evidence at the penalty phase of 

the trial, the trial court violated defendant’s 

constitutional rights under the Fifth, Sixth, Eighth and 

Fourteenth Amendments and Article 2, Sections 1, 4, 13, 15, 

23, and 24 of the Arizona Constitution. This Court rejected 

challenges to the use of victim impact evidence in Lynn v. 

Reinstein, 205 Ariz. 186, 191 ¶ 16, 68 P.3d 412, 417 (2003). 

3. The trial court improperly omitted from the penalty phase 

                                                                                                                                                                                               

cites rejecting his contentions are presented verbatim in the 

Appendix. 
35

jury instructions words to the effect that they may consider 

mercy or sympathy in deciding the value to assign the 

mitigation evidence, instead telling them to assign whatever 

value the jury deemed appropriate. The court also 

instructed the jury that they “must not be influenced by 

mere sympathy or by prejudice in determining these facts.” 

These instructions limited the mitigation the jury could 

consider in violation of the Fifth, Sixth, Eighth and 

Fourteenth Amendments and Article 2, Sections 1, 4, 15, 23, 

and 24 of the Arizona Constitution. This Court rejected 

this argument in State v. Carreon, 210 Ariz. 54, 70-71 

¶¶ 81-87, 107 P.3d 900, 916-17 (2005). 

4. The death penalty is cruel and unusual under any 

circumstances and violates the Eighth and Fourteenth 

Amendments, and Article 2, Section 15 of the Arizona 

Constitution. This Court rejected this argument in State v. 

Harrod, 200 Ariz. 309, 320 ¶ 59, 26 P.3d 492, 503 (2001), 

vacated on other grounds, 536 U.S. 953, 122 S. Ct. 2653, 153 

L.Ed.2d 830 (2002). 

5. The death penalty is irrational and arbitrarily imposed; it 

serves no purpose that is not adequately addressed by life 

in prison, in violation of the defendant’s right to due 

process under the Fourteenth Amendment to the United States 

Constitution and Article 2, Sections 1 and 4 of the Arizona 

Constitution. This Court rejected these arguments in State 

v. Beaty, 158 Ariz. 232, 247, 762 P.2d 519, 534 (1988). 

6. The prosecutor’s discretion to seek the death penalty lacks 

standards and therefore violates the Eighth and Fourteenth 

Amendments, and Article 2, Sections 1, 4, and 15 of the 

Arizona Constitution. This Court rejected this argument in 

State v. Sansing, 200 Ariz. 347, 361 ¶ 46, 26 P.3d 1118, 

1132 (2001), vacated on other grounds, 536 U.S. 954, 122 S. 

Ct. 2654, 153 L.Ed.2d 830 (2002). 

7. Arizona’s death penalty is applied so as to discriminate 

against poor, young, and male defendants in violation of 

Article 2, Sections 1, 4, and 13 of the Arizona 

Constitution. This Court rejected this argument in Sansing, 

200 Ariz. at 361 ¶ 46, 26 P.3d at 1132. 

8. Proportionality review serves to identify which cases are 

above the “norm” of first-degree murder, thus narrowing the 

class of defendants who are eligible for the death penalty. 

The absence of proportionality review of death sentences by 
36

Arizona courts denies capital defendants due process of law 

and equal protection and amounts to cruel and unusual 

punishment in violation of the Fifth, Eighth, and Fourteenth 

Amendments, and Article 2, Section 15 of the Arizona 

Constitution. This Court rejected this argument in Harrod, 

200 Ariz. 320 ¶ 65, 26 P.3d at 503. 

9. Arizona’s death penalty unconstitutionally requires 

imposition of the death penalty whenever at least one 

aggravating circumstance and no mitigating circumstances 

exist, in violation of the Eighth and Fourteenth Amendments, 

and Article 2, Section 15 of the Arizona Constitution. 

Arizona’s death penalty law cannot constitutionally presume 

that death is the appropriate default sentence. This Court 

rejected this argument in State v. Miles, 186 Ariz. 10, 19, 

918 P.2d 1028, 1037 (1996). 

10. Execution by lethal injection is cruel and unusual 

punishment in violation of the Eighth and Fourteenth 

Amendments, and Article 2 sec. 15 of the Arizona 

Constitution. This argument was rejected in State v. Van 

Adams, 194 Ariz. 408, 422, 984 P.2d 16, 30 (1999). 

11. Arizona’s statutory scheme for considering mitigation 

evidence is unconstitutional because it limits full 

consideration of that evidence. State v. Mata, 125 Ariz. 

233, 242, 609 P.3d 48, 57 (1980). 

12. “If you unanimously find that no mitigation exists or that 

mitigation is not sufficiently substantial to call for 

leniency, you may impose the death penalty.” See e.g. State 

v. Tucker, 215 Ariz. 298 (2007) (instructing juror that he 

or she must vote to impose a death sentence if he or she 

does not find any mitigation sufficiently substantial to 

call for leniency does not create impermissible “presumption 

of death”); State v. Harrod, 218 Ariz. 268 (2008); State v. 

Cruz, 218 Ariz. 149 (2008).