SUPREME COURT OF ARIZONA 

En Banc 

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-06-0061-AP 

 Appellee, ) 

 ) Maricopa County 

 v. ) Superior Court 

 ) No. CR2002-009759 

CHRISTOPHER ALLEN HARGRAVE, ) 

 ) 

 Appellant. ) O P I N I O N 

 ________________________________ ) 

Appeal from the Superior Court in Maricopa County 

The Honorable Roland J. Steinle, Judge 

REMANDED FOR RESENTENCING ON BURGLARY, 

AFFIRMED IN ALL OTHER RESPECTS 

________________________________________________________________ 

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix 

 By Kent E. Cattani, Chief Counsel, 

 Criminal Appeals/Capital Litigation Section 

 Jeffrey A. Zick, Assistant Attorney General 

Attorneys for State of Arizona 

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix 

 By Karen M. Noble, Deputy Public Defender 

 Louise Stark, Deputy Public Defender 

Attorneys for Christopher Allen Hargrave 

________________________________________________________________ 

B E R C H, Chief Justice 

¶1 Christopher Allen Hargrave was convicted of three 

counts of first degree murder, one count of armed robbery, one 

count of burglary, and three counts of kidnapping. He was 

sentenced to death for each of the murders. In this automatic 

appeal, Hargrave raises fourteen claims of error and lists 
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fifteen additional issues to avoid preclusion. This Court has 

jurisdiction pursuant to Article 6, Section 5(3) of the Arizona 

Constitution and Arizona Revised Statutes (“A.R.S.”) § 13-4031 

(2010). 

I. FACTUAL AND PROCEDURAL BACKGROUND1

¶2 Late on the evening of May 19, 2002, Christopher 

Hargrave and Steve Boggs drove to a fast food restaurant from 

which Hargrave had recently been fired. Hargrave entered 

dressed in his work uniform and told the employees that he had 

been called into work. 

¶3 Armed with a handgun, Boggs followed Hargrave into the 

restaurant and ordered the three employees to lie down on the 

floor and empty their pockets. Hargrave watched the employees 

while Boggs took money from two registers. Hargrave then 

assisted Boggs in directing the employees through the cooler 

into the freezer where Boggs lined them up and shot them as he 

shouted racial epithets. Hargrave also fired the murder weapon 

once inside the cooler. He later tried to withdraw money from 

an ATM using a bank card belonging to one of the victims. 

¶4 A customer who arrived at the restaurant after the 

shootings saw victim B.A. on the ground by the back door and 

called the police. When police officers arrived, they found the 

 

1

 We view the facts in the light most favorable to sustaining 

the verdict. State v. Dann, 205 Ariz. 557, 562 n.1, 74 P.3d 

231, 236 n.1 (2003). 
- 3 - 

body of victim F.J. on the floor near a telephone and the body 

of victim K.B. inside the freezer. All three victims died from 

their gunshot wounds. Between $200 and $500 was missing from 

the cash registers. 

¶5 On May 21, 2002, Boggs pawned a .45 caliber handgun at 

a shop owned by Hargrave’s girlfriend’s parents, who reported 

the transaction to the police. Ballistics tests indicated that 

the gun had ejected the shell casings found at the restaurant, 

and an analyst concluded that Hargrave was a “major contributor” 

to the DNA recovered from the grip of the weapon. 

¶6 On June 6, 2002, officers apprehended Hargrave while he 

was sleeping at a campsite. Nearby, officers found two 

handguns, a shotgun, two assault rifles, boxes of ammunition, 

and several documents evidencing Hargrave’s involvement with the 

“Imperial Royal Guard,” a white supremacist organization. As 

officers arrested him, Hargrave stated that “things would have 

been different” if he had been awake when they arrived. 

¶7 A jury found Hargrave guilty of three counts of first 

degree felony and premeditated murder and all other charges. 

The jury found three aggravating factors for each murder: 

(1) the murders were committed in the expectation of pecuniary 

gain, A.R.S. § 13-751(F)(5) (2010);2

 (2) the murders were 

 

2

 In 2008, the capital sentencing statutes were renumbered as 

A.R.S. §§ 13-751 to -759. 2008 Ariz. Sess. Laws, ch. 301, 
- 4 - 

committed in an especially cruel manner, id. § 13-751(F)(6); and 

(3) multiple homicides were committed during the offense, id. § 

13-751(F)(8). 

¶8 Hargrave did not present mitigation during the penalty 

phase and the jury determined that he should be sentenced to 

death for each murder. The court imposed a death sentence for 

each of the murders and concurrent terms of twenty-one years for 

the armed robbery, fifteen years for the burglary, and twentyone years for each of the three kidnapping counts. 

II. DISCUSSION 

A. Guilt Phase Issues 

1. Prior act evidence

¶9 Hargrave argues on appeal that the trial court erred in 

admitting three categories of evidence at trial: (1) evidence 

related to his membership in the Imperial Royal Guard (“IRG”), 

(2) evidence of his statement to officers during his arrest that 

“things would have been different” had he been awake, and 

(3) evidence regarding the guns and ammunition recovered from 

the campsite. He claims that the evidence was not relevant and 

its admission violated Arizona Rule of Evidence 404(b) because 

its limited probative value was substantially outweighed by the 

danger of prejudice. He also contends that the prosecutor used 

 

§§ 26, 38-41 (2d Reg. Sess.). Because there were no relevant 

substantive changes, we cite the current version of the 

statutes. 
- 5 - 

the evidence for an improper purpose. 

¶10 Evidence of a defendant’s prior or subsequent acts is 

not admissible “to show that the defendant is a bad person or 

has a propensity for committing crimes.” State v. McCall, 139 

Ariz. 147, 152, 677 P.2d 920, 925 (1983) (prior acts); see also 

State v. Moreno, 153 Ariz. 67, 68, 734 P.2d 609, 610 (App. 1986) 

(subsequent acts). Other act evidence may be admitted, however, 

for other purposes, such as proving “motive, opportunity, 

intent, preparation, plan, knowledge, identity, or absence of 

mistake or accident.” Ariz. R. Evid. 404(b). The proponent 

must establish by clear and convincing evidence that the 

defendant committed the act, State v. Terrazas, 189 Ariz. 580, 

582, 944 P.2d 1194, 1196 (1997), and the court must then “(1) 

find that the act is offered for a proper purpose under Rule 

404(b); (2) find that the prior act is relevant to prove that 

purpose; (3) find that any probative value is not substantially 

outweighed by unfair prejudice; and (4) give upon request an 

appropriate limiting instruction,” State v. Anthony, 218 Ariz. 

439, 444 ¶ 33, 189 P.3d 366, 371 (2008). 

a. IRG evidence 

¶11 Hargrave and Boggs had formed the Imperial Royal Guard 

(“IRG”), a paramilitary organization that asserted the supremacy 

of the white race and espoused negative views of racial 

minorities. Boggs served as “Chief of Staff” and Hargrave as 
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“Assistant Chief of Staff.” At Hargrave’s campsite, police 

discovered Hargrave’s IRG membership application, his oath of 

allegiance to the IRG, a binder containing a declaration 

describing the IRG’s tenets, and a camouflage jacket bearing his 

IRG “Assistant Chief of Staff” name tag. 

¶12 The State offered the IRG evidence to establish racial 

bias as a potential motive for the crimes. It presented 

evidence that all three victims were members of minority groups 

and that Boggs had shouted racial epithets during the shootings. 

Hargrave argues that the trial court erred in admitting the IRG 

evidence because it was not relevant to the crimes charged and 

no evidence established that the murders were motivated by 

racial bias. 

¶13 Because Hargrave did not object to the IRG evidence at 

trial,3 we review its admission for fundamental error, which is 

“error going to the foundation of the case, error that takes 

from the defendant a right essential to his defense, [or] error 

of such magnitude that the defendant could not possibly have 

 

3

 The State filed a pretrial notice of its intent to admit 

evidence of Hargrave’s membership in the IRG. At a subsequent 

status conference, Hargrave’s attorney said that he had not read 

the State’s notice, but would file a response. Hargrave’s 

counsel later withdrew from the case without filing a response. 

When the case was assigned to a different judge for trial, the 

court ordered the parties to file all pretrial motions twenty 

days before trial. Hargrave’s new counsel filed various 

pretrial motions, but did not contest the admission of the IRG 

evidence in a motion or at trial. 
- 7 - 

received a fair trial.” State v. Henderson, 210 Ariz. 561, 567 

¶ 19, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142 

Ariz. 88, 90, 688 P.2d 980, 982 (1984)). To prevail under this 

standard, Hargrave must first establish that an error occurred, 

then prove that the error was fundamental in nature and caused 

prejudice. Id. at 567 ¶¶ 20, 23, 115 P.3d at 607. 

¶14 Hargrave has not established that any error occurred. 

Contrary to Hargrave’s argument, motive is relevant in a murder 

prosecution. State v. Hunter, 136 Ariz. 45, 50, 664 P.2d 195, 

200 (1983). He counters that the State presented evidence of 

other motives, such as robbery or retaliation for having been 

fired from his job. But the fact that the State may have 

evidence of other motives does not preclude the State from 

presenting the IRG motive evidence. See Ariz. R. Evid. 404(b); 

see also State v. Andriano, 215 Ariz. 497, 503 ¶ 26, 161 P.3d 

546, 549 (2007) (finding evidence of defendant’s extra-marital 

affair admissible under Rule 404(b) to prove motive, even though 

less prejudicial evidence of motive existed). 

¶15 Citing Dawson v. Delaware, 503 U.S. 159 (1992),

Hargrave claims that his affiliation with the IRG was protected 

by the First Amendment. In Dawson, the prosecution attempted to 

introduce evidence of the defendant’s Aryan Brotherhood and 

swastika tattoos during the penalty phase of his murder trial. 

503 U.S. at 161. The Court held that the First and Fourteenth 
- 8 - 

Amendments prohibited the introduction of this evidence because 

it was not relevant to the capital sentencing proceedings. Id. 

at 160. 

¶16 Here, in contrast, evidence of Hargrave’s affiliation 

with the IRG was relevant to establish a motive for the crimes 

and its probative value was not substantially outweighed by the 

prejudice it might have caused. Hargrave has not satisfied his 

initial burden of establishing that the trial court committed 

any error in admitting this evidence.4

b. Statements to police officers 

¶17 Hargrave argues that the trial court erred in admitting 

his post-arrest comments that “things would have been different” 

if he had been awake when the officers arrived and that “the 

police were lucky that he was asleep” when they took him into 

custody. He contends that the statements served no proper 

purpose, were not connected to the murders, and allowed jurors 

to speculate that he was a violent person. The prosecutor 

offered the statements to show a consciousness of guilt. 

¶18 Because Hargrave did not object to these statements at 

trial, we review for fundamental error. Henderson, 210 Ariz. at 

 

4

 Hargrave also challenges the authenticity of the IRG 

documents, noting that the handwriting was not identified as 

his. Hargrave did not raise this objection at trial, see Estate 

of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 286 ¶ 9, 

9 P.3d 314, 317 (2000) (applying contemporaneous objection 

rule), and does not persuasively argue that any error in this 

respect was fundamental. 
- 9 - 

567 ¶ 19, 115 P.3d at 607. 

¶19 There was no fundamental error. Hargrave’s statements 

did not go to the foundation of his case, cause him prejudice, 

or otherwise deprive him of a fair trial or any right essential 

to his defense. See id. at 568 ¶ 24, 115 P.3d at 608. The 

State produced substantial evidence of Hargrave’s participation 

in the murders, including eyewitness testimony, Hargrave’s DNA 

on the murder weapon, a photograph of Hargrave attempting to use 

victim F.J.’s ATM card after the murders, and Hargrave’s own 

admission of his culpability in planning and implementing the 

armed robbery. 

c. Guns and ammunition 

¶20 Hargrave objected to the admission of guns, boxes of 

ammunition, and shell casings found at his campsite, arguing 

that the evidence was not relevant because the guns and 

ammunition were not used during the murders. The court 

overruled Hargrave’s objection, finding the evidence of 

Hargrave’s arrest with Boggs’s guns relevant to rebut Hargrave’s 

claim that he did not know that Boggs would have a gun during 

the restaurant robbery.5

 

5

 Citing State v. Uriarte, 194 Ariz. 275, 282 ¶ 36, 981 P.2d 

575, 582 (App. 1998), Hargrave claims that no clear and 

convincing evidence shows that he “took any affirmative action 

to possess the guns”; Boggs left him at the campsite with the 

weapons and without transportation. But in Uriarte, the court 

found error in the admission of evidence that was largely 
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¶21 We review the trial court’s evidentiary ruling for 

abuse of discretion. State v. Aguilar, 209 Ariz. 40, 49 ¶ 29, 

97 P.3d 865, 874 (2004). 

¶22 In State v. Ellison, we found that the trial court did 

not abuse its discretion in admitting evidence that a defendant 

possessed a gun before and after the charged crime because it 

made the defendant’s story less plausible. 213 Ariz. 116, 133 

¶ 58, 140 P.3d 899, 915 (2006). The evidence here was similarly 

relevant to rebut Hargrave’s main defense – that he did not know 

Boggs would have a gun. The trial judge did not abuse his 

discretion in admitting evidence of the campsite guns and 

ammunition.6

 

uncorroborated and unsupported. Id. Here, in contrast, the 

State proved by clear and convincing evidence that Hargrave 

possessed the campsite guns. 

6 Several of the guns recovered at the campsite belonged to 

W.D., the owner of the pawn shop where Boggs pawned the murder 

weapon. Hargrave argues that in presenting the guns and 

ammunition evidence, Detective Vogel violated the trial court’s 

order not to mention a burglary of W.D.’s residence. The 

reference occurred in response to a juror’s question asking how 

officers learned that the .45 was at the pawn shop. The 

detective responded that the shop owners mentioned the gun when 

they contacted the sheriff’s office regarding a burglary of 

their home. Hargrave did not object to the question or the 

response. This fleeting mention of the burglary does not 

constitute fundamental error. Moreover, Hargrave’s briefs did 

not set forth any argument that this statement caused reversible 

error. See State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 

1390 (1989) (noting that failure to “present significant 

arguments, supported by authority,” “usually constitutes 

abandonment and waiver of that claim”). 
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d. Limiting instruction 

¶23 Hargrave asserts that the trial court erred in its 

final limiting instruction regarding 404(b) evidence.7 The State 

concedes that the trial court erred in instructing the jurors 

that they could consider this evidence as demonstrating that 

Hargrave had a character trait that predisposed him to commit 

 

7

 The instruction stated: 

 Evidence of other acts has been presented. You 

may consider these acts only if you find that the 

State has proved by clear and convincing evidence that 

the defendant committed these acts. You may only 

consider this act to establish the defendant’s motive, 

opportunity, intent, preparation, plan, knowledge, 

identity or absence of mistake or accident. You must 

not consider this act to determine that the defendant 

acted in conformity with the defendant’s character or 

character trait and therefore committed the charged 

offense. 

 You may consider this evidence in determining 

whether the defendant had a character trait that 

predisposed him to commit the crimes charged. You may 

determine that the defendant had a character trait 

that predisposed him to commit the crime charged only 

if you decide that the State has proved by clear and 

convincing evidence that: 

1. The defendant committed these acts; and 

2. These acts show the defendant’s 

character predisposed him to commit the 

crimes charged. 

 You may not convict the defendant of the crimes 

charged simply because you find that he committed 

these acts, or that he had a character trait that 

predisposed him to commit the crime charged. Evidence 

of these acts does not lessen the State’s burden to 

prove the defendant’s guilt beyond a reasonable doubt 

[sic] the crimes charged. 
- 12 - 

the crimes. Such a limiting instruction is properly given when 

the jury hears evidence regarding sexual propensity, Ariz. R. 

Evid. 404(c), not evidence of prior acts, Ariz. R. Evid. 404(b). 

Hargrave did not object to this erroneous instruction at trial, 

however, and so we review for fundamental error. Henderson, 210 

Ariz. at 567 ¶ 19, 115 P.3d at 607. 

¶24 The erroneous instruction did not deny Hargrave a fair 

trial or a right essential to his defense. Despite the error, 

the jury instruction, taken as a whole, properly advised jurors 

of the State’s burden to prove guilt beyond a reasonable doubt 

and instructed them not to use the prior act evidence as a basis 

for convicting Hargrave of the charges. Hargrave has not met 

his burden of establishing that this error constituted 

fundamental error. 

¶25 There was also either an error in the trial court’s 

reading of the limiting instruction or in the court reporter’s 

transcription of the instruction. The transcript reads: “You 

must [sic] consider this act to determine that the defendant 

acted in conformity with the defendant’s character or character 

trait and therefore committed the charged offense.” The “[sic]” 

notation, which appears in the original transcript, could be 

interpreted in one of two ways: Either the judge misspoke and 

the court reporter noted the error, or the court reporter did 

not hear what was said and included the notation to fill the 
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blank in the transcript. 

¶26 Hargrave has not met his burden of persuading us that 

the trial judge gave an improper instruction. It is highly 

unlikely that such an improper instruction, if given, would have 

escaped the notice of the trial judge, the prosecutor, and 

defense counsel. Moreover, the jurors had with them when they 

deliberated an instruction that correctly stated the law on this 

issue. Viewing the jury instructions as a whole, we cannot 

conclude that the error in reading the limiting instruction, if 

one occurred, rises to the level of fundamental error. 

2. Armed robbery indictment

¶27 Hargrave argues that the armed robbery indictment was 

duplicitous because it charged more than one crime in the same 

count and erroneous because it charged armed robbery of the 

restaurant. He therefore urges us to vacate the armed robbery 

conviction and the felony murder convictions predicated on it. 

¶28 A defendant must challenge a defect in a charging 

document before trial. Ariz. R. Crim. P. 13.5(e), 16.1(c). 

This requirement affords the state an opportunity to cure a 

defective charging document. State v. Anderson (Anderson II), 

210 Ariz. 327, 336 ¶ 17, 111 P.3d 369, 378 (2005). Because 

Hargrave failed to challenge the indictment before trial, he has 

waived this issue unless he can establish fundamental error. 

See Henderson, 210 Ariz. at 567-68 ¶¶ 19-20, 115 P.3d at 607-08. 
- 14 - 

¶29 We require each offense alleged against a defendant to 

be charged in a separate count. State v. Whitney, 159 Ariz. 

476, 480, 768 P.2d 638, 642 (1989); see also Ariz. R. Crim. P. 

13.2, 13.3. Duplicitous indictments, which charge more than one 

crime in the same count, are prohibited because “they fail to 

give adequate notice of the charge to be defended, they present 

a hazard of a non-unanimous jury verdict, and they make a 

precise pleading of prior jeopardy impossible in the event of a 

later prosecution.” Whitney, 159 Ariz. at 480, 768 P.2d at 642. 

A single count is permissible, however, if several transactions 

are “merely parts of a larger scheme.” Id. (quoting State v. 

Via, 146 Ariz. 108, 116, 704 P.2d 238, 246 (1985)). 

¶30 The single verdict form for armed robbery in this case 

did not specify the individuals harmed or the property taken. 

Hargrave thus claims that we cannot know whether the jurors 

convicted him of the nonexistent crime of armed robbery of the 

restaurant, or whether the jury returned a non-unanimous verdict 

on armed robbery by convicting him of taking different property 

from different victims. 

¶31 We have rejected a similar argument. In State v. Van 

Vliet, the defendant also argued that the information was 

erroneous because it alleged armed robbery of a grocery store. 

108 Ariz. 162, 163, 494 P.2d 34, 35 (1972). We upheld the 

conviction, observing that “[a]n information is sufficient if it 
- 15 - 

clearly sets forth the offense in such manner as to enable a 

person of common understanding to know what is intended. 

Simplicity rather than technicality is the goal to be achieved.” 

Id. Here, the indictment also adequately conveyed the offense 

charged. Moreover, it did not charge robbery of the restaurant, 

but instead named the three victims. 

¶32 We have also rejected the argument that not specifying 

the victim or property in an armed robbery count requires 

reversal, see id., concluding that proper jury instructions and 

verdict forms may cure an allegedly defective charging document, 

see State v. Axley, 132 Ariz. 383, 392, 646 P.2d 268, 277 

(1982). Hargrave did not object to the armed robbery jury 

instruction and verdict forms and has failed to demonstrate 

fundamental error. 

3. Robbery lesser-included offense instruction

¶33 Hargrave next argues that the trial court erred by 

failing to instruct the jury on the lesser-included offense of 

robbery. A lesser-included offense instruction must be given, 

if requested, if the jury could find that (1) the state failed 

to prove an element of the greater offense, and (2) the evidence 

is sufficient to support a conviction on the lesser offense. 

State v. Wall, 212 Ariz. 1, 4 ¶ 18, 126 P.3d 147, 151 (2006); 

cf. State v. Schad, 163 Ariz. 411, 417, 788 P.2d 1162, 1168 

(1989) (not requiring lesser-included offense instruction for 
- 16 - 

robbery serving as the predicate for felony murder in a capital 

case). With Hargrave’s consent, the trial judge instructed the 

jury on armed robbery and theft, but not simple robbery. 

Because Hargrave requested a robbery instruction, we review the 

trial court’s refusal to give one for abuse of discretion. 

State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995). 

¶34 A defendant commits robbery “if in the course of taking 

any property of another from his person or immediate presence 

and against his will, such person threatens or uses force 

against any person with intent either to coerce surrender of 

property or to prevent resistance to such person taking or 

retaining property.” A.R.S. § 13-1902(A) (2010). Armed robbery 

includes all these elements, and also requires that the 

defendant be “armed with a deadly weapon or a simulated deadly 

weapon.” A.R.S. § 13-1904(A)(1) (2010). 

¶35 When the defendant is charged as an accomplice, we look 

to the accomplice’s intent to aid the main actor. Wall, 212 

Ariz. at 4-5 ¶ 20, 126 P.3d at 151-52. Hargrave argues that the 

jurors could have found that he did not intend to assist in an 

armed robbery because he did not know that Boggs planned to 

carry a gun. The evidence shows, however, that Hargrave not 

only watched the victims while an armed Boggs obtained money 

from the cash registers, but also helped move the victims to the 

freezer and fired the murder weapon. Although Hargrave did not 
- 17 - 

carry his own weapon during the robbery, he assisted Boggs in 

committing the armed robbery knowing that Boggs possessed a 

weapon, and he held the weapon and fired it. 

¶36 Hargrave requested that the court give a lesserincluded offense instruction either on robbery or theft, noting 

that, if the court were to give only one, he preferred an 

instruction on theft. The trial court gave a theft instruction, 

based on Hargrave’s claim that he and Boggs intended to steal 

money from the restaurant while Hargrave distracted the 

employees. If, however, the jury found that more than a theft 

occurred and that the robbery element of force or threat was 

proven, a rational juror could not have found that the State 

failed to prove the additional element of armed robbery: the 

presence of a weapon. Boggs entered the restaurant brandishing 

a gun and Hargrave continued to assist him during the armed 

robbery. The evidence thus did not support a lesser-included 

offense instruction on simple robbery, and therefore the trial 

court did not abuse its discretion in declining to give such an 

instruction. 

4. False imprisonment lesser-included offense instruction

¶37 Hargrave claims that the trial court erred by failing 

to instruct the jury on unlawful imprisonment as a lesserincluded offense of kidnapping. Because Hargrave did not 

request a lesser-included offense instruction, we review the 
- 18 - 

trial court’s failure to give one only for fundamental error. 

State v. Nordstrom, 200 Ariz. 229, 253 ¶ 81, 25 P.3d 717, 741 

(2001). 

¶38 Unlawful imprisonment, defined as “knowingly 

restraining another person,” A.R.S. § 13-1303(A) (2010), is a 

lesser-included offense of kidnapping, which is “knowingly 

restraining another person with the intent to [i]nflict death, 

physical injury or . . . otherwise aid in the commission of a 

felony,” A.R.S. § 13-1304(A)(3) (2010). The “distinguishing 

element between kidnapping and unlawful imprisonment is the 

perpetrator’s state of mind, i.e., whether the unlawful 

imprisonment was accompanied with one of the enumerated intents 

set out in A.R.S. § 13-1304 so as to elevate the unlawful 

imprisonment to kidnapping.” State v. Detrich, 178 Ariz. 380, 

383, 873 P.2d 1302, 1305 (1994); see also State v. Bearup, 221 

Ariz. 163, 169 ¶ 24, 211 P.3d 684, 690 (2009).

¶39 Hargrave argues that the trial court should have 

instructed the jury on false imprisonment because the jury could 

have found he did not intend to harm the employees. The 

evidence showed, however, that Hargrave intended to “aid in the 

commission of a felony” – the robbery – and knew that victims 

might be harmed. See A.R.S. § 13-1304(A)(3). He discussed the 

robbery plan with Boggs and knew that Boggs “always carrie[d] a 

gun.” Boggs had also warned Hargrave that “if it came down to 
- 19 - 

it, he would shoot [the employees].” Hargrave watched the 

victims as an armed Boggs took money from the cash registers, 

opened the door as Boggs marched the victims into the freezer, 

and fired the gun as the victims were directed into the freezer. 

He assisted Boggs in restraining the victims to aid in the 

commission of the armed robbery, which distinguishes kidnapping 

from unlawful imprisonment. See id. Hargrave has failed to 

demonstrate fundamental error. 

5. Non-residential burglary sentence

¶40 The court sentenced Hargrave to fifteen years for third 

degree burglary, a dangerous crime. At the time of Hargrave’s 

conviction, this crime carried a presumptive sentence of six 

years’ imprisonment and a maximum sentence of eight years. 

A.R.S. § 13-604(F) (Supp. 2000) (subsequently re-enacted and 

renumbered as A.R.S. § 13-704(A) (2010)). The State concedes 

that the fifteen-year sentence is unlawful because it falls 

outside the statutory range. See State v. House, 169 Ariz. 572, 

573, 821 P.2d 233, 234 (App. 1991). We remand Hargrave’s 

burglary conviction for resentencing within the statutory range. 

B. Aggravation Phase Issues 

1. Sufficiency of the evidence to support aggravators

¶41 Hargrave argues that the evidence was insufficient to 

prove the (F)(5) pecuniary gain and (F)(6) especially cruel 

aggravating factors. These claims are subsumed within our 
- 20 - 

independent review and are addressed in section III of this 

opinion. See Andriano, 215 Ariz. at 506 n.5, ¶ 41, 161 P.3d at 

549 n.5. 

2. Constitutionality of (F)(6) especially cruel 

aggravating circumstance

¶42 Hargrave argues that the A.R.S. § 13-751(F)(6) 

aggravating factor – murder committed in an “especially cruel” 

manner – is unconstitutionally vague, incapable of principled 

application, and arbitrary and capricious as applied. We review 

alleged constitutional violations de novo, State v. McGill, 213 

Ariz. 147, 159 ¶ 53, 140 P.3d 930, 942 (2006), and when 

possible, construe statutes to uphold their constitutionality, 

State v. Cromwell, 211 Ariz. 181, 188 ¶ 38, 119 P.3d 448, 455 

(2005). 

¶43 The United States Supreme Court has found Arizona’s 

(F)(6) aggravating circumstance facially vague, but held that it 

may be remedied with appropriate narrowing judicial 

constructions. Walton v. Arizona, 497 U.S. 639, 654-56 (1990), 

overruled in part by Ring v. Arizona, 536 U.S. 584 (2002); see 

also Ellison, 213 Ariz. at 138 ¶ 96, 140 P.3d at 921. We have 

approved of jury instructions defining “especially cruel” as 

requiring evidence that the victim was conscious during the 

violence and that the defendant knew or should have known that 

the victim would suffer mental anguish or physical pain. 
- 21 - 

Ellison, 213 Ariz. at 139 ¶¶ 98-99, 140 P.3d at 922; Cromwell, 

211 Ariz. at 189 ¶ 42, 119 P.3d at 456; Anderson II, 210 Ariz. 

at 352-53 n.19, ¶ 111, 111 P.3d at 394-95 n.19. We have also 

upheld instructions requiring that the victim experience 

“significant uncertainty” about his or her fate. Cromwell, 211 

Ariz. at 189 ¶ 42, 119 P.3d at 456; Anderson II, 210 Ariz. at 

352-53 n.19, ¶ 111, 111 P.3d at 394-95 n.19. 

¶44 Hargrave argues that these limiting interpretations no 

longer save the (F)(6) aggravator from unconstitutional 

vagueness because juries, rather than judges, now find the 

existence of aggravating factors. See A.R.S. § 13-751(E). We 

rejected this argument in Cromwell, 211 Ariz. at 189-90 ¶¶ 41-

42, 44, 119 P.3d at 456-57, and Anderson II, 210 Ariz. at 353 ¶¶ 

112-14, 111 P.3d at 395. 

¶45 The instruction here contained the essential narrowing 

factor that the defendant either knew or should have known that 

his actions would cause the victims mental anguish or physical 

pain before death. We upheld a nearly identical instruction in 

State v. Tucker, 215 Ariz. 298, 310-11 ¶¶ 30-31, 160 P.3d 177, 

189-90 (2007), and find no reason to depart from that decision 

now. The only difference between the Tucker instruction and the 

one here is that in Tucker, the instruction stated that a crime 

is especially cruel if the “Defendant either intended or knew.” 

Here, the instruction used the phrase “the defendant either knew 
- 22 - 

or should have known” that the crime would cause the victims to 

experience physical pain or mental anguish. This slight 

alteration does not deprive the instruction of the essential 

narrowing factor that maintains its constitutionality. 

¶46 Hargrave also argues that the (F)(6) instruction is 

facially vague because it failed to properly channel the jurors’ 

discretion by providing clear, objective standards. We have 

previously rejected this argument.8 E.g., id.

3. Jury instruction to not consider punishment at the 

aggravation phase

¶47 At the aggravation phase of the trial, the judge 

instructed the jury that “[i]n reaching your verdicts in this 

phase, you are not to consider the possible punishment.” 

Hargrave argues that this instruction improperly relieved jurors 

of their duty to consider the gravity of their sentencing 

decision. Because Hargrave failed to object to this 

instruction, we review for fundamental error, see Henderson, 210 

 

8

 Hargrave also argues that the aggravator was arbitrarily 

and capriciously applied, in violation of the Fifth, Eighth, and 

Fourteenth Amendments. He claims that the expansion of the 

Gretzler list of factors “destroys the ‘consistency’ that 

preserved the constitutional validity of the statute.” In 

Gretzler, we established factors to be considered when deciding 

if a murder was especially heinous or depraved. State v. 

Gretzler, 135 Ariz. 42, 51-52, 659 P.2d 1, 10-11 (1983). 

Although the verdict forms indicate that the murders were 

committed in an “especially cruel or depraved manner,” the State 

did not present evidence of depravity and the jury was not 

instructed on depravity. Thus Gretzler is inapplicable. See 

id.
- 23 - 

Ariz. at 567 ¶ 19, 115 P.3d at 607. 

¶48 It is unconstitutional to minimize the importance of a 

capital sentencer’s role in imposing the death penalty, Caldwell 

v. Mississippi, 472 U.S. 320, 328-29 (1985), or to make remarks 

that “improperly describe[] the role assigned to the jury by 

local law,” Dugger v. Adams, 489 U.S. 401, 407 (1989). Under 

Arizona law, however, the jury does not consider punishment 

until the penalty phase of the trial, see A.R.S. § 13-752(F), 

and the instruction was therefore appropriate. 

¶49 Moreover, during the penalty phase of the trial, the 

court clearly and correctly instructed the jurors, “[i]t is now 

your duty to determine whether the Defendant should be sentenced 

to death or life imprisonment on his convictions for first 

degree murder.” The penalty phase instructions conveyed the 

gravity of the jurors’ task: “Your decision is not a 

recommendation. Your decision will be binding. If your verdict 

is that the Defendant should be sentenced to death, the 

Defendant will be sentenced to death.” These instructions 

adequately informed the jurors, at the appropriate time, of the 

gravity of their decision. 

C. Penalty Phase Issues 

1. Jury instruction regarding penalties applicable if the 

death sentence was not imposed

¶50 Hargrave argues that the trial court improperly 
- 24 - 

instructed the jury at the aggravation and penalty phases of 

trial that he could be released after serving twenty-five years 

of a life sentence. He claims that telling the jurors that he 

could be released made them consider his future dangerousness as 

a factor in determining the sentence. 

¶51 Because Hargrave failed to object to these 

instructions, we review for fundamental error. Ariz. R. Crim. 

P. 21.3(c); Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607. 

¶52 Hargrave relies on Simmons v. South Carolina, in which 

the trial court instructed the jury that the defendant could be 

released on parole if not sentenced to death. 512 U.S. 154 

(1994) (plurality opinion). In Simmons, however, the defendant 

was not eligible for parole because he had two prior felony 

convictions. Id. at 156. The trial court refused to inform the 

jury of the defendant’s ineligibility for parole, despite 

Simmons’ repeated requests for the instruction and even after 

the jury asked whether he could be released on parole if not 

sentenced to death. Id. at 160, 162. Because the prosecution 

in Simmons emphasized the defendant’s future dangerousness if 

released, the Court found reversible error. Id. at 162. 

¶53 In contrast, the instructions here correctly reflected 

the statutory potential for Hargrave’s release. See A.R.S. 

§ 13-751(A) (providing that a defendant not sentenced to death 

or natural life may not be released for twenty-five or thirty-
- 25 - 

five years, depending on the age of the victim). Unlike 

Simmons, Hargrave was eligible for release after twenty-five 

years, as the jury instruction correctly stated. See id. 

Hargrave’s argument that he is not likely to actually be 

released does not render the instruction legally incorrect. See 

State v. Cruz, 218 Ariz. 149, 160 ¶¶ 41-42, 181 P.3d 196, 207 

(2008); see also Dann, 220 Ariz. at 373 ¶¶ 123-24, 207 P.3d at 

626 (upholding similar instructions as properly conveying the 

jury’s sentencing options). The jury instructions correctly 

stated the law, did not mislead the jurors about Hargrave’s 

possible penalties, or deny Hargrave the benefit of mitigating 

evidence. 

2. Jury instruction regarding mitigation

¶54 After consulting his attorney, family, and outside 

counsel, Hargrave made a considered decision not to present 

mitigation evidence during the penalty phase of his trial, 

although he chose to allocute. At the conclusion of the penalty 

phase, the judge instructed the jury, without objection, as 

follows: 

Both parties have had an opportunity to present 

additional evidence to you in the penalty phase. 

However, neither party was required to present 

additional evidence in the penalty phase. 

. . . . 
- 26 - 

. . . [T]he defendant had the opportunity to prove the 

existence of mitigating circumstances by a 

preponderance of the evidence. 

The burden of proving the existence of mitigation is 

on the defendant. 

¶55 Hargrave argues that these instructions improperly 

commented on the evidence and erroneously placed a burden on him 

to testify. Because Hargrave failed to object, we review his 

claim for fundamental error. Henderson, 210 Ariz. at 567 ¶ 19, 

115 P.3d at 607. 

¶56 There was no error. The instructions given correctly 

state the law. Moreover, the trial court also instructed the 

jurors that (a) they must not consider the defendant’s choice 

not to present mitigating evidence in their deliberations, 

(b) they “should give the defendant’s statement [in allocution] 

as much weight as [they] feel it deserves under all the facts 

and circumstances of this case,” and (c) they could “also 

consider any other relevant mitigation evidence presented during 

any phase of the trial, even if it was not proposed by either of 

the parties.” 

D. Post-Trial Issues 

1. Adequacy of the record on appeal

¶57 Hargrave argues that the trial record is inadequate to 

allow proper appellate review because the trial court held 

several unrecorded bench conferences throughout the proceedings. 
- 27 - 

¶58 During jury selection, the parties held two unrecorded 

conferences without objection from the defense. The State 

argues that, by failing to object to these conferences, Hargrave 

waived any claim of error. We disagree. Hargrave filed a 

pretrial motion requesting a record of all trial proceedings, 

which the court granted, and he requested a standing objection 

to unrecorded bench conferences. See State v. Sharp, 193 Ariz. 

414, 421 ¶ 22, 973 P.2d 1171, 1178 (1999). 

¶59 During trial, the court held several other unrecorded 

bench conferences, despite repeated defense objections. When 

defense counsel asked to maintain a standing objection, the 

court noted the objection, but observed that it lacked the 

equipment to record bench conferences. 

¶60 The court then began to make an after-the-fact record 

of each unrecorded conference and changed its practice regarding 

juror questions. The court’s staff would show counsel the 

jurors’ written questions, and if either party objected, the 

court would excuse the jury to allow counsel to state the 

reasons for any objections on the record. Hargrave argues that 

this practice forced him to object in front of the jury, in 

violation of Arizona Rule of Criminal Procedure 18.6(e), which 

requires that the court provide counsel an “opportunity . . . to 

object to such questions out of the presence of the jury.” 

Ariz. R. Crim. P. 18.6(e) (emphasis added). The trial court, in 
- 28 - 

response, invited counsel to “ask for an opportunity to make a 

record,” at which point he would excuse the jury so that counsel 

could state objections. Hargrave also notes other gaps in the 

record such as an unreported bench conference regarding an 

exhibit that the court subsequently admitted into evidence. 

¶61 The court record must be sufficiently complete to allow 

“adequate consideration of the errors assigned.” State v. 

Moore, 108 Ariz. 532, 534, 502 P.2d 1351, 1353 (1972) (citing 

Draper v. Washington, 372 U.S. 487 (1963)). We have disapproved 

of the practice of holding unrecorded bench conferences. State 

v. Bay, 150 Ariz. 112, 115, 722 P.2d 280, 283 (1986); State v. 

Fletcher, 149 Ariz. 187, 189, 717 P.2d 866, 868 (1986). 

Nevertheless, we have never required “the verbatim reporting of 

all bench conferences.” State v. Berndt, 138 Ariz. 41, 46, 672 

P.2d 1311, 1316 (1983). 

¶62 The procedures here, while not ideal, sufficiently 

protected Hargrave’s right to have a reviewable record. Despite 

failing to record all sidebar conferences, the trial judge did 

ensure that an adequate after-the-fact record was made of the 

discussions that occurred during each unrecorded conference and, 

as to each, he obtained defense counsel’s assent that he had 

adequately described the discussions. By this procedure, the 
- 29 - 

trial court maintained a sufficient record for appeal.9

2. Constitutionality of Arizona’s method of execution by 

lethal injection

¶63 Arizona administers the death penalty “by an 

intravenous injection of a substance or substances in a lethal 

quantity sufficient to cause death, under the supervision of the 

state department of corrections.” A.R.S. § 13-757(A) (2010). 

Hargrave argues that Arizona’s method of execution by lethal 

injection fails to provide procedural safeguards that ensure a 

humane execution and is unconstitutionally cruel and unusual. 

¶64 We have rejected the claim that Arizona’s method of 

execution by lethal injection automatically constitutes cruel 

and unusual punishment. See State v. Van Adams, 194 Ariz. 408, 

422 ¶ 55, 984 P.2d 16, 30 (1999). Defendants seeking to 

challenge the lethal injection protocol must file a petition 

pursuant to Arizona Rule of Criminal Procedure 32. Andriano, 

215 Ariz. at 510 n.9, ¶ 62, 161 P.3d at 553 n.9. 

III. INDEPENDENT REVIEW 

¶65 Because Hargrave’s crimes occurred before August 1, 

 

9 Hargrave’s counsel also argues that he did not waive his 

client’s presence at the unreported bench conferences. Although 

proceedings “held outside of the defendant’s presence are 

fraught with danger and should be conducted, if at all, only for 

valid reasons and only where the record clearly shows that the 

defendant has waived his right to be present,” State v. 

McCrimmon, 187 Ariz. 169, 171, 927 P.2d 1298, 1300 (1996), 

defense counsel acknowledged at one point below that the 

conferences Hargrave did not attend addressed only juror 

questions to which counsel did not object. 
- 30 - 

2002, we independently review the aggravating and mitigating 

circumstances and assess the propriety of the death sentences. 

A.R.S. § 13-755(A) (2010). In conducting independent review, 

“we consider the quality and the strength, not simply the 

number, of aggravating and mitigating factors.” State v. Roque, 

213 Ariz. 193, 230 ¶ 166, 141 P.3d 368, 405 (2006) (quoting 

State v. Greene, 192 Ariz. 431, 443 ¶ 60, 967 P.2d 106, 118 

(1998)). 

A. Aggravating Circumstances 

¶66 The jury found three aggravating factors: (1) Hargrave 

committed the crime in expectation of pecuniary gain, A.R.S. 

§ 13-751(F)(5), (2) the victims were murdered in an especially 

cruel manner, id. § 13-751(F)(6), and (3) multiple homicides 

were committed during the same criminal act, id. § 13-751(F)(8). 

1. A.R.S. § 13-751(F)(5): Pecuniary gain

¶67 A defendant convicted of first degree murder becomes 

“death eligible” if the state proves beyond a reasonable doubt 

that he “committed the offense as consideration for the receipt, 

or in expectation of the receipt, of anything of pecuniary 

value.” A.R.S. § 13-751(F)(5). Pecuniary gain motivates a 

crime “if the expectation of pecuniary gain is a motive, cause, 

or impetus for the murder and not merely a result of the 

murder.” State v. Lamar, 210 Ariz. 571, 574 ¶ 11, 115 P.3d 611, 

614 (2005) (quoting State v. Hyde, 186 Ariz. 252, 280, 921 P.2d 
- 31 - 

655, 683 (1996)). 

¶68 The evidence established the pecuniary gain aggravator 

beyond a reasonable doubt. Hargrave and Boggs entered the 

restaurant planning to steal money, cash was taken from two cash 

registers, an attempt to pry open a third register was 

unsuccessful, and credit cards and other items were taken from 

the victims. 

¶69 Citing State v. Milke, 177 Ariz. 118, 127, 865 P.2d 

779, 788 (1993), and State v. Styers, 177 Ariz. 104, 115, 865 

P.2d 765, 776 (1993), Hargrave argues that the State did not 

establish the pecuniary gain aggravator because conflicting 

inferences may be drawn from the evidence. The comparisons to 

Milke and Styers are unconvincing. In this case, unlike Milke 

and Styers, substantial evidence demonstrates Hargrave’s 

financial motivation for the murders. He maintained throughout 

his interrogation that robbery was the underlying purpose of the 

crime. The State’s allegation of racism as an additional motive 

does not detract from the pecuniary gain motive, as pecuniary 

gain need be only one of the motives for the murders. See State 

v. Boggs, 218 Ariz. 325, 340-41 ¶ 75, 185 P.3d 111, 126-27 

(2008). 

2. A.R.S. § 13-751(F)(6): Especially cruel

¶70 A defendant is eligible for the death penalty if he 

commits first degree murder in “an especially heinous, cruel, or 
- 32 - 

depraved manner.” A.R.S. § 13-751(F)(6). Only one of the three 

manners of killing need be shown to establish the aggravating 

circumstance. State v. Clark, 126 Ariz. 428, 436, 616 P.2d 888, 

896 (1980). Cruelty requires a showing 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. Trostle, 191 Ariz. 4, 18, 951 P.2d 869, 883 

(1997) (citations omitted). Mental anguish “includes a victim’s 

uncertainty about her ultimate fate.” State v. Kiles, 175 Ariz. 

358, 371, 857 P.2d 1212, 1225 (1993). 

¶71 Hargrave argues that the evidence does not prove the 

(F)(6) aggravator because he did not actively participate in the 

murders and was not present when Boggs shot the victims. 

Hargrave’s argument misstates the evidence and minimizes his 

participation. In his June 6 interrogation, Hargrave admitted 

that he held the freezer door open as the victims were ordered 

in at gunpoint, fired the murder weapon in the cooler just 

outside of the freezer, assisted in restraining the victims, and 

remained in the cooler while the shootings occurred. 

¶72 Hargrave compares his case to State v. Soto-Fong, 187 

Ariz. 186, 204, 928 P.2d 610, 628 (1996), in which we held that 

the state failed to prove the (F)(6) aggravating circumstance 

because the record did not establish the events leading up to 

the homicides. Unlike the situation in Soto-Fong, ample 
- 33 - 

evidence supports the finding of cruelty here: Hargrave 

admitted that he and Boggs forced the victims to lie down, empty 

their pockets, and later march into the freezer with their hands 

in the air. In the freezer, Boggs ordered the victims to turn 

around and shot them several times in rapid succession. In 

contrast to Soto-Fong, the record establishes that the victims 

here suffered uncertainty as to their ultimate fate. 

¶73 The State also proved beyond a reasonable doubt the 

physical cruelty of two of the murders because victims B.A. and 

F.J. did not die immediately, but struggled to get help. B.A. 

suffered two gunshot wounds to her back, but managed to crawl 

from the freezer to the back door of the restaurant. When 

police arrived, she was lying on the ground, moaning and begging 

for help. F.J. was shot three times in the back, but still 

managed to crawl to the phone, dial 911, and “utter[] a few 

words.” A trail of his blood leading from the freezer to the 

telephone indicated his consciousness after sustaining the 

gunshot wounds. This evidence establishes beyond a reasonable 

doubt that B.A. and F.J. suffered physical pain, that all three 

victims experienced mental suffering, and that Hargrave should 

have known that such suffering would occur. 

3. A.R.S. § 13-751(F)(8): Other homicides

¶74 To satisfy the A.R.S. § 13-751(F)(8) multiple homicides 

aggravating factor, the state must establish that a first degree 
- 34 - 

murder and at least one other homicide were “temporally, 

spatially, and motivationally related, taking place during one 

continuous course of criminal conduct.” Dann, 220 Ariz. at 364 

¶ 57, 207 P.3d at 617. 

¶75 The evidence established this aggravator beyond a 

reasonable doubt. The three victims were shot in close 

proximity and in rapid succession to facilitate an armed 

robbery. The murders therefore had a temporal, spatial, and 

motivational relationship that establishes the (F)(8) 

aggravator. 

B. Mitigating Circumstances 

¶76 Hargrave declined to present mitigating evidence at the 

penalty phase of the trial. He urges us to consider as 

mitigating both his decision to waive presentation of mitigation 

evidence and the statutory mitigating circumstances of youth, 

impaired mental condition, and relatively minor participation in 

the crimes. See A.R.S. § 13-751(G). Hargrave “must prove the 

existence of the mitigating circumstances by a preponderance of 

the evidence.” Id. § 13-751(C). 

1. Lack of mitigation at penalty phase

¶77 Hargrave contends that his decision not to present 

mitigation at trial prevents this Court from adequately 

reviewing his case. He relies on State v. Cornell, in which the 

record did not contain “all of the mitigating evidence and 
- 35 - 

circumstances that a reasonable investigation and preparation 

might have enabled counsel to present to the court and that 

might properly have been part of the record.” 179 Ariz. 314, 

335-36, 878 P.2d 1352, 1373-74 (1994). In Cornell, however, the 

defendant represented himself in the guilt phase of the trial, 

and because of his frequent invocation, then waiver, of his 

right to represent himself, his sentencing-phase counsel was not 

adequately prepared for the sentencing hearing. Id. at 335, 878 

P.2d at 1373. 

¶78 In contrast, Hargrave’s defense counsel represented him 

throughout all phases of the trial. The defense made a 

strategic decision not to present mitigation evidence and made a 

thorough record regarding the mitigation strategy at the penalty 

phase: “[T]his is a decision I have not come to lightly. I 

discussed it with . . . several other attorneys and two 

mitigation specialists, including my client [and] his family. 

Everybody is in[] total agreement about my position.” We accord 

defense counsel’s strategic decision to not present mitigation 

no weight and conclude that it does not impair our ability to 

independently review the death sentence. 

2. Age

¶79 Hargrave was twenty-one years old at the time of the 

murders. Although youth “is entitled to great weight as a 

mitigating circumstance,” State v. Gerlaugh, 144 Ariz. 449, 461, 
- 36 - 

698 P.2d 694, 706 (1985), we also consider the defendant’s 

maturity, judgment, intelligence, and involvement in the crime, 

State v. Herrera, 174 Ariz. 387, 398, 850 P.2d 100, 111 (1993). 

¶80 We discount age as a mitigating factor when the 

defendant had a significant criminal record or actively 

participated in the murders. State v. Poyson, 198 Ariz. 70, 81 

¶ 39, 7 P.3d 79, 90 (2000). Hargrave was substantially involved 

in the armed robbery leading to the murders. He helped plan the 

robbery, and his uniform and previous employment provided the 

means to enter the restaurant. Once inside, Hargrave assisted 

Boggs in restraining the victims and moving them to the freezer 

where they were eventually shot, and Hargrave fired the murder 

weapon at least once. 

¶81 Hargrave also had a significant juvenile criminal 

record. By the time he was seventeen, he had already been 

adjudicated regarding eleven complaints, including charges for 

aggravated assault, burglary, and theft. We therefore give 

little weight to Hargrave’s age as a mitigating circumstance. 

3. Minor participation

¶82 A mitigating circumstance exists if a “defendant was 

legally accountable for the conduct of another . . . but his 

participation was relatively minor, although not so minor as to 

constitute a defense to prosecution.” A.R.S. § 13-751(G)(3). 

Hargrave argues that he was not the shooter and did not intend 
- 37 - 

to harm any of the victims when he entered the restaurant. The 

evidence shows, however, that Hargrave was not a minor 

participant. He helped plan and execute the robbery, using his 

work uniform to gain entry to the restaurant, even though Boggs 

had provided advance notice that he was prepared to shoot the 

employees “if it came down to it.” Hargrave has not established 

by a preponderance of the evidence the mitigating circumstance 

of minor participation. See Bearup, 221 Ariz. at 175 ¶ 63, 211 

P.3d at 696 (finding defendant a major participant even though 

he did not strike the death blows). 

4. Mental impairment

¶83 Hargrave argues that his “capacity to appreciate the 

wrongfulness of his conduct or to conform his conduct to the 

requirements of law was significantly impaired, but not so 

impaired as to constitute a defense to prosecution.” A.R.S. 

§ 13-751(G)(1) (listing statutory mitigating circumstance of 

impaired mental health). He asks us to consider that the court 

originally found him incompetent to stand trial and committed 

him to the Arizona State Hospital to restore his competency. 

After Dr. Jason Lewis, a psychologist for the Restoration to 

Competency Program, concluded that Hargrave was competent to 

stand trial and had “malingered symptoms of psychosis and 

ignorance of the legal system,” the trial court found that 

Hargrave had been restored to competency.
- 38 - 

¶84 In various examinations, Hargrave reported different 

information regarding his educational background and mental 

health history. He claimed to have attended college in some 

interviews; in others, he said he had only a GED-level 

education. In some interviews, he claimed to have auditory 

hallucinations, but did not report this symptom in other 

interviews. Dr. Lewis observed that “[t]he gross differences in 

the . . . reports of symptoms and history are suggestive of 

malingering.” Indeed, all four of the mental health 

professionals who evaluated Hargrave found actual malingering or 

the possibility of malingering.

¶85 Thus, even if we were to consider this mental health 

evidence, we do not find it sufficiently mitigating to call for 

leniency. 

C. Propriety of the Death Sentences 

¶86 The State established the (F)(5) “pecuniary gain” 

aggravator, the cruelty prong of the (F)(6) “cruel, heinous, or 

depraved” aggravator, and the (F)(8) “multiple murders” 

aggravator, which receives “extraordinary weight.” State v. 

Hampton, 213 Ariz. 167, 185 ¶ 90, 140 P.3d 950, 968 (2006). 

Under the circumstances of this case, we do not find the 

mitigating evidence sufficiently substantial to warrant leniency 

and affirm the three death sentences imposed by the superior 

court. See A.R.S. § 13-755(B). 
- 39 - 

IV. CONCLUSION 

¶87 For the foregoing reasons, we affirm Hargrave’s 

convictions and death sentences, and remand for resentencing on 

the burglary conviction. 

 _______________________________________ 

 Rebecca White Berch, Chief Justice 

CONCURRING: 

_____________________________________ 

Andrew D. Hurwitz, Vice Chief Justice 

_______________________________________ 

Michael D. Ryan, Justice 

_______________________________________ 

W. Scott Bales, Justice 

______________________________________ 

A. John Pelander, Justice 
- 40 - 

APPENDIX10

Issues Raised to Avoid Federal Preclusion 

 For purposes of federal review, Hargrave raises the 

following fifteen challenges to the constitutionality of 

Arizona’s death penalty scheme to avoid preclusion: 

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

consider all relevant mitigating evidence in deciding whether to 

give the death penalty. See Woodson, 428 U.S. 280, 304. The 

failure to allow this jury to consider and give effect to all 

mitigating evidence in this case by limiting its consideration 

to that proven by a preponderance of the evidence is 

unconstitutional. U.S. Const. Amends. VIII, XIV; Contra State 

v. McGill, 213 Ariz. 147, 161, ¶ 54, 140 P.3d 930, 944 (2006). 

 2. Aggravating factors under A.R.S. § 13-703(F) are 

elements of capital murder and must be alleged in an indictment 

and screened for probable cause. The State’s failure to allege 

an element of a charged offense in the grand jury indictment — 

the aggravating factors making the Defendant death eligible — is 

a fundamental defect that renders the indictment 

constitutionally defective under U.S. Const. Amends. V, VIII, 

XIV; Ariz. Const. Art. II, §§ 1, 4, 13, 15, 23, 24. See United 

States v. Chesney, 10 F.3d 641 (9th Cir., 1993); Apprendi v. New 

Jersey, 530 U.S. 466 (2000). Contra McKaney v. Foreman, 209 

Ariz. 268, 100 P.3d 18 (2004). 

 3. Ex post facto laws are unconstitutional and 

prohibited. U.S. Const. Art. 1, § 10, Clause 1, Ariz. Const. 

Art. II, § 25; State v. Noble, 171 Ariz. 171, 173, 829 P.2d 

1217, 1219 (1992). Application of the new death penalty to 

Defendant constitutes an impermissible ex post facto application 

of a new law. Rejected in Ring III, 204 Ariz. at 547, ¶ 23. 

 4. Allowing victim impact evidence at the penalty phase 

violated Defendant’s constitutional rights. U.S. Const. Amends. 

V, VI, VIII, XIV; Ariz. Const. Art. II, §§ 1, 4, 13, 15, 23, 24. 

Contra Lynn v. Reinstein, 205 Ariz. 186, 68 P.3d 412 (2003); 

State ex rel. Thomas v. Foreman, 211 Ariz. 153, 118 P.3d 1117 

(App. 2005). 

 

10 The Appendix is taken verbatim from Hargrave’s list of 

issues raised to avoid preclusion. 
- 41 - 

 5. 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. Instead, 

Arizona’s death penalty statute mandates defendants to prove 

their lives should be spared violating U.S. Const. Amends. V, 

VI, VIII, XIV; Ariz. Const. Art. II, § 15; Contra State v. 

Pandeli, 200 Ariz. 365, at 382, ¶ 92, 26 P.3d 1136, at 1153 

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

 6. 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. A.R.S. § 13-703.01 is unconstitutional because 

it provides no objective standards to guide the jury in weighing 

the aggravating and mitigating circumstances. The broad scope 

of Arizona’s aggravating factors encompasses nearly anyone 

involved in a murder, violating U.S. Const. Amends. VIII, XIV; 

Ariz. Const. Art. II, § 15; Contra Pandeli, 200 Ariz. 365, 382, 

¶ 90. 

 7. The trial court improperly omitted from the penalty 

phase instructions words to the effect that jurors may consider 

mercy or sympathy in deciding the value to assign the mitigation 

evidence. Instead it told them to assign whatever value the 

jury deemed appropriate and not to be influenced by mere 

“sentiment” or by prejudice in determining these facts. 

(I,378A). This error limited the mitigation the jury could 

consider violating U.S. Const. Amends. V, VI, VIII, XIV; Ariz. 

Const. Art. II, §§ 1, 4, 15, 23, 24; Contra State v. Carreon, 

210 Ariz. 54, 70-72, ¶¶ 81-87, 107 P.3d 900, 916-918 (2005). 

 8. The death penalty is cruel and unusual under any 

circumstances and violates U.S. Const. Amends. VIII, XIV; Ariz. 

Const. Art. II, § 15; Contra State v. Harrod, 200 Ariz. 309, 

320, ¶ 59, 26 P.3d 492, 503 (2001), vacated on other grounds, 

536 U.S. 953 (2002). 

 9. The death penalty is irrational and arbitrarily 

imposed, serving no purpose not adequately addressed by life in 

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

under the Fourteenth Amendment to the United States Constitution 

and Article 2, §§ 1 and 4 of the Arizona Constitution. Contra 

Pandeli, 200 Ariz. 365, 382, ¶ 88. See also State v. Beaty, 158 

Ariz. 232, 247, 762 P.2d 519, 534 (1988). 
- 42 - 

 10. The prosecutor’s discretion to seek the death penalty 

has no standards violating U.S. Const. Amends. VIII, XIV; Ariz. 

Const. Art. II, §§ 1, 4, 15. Contra Sansing, 200 Ariz. 347, 

361, ¶ 46, vacated on other grounds by Ring II, 536 U.S. at 584. 

 11. Arizona’s death penalty is applied so as to 

discriminate against poor, young, and male defendants in 

violation of Ariz. Const. Art. II, §§ 1, 4, 13. Contra Sansing, 

200 Ariz. at 361, ¶ 46. The U.S. Supreme Court recognizes, 

“drawing the line at 18 is subject to the objections always 

raised against categorical rules.” Roper v. Simmons, 543 U.S. 

551, 554 (2005). The Roper Court recognized three differences 

between juveniles and adults that rendered “suspect any 

conclusion that a juvenile falls among the worst offenders” that 

the death penalty should be reserved for. 543 U.S. at 570. 

Summarily, finding that a juvenile is no longer beset by those 

same differences simply because he has reached 18 years 

disregards “the concerns expressed in Furman that the penalty of 

death not be imposed in an arbitrary or capricious manner.” See 

Gregg, 428 U.S. 153. Because “the line at 18” is arbitrary and 

capricious, execution by lethal injection of 21-year-old 

Christopher is cruel and unusual punishment that is 

fundamentally unfair violating U.S. Const. Amends. V, VIII, XIV; 

Ariz. Const. Art. II §§ 4, 15, 24. 

 12. Proportionality review serves to identify which cases 

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

of defendants who are eligible for death. The absence of 

proportionality review of death sentences in Arizona denies 

capital defendants due process of law and equal protection 

amounting to cruel and unusual punishment in violation of U.S. 

Const. Amends. V, VIII, XIV; Ariz. Const. Art. II, § 15; Contra 

Harrod, 200 Ariz. at 320, ¶ 65. 

 13. Arizona’s death penalty unconstitutionally requires 

imposition of the death penalty whenever at least one 

aggravating circumstance and no mitigating circumstances exist, 

in violation of t[sic] U.S. Const. Amends. VIII, XIV; Ariz. 

Const. Art. II, § 15. Arizona’s death penalty law cannot 

constitutionally presume that death is the appropriate default 

sentence. Contra State v. Miles, 186 Ariz. 10, 19, 918 P.2d 

1028, 1037 (1996). 

 14. Arizona’s death penalty scheme is unconstitutional 

because it does not require the sentencer to find beyond a 

reasonable doubt that aggravating circumstances outweigh the 

accumulated mitigating circumstances, violating U.S. Const. 
- 43 - 

Amends. V, VIII, XIV; Ariz. Const. Art. II §§ 4, 15. State v. 

Poyson, 198 Ariz. 70, 83, 7 P.3d 79, 92 (2000). 

 15. The death penalty is the irreversible denial of human 

rights. The Eighth Amendment “draw’[s] [sic] its meaning from 

evolving standards of decency that mark the progress of a 

maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958); see 

also, Roper, 543 U.S. 551. 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 

violates the Universal Declaration of Human Rights. 

Christopher’s death sentence not only violates the Eighth and 

Fourteenth Amendments of the U.S. Constitution but international 

law as the majority of civilized nations bar the death penalty. 

This Court previously held that the death penalty is not 

unconstitutional or violative of international law. State v. 

Ross, 180 Ariz. 598, 602, 886 P.2d 1354, 1358 (1994). Hargrave 

disagrees.