IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,

Appellee,

v.

VINCENT JOSEPH GUARINO,

Appellant.

No. CR-13-0405-AP

Filed December 3, 2015

Appeal from the Superior Court in Maricopa County

The Honorable Karen L. O’Connor, Judge

No. CR2010-120027

AFFIRMED

COUNSEL:

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

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

Susanne Bartlett Blomo, Assistant Attorney General, Phoenix, Laura P. 

Chiasson (argued), Tucson, Attorneys for State of Arizona

Richard D. Gierloff (argued), Law Offices of Richard D. Gierloff, P.C., 

Phoenix, Attorney for Vincent Joseph Guarino

JUSTICE BERCH (RETIRED) authored the opinion of the Court, in which 

CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and

JUSTICES BRUTINEL and TIMMER joined.

JUSTICE BERCH (RETIRED), opinion of the Court:

¶1 Vincent Joseph Guarino was convicted of the kidnapping, 

assault, and murder of Chad Rowe, among other crimes. This automatic 

appeal follows the imposition of the death penalty. Ariz. R. Crim. P. 31.2(b). 
STATE v. GUARINO

Opinion of the Court

2

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

Constitution and A.R.S. § 13-4031.

I. BACKGROUND1

¶2 To secure membership in the Aryan Brotherhood, a criminal 

gang, Defendant Vincent Guarino (“Guarino”) sought to murder Chad 

Rowe. Accompanied by his brother Frank Guarino (“Frank”), Guarino 

went to a home in north Phoenix. Guarino entered, found Chad, and 

brought him out at gunpoint. The three men drove away in a truck. Chad’s 

body was later found in a residential street. He had been stabbed in the 

hand and foot and shot three times.

¶3 During a police interview, Frank confessed to participating in 

the murder and told officers of his brother’s involvement. Guarino did not 

confess during police interviews, but officers later intercepted a letter in 

which he admitted murdering Chad Rowe.

II. DISCUSSION

A. Frank’s Statements

¶4 During the penalty phase of Guarino’s trial, the State 

introduced statements from Frank’s interview. Guarino argues that the 

admission of those statements violated Arizona Rules of Evidence 401 and 

403, A.R.S. § 13-751(G), and the Sixth, Eighth, and Fourteenth Amendments 

to the United States Constitution.

¶5 Because Guarino objected to the admission of Frank’s 

statements on grounds of relevance and undue prejudice, we review the

rulings on those objections for an abuse of discretion. See State v. Nordstrom, 

230 Ariz. 110, 114 ¶ 8, 280 P.3d 1244, 1248 (2012). We review the

constitutional issues de novo. State v. Moody, 208 Ariz. 424, 445 ¶ 62, 94 P.3d 

1119, 1140 (2004).

 

1 We view the facts in the light most favorable to sustaining the jury’s 

verdicts. See State v. Chappell, 225 Ariz. 229, 233 ¶ 2 n.1, 236 P.3d 1176, 1180 

n.1 (2010).
STATE v. GUARINO

Opinion of the Court

3

1. Arizona Rules of Evidence 401 and 403

¶6 Guarino argues that the trial court abused its discretion in 

admitting evidence of Frank’s statements recounting the events preceding 

Chad’s death because they were “irrelevant or cumulative and unfairly 

prejudicial under Rule 403.” Although the rules of evidence do not apply 

during the penalty phase of a capital trial, Arizona statutes provide that the 

state may only introduce evidence that is “relevant to any of the mitigating 

circumstances,” A.R.S. § 13-751(C), or that tends to show that the defendant 

should not be shown leniency. A.R.S. § 13-752(G). We have held that 

whether evidence falls within these categories is guided by “fundamentally 

the same considerations as . . . a relevancy determination under Arizona 

Rule of Evidence 401 or 403.” State v. McGill, 213 Ariz. 147, 157 ¶ 40, 140 

P.3d 930, 940 (2006).

¶7 At the aggravation phase of the trial, Guarino attempted to 

defeat the § 13-751(F)(6) “cruelty” aggravator by arguing that no one knew 

what happened in the truck—that is, who (Frank or Guarino) did what to 

the victim. From this, he urged the jury not to find the murder especially 

cruel. The jury nonetheless found the cruelty aggravator established 

beyond a reasonable doubt. In the penalty phase, the State presented 

statements from Frank’s interview, which described events in the truck, to 

counter Guarino’s suggestion that he should be shown leniency because 

Frank inflicted most of the harm to the victim.

¶8 Guarino’s participation in harming the victim and in the 

murder itself were important considerations in the penalty phase. Frank’s 

statements implicated Guarino as a major participant and, in fact, provided 

evidence that he actually killed the victim. The statements also rebutted 

Guarino’s mitigation claim that Frank or other members of the Aryan 

Brotherhood influenced him to commit the murder. Frank’s statements 

were therefore relevant to whether Guarino deserved leniency. See A.R.S. 

§ 13-752(G) (“[T]he state may present any evidence that is relevant to the 

determination of whether there is mitigation that is sufficiently substantial 

to call for leniency,” including “any evidence that demonstrates that the 

defendant should not be shown leniency.”). Moreover, in the penalty 

phase, the prosecution may present such relevant information “regardless 

of its admissibility under the rules governing admission of evidence at 

criminal trials.” A.R.S. § 13-751(C). The court did not abuse its discretion 
STATE v. GUARINO

Opinion of the Court

4

in finding the evidence relevant.

¶9 Guarino nonetheless argues that, even if relevant, the 

evidence was unfairly prejudicial and so should have been precluded under

Rule 403. See State v. Schurz, 176 Ariz. 46, 52, 859 P.2d 156, 162 (1993) (noting 

that relevant evidence “may be excluded under Rule 403 if its probative 

value is substantially outweighed by the danger of unfair prejudice”). But 

while evidence that makes a defendant look bad may be prejudicial in the 

eyes of jurors, it is not necessarily unfairly so. Id. That is the case here. The 

trial judge acted within her discretion in so ruling.

¶10 Having already established the relevance of the evidence, the 

lack of unfair prejudice, and the absence of abuse in the trial court’s ruling

allowing the testimony, we need not analyze for harmless error.

2. A.R.S. §§ 13-751(G) and -752(G)

¶11 Guarino next asserts that the trial court violated A.R.S. § 13-

751(G) by admitting Frank’s statements because they did not relate to 

mitigation and were admissible, if at all, only to help prove “the especially 

cruel (F)(6) aggravator[,] which had already been found by the jury.” He

contends that the “only section in the capital sentencing scheme [that]

mentions considering the defendant’s character or the circumstances of the 

offense”—and hence in his view the only section permitting evidence 

relating to the defendant’s character or the circumstances of the crime—“is 

§ 13-751(G), the section of the statute [that] authorizes mitigation evidence.” 

From this premise, he reasons that the prosecution may not present any 

evidence about the defendant’s character unless it is mitigating.

¶12 We have previously rejected this argument. See, e.g., State v. 

Carlson, 237 Ariz. 381, 396 ¶¶ 53–54, 351 P.3d 1079, 1094 (2015); State v. 

Ovante, 231 Ariz. 180, 187 ¶¶ 31–32, 291 P.3d 974, 981 (2013). Although § 13-

751 requires the jury to consider all the mitigation presented by either the 

defense or the state, it does not bar the jury from considering relevant 

evidence that does not serve as mitigation. See Carlson, 237 Ariz. at 396 ¶ 54, 

351 P.3d at 1079. Furthermore, § 13-752(G) expressly allows the state to 

present evidence “that demonstrates that the defendant should not be 

shown leniency.” Id. (emphasis added). That was the State’s apparent 

purpose in presenting Frank’s interview statements.
STATE v. GUARINO

Opinion of the Court

5

¶13 Taken together, A.R.S. §§ 13-751(G) and -752(G) permit jurors 

to hear evidence relating to circumstances of the crime and the defendant’s 

character, which they must do to fulfill their “duty to evaluate all the 

relevant evidence when determining the defendant’s sentence.” Carlson, 

237 Ariz. at 396 ¶ 54, 351 P.3d at 1094; see also Gregg v. Georgia, 428 U.S. 153, 

190 (1976) (“[A]ccurate sentencing information is an indispensable 

prerequisite to a reasoned determination of whether a defendant shall live 

or die . . . .”). The facts establishing an aggravating circumstance, or the 

circumstances of the murder more generally, “are relevant during the 

penalty phase because they tend to show whether the defendant should be 

shown leniency.” State v. Armstrong, 218 Ariz. 451, 461 ¶ 38, 189 P.3d 378, 

388 (2008). Such facts were therefore admissible during the penalty phase

to help the jurors evaluate the appropriate sentence. They were not offered 

to “re-prove” the (F)(6) aggravating factor, and their admission did not 

violate A.R.S. § 13-751(G).

¶14 Guarino also asserts that Arizona’s penalty phase scheme 

violates the federal Constitution because the broad rules of admissibility in 

that phase, when combined with the absence of safeguards usually

provided by the evidentiary rules during the penalty phase, fail to 

adequately channel jurors’ discretion to impose the death penalty. See 

Gregg, 428 U.S. at 196–98. We disagree. Guarino has not specified how rules 

of admissibility frustrate the duty to channel jurors’ discretion or fail to help 

them distinguish those defendants who are death eligible from the class of 

defendants convicted of first degree murder generally. He does not address 

the instructions given to the jury, which adequately channeled the jury’s

decision-making process in the penalty phase. Thus, permitting the 

testimony in this case under A.R.S. §§ 13-751(C), -751(G), and -752(G) did 

not violate the Constitution by failing to adequately channel the jury’s 

discretion.

3. Due Process

¶15 Guarino argues that the admission of Frank’s statement 

violated his due process rights. We have stated that due process concerns 

constrain the introduction of evidence in the penalty phase. See State v. 

Prince, 226 Ariz. 516, 526 ¶ 17, 250 P.3d 1145, 1155 (2011) (observing that 

“§ 13-752(G) permits any evidence probative on [whether the defendant 

should be shown leniency], subject only to due process limitations”). “In 
STATE v. GUARINO

Opinion of the Court

6

the event that evidence is introduced that is so unduly prejudicial that it 

renders the trial fundamentally unfair, the Due Process Clause of the 

Fourteenth Amendment provides a mechanism for relief.” Payne v. 

Tennessee, 501 U.S. 808, 825 (1991). It is therefore conceivable that the state 

could seek to introduce evidence, not subject to Arizona’s rules of evidence, 

that is relevant and admissible under § 13–752(G), but nonetheless violates 

the Constitution for other reasons. Cf. State v. Leteve, 237 Ariz. 516, 529 ¶ 50, 

354 P.3d 393, 406 (2015) (limiting community impact testimony to 

statements by those who are “immediately and closely connected to the 

victim” to avoid the risk of unfair prejudice).

¶16 But that is not the case here. Frank’s statements directly 

related to the circumstances of the crime and also rebutted Guarino’s 

assertions that Frank bore most of the responsibility for the murder and that 

members of the Aryan Brotherhood influenced his decision to kill the 

victim. The statements were not so unfairly prejudicial that they rendered 

the trial fundamentally unfair.

¶17 Moreover, the admission of hearsay statements does not 

violate the Due Process Clause if the defendant “receive[s] notice of any 

hearsay statements to be introduced by the State in rebuttal to mitigation 

and ha[s] ‘an opportunity to either explain or deny them.’” State v. 

Hampton, 213 Ariz. 167, 179 ¶ 49, 140 P.3d 950, 962 (2006) (quoting State v. 

Greenway, 170 Ariz. 155, 161, 823 P.2d 22, 28 (1992)). And that is the case 

here. Guarino knew about Frank’s statements at least from the time of the 

pretrial Chronis hearing, during which Detective Cisneros testified 

regarding Frank’s confession. The State further indicated that it would 

introduce Frank’s statements during the penalty phase when it presented 

its opening statement for that phase. The defense therefore had notice of 

the hearsay statements’ content and the fact that the State intended to 

introduce them during the penalty phase.

¶18 Guarino also had some opportunity to challenge, explain, or 

deny Frank’s statements when he cross-examined the testifying witness, 

Detective Cisneros. Although Guarino was not able to cross-examine the 

declarant himself, he was able to impeach Frank’s statements during crossexamination by introducing Frank’s criminal record and exploring with the 

testifying witness contradictions between the physical and testimonial 
STATE v. GUARINO

Opinion of the Court

7

evidence. Moreover, Guarino does not argue that he could not have taken 

the stand to dispute Frank’s statements. That he elected not to does not 

mean he did not have the chance to explain. See Wohlstrom v. Buchanan, 180 

Ariz. 389, 392, 884 P.2d 687, 690 (1994) (“[A]lthough a defendant may have 

a right, even of constitutional dimensions, to follow whichever course he 

chooses, the Constitution does not by that token always forbid requiring 

him to choose.” (quoting Crampton v. Ohio, 402 U.S. 183, 213 (1971)). 

Guarino therefore did have sufficient opportunity to deny or explain 

Frank’s statements. United States v. Fields, 483 F.3d 313, 329 (5th Cir. 2007) 

(“The Court has never said that the right to ‘deny or explain’ sentencing 

information includes . . . the right to see, hear, and cross-examine the 

sources of that information.” (quoting John G. Douglas, Confronting Death:

Sixth Amendment Rights at Capital Sentencing, 105 Colum. L. Rev. 1967, 1980 

(2005))).

¶19 Finally, Guarino argues that Frank’s hearsay statements 

lacked sufficient indicia of reliability. Hearsay is accompanied by sufficient 

indicia of reliability if it is corroborated by other evidence. See McGill, 213 

Ariz. at 160–61 ¶ 58, 140 P.3d at 943–44. Frank’s statements were 

corroborated by witness testimony and physical evidence. While Frank’s 

version of events was not entirely consistent with the testimony of one 

witness and some of Chad’s stab wounds were on different parts of the 

body than Frank’s testimony indicated, Frank’s statements were consistent 

with other witnesses’ testimony and most of the physical evidence. 

Introduction of the evidence did not violate Guarino’s Due Process rights.

4. The Confrontation Clause

¶20 Guarino argues that introducing Frank’s statements in the 

penalty phase violated the Sixth Amendment’s Confrontation Clause. See 

Crawford v. Washington, 541 U.S. 36, 50–52 (2004). He acknowledges that we

rejected a similar argument in McGill, 213 Ariz. at 158–59 ¶¶ 49–52, 140 P.3d 

at 941–42, but argues that McGill is distinguishable or should be overruled.

¶21 Guarino first attempts to distinguish McGill based on the 

declarant’s availability to testify and status as a co-defendant. The 

declarants in McGill died before they were subject to cross-examination. 

213 Ariz. at 156 ¶¶ 38–39, 140 P.3d at 939. Guarino points out that the 

defense could theoretically have deposed them before their deaths, while
STATE v. GUARINO

Opinion of the Court

8

in this case, Guarino could not have deposed Frank because Frank was a 

co-defendant who had invoked his Fifth Amendment rights. Guarino does 

not explain the relevance of that distinction, however. In both cases, the

declarant was not available to the defense for a deposition or crossexamination. See State v. Lavers, 168 Ariz. 376, 388–89, 814 P.2d 333, 345–46 

(1991) (indicating that a defendant with the “right not to testify” and a 

deceased declarant were both equally “unavailable” for purposes of the 

Confrontation Clause). In neither situation would the Confrontation 

Clause bar the introduction of the declarant’s statements during the penalty 

portion of the trial because the Confrontation Clause does not apply during 

that phase. McGill, 213 Ariz. at 159 ¶ 52, 140 P.3d at 942. Guarino does not 

clarify how the cause or timing of the declarant’s unavailability or the 

declarant’s status as a co-defendant affects the reasoning or result in McGill. 

We therefore decline to reconsider McGill.

¶22 Guarino also attempts to distinguish McGill as “grounded in 

the analysis of aggravating factors as ‘the functional equivalent of an 

element of a greater offense.’” But this argument is inapt. In McGill, the 

Court applied the “functional equivalent of an element” analysis to 

determine whether the state violated the defendant’s double jeopardy 

rights. See McGill, 213 Ariz. at 153 ¶¶ 22, 25, 140 P.3d at 936. The Court 

analyzed the defendant’s rights under the Confrontation Clause in a 

separate section of the opinion. Id. at 157–59 ¶¶ 45–52, 140 P.3d at 940–42. 

Guarino fails to elucidate how McGill’s double jeopardy analysis 

undermines or affects its confrontation analysis.

¶23 Guarino also argues that the use of the declarant’s testimony 

in this case was less “foreseeable” than the testimony introduced in McGill.

But he fails to cite any cases or explain why a statement’s foreseeability is 

relevant to a Confrontation Clause analysis. Rather, whether Guarino had 

notice of the State’s intent to introduce Frank’s statements in the penalty 

phase is a factor to be considered in a due process analysis. See Hampton, 

213 Ariz. at 179 ¶ 49, 140 P.3d at 962; see also supra ¶¶ 15–19 (addressing due 

process claim). The record reflects that Guarino knew of the existence and 

contents of Frank’s statements, as the State introduced them at the Chronis 

hearing, and their use was foreseeable.

¶24 Guarino’s other attempts to distinguish McGill are similarly 
STATE v. GUARINO

Opinion of the Court

9

unpersuasive. We have affirmed McGill several times. See, e.g., State v. 

(Gilbert) Martinez, 230 Ariz. 208, 218 ¶ 54, 282 P.3d 409, 419 (2012); State v. 

Chappell, 225 Ariz. 229, 240 ¶ 40–41, 236 P.3d 1176, 1187 (2010); State v. 

Bocharski, 218 Ariz. 476, 490 ¶ 67, 189 P.3d 403, 417 (2008); State v. (Cody J.)

Martinez, 218 Ariz. 421, 431 ¶ 44, 189 P.3d 348, 358 (2008). We have done so

on three grounds that apply here with equal force: “(1) the penalty phase 

is not a criminal prosecution, (2) historical practices support the use of outof-court statements in sentencing, and (3) the sentencing body requires 

complete information to make its determination.” McGill, 213 Ariz. at 159 

¶ 52, 140 P.3d at 942.

¶25 Alternatively, Guarino argues that McGill was wrongly 

decided and should be overruled. He urges that the dissent gave “the 

correct reading of the scope of the Confrontation Clause.” He argues that 

the majority erred by relying upon Williams v. New York, 337 U.S. 241 (1949), 

rather than Crawford v. Washington, 541 U.S. 36 (2004). He then argues that 

Justice Scalia’s concurrence in Ring v. Arizona, 536 U.S. 584 (2002), also 

indicates that “the McGill court’s reliance on Williams v. New York with its 

distinction of ‘sentencing’ from ‘trial’ (with its requisite 6th Amendment 

protections) was error.”

¶26 Guarino’s argument that the Court erred in relying on 

Williams is unpersuasive. Crawford did not overrule Williams, and we will 

continue to apply the earlier precedent. See United States v. Littlesun, 444 

F.3d 1196, 1200 (9th Cir. 2006) (reminding courts “to apply controlling 

Supreme Court precedent” until the Court expressly overrules it). Guarino 

correctly observes that Williams was not a Confrontation Clause case 

because that clause did not apply to the states until 1965, see Pointer v. Texas,

380 U.S. 400, 403 (1965)—a fact that the majority and dissent both noted in 

McGill, see 213 Ariz. at 158, ¶ 47 n.4, 140 P.3d at 941 (majority op.); id. at 165 

¶ 93, 140 P.3d at 948 (Hurwitz, J., concurring in part and dissenting in part). 

Williams is, instead, a due process case, but it remains “the only case in 

which the United States Supreme Court directly addressed a defendant’s 

right to confront witnesses during sentencing.” Id. at 158 ¶ 47, 140 P.3d at 

941. Absent contrary authority by the Supreme Court, we continue to hold

that the Confrontation Clause does not apply during the penalty phase of a 

capital trial.
STATE v. GUARINO

Opinion of the Court

10

¶27 Finally, Guarino’s reliance on Justice Scalia’s concurrence in 

Ring v. Arizona is misplaced. In Ring, Justice Scalia wrote that “the 

fundamental meaning of the jury-trial guarantee of the Sixth Amendment 

is that all facts essential to imposition of the level of punishment that the 

defendant receives . . . must be found by the jury beyond a reasonable 

doubt.” 536 U.S. at 610 (Scalia, J., concurring). While the right to a jury trial 

and the Confrontation Clause are both housed in the Sixth Amendment, 

they are distinct rights. Guarino does not argue that his right to a jury trial 

was infringed here.

¶28 In short, our decision in McGill remains consistent with the 

decisions of a majority of federal circuit courts as well as several state courts 

that have considered this issue. See Littlesun, 444 F.3d at 1200 & n.15 

(collecting cases); People v. Banks, 934 N.E.2d 435, 461–62 (Ill. 2010) (same). 

Guarino does not offer any compelling reason or new authority indicating 

why this Court should reverse McGill on this issue, and we decline to do so. 

See 213 Ariz. at 159 ¶ 52, 140 P.3d at 942 (“We will overturn long-standing 

precedent only for a compelling reason . . . .”).

¶29 The trial court did not violate the Confrontation Clause when 

it admitted Frank’s statements during the penalty phase.

B. Gang Expert Testimony

¶30 Guarino argues that testimony by Detectives Justus and Egea

violated the Confrontation Clause as interpreted in Crawford because it 

“was based on testimonial hearsay given in anticipation of litigation against 

a class of defendants[:] gang members, either aspirational or fully vested.” 

He asserts that “[e]very fact upon which these Detectives base their 

expertise upon [sic] can ultimately be traced back to debriefings, free talks, 

wire taps, letter interceptions or learned in an undercover capacity” and 

that any facts learned from other sources were “inextricably intertwined” 

with “[t]he facts learned from debriefings and free talks.”

¶31 Absent an objection, we review a trial court’s admission of 

expert testimony for fundamental error, Carlson, 237 Ariz. at 390 ¶ 23, 351 

P.3d at 1088, which requires that, in addition to finding error of that 

magnitude, the court must find that the defendant suffered prejudice as a 

result, State v. Henderson, 210 Ariz. 561, 567 ¶ 20, 115 P.3d 601, 607 (2005).
STATE v. GUARINO

Opinion of the Court

11

¶32 As a preliminary matter, Guarino argues that the gang

members’ statements are testimonial hearsay. We have yet to directly 

address this issue, and therefore look to the federal courts for guidance. 

Carlson, 237 Ariz. at 392 ¶ 32, 351 P.3d at 1090 (approving reference to 

federal court opinions); see Ariz. R. Evid. prefatory cmt. to 2012 amends. 

(“Where the language of an Arizona rule parallels that of a federal rule, 

federal court decisions interpreting the federal rule are persuasive but not 

binding with respect to interpreting the Arizona rule.”).

¶33 Even if the undisclosed background statements relied on by 

the detectives qualify as testimonial hearsay, “that fact alone does not 

offend the Confrontation Clause,” United States v. Ayala, 601 F.3d 256, 275 

(4th Cir. 2010), because “there is generally no Crawford problem when an 

expert ‘appli[es] his training and experience to the sources before him and 

reach[es] an independent judgment.’” United States v. Vera, 770 F.3d 1232, 

1237 (9th Cir. 2014) (quoting United States v. Gomez, 725 F.3d 1121, 1129 (9th 

Cir. 2013)). Rather, the rules of evidence expressly allow experts to base 

opinions on otherwise inadmissible facts or data if “experts in the particular 

field would reasonably rely on those kinds of facts or data in forming an 

opinion on the subject.” See Ariz. R. Evid. 703. It is only when an expert’s 

testimony serves “as little more than a conduit or transmitter for testimonial 

hearsay, rather than as a true expert whose considered opinion sheds light 

on some specialized factual situation,” that the admission of the testimonial 

hearsay as the basis for an expert’s opinion violates the Confrontation 

Clause. Vera, 770 F.3d at 1237 (quoting Gomez, 725 F.3d at 1129).

¶34 In Vera, the detective “had extensive training about and 

experience with gangs, including some formal classroom training, his time 

on the Santa Ana Gang Task Force[,] and his work at the Santa Ana Police 

Department as a gang homicide investigator and gang suppression 

detective.” Id. at 1239. Because the officer based his expert testimony on 

his experience and observations with the gang in question, the court held 

that he was not a mere conduit for gang members’ statements. Id.

¶35 Here, similarly, Detectives Justus and Egea based their 

opinions on trainings, observations, and experiences that collectively 

formed the bases for their expertise, and neither detective served as a mere 
STATE v. GUARINO

Opinion of the Court

12

conduit for gang members’ statements. To establish the foundation for his 

testimony regarding the Aryan Brotherhood, Detective Justus testified that 

his knowledge and experience were based on a wide range of sources,

including supervised training in the field, working as an undercover officer 

in frequent contact with gang members, attending and instructing at 

seminars on gang-related activity, collaborating with prison intelligence 

officials, debriefing gang members when they end their gang memberships, 

talking to gang members acting as informants, conducting wire taps, and 

intercepting and reading gang members’ mail. In total, Detective Justus 

testified that he had participated in hundreds of “investigations that 

involved the reviewing and use of inmate communications.” His partner, 

Detective Egea, testified that he had similar experience and training.

¶36 Detectives Justus and Egea then testified about the origins of 

the Aryan Brotherhood, the legal definitions of a criminal street gang, some 

of the terminology used by the Aryan Brotherhood, the leadership structure 

of the Aryan Brotherhood, and the significance to the gang of certain tattoos 

and symbols. The only member of the Aryan Brotherhood either detective 

mentioned specifically was Robert R., who goes by the nickname “Chicago 

Bob,” but neither detective mentioned anything that Robert R. or any other 

member of the Aryan Brotherhood ever said to another or told them

directly.

¶37 Guarino nonetheless argues that the detectives’ testimony 

was like the improper testimony of the detective in United States v. Mejia, 

545 F.3d 179 (2d Cir. 2008). Mejia, however, is distinguishable. The 

detective in Mejia “simply summarize[ed] an investigation by others that 

[was] not part of the record and present[ed] it in the guise of an expert 

opinion.” 545 F.3d at 199 (internal citations and quotation marks omitted); 

see also United States v. Palacios, 677 F.3d 234, 244 (4th Cir. 2012) (stating that 

Mejia “turned upon the fact that the expert simply passed along an 

important testimonial fact he learned from a particular interview, which 

did not require him to apply any independent expertise” (internal citation 

and quotation marks omitted)). But, unlike the detective in Mejia, the 

detectives in this case did not merely convey out-of-court statements to the 

jury.

¶38 Instead, like the detective in Vera, Detectives Justus and Egea 
STATE v. GUARINO

Opinion of the Court

13

applied their expertise and did not serve as “mere conduits” for admission 

of someone else’s hearsay statements. Indeed, rather than having either 

detective speak on behalf of members of the Aryan Brotherhood, the State 

called an Aryan Brotherhood member to speak about the gang from a 

member’s perspective. The detectives’ testimony did not violate Guarino’s 

Confrontation Clause rights. The admission of the detectives’ testimony 

was therefore proper, and Guarino has failed to establish fundamental 

error.

C. Constitutionality of the (F)(6) Aggravating Factor

¶39 Guarino argues that the (F)(6) “especially cruel” factor 

violates the Eighth and Fourteenth Amendments because it does not 

adequately limit the sentencer’s discretion when deciding whether to 

impose the death penalty, see Gregg, 428 U.S. at 196–98, and because “[t]he 

vast majority of Arizona cases [that] have upheld the (F)(6) factor as 

constitutional involved sentencing by judges, rather than juries.” Guarino 

did not object to the constitutionality of the (F)(6) aggravator below. We 

therefore review his argument for fundamental error. Henderson, 210 Ariz. 

at 567 ¶ 19, 115 P.3d at 607.

¶40 We have previously rejected this argument. State v. Anderson, 

210 Ariz. 327, 352–53 ¶¶ 109–14, 111 P.3d 369, 394–95, supplemented by 211 

Ariz. 59, 116 P.3d 1219 (2005) (observing that the (F)(6) aggravator was 

sufficiently narrowed by jury instructions that “gave substance to the terms 

‘cruel’ and ‘heinous or depraved’ in accordance with our case law 

narrowing and defining those terms”); see also State v. Tucker, 215 Ariz. 298, 

310 ¶ 28, 160 P.3d 177, 189 (2007) (“The (F)(6) aggravator is facially vague 

but may be remedied with appropriate narrowing instructions, whether a 

judge or a jury makes the sentencing determination.”). Guarino provides

no reason for us to revisit those rulings. The trial judge did not commit

fundamental error by allowing the jury to consider the (F)(6) aggravator 

under appropriate limiting instructions.

D. Abuse of Discretion Review

¶41 Although Guarino does not argue that the jurors erred in

sentencing him to death, we are required to review a death sentence for an 

abuse of discretion. State v. Morris, 215 Ariz. 324, 340 ¶ 76, 160 P.3d 203, 219 

(2007).
STATE v. GUARINO

Opinion of the Court

14

¶42 The State convicted Guarino of first degree murder and 

established four aggravating circumstances beyond a reasonable doubt. 

These aggravating factors were supported by substantial evidence. The 

defense urged the jury to grant Guarino leniency due to his age, mental 

illness, severe cognitive impairment, low IQ, dysfunctional family 

background, drug abuse, genetic propensity for drug addiction, genetic 

propensity for mental illness, lack of future dangerousness, good behavior 

during pretrial incarceration, love of family, good conduct during the trial, 

and ability to adapt to a prison environment. Guarino also presented 

evidence that he had been the victim of bullying, had suffered a personal 

tragedy, and had acted under the influence of Frank and other members of 

the Aryan Brotherhood.

¶43 Much of Guarino’s presented mitigation could reasonably be 

given little weight by jurors or was heavily rebutted by the State. Thus, 

reasonable jurors might conclude, in light of the four aggravating 

circumstances, that the evidence was insufficient to warrant leniency, 

despite the mitigation evidence presented. The jury did not abuse its 

discretion when it declined to grant Guarino leniency.

III. CONCLUSION

¶44 Guarino lists thirteen additional issues, which he 

acknowledges have previously been rejected by this Court, to preserve 

them for future review. We decline to revisit those issues.

¶45 We affirm Guarino’s convictions and sentences.