1 

SUPREME COURT OF ARIZONA

En Banc

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-07-0438-AP 

 Appellee, ) 

 ) Maricopa County 

 v. ) Superior Court 

 ) No. CR2002-016160A 

ALFREDO LUCERO GARCIA, ) 

 ) 

 Appellant. ) 

 ) O P I N I O N

__________________________________) 

Appeal from the Superior Court in Maricopa County

The Honorable John R. Ditsworth, Judge

AFFIRMED

________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix

 By Kent E. Cattani, Chief Counsel 

 Criminal Appeals/Capital Litigation Section

 Amy Pignatella Cain, Assistant Attorney General 

 Jeffrey A. Zick, Assistant Attorney General

Attorneys for State of Arizona

DAVID GOLDBERG, ATTORNEY AT LAW Fort Collins, CO

 By David Goldberg

Attorney for Alfredo Lucero Garcia

________________________________________________________________

B A L E S, Justice 

¶1 Alfredo Lucero Garcia was convicted of armed robbery 

and first degree murder and sentenced to death for the murder. 

We have jurisdiction over this mandatory appeal under Article 6, 

Section 5(3) of the Arizona Constitution and Arizona Revised 

Statutes (“A.R.S.”) section 13-4031 (2001). 
2 

FACTUAL AND PROCEDURAL BACKGROUND1

¶2 On the afternoon of May 21, 2002, Daniel Anderson was 

tending bar at Harley’s Club 155. Steven Johnson, the bar’s 

owner, was talking with Anderson. Garcia entered and asked to 

use the restroom; they directed him toward the rear of the bar, 

where there was also a back door. Shortly thereafter, Johnson 

went to the rear of the bar and began fixing a broken ATM. 

Anderson followed and they continued talking. Johnson kneeled 

beside the ATM with a stack of $20 bills. 

¶3 Garcia suddenly burst through the back door and 

shouted “drop the money.” Directly behind Garcia was James 

Taylor Sheffield, who was crouching and carrying a gun. Johnson 

stood, threw the $20 bills on the ground, and said “just get 

out, get out of here.” Garcia pushed Johnson against the wall. 

Anderson stood “frozen” until Johnson looked at him and said 

“get out of here.” Anderson ran into the bar’s office, pushed 

an alarm button, and then escaped. He heard a gunshot before 

entering the office and heard a scuffling sound followed by a 

second gunshot as he fled. 

¶4 Anderson went to another bar and called the police. 

                                                           

1

 Except in our independent review of the death sentence, we 

view the facts in the light most favorable to sustaining the 

jury’s verdict. See State v. Garza, 216 Ariz. 56, 61 n.1, 163 

P.3d 1006, 1011 n.1 (2007).
3 

Upon arriving at Harley’s, police found Johnson’s body outside 

the back door and $20 bills scattered nearby. Police also 

viewed video recordings from bus security cameras on the 

afternoon of Johnson’s murder. The recordings showed Garcia and 

Sheffield boarding a bus near the crime scene and later getting 

off at the same stop. The investigation ultimately led police 

to arrest Garcia on June 1 and Sheffield on June 6, 2002. 

¶5 Garcia and Sheffield were each indicted on one count 

of first degree murder and one count of armed robbery; their 

trials were later severed. On November 13, 2007, a jury found 

Garcia guilty on both counts. After learning of possible juror 

misconduct, the trial court empanelled a new jury for the 

aggravation and penalty phases. The second jury found that 

Garcia was a major participant in the felony and was recklessly 

indifferent to Johnson’s life. This jury also found two 

aggravators: Garcia had been previously convicted of a serious 

offense, see A.R.S. § 13-751(F)(2) (Supp. 2009); and he had 

committed first degree murder for pecuniary gain, see A.R.S. § 

13-751(F)(5).2

 Concluding there was no mitigation sufficiently 

substantial to call for leniency, the jury determined that 

                                                           

2

 Arizona recently renumbered its capital sentencing statutes 

to A.R.S. §§ 13-751 to -759 (Supp. 2009). 2008 Ariz. Sess. 

Laws, ch. 301, §§ 26, 38-41 (2d Reg. Sess.). This opinion cites 

the current version of the statutes. 
4 

Garcia should be sentenced to death. 

DISCUSSION 

I. Suggestive Identification 

¶6 Garcia challenges the trial court’s denial of his 

motion to suppress Anderson’s pretrial and in-court 

identifications. Cf. State v. Dessureault, 104 Ariz. 380, 384, 

453 P.2d 951, 955 (1969) (outlining procedures for hearing). In 

our review, we consider only the evidence presented at the 

suppression hearing and defer to the trial court’s factual 

findings unless clearly erroneous. State v. Moore, 222 Ariz. 1, 

7 ¶ 17, 213 P.3d 150, 156 (2009). The “ultimate question of the 

constitutionality of a pretrial identification is, however, a 

mixed question of law and fact,” which we review de novo. Id. 

¶7 On the day of the shooting, Anderson gave Detective 

Sandra Rodriguez a detailed description of the first man to 

enter the bar. Three days later, however, Anderson did not 

identify Garcia when shown a photographic lineup. That evening, 

the police department gave local TV stations copies of pictures 

from the bus security camera showing Garcia and Sheffield. 

Neither had yet been apprehended. The police contacted Anderson 

and other witnesses and told them to avoid watching any 

television coverage of the crime. Anderson, however, later saw 

the bus photographs in a reward flier that was neither created 

nor distributed by the police. 
5 

¶8 On August 31, 2007, the trial court held a Dessureault

hearing at which Anderson identified Garcia as one of the men 

who had entered Harley’s. In denying Garcia’s motion to 

suppress this identification and any prospective in-court 

identification, the trial court concluded that the photographic 

lineup was not unduly suggestive and that the reward flier had 

not impermissibly tainted Anderson’s identifications because the 

police were not responsible for the flier. 

¶9 The trial court did not err in denying Garcia’s motion 

to suppress. Garcia does not challenge the trial court’s 

determination that the photographic lineup was not unduly 

suggestive. With regard to the flier, the trial court properly 

first considered whether the State was sufficiently responsible 

for the reward flier to trigger due process protection. State 

v. Williams, 166 Ariz. 132, 137, 800 P.2d 1240, 1245 (1987); see 

also State v. Prion, 203 Ariz. 157, 160 ¶ 14, 52 P.3d 189, 192 

(2002). The “due process clause does not preclude every 

identification that is arguably unreliable; it precludes 

identification testimony procured by the state through unduly 

suggestive pretrial procedures.” Williams, 166 Ariz. at 137, 

800 P.2d at 1245. 

¶10 Detective Rodriguez unequivocally testified that the 

police were not responsible for the reward flier. The flier was 

not introduced at the hearing, nor did any testimony identify 
6 

who created the flier; however, Detective Rodriguez speculated 

that whoever created the flier may have obtained the bus 

photographs from newspapers or online sources after the police 

released them to local TV stations. 

¶11 That some unidentified third party may have used 

police-released photographs to create and distribute the flier 

does not constitute state action. See Prion, 203 Ariz. at 160 

¶ 15, 52 P.3d at 192 (holding that photograph of defendant on 

cover of periodical did not trigger due process concerns because 

not the result of state action); State v. Nordstrom, 200 Ariz. 

229, 241 ¶ 24, 25 P.3d 717, 729 (2001) (holding that when “the 

media, rather than the State, allegedly tainted [the witness’s] 

identification of the defendant,” the “state action requirement 

of the Fourteenth Amendment [could not] be established,” making 

“due process analysis . . . inapposite”). 

¶12 Garcia argues that even in the absence of state 

action, the trial court should have analyzed the reliability of 

Anderson’s identification under State v. Atwood, 171 Ariz. 576, 

603, 832 P.2d 593, 620 (1992) (stating that “unnecessarily 

suggestive government identification procedures are [not] the 

sine qua non of due process concerns”). We, however, explicitly 

rejected this argument in Nordstrom, 200 Ariz. at 241 ¶ 25, 25 

P.3d at 729 (disapproving Atwood in this respect and reiterating 

that “[o]nly identification evidence allegedly tainted by state
7 

action must meet . . . reliability standard[s]”). 

II. Jury Selection Issues 

A. Case-specific Questioning 

¶13 Garcia argues that by allowing the State to ask 

prospective jurors questions that reflected case-specific facts, 

the trial court allowed the State to pack the jury with jurors 

who would impose the death penalty in his case. We “review a 

trial court’s rulings on voir dire of prospective jurors for 

abuse of discretion.” State v. Glassel, 211 Ariz. 33, 45 ¶ 36, 

116 P.3d 1193, 1205 (2005). 

¶14 During voir dire for the first jury, the State said 

that there would be a question whether Garcia was the actual 

shooter and asked some prospective jurors if they could consider 

imposing a death sentence on a non-shooter. After the trial 

court excluded two prospective jurors who indicated that they 

might not be able to consider a death sentence in these 

circumstances, Garcia moved to preclude the State from asking 

jurors if the specific facts of Garcia’s case would prevent them 

from imposing death. Although the State said it would ask 

questions that did not directly involve the facts of the case, 

it subsequently presented prospective jurors with several 

hypothetical situations that closely mirrored the facts of 

Garcia’s case. 

¶15 In reviewing the qualification of jurors in capital 
8 

cases, we have rejected efforts by defense counsel to elicit how 

prospective jurors will vote based on specific facts. See State 

v. Smith, 215 Ariz. 221, 231 ¶ 42, 159 P.3d 531, 541 (2007) 

(concluding that trial court did not abuse its discretion by 

refusing defendant’s request to ask jurors if they would 

automatically impose death upon finding specific aggravators); 

State v. Johnson, 212 Ariz. 425, 434-35 ¶¶ 29-35, 133 P.3d 735, 

744-45 (2006) (concluding that trial court did not abuse its 

discretion by refusing defendant’s request to ask jurors whether 

they regarded specific factors as mitigation). Garcia argues 

that the trial court here impermissibly allowed the State to 

question jurors in a manner contrary to Smith and Johnson. 

¶16 The trial court did not abuse its discretion in 

allowing the State to ask prospective jurors if they could 

consider imposing a death sentence if a defendant had not 

actually shot the victim. Given the nature of this case, these 

questions properly probed beyond abstract juror views on capital 

punishment. See United States v. Fell, 372 F. Supp. 2d 766, 769 

(D. Vt. 2005) (noting that in some cases, “highly general 

questions may not be adequate to detect specific forms of juror 

bias,” therefore, “the parties should be allowed to ask more 

specific questions to investigate potential bias”). And, unlike 

the rejected questions in Smith and Johnson, the State never 

asked jurors to precommit to a specific position; rather, it 
9 

merely asked jurors if they could consider the death penalty in 

circumstances in which it is permitted under Arizona law. Cf. 

United States v. Johnson, 366 F. Supp. 2d 822, 845 (N.D. Iowa 

2005) (stating that a juror’s willingness to consider life or 

death “commits a juror to no other position than fair 

consideration of the appropriate penalty in light of all of the 

facts and the court’s instructions”). 

B. Dismissal of Juror O. 

¶17 Garcia also argues that the trial court, over his 

objection, erroneously struck a “life-scrupled” juror because of 

his views on the death penalty. “We review a trial court’s 

decision . . . to strike jurors for cause for abuse of 

discretion.” Glassel, 211 Ariz. at 47 ¶ 46, 116 P.3d at 1207. 

¶18 During defense counsel’s questions, Juror O. stated 

that “I don’t know if I can make the decision to vote for the 

death penalty. I don’t know if I can say yes to death. I can’t 

— I don’t know if I can do that. I am very conflicted about 

it.” After further questioning, Juror O. said that he thought 

he could vote for death “if the State meets its burden beyond a 

reasonable doubt regarding the law and the facts.” However, 

when questioned by the State, Juror O. later stated that he was 

not sure he could vote for death. 

¶19 The trial court did not abuse its discretion in 

striking Juror O. Although Juror O. said at one point that he 
10 

could follow the law, he also testified that he was “not 

positive” that he could vote for death, would “heavily lean” in 

favor of life, and that it would be “almost impossible” for him 

to vote for death. “Even if a juror is sincere in his promises 

to uphold the law, a judge may still reasonably find a juror’s 

equivocation ‘about whether he would take his personal biases 

into the jury room’ sufficient to substantially impair his 

duties as a juror, allowing a strike for cause.” State v. 

Ellison, 213 Ariz. 116, 137 ¶ 89, 140 P.3d 899, 920 (2006) 

(quoting Glassel, 211 Ariz. at 48 ¶ 49, 116 P.3d at 1208). 

Here, the trial court could have reasonably concluded that Juror 

O.’s performance would be substantially impaired by his feelings 

about capital punishment. See State v. Montaño, 204 Ariz. 413, 

422-23 ¶¶ 38-39, 65 P.3d 61, 70-71 (2003). 

C. Batson Challenge 

¶20 Garcia argues that the trial court erred during 

selection of the second jury by denying his Batson challenge to 

the State’s strike of Juror R., a woman with a Hispanic surname 

who had limited education and difficulty reading English. 

¶21 The exclusion of a potential juror on the basis of 

race violates the Equal Protection Clause of the Fourteenth 

Amendment. Batson v. Kentucky, 476 U.S. 79, 89 (1986). Batson 

challenges are subject to a three-step analysis: “(1) the party 

challenging the strike must make a prima facie showing of 
11 

discrimination; (2) the striking party must provide a raceneutral 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). “[T]he ultimate burden of 

persuasion regarding racial motivation rests with, and never 

shifts from, the opponent of the strike.” Purkett v. Elem, 514 

U.S. 765, 768 (1995). 

¶22 “We review a trial court’s decision regarding the 

State’s motives for a peremptory strike for clear error.” State 

v. Roque, 213 Ariz. 193, 203 ¶ 12, 141 P.3d 368, 378 (2006). We 

defer to the trial court’s ruling, which is based “largely upon 

an assessment of the prosecutor’s credibility.” Id. (quoting 

Cañez, 202 Ariz. at 147 ¶ 28, 42 P.3d at 578). 

¶23 During voir dire, the State twice moved to strike 

Juror R. for cause on the ground that she could not read 

English. The trial court denied both strikes, stating that it 

could accommodate Juror R. and she could be a productive juror. 

When the State later peremptorily struck Juror R., defense 

counsel made a Batson challenge. 

¶24 The State responded by noting that Juror R. lacked a 

high school education; had been at her current job for only a 

year, indicating a lack of stability in the community; had 
12 

problems understanding the juror questionnaire and what was 

being said in court; and could not read. The trial court denied 

the Batson challenge. After the final jury members were 

announced, the trial court noted that two or three of the 

selected jurors appeared to have Hispanic names. 

¶25 The State argues that Garcia failed to make a prima 

facie showing of discrimination, but this issue is moot. The 

State offered a race-neutral explanation without the trial court 

making, or the State requesting, an explicit finding on the 

issue of prima facie discrimination. “Once [the State] has 

offered a race-neutral explanation for the peremptory challenges 

and the trial court has ruled on the ultimate question of 

intentional discrimination, the preliminary issue of whether 

[Garcia] had made a prima facie showing becomes moot.” 

Hernandez v. New York, 500 U.S. 352, 359 (1991). 

¶26 The State, however, satisfied the second step of the 

Batson analysis, which focuses solely on the “facial validity of 

the [State]’s explanation.” Id. The explanation given need 

only be race-neutral or “based on something other than the race 

of the juror.” Id. Here, the State offered several facially 

valid, race-neutral explanations for striking Juror R. 

¶27 The third step in the Batson analysis is “fact 

intensive and . . . the trial court’s finding at this step is 

due much deference.” State v. Newell, 212 Ariz. 389, 401 ¶ 54, 
13 

132 P.3d 833, 845 (2006). We will not second-guess the trial 

court’s credibility determination, especially when, as here, 

both parties agree that at least one juror with a Hispanic 

surname was ultimately chosen. See Roque, 213 Ariz. at 204 ¶ 

15, 141 P.3d at 379 (noting that “[a]lthough not dispositive, 

the fact that the state accepted other [minority] jurors on the 

venire is indicative of a nondiscriminatory motive”). 

III. Mistrial after Juror Misconduct 

¶28 The trial court ordered a mistrial of the aggravation 

phase after a juror disclosed a potential incident of juror 

misconduct on the first day of that phase of the trial. Garcia 

now argues that the trial court erred by failing to sua sponte

declare a mistrial of the guilt phase. We review a trial 

court’s ruling on alleged juror misconduct for abuse of 

discretion. State v. Dann, 220 Ariz. 351, 370 ¶ 106, 207 P.3d 

604, 623 (2009). Moreover, because Garcia failed to object 

below, he must establish that any error was fundamental in 

nature and resulted in prejudice. State v. Henderson, 210 Ariz. 

561, 567 ¶¶ 19-20, 115 P.3d 601, 607 (2005). 

¶29 On the first day of the aggravation phase, Juror P. 

told the bailiff that she thought members of Garcia’s family had 

improperly contacted her. She later testified that a Hispanic 

male had come to her house two or three weeks earlier and asked 

if she wanted to have weeds pulled from her yard; she said no 
14 

and he left. Juror P. said that a very similar-looking Hispanic 

male appeared at her house the day before the aggravation phase 

began and asked if she wanted to sell her SUV. During this 

conversation, another SUV with a woman and young child inside 

was parked in front of Juror P.’s house. Juror P. told the man 

that she would not sell her SUV and asked him to leave. As he 

walked away, Juror P. heard the woman in the SUV say something 

about “Jeffrey Dalmer [sic] and eating people or something.” On 

the first day of the aggravation phase, Juror P. noticed a woman 

sitting on Garcia’s side of the audience who looked very similar 

to the woman she had seen in the SUV. At lunch, Juror P. told 

other jurors about both incidents. 

¶30 The trial court interviewed Juror P. and the jurors 

with whom she spoke. Juror P. said that the first incident did 

not affect her deliberations in the guilt phase of the trial and 

that she made a connection to Garcia only when she saw the woman 

in court. She confirmed that she had not mentioned either 

incident to the other jurors until that day. After the 

interviews concluded, defense counsel moved for a mistrial of 

the aggravation phase, which the trial court granted. 

¶31 The trial court did not err in failing to sua sponte 

also grant a mistrial for the already completed guilt phase. 

When an issue of potential juror misconduct arises, “the court’s 

response should be ‘commensurate with the severity of the threat 
15 

posed.’” State v. Miller, 178 Ariz. 555, 557, 875 P.2d 788, 790 

(1994) (quoting United States v. Thomas, 463 F.2d 1061, 1063 

(7th Cir. 1972)). Defense counsel specifically stated that he 

was seeking only a mistrial of the aggravation phase and not the 

guilt phase. Moreover, the trial court’s decision to grant a 

mistrial as to the aggravation phase alone was sufficient in 

light of the limited nature of the potential prejudice. The 

risk of prejudice arose only after Juror P. connected the 

incidents to Garcia and told other jurors about them, possibly 

tainting their perceptions, all of which occurred after the 

guilt phase. 

IV. Admission of Prior Act Evidence 

¶32 Garcia challenges the trial court’s admission, during 

the aggravation phase, of evidence regarding his having 

committed an armed robbery in April 2002 at RNR Stix bar. This 

evidence, he argues, impermissibly suggested that he was a 

violent person deserving of execution. We review a trial 

court’s evidentiary rulings for abuse of discretion. State v. 

McGill, 213 Ariz. 147, 156 ¶ 40, 140 P.3d 930, 939 (2006). 

¶33 Evidence of a defendant’s prior acts is inadmissible 

to prove action in conformity with a character trait. Ariz. R. 

Evid. 404(b). It may, however, be admitted for other purposes, 

such as proving “motive, opportunity, intent, preparation, plan, 

knowledge, identity, or absence of mistake or accident.” Id. 
16 

Before prior act evidence may be presented to a jury, the trial 

court must find “clear and convincing evidence that the prior 

. . . act[] [was] committed and that the defendant committed the 

act[].” State v. Terrazas, 189 Ariz. 580, 582, 944 P.2d 1194, 

1196 (1997). The trial court must also find that the prior act 

evidence is relevant and that its probative value is not 

substantially outweighed by unfair prejudice, and the court must 

give an appropriate limiting instruction upon the defendant’s 

request. State v. Anthony, 218 Ariz. 439, 444 ¶ 33, 189 P.3d 

366, 371 (2008). 

¶34 Here, the State sought to introduce evidence during 

the aggravation phase that, five weeks before the Harley’s 

robbery, Garcia and Sheffield were involved in another armed 

robbery and shooting at RNR Stix. This evidence, the State 

argued, was relevant not only to prove that Garcia had been 

previously convicted of a serious offense, an aggravator under 

A.R.S. § 13-751(F)(2), but also to establish his death 

eligibility. Specifically, because Garcia was charged with 

felony murder, the State was required to prove that he had been 

a major participant and had acted “with reckless indifference to 

human life” in the later robbery at Harley’s. Tison v. Arizona, 

481 U.S. 137, 158 (1987). Over Garcia’s objection, the State 

introduced evidence related to the RNR Stix robbery that 

included (1) documents and testimony reflecting Garcia’s 
17 

conviction for an armed robbery, (2) testimony from the 

investigating detective, (3) testimony from a ballistics expert, 

(4) testimony from the shooting victim, and (5) surveillance 

video footage of the incident. 

¶35 At Garcia’s request, the court gave the jury the 

following limiting instruction before admitting the evidence: 

Evidence of other crimes is about to be presented for 

purposes of proving Mr. Garcia’s degree of 

participation and individual culpability as it relates 

to his individual motive, opportunity, intent, 

preparation, plan, knowledge, identity and absence of 

mistake or accident as to the crime of felony murder 

involving the death of Mr. Johnson. You may consider 

these acts only if you find that they are going to be 

proven by clear and convincing evidence that the 

defendant committed these acts. They are not to be 

used to prove his bad character or a bad character 

trait. What they’re used for is . . . to make a 

decision about his level of individual participation 

and his individual culpability.

¶36 We briefly summarize the evidence admitted regarding 

the robbery at RNR Stix. Court documents indicated that Garcia 

had been convicted of an offense that occurred on April 15, 

2002; other documents showed that Sheffield had pleaded guilty 

to attempted murder in connection with an April 15, 2002 

incident. These documents alone, however, did not establish 

that the two men were involved in the same incident. The State 

called the brother of the victim of the Harley’s robbery, who 

had attended the RNR Stix court proceedings, to testify that 
18 

both Garcia’s verdict and Sheffield’s plea concerned the same 

events. 

¶37 The investigating detective testified that he found a 

shell casing at the RNR Stix crime scene, and the State’s 

ballistics expert opined that this casing and three casings 

recovered from the Harley’s crime scene were shot from the same 

weapon. The trial court also admitted surveillance video 

footage and testimony by the victim of the RNR Stix robbery. 

The victim testified that on April 15, 2002, two men entered RNR 

Stix and one of them shot him. When the victim tried to get up, 

the non-shooter — whom the victim identified as Garcia — knocked 

him to the ground, kicked him, took his wallet, and slammed him 

into a pool table. The State then played the bar’s surveillance 

videotapes for the jury while the victim described what was 

happening. The grainy video showed Garcia taking the victim’s 

wallet while hitting and kicking him. 

¶38 The trial court did not abuse its discretion in 

admitting the evidence regarding the RNR Stix robbery. The 

documents reflecting Garcia’s conviction for that robbery were 

admissible to establish the (F)(2) prior conviction aggravator. 

These documents and the other RNR Stix evidence were also 

admissible to establish that Garcia acted with “reckless 

indifference” to human life at the subsequent robbery at 

Harley’s. The evidence showed that five weeks before the 
19 

Harley’s robbery, Garcia had participated in another armed 

robbery in which Sheffield shot someone. The RNR Stix victim’s 

testimony and the video footage show that Garcia did not express 

surprise or abandon the robbery after Sheffield shot the victim. 

That Garcia would, within weeks, lead Sheffield into Harley’s to 

commit another robbery with the same weapon is highly probative 

of Garcia’s knowledge that the second robbery posed a grave risk 

of death to others. 

¶39 The trial court here reasonably concluded that the 

probative value of the evidence was not substantially outweighed 

by any unfair prejudice and gave the jury a limiting instruction 

regarding the purposes for which it could be considered. The 

trial court did not err in admitting this evidence. 

V. Enmund/Tison Finding in Aggravation Phase 

¶40 In November 2005, the assigned judge granted Garcia’s 

motion to have the Enmund/Tison inquiry resolved in the guilt 

phase. In February 2007, after the case had been reassigned, 

another judge reversed the prior ruling and ruled that the 

Enmund/Tison finding would be made in the aggravation phase. 

After the jury returned its guilty verdict, Garcia moved to 

bifurcate the aggravation phase so as to resolve the 

Enmund/Tison issue separately from the aggravation issue. The 

trial court also denied this motion. 

¶41 Garcia argues that the trial court violated the “law 
20 

of the case” doctrine by ruling that the jury would make the 

Enmund/Tison finding in the aggravation phase. Garcia also 

contends that even if the Enmund/Tison inquiry was properly 

conducted during the aggravation phase, the trial court still 

erred by denying his motion to bifurcate the death eligibility 

and aggravation issues. 

¶42 We review a trial court’s reconsideration of a prior 

judge’s ruling for abuse of discretion. State v. King, 180 

Ariz. 268, 279, 883 P.2d 1024, 1035 (1994). Although we have 

not previously adopted a standard of review for a trial court’s 

denial of a motion to bifurcate an aggravation hearing, we 

conclude that this decision should also be reviewed for an abuse 

of discretion. Cf. Atwood, 171 Ariz. at 612, 832 P.2d at 629 

(reviewing decision on motion to sever for abuse of discretion). 

¶43 The second judge did not abuse his discretion by 

reconsidering the prior judge’s decision. Arizona Rule of 

Criminal Procedure 16.1(d) provides that “[e]xcept for good 

cause . . . an issue previously determined by the court shall 

not be reconsidered.” This rule and the law of the case 

doctrine are rules of procedure, not substance; thus, they do 

not limit a court’s “power to change a ruling simply because it 

ruled on the question at an earlier stage.” King, 180 Ariz. at 

279, 883 P.2d at 1035. Nor do the rules “prevent a different 

judge, sitting on the same case, from reconsidering the first 
21 

judge’s prior, nonfinal rulings.” Id.

¶44 More importantly, in reconsidering the earlier ruling, 

the second judge properly gave effect to Arizona law, which 

“specifically requires the trier of fact to make Enmund/Tison 

findings in the aggravation phase.” State v. Garza, 216 Ariz. 

56, 67 ¶ 46, 163 P.3d 1006, 1017 (2007) (citing A.R.S. § 13-

752(P) (Supp. 2009)); Ellison, 213 at 134-35 n.12 ¶ 72, 140 P.3d 

at 917-18 n.12. 

¶45 Nor did the trial court abuse its discretion in 

denying Garcia’s motion to bifurcate the death eligibility and 

aggravation issues. Bifurcation may be appropriate in some 

cases. See, e.g., United States v. Fell, 531 F.3d 197, 239-40 

(2d Cir. 2008) (noting that while not required, a number of 

district courts had “trifurcated” capital proceedings to avoid 

unfair prejudice to defendants). Here, however, the trial 

court’s refusal to bifurcate did not unfairly prejudice Garcia. 

Even if the jury had been asked to separately determine the 

Enmund/Tison issue before finding any aggravating factors, 

evidence of Garcia’s involvement in the RNR Stix robbery would 

have been admissible in that first phase to establish his 

reckless indifference to human life. Thus, the jury would still 

have heard about the most damning of Garcia’s prior convictions 

during a separate Enmund/Tison phase. 

¶46 Finally, Garcia contends that resolution of the 
22 

Enmund/Tison issue during an un-bifurcated aggravation phase 

violated his constitutional rights. We have previously held 

that making this determination in the aggravation phase does not 

violate the Sixth Amendment. Garza, 216 Ariz. at 67 ¶ 46, 163 

P.3d at 1017. We also reject Garcia’s arguments that the 

process used here resulted in the arbitrary imposition of a 

death sentence in violation of the Eighth Amendment or denied 

him due process in violation of the Fourteenth Amendment. 

VI. Enmund/Tison Instructions 

¶47 Garcia argues that the trial court erred by 

incorrectly defining “major participant” and “reckless 

indifference” in the Enmund/Tison jury instructions. To prevail 

on this issue, Garcia must establish fundamental error because 

he did not object to the trial court’s final instructions, which 

modified those that he had proposed. See Henderson, 210 Ariz. 

at 567 ¶¶ 19-20, 115 P.3d at 607. 

¶48 Garcia requested that the trial court give the Revised 

Arizona Jury Instructions (“RAJI”) Capital 1.0 Degree of 

Participation Instruction, which included the following 

language: 

In determining whether the defendant was a “major 

participant” in the felony, some factors to consider 

include: the degree to which the defendant 

participated in the planning of the felony; whether 

the defendant possessed a weapon or furnished weapons 

to any accomplice; the degree to which the defendant 
23 

participated in the felony; and the scope of the 

defendant’s knowledge of the completion of the felony. 

A defendant acts with “reckless indifference” to human 

life when that defendant knowingly engages in criminal 

activities known to carry a grave risk of death to 

another human being. The defendant’s culpability 

ultimately rests on whether the defendant was aware or 

believed that the defendant’s acts were likely to 

result in the death of a person. A finding of 

“reckless indifference” cannot be based solely upon a 

finding that the defendant was present at the time of 

the killing, merely participated in a crime resulting 

in a homicide or failed to render aid for the victims 

to call for help. 

¶49 The trial court substantially followed Garcia’s major 

participation instruction, but added “whether the defendant 

reported the crimes” as another factor for the jury to consider. 

It also condensed the reckless indifference instruction by 

telling the jury: 

A defendant acts with reckless indifference when the 

defendant knowingly engages in criminal activities 

that he’s aware may likely create a grave risk of 

death to others. A finding of reckless indifference 

cannot be based solely on a finding that the defendant 

was present at the time of the killing or failed to 

render aid to the victims. 

¶50 Garcia first argues that the trial court erred in 

instructing the jury that it could consider his failure to 

report the crime in determining if he was a “major participant.” 

Although previous cases may have suggested otherwise, see State 

v. Dickens, 187 Ariz. 1, 23, 926 P.2d 468, 490 (1996) (noting 

failure to contact authorities among factors supporting finding 
24 

of major participation), we agree that juries should not be 

instructed to consider this factor with regard to major 

participation. This factor may, however, be relevant in 

determining if a defendant acted with “reckless indifference.” 

See State v. Lacy, 187 Ariz. 340, 351, 929 P.2d 1288, 1299 

(1996) (finding that failure to render aid or call for help does 

not alone establish reckless indifference). Garcia’s failure to 

report the robbery after the fact does not bear on his 

participation in the robbery while in progress, and it was error 

to instruct the jury otherwise. 

¶51 Nevertheless, Garcia has not established that the 

instruction constituted fundamental error. Identifying the 

failure to report the crime as one of several factors that the 

jury could consider in determining if Garcia was a major 

participant was not an error of fundamental magnitude. Nor has 

Garcia shown prejudice. The evidence of his major participation 

included his leading Sheffield into the bar, shouting “drop the 

money,” pushing Johnson up against the wall, and being in close 

proximity when Johnson was shot to death. Garcia cannot 

convincingly argue that the jury’s finding of major 

participation rested on his failure to report the crime. 

¶52 Garcia also argues that the “reckless indifference” 

instruction improperly relieved the State of its burden of 

proving that he subjectively realized that his conduct would 
25 

likely lead to death. We disagree. The trial court told the 

jury that “reckless indifference” requires finding that the 

defendant “knowingly engage[d] in criminal activities that he 

[was] aware may likely create a grave risk of death to others.” 

The written jury instructions similarly stated that to find 

“reckless indifference,” the jury had to conclude that Garcia 

“knowingly engage[d] in criminal activities that he [was] aware 

w[ould] likely create a grave risk of death to others.” 

VII. Evidentiary Basis for Enmund/Tison Findings 

¶53 Garcia argues that the State did not prove the 

Enmund/Tison predicate beyond a reasonable doubt. He contends 

that he had only a “limited role” in the murder and that his 

participation in the robbery was insufficient to support the 

jury’s finding. 

¶54 We review the jury’s Enmund/Tison finding for 

substantial evidence, “viewing the facts in the light most 

favorable to sustaining the jury verdict.” State v. Roseberry, 

210 Ariz. 360, 368-69 ¶ 45, 111 P.3d 402, 410-11 (2005). 

Substantial evidence exists when there is “such proof that 

‘reasonable persons could accept as adequate and sufficient to 

support a conclusion of defendant’s guilt beyond a reasonable 

doubt.’” State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 

(1990) (quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 

53 (1980)). 
26 

¶55 The Eighth Amendment prohibits imposition of the death 

penalty unless the defendant “kill[s], attempt[s] to kill, or 

intend[s] that a killing take place or that lethal force will be 

employed,” Enmund v. Florida, 458 U.S. 782, 797 (1982), or is a 

major participant in the underlying felony and acts with 

reckless indifference to human life, Tison, 481 U.S. at 158. 

Garcia was convicted under Tison; thus, the State had to prove 

beyond a reasonable doubt that Garcia was a major participant in 

the crime and was recklessly indifferent to Johnson’s life. See 

id. at 158; State v. Tison, 160 Ariz. 501, 502, 774 P.2d 805, 

806 (1989). 

¶56 Substantial evidence supports the jury’s finding that 

Garcia was a major participant in the underlying robbery. He 

initially entered the bar alone through the front door, which 

suggests that he was casing the scene. He and Sheffield later 

entered through the back door and Garcia shouted at Johnson to 

drop the money. The evidence established that Garcia was 

“actively involved in every element of the [robbery] and was 

physically present during the entire sequence of criminal 

activity culminating in” Johnson’s murder. See Tison, 481 U.S. 

at 158. 

¶57 Substantial evidence also supports the jury’s finding 

that Garcia acted with reckless indifference to human life. 

Tison characterized such action as “knowingly engaging in 
27 

criminal activities known to carry a grave risk of death.” 481 

U.S. at 157. 

¶58 Garcia attempts to analogize his case to Lacy, which 

held that the State had failed to prove reckless indifference 

beyond a reasonable doubt. 187 Ariz. at 351-53, 929 P.2d at 

1299-1301. In Lacy, the defendant went to the victims’ 

apartment with his co-defendant to get chemicals to make drugs. 

Id. at 345, 92 P.2d at 1293. While there, his co-defendant 

argued with the victims and shot one. Id. The defendant 

claimed that he ran out, taking a microwave with him. Id. When 

he re-entered the apartment, his co-defendant had tied up the 

other victim and was shooting her in the head. Id. The 

defendant stated that he then ran away again, and his codefendant later picked him up and drove him home. Id. Given 

those facts, we found that there was “little to establish [the 

defendant’s] involvement in the [victims’] deaths,” and that 

without the defendant’s testimony, there would be “an almost 

complete void as to what occurred that night.” Id. at 352, 929 

P.2d at 1300 (noting that it was both unclear whether defendant 

knew that his co-defendant had a gun and whether he should have 

anticipated violence). Although the defendant “stole a 

microwave after one of the murders and did nothing to prevent 

either victim’s death,” that conduct alone did not establish 

reckless indifference. Id. 
28 

¶59 This case, however, differs in several important 

respects. First, unlike the defendant in Lacy, who accompanied 

his co-defendant to get drug chemicals and may not have 

anticipated violence, Garcia accompanied Sheffield to rob a bar. 

Garcia had every reason to anticipate violence, because he knew 

Sheffield had shot someone during the RNR Stix robbery just 

weeks before. 

¶60 Second, there is no comparable void in the evidence 

about what occurred at Harley’s. Anderson testified that Garcia 

led Sheffield into the bar and helped overcome Johnson by 

pushing him against the wall. A shirt spotted with Johnson’s 

blood was found near the murder scene; a button consistent with 

one missing from the shirt was found on Johnson’s person. The 

shirt, the parties stipulated, also contained a mixed sample of 

DNA that was 21,000 times more likely to have come from Garcia 

and two unknown individuals than from three unknown individuals. 

This evidence shows that Garcia played an active role in the 

murder. 

¶61 Third, there is no evidence that Garcia attempted to 

flee at any point during the course of events. Indeed, the 

evidence showed that he continued to act in concert with 

Sheffield after the murder. 

¶62 Viewing the facts in the light most favorable to 

sustaining the verdict, we conclude that substantial evidence 
29 

supports the jury’s finding that Garcia was a major participant 

in the robbery and acted with reckless indifference to human 

life. Cf. State v. Bearup, 221 Ariz. 163, 166, 171-72 ¶¶ 3, 37-

43, 211 P.3d 684, 687, 692-93 (2009) (rejecting Lacy-based 

argument when defendant accompanied others to commit violent 

crime and evidence established his role in events leading up to 

and following murder). 

VIII. (F)(5) Aggravator 

¶63 Garcia argues that the evidence was insufficient to 

support the (F)(5) pecuniary gain aggravator. This claim is 

subsumed within our independent review. See State v. Andriano, 

215 Ariz. 497, 506 n.5 ¶ 41, 161 P.3d 540, 549 n.5 (2007). 

IX. Constitutionality of Burden of Proof at Sentencing 

¶64 Garcia argues that Arizona’s death penalty scheme is 

unconstitutional because it does not require the State to prove 

beyond a reasonable doubt that a mitigating circumstance, once 

proven by the defendant, is not sufficiently substantial to call 

for leniency. We have previously rejected this argument. See 

Moore, 222 Ariz. at 20 ¶¶ 110-13, 213 P.3d at 169. 

X. Juror Replacement in Penalty Phase 

¶65 Garcia challenges the trial court’s decision to 

release a juror after the aggravation phase and replace him with 

an alternate. He argues that the court failed to determine 

whether the alternate juror agreed with the jury’s earlier 
30 

findings, and that he was thus deprived of his right to a 

unanimous verdict on death eligibility and aggravation. Garcia 

further contends that the juror replacement impermissibly 

allowed the alternate juror to shift responsibility for the 

ultimate verdict to the replaced juror. 

¶66 We review a trial court’s dismissal of a juror for 

abuse of discretion. Roseberry, 210 Ariz. at 371 ¶ 63, 111 P.3d 

at 413. Garcia’s constitutional claims are reviewed de novo. 

State v. Pandeli, 215 Ariz. 514, 521 ¶ 11, 161 P.3d 557, 565 

(2007). 

¶67 At the close of the aggravation phase, the trial court 

designated four jurors as alternates. That afternoon, the jury 

found that the State had proved two aggravators and that Garcia 

was death-eligible under Tison. The alternates did not 

participate in this decision. On the first day of the penalty 

phase, a juror called in sick and was excused by the State and 

defense counsel. Before the jury retired to deliberate, the 

court designated one of the alternates, Juror Sixteen, to 

deliberate with the panel on the penalty phase issues. 

¶68 Garcia first argues that the trial court abused its 

discretion in releasing the sick juror and replacing him with 

Juror Sixteen. Although it is “preferable to complete a 

defendant’s trial with the same jury that began it,” Roseberry, 

210 Ariz. at 372 ¶ 69, 111 P.3d at 414, Garcia is “not 
31 

constitutionally entitled to have the same jury” render verdicts 

in each phase, id. Arizona Rule of Criminal Procedure 18.5(i) 

provides that “[i]n the event a deliberating juror is excused 

during the aggravation or penalty phases due to inability . . . 

to perform required duties, the court may substitute an 

alternate juror . . . to join in the deliberations.” The newly 

constituted jury need not “deliberate anew about a verdict 

already reached and entered.” Id. Only if the juror 

substitution occurs during actual deliberations must the jurors 

“begin anew for the phase of the sentencing that they are 

currently deliberating.” Id.; see also Roseberry, 210 Ariz. at 

373 ¶ 72, 111 P.3d at 415. 

¶69 The trial court’s dismissal of the flu-stricken juror 

thus comported with Rule 18.5(i). Not only did the court 

properly replace the juror with an alternate, it correctly 

determined that the newly constituted jury was not required to 

revisit the questions of death eligibility under Tison or 

aggravation. A verdict had already been entered in the 

aggravation phase, and the penalty phase jury was not required 

to deliberate anew on these issues. Cf. A.R.S. § 13-752(K) 

(providing that jury newly impaneled during penalty phase shall 

not retry issues of guilt or aggravation determined by prior 

jury). 

¶70 Nor was the trial court required to ascertain whether 
32 

Juror Sixteen agreed with the jury’s prior findings. In

Roseberry, we noted that the trial court “took precautions to 

ensure that Juror Twelve, the alternate who replaced Juror 

Eight, was able to deliberate for the penalty phase,” by 

allowing the State to ask Juror Twelve a series of questions to 

establish his understanding that (1) the jury had deliberated 

without him, (2) the jury had previously found the defendant 

guilty, (3) the jury had also found aggravating circumstances, 

and (4) those verdicts had to be his as well. 210 Ariz. at 372 

¶ 67, 111 P.3d at 414. 

¶71 Contrary to Garcia’s assertion, our decision in 

Roseberry does not require a trial court to engage sua sponte in 

a similar dialogue with an alternate juror, nor does it suggest 

that an alternate’s agreement with a jury’s earlier findings is 

a prerequisite to deliberation. And, while it may be wise for a 

court to discuss with an alternate juror his role in the 

proceedings, Juror Sixteen was well aware that his duty was to 

deliberate on sentencing alone. In its instructions, the trial 

court reminded the jury that “in the guilt phase of [the] trial, 

[Garcia] was found guilty of first degree murder,” and that in 

the aggravation phase, two aggravators were found to exist. The 

sentencing phase jury, including Juror Sixteen, thus had a duty 

to determine only “whether [Garcia] should be sentenced to life 

imprisonment or death for his conviction of first degree 
33 

murder.” These instructions served the same purpose as the 

State’s questions in Roseberry: they established that Juror 

Sixteen was to accept the jury’s prior findings as his own and 

deliberate only on sentencing issues. 

¶72 Garcia also argues that because Juror Sixteen did not 

decide his death qualification in the aggravation phase, he 

impermissibly abdicated responsibility for his ultimate decision 

to the juror he replaced. Garcia notes that it is 

“constitutionally impermissible to rest a death sentence on a 

determination made by a sentencer who has been led to believe 

that the responsibility for determining the appropriateness of 

the defendant’s death rests elsewhere.” Caldwell v. 

Mississippi, 472 U.S. 320, 328-29 (1985). 

¶73 No impermissible shifting of responsibility occurred 

here. The trial court informed the jurors that their duty was 

to “determine whether the defendant should be sentenced to life 

imprisonment or death for his conviction of first degree 

murder.” The court also instructed the jury that its 

“sentencing decision [wa]s not a recommendation. [Its] decision 

[would] be binding. If [its] verdict [wa]s that the defendant 

should be sentenced to death, the defendant [would] be sentenced 

to death. If [its] verdict [wa]s that the defendant should be 

sentenced to life, he [would] be sentenced to life.” Given 

these instructions, Juror Sixteen was fully aware that he bore 
34 

responsibility for determining the appropriate sentence. See 

also Dann, 220 Ariz. at 360-61 ¶¶ 29-30, 207 P.3d at 613-14 

(rejecting defendant’s argument that use of different sentencing 

jury “improperly shifted responsibility between the two juries” 

because the second sentencing jury “received clear instruction 

that it alone would determine the appropriate sentence”). 

XI. Penalty Phase Jury Instructions 

¶74 Garcia argues that the trial court erred in rejecting 

three of his proposed penalty phase instructions. Garcia 

requested instructions (1) stating that he would not be eligible 

for parole until he had served at least 53.6 years in prison; 

(2) informing jurors of their duty to discuss the case and 

deliberate, but noting that jurors should not change their 

honest beliefs solely because of fellow jurors’ opinions or “for 

the mere purpose of returning a verdict”; and (3) defining 

relatively minor participation and stating that it is a 

mitigating circumstance. 

¶75 We review a trial court’s refusal to give a jury 

instruction for abuse of discretion. State v. Martinez, 218 

Ariz. 421, 432 ¶ 49, 189 P.3d 348, 359 (2008). We review the 

“legal adequacy” of an instruction de novo. Id. “In assessing 

the adequacy of jury instructions, the instructions must be 

viewed in their entirety in order to determine whether they 

accurately reflect the law.” State v. Hoskins, 199 Ariz. 127, 
35 

145 ¶ 75, 14 P.3d 997, 1015 (2000). Additionally, “when the 

substance of a proposed instruction is adequately covered by 

other instructions, the trial court is not required to give it.” 

Id.

¶76 The trial court did not abuse its discretion in 

refusing to instruct the jury that Garcia would not be eligible 

for parole for 53.6 years. An instruction on parole eligibility 

must be given only when (1) the defendant’s life sentence 

carries no possibility of parole, and (2) the State argues that 

the defendant’s future dangerousness militates in favor of the 

death penalty. Simmons v. South Carolina, 512 U.S. 154 (1994); 

see also Kelly v. South Carolina, 534 U.S. 246, 251-52 (2002) 

(clarifying that Simmons applies even if an allegation of future 

dangerousness is made solely as “a logical inference from the 

evidence”). 

¶77 Here, the trial court was not required to give an 

instruction on parole eligibility because, irrespective of any 

likelihood that he would die in prison, Garcia was not 

technically ineligible for parole. See Simmons, 512 U.S. at 168 

(noting that when parole is available, the Court will not 

“lightly second-guess a decision whether or not to inform a jury 

of information regarding parole”). Moreover, the State did not 

emphasize Garcia’s future dangerousness. The State did not ask 

the jury to return a death verdict for reasons of “self-
36 

defense,” see Simmons, 512 U.S. at 157, nor did it implicitly 

indicate that Garcia would pose a threat if he were someday 

released from prison, see Kelly, 534 U.S. at 248-50. Rather, 

the State primarily argued that Garcia had been presented with 

chances to “get himself straightened out,” and that any 

mitigation he offered did not excuse his conduct. 

¶78 Furthermore, the trial court instructed the jury that 

Garcia “face[d] . . . a minimum sentence of 38.85 years,” and 

Garcia repeatedly told the jury that he was facing decades of 

prison time before parole became an option. Thus, the jury 

received sufficient information from which it could conclude 

that Garcia would likely die in prison. The trial court did not 

err in refusing this instruction. 

¶79 The trial court also did not abuse its discretion in 

refusing to instruct jurors that they had a duty to deliberate, 

but should not change their honest beliefs merely to return a 

verdict. The verdict form itself had an option for “no 

unanimous agreement,” which sufficiently communicated to the 

jury that it was not required to reach a verdict. Moreover, the 

trial court’s instructions emphasized that the each juror should 

make an individual decision as to the sufficiency of Garcia’s 

mitigation evidence in determining the proper sentence. 

¶80 Finally, the trial court did not abuse its discretion 

in refusing to give an instruction defining relatively minor 
37 

participation and stating that it is a mitigating circumstance. 

We rejected a similar argument in Johnson. 212 Ariz. at 436-38 

¶¶ 41-47, 133 P.3d at 746-48. Because the Supreme Court has 

emphasized that there must be a “broad inquiry into all relevant 

mitigating evidence to allow an individualized determination,” 

Buchanan v. Angelone, 522 U.S. 269, 276 (1998), we noted that 

“direct[ing] or permit[ting] trial courts to give potentially 

confining mitigation instructions” could result in a 

“significant danger,” 212 Ariz. at 437 ¶ 43, 133 P.3d at 747, 

and “would be inharmonious with the Supreme Court’s admonitions 

that the sentencer be free to consider any relevant mitigating 

factor,” id. at 437 ¶ 47, 133 P.3d at 747 (quoting Tucker v. 

Zant, 724 F.2d 882, 892 (11th Cir. 1984)). 

¶81 The trial court here properly instructed the jurors 

that they could consider any relevant factor as mitigating. 

Garcia was permitted to argue that he was a relatively minor 

participant; indeed, it was a theme of his penalty phase closing 

argument. See Johnson, 212 Ariz. at 437 n.11 ¶ 47, 133 P.3d at 

747 n.11 (finding no abuse of discretion when defense counsel 

“argued the presence of specific mitigating circumstances not 

elaborated by the final penalty phase jury instructions”). 

XII. Propriety of Death Sentence 

¶82 Garcia argues that this Court should review the 

propriety of his death sentence under an analysis similar to 
38 

that employed in Roper v. Simmons and Atkins v. Virginia. 

Roper, 543 U.S. 551 (2005) (categorically excluding defendants 

under eighteen years old from death eligibility); Atkins, 536 

U.S. 304 (2002) (categorically excluding mentally retarded 

defendants from death eligibility). He contends that such an 

analysis compels the categorical exclusion of non-shooters from 

death eligibility in felony murder cases. 

¶83 We disagree. In Tison, the Supreme Court explicitly 

approved the imposition of death sentences on persons who do not 

themselves kill but who act with reckless indifference to human 

life and are major participants in criminal activities that 

result in death. 481 U.S. at 158. Cf. Kennedy v. Louisiana, 

128 S. Ct. 2641, 2650 (2008) (noting that in Tison the Court 

“allowed the defendants’ death sentences to stand where they did 

not themselves kill the victims but their involvement in the 

events leading up to the murders was active, recklessly 

indifferent, and substantial”). We also reject Garcia’s 

suggestion that a death sentence is constitutionally barred 

because Sheffield was the actual shooter and ultimately received 

a natural life sentence. 

XIII. Denial of Exhibit Review during Deliberations 

¶84 Garcia argues that the trial court fundamentally erred 

by denying the jury’s request to review Exhibit 203 during 

penalty phase deliberations. We review for fundamental error, 
39 

as Garcia did not object below. See Henderson, 210 Ariz. at 567 

¶¶ 19-20, 115 P.3d at 607. 

¶85 The record reflects some confusion regarding Exhibit 

203. During the penalty phase, the State introduced two 

exhibits while cross-examining Garcia’s mitigation specialist. 

The exhibits, marked as 201 and 203, were presentence reports 

from Garcia’s prior cases. Both exhibits were used solely for 

impeachment and neither was admitted. Later that day, the trial 

court issued a minute entry renumbering Exhibit 203 as Exhibit 

202. The next day, defense counsel questioned a witness about 

Sheffield’s participation in a murder at a liquor store after 

Garcia’s arrest. During this testimony, defense counsel 

introduced a copy of Sheffield’s plea agreement for the murder 

in that case. The plea agreement was marked as Exhibit 203 and 

admitted into evidence. 

¶86 Less than thirty minutes after it began deliberating, 

the jury requested Exhibits 201 and 203. The trial court denied 

the request, stating that those exhibits had not been admitted. 

Neither attorney objected. The trial court was mistaken, 

because although the exhibit first marked as 203 (a presentence 

report) was not admitted, another exhibit (Sheffield’s plea 

agreement) was later numbered Exhibit 203 and admitted. 

¶87 Nonetheless, the trial court’s refusal to submit 

Exhibit 203 to the jury was not fundamental error because Garcia 
40 

cannot show prejudice. He was able to present ample evidence 

that Sheffield had committed another murder and had made nondeath sentence plea deals for that crime and the RNR Stix 

incident. Exhibit 197, which detailed Sheffield’s sentences for 

both crimes, was admitted into evidence. Detective Rodriguez 

testified that Garcia was in custody when Sheffield committed 

the liquor store murder and that Sheffield took a plea bargain 

in that case. Garcia told the jury in his closing argument that 

the State had “dropped the death penalty” against Sheffield and 

that his solo conviction for a subsequent murder established 

that Garcia was a minor participant in the Harley’s murder. 

XIV. Independent Review 

¶88 Because the murder occurred before August 1, 2002, we 

independently review aggravation, mitigation, and the propriety 

of Garcia’s death sentence.3

 A.R.S. § 13-755(A) (Supp. 2009); 

see also 2002 Ariz. Sess. Laws, ch. 1, § 7 (5th Spec. Sess.). 

A. Aggravating Circumstances 

1. A.R.S. § 13-751(F)(2) — Prior Conviction 

                                                           

3 Garcia also asks this Court to treat the Enmund/Tison 

finding as it would an aggravating circumstance and subject it 

to independent review. We have, however, previously noted that 

“Enmund/Tison findings are not aggravators, and, consequently, 

are not subject to our independent review.” Ellison, 213 Ariz. 

at 135 n.13 ¶ 73, 140 P.3d at 918 n.13 (internal citations

omitted).
41 

¶89 Under A.R.S. § 13-751(F)(2), an aggravating 

circumstance exists if “[t]he defendant has been or was 

previously convicted of a serious offense.” The State proved 

this aggravator beyond a reasonable doubt by introducing 

documents reflecting Garcia’s prior convictions for sexual 

assault and armed robbery. 

 2. A.R.S. § 13-751(F)(5) — Pecuniary Gain 

¶90 Under A.R.S. § 13-751(F)(5), an aggravating 

circumstance exists if “[t]he defendant committed the offense as 

consideration for the receipt, or in expectation of the receipt, 

of anything of pecuniary value.” Our inquiry is “highly factintensive.” State v. Ring, 204 Ariz. 534, 560 ¶ 76, 65 P.3d 915 

941 (2003). 

¶91 To establish the (F)(5) aggravator, the State must 

establish that “pecuniary gain was a ‘motive, cause, or impetus 

for the murder and not merely the result.’” Cañez, 202 Ariz. at 

159 ¶ 91, 42 P.3d at 590 (quoting State v. Kayer, 194 Ariz. 423, 

433 ¶ 32, 984 P.2d 31, 41 (1999)). Aggravation based on 

pecuniary gain “does not require a motive to kill . . . [but] 

may also be based upon a causal connection between the pecuniary 

gain objective and the killing.” Cañez, 202 Ariz. at 159 ¶ 93, 

42 P.3d at 590. The ultimate inquiry is “whether a motive for 

the murder was to facilitate the taking of or the ability to 

keep items of pecuniary value.” State v. Sansing (Sansing I), 
42 

200 Ariz. 347, 354 ¶ 15, 26 P.3d 1118, 1125 (2001), vacated on 

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

¶92 Here, the (F)(5) aggravator was proven beyond a 

reasonable doubt. Garcia led Sheffield, gun drawn, into the bar 

where Johnson was kneeling in front of the ATM. Garcia could 

have seen Johnson and the ATM from outside the bar’s back door. 

When Johnson shouted “get out” at the intruders, Garcia pushed 

him against the wall. Anderson heard “scuffling” as he escaped 

the bar. Johnson’s body was found outside on the back patio, 

although he had been inside when Anderson last saw him. His 

body was surrounded by $20 bills, some of them crumpled. 

Johnson’s wife testified that Johnson was not someone who would 

“back away” if threatened, and the medical examiner testified 

that Johnson had wounds on his body that were consistent with an 

altercation. A shirt was found near the crime scene that was 

spotted with Johnson’s blood and was missing a button. A button 

consistent with the missing button was found near Johnson’s 

body. Also on the shirt was a mixed sample of DNA that was 

21,000 times more likely to have come from Garcia and two 

unknown individuals than from three unknown individuals. 

¶93 Moreover, Anderson’s testimony indicates that the 

murder and robbery happened in a short time; indeed, he heard 

two gunshots before he escaped the bar. We have noted that when 

“the killing and robbery take place almost simultaneously, we 
43 

will not attempt to divine the evolution of the defendant’s 

motive in order to discern when, or if, his reason for harming 

the victim shifted from pecuniary gain to personal ‘amusement’ 

or some other speculative nonpecuniary drive.” Cañez, 202 Ariz. 

at 160 ¶ 96, 42 P.3d at 591. 

¶94 Considered in its totality, the evidence establishes 

beyond a reasonable doubt that Garcia’s participation in the 

murder was motivated by the expectation of pecuniary gain, even 

if we assume that Sheffield rather than Garcia shot Johnson. 

B. Mitigating Circumstances 

1. A.R.S. § 13-751(G)(3) — Minor Participation 

¶95 Under A.R.S. § 13-751(G)(3), a mitigating circumstance 

exists where “[t]he 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.” Garcia has failed to establish that he was a 

minor participant. Even if we focus solely on Garcia’s 

participation in the murder itself rather than the robbery, 

circumstantial evidence established that he was actively 

involved. 

2. Sentencing Disparity 

¶96 On October 1, 2007, after jury selection for a joint 

trial had begun, Garcia’s and Sheffield’s trials were severed 

because of Sheffield’s poor health. Sheffield suffered from 
44 

end-stage liver disease and had become disoriented after falling 

in his cell. At Garcia’s trial in December 2007, the State 

confirmed that Sheffield was scheduled to begin trial in January 

2008 and that it was seeking the death penalty. 

¶97 On the eve of Sheffield’s trial, Correctional Health 

Services requested shorter trial days so that it could closely 

monitor Sheffield’s health. Subsequently, the trial court 

announced that it would hold trial from 1:00 to 4:30 p.m. daily 

and that it anticipated that the trial would last through May 

2008. On January 15, 2008, Sheffield entered into a natural 

life plea agreement. He died on February 26, 2008. 

¶98 “A disparity in sentences between codefendants and/or 

accomplices can be a mitigating circumstance if no reasonable 

explanation exists for the disparity.” Kayer, 194 Ariz. at 439 

¶ 57, 984 P.2d at 47. Although the record does not detail the 

State’s reasons for entering the plea agreement with Sheffield, 

we do not believe that the resulting sentencing disparity 

deserves significant weight as a mitigating factor. 

¶99 When the jury determined in December 2007 that Garcia 

should be sentenced to death, it was not under any misimpression 

about Sheffield’s status. The jury was never told that 

Sheffield would receive a death sentence in this case; it was 

told only that he could after a future trial. The jury was also 

informed that Sheffield had already received a life sentence for 
45 

the liquor store murder he committed after Garcia’s arrest. 

¶100 Although the State never made explicit its reasons for 

offering Sheffield a plea, its decision is well-supported by the 

record. When Sheffield pleaded guilty, his health had declined 

to the point where he could not attend court for more than a few 

hours a day. His trial would have taken months to conclude and 

indeed, had he gone to trial, he would have died long before its 

projected conclusion. Under these circumstances, the sentencing 

disparity does not merit significant mitigating weight. 

3. Remorse 

¶101 Garcia’s former girlfriend testified that after 

Johnson’s murder, she saw Garcia’s picture on TV and asked him 

if he “did it.” Garcia said no and started crying. 

¶102 Garcia has not established remorse as a mitigating 

factor. When apprehended, Garcia was not remorseful, but 

instead attempted to flee after cursing and making an obscene 

gesture at the police officer, who had to shoot Garcia to 

capture him. Garcia has consistently denied involvement in 

Johnson’s murder, and we have previously rejected remorse as 

mitigation when the defendant continues to deny responsibility. 

See, e.g., Dann, 220 Ariz. at 376 ¶¶ 150-51, 207 P.3d at 629; 

Andriano, 215 Ariz. at 512 ¶ 76, 161 P.3d at 555. 

4. Drug Addiction 

¶103 Garcia presented evidence that he began using 
46 

marijuana and drinking alcohol at an early age. He later began 

using heroin and crack cocaine. Within one month of his January 

2001 release from prison for a prior offense, he tested positive 

for opiates and was returned to prison. 

¶104 Garcia has established his drug addiction; however, we 

give minimal weight to this mitigator because he has “failed to 

tie his . . . drug abuse to the crime or to his mental 

functioning” when the murder occurred. Pandeli, 215 Ariz. at 

532 ¶ 75, 161 P.3d at 575. 

5. Dysfunctional Childhood 

¶105 Garcia presented evidence that his father, Alfredo 

Garcia, Sr., was a heroin dealer who used drugs in front of his 

children. The neighborhood feared him. He was often drunk and 

terrorized his family, sometimes “shoot[ing] up the house.” He 

once hung Garcia on a hook and stabbed him with a screwdriver 

because he was not tough enough. Alfredo Sr. maintained another 

household with a girlfriend and spent increasing time away from 

his family. Garcia and his siblings often went hungry. When 

his father passed out, Garcia would steal money from him and 

give it to his mother for groceries. 

¶106 Garcia began his numerous encounters with the juvenile 

justice system at age twelve. At fifteen, he was placed at the 

Arizona Boys Ranch. He dropped out of school in ninth grade, 

but eventually earned his GED. When Garcia was eighteen, his 
47 

father was murdered, an event Garcia said was “very painful.” 

¶107 “A difficult family background may be a mitigating 

circumstance in determining whether a death sentence is 

appropriate; however, we give this factor little weight absent a 

showing that it affected the defendant’s conduct in committing 

the crime.” Moore, 222 Ariz. at 22 ¶ 128, 213 P.3d at 171. We 

give this factor little weight here because Garcia was thirtynine at the time of Johnson’s murder and no evidence linked his 

childhood experiences to the murder. Cf. Ellison, 213 Ariz. at 

144 ¶ 136, 140 P.3d at 927 (noting that “[the defendant’s] 

childhood troubles deserve[d] little value as a mitigator for 

the murders he committed at age thirty-three”). 

6. Lack of Future Dangerousness 

¶108 Garcia argues that he poses no risk of future 

dangerousness because he will never be released from prison. A 

defendant’s reliance on the mere fact that he will be 

incarcerated provides no more than “minimal weight” for 

mitigation purposes. See State v. Sansing (Sansing II), 206 

Ariz. 232, 241 ¶ 37, 77 P.3d 30, 39 (2003). 

C. Propriety of Death Sentence 

¶109 After evaluating each aggravating and mitigating 

circumstance, we must independently review the propriety of the 

death sentence. See A.R.S. § 13-755(A). In doing so, “we 

consider the quality and the strength, not simply the number, of 
48 

aggravating and mitigating factors.” Roque, 213 Ariz. at 230 ¶ 

166, 141 P.3d at 405 (internal quotations omitted). 

¶110 Here, both the (F)(2) and (F)(5) aggravators are 

established beyond a reasonable doubt, and Garcia’s mitigation 

evidence is not sufficiently substantial to warrant leniency. 

XV. Issues Preserved for Federal Review 

¶111 To avoid preclusion, Garcia raises twenty-seven 

additional constitutional claims that he states have been 

rejected in previous decisions by the Supreme Court or this 

Court. The attached Appendix lists these claims and the 

decisions Garcia identifies as rejecting them. 

CONCLUSION 

¶112 For the foregoing reasons, we affirm Garcia’s 

convictions and sentences. 

 _____________________________________ 

 W. Scott Bales, Justice 

CONCURRING: 

_____________________________________ 

Rebecca White Berch, Chief Justice 

_____________________________________ 

Andrew D. Hurwitz, Vice Chief Justice 

_____________________________________ 

Michael D. Ryan, Justice 

_____________________________________ 

A. John Pelander, Justice 
49 

APPENDIX 

(1) The death penalty is per se cruel and unusual punishment. 

Gregg v. Georgia, 428 U.S. 153, 186-87 (1976); State v. 

Salazar, 173 Ariz. 399, 411, 844 P.2d 566, 578 (1992). 

(2) Execution by lethal injection is per se cruel and unusual 

punishment. State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d 

602, 610 (1995). 

(3) The statute unconstitutionally requires imposition of the 

death penalty whenever at least one aggravating 

circumstance and no mitigating circumstances exist. Walton 

v. Arizona, 497 U.S. 639, 648 (1990); State v. Miles, 186 

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

(4) The death penalty is unconstitutional because it permits 

jurors unfettered discretion to impose death without 

adequate guidelines to weigh and consider appropriate 

factors and fails to provide principled means to 

distinguish between those who deserve to die or live. 

State v. Johnson, 212 Ariz. 425, 440 ¶ 69, 133 P.3d 735, 

750 (2006). 

(5) The statute unconstitutionally fails to require the 

cumulative consideration of multiple mitigating factors or 

require that the jury make specific findings as to each 

mitigating factor. State v. Gulbrandson, 184 Ariz. 46, 69, 

906 P.2d 579, 602 (1995). 

(6) Arizona’s statutory scheme for considering mitigating 

evidence is unconstitutional because it limits full 

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

233, 242, 609 P.2d 48, 57 (1980). 

(7) Arizona’s death statute is unconstitutional because there 

are no statutory standards for weighing. State v. Atwood, 

171 Ariz. 576, 645-46 n.21(4), 832 P.2d 593, 662-63 n.21(4) 

(1992). 

(8) Arizona’s death statute insufficiently channels the 

sentencer’s discretion in imposing the death sentence. 

State v. Greenway, 170 Ariz. 151, 164, 823 P.2d 22, 31 

(1991). 
50 

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

unconstitutionally lacks standards. State v. Cromwell, 211 

Ariz. 181, 192 ¶ 58, 119 P.3d 448, 459 (2005). 

(10) Death sentences in Arizona have been applied arbitrarily 

and irrationally and in a discriminatory manner against 

impoverished males whose victims have been Caucasian. 

State v. West, 176 Ariz. 432, 455, 862 P.2d 192, 215 

(1993). 

(11) The Constitution requires a proportionality review of a 

defendant’s death sentence. State v. Gulbrandson, 184 

Ariz. 46, 73, 906 P.2d 579, 606 (1995). 

(12) Subjecting Garcia to a second trial on the issue of 

aggravation and punishment before a new jury violates the 

double jeopardy clause of the Fifth Amendment. State v. 

Ring (Ring III), 204 Ariz. 534, 550 ¶ 39, 65 P.3d 915 

(2003). 

(13) Garcia’s death sentence is in violation of his rights to a 

jury trial, notice and due process under the Fifth, Sixth, 

and Fourteenth Amendments since he was not indicted for a 

capital crime. McKaney v. Foreman, 209 Ariz. 268, 271 ¶ 

13, 100 P.3d 18, 21 (2004). 

(14) Imposition of a death sentence under a statute not in 

effect at the time of Garcia’s trial violates due process 

under the Fourteenth Amendment. State v. Ellison, 213 

Ariz. 116, 137 ¶ 85, 140 P.3d 899, 920 (2006). 

(15) The reasonable doubt jury instruction at the aggravation 

trial lowered the State’s burden of proof and deprived 

[Garcia] of his right to a jury trial and due process under 

the Sixth and Fourteenth Amendments. State v. Dann (Dann 

I), 205 Ariz. 557, 575-76 ¶ 74, 74 P.3d 231, 249-50 (2003). 

(16) Arizona’s death statute creates an unconstitutional 

presumption of death and places an unconstitutional burden 

on Garcia to prove mitigation is “sufficiently substantial 

to call for leniency.” State v. Glassel, 211 Ariz. 33, 52 

¶ 72, 116 P.3d 1193, 1212 (2005). 

(17) The failure to provide the jury with a special verdict on 

Garcia’s proffered mitigation deprived him of his rights to 

not be subject to ex post facto legislation and right to 
51 

meaningful appellate review. State v. Roseberry, 210 Ariz. 

360, 373 ¶ 74 & n.12, 11 P.3d 402, 415 & n.12 (2005). 

(18) The trial court improperly omitted penalty phase 

instructions that the jury could consider mercy or sympathy 

in evaluating the mitigation evidence and determining 

whether to sentence Garcia to death. State v. Carreon, 210 

Ariz. 54, 70-71 ¶¶ 81-87, 107 P.3d 900, 916-17 (2005). 

(19) Arizona’s current protocols and procedures for execution by 

lethal injection constitute cruel and unusual punishment in 

violation of the Eighth and Fourteenth Amendments. State 

v. Andriano, 215 Ariz. 497, 510 ¶¶ 61-62, 161 P.3d 540, 553 

(2007). 

(20) The jury instruction that required the jury to unanimously 

determine that the mitigating circumstances were 

“sufficiently substantial to call for leniency” violated 

the Eighth Amendment. State v. Ellison, 213 Ariz. 116, 139 

¶¶ 101-02, 140 P.3d 899, 922 (2006). 

(21) The failure to instruct the jury that only murders that are 

“above the norm” may qualify for the death penalty violates 

the Sixth, Eighth, and Fourteenth Amendments. State v. 

Bocharski (Bocharski II), 218 Ariz. 476, 487-88 ¶¶ 47-50, 

189 P.3d 403, 414-15 (2008). 

(22) The refusal to permit voir dire of prospective jurors 

regarding their views on specific aggravating and 

mitigating circumstances violates Garcia’s rights under the 

Sixth and Fourteenth Amendments. State v. Johnson, 212 

Ariz. 425, 440 ¶¶ 29-35, 133 P.3d 735, 750 (2006). 

(23) The refusal to permit Garcia to argue or the jury to 

consider whether his death sentence would be proportional 

to other similarly situated defendants violated his rights 

under the Eighth and Fourteenth Amendments. State v. 

Johnson, 212 Ariz. 425, 431-32 ¶¶ 19-20, 133 P.3d 735, 750 

(2006). 

(24) The refusal to permit evidence regarding a sentence of life 

without parole and ineligibility of any future release 

deprived Garcia of his rights under the Eighth and 

Fourteenth Amendments. State v. Cruz, 218 Ariz. 149, 160 

¶¶ 40-45, 181 P.3d 196, 207 (2008). 
52 

(25) Subjecting Garcia to sentencing before a jury that did not 

decide his guilt deprives him of his rights under the 

Fifth, Sixth, Eighth, and Fourteenth Amendments since his 

guilt trial jury was organized to convict and his 

sentencing jury was organized solely to impose a death 

sentence. State v. Bocharski (Bocharski II), 218 Ariz. 

476, 483-84 ¶¶ 17-25, 189 P.3d 403, 410-11 (2008). 

(26) The failure to instruct the jury that the State bore the 

burden of proving its rebuttal to mitigation evidence 

beyond a reasonable doubt violated Garcia’s rights under 

the Sixth, Eighth, and Fourteenth Amendments. State v. 

Roque, 213 Ariz. 193, 225-26 ¶¶ 138-40, 141 P.3d 368, 400-

01 (2006). 

(27) The penalty phase jury instructions that advised the jury 

it “must” return a death sentence in various circumstances 

and forms of verdict impermissibly shifted the burden of 

proof to Garcia and created a presumption of death. State 

v. Tucker (Tucker II), 215 Ariz. 298, 317 ¶¶ 70-73, 160 

P.3d 177, 196 (2007).