SUPREME COURT OF ARIZONA

En Banc

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-09-0077-AP 

 Appellee, ) 

 ) Maricopa County 

 v. ) Superior Court 

 ) Nos. CR2006-012721-001 DT 

DALE SHAWN HAUSNER, ) CR2006-048493-002 DT 

 ) CR2007-006031-001 DT 

 Appellant. ) CR2008-006364-001 DT 

 ) CR2008-007313-002 DT 

 )

 )

 ) O P I N I O N

__________________________________) 

Appeal from the Superior Court in Maricopa County 

The Honorable Roland J. Steinle, Judge

AFFIRMED IN PART; REVERSED IN PART

________________________________________________________________

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix

 By Kent E. Cattani, Chief Counsel 

 Criminal Appeals/Capital Litigation Section

 Lacey Stover Gard, Assistant Attorney General Tucson

Attorneys for State of Arizona

BRUCE PETERSON, OFFICE OF THE LEGAL ADVOCATE Phoenix

 By Thomas J. Dennis, Deputy Legal Advocate

Attorney for Dale Shawn Hausner

________________________________________________________________

B A L E S, Justice 

¶1 This automatic appeal arises from Dale Shawn Hausner’s 

convictions and death sentences for six murders; he also was 

convicted and sentenced for seventy-four non-capital offenses. 

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

Arizona Constitution and A.R.S. § 13-4031 (2011). We reverse 
2

Hausner’s conviction for one count of animal cruelty and 

otherwise affirm his convictions and sentences. 

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Between June 2005 and August 2006, Hausner engaged in 

a series of random shootings in the Phoenix area. He murdered 

six people, wounded eighteen others, and also shot several dogs 

and a horse. The human victims were pedestrians or bicyclists; 

the shootings largely occurred between 10 p.m. and 3 a.m.; and 

the victims were shot from Hausner’s car with 12 gauge or .410 

shotguns or a .22 caliber gun. Samuel Deiteman, Hausner’s 

friend and roommate, participated in many of the crimes. 

¶3 Hausner was identified through efforts of the Phoenix 

Police Department. In spring 2006, the police set up an 

investigative task force after concluding that a serial shooter 

was involved in an accelerating crime spree. In May 2006, one 

person (Claudia Gutierrez-Cruz) was killed and five others 

wounded; eleven more people were wounded from June 1 to July 22. 

In mid-July, an anonymous caller – later identified as Ron 

Horton – left a message with the “Silent Witness” program that 

his friend “Sammy” had said he was involved in the shootings. 

Horton later met with a police detective, said “Sammy” was 

Samuel Dieteman, and identified Dieteman in a video taken at a 

Walmart store that had been set on fire. On July 30, Robin 
3

Blasnek was killed with a .410 shotgun while she was walking at 

night in Phoenix. 

¶4 At the request of police, Horton arranged to meet 

Dieteman at a bar on August 1. Police saw Hausner, whom they 

had not previously identified as a suspect, drop Dieteman off at 

the bar around 6:30 p.m. Hausner was driving a Toyota Camry, 

and witnesses had previously told police that a “Camry-type 

vehicle” had been involved in certain shootings. The police 

followed Hausner to a mall, where they placed a GPS tracking 

device on his car. Hausner later returned to the bar, spoke 

with Dieteman in the parking lot for about thirty minutes, and 

then returned to Hausner’s apartment at about 8:20 p.m. 

¶5 Shortly after 1 a.m. on August 2, Hausner drove from 

his apartment and met Dieteman at a casino. Police officers 

surreptitiously saw them open the trunk of Hausner’s car, wait 

while a security guard drove past, and then remove a duffel bag 

and place it on the back seat. They left the casino. Over the 

next two hours, police followed them as they drove through 

several cities in the southeastern Phoenix metropolitan area. 

They appeared to drive aimlessly through business and 

residential neighborhoods, but when they approached pedestrians 

or bicyclists, they slowed and sometimes circled back to pass 

the person again. At about 4 a.m., they returned to Hausner’s 
4

apartment, where an officer overheard one of them say “it’s 

probably because of the rain,” as they walked inside. 

¶6 On the evening of August 2, detectives met with the 

Maricopa County Attorney, who approved emergency wiretaps for 

Dieteman’s phone and for Hausner’s apartment and car. (This 

opinion, like the parties in their briefs and the trial court in 

its rulings, refers to the electronic monitoring devices as 

“wiretaps.”) That same night, detectives also obtained warrants 

from a judge authorizing police to place the wiretaps in the car 

and apartment. 

¶7 From about 9:35 a.m. until midnight on August 3, the 

police monitored conversations in the apartment. Hausner and 

Dieteman made several statements implicating themselves in the 

shootings, including comments boasting or joking about certain 

killings and mocking their victims. Police also collected items 

from a bag Dieteman put in the apartment dumpster, including a 

map of the Phoenix area with markings near some of the 

shootings. Hausner’s and Dieteman’s fingerprints were on the 

map. The discarded items also included .410 shotgun shells; a 

written note listing Robin Blasnek’s name, date, and time of 

shooting; and newspaper articles and clippings related to the 

shootings. 

¶8 Near midnight on August 3, police arrested Hausner and 
5

Dieteman. Hausner later admitted owning shotguns, but told 

detectives he was not involved in the shootings. He also 

mentioned that a .410 shotgun had been used in the shootings, a 

fact the police had not publicized. On August 7, Hausner held a 

press conference and again denied involvement in the shootings. 

¶9 After Hausner’s arrest, police searched his apartment 

and found shotguns, ammunition, and news clippings and videos 

about the shootings. In Hausner’s car, police found .22 shell 

casings and bullets, as well as .410 shot and 20 gauge shotgun 

shells. Hausner had once owned two .22 caliber rifles made by 

the Marlin Company. Based on rifling patterns found on bullets, 

a forensic expert determined that a .22 Marlin had been used in 

six of the crimes. The expert also matched shell casings found 

in Hausner’s car to guns used in some of the crimes. 

¶10 The State filed eighty-eight charges against Hausner 

in five indictments: eight counts of first degree, premeditated 

murder; two counts of aggravated assault; twenty-six counts of 

drive-by shooting; ten counts of animal cruelty; two counts of 

discharging a firearm at a non-residential structure; one count 

of discharging a firearm at a residential structure; one count 

of discharging a firearm within Tempe city limits; two counts of 

conspiracy to commit first degree murder; one count of 

conspiracy to commit animal cruelty; and two counts of arson 
6

involving two Walmart stores. 

¶11 The cases were consolidated for trial. Dieteman 

entered a plea agreement and testified against Hausner, who 

testified on his own behalf. A jury found Hausner guilty of 

eighty offenses and acquitted him of seven. (The State 

dismissed one.) During the aggravation phase, the State 

presented evidence to prove that the murders of Gutierrez-Cruz 

and Blasnek were “especially cruel” and thus death-eligible 

under A.R.S. § 13-751(F)(6). (This opinion cites the current 

version of criminal statutes unless they have materially changed 

since the conduct at issue.) The State relied on guilt-phase 

evidence to prove other aggravating factors. 

¶12 With respect to Gutierrez-Cruz and Blasnek, the jury 

found the (F)(6) aggravator because each murder was both 

“especially cruel” and “heinous or depraved.” The jury found 

the (F)(6) aggravator with respect to victims Jose Ortis and 

Marco Carillo because their murders were “heinous or depraved.” 

With respect to these four victims, the jury also found the 

murders were committed in a “cold, calculated manner,” an 

aggravating factor under § 13-751(F)(13). Finally, with respect 

to these victims and victims David Estrada and Nathanial 

Shoffner, the jury found both the (F)(1) (conviction of another 

offense subject to sentence of life imprisonment or death) and 
7

(F)(2) (prior conviction of a “serious offense”) aggravators. 

¶13 Hausner waived mitigation other than allocution. The 

jury determined that death was the appropriate sentence for each 

of the six murder convictions. The trial court also sentenced 

Hausner to consecutive life terms for his two convictions for 

conspiracy to commit first degree murder and various concurrent 

and consecutive sentences for his other non-capital convictions. 

This automatic appeal followed. 

DISCUSSION 

¶14 This opinion discusses issues that Hausner raised and 

argued on appeal. An appendix lists seventeen other 

constitutional claims that Hauser seeks to preserve for later 

review, along with the prior decisions of this Court that he 

identifies as rejecting them.

 A. Dismissal of Prospective Jurors 

¶15 Hausner argues that the trial court erred by granting 

the State’s motion to strike potential jurors 235A and 164B, who 

voiced hesitation, but said they could vote for the death 

penalty. He maintains that the trial court dismissed these 

jurors “merely to taper an over-abundance of qualified jurors” 

and to make a “clean record through jury selection,” and thereby 

violated Witherspoon v. Illinois, 391 U.S. 510 (1968), and 

Wainwright v. Witt, 469 U.S. 412 (1985). 
8

¶16 A potential juror may not be struck for cause merely 

because he “voiced general objections to the death penalty.” 

State v. Prince (Prince II), 226 Ariz. 516, 528 ¶ 27, 250 P.3d 

1145, 1157 (2011) (quoting Witherspoon, 391 U.S. at 522). 

However, a trial court “may strike a juror whose views about 

capital punishment ‘would prevent or substantially impair the 

performance of his duties as a juror in accordance with his 

instructions and his oath.’” Prince II, 226 Ariz. at 528 ¶ 27, 

250 P.3d at 1157 (quoting Witt, 469 U.S. at 433). 

¶17 During voir dire, when the trial court denied motions 

to strike certain jurors for cause, it placed them in a “pool” 

for later reconsideration. The pool included jurors 235A and 

164B and six jurors to whom Hausner objected. Subsequently, the 

trial court – without objection by Hausner – reconsidered the 

objections to these eight jurors and struck them all. The court 

noted that there was “no issue” with respect to forty-one jurors 

remaining on the clerk’s juror list (the list was in ascending 

numeric order, first for “A” jurors and then “B” jurors). The 

court drew a line after Juror 129B and struck jurors numbered 

130B or higher. Having narrowed the field to forty jurors, the 

court allowed each side to exercise ten peremptory strikes, 

leaving twenty jurors for trial. 

¶18 The trial court did not commit reversible error in 
9

dismissing jurors 235A and 164B. Any error in dismissing Juror 

164B was plainly harmless, as Hausner’s counsel acknowledged 

during oral argument, because this juror was not among the first 

forty on the clerk’s list and thus would not have been in the 

final pool even if not dismissed for cause. 

¶19 During voir dire, Juror 235A said she did not think 

she could choose between life and death, and did not want to be 

placed in that situation, but could follow the law and vote to 

impose death. She stated that she felt “a little intimidated to 

make that choice.” The State moved to strike Juror 235A because 

“she obviously doesn’t want to be placed in this situation.” 

¶20 By granting the State’s motion, the trial court 

apparently struck the juror based on her reluctance to serve 

rather than her opposition to the death penalty. We have upheld 

dismissal when a juror is conflicted about imposing the death 

penalty, Prince II, 226 Ariz. at 528 ¶ 29, 250 P.3d at 1157, and 

we defer to the trial judge’s determination that “a prospective 

juror would be unable to faithfully and impartially apply the 

law.” Witt, 469 U.S. at 424-26; see also State v. Ellison, 213 

Ariz. 116, 137 ¶ 89, 140 P.3d 899, 920 (2006). Given Juror 

235A’s desire not to serve and her conflicting statements, the 

trial judge did not abuse his discretion in striking her. 

 
10

 B. Admission of Wiretap Conversations 

¶21 Hausner argues that the trial court erred in failing 

to suppress recorded conversations obtained by the wiretap in 

his apartment on August 3. The County Attorney approved the 

wiretap under Arizona’s “emergency wiretap” statute, A.R.S. 

§ 13-3015. This statute allows the Arizona Attorney General, a 

county attorney, or other designated prosecutors to authorize 

temporary wiretaps if he or she “reasonably determines that an 

emergency situation exists involving immediate danger of death 

or serious physical injury to any person, and that such death or 

serious physical injury may be averted by interception of wire, 

electronic or oral communications before an order authorizing 

such interception can be obtained.” Id. Within forty-eight 

hours, the prosecutor must apply for a court order authorizing 

the interception in accordance with the general wiretap statute, 

A.R.S. § 13-3010. If such authorization is not obtained, the 

prosecutor must “immediately terminate” the interception, and 

“any communications intercepted without judicial authorization 

may not be used as evidence.” A.R.S. § 13-3015(C). 

¶22 Hausner argues that the wiretap was illegal because 

(1) there was not an “emergency situation” under § 13-3015; (2) 

the wiretap failed otherwise to satisfy statutory requirements; 

and (3) Article 2, Section 8 of Arizona’s Constitution forbids 
11

the warrantless intrusion into a home absent exigent 

circumstances, and police inaction (here, the failure of the 

police to arrest Dieteman or otherwise intercede) cannot create 

such circumstances. We reject these arguments. 

1. Factual and Statutory Background 

¶23 We review the denial of a motion to suppress wiretap 

evidence for an abuse of discretion, State v. Ring, 200 Ariz. 

267, 273 ¶ 14, 25 P.3d 1139, 1145 (2001), rev’d on other 

grounds, Ring v. Arizona, 536 U.S. 584 (2002), and review 

questions of constitutional and statutory interpretation de 

novo, State v. Armstrong, 218 Ariz. 451, 463 ¶ 54, 189 P.3d 378, 

390 (2008). We consider the evidence presented at the 

suppression hearing and view the facts in the light most 

favorable to sustaining the trial court’s ruling. State v. 

Manuel, 229 Ariz. 1, 4 ¶ 11, 270 P.3d 828, 831 (2011). 

¶24 On July 28 and 29, Ron Horton told detectives that 

Dieteman, his former roommate, had said he was involved in the 

shootings and had used a .410 shotgun. Police had not 

publicized information about the weapon. Horton also said 

Dieteman referred to the crimes as “RRV’ing,” which stood for 

random, recreational violence. On July 30, Robin Blasnek was 

killed with a .410 shotgun while walking at night. 

¶25 When police followed Dieteman on the evening of August 
12

1 and early morning of August 2, they saw him meet Hausner, 

transfer a duffel bag from the trunk to the back seat of 

Hausner’s car, and then drive around in a manner suggesting that 

Dieteman and Hausner could be looking for victims. Around 4:30 

or 5 p.m. on August 2, detectives briefed the County Attorney, 

who approved emergency wiretaps for Hausner’s home and car. 

That evening, detectives sought and obtained warrants to place 

the wiretaps. 

¶26 On August 3, conversations between Hausner and 

Dieteman in the apartment were recorded from approximately 9:35 

a.m. until 11:55 p.m., when the two were arrested. At around 2 

p.m. on August 3, police sought and obtained warrants to search 

Hausner’s apartment and car; the warrants were to be executed 

that evening between 10 p.m. and 6 a.m. Consistent with A.R.S. 

§ 13-3015, at 4:15 p.m. on August 4, the afternoon after Hausner 

and Dieteman were arrested, the police submitted an affidavit 

applying for a court order approving the emergency wiretaps, and 

the superior court granted the order that day. 

¶27 Arizona law generally prohibits the interception of 

wire, oral, or electronic communications. See A.R.S. § 13–3005. 

Upon proper application, however, a judge may issue an ex parte 

order authorizing an interception pursuant to A.R.S. § 13–3010: 

[I]f the judge determines on the basis of the facts 

submitted by the applicant that: 
13

1. There is probable cause to believe that a person is 

committing, has committed or is about to commit a 

particular crime. 

2. There is probable cause to believe that particular 

communications concerning that offense will be 

obtained through the interception. 

3. Normal investigative procedures have been tried and 

have failed or reasonably appear to be unlikely to 

succeed if tried or to be too dangerous. 

4. There is probable cause to believe any of the 

following: 

(a) Wire or electronic communications concerning the 

offense are being made or are about to be made by the 

person over the communication facilities for which 

interception authority is granted. 

(b) Oral communications concerning the offense are 

being made or are about to be made by the person in 

the location for which interception authority is 

granted. 

(c) Communications concerning the offense are being 

made or are about to be made by the person in 

different and changing locations, or from different 

and changing facilities. 

A.R.S. § 13-3010(C). 

¶28 In 1984, we held that Arizona’s wiretap scheme 

substantially complied with federal law, which allows states to 

adopt more, but not less, restrictive limits on electronic 

surveillance than are imposed by 18 U.S.C. §§ 2510-2520, the 

federal wiretap statute colloquially known as “Title III.” See 

State v. Gortarez, 141 Ariz. 254, 259 ¶ 4, 686 P.2d 1224, 1229 
14

(1984). In 1988, the legislature enacted § 13-3015, the 

emergency wiretap provision, as part of legislation intended to 

conform Arizona law to amendments to Title III. 1998 Ariz. Sess. 

Laws, ch. 149, § 13 (2d Reg. Sess.). 

¶29 Arizona’s emergency wiretap statute largely tracks 

federal law, but has some different language. The federal 

statute applies when an emergency situation “requires” an 

interception before a court order authorizing it “can, with due 

diligence, be obtained.” 18 U.S.C. § 2518(7)(a). Without 

explicitly referring to due diligence, Arizona’s statute allows 

interception if an emergency “may be averted . . . before an 

order authorizing such interception can be obtained.” A.R.S. 

§ 13-3015(A). Arizona’s statute requires that an application 

for an ex parte order be made “as soon as practicable, and in no 

event later than forty-eight hours” after the emergency 

interception begins. Id. § 13-3015(B). 

 2. Existence of an Emergency Situation 

¶30 Hausner argues that an emergency situation did not 

exist. He contends that the State was not faced with an 

“immediate danger of death or serious physical injury to any 

person,” § 13-3015(A), because the immediate danger must be 

“clear and present, not speculative and too distant.” 

¶31 Citing United States v. Crouch, 666 F. Supp. 1414 
15

(N.D. Cal. 1987), Hausner argues that an emergency wiretap is 

permissible only if the emergency is “imminent” and not merely 

because “serious criminal activity is planned for some 

unspecified date in the future.” Id. at 1417. He contends 

there was no emergency here because police had no idea whether a 

criminal act would occur, they did not have any information 

about “when or where or who might be victimized in a future 

criminal act,” and there was no “immediate danger” because 

police had him and Dieteman under constant surveillance. 

¶32 These arguments ignore the trial court’s findings. In 

denying the motion to suppress, the court noted that there had 

been a shooting only days before the emergency wiretap was 

placed. Phoenix police observed Dieteman and Hausner drive as 

if they might be “trolling for victims” on the night of August 

1. Crediting the detectives’ testimony, the trial court 

concluded that police could not have prevented another shooting 

merely by surveillance because the random shootings were made 

from a car. Instead, the court found that the police “needed 

the emergency intercept in order to prevent another random 

shooting.” These findings, which Hausner has not challenged, 

establish that there was an immediate danger of death or serious 

physical injury. 

¶33 Hausner’s argument that “the entire emergency could 
16

have been avoided by simply arresting Dieteman, whom police 

clearly had probable cause to arrest,” is also unconvincing. 

The trial court specifically found that the information the 

officers had on August 2 was insufficient to support a finding 

of probable cause to arrest. Even though the police had 

sufficient information to obtain a warrant to install the 

wiretaps on August 2, whether probable cause existed to support 

a wiretap or a search is a different question from whether the 

officers had probable cause to arrest an individual for having 

committed a particular crime. See A.R.S. § 13-3010(C)(1) 

(authorizing interception in certain circumstances when there is 

probable cause to believe a person is about to commit a 

particular crime). 

¶34 Hausner also argues that even if the police did not 

have probable cause to arrest Dieteman by 5 p.m. on August 2 

(when the County Attorney was briefed on the emergency wiretap), 

they did by 2 p.m. the next day, when they submitted search 

warrant affidavits asserting they had probable cause to search 

Hausner’s apartment. In this respect, Hausner contends that an 

emergency wiretap must end if the emergency initially justifying 

its implementation no longer exists. We disagree. Police “are 

under no constitutional duty to call a halt to criminal 

investigation the moment they have the minimum evidence to 
17

establish probable cause” to arrest the suspect. Kentucky v. 

King, 131 S. Ct. 1849, 1860–61 (2011) (internal quotation 

omitted). Police instead may delay making an arrest “in the 

hope of ferreting out any hitherto unknown individuals involved 

in the illicit undertakings, gathering additional evidence 

substantiating the crimes believed to have been committed, or 

discovering any other offenses in which the suspects are 

involved.” United States v. Hultgren, 713 F.2d 79, 87 (5th Cir. 

1983). 

 3. Compliance with Other Statutory Requirements 

¶35 Hausner argues that the trial court also misconstrued 

A.R.S. § 13-3015 by failing (1) to recognize that an emergency 

wiretap is only permitted in circumstances in which a court 

could order a wiretap under § 13-3010; (2) to interpret the law, 

like the federal statute, as permitting emergency wiretaps only 

if a court order cannot be obtained with “due diligence” in time 

to avert the emergency; and (3) to require the State to have an 

“emergency purpose” for the wiretap. 

¶36 None of these arguments suggests the trial court erred 

in denying the motion to suppress. We agree that § 13-3015 

authorizes emergency wiretaps only in factual circumstances 

that, if time permitted, would support a court-approved wiretap. 

As noted above, evidence from an emergency wiretap is admissible 
18

only if an application for a court order authorizing the 

interception “in accordance with the provisions of § 13-3010” is 

submitted within forty-eight hours and granted. § 13-3015(B). 

This conclusion, however, does not avail Hausner because he did 

not argue below and has not demonstrated on appeal that the 

superior court erred in approving the emergency wiretap on 

August 4. 

¶37 With respect to “due diligence,” although Arizona’s 

statute does not expressly declare that an emergency wiretap is 

permissible only when a court order approving a wiretap in 

advance cannot be obtained by “due diligence,” such a 

requirement is implicit. Section 13-3015(A) allows an emergency 

wiretap only when it may avert an emergency situation that might 

occur “before an order authorizing such interception can be 

obtained.” Subsection (B) further provides that evidence from 

an emergency wiretap is not admissible unless an application for 

a court order is submitted “as soon as practicable, and in no 

event later than forty-eight hours” after the wiretap’s 

inception. A.R.S. § 13-3015(B). These statutory restrictions 

on emergency wiretaps would not be satisfied if a court-approved 

wiretap could, with due diligence, have been obtained to avert 

the emergency. 

¶38 Although the trial court did not recognize that § 13-
19

3015 effectively incorporates a “due diligence” requirement 

similar to federal law, cf. Gortarez, 141 Ariz. at 259, 686 P.2d 

at 1229 (concluding that Arizona’s conventional wiretap statute 

was “sufficiently compatible with the federal one to ensure 

compliance with the federal standards”), this does not mean the 

court erred in denying Hausner’s motion to suppress. Evidence 

at the suppression hearing established that a conventional 

wiretap order could not have been obtained through due diligence 

on the night of August 2. Detective Richard Lebel, who prepared 

the affidavit for a post-wiretap order under § 13-3015, 

testified that “[i]n terms of a conventional wiretap, there’s no 

way I could have had that prepared for [the judge] that 

evening.” He also said that, once the emergency wiretap was 

approved, he had to work almost continuously to complete the 

forty-one page affidavit to submit the application for a postwiretap order to the superior court by 5 p.m. on August 4. The 

trial judge credited this testimony, noting that “Detective 

Lebel was very clear that a conventional wiretap request could 

not be obtained without more facts and in order to get it, would 

have taken a great deal of time.” In short, the State 

established that it could not have obtained a conventional 

wiretap with due diligence when the emergency wiretap was 

approved. 
20

¶39 Finally, Hausner argues that the trial court should 

have considered whether the County Attorney approved the wiretap 

for investigative purposes rather than to avert an emergency. 

This argument is irrelevant given the trial court’s finding that 

“the State’s main focus was the safety of the citizens of 

Maricopa County” and “the investigative nature of its action was 

secondary to the main goal of public safety.” If a prosecutor 

reasonably determines that an interception may avert an 

“immediate danger of death or serious physical injury” before a 

court order approving the interception can be obtained, see 

§ 13-3015, the validity of the interception should not turn on 

whether the prosecutor also subjectively has an investigative 

purpose, see King, 131 S. Ct. at 1859 (noting that in Fourth 

Amendment context, reasonableness of a search turns on objective 

factors rather than officer’s subjective state of mind). 

 4. Article 2, § 8 of the Arizona Constitution 

¶40 Hausner also argues that the wiretap violated Article 

2, § 8 of the Arizona Constitution, which states that “[n]o 

person shall be disturbed in his private affairs, or his home 

invaded, without authority of law.” Citing State v. Ault, 150 

Ariz. 459, 463 n.1, 724 P.2d 545, 549 (1986), he argues that 

Article 2, § 8 forbids the warrantless intrusion into a home 

absent exigent circumstances, the exigency cannot be created by 
21

police inaction, and any exigency here resulted only because the 

police chose not to arrest Dieteman or to execute the search 

warrant they obtained at 2 p.m. on August 3. 

¶41 This Court has recognized that Article 2, § 8 may 

afford greater protections than the Fourth Amendment, at least 

in the context of physical intrusions into a home. In Ault, 

police officers had probable cause to arrest a suspect when he 

met them at the door of his apartment. Id. at 463, 724 P.2d at 

549. Rather than arrest him, they asked him to accompany them 

to the station, which he agreed to do. They then followed him, 

over his objection, when he went inside to get some clothes. 

Rejecting arguments that the entry was justified because of the 

danger that the suspect might retrieve a weapon, the Court noted 

that “[t]he exigent circumstances . . . were created by the 

arresting deputies” when they did not arrest the suspect when he 

came to the door. Id. at 463, 724 P.2d at 549. The Court 

concluded that it “cannot allow the creation of exigent 

circumstances in order to circumvent the warrant requirement.” 

Id.; see also State v. Cañez, 202 Ariz. 133, 152 ¶ 56, 42 P.3d 

564, 583 (2002) (following Ault). 

¶42 Ault, however, does not control our analysis here. 

For reasons noted above, we reject Hausner’s argument that the 

police had probable cause to arrest Dieteman when the County 
22

Attorney approved the emergency wiretap on August 2. Inasmuch 

as the police made a physical intrusion into Hausner’s apartment 

to place the wiretap, that entry was supported by the warrant 

issued on the evening of August 2. Finally, to the extent that 

Hausner argues that exigent circumstances were also required to 

justify the recording of conversations resulting from the 

placement of the wiretap, we conclude that such circumstances 

exist if the statutory requirements for an emergency wiretap 

exist. Cf. State v. Bixby, 698 S.E.2d 572, 582 (S.C. 2010) 

(upholding South Carolina emergency wiretap provision as 

application of exigent circumstances exception), cert. denied, 

131 S. Ct. 2154 (2011). 

 C. Joinder 

¶43 Hausner argues that the trial court erred by denying 

his motions to sever and by consolidating the offenses charged 

in the five indictments for trial. The trial court made these 

rulings after conducting a multi-day evidentiary hearing and 

later denied Hausner’s renewed severance motions. We review 

trial court rulings on joinder and severance for an abuse of 

discretion. State v. Prince (Prince I), 204 Ariz. 156, 159 

¶ 13, 61 P.3d 450, 453 (2003). 

¶44 Two or more offenses may be joined in an indictment if 

they “are alleged to have been part of a common scheme or plan.” 
23

Ariz. R. Crim. P. 13.3(a)(3). Charges in separate indictments 

that could have been joined in one indictment may be 

consolidated “if the ends of justice will not be defeated 

thereby.” Ariz. R. Crim. P. 13.3(c). If offenses are joined 

under Rule 13.3(a)(3), a court need only order severance when 

“necessary to promote a fair determination of the guilt or 

innocence of any defendant.” Ariz. R. Crim. P. 13.4(a). 

Because we conclude that the offenses were properly joined under 

Rule 13.3(a)(3) or could have been joined under this Rule and 

were properly consolidated, we do not address the parties’ 

arguments concerning joinder under Rules 13.3(a)(1) or (2). 

¶45 For purposes of Rule 13.3(a)(3), a “common scheme or 

plan” is a “particular plan of which the charged crime is a 

part.” State v. Ives, 187 Ariz. 102, 109, 927 P.2d 762, 769 

(1996) (internal quotation omitted). The analysis “focus[es] on 

whether the acts are part of an over-arching criminal plan, and 

not on whether the acts are merely similar.” Id. Hausner 

contends that his crimes, although similar, were not part of a 

common scheme or plan, citing State v. Lee, 189 Ariz. 590, 944 

P.2d 1204 (1997). 

¶46 In Lee, this Court ruled that charges arising from two 

similar robberies could not be joined under Rule 13.3(a)(3) 

because the crimes were not “part of an over-arching criminal 
24

plan.” Id. at 598, 944 P.2d at 1212. Although the robberies 

occurred near the same time and were similar in other respects 

(for example, the victims were similarly employed and were shot 

with a .22 caliber), the Court noted that “no testimony or 

evidence suggests that the two robberies were part of a single 

plan.” Id. at 599, 944 P.2d at 1213. 

¶47 Here, in contrast to Lee, the State presented evidence 

showing that Hausner’s crimes were part of an over-arching 

criminal plan. A forensic psychiatrist testified that, after 

reviewing information about the crimes, he concluded that this 

scheme was “the seeking of thrills or excitement or relief of 

boredom or relief of negative feelings.” Such a scheme could 

include even the killing of animals because, as the psychiatrist 

testified, “[w]ith respect to trying to make one’s self feel 

better through violence, I think it makes no difference whether 

the targeted victim is a human or some other animal.” Two 

detectives also testified about similarities among the various 

shootings. On this record, the trial court did not abuse its 

discretion in finding a common scheme or plan based on a general 

thrill-seeking scheme or by consolidating the charges in the 

separate indictments. 

¶48 Nor did the court abuse its discretion in denying the 

motions to sever. “When a defendant challenges a denial of 
25

severance on appeal, he must demonstrate a compelling prejudice 

against which the trial court was unable to protect.” Prince I, 

204 Ariz. at 159 ¶ 13, 61 P.3d at 453 (internal quotation 

omitted). Hausner cannot show such prejudice because the trial 

court instructed the jurors to consider each charged offense 

separately and advised them that the State had to prove each 

beyond a reasonable doubt. See id. at 160 ¶ 17, 61 P.3d at 454. 

 D. Sufficiency of Evidence on Animal Cruelty Charges 

¶49 Hausner contends that the State presented insufficient 

evidence to sustain his convictions for animal cruelty involving 

the horse Apache and dogs Shep, Irving, Payton, and Martin, and 

his conviction for discharging a firearm at a shed belonging to 

Payton and Martin’s owner. A person may be found guilty of a 

class 6 felony under Arizona law if he or she “[i]ntentionally 

or knowingly subjects any animal to cruel mistreatment.” A.R.S. 

§ 13-2910(A)(9). Hausner argues that the State did not present 

sufficient evidence identifying him as the shooter for these 

incidents. 

¶50 We review the sufficiency of evidence presented at 

trial only to determine if substantial evidence exists to 

support the jury verdict. State v. Stroud, 209 Ariz. 410, 411 

¶ 6, 103 P.3d 912, 913 (2005). Substantial evidence is evidence 

that “reasonable persons could accept as sufficient to support a 
26

guilty verdict beyond a reasonable doubt.” State v. Hughes, 189 

Ariz. 62, 73, 938 P.2d 457, 468 (1997). We view the facts in 

the light most favorable to sustaining the jury verdict. State 

v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). 

¶51 Dogs Irving and Shep were shot outside their owners’ 

houses with a .22 caliber gun. Police later found .22 caliber 

shell casings, guns, and live cartridges in Hausner’s apartment 

and car. Irving and Shep were shot on November 11, 2005, within 

a mile and an hour of each other. This was also the same night 

that Hausner shot and killed Nathaniel Shoffner. Just before 

Irving was shot, one of his owners saw a four-door car pull up 

and a hand extend from the passenger window. Shep’s owner heard 

a car outside his house, the discharge of a .22, and then his 

dog’s yelp. Dieteman testified that Hausner and his brother 

Jeff told him they had been “out targeting a dog” on the night 

when they shot Shoffner. Sufficient evidence supported 

Hausner’s convictions for shooting these two dogs. 

¶52 Dogs Martin and Payton were shot outside their owner’s 

house with a .22 on December 30, 2005. Their owner was inside 

when they were shot, but he heard two pops that sounded like a 

small caliber weapon firing, followed by a loud cry from one of 

the dogs. This was the same night that Hausner shot a car at 

the ABC Bartending School, shot victims Ortiz, Carillo, Timothy 
27

Tordai and the dog Peanut with a .22, and also shot the dog 

Cherokee and victim Clarissa Rowley. Martin and Payton were 

shot just after midnight, three miles from where Hausner shot 

the dog Peanut at 12:30 a.m. This is sufficient evidence to 

support the jury’s conclusion that Hausner shot Martin and 

Payton and discharged a firearm at a shed belonging to their 

owner. 

¶53 Apache, the horse, was shot with a .22 between 10:30 

p.m. on July 19, 2005, and 5:30 a.m. on July 20. When shot, 

Apache was in a pen outside his owner’s house in Tolleson. The 

owner did not see or hear any gunshots. Just before midnight on 

July 19, Hausner shot and killed the dog Whiskey with a .22 in 

Phoenix, two miles from where Apache was shot. From this 

evidence alone, a jury could not reasonably conclude beyond a 

reasonable doubt that Hausner also shot Apache. Accordingly, we 

reverse Hausner’s conviction and sentence for animal cruelty 

with respect to the shooting of Apache. 

 E. Evidentiary Issues 

¶54 Hausner challenges the admission of evidence of outof-court statements by attempted-murder victims Joseph Roberts, 

David Perez, and Miguel Rodriguez. Hausner also contends the 

trial court erred in admitting certain “other acts” evidence. 

 
28

1. Roberts’ Statements 

¶55 Joseph Roberts was shot while walking with his bike on 

the night of July 2, 2006. Roberts spoke with Detective Clark 

Schwartzkopf at a hospital the next morning, but Roberts could 

not recall this meeting when he testified at the 2009 trial. 

Roberts testified that, after he was shot, he saw a four-door, 

silver car on the opposite side of the street, but he could not 

see how many people were inside. He did not remember ever 

describing the car’s driver. 

¶56 Detective Schwartzkopf testified about contacting 

Roberts at the hospital. Schwartzkopf said Roberts told him 

that “as the vehicle slowed, he saw the driver’s window 

completely down and he saw what he described as a barrel 

protruding from the driver’s side of the vehicle. . . . [H]e 

believed that it was a rifle or shotgun barrel,” and that he 

thought the driver was Caucasian. Roberts described the car as 

a “silver, passenger” vehicle, and said its headlights were 

turned off just before the shooting. 

¶57 Hausner objected to Schwartzkopf’s testimony about 

Roberts’ statements as inadmissible hearsay. Overruling the 

objection, the trial court ruled that the statements were 

admissible as prior inconsistent statements under Arizona Rule 

of Evidence 801(d)(1). Considering the factors identified in 
29

State v. Allred, 134 Ariz. 274, 277, 655 P.2d 1326, 1329 (1982), 

the trial court further found that the statements were not 

unduly prejudicial. Alternatively, the trial court ruled that 

the statements were sufficiently reliable to be admissible under 

the residual hearsay exception in Arizona Rule of Evidence 

803(24) (since renumbered Rule 807). 

¶58 We review admission of evidence for an abuse of 

discretion. See State v. Tucker, 205 Ariz. 157, 165 ¶ 41, 68 

P.3d 110, 118 (2003). A statement is not hearsay if the 

declarant testifies, the statement is inconsistent with the 

declarant’s testimony, and the declarant is subject to crossexamination about it. Ariz. R. Evid. 801(d)(1)(A). “A claimed 

inability to recall, when disbelieved by the trial judge, may be 

viewed as inconsistent with previous statements.” State v. 

King, 180 Ariz. 268, 275, 883 P.2d 1024, 1031 (1994) (internal 

quotation omitted). 

¶59 Hausner argues that nothing suggests Roberts feigned 

lack of memory about his statements in the hospital, and 

therefore they could not be admitted as “inconsistent” with his 

trial testimony. Cf. id. at 275, 883 P.2d at 1031 (concluding 

that record supported trial court’s finding that witness feigned 

loss of memory). Moreover, because Roberts could not recall 

talking to Schwartzkopf, Hausner argues that the trial court 
30

erred in finding the statements sufficiently reliable to be 

admissible under the residual hearsay exception. 

¶60 Although the trial “court has considerable discretion 

in determining whether a witness's evasive answers or lack of 

recollection may be considered inconsistent with that witness's 

prior out-of-court statements,” State v. Salazar, 216 Ariz. 316, 

319 ¶ 15, 166 P.3d 107, 110 (App. 2007), here the court did not 

find and the record does not suggest that Roberts feigned his 

lack of memory at trial. Roberts, as one of the shooting 

victims, would have no apparent reason to do so. Cf. State v. 

Robinson, 165 Ariz. 51, 59, 796 P.2d 853, 861 (1990) (finding 

trial court did not abuse its discretion in admitting extrinsic 

evidence of out-of-court statement under Rule 613(b) when court 

could not tell if witness was being evasive or merely had poor 

recollection, but record amply suggested reasons for witness to 

be evasive). The trial court erred in concluding that Roberts’ 

statements at the hospital were “inconsistent” with his 

testimony and admissible under Rule 801(d)(1). 

¶61 We need not determine if the trial court properly 

concluded that the statements were also admissible under the 

residual hearsay exception. Roberts testified that he had seen 

a four-door silver car across the street after he was shot. The 

out-of-court hospital statements introduced through Schwartzkopf 
31

provided the further details that Roberts was shot by the car’s 

Caucasian driver, who pointed a rifle or shotgun from the 

driver’s window and turned off the car’s headlights. Roberts 

did not identify Hausner as the shooter in his testimony or the 

hospital statements. Instead, Dieteman testified that Hausner 

was driving and shot Roberts from the driver’s window with a 

.410 shotgun. Because we conclude that the hospital statements 

did not impact the jury’s verdict, any error in their admission 

was harmless. See State v. Bocharski, 218 Ariz. 476, 486 ¶¶ 38-

41, 189 P.3d 403, 413 (2008) (applying harmless error analysis 

to admission of hearsay). 

2. Perez and Rodriguez Statements 

¶62 Hausner also objected to testimony by two police 

officers regarding statements made by victims Perez and 

Rodriguez. Neither victim was available to testify at trial, 

but the officers testified to statements made by each victim 

when the officers arrived on the scenes. The trial court 

admitted the statements as excited utterances. (Although 

Hausner initially argued that admission of these statements 

violated the Confrontation Clause, he abandoned that argument in 

light of Michigan v. Bryant, 131 S. Ct. 1143 (2011), as it is 

clear that the statements were not testimonial.) 

¶63 An excited utterance is a statement “relating to a 
32

startling event or condition, made while the declarant was under 

the stress of excitement that it caused.” Ariz. R. Evid. 

803(2). This exception to the rule generally barring the 

admission of hearsay turns on three factors: there must be a 

startling event, the words must be spoken soon afterwards, and 

the words must relate to the startling event. State v. Cruz, 

218 Ariz. 149, 161 ¶ 54, 181 P.3d 196, 208 (2008). 

¶64 The first victim, Perez, was shot in the early morning 

on July 7, 2006, and Officer Shoemaker was one of the first 

officers to arrive at the scene. Shoemaker testified that he 

asked Perez what happened, and that “[h]e told me he was 

standing out into the street in front of the property using a 

telephone when a car, which he described as a blue Contour, 

drove from west to east in an eastbound manner on State Avenue 

and fired, what he said, was a shot at me. He told me he didn’t 

see a license plate of the car, he didn’t see any possible 

suspect that may have fired the . . . the shot.” Shoemaker 

explained that he had questioned Perez in order to secure the 

scene and meet an on-going emergency. 

¶65 The trial court did not abuse its discretion in 

finding that Perez’s statements to Officer Shoemaker were 

excited utterances. The shooting was a startling event; Perez 

made the statements soon after he was shot; and the statements 
33

related to the event. 

¶66 Victim Rodriguez was shot on May 31, 2006, and Phoenix 

Police Officer Baiardi was one of the first to arrive on the 

scene. Baiardi testified that Rodriguez told him he was shot 

and that “[h]e was in a lot of pain” and that “I tried to get as 

much information as possible, because when the shooting 

occurred, I wasn’t too far from the scene.” He also testified 

that Rodriguez “told me that . . . the shot, he believed, came 

from a white vehicle that was going westbound on Indian School 

. . . [T]he one thing I do remember he said is that it was a 

white imported car or white foreign vehicle.” 

¶67 Rodriguez’ statements to Officer Baiardi were properly 

admitted as excited utterances. Rodriguez was the victim of a 

shooting and he made statements about the event soon after it 

occurred. 

3. Other Acts Evidence 

¶68 Hausner also argues that the trial court erred in 

allowing the State to submit “other acts” evidence that he (1) 

is bisexual, (2) set fire to a tree, shoplifted, and slashed 

tires at a casino, (3) was present when his brother, Jeff 

Hausner, stabbed a man, (4) while in court, made obscene 

gestures to victim Paul Patrick and Rebecca Estrada, the mother 

of murder victim David Estrada, and (5) was physically violent 
34

toward his ex-wife. We review a trial court’s decision to admit 

evidence of other acts for an abuse of discretion. State v. 

Villalobos, 225 Ariz. 74, 80 ¶ 18, 235 P.3d 227, 233 (2010).

¶69 Evidence of “other acts” generally “is not admissible 

to prove the character of a person in order to show action in 

conformity therewith.” Ariz. R. Evid. 404(b). But it is 

admissible “for other purposes, such as proof of motive, 

opportunity, intent, preparation, plan, knowledge, identity, or 

absence of mistake or accident.” Id. When the State seeks to 

admit evidence of other acts of the defendant, it must prove by 

clear and convincing evidence that the defendant committed the 

other acts; they must be offered for a proper purpose; they must 

be relevant; and, consistent with Rule 403, their probative 

value must not be substantially outweighed by the danger of 

unfair prejudice. See State v. Terrazas, 189 Ariz. 580, 583, 

944 P.2d 1194, 1197 (1997).

a. Evidence of Hausner’s bisexuality

¶70 Hausner first challenges the trial court’s admitting 

evidence of his alleged bisexuality. During the guilt phase, 

Hausner testified on direct examination that Dieteman was 

bisexual, that he was not, and that several sexually-themed text 

messages between the two of them were intended to be humorous. 

Over his objections, the court allowed the State to ask Hausner 
35

on cross-examination about his sexuality and to introduce 

testimony by his ex-wife that she had seen him kiss another man 

on the neck and that he had once told her he thought he was gay. 

The trial court ruled that Hausner had opened the door to the 

issue of his sexual orientation by his own testimony and that 

this evidence was relevant to his relationship with Dieteman, 

who participated with Hausner in many of the crimes and whom 

Hausner suggested was responsible for them. The trial court 

also instructed the jury, before its deliberations, that: 

“[a]person’s sexuality does not make it any more or 

less likely that a person committed the crimes alleged 

in the indictment. You are not to consider any 

allegation of bisexuality to consider if Mr. Hausner 

committed the crimes alleged in this indictment.” 

¶71 The trial court did not clearly abuse its discretion 

in admitting this evidence, particularly given that Hausner 

himself placed his bisexuality at issue and attempted to 

distance himself from Dieteman by characterizing their 

respective sexual orientations. We underscore, however, that 

trial courts must be cautious in admitting evidence of a 

witness’s sexual orientation in cases in which it is not 

directly relevant, given the danger that it may be unfairly 

prejudicial. Any error in admitting evidence of Hausner’s 

bisexuality, moreover, was harmless because the trial court 

instructed the jurors not to consider such evidence in 
36

determining if Hausner committed the alleged crimes. See State 

v. Velazquez, 216 Ariz. 300, 307-08 ¶ 24, 166 P.3d 91, 98-99 

(2007).

b. Acts of vandalism, arson, and shoplifting

¶72 Hausner also contends the trial court erred in 

admitting evidence that he and Dieteman set a palm tree on fire, 

shoplifted, and slashed tires in a casino parking lot. During 

his direct examination, Hausner testified that he would never 

harm a person or an animal, that he “would never harm anything,” 

and that he was “not a violent person.” On cross-examination, 

Hausner denied shoplifting or setting a tree on fire, but 

admitted slashing tires. Dieteman subsequently testified that 

he was with Hausner and Jeff when they set fire to a tree and 

that he and Hausner regularly shoplifted alcohol, DVDs, and 

games. The State also presented testimony from security guards 

at the casino where the tires were slashed and from a Chandler 

police officer regarding the tree burning. 

¶73 The trial court did not abuse its discretion in 

allowing other acts evidence tending to show Hausner’s violent 

nature, including the tire slashing and the tree burning. 

Hausner opened the door to such evidence, and thereby waived any 

objection to its admission by testifying on direct that he was 

not a violent person. See State v. Arriola, 99 Ariz. 332, 334-
37

35, 409 P.2d 37, 39-40 (1965). Evidence Rule 404(a)(1) allows 

the admission of “[e]vidence of a pertinent trait of character 

offered by an accused, or by the prosecution to rebut the same.” 

This rule allowed the State to introduce evidence to rebut 

Hausner’s testimony about his non-violent nature.

¶74 Dieteman’s testimony regarding shoplifting habits, 

however, is not admissible to rebut Hausner’s assertions that he 

is not violent. Such evidence was perhaps of some relevance in 

rebutting Hausner’s assertion that he magnanimously allowed 

Dieteman to live with him, inasmuch as both were earning money 

by stealing. In any event, any error in admitting the 

shoplifting evidence was harmless because the trial court 

instructed the jury that it could not consider the evidence to 

determine Hausner’s character or character trait or to determine 

that he acted in conformity with the same and therefore 

committed the charged offenses.

c. Evidence of stabbing 

¶75 On direct examination, Hausner testified that he knew 

that his brother Jeff had been arrested for stabbing a man, but 

Hausner said he was not present at this stabbing. He further 

testified that he had never been present with Jeff and Dieteman 

at a stabbing and had not met Dieteman until several days after 

the stabbing. 
38

¶76 Over Hausner’s objection, the State subsequently 

elicited testimony from Dieteman that he and Hausner were 

present when Jeff committed the stabbing. Because Hausner 

discussed the stabbing in direct examination, he cannot claim 

error from the State’s introducing evidence to contradict his 

denials. See Arriola, 99 Ariz. at 334-35, 409 P.2d at 39-40. 

 d. Obscene gestures in courtroom 

¶77 During cross-examination, Hausner testified that he 

thought the murders were tragic and had felt that way during the 

entire trial. The prosecutor asked Hausner if he had made 

obscene gestures in the courtroom to victim Paul Patrick and to 

Roberta Estrada, mother of victim David Estrada. Hausner denied 

doing so. Over Hausner’s objection, the State later presented 

testimony by Patrick and Roberta Estrada, each of whom said that 

Hausner had gestured to them by raising his middle finger. 

¶78 The trial court did not err in admitting this evidence 

of Hausner’s in-court demeanor, given Hausner’s assertion on 

cross-examination that throughout the trial he had thought the 

murders were tragic.

e. Acts of violence against ex-wife 

¶79 The trial court permitted Hausner’s ex-wife to testify 

to specific incidents of violence, including that, in 2001, 

Hausner drove her to Wickenberg and held her at gunpoint in the 
39

desert, and on another occasion, he chased her down in his car, 

caught her, and ripped her clothing. 

¶80 Hausner opened the door to this evidence by testifying 

that he was non-violent and would never harm anyone or anything. 

The court specifically found that the ex-wife’s testimony about 

Hausner’s prior assaults was admissible under Rule 404(b) and 

not unduly prejudicial under Rule 403. On the day his ex-wife 

testified, the court gave the jury an appropriate 404(b) 

limiting instruction, and the court in its final instructions 

generally directed the jurors that they could not consider other 

acts to show that Hausner acted in conformity with a character 

trait and therefore committed the charged offenses. The trial 

court did not abuse its discretion in admitting this evidence. 

f. Denial of surrebuttal 

¶81 Hausner contends that the trial court erred by 

refusing to allow him to present surrebuttal evidence to the 

other acts evidence. 

¶82 Because trial courts must be able to limit the 

presentation of witnesses and other evidence on collateral 

issues, only rarely will a trial court abuse its discretion in 

denying surrebuttal. State v. Steelman, 120 Ariz. 301, 319, 585 

P.2d 1213, 1231 (1978); see Ariz. R. Crim. P. 19.1. Hausner had 

an opportunity to deny the other acts during his testimony, and 
40

the trial court did not abuse its discretion in refusing to 

allow surrebuttal testimony. 

F. Constitutionality of Abuse of Discretion Review 

¶83 Under A.R.S. § 13-756(A), this Court reviews death 

sentences to determine if the jury abused its discretion in 

finding aggravating circumstances and imposing a sentence of 

death. Hausner argues that the abuse of discretion standard 

violates the Eighth Amendment or due process. Recognizing that 

State v. Martinez, 218 Ariz. 421, 189 P.3d 348 (2008), rejected 

arguments that the Eighth Amendment requires independent review 

of death sentences, Hausner argues that Martinez did not 

consider the importance of independent review in ensuring that 

Arizona’s sentencing scheme “genuinely narrows the class of 

persons eligible for the death penalty.” 

¶84 We decline to reconsider Martinez. See State v. Cota, 

229 Ariz. 136, 153 ¶ 92, 272 P.3d 1027, 1044 (2012) (citing 

Martinez in observing “we have already determined that abuse of 

discretion review is constitutional”). 

G. Jury Findings that Four Murders were “Especially 

Heinous, Cruel, or Depraved” 

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

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

especially heinous, cruel or depraved manner.” Hausner argues 
41

that the jury abused its discretion in finding the (F)(6) 

aggravating factor with respect to the murders of victims Ortis, 

Carillo, Gutierrez-Cruz, and Blasnek. The jury found that each 

of these murders was committed in an especially heinous or 

depraved manner; it also found the murders of Gutierrez-Cruz and 

Blasnek were especially cruel. 

¶86 “Heinousness and depravity go to a defendant’s mental 

state as reflected in his words and actions at or near the time 

of the offense.” State v. Johnson, 212 Ariz. 425, 439 ¶ 55, 133 

P.3d 735, 749 (2006). Cruelty, in contrast, depends in part on 

the victim’s mental state. To establish cruelty, the State must 

prove beyond a reasonable doubt that “the victim consciously 

experienced physical or mental pain prior to death, and the 

defendant knew or should have known that suffering would occur.” 

Martinez, 218 Ariz. at 436 ¶ 70, 189 P.3d at 363 (citation and 

internal quotation marks omitted). 

¶87 To establish that the murders were especially heinous 

or depraved, the State presented evidence that Hausner had 

relished the murders. “Relishing refers to words or actions 

that show debasement or perversion,” State v. Greene, 192 Ariz. 

431, 439 ¶ 34, 967 P.2d 106, 114 (1998) (internal quotation 

omitted), and “requires that the defendant say or do something, 

other than the commission of the crime itself, to show he 
42

savored the murder.” State v. Doerr, 193 Ariz. 56, 67-68 ¶ 54, 

969 P.2d 1168, 1179-80 (1998) (internal quotation omitted). A 

defendant’s “post-murder statements suggesting indifference, 

callousness, or lack of remorse” can constitute relishing, so 

long as “they indicate, beyond a reasonable doubt, that the 

killer savored or enjoyed the murder at or near the time of the 

murder.” Greene, 192 Ariz. at 440-41 ¶ 39, 967 P.2d at 115-16. 

¶88 The jury here was instructed as follows: 

Defendant relished the murder if defendant, by words or 

actions, savored the murders. These words or actions 

must show debasement or perversion and not merely the 

defendant had a vile state of mind or callous attitude. 

 

Statements suggesting indifference as well as those 

reflecting calculated plan to kill, satisfaction over 

the apparent success of the plan, extreme callousness, 

lack of remorse, or bragging after the murder are not 

enough unless there is evidence that the defendant 

fully relished the act of murder at or near the time of 

the killing.

¶89 Hausner does not challenge the instructions with 

respect to relishing, but instead argues that there was 

insufficient evidence from which the jury could conclude that he 

relished the act of killing “at the time he was doing it.” 

¶90 In reviewing whether a jury has abused its discretion 

in finding an aggravating factor, we “review[] the record to 

determine whether substantial evidence supports the jury’s 

finding, viewing the facts in the light most favorable to 

sustaining the jury verdict.” State v. Roque, 213 Ariz. 193, 
43

218 ¶ 93, 141 P.3d 368, 393 (2006). “Substantial evidence is 

such proof that reasonable persons could accept as adequate and 

sufficient to support a conclusion of [the] defendant’s guilt 

beyond a reasonable doubt.” Id. (internal quotations omitted). 

¶91 Substantial evidence supports the jury’s finding that 

Hausner relished the four murders at or near the time he 

committed them. Blasnek was his last victim; he killed her on 

the night of July 30, 2006. In recorded conversations in his 

apartment on August 3, Hausner joked with Dieteman about killing 

Blasnek and other victims and declared, “I love shooting people 

in the back, it’s so much fun.” He and Dieteman read each other 

articles about the serial shooting investigation and Blasnek’s 

murder. Responding to a police tally of six victims, Hausner 

said, “It’s higher than that! What about the guy I fucking shot 

at 27th Avenue in the yard?” When Dieteman told him that police 

were looking for similar crimes in other states, Hausner 

responded, “so we’re being copycatted, Sam? We’re pioneers, 

Sam? We’re leading the way for a better life for everybody, 

Sam?” 

¶92 Hausner, after listening to Dieteman read an article 

about the Blasnek shooting, said “She was on her knees. ‘Oh, 

I’ve been shot!’ Blood pouring out, right.” He then said, in a 

voice mimicking Blasnek’s, “I’ve been shot,” and he and Dieteman 
44

mimicked crying, laughed, and referred to Blasnek scornfully. 

Reading from an obituary, Dieteman later asked Hausner if he 

knew a “Blasnek,” and Hausner responded “I know a ‘blast neck.’” 

Hausner also recorded, on a piece of paper, Blasnek’s name and 

the date and time of her murder. 

¶93 Gutierrez-Cruz, the next-to-last victim, was shot by 

Hausner and Dieteman with a .410 shotgun on May 2, 2006, and 

died while in surgery. Two days after the shooting, Hausner, 

according to Dieteman, came to their apartment in a “jovial” 

mood, with a “big grin on his face,” and read Dieteman a 

newspaper article describing the murder. Hausner told Dieteman, 

“Oh, dude, you got the first murder of the year in Scottsdale. 

I’m jealous.” 

¶94 Hausner murdered Carillo and Ortis within two blocks 

of each other in Phoenix on December 29, 2005. That same 

evening, in the same area, he shot and attempted to kill another 

pedestrian, who survived. The following night, Hausner shot and 

attempted to kill yet another victim, who also survived. He 

kept news clippings about each of the four murders. 

¶95 Hausner argues that retaining news clippings and 

bragging about a murder after the fact do not suffice to 

establish relishing. The evidence showed, however, that Hausner 

did not merely keep some news stories or brag about the murders. 
45

Hausner demonstrated through his words and actions that, as he 

said, he “loved shooting people in the back.” Words or actions 

after a murder may prove the murderer savored the act of killing 

at or near the time it occurred. See State v. West, 176 Ariz. 

432, 437, 862 P.2d 192, 197 (1993) (defendant bragging to multiple 

people about murdering older man and describing how he killed 

him was relishing), overruled on other grounds by State v. 

Rodriguez, 192 Ariz. 58, 961 P.2d 1006 (1998). The evidence 

amply supported a jury finding that Hausner savored the murders 

at or near the time he committed them.

¶96 Hausner also argues that the jury abused its 

discretion in finding the murders of Gutierrez-Cruz and Blasnek 

especially cruel. Because the finding that each of these 

murders was heinous or depraved suffices to establish the (F)(6) 

aggravator, we need not address the jury’s finding of cruelty. 

See State v. Morris, 215 Ariz. 324, 341 ¶ 80, 160 P.3d 203, 220 

(2007).

H. Jury Findings that Certain Murders were Committed in a 

“Cold, Calculated Manner” 

¶97 The (F)(13) aggravator qualifies a first degree murder 

for the death penalty if “[t]he offense was committed in a cold, 

calculated manner without pretense of moral or legal 

justification.” A.R.S. § 13-751(F)(13). The jury found this 

aggravator with respect to the murders of Ortis, Carillo, 
46

Gutierrez-Cruz, and Blasnek. 

¶98 Hausner contends that the (F)(13) aggravator is 

unconstitutional on its face, the jury was erroneously 

instructed as to its meaning, it does not sufficiently narrow 

the application of the death penalty, and it was not supported 

by the evidence. 

¶99 We review constitutional issues de novo, and, when 

possible, construe statutes to uphold their constitutionality. 

State v. Hargrave, 225 Ariz. 1, 13 ¶ 42, 234 P.3d 569, 581 

(2010). The death penalty may not be imposed under sentencing 

procedures that create a substantial risk that the punishment 

will be inflicted in an arbitrary and capricious manner. Furman 

v. Georgia, 408 U.S. 238, 256 (1972). To pass constitutional 

muster, then, an aggravator must meet two criteria: the 

circumstance may not apply to every defendant convicted of a 

murder, but only to a subclass, and the aggravating circumstance 

may not be overly vague. Tuilaepa v. California, 512 U.S. 967, 

972 (1994). 

¶100 Vagueness is a difficult concept to analyze, but 

sentencing factors that the Supreme Court has found to be 

impermissibly vague have often been those that present a 

“specific proposition that the sentencer had to find true or 

false (e.g., whether the crime was especially heinous, 
47

atrocious, or cruel).” Id. at 974. Where a sentencing factor 

is a specific proposition, such as “cold and calculated,” the 

concern is that it have some “common-sense core of meaning . . . 

that criminal juries should be capable of understanding.” Id. 

at 975 (internal quotation omitted). 

¶101 Although this Court has never addressed the 

constitutionality of the (F)(13) aggravator, state supreme 

courts in Illinois and Florida have considered similar 

aggravators. The Illinois Supreme Court upheld an aggravator 

for murders that were “cold, calculated, and premeditated,” 

finding that it was not unconstitutionally vague. People v. 

Johnson, 609 N.E.2d 294, 372-73 (Ill. 1993). (Illinois has 

since abolished the death penalty.) In contrast, the Florida 

Supreme Court ruled that Florida’s cold, calculated and 

premeditated (“CCP”) aggravator was unconstitutionally vague. 

Jackson v. State, 648 So. 2d 85, 90 (Fla. 1994). The Florida 

statute made murders death-eligible if they were “committed in a 

cold, calculated, and premeditated manner without any pretense 

of moral or legal justification.” Fla. Stat. Ann. 

§ 921.141(5)(i). The court in Jackson concluded that “[w]ithout 

the benefit of an explanation that some ‘heightened’ form of 

premeditation is required to find CCP, a jury may automatically 

characterize every premeditated murder as involving the CCP 
48

aggravator.” 648 So. 2d at 89. 

¶102 Jackson is instructive. Although Arizona’s statute 

differs from Florida’s in that it omits the word “premeditated,” 

and instead allows for death penalty eligibility if “[t]he 

offense was committed in a cold, calculated manner without 

pretense of moral or legal justification,” Arizona’s (F)(13) 

aggravator otherwise tracks the language of Florida’s statute. 

A.R.S. § 13-751(F)(13). In Jackson, the court found the jury 

received “no instruction to illuminate the meaning of the terms 

‘cold,’ ‘calculated,’ or ‘premeditated.’” 648 So. 2d at 89-90. 

Without further instruction, the Jackson court noted, “[i]t 

would also be reasonable for the general public to consider 

premeditated first degree murder as ‘cold-blooded murder.’” Id.

at 89. On its face, Arizona’s (F)(13) aggravator suffers from 

the same vagueness infirmity as Florida’s statute. 

¶103 An aggravator that is vague on its face, however, can 

be properly narrowed by a court to bring it within 

constitutional bounds. State v. Chappell, 225 Ariz. 229, 237 

¶ 26, 236 P.3d 1176, 1184 (2010), cert. denied, 131 S. Ct. 1485 

(2011) (“vagueness. . . . may be remedied with appropriate 

narrowing instructions.”) (internal quotation omitted); see also 

State v. Tucker, 215 Ariz. 298, 310 ¶ 28, 160 P.3d 177, 189 

(2007); Walton v. Arizona, 497 U.S. 639, 655 (1990), overruled 
49

on other grounds by Ring, 536 U.S. 584. In Jackson, upon 

remand, Florida’s CCP aggravator was narrowed through jury 

instructions defining its terms, 648 So. 2d at 89-90, and 

subsequent death sentences in Florida, under these narrowing 

instructions, have been upheld. See, e.g., McWatters v. State, 

36 So. 3d 613, 643 (Fla. 2010), cert. denied, 131 S. Ct. 510 

(2010). 

¶104 The trial court here gave narrowing instructions 

substantially the same as those approved in Jackson. It 

clarified to the jury that “all first degree premeditated 

murders are, to some extent, committed in a cold, calculated 

manner,” but distinguished this aggravator as one that “cannot 

be found to exist unless . . . the defendant exhibited a cold 

intent to kill and is more contemplative, more methodical, more 

controlled than that necessary to commit premeditated first 

degree murder.” The instruction further defined the term “cold” 

as “a product of a calm and cool reflection” and “calculated” as 

“having a careful plan or prearranged design to commit murder.” 

The court emphasized that the jury must look to the defendant’s 

state of mind at the time of the offense to determine whether 

there exists any pretense of moral or legal justification that 

rebuts cold and calculated, and that it must find beyond a 

reasonable doubt that there is (1) a careful plan or prearranged 
50

design before the murder, and (2) a cool and calm reflection for 

a substantial period of time before the murder. 

¶105 This instruction adequately narrowed the aggravator, 

making it clear that it is not the cold and calculated nature of 

every murder that will satisfy it, but that the jury must find 

some degree of reflection and planning that goes beyond the 

premeditation required to find first degree murder, channeling 

the jury’s discretion by “clear and objective standards” that 

provide “specific and detailed guidance.” Godfrey v. Georgia, 

446 U.S. 420, 428 (1980). 

¶106 Apart from arguing that the (F)(13) aggravator is 

facially vague, Hausner also contends that the trial court 

incorrectly defined particular terms in its narrowing 

instructions. Specifically, he argues: the instructions 

incorrectly defined “cold;” the term “calculated” was 

superfluous; and the trial court’s explanation of “without 

pretense of moral or legal justification” “makes no sense at all 

in conjunction with Arizona’s law.” 

¶107 “We review de novo whether jury instructions 

adequately state the law.” State v. Gallardo, 225 Ariz. 560, 

567 ¶ 30, 242 P.3d 159, 166 (2010) (internal quotation omitted). 

Because Hausner did not object to the (F)(13) instructions on 

these grounds below, however, he is not entitled to relief 
51

unless he can show fundamental error. 

¶108 The trial court did not incorrectly define the terms 

of the (F)(13) aggravator. The court instructed the jury that 

“[c]old means the murder was a product of a calm and cool 

reflection. Calculated means having a careful plan or 

prearranged design to commit murder.” Arizona cases have 

previously used the terms “cold” or “cold-blooded” to describe 

murders or crimes marked by a lack of emotion in the act of 

killing. See, e.g., King, 180 Ariz. at 286, 883 P.2d at 1042 

(describing the thought out, deliberate killing to eliminate a 

witness as “cold-blooded”); State v. Schurz, 176 Ariz. 46, 56, 

859 P.2d 156, 166 (1993) (describing the deliberate, careful 

burning to death of a person who attempted to flee as “coldblooded”); Gretzler, 135 Ariz at 58, 659 P.2d at 17 (describing 

the cold blooded murder of nine persons, including shooting 

sleeping children as they lay in their beds). Nor did the trial 

court’s definition make superfluous the term “calculated,” which 

the instructions defined to mean “having a careful plan or 

prearranged design to commit murder.” 

¶109 Hausner also faults the trial court’s definition of 

“without pretense of moral or legal justification.” The court 

instructed the jury that this phrase means without “anything of 

justification or excuse that, though insufficient to reduce the 
52

degree of murder, nonetheless rebuts the otherwise cold, 

calculated nature of the murder.” Hausner contends the court 

should have explained to the jury the legal justifications that 

exist under Arizona law. But this mistakenly presumes that the 

jury could only consider legally recognized justifications. The 

statute refers more broadly to a “pretense” of legal or moral 

justification, and the trial court reasonably defined this as 

“anything of justification or excuse.” 

¶110 The trial court properly narrowed the (F)(13) 

aggravator so that it was constitutional, despite its facial 

vagueness, and it defined the terms to the jury in a permissible 

manner that did not constitute fundamental error. 

¶111 Hausner also argues the jury abused its discretion in 

finding the (F)(13) aggravator, contending that his murders 

could not have been “cold and calculated” because they were 

“random.” We disagree. The fact that victims were randomly 

targeted does not preclude a finding of the elements of the 

(F)(13) aggravator. There is ample evidence that Hausner had a 

careful plan or prearranged design for each of the four murders 

even if he randomly identified the particular victim. The jury 

could also find that he exhibited a cool and calm reflection for 

a substantial period of time before killing and that he had no 

pretense of moral or legal justification or excuse. 
53

¶112 We note that Hausner has not argued that there was any 

constitutional error based on the trial court adopting narrowing 

instructions for (F)(13) that had not been approved by this 

Court before he committed the relevant murders. Cf. State v. 

Schmidt, 220 Ariz. 563, 566 ¶ 10, 208 P.3d 214, 217 (2009) 

(holding that use of vaguely defined statutory aggravator as 

sole factor to enhance sentence violated due process). We do 

not address whether the trial court erred in this respect. 

¶113 Finally, we conclude that any error by the trial court 

in applying the (F)(13) aggravator - and we have not identified 

any for reasons explained above - was harmless beyond a 

reasonable doubt. This Court may apply “harmless-error analysis 

when errors [regarding sentencing factors] have occurred in a 

capital sentencing proceeding,” Clemons v. Mississippi, 494 U.S. 

738, 754 (1990), so long as the errors do not permit the 

sentencer to consider otherwise inadmissible evidence. Id. n.5;

see Brown v. Sanders, 546 U.S. 212, 220-21 (2006) (stating that 

due process requires reversal of death sentence if invalid 

sentencing factor allowed sentencer to consider evidence that 

otherwise would not have been before it); cf. Jennings v. 

McDonough, 490 F.3d 1230, 1249-50 (11th Cir. 2007) (approving 

Florida Supreme Court’s harmless error analysis with regard to 

vaguely defined aggravator). 
54

¶114 The use of the (F)(13) aggravator did not allow the 

jury to consider any evidence that otherwise would not have been 

before it. The jury properly found three other aggravators – 

the (F)(1), (2), and (6) – with respect to each of the four 

victims for which it also found the (F)(13). Hausner presented 

no mitigation evidence. In these circumstances, we conclude 

that any error regarding the (F)(13) aggravator did not 

influence the jury’s decision to impose death sentences. Cf. 

State v. Sansing, 206 Ariz. 232, 241 ¶ 38, 77 P.3d 30, 39 (2003) 

(affirming court-imposed death sentence upon concluding that any 

reasonable jury would have found the mitigation was not 

sufficiently substantial to call for leniency).

 I. Waiver of Presentation of Mitigation 

¶115 Hausner argues that the trial court should not have 

allowed him, over his lawyers’ objection, to waive the 

presentation of mitigation during the penalty phase. 

¶116 A defendant may waive mitigation if he is competent 

and makes the decision knowingly, intelligently, and 

voluntarily. State v. Murdaugh, 209 Ariz. 19, 33-34 ¶¶ 70-71, 

97 P.3d 844, 858-59 (2004). The trial court ordered Hausner to 

undergo a competency examination when he stated that he wished 

to waive the presentation of mitigating evidence. After the 

examiner concluded that Hausner was competent, the trial court 
55

confirmed with Hausner that he had discussed his decision and 

its consequences with his counsel. The court then found that he 

had knowingly, intelligently, and voluntarily waived mitigation. 

Hausner does not challenge these findings.

¶117 During the penalty phase, Hausner’s lawyers did not 

make an opening statement or closing argument. During 

allocution, Hausner apologized to his family and to the victims, 

but he also urged the jury to sentence him to death: “I’m 

willing to take whatever punishment you guys give me, and I 

firmly believe, to help the victims heal, that should be the 

death penalty.” The trial court instructed the jury that it was 

not limited to considering mitigating circumstances offered by 

the defendant, that it must consider any relevant mitigating 

evidence offered during any phase of the trial, and that each 

juror must individually determine whether the mitigation was 

sufficiently substantial to call for leniency.

¶118 Although the proceedings here complied with Murdaugh, 

Hausner argues that we should reconsider that decision. He 

contends that allowing a defendant to waive mitigation prevents 

the jury from considering all relevant mitigation in determining 

whether to impose a death sentence. He also argues that 

Murdaugh misinterpreted Blystone v. Pennsylvania, 494 U.S. 299 

(1990). These arguments are not convincing. Blystone rejected 
56

an Eighth Amendment challenge to a death sentence imposed by a 

jury that was instructed, as was the jury here, that it should 

consider any mitigation evidence presented at trial in deciding 

on the penalty. Although the defendant in Blystone waived the 

presentation of mitigation, the Supreme Court held that the 

sentencing procedures did not impermissibly preclude the jury 

from considering all relevant mitigation evidence presented at 

trial. See id at 307-08.

¶119 Hausner also has no viable argument that the Sixth 

Amendment requires the defense to present mitigation despite the 

defendant’s waiver. In Schriro v. Landrigan, the Court held 

that a defendant could not establish the prejudice prong for a 

claim of ineffective assistance of counsel related to counsel’s 

failure to investigate mitigation evidence when the defendant 

decided to not present any mitigation. 550 U.S. 465, 476, 481 

(2007). Indeed, requiring the defense to present mitigating 

evidence over the defendant’s opposition arguably would conflict 

with the defendant’s Sixth Amendment right to selfrepresentation. See United States v. Davis, 285 F.3d 378, 384–

85 (5th Cir. 2002); People v. Blair, 115 P.3d 1145, 1177-78 

(Cal. 2005).

¶120 Hausner notes that the New Jersey Supreme Court, 

recognizing the state’s interest in a fair and reliable 
57

sentencing determination, has held that mitigation must be 

presented even over the defendant’s objection. State v. 

Koedatich, 548 A.2d 939, 992-97 (N.J. 1988). We find more 

persuasive the majority of courts that have declined to follow 

Koedatich and instead have held that a capital defendant may 

waive the presentation of mitigation. See, e.g., Blair, 115 

P.3d at 1178-79 (citing state and federal cases); State v. 

Jordan, 804 N.E.2d 1, 16-17 (Ohio 2004) (rejecting Koedatich as 

inconsistent with autonomy of defendant and for its reliance on 

subsequently repudiated California case law); State v. 

Arguelles, 63 P.3d 731, 752-53 (Utah 2003) (noting that the 

“vast majority” of courts have held that a capital defendant may 

waive the presentation of mitigation and declining to follow 

Koedatich).

¶121 The State correctly notes that the Supreme Court has 

never imposed an “informed and knowing” requirement upon a 

defendant’s decision to waive the presentation of mitigation, 

see Landrigan, 550 U.S. at 47, but this Court has consistently 

required a voluntary, knowing, and intelligent waiver of this 

important constitutional right, see, e.g., State v. Delahanty, 

226 Ariz. 502, 508 ¶ 34, 250 P.3d 1131, 1137 (2011) (affirming 

capital sentence imposed after trial court ordered competency 

evaluation and found defendant knowingly and intelligently 
58

waived right to present mitigation); State v. Bearup, 221 Ariz. 

163, 173 n.3, 211 P.3d 684, 694 (2009) (noting trial court had 

conducted colloquies and determined defendant had knowingly, 

intelligently, and voluntarily waived right to counsel and to 

present mitigation during penalty phase). Here, the trial court 

took steps to ensure that Hausner was competent and that he 

knowingly, intelligently, and voluntarily waived mitigation. 

¶122 We commend the approach adopted by the trial court 

and, in our supervisory capacity, direct that similar procedures 

be prospectively applied when a capital defendant elects to 

waive the presentation of all mitigation. See Ariz. Const. art. 

6, § 3; cf. State v. Ashworth, 706 N.E.2d 1231, 1237 (Ohio 1999) 

(requiring trial court to inquire if the waiver of all 

mitigating evidence in a capital case is knowing, voluntary, and 

competent). The trial court should engage the defendant in a 

colloquy to ensure that the defendant understands the penalty 

phase process, the right to present mitigation, and the 

consequences of waiving this right. Defense counsel should 

confirm on the record that he or she has discussed with the 

defendant the nature of the mitigation that could be presented 

and the consequences of waiver. The court should confirm on the 

record that the defendant is waiving the presentation of 

mitigation knowingly, intelligently, and voluntarily. If the 
59

circumstances present questions about the defendant’s 

competence, the court should order an appropriate mental 

examination before accepting the waiver. These procedures will 

help ensure that waivers are made on an informed and voluntary 

basis and, by avoiding subsequent questions on these issues, 

also facilitate the review of any related capital sentences. 

 J. Denial of Counsel’s Motion to Withdraw 

¶123 Hausner also argues that the trial court abused its 

discretion by denying his counsel’s motion to withdraw after 

allowing him to waive the presentation of mitigation evidence. 

Defense counsel may move to withdraw in a criminal case if 

counsel believes that continued representation will or is likely 

to result in the violation of the Rules of Professional Conduct 

or other law. See Rodriquez v. State, 129 Ariz. 67, 70, 628 

P.2d 950, 953 (1981) (discussing motion to withdraw based on 

violation of Disciplinary Rules); Ariz. Sup. Ct. R. 41, ER 

1.16(a)(1), (c). We review a trial court’s ruling on a motion 

to withdraw for abuse of discretion. State v. Jones, 185 Ariz. 

471, 482, 917 P.2d 200, 211 (1996). 

¶124 Hausner argues that, once he elected to waive the 

presentation of mitigation and to prevent his lawyers from 

arguing for leniency, the lawyers’ continued representation 

violated Guideline 10.11(L) of the ABA Guidelines for the 
60

Appointment of Defense Counsel in Death Penalty Cases (the “ABA 

Guidelines”) and ER 1.16 of the Arizona Rules of Professional 

Conduct. The ABA guideline requires counsel to fully 

investigate mitigation and “to take advantage of all appropriate 

opportunities to argue why death is not suitable punishment.” 

ER 1.16 provides that a lawyer shall withdraw if continued 

representation would result in a violation of law and may 

withdraw if the client insists upon taking action that the 

lawyer considers repugnant or with which the lawyer has a 

fundamental disagreement. 

¶125 The ABA Guidelines are, under our Criminal Rules, 

guidelines and not requirements. By its terms, Criminal Rule 

6.8(b)(1)(iii) states that trial counsel “shall be familiar with 

and guided by the performance standards” of the 2003 ABA 

Guidelines, and the 2006 comment to this Rule notes that “[s]ome 

guidelines may not be applicable to Arizona practice or to the 

circumstances of a particular case.” Moreover, ER 1.16 does not 

mandate withdrawal any time continued representation may result 

in a violation of an ethical rule or other law; instead ER 

1.16(c) provides that “[w]hen ordered to do so by a tribunal, a 

lawyer shall continue the representation notwithstanding good 

cause for terminating the representation.” 

¶126 Because Hausner was entitled to waive the presentation 
61

of mitigation, his lawyers were ethically required to abide by 

that decision. See ER 1.2 (noting that a lawyer generally 

“shall abide by the client’s decisions concerning the objectives 

of representation” and that, in criminal cases, the lawyer shall 

“abide by the client’s decision, after consultation with the 

lawyer, as to a plea to be entered, whether to waive jury trial 

and whether the client will testify”). Hausner’s decision to 

waive mitigation and to instruct his lawyers not to argue for a 

life sentence unquestionably put them in a difficult position 

and one they may have found morally repugnant. The trial court, 

however, did not abuse its discretion in denying their motion to 

withdraw. 

 K. Review of Death Sentences

¶127 Because the murders occurred after August 1, 2002, 

this Court must review Hausner’s death sentences to “determine 

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 finding of an aggravating circumstance is 

not an abuse of discretion if there is “any reasonable evidence 

in the record to sustain it.” Morris, 215 Ariz. at 341 ¶ 77, 

160 P.3d at 220 (internal quotation omitted). The jury's 

determination that death is the appropriate sentence will not be 

reversed “so long as any reasonable jury could have concluded 
62

that the mitigation established by the defendant was not 

sufficiently substantial to call for leniency.” Id. ¶ 81. 

 1. Aggravating Circumstances

¶128 For reasons explained above, the jury did not abuse 

its discretion in finding the (F)(6) and (F)(13) aggravating 

factors with respect to victims Carillo, Ortis, Gutierrez-Cruz, 

and Blasnek. Sufficient evidence also exists to support the 

jury’s finding of the (F)(1) (conviction for other offense 

subject to sentence of life imprisonment or death) and (F)(2) 

(prior conviction of a “serious offense”) aggravators with 

respect to each of these victims and victims David Estrada and 

Nathanial Shoffner.

 2. Mitigating Circumstances 

¶129 Although Hausner did not present mitigation evidence 

during the penalty phase, evidence admitted at the guilt phase 

is admitted for purposes of the sentencing phase, A.R.S. § 13-

752(I), and the jury must “consider the mitigating 

circumstances, whether proved by the defendant or present in the 

record, in determining whether death is the appropriate 

sentence.” State ex rel. Thomas v. Granville (Baldwin), 211 

Ariz. 468, 473 ¶ 18, 123 P.3d 662, 667 (2005). The trial court 

properly instructed the jury that it must consider relevant 

mitigation presented at any phase of the trial. 
63

¶130 Hausner contends that evidence at the guilt phase 

established that he was a caring father for his daughter, who 

was born in 2004, suffered from Von Gierke’s disease, and 

required special care and feeding, and that he had two sons who 

died in 1994 at ages two and three in a car crash in which he 

was a passenger. He also states that he expressed sympathy for 

his victims at his post-arrest press conference and during 

allocution, that he had no felony convictions before this case, 

and that he was using methamphetamine daily when he committed 

the offenses and had overcome a prior addiction in 1994.

¶131 In response, the State notes that there was 

conflicting evidence about the degree of Hausner’s concern for 

his daughter; that he had tried to exploit the tragedy of his 

sons’ deaths by falsely testifying that he visited their 

gravesites one night of the shootings; that his remorse is 

entitled to little weight because he maintained his innocence; 

that the lack of prior convictions is not compelling given his 

many convictions in this case; and that he presented no evidence 

connecting his methamphetamine use to the crimes.

¶132 We will uphold a jury’s decision to impose death if 

any “reasonable juror could conclude that the mitigation 

presented was not sufficiently substantial to call for 

leniency.” Gallardo, 225 Ariz. at 570 ¶ 52, 242 P.3d at 169. 
64

In light of the several aggravating circumstances for each 

murder, and the limited mitigation, the jury did not abuse its 

discretion in imposing death sentences for the six murders.

 L. Sentencing on Non-Capital Counts 

¶133 Hausner argues that the trial court committed 

fundamental error by enhancing several of his non-capital 

sentences under A.R.S. § 13-702.02 (2006) (since amended and 

renumbered A.R.S. § 13-703). This statute provides for enhanced 

sentences for defendants who are convicted of multiple offenses 

committed on separate occasions but consolidated for trial. 

Hausner contends that “[d]ue process and fundamental fairness 

under the Sixth and Fourteenth Amendments required the State to 

give notice that it intended to seek enhanced sentencing for the 

non-capital counts under A.R.S. § 13-702.02.” 

¶134 At the relevant time, A.R.S. § 13-702.02(G) stated:

The court shall inform all of the parties before the 

sentencing occurs of its intent to increase or 

decrease the sentence pursuant to this section. If 

the court fails to inform the parties, a party waives 

the right to be informed unless the party timely 

objects at the time of sentencing. 

¶135 The State filed a sentencing memorandum asking the 

trial court to enhance the sentences on most of the non-capital 

counts under § 13-702.02. Hausner did not object, and the trial 

court imposed enhanced sentences. On appeal, Hausner 

acknowledges that this Court has never held that the state must 
65

provide pretrial notice of its intent to seek enhanced sentences 

under this statute.

¶136 We need not decide whether the state must specifically 

provide notice before trial of its intent to seek an enhancement 

under § 13-702.02. Hausner in fact received notice. The 

consolidated trial indictment expressly alleged § 13-702.02 for 

certain animal cruelty charges. With respect to the charges 

more generally, the State filed notices of non-capital 

aggravating factors with respect to each cause number, stating: 

“[i]f the jury convicts the defendant of multiple felony counts 

that are not used to enhance the sentence under A.R.S. § 13-

702.02 . . . the state intends to allege the multiple 

convictions as an aggravating circumstance.”

¶137 No fundamental error occurred. The State indicated in 

its pretrial filings that it might seek enhanced sentences under 

A.R.S. § 13-702.02, and Hausner has not shown any prejudice from 

the lack of more specific notice. Cf. State v. Tresize, 127 

Ariz. 571, 574, 623 P.2d 1, 4 (1980) (finding sufficient notice 

for enhancement for use of a deadly weapon or dangerous 

instrument based on allegations in indictment, although there 

was no separate allegation or statutory citation).
66

CONCLUSION 

¶138 We reverse Hausner’s conviction on count eight for 

animal cruelty and otherwise affirm his convictions and 

sentences.

¶139

 _____________________________________

 Scott Bales, Vice Chief Justice

CONCURRING:

____________________________________

Rebecca White Berch, Chief Justice

____________________________________

A. John Pelander, Justice

____________________________________

Robert M. Brutinel, Justice

____________________________________

* 

* Before his resignation on June 27, 2012, as a result of his 

appointment to the United States Court of Appeals for the Ninth 

Circuit, Justice Andrew D. Hurwitz participated in this case, 

including oral argument, and concurred in this opinion’s 

reasoning and result.
67

 APPENDIX 

 Hausner raises seventeen issues to preserve them for 

federal review. This Appendix lists his claims and the 

decisions he identifies as rejecting them. 

1. The death penalty is cruel and unusual under any 

circumstances and violates the Eighth and Fourteenth Amendments 

to the United States Constitution and Article 2, § 15 of the 

Arizona Constitution. State v. Harrod, 200 Ariz. 309, 320, 26 

P.3d 492, 503 (2001). 

2. The death penalty is irrational and imposed arbitrarily, 

and serves no other purpose that is not adequately addressed by 

life in prison, in violation of Hausner’s due process under the 

Fourteenth Amendment to the U.S. Constitution and Article 2, §§ 

1 and 4 of the Arizona Constitution. State v. Smith, 203 Ariz. 

75, 82 ¶ 36, 50 P.3d 825, 832 (2002); State v. Beaty, 158 Ariz. 

232, 762 P.2d 519 (1988). 

3. The prosecutor’s discretion to seek the death penalty has 

no standards and therefore violates the Eighth and Fourteenth 

Amendments, and Article 2, §§ 1, 4 and 15 of the Arizona 

Constitution. State v. Sansing, 200 Ariz. 347, 361 ¶ 46, 26 

P.3d 1118, 1132 (2001), vacated on other grounds by Ring, 536 

U.S. at 584. 

4. Proportionality review serves to identify which cases are 

above the norm of first degree murder, narrowing the class of 

defendants who are eligible for the death penalty. Thus, the 

absence of proportionality review of death sentences by 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, § 15 of the Arizona Constitution. Harrod, 200 Ariz. 

at 320 ¶ 65, 26 P.3d at 503. 

5. The State‘s failure to allege an element of a charged 

offense in the grand jury indictment – the aggravating factors 

under A.R.S. § 13-703(F) (renumbered as A.R.S. § 13-751(F), 

effective January 1, 2009) that made Defendant death eligible – 

is a fundamental defect that renders the indictment 

constitutionally defective under the Fifth, Sixth, Eighth, and 

Fourteenth Amendments and Article 2, §§ 1, 4, 13, 15, 23 and 24 

of the Arizona Constitution. See U.S. v. Chesney, 10 F.3d 641 

(9th Cir. 1993); Apprendi v. New Jersey, 530 U.S. 466 (2000). 
68

See McKaney v. Foreman, 209 Ariz. 268, 270-71 ¶¶ 11-13, 100 P.3d 

18, 20-21 (2004). 

6. The (F)(6) aggravating factor of “especially cruel, 

heinous, or depraved” is unconstitutionally vague and overbroad 

because the jury does not have enough experience or guidance to 

determine when the aggravator is met, and the finding of this 

aggravator by a jury violates the Eighth and Fourteenth 

Amendments because it does not sufficiently place limits on the 

discretion of the sentencing body – the jury, which has no 

“narrowing construction[s]” to draw from and give “substance” to 

the otherwise facially vague law. See Walton v. Arizona, 497 

U.S. 639, 654 (1990), overruled on other grounds by Ring, 536 

U.S. 584. See also Chappell, 225 Ariz. at 337-38 ¶¶ 26-27, 236 

P.3d at 1184-85; Hargrave, 225 Ariz. at 13-14 ¶¶ 42-46, 234 P.3d 

at 581-82. 

7. 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 

(1976), and the trial court‘s limitation of the jury to 

consideration of mitigation proven by a preponderance of the 

evidence is unconstitutional under the Eighth and Fourteenth 

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

(citing Medina, 193 Ariz. at 514-15 ¶ 43, 975 P.2d at 104-05). 

8. Arizona’s capital sentencing scheme is unconstitutional 

because it does not require the State to prove the death penalty 

is appropriate or require the jury to find beyond a reasonable 

doubt that the aggravating circumstances outweigh the 

accumulated mitigating circumstances, or make specific findings 

as to mitigation. Instead, Arizona‘s death penalty statute 

requires defendants to prove their lives should be spared, in 

violation of the Fifth, Eighth, and Fourteenth Amendments, and 

Article 2, § 15 of the Arizona Constitution. Roque, 213 Ariz. 

at 225-26, ¶¶ 138-141, 141 P.3d at 400-401. 

9. Arizona’s death penalty scheme does not sufficiently 

channel the sentencing jury’s discretion; aggravating 

circumstances should narrow the class of persons eligible for 

the death penalty and reasonably justify the imposition of a 

harsher penalty; and Arizona’s death penalty statutes are 

unconstitutional because they provide no objective standards to 

guide the jury in weighing the aggravating and mitigating 

circumstances. Rather, the broad scope of Arizona’s aggravating 

factors encompasses nearly anyone involved in a murder, in 
69

violation of the Fifth, Eighth and Fourteenth Amendments, and 

Article 2, § 15 of the Arizona Constitution. State v. White, 

194 Ariz. 344, 355 § 49, 982 P.2d 819, 830 (1999). 

10. Arizona’s death penalty statutes lack standards necessary 

for the jury to find aggravation, to evaluate aggravation and 

the mitigation, and to determine what “sufficiently substantial 

to call for leniency” means, resulting in the arbitrary and 

capricious imposition of the death penalty in Arizona, in 

violation of Due Process, the Eighth and Fourteenth Amendments, 

as well as Ariz. Const. art. 2, § 15.925. See Beaty, 158 Ariz. 

at 247, 762 P.2d at 534. 

11. Arizona’s death penalty laws unconstitutionally require 

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, § 15 of the Arizona Constitution. Arizona’s death 

penalty law cannot constitutionally presume that death is the 

appropriate default sentence. State v. Miles, 186 Ariz. 10, 19, 

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

12. The death penalty is the irreversible denial of human 

rights and the international community of nations has evolved to 

a state of maturity that abolishes the death penalty. Today, 

the majority of nations have abolished the death penalty. 

Amnesty International, Facts and Figures on the Death Penalty 

(January 1, 2006). The Universal Declaration of Human Rights, 

GA Res. 217A (III), U.N. GAOR, 3d Sess. Art. 3, U.N. Doc. A/810 

(1948), provides that “Everyone has the right to life, liberty, 

and security of person.” The death penalty thus violates the 

Universal Declaration of Human Rights, and is a violation of 

international law. State v. Ross, 180 Ariz. 598, 602, 886 P.2d 

1354, 1358 (1994) (citing State v. Richmond, 136 Ariz. 312, 322, 

666 P.2d 57, 67 (1983)). 

13. Execution by lethal injection is cruel and unusual 

punishment in violation of the Eighth and Fourteenth Amendments, 

and Article 2, § 15 of the Arizona Constitution. Defendant 

acknowledges that this argument was rejected in Van Adams, 194 

Ariz. at 422 ¶ 55, 984 P.2d at 30, and State v. Hinchey, 181 

Ariz. 307, 315, 890 P.2d 602, 610 (1995). See Koniaris, et al., 

Inadequate Anesthesia in Lethal Injection For Execution, 365 

Lancet 1412-14 (April 16, 2005) (suggesting that protocols for 

lethal injection are insufficient to assure painless death and 

evidence of botched executions). 
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14. The penalty-phase jury instructions incorrectly told the 

jury that if the Defendant was not put to death, the judge could 

sentence him to a sentence of natural life or to life with 

release, and that this violated his constitutional due process 

rights under the Fifth and Fourteenth Amendments because there 

was no real possibility that Defendant would ever be released 

from prison. See Simmons v. South Carolina, 512 U.S. 154 

(1994)(reversible error to instruct jury that defendant could be 

released when he could not); Hargrave, 225 Ariz. at 14-15 ¶¶ 50-

53, 234 P.3d at 582-83. 

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

trial, the trial court violated Defendant‘s rights under the 

Fifth, Sixth, Eighth and Fourteenth Amendments and Article 2, 

§§ 1, 4, 13, 15, 23 and 24 of the Arizona Constitution. Lynn v. 

Reinstein, 205 Ariz. 186, 68 P.3d 412 (2003). 

16. The trial court improperly omitted from the penalty phase 

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 and told the jury not to be influenced by 

sentiment, passion, or 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, § 1, 4, 15, 23, and 24 of the Arizona 

Constitution. State v. Carreon, 210 Ariz. 54, 70-72 ¶¶ 81-87, 

107 P.3d 900, 916-18 (2005). See also State v. Kuhs, 223 Ariz. 

376, 386-87 ¶¶ 51-56, 224 P.3d 192, 202-03 (2010). 

17. The reasonable doubt instruction of State v. Portillo, 182 

Ariz. 592, 898 P.2d 970 (1995), dilutes and shifts the burden of 

proof in violation of the Sixth Amendment to the United States 

Constitution. State v. Ellison, 213 Ariz. 116, 133 ¶ 63, 140 

P.3d 899, 916 (2006).