SUPREME COURT OF ARIZONA 

En Banc 

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-09-0171-AP 

 Appellee, ) 

 ) Maricopa County 

 v. ) Superior Court 

 ) No. CR2006-175408 

MIKE PETER GALLARDO, ) 

 ) 

 Appellant. ) 

 ) O P I N I O N

__________________________________) 

Appeal from the Superior Court in Maricopa County 

The Honorable Sally Schneider Duncan, Judge 

AFFIRMED 

________________________________________________________________ 

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix 

 By Kent E. Cattani, Chief Counsel 

 Criminal Appeals/Capital Litigation Section 

 Susanne Bartlett Blomo, Assistant Attorney General 

Attorneys for State of Arizona 

DROBAN & COMPANY, PC Anthem 

 By Kerrie M. Droban 

Attorneys for Mike Peter Gallardo 

________________________________________________________________ 

B A L E S, Justice 

¶1 This mandatory appeal arises from Mike Peter 

Gallardo’s conviction and death sentence for the murder of Rudy 

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

the Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) 

section 13–4031 (2010). 
2 

FACTUAL AND PROCEDURAL BACKGROUND 

¶2 On December 9, 2005, Rudy Padilla was murdered at his 

parents’ home in Phoenix. Padilla’s father returned from work 

and saw that a sliding glass door into the house had been 

broken. He found his son’s body in the master bedroom. 

Padilla’s wrists and ankles had been bound, a pillowcase had 

been tied over his head, and he had been shot once in the back 

of the head. The bedroom was in disarray; jewelry and a 

revolver were missing. Telephone records showed that Gallardo 

had called the Padilla home from his cell phone the day of the 

murder, and DNA profiles developed from evidence at the crime 

scene matched Gallardo’s profile. Neither Rudy nor his parents 

knew Gallardo.

¶3 Gallardo was indicted for first degree murder, 

burglary, and kidnapping. After a mistrial for juror 

misconduct, a second jury was impaneled. This jury convicted 

Gallardo on all counts. In the aggravation phase, the jury 

found two aggravating factors: Gallardo had been previously 

convicted of a serious offense, see A.R.S. § 13–751(F)(2) 

(2010), and the murder was especially cruel, id. § 13–751(F)(6). 

(Statutes are cited in their current version unless they have 

materially changed since the date of the offense.) In the 

penalty phase, the jury determined Gallardo should receive a 

death sentence for the murder. The trial court also sentenced 
3 

Gallardo to concurrent prison terms of 15.75 years for the 

burglary and kidnapping counts. 

DISCUSSION 

¶4 Gallardo raises six issues on appeal. For the reasons 

explained below, we affirm his convictions and sentences. 

A. Mistrial After Juror Misconduct 

¶5 Gallardo argues that the trial court erred in 

declaring a mistrial after several jurors prematurely discussed 

the evidence. 

¶6 The decision to grant a mistrial rests within the 

sound discretion of the trial court. McLaughlin v. Fahringer, 

150 Ariz. 274, 277, 723 P.2d 92, 95 (1986). If there is 

“manifest necessity” for the mistrial, the Double Jeopardy 

Clause does not bar retrial. Id. Manifest necessity may arise 

when juror impartiality is compromised by jurors discussing 

evidence before deliberations. Cf. Ross v. Petro, 515 F.3d 653, 

658 (6th Cir. 2008) (holding that state trial court exercised 

sound discretion in declaring mistrial based on manifest 

necessity where juror had engaged in misconduct); United States 

v. Gianakos, 415 F.3d 912, 921 (8th Cir. 2005) (explaining that 

premature deliberation by a jury “is not a light matter” and 

that a court must carefully consider “[a] legitimate concern 

that a juror's impartiality is suspect”). Because curative 

instructions or other measures “will not necessarily remove the 
4 

risk of bias,” the trial court “must have the power to declare a 

mistrial in appropriate cases.” Arizona v. Washington, 434 U.S. 

497, 513 (1978).

¶7 At the beginning of the guilt phase, the trial court 

admonished the jurors not to discuss the case “until all the 

evidence has been presented and [you] have retired to deliberate 

on the verdict. You therefore may not discuss the evidence 

amongst yourselves until you retire to deliberate on your 

verdict.” 

¶8 Upon learning that some jurors had prematurely 

discussed the evidence, the trial court individually questioned 

each of the sixteen impaneled jurors. The parties agreed that 

one juror (Juror 13) should be excused for an unrelated 

hardship. The trial court found that three other jurors should 

be excused for violating the admonition and not candidly 

responding to questions. The trial court also found that three 

other jurors had formed opinions about other jurors that would 

affect their deliberations. Striking all these jurors would not 

leave twelve to deliberate; striking only those who violated the 

admonition would leave no alternates for a capital case expected 

to last three months. The trial court also found it “highly 

likely” that four other jurors had violated the admonition 

despite having denied doing so. 

¶9 Gallardo argues that less onerous sanctions were 
5 

available, all of the jurors stated they could remain fair and 

impartial, and he was satisfied with the jurors selected. But 

he agreed to the removal of two jurors (Jurors 11 and 13), and 

he offers no good reason to question the trial court’s 

conclusions about the others. The trial court carefully 

considered Gallardo’s interest in having the trial concluded by 

the originally impaneled jury and did not abuse its discretion 

in declaring a mistrial. 

B. Batson Challenge 

¶10 Gallardo argues that the trial court erred in denying 

his challenges to the State’s peremptory strikes of three 

minority jurors during selection of the second jury. We review 

for clear error. State v. Roque, 213 Ariz. 193, 203 ¶ 12, 141 

P.3d 368, 378 (2006). 

¶11 Excluding a potential juror based on race violates the 

Equal Protection Clause of the Fourteenth Amendment. Batson v. 

Kentucky, 476 U.S. 79, 89 (1986). Batson challenges require a 

three-step analysis: “(1) the party challenging the strikes must 

make a prima facie showing of discrimination; (2) the striking 

party must provide a race-neutral reason for the strike; and (3) 

if a race-neutral explanation is provided, the trial court must 

determine whether the challenger has carried its burden of 

proving purposeful racial discrimination.” State v. Cañez, 202 

Ariz. 133, 146 ¶ 22, 42 P.3d 564, 577 (2002). Whether the 
6 

justifications offered for striking a juror are pretexts for 

discrimination turns on the lawyer’s credibility, and “the best 

evidence [of discriminatory intent] often will be the demeanor 

of the attorney who exercises the challenge.” Snyder v. 

Louisiana, 552 U.S. 472, 477 (2008) (alteration in original). 

¶12 The trial court did not clearly err in overruling 

Gallardo’s Batson challenges. Although Gallardo made a prima 

facie showing of discrimination, the State offered an 

explanation for each strike “based on something other than the 

race of the juror.” Hernandez v. New York, 500 U.S. 352, 365 

(1991) (plurality opinion). The State struck one juror for 

hardship, another for her negative feelings toward police, and 

the last for her criminal history. 

¶13 The trial court found that the reasons the State 

articulated were not pretexts and there was no pattern or 

practice of discrimination. Other minority jurors were 

ultimately selected for the panel, and “[a]lthough not 

dispositive, the fact that the state accepted other [minority] 

jurors on the venire is indicative of a nondiscriminatory 

motive.” Roque, 213 Ariz. at 204 ¶ 15, 141 P.3d at 379 

(internal quotation marks omitted) (second alteration in 

original). The trial court did not clearly err in overruling 

the Batson challenges. 
7 

C. (F)(6) Aggravator

¶14 Gallardo argues that the State failed to present 

sufficient evidence to support the jury’s finding that the 

murder was “especially cruel.” He also argues that the jury 

instruction on the (F)(6) aggravator was unconstitutionally 

vague and improperly reduced the State’s burden of proof. 

1. Sufficiency of the Evidence 

¶15 We determine whether substantial evidence supports the 

jury’s finding, viewing the facts in the light most favorable to 

sustaining the jury verdict. Id. at 218 ¶ 93, 141 P.3d at 393. 

“Substantial evidence is such proof that reasonable persons 

could accept as adequate and sufficient to support a conclusion 

of defendant’s guilt beyond a reasonable doubt.” Id. (citations 

and internal quotation marks omitted). 

¶16 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.” “A finding of 

cruelty alone is sufficient to establish the [(F)(6)] 

aggravator.” State v. Morris, 215 Ariz. 324, 341 ¶ 80, 160 P.3d 

203, 220 (2007). 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.” 

State v. Martinez, 218 Ariz. 421, 436 ¶ 70, 189 P.3d 348, 363 
8 

(2008) (citation and internal quotation marks omitted). 

¶17 The record contains substantial evidence that Rudy 

experienced mental anguish before death and that Gallardo knew 

or should have known that such suffering would occur. Rudy 

almost certainly was conscious when bound, as there is no reason 

to bind an unconscious person. See State v. Lynch, 225 Ariz. 

27, 41 ¶ 79, 234 P.3d 595, 609 (2010); State v. Djerf, 191 Ariz. 

583, 596 ¶ 49, 959 P.2d 1274, 1287 (1998); see also State v. 

Bible, 175 Ariz. 549, 604–05, 858 P.2d 1152, 1207–08 (1993) 

(“The fact that [the victim’s] hands were bound indicates that 

she was conscious and tied-up to prevent struggling.”). 

Ligature abrasions on Rudy’s neck, wrists, and ankles indicate 

that the bindings were not loose. 

¶18 Moreover, there is evidence that Rudy struggled 

against the ligatures attempting to free himself. See Lynch, 

225 Ariz. at 41 ¶ 79, 234 P.3d at 609; Djerf, 191 Ariz. at 596 

¶ 51, 959 P.2d at 1287 (inferring mental anguish from contusions 

and abrasions on victim’s wrists). Rudy’s right hand was folded 

underneath him, not behind his back like his left arm. Rudy 

apparently had pulled his right wrist away from his left, almost 

freed his right hand, and pulled it in front of him. 

¶19 That Rudy was bound hand and foot, a pillowcase was 

tied over his head, and he struggled to free himself also 

indicates he had time to suffer significant uncertainty as to 
9 

his fate. See Lynch, 225 Ariz. at 41 ¶ 79, 234 P.3d at 609; 

State v. Ellison, 213 Ariz. 116, 142 ¶ 120, 140 P.3d 899, 925 

(2006) (“Mental anguish is established if the victim experienced 

significant uncertainty as to her ultimate fate.” (citation and 

internal quotation marks omitted)). The record also supports 

the jury’s conclusion that Gallardo knew or should have known 

that Rudy would suffer. See Lynch, 225 Ariz. at 41 ¶ 80, 234 

P.3d at 609 (concluding that it was “surely foreseeable that 

[the victim] would suffer significant mental anguish while being 

bound to the chair”). 

¶20 The evidence supports the jury’s finding that the 

murder was especially cruel. 

2. F(6) Jury Instruction 

¶21 Arizona’s (F)(6) aggravator is facially vague but may 

be remedied by appropriate limiting instructions. See Walton v. 

Arizona, 497 U.S. 639, 654–56 (1990), overruled on other grounds 

by Ring v. Arizona, 536 U.S. 584, 589 (2002); Ellison, 213 Ariz. 

at 138 ¶ 96, 140 P.3d at 921. We have approved narrowing 

instructions for the “especially cruel” aggravating factor that 

require the jury to find that (1) “the victim was conscious 

during the mental anguish or physical pain” and (2) “the 

defendant knew or should have known that the victim would 

suffer.” State v. Tucker, 215 Ariz. 298, 310 ¶ 31, 160 P.3d 

177, 189 (2007) (citations omitted). 
10 

¶22 The trial court here gave the following (F)(6) 

instruction: 

Concerning this aggravating circumstance, all firstdegree murders are to some extent cruel. However, 

this aggravating circumstance cannot be found to exist 

unless the State has proved beyond a reasonable doubt 

that the murder was “especially” cruel. “Especially” 

means “unusually great or significant.” 

The term “cruel” focuses on the victim’s pain and 

suffering. To find that the murder was committed in 

an “especially cruel” manner you must find that the 

victim consciously suffered physical or mental pain, 

distress or anguish prior to death. Mr. Gallardo must 

know or should have known that the victim would 

suffer. 

¶23 The instruction contains the two “essential narrowing 

factors” identified in Tucker and is materially identical to 

instructions we have previously upheld. See, e.g., State v. 

Chappell, 225 Ariz. 229, 237–38 ¶ 27 & n.6, 236 P.3d 1176, 1184–

85 & n.6 (2010); State v. Villalobos, 225 Ariz. 74, 82 ¶ 31 & 

n.4, 235 P.3d 227, 235 & n.4 (2010). The trial court did not 

err in giving this instruction. 

D. Victim Impact Evidence 

¶24 Gallardo argues that victim impact statements by 

Rudy’s parents were unduly prejudicial and denied him due 

process. He contends that he limited his mitigation evidence to 

avoid infusing “irrelevant emotions into the proceeding” and the 

parents’ statements caused the jury to sentence him to death 

based on “raw emotion.” He also argues that the victim impact 
11 

evidence was irrelevant to the mitigation presented and that, 

absent a curative instruction, the jury was improperly allowed 

to make “comparative judgments on the value of human life.”

¶25 Arizona law generally allows victim impact evidence 

during the penalty phase to rebut mitigation. See Ariz. Const. 

art. II, § 2.1(A)(4) (entitling a victim to be heard at 

sentencing); A.R.S § 13–752(R) (allowing victim to present 

information during penalty phase about the murdered person and 

the impact of the murder on the victim and other family 

members). “Victim impact evidence should not be allowed, 

however, if it is ‘so unduly prejudicial that it renders the 

trial fundamentally unfair.’” State v. Dann, 220 Ariz. 351, 369 

¶ 98, 207 P.3d 604, 622 (2009) (quoting Payne v. Tennessee, 501 

U.S. 808, 825 (1991)), cert. denied, 130 S. Ct. 466 (2009). 

¶26 Gallardo did not object to the victim impact evidence 

until after it was presented, when he moved for a mistrial. The 

trial court’s decision whether to grant a mistrial is reviewed 

for an abuse of discretion, Dann, 220 Ariz. at 363 ¶ 48, 207 

P.3d at 616, as is the admission of victim impact evidence, 

State v. Garza, 216 Ariz. 56, 69 ¶ 60, 163 P.3d 1006, 1019 

(2007). 

¶27 In their statements, Rudy’s parents spoke of Rudy’s 

character and the impact of his murder upon their family. Mr. 

Padilla ended his statement by playing the 911 call he made 
12 

after finding his son murdered. The Padillas’ statements did 

not call for any specific sentence and were within the 

appropriate bounds of victim impact testimony — discussing only 

the kind of person Rudy was and how his death affected his 

family. 

¶28 Gallardo argues that the statements were irrelevant to 

the “limited and truncated” mitigation presented. Admissibility 

of victim impact statements does not depend on the particular 

mitigation evidence presented by the defendant. Jurors may 

“consider 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). 

Even if victim impact statements are not offered to rebut any 

specific mitigating fact, they are “generally relevant to rebut 

mitigation” and thus admissible in the penalty phase. Garza, 

216 Ariz. at 69 ¶ 60 n.12, 163 P.3d at 1019 n.12. 

¶29 Although the jurors were moved by the statements, and 

some passed a tissue box, the statements were not “so unduly 

prejudicial” as to render the trial fundamentally unfair. See 

State v. Glassel, 211 Ariz. 33, 54 ¶ 86, 116 P.3d 1193, 1214 

(2005). Moreover, the trial court appropriately instructed the 

jury that victim impact evidence could not be considered as an 

aggravating circumstance and could be considered “only for [the] 
13 

limited purpose” of rebutting mitigation. The trial court did 

not abuse its discretion in admitting victim impact statements 

or denying Gallardo’s motion for mistrial. 

¶30 Gallardo also argues that the trial court failed to 

instruct jurors (1) not to rely on the statements for “a purely 

emotional response,” and (2) “not to make comparative judgments 

about the value of human lives.” “We review de novo whether 

jury instructions adequately state the law.” Tucker, 215 Ariz. 

at 310 ¶ 27, 160 P.3d at 189.

¶31 The cases Gallardo cites do not suggest the trial 

court’s instructions were inadequate. State v. Bocharski states 

that the “trial judge appropriately instructed the jurors that 

they could consider the victim impact statement only to rebut 

the mitigation evidence.” 218 Ariz. 476, 488 ¶ 53, 189 P.3d 

403, 415 (2008). State v. Carreon notes that the “trial court 

cautioned the jury not to consider the impact statements as 

aggravation and not to be tainted by sympathy or prejudice.” 

210 Ariz. 54, 72 ¶ 93, 107 P.3d 900, 918 (2005). 

¶32 Although this Court has approved jury instructions 

containing the language suggested by Gallardo, we have never 

held that such language is required. See Dann, 220 Ariz. at 

369–70 ¶ 101, 207 P.3d at 622–23 (approving, but not requiring, 

instruction that cautioned jurors not to “rely upon the 

statements for a ‘purely emotional response’” and “not to make 
14 

comparative judgments about the value of human lives”). The 

instructions here properly informed the jury of the limited 

purpose of the victim impact statements. We find no error. 

E. Prosecutorial Misconduct 

¶33 Gallardo argues that comments made by the State during 

its penalty phase opening statement and closing argument 

constituted prosecutorial misconduct and deprived him of a fair 

trial and due process. 

¶34 We “will reverse a conviction for prosecutorial 

misconduct if (1) misconduct is indeed present; and (2) a 

reasonable likelihood exists that the misconduct could have 

affected the jury’s verdict, thereby denying [the] defendant a 

fair trial.” State v. Velazquez, 216 Ariz. 300, 311 ¶ 45, 166 

P.3d 91, 102 (2007) (alteration in original) (internal quotation 

marks and citation omitted). The defendant must show that the 

offending statements were “so pronounced and persistent” that 

they “permeate[d] the entire atmosphere of the trial” and “so 

infected the trial with unfairness as to make the resulting 

conviction a denial of due process.” Morris, 215 Ariz. at 335 

¶ 46, 160 P.3d at 214 (citations and internal quotation marks 

omitted); see also State v. Newell, 212 Ariz. 389, 402 ¶ 60, 132 

P.3d 833, 846 (2006). 

¶35 We separately “evaluate each instance of alleged 

misconduct, and the standard of review depends upon whether [the 
15 

defendant] objected.” Morris, 215 Ariz. at 335 ¶ 47, 160 P.3d 

at 214. If Gallardo objected, we review for harmless error; if 

not, we review only for fundamental error. See id. “[E]ven if 

there [is] no error or an error [is] harmless and so by itself 

does not warrant reversal, an incident may nonetheless 

contribute to a finding of persistent and pervasive misconduct 

if the cumulative effect of the incidents shows that the 

prosecutor intentionally engaged in improper conduct and did so 

with indifference, if not specific intent, to prejudice the 

defendant.” Id. (alteration in original) (citation and internal 

quotation marks omitted). 

1. Reference to Gallardo’s Prison Packet

¶36 Before the penalty phase, Gallardo filed a motion to 

limit the scope of rebuttal evidence. Gallardo stated that he 

intended to present only two categories of mitigation: expert 

testimony regarding the conditions of confinement in the maximum 

security units of Arizona prisons and testimony by members of 

his family about their affection for him and the impact a death 

sentence would have on them. Gallardo asked the court to 

preclude the State from asking witnesses about his “criminal 

history, institutional history, or any other past events,” and 

in particular an incident involving a handcuff key, escape 

attempts, or the expert’s conversations with Gallardo. The 

trial court granted the motion. 
16 

¶37 Gallardo contends that the prosecutor committed 

misconduct by suggesting in his opening statement that 

Gallardo’s prison packet would illustrate his personal history. 

Gallardo, however, mischaracterizes the prosecutor’s remarks. 

The prosecutor simply stated that Gallardo’s expert had not 

reviewed the Arizona Department of Corrections’ records for 

Gallardo, which had been previously admitted, but instead would 

talk about the treatment of inmates generally. By noting the 

limited scope of the expert’s opinion, the prosecutor did not 

violate the trial court’s ruling on the scope of rebuttal. 

2. Reference to Gallardo’s Childhood and Intelligence 

¶38 In his opening statement, the prosecutor stated that 

the jury would hear evidence regarding Gallardo’s childhood. 

Gallardo objected and moved for a mistrial, arguing the 

statement violated the court’s ruling on the scope of rebuttal. 

The trial court denied a mistrial but ruled that the prosecutor 

could not introduce evidence of Gallardo’s childhood or 

intelligence unless the defense “opened the door” on those 

issues. 

¶39 The prosecutor’s statements about the anticipated 

evidence concerning Gallardo’s childhood and intelligence did 

not violate the court’s prior ruling on the motion in limine or 

otherwise constitute misconduct, given that the judge’s ruling 

precluding such evidence came only after the opening statement. 
17 

Moreover, Gallardo later offered testimony by his sister about 

his family and argued in closing that his family members had 

been in the courtroom and the jury should consider that “[t]hey 

care about him.” The defense did not offer evidence regarding 

Gallardo’s intelligence, and the prosecutor did not comment on 

this issue again after the court’s ruling. 

¶40 Even if the comments by the prosecutor were improper, 

we would reverse only if Gallardo established “a ‘reasonable 

likelihood’ that the ‘misconduct could have affected the jury’s 

verdict.’” Newell, 212 Ariz. at 403 ¶ 67, 132 P.3d at 847 

(quoting State v. Atwood, 171 Ariz. 576, 606, 832 P.2d 593, 623 

(1992), overruled on other grounds by State v. Nordstrom, 200 

Ariz. 229, 241 ¶ 25, 25 P.3d 717, 729 (2001)). “[A]ny improper 

comments must be so serious that they affected the defendant’s 

right to a fair trial.” Id. (citation omitted). The 

preliminary and final jury instructions noted that “[t]he 

attorneys’ remarks, statements, and arguments are not evidence, 

but are intended to help you understand the evidence and apply 

the law.” Presuming that jurors follow the court’s 

instructions, id. at ¶ 68 (citation omitted), we conclude that 

any possible prejudice from the prosecutor’s statements was 

cured by the trial court’s instructions. 

3. Comparison of Victim and Gallardo 

¶41 In closing argument, Gallardo argued that a life 
18 

sentence was “sufficient punishment” given the “severe 

restriction” and “isolat[ion]” of prison. In response, the 

prosecutor said that maximum security inmates are allowed to 

watch television, receive magazines, make phone calls, and see 

visitors. Noting that victim impact statements could rebut 

mitigation, the prosecutor then said, “Do you think [Rudy’s 

father is] going to be able to call his son, Rudy . . ..” The 

defense objected to the comparison between Gallardo and the 

victim, and the trial court sustained the objection. 

¶42 Even if the prosecutor’s statements were improper,

reversal is not required. See Newell, 212 Ariz. at 403 ¶ 67, 

132 P.3d at 847. The trial court instructed the jurors “not to 

be swayed by mere sympathy not related to the evidence presented 

during this phase” and to disregard any question to which the 

judge sustained an objection. These instructions negated the 

effect of the prosecutor’s statements. See id. at ¶ 68; see 

also Morris, 215 Ariz. at 336–37 ¶ 55, 160 P.3d at 215–16 (“Even 

if the prosecutor's comments were improper, the judge's 

instructions negated their effect.”). 

4. Reference to Mitigation Witness’s Fees 

¶43 In the penalty phase, Gallardo presented expert 

testimony from a retired corrections director about the 

conditions of maximum security facilities in Arizona. During 

cross examination, the prosecutor elicited testimony concerning 
19 

the expert’s fees and potential bias. During closing argument, 

the prosecutor characterized this testimony as an inconsistent 

statement, Gallardo objected to the argument as misleading, and 

the trial court sustained the objection. The prosecutor 

persisted with the line of argument and the trial court twice 

sustained further objections. 

¶44 A prosecutor should not repeat an argument after it 

has been the subject of a sustained objection. Cf. Pool v. 

Superior Court in and for Pima County, 139 Ariz. 98, 104 n.7, 

677 P.2d 261, 267 n.7 (1984) (noting that repetition of 

questions to which objection has been sustained is misconduct); 

In re Gustafson, 650 F.2d 1017, 1020 (9th Cir. 1981) (noting 

that attorney’s disregard of court’s limits on permissible 

argument constituted misbehavior for purposes of federal 

contempt statute). Although the repeated statements by the 

prosecutor were improper, Gallardo’s objections were sustained 

and the trial court instructed the jury to “disregard questions 

. . . that were withdrawn or to which objections were 

sustained.” Again, because “we presume jurors follow the 

court’s instructions,” Newell, 212 Ariz. at 403 ¶ 68, 132 P.3d 

at 847, any prejudice that may have resulted from the 

prosecutor’s argument was cured by the trial court’s 

instructions. 

5. Misstatement of the Law 
20 

¶45 Gallardo further claims that it was improper for the 

prosecutor to suggest in closing that the jurors must vote for 

death if they found no mitigation. We have previously rejected 

this argument: “Under our sentencing scheme . . . given the 

findings of one or more aggravators, a juror must vote to impose 

a sentence of death if he or she determines there is no 

mitigation at all or none sufficiently substantial to warrant a 

sentence of less than death.” Tucker, 215 Ariz. at 318 ¶ 74, 

160 P.3d at 197. 

6. Cumulative Effect 

¶46 Gallardo argues that even if no single incident of 

misconduct warrants reversal, the deliberate and persistent 

conduct of the prosecutor deprived him of a fair trial. We 

consider whether “persistent and pervasive” misconduct occurred 

and whether the “cumulative effect of the incidents shows that 

the prosecutor intentionally engaged in improper conduct and did 

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

defendant.” Morris, 215 Ariz. at 339 ¶ 67, 160 P.3d at 218 

(citation and internal quotation marks omitted). 

¶47 The record does not suggest pervasive prosecutorial 

misconduct that deprived Gallardo of a fair trial. 

F. Constitutionality of Burden of Proof at Sentencing 

¶48 Gallardo argues that Arizona’s death penalty scheme 

violates the Eighth and Fourteenth Amendments because it does 
21 

not require the State to prove beyond a reasonable doubt that 

mitigating circumstances, once proved by the defendant, are not 

sufficiently substantial to call for leniency. We rejected this 

argument in State v. Moore, 222 Ariz. 1, 20 ¶¶ 110–13, 213 P.3d 

150, 169, cert. denied, 130 S. Ct. 747 (2009). 

G. Review of the Death Sentence 

¶49 Because the murder occurred after August 1, 2002, we 

“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). We conduct this review even if, as 

here, the defendant does not argue that the jury’s verdict was 

an abuse of discretion. Morris, 215 Ariz. at 340 ¶ 76, 160 P.3d 

at 219. A decision is not an abuse of discretion if there is 

“any reasonable evidence in the record to sustain it.” Id. at 

341 ¶ 77, 160 P.3d at 220 (citation and internal quotation marks 

omitted) 

1. Aggravating Circumstances

¶50 The jury found two aggravating circumstances: Gallardo 

had been previously convicted of a prior serious offense, see 

A.R.S. § 13–751(F)(2), and the murder was especially cruel, see

id. § 13–751(F)(6). As discussed, there is sufficient evidence 

to support the jury’s finding that Gallardo committed the murder 

in an especially cruel manner. The jury also properly found 

that Gallardo had previously been convicted of a serious offense 
22 

based on evidence of his prior convictions for armed robbery and 

burglary. 

2. Death as the Appropriate Sentence 

¶51 Once the jury finds one or more aggravating factors, 

each juror must individually determine whether death is the 

appropriate penalty. See A.R.S. § 13–751(C) (stating that 

“[e]ach juror may consider any mitigating circumstance found by 

that juror in determining the appropriate penalty”); see also 

Baldwin, 211 Ariz. at 473 ¶ 21, 123 P.3d at 667. We will not 

reverse the jury's decision if “any reasonable jury could have 

concluded that the mitigation established by the defendant was 

not sufficiently substantial to call for leniency.” Morris, 215 

Ariz. at 341 ¶ 81, 160 P.3d at 220. 

¶52 Gallardo presented evidence about the impact of 

execution on his family and the general conditions of 

confinement in Arizona’s maximum security facilities. A 

reasonable juror could conclude that the mitigation presented 

was not sufficiently substantial to call for leniency. See 

State v. Harrod, 200 Ariz. 309, 319 ¶ 54, 26 P.3d 492, 502 

(2001) (minimal weight given to family support), vacated on 

other grounds, 536 U.S. 953 (2002). 

H. Issues Preserved for Federal Review 

¶53 To avoid preclusion, Gallardo raises twelve additional 

constitutional claims that he states have been rejected in 
23 

previous decisions by the United States Supreme Court or this 

Court. The attached appendix lists the claims raised by 

Gallardo and the decisions he identifies as rejecting them. 

CONCLUSION

¶54 We affirm Gallardo’s convictions and sentences. 

 _____________________________________ 

 W. Scott Bales, Justice 

CONCURRING: 

_____________________________________ 

Rebecca White Berch, Chief Justice 

_____________________________________ 

Andrew D. Hurwitz, Vice Chief Justice 

_____________________________________ 

A. John Pelander, Justice 

_____________________________________ 

Michael D. Ryan, Justice (Retired) 
24 

Appendix 

Gallardo raises twelve issues to preserve them for federal 

appeal. This Appendix lists his claims and the decisions he 

identifies as rejecting them. 

(1) Arizona’s statutory scheme for considering mitigating 

evidence is unconstitutional under the Eighth and 

Fourteenth Amendments because it limits consideration of 

mitigating evidence to that proven by a preponderance of 

the evidence. State v. McGill, 213 Ariz. 147, 161 ¶ 59, 

140 P.3d 930, 944 (2006). 

(2) Gallardo’s death sentence is in violation of his rights 

under the Fifth, Sixth, Eighth, and Fourteenth Amendments 

and the Arizona Constitution because the State failed to 

allege the aggravating factors that made the defendant 

death eligible in the grand jury indictment. McKaney v. 

Foreman ex rel. County of Maricopa, 209 Ariz. 268, 273 ¶ 

23, 100 P.3d 18, 23 (2004). 

(3) Application of the new death penalty law to Gallardo 

constitutes an impermissible ex post facto application of 

the law. State v. Ring, 204 Ariz. 534, 547 ¶¶ 23–24, 65 

P.3d 915, 928 (2003). 

(4) Gallardo’s rights under the Fifth, Sixth, Eighth, and 

Fourteenth Amendments and under the Arizona Constitution 

were violated by the admission of victim impact evidence at 

the penalty phase of the trial. Lynn v. Reinstein, 205 

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

(5) The trial court improperly omitted penalty phase 

instructions that the jury could consider mercy or sympathy 

in evaluating the mitigation evidence and in determining 

whether to sentence the defendant to death. State v. 

Carreon, 210 Ariz. 54, 70–71 ¶¶ 81–87, 107 P.3d 900, 916–17 

(2005). 

(6) The death penalty is cruel and unusual punishment. State 

v. Harrod, 200 Ariz. 309, 320 ¶ 59, 26 P.3d 492, 503 

(2001), vacated on other grounds, 536 U.S. 953 (2002). 
25 

(7) The death penalty is arbitrarily imposed in violation of 

Gallardo’s due process rights under the Fourteenth 

Amendment and under the Arizona Constitution. State v. 

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

(8) The prosecutor’s discretion to seek the death penalty 

unconstitutionally lacks standards. State v. Sansing, 200 

Ariz. 347, 361 ¶ 46, 26 P.3d 1118, 1131 (2001), vacated on 

other grounds, 536 U.S. 954 (2002). 

(9) The death penalty in Arizona has been applied in a manner 

that discriminates against poor, young, and male defendants 

in violation of the Arizona Constitution. Sansing, 200 

Ariz. at 361 ¶ 46, 26 P.3d at 1131. 

(10) The absence of proportionality review by Arizona courts of 

a defendant’s death sentence is unconstitutional under the 

Fifth, Eighth, and Fourteenth Amendments and Article 2, 

Section 15 of the Arizona Constitution. Harrod, 200 Ariz. 

at 320 ¶ 65, 26 P.3d at 503. 

(11) Arizona’s death penalty statute unconstitutionally presumes 

that death is the appropriate sentence. State v. Miles, 

186 Ariz. 10, 19, 918 P.2d 1028, 1037 (1996). 

(12) Execution by lethal injection is cruel and unusual 

punishment. State v. Van Adams, 194 Ariz. 408, 422, 984 

P.2d 16, 30 (1999).