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SUPREME COURT OF ARIZONA 

En Banc 

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-05-0005-AP 

 Appellee, ) 

 ) Maricopa County 

 v. ) Superior Court 

 ) No. CR2000-096032 

WENDI ELIZABETH ANDRIANO, ) 

 ) 

 Appellant. ) O P I N I O N 

__________________________________) 

Appeal from the Superior Court in Maricopa County 

The Honorable Brian K. Ishikawa, Judge 

AFFIRMED

________________________________________________________________ 

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix 

 By Kent E. Cattani, Chief Counsel, 

 Capital Litigation Section 

 Robert J. Gorman, Jr., Tucson 

 Assistant Attorney General 

Attorneys for State of Arizona 

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix 

 By Brent E. Graham, Deputy Public Defender 

 Margaret M. Green, Deputy Public Defender 

Attorneys for Wendi Elizabeth Andriano 

________________________________________________________________ 

B E R C H, Vice Chief Justice 

¶1 In 2004, Wendi Andriano was found guilty of one count 

of first degree murder and sentenced to death. This automatic 

appeal followed. We have jurisdiction pursuant to Article 6, 

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

Statutes (“A.R.S.”) section 13-4031 (2001). 
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I. FACTS1

 AND PROCEDURAL BACKGROUND 

¶2 Wendi Andriano, her terminally ill husband, Joe, and 

their two small children attended a barbeque on October 7, 2000. 

They returned to their apartment around midnight and put the 

children to bed. 

¶3 At about 2:15 a.m. on October 8, Andriano called 

Chris, a coworker who also lived at the apartment complex, and 

asked her to watch the children while Andriano took Joe to the 

doctor. When Chris arrived, Andriano met her outside the 

apartment. She told Chris, “I have a problem. Don’t ask any 

questions. My husband’s in on the floor dying and I haven’t 

called 911 yet.” When Andriano cautioned, “He doesn’t know I 

haven’t called 911,” Chris urged her to make the call. 

¶4 Upon entering the apartment, Chris found Joe lying on 

the living room floor in the fetal position. He had vomited, 

appeared weak, and was having difficulty breathing. While 

Andriano was in another room calling 911, Joe told Chris that he 

needed help and had “for a long time.” He asked why it was 

taking forty-five minutes for the paramedics to arrive. 

¶5 Andriano returned to the room and told Chris she 

needed to get Joe to the car so she could drive him to the 

 

1

 We view the facts in the light most favorable to sustaining 

the verdict. State v. Tucker, 205 Ariz. 157, 160 n.1, 68 P.3d 

110, 113 n.1 (2003). 
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hospital because the paramedics were responding to another call. 

Joe said he could not get up, so Andriano tried to lift him. 

When she could not, she became irritated and yelled at Joe, 

using profanities. Hearing sirens approaching, Chris went out 

to direct the paramedics to the apartment as Joe began to vomit 

again. 

¶6 As the paramedics were unloading their equipment, 

Andriano came out of the apartment screaming at them to go away. 

She then slammed the door. Chris and four paramedics knocked on 

the apartment door, but no one answered. After five to ten 

minutes of knocking, the Phoenix Fire Department alarm room 

called the Andrianos’ home telephone in an attempt to get 

Andriano to open the door. The alarm room notified the 

paramedics that contact had been made with someone in the 

apartment who would come out to speak with them. Rather than 

coming through the front door, which opened to the living room, 

Andriano went out through her back door, climbed over the back 

patio wall, and walked around the apartment building to the 

front door, where Chris and the paramedics were standing. 

Andriano had changed her shirt and her hair was wet. She told 

the paramedics that Joe was dying of cancer and had a do-notresuscitate order. She explained that “this was not the way 

that he wanted to go.” The paramedics and Chris left without 

going into the apartment. 
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¶7 Andriano called 911 again at 3:39 a.m. The same 

paramedics responded and saw Andriano, wearing a bloody shirt, 

standing outside the apartment talking to a police officer. 

¶8 When the paramedics entered the apartment, they found 

Joe lying on the floor in a pool of blood. He had a deep stab 

wound to the left side of his neck and lacerations on his head 

that exposed some brain matter. A police detective observed at 

3:52 a.m. that the blood surrounding Joe’s head was already 

starting to dry. A broken bar stool covered in blood was found 

near Joe’s body, as were pieces of a lamp, a kitchen knife with 

blood on the sharp edge, a bloody pillow, and a belt. 

¶9 A search of the Andrianos’ storage unit revealed an 

open cardboard shipping box containing a 500-gram bottle of 

sodium azide, two Tupperware containers containing sodium azide, 

nine Q-tips, a plastic knife and fork, and two pairs of latex 

gloves. Andriano’s fingerprints were on the plastic knife and 

the vacuum-packed bag in which the cardboard box was shipped. 

During a search of the Andrianos’ apartment, the police found 

gelatin capsules filled with sodium azide in a bottle labeled 

for an herbal supplement. Trace amounts of sodium azide were 

also discovered in the contents of a pot and two soup bowls in 

the kitchen. In all, 20.8 grams of sodium azide could not be 

accounted for. 

¶10 The medical examiner determined that Joe sustained 
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brain hemorrhaging caused by no fewer than twenty-three blows to 

the back of his head, eight to ten of which independently could 

have rendered Joe unconscious. Defensive wounds on Joe’s hands 

and wrists indicated, however, that he was conscious for at 

least part of the attack. Joe also sustained a 3 and 3/4-inchlong by 2-inch-wide stab wound to the left side of his neck that 

extended to his spine and severed his carotid artery. The 

medical examiner opined that the blows to the head were 

sustained before the stab wound to the neck and that Joe was 

still alive, although likely unconscious, when he was stabbed. 

Trace amounts of sodium azide were found in Joe’s blood and 

gastric contents. The cause of death was attributed to blunt 

force trauma and the stab wound. 

¶11 Based on the blood spatter and other evidence, a 

Phoenix police detective opined that Joe was lying down while he 

was being struck and did not get up during the attack. He 

further opined, based on the absence of arterial spurting on the 

belt and the knife, that both items were placed beside Joe’s 

body after he died. Blood spatter on the bar stool, on the 

other hand, suggested that the stool was present when the 

arterial spurting began. 

¶12 After being taken into custody, Andriano called one of 

her coworkers and asked her to hide certain items that were in 

Andriano’s business office. Andriano’s adoptive father told a 
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police detective on the day of the murder, “I remember 

[Andriano] telling me that she stabbed [Joe].” 

¶13 Andriano was indicted on one count of first degree 

murder. The State filed a notice of intent to seek the death 

penalty and subsequently alleged two aggravating factors: that 

Andriano committed the offense “in expectation of the receipt[] 

of anything of pecuniary value,” in violation of A.R.S. § 13-

703(F)(5) (Supp. 2000), and that she committed the murder “in an 

especially heinous, cruel or depraved manner,” in violation of 

A.R.S. § 13-703(F)(6). The State further alleged that the 

offense was a dangerous felony, see id. § 13-604(P), because it 

“involved the intentional or knowing infliction of serious 

physical injury upon Joseph Andriano.” 

¶14 At trial, Andriano testified that after a failed 

assisted suicide attempt by poison, she and Joe got into a 

fight, during which she hit Joe with a bar stool in selfdefense. She claimed that he ultimately slit his own throat. 

The jury found Andriano guilty of first degree murder and 

further found that the murder was a dangerous felony. 

¶15 The same jury found the (F)(6) “especially cruel” 

aggravating factor, but did not find the (F)(5) “pecuniary gain” 

aggravator. Finding that the mitigating circumstances were not 

sufficiently substantial to call for leniency, the jury returned 

a verdict calling for a sentence of death. 
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II. DISCUSSION 

¶16 Andriano raises eleven issues on appeal and lists an 

additional thirteen claims to avoid preclusion.2

A. Guilt Phase Issues 

1. Admission of other act evidence

¶17 Andriano claims that evidence of her extramarital 

affairs and her attempts to obtain insurance policies on Joe’s 

life was unfairly prejudicial and was neither intrinsic to the 

charge against her nor admissible under Arizona Rule of Evidence 

404(b). We review evidentiary rulings for an abuse of 

discretion. State v. McGill, 213 Ariz. 147, 156, ¶ 40, 140 P.3d 

930, 939 (2006), cert. denied, 127 S. Ct. 1914 (2007). 

¶18 The trial court found the insurance and affairs 

evidence “intrinsic” to the crime. “‘Other act’ evidence is 

‘intrinsic’ when [1] evidence of the other act and evidence of 

the crime charged are ‘inextricably intertwined’ or [2] both 

acts are part of a ‘single criminal episode’ or [3] the other 

acts were ‘necessary preliminaries’ to the crime charged.” 

State v. Dickens, 187 Ariz. 1, 18-19 n.7, 926 P.2d 468, 485-86 

n.7 (1996) (quoting United States v. Coleman, 78 F.3d 154, 156 

(5th Cir. 1996)). 

 

2

 The thirteen claims listed to avoid preclusion are appended 

to this opinion. 
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 a. Life insurance policies

¶19 After three surgeries to remove a recurring tumor in 

his salivary gland and as many misdiagnoses, Joe was diagnosed 

with metastatic adenoid cystic carcinoma in 1998. By that time, 

the cancer had spread to his lungs and his condition was deemed 

terminal. 

¶20 Nevertheless, during August and September of 2000, 

Andriano made several attempts to obtain insurance on Joe’s life 

through various companies. During the prescreening process, 

Andriano claimed that Joe did not have cancer. One agent 

contacted Joe on September 6 after receiving an electronic preapplication, at which time Joe indicated that he was not 

interested in applying. Andriano sent an email three days later 

from her personal email account asking that Joe’s request be 

reinstated and directing that further contact be made with her. 

She also asked two men to pose as Joe for a life insurance 

physical exam, one of whom she offered to pay as much as 

$50,000. Both refused. No life insurance policy was ever 

obtained through these efforts. 

¶21 Andriano’s attempts to procure insurance on Joe’s life 

do not fall into any of the three categories of intrinsic 

evidence. Because she never secured insurance, the attempts to 

procure it were not inextricably intertwined with Joe’s murder, 

part of a single criminal episode, or a necessary preliminary to 
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Joe’s murder. See id. The insurance procurement evidence 

clearly differs from, for example, evidence deemed intrinsic in 

Dickens that the defendant had stolen the gun used in the 

charged murders and robberies. See id.; see also State v. 

Nordstrom, 200 Ariz. 229, 248, ¶ 56, 25 P.3d 717, 736 (2001) 

(commenting on the “necessary preliminary” prong of the 

intrinsic evidence inquiry). 

¶22 Even though not intrinsic to the crime charged, “other 

act” evidence may nonetheless be admissible under Rule 404(b) to 

prove “motive, opportunity, intent, preparation, plan, 

knowledge, identity, or absence of mistake or accident,” as long 

as its probative value is not substantially outweighed by the 

danger of unfair prejudice. Ariz. R. Evid. 403; see also

Dickens, 187 Ariz. at 19, 926 P.2d at 486. 

¶23 Evidence of Andriano’s attempts to obtain insurance on 

Joe’s life was admissible to show her plan, knowledge, and 

intent to kill Joe, and also to show that she premeditated Joe’s 

murder. Moreover, the significant probative value of such 

damaging evidence is not substantially outweighed by the danger 

of unfair prejudice to Andriano. Because the evidence was 

admissible under Rule 404(b), the trial court did not abuse its 

discretion in admitting the evidence, even if it might have 

admitted the evidence for the wrong reason. See State v. Perez, 

141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) (affirming trial 
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court’s ruling even though trial judge reached the proper 

conclusion for the wrong reason). 

 b. Extramarital affairs 

¶24 During the summer of 2000, Andriano had a brief 

extramarital affair with Rick, a resident of the apartment 

complex where she lived and worked as the property manager. 

That affair ended in July when Rick learned that Andriano was 

married and had children. Despite his rejection of her 

advances, Andriano aggressively pursued Rick. On one occasion, 

she stood outside his apartment late at night, banging on his 

door for five minutes, demanding to be let in, and threatening 

to get the master “pass key” if he did not let her in. 

¶25 During that same summer, Andriano frequented bars on a 

weekly basis with coworkers and friends. There, she was seen 

dancing and flirting and even groping and kissing men. On 

September 27, the evening after Joe’s fourth chemotherapy 

treatment, Andriano went to a dance club and began dancing 

provocatively with and kissing a man she met there. They 

ultimately returned to the Andrianos’ apartment and had sex. 

During a phone conversation the following day, Andriano told the 

man her husband had died of cancer. 

¶26 Like the insurance evidence, evidence of Andriano’s 

extramarital affairs is not intrinsic to the first degree murder 

charge. The affairs were not inextricably intertwined with or 
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part of the same criminal episode as the murder, nor were they a 

necessary preliminary to the murder. Dickens, 187 Ariz. at 18-

19 n.7, 926 P.2d at 485-86 n.7. The evidence was admissible 

under Rule 404(b), however, as evidence of Andriano’s motive for 

killing her husband – to be free to pursue other relationships. 

Supporting this purpose was testimony from Andriano’s 

hairdresser, who testified that Andriano told her in February of 

2000 that she would have divorced Joe were he not ill. At a 

later visit, Andriano disclosed that Joe “wanted to keep the 

marriage together,” but she was “emotionally out of it” and 

“wished he was dead so she could move on with her life.” Around 

August of 2000, Andriano confided to the hairdresser that she 

was interested in another man who hesitated to get involved in a 

relationship because she was married. 

¶27 The evidence was also admissible under Rule 404(b) to 

rebut the defense theory that Andriano was a domestic violence 

victim who lived in fear of her abusive husband, whom she 

bludgeoned to death in self-defense. 

¶28 Andriano maintains, nonetheless, that the evidence was 

unfairly prejudicial because “[t]he prosecutor took every 

opportunity to infuse the trial with marginally relevant 

information about Andriano’s partying and man-chasing.”3

 Nearly 

 

3

 Andriano does not allege prosecutorial misconduct. 
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all the examples Andriano provides relate to the prosecutor’s 

comments in the guilt phase closing arguments. Comments in 

closing arguments, however, are not evidence, as the jury was 

instructed, and thus the comments do not render unfairly 

prejudicial evidence that is otherwise properly admitted. 

¶29 Another incident about which Andriano complains 

occurred during the cross-examination of defense expert Dr. 

Sharon Murphy. The prosecutor asked Dr. Murphy whether Andriano 

used a personal lubricant during sexual intercourse with Rick. 

The door to this line of questioning had been opened by defense 

counsel’s questioning on direct examination, to which Dr. Murphy 

responded that Andriano and Joe “needed to use a lubricant” 

during intercourse. Considered in context, the questioning was 

designed to rebut Dr. Murphy’s suggestion, elicited by defense 

counsel’s question, that Andriano’s need to use a lubricant when 

she had sex with Joe showed that Joe was an abusive spouse. The 

evidence elicited was not unfairly prejudicial. 

¶30 The final incident relates to a comment the prosecutor 

made during aggravation phase closing arguments and therefore is 

not relevant to whether such evidence was admissible in the 

guilt phase. The probative value of evidence of Andriano’s 

extramarital relationships is not substantially outweighed by 

the danger of unfair prejudice, and thus the trial court did not 

abuse its discretion in admitting the evidence. 
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¶31 In sum, although neither category of evidence is 

intrinsic to the crime charged, both categories are admissible 

under Rule 404(b): evidence of attempts to procure life 

insurance to prove plan, knowledge, intent, and premeditation, 

and evidence of extramarital affairs to prove motive and to 

rebut the defense theory that Andriano was a domestic violence 

victim. The trial court did not abuse its discretion in 

admitting the evidence. 

 2. Lesser-included offense instructions

¶32 Andriano argues that the trial court was required sua 

sponte to instruct the jury on the lesser-included offenses of 

second degree murder and “sudden quarrel or heat of passion” 

manslaughter. Defense counsel did not request any lesserincluded offense instructions. We review a trial court’s 

failure to give lesser-included offense instructions for 

fundamental error when the instructions are not requested at 

trial. Nordstrom, 200 Ariz. at 253, ¶ 81, 25 P.3d at 741. In a 

capital case, it is fundamental error for the trial court to 

fail to give a lesser-included offense instruction if one is 

supported by the evidence, id., see also Beck v. Alabama, 447 

U.S. 625, 627, 638 (1980), and not waived by the defendant. 

¶33 As to second degree murder, Andriano contends on 

appeal that because sodium azide poisoning did not cause Joe’s 

death, a reasonable jury could have found that she abandoned her 
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plan to poison Joe. Abandonment is shown, she argues, by her 

summoning Chris to the apartment and her call to 911. She 

maintains that a new sequence of events began that led to an 

intentional or knowing – but not premeditated – death. As to 

manslaughter, Andriano contends that the evidence supports a 

conclusion that Joe provoked her when he reached for a knife, 

and she then killed him during a sudden quarrel or in the heat 

of passion. 

¶34 Andriano did not argue either of these theories at 

trial, however, and the evidence presented does not support 

either theory. Andriano testified that she was attempting to 

assist Joe in committing suicide when they got scared and 

decided to call for help. She claimed that after 911 was called 

and Chris left the apartment to meet the paramedics, Joe decided 

that he wanted to follow through with the suicide. She 

testified that, after the paramedics left, she admitted to Joe 

that she had an affair. Joe then became violent and tried to 

choke her with a phone cord, but she was able to reach a knife, 

cut the cord, and free herself. When she put the knife down, 

Joe bent down to pick it up, so she hit him with the bar stool 

until he stopped moving. Ultimately, Joe picked up the knife 

and said he was going to kill himself. Andriano tried to stop 

him, but her hand slipped off the knife. Suddenly there was 

blood everywhere, but she had not stabbed Joe. 
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¶35 Despite Andriano’s testimony that Joe had killed 

himself, in closing argument, defense counsel argued that 

Andriano was a domestic violence victim who acted in selfdefense after an assisted suicide attempt. The jury was 

instructed on self-defense and told that if it found Andriano to 

be a domestic violence victim, “the state of mind of a 

reasonable person . . . shall be determined from the perspective 

of a reasonable person who has been a victim of those past acts 

of domestic violence.” 

¶36 We held in State v. Celaya that “where the sole 

defense is self-defense so that the evidence requires either 

conviction or acquittal, any instruction on any other grade 

would be impermissible.” 135 Ariz. 248, 255, 660 P.2d 849, 856 

(1983); see also State v. Wall, 212 Ariz. 1, 6, ¶ 29, 126 P.3d 

148, 153 (2006) (noting that when defendant asserts an “all-ornothing” defense, the record usually will not support the giving 

of a lesser-included offense instruction); State v. Jones, 109 

Ariz. 80, 81-82, 505 P.2d 251, 252-53 (1973) (holding that 

lesser-included offense instructions were not required where 

evidence at trial and defendant’s self-defense theory presented 

an “either-or” situation requiring either first degree murder 

conviction or acquittal). We conclude that the evidence in this 

case did not support either a second degree murder or 

manslaughter instruction and that the trial court therefore did 
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not commit fundamental error in failing to give either 

instruction. 

B. Aggravation Phase Issues 

1. Constitutionality of (F)(6) aggravating factor

¶37 Andriano argues that the A.R.S. § 13-703(F)(6) 

“especially heinous, cruel or depraved” aggravator is both 

facially vague and vague as applied by juries rather than trial 

judges. In Walton v. Arizona, the United States Supreme Court 

found Arizona’s (F)(6) aggravator facially vague. 497 U.S. 639, 

654 (1990), overruled on other grounds by Ring v. Arizona (Ring 

II), 536 U.S. 584 (2002). The Supreme Court nonetheless upheld 

the factor against a constitutional challenge because this 

Court’s narrowing construction of the (F)(6) aggravator “gives 

meaningful guidance to the sentencer.” Id. at 653-55. 

¶38 Because juries rather than trial judges now find the 

existence of aggravating factors, see A.R.S. § 13-703.01(C) 

(Supp. 2006), Andriano argues that the judge’s knowledge of the 

narrowing construction cannot save the (F)(6) aggravator from 

unconstitutional vagueness. We rejected this argument in State 

v. Cromwell, 211 Ariz. 181, 188-89, ¶¶ 40-42, 119 P.3d 448, 455-

56 (2005), cert. denied, 126 S. Ct. 2291 (2006), and State v.

Anderson (Anderson II), 210 Ariz. 327, 352-53, ¶¶ 109-14, 111 

P.3d 369, 394-95 (2005). “Those cases hold that the (F)(6) 

aggravator may be constitutionally applied if given substance 
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and specificity by jury instructions that follow this Court’s 

constructions.” State v. Hampton, 213 Ariz. 167, 176, ¶ 36, 140 

P.3d 950, 959 (2006), cert. denied, 127 S. Ct. 972 (2007). 

¶39 Andriano also argues that the (F)(6) aggravating 

factor is unconstitutionally vague when applied by a jury 

because without proportionality review the jury has no way to 

determine whether the murder for which it has found the 

defendant guilty is “above the norm of other first degree 

murders.” We rejected this argument in State v. Johnson, 212 

Ariz. 425, 431-32, ¶¶ 19-20, 133 P.3d 735, 741-42, cert. denied, 

127 S. Ct. 559 (2006). We similarly reject it here. 

 2. (F)(6) “cruelty” instruction4

¶40 The trial court provided the following (F)(6) 

“cruelty” instruction to the jury: 

 “Cruelty” involves the infliction of physical 

pain and/or mental anguish on a victim before death. 

A crime is committed in an especially cruel manner 

when a defendant either knew or should have known that 

the manner in which the crime is committed would cause 

the victim to experience physical pain and/or mental 

anguish before death. The victim must be conscious 

for at least some portion of the time when the pain 

and/or anguish was inflicted. 

 

4

 The jury found only the cruelty prong of the (F)(6) 

aggravating factor. It did not find the murder heinous or 

depraved. A finding of any of the three prongs is sufficient to 

support the (F)(6) aggravating circumstance. Cromwell, 211 

Ariz. at 189, ¶ 43, 119 P.3d at 456. 
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Andriano asserts that this instruction was insufficient to guide 

the jury and channel its discretion in applying the aggravator. 

¶41 The instruction given paraphrases this Court’s 

statement in State v. Trostle, 191 Ariz. 4, 18, 951 P.2d 869, 

883 (1997), that “[c]ruelty exists if the victim consciously 

experienced physical or mental pain prior to death, and the 

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

(Internal citation omitted.) We recently reaffirmed that the 

Trostle definition of “cruelty” sufficiently narrows and gives 

substance to the (F)(6) “especially cruel” aggravating factor to 

save it from constitutional infirmity. Anderson II, 210 Ariz. 

at 352 & n.18, ¶ 109, 111 P.3d at 394 & n.18. We similarly 

conclude here that the trial court’s instruction gave sufficient 

substance and specificity to the term “cruelty” to channel the 

jury’s discretion and correct any unconstitutional vagueness.5

 

5

 Andriano’s brief also seems to claim that the evidence was 

insufficient to support the jury’s finding that the murder was 

“especially cruel.” Because we would review sufficiency of the 

evidence to “determine whether substantial evidence supports the 

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

sustaining the jury[’s] verdict,” State v. Roque, 213 Ariz. 193, 

218, ¶ 93, 141 P.3d 368, 393 (2006), and affirm the jury’s 

finding if the evidence is such that “reasonable persons could 

accept [it] as adequate and sufficient to support a conclusion 

of defendant’s guilt beyond a reasonable doubt,” id. (quoting 

State v. Roseberry, 210 Ariz. 360, 369, ¶ 45, 111 P.3d 402, 411 

(2005)), the issue is subsumed in our independent review. See 

infra ¶¶ 64-68. 
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3. “Above the norm of other first degree murders” 

instruction

¶42 The trial court instructed the jury that the (F)(6) 

aggravating circumstance “cannot be found to exist unless the 

murder is especially heinous, cruel or depraved, that is, where 

the circumstances of the murder raise it above the norm of other 

first degree murders.” Andriano claims that this instruction 

required the jury to engage in proportionality review, which was 

improper in light of State v. Salazar, 173 Ariz. 399, 416, 844 

P.2d 566, 583 (1992), and State v. Greenway, 170 Ariz. 155, 171, 

823 P.2d 22, 38 (1991). Because Andriano did not object on this 

ground at trial, we review only for fundamental error. See 

State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 

(2005). 

¶43 We have held that “the death penalty should not be 

imposed in every capital murder case but, rather, it should be 

reserved for cases in which either the manner of the commission 

of the offense or the background of the defendant places the 

crime ‘above the norm of first-degree murders.’” State v. 

Carlson, 202 Ariz. 570, 582, ¶ 45, 48 P.3d 1180, 1192 (2002) 

(quoting State v. Hoskins, 199 Ariz. 127, 163, ¶ 169, 14 P.3d 

997, 1033 (2000)). Such an instruction does not require the 

jury to engage in proportionality review. Instead, the jurors 

must assess whether the murder was so cruel that it rose above 
- 20 -

the norm of first degree murders. To assist them in this 

inquiry, the judge instructed the jurors on the definition of 

“cruelty,” explaining how to determine whether “the 

circumstances of the murder raise it above the norm of other 

first degree murders.” Considering the instructions as a whole, 

the jury was properly instructed to apply the definition of 

“cruelty,” rather than to engage in proportionality review. The 

trial court did not err, fundamentally or otherwise, in giving 

the instruction. 

C. Penalty Phase Issues 

1. Residual doubt mitigation

¶44 The trial court denied Andriano’s request to present 

evidence of residual doubt as a mitigating circumstance in the 

penalty phase. Andriano claims that the trial court was 

constitutionally required to allow her to present such 

mitigation evidence for the jury’s consideration. We review 

alleged constitutional violations de novo. McGill, 213 Ariz. at 

159, ¶ 53, 140 P.3d at 942. 

¶45 Both the United States Supreme Court and this Court 

have rejected the argument that a capital defendant must be 

allowed to present residual doubt evidence in mitigation. In 

Oregon v. Guzek, the defendant argued that the Eighth and 

Fourteenth Amendments granted him a constitutional right to 

present new alibi evidence at his sentencing proceeding. 546 
- 21 -

U.S. 517, ___, 126 S. Ct. 1226, 1230 (2006). The Supreme Court, 

although not deciding whether such a right exists, held that its 

previous cases do not grant capital defendants a constitutional 

right to present evidence of residual doubt at sentencing. Id.

at ___, 126 S. Ct. at 1231-32. We thus noted in State v.

Ellison that “there is no constitutional requirement that the 

sentencing proceeding jury revisit the prior guilty verdict by 

considering evidence of ‘residual doubt.’” 213 Ariz. 116, 136, 

¶ 82, 140 P.3d 899, 919 (citing Guzek, 546 U.S. at ___, 126 S. 

Ct. at 1230-32), cert. denied, 127 S. Ct. 506 (2006). The trial 

court did not err in denying Andriano’s request to present 

residual doubt evidence in mitigation. 

 2. Mercy mitigation

¶46 The trial court also denied Andriano’s request to 

include “mercy” among the enumerated mitigating circumstances 

for the jury’s consideration. Andriano maintains that the trial 

court was constitutionally required to allow her to do so. We 

disagree. 

¶47 Arizona Revised Statutes § 13-703(G) (Supp. 2004) 

provides that mitigating circumstances are “any factors 

proffered by the defendant or the state that are relevant in 

determining whether to impose a sentence less than death, 

including any aspect of the defendant’s character, propensities 

or record and any of the circumstances of the offense.” The 
- 22 -

defendant bears the burden of proving mitigating circumstances 

by a preponderance of the evidence. Id. § 13-703(C). The 

defendant cannot, however, prove “mercy” by any standard, nor 

does it relate to the character or propensities of the defendant 

or the circumstances of the crime. Therefore, mercy is not a 

mitigating circumstance. 

¶48 Mercy is a concept jurors may apply in evaluating the 

existence of mitigating circumstances and in deciding whether 

the death penalty is appropriate in a particular case. In this 

sense, “mercy” is simply another word for “compassion” or 

“leniency.” A capital defendant is free to argue to the jury, 

as the defense did here, that mercy or leniency is appropriate 

based on the mitigation evidence presented. 

¶49 The instructions given in this case correctly conveyed 

the role of mercy in determining the appropriate sentence. The 

trial court did not err in refusing Andriano’s request to 

include mercy among the enumerated mitigating circumstances for 

the jury’s consideration. 

 3. Jury unanimity in determining mitigating circumstances

¶50 The trial court instructed the jury in the penalty 

phase as follows: 

 Any verdict of death or life imprisonment must be 

unanimous. If you unanimously find that no mitigation 

exists, then you must return a verdict of death. If 

you unanimously find that mitigation exists, each one 

of you must individually weigh that mitigation in 
- 23 -

light of the aggravating circumstance already found to 

exist, and if you unanimously find that the mitigation 

is not sufficiently substantial to call for leniency, 

you must return a verdict of death. If you 

unanimously find that mitigation exists and it is 

sufficiently substantial to call for leniency, you 

must return a verdict of life. 

(Emphasis added.) Andriano claims that this instruction 

improperly required the jury to unanimously find particular 

mitigating circumstances before each juror could individually 

consider whether that mitigation was sufficiently substantial to 

call for leniency. We review the challenged instruction de novo 

and consider the instructions as a whole “to ensure that the 

jury receives the information it needs to arrive at a legally 

correct decision.” State ex rel. Thomas v. Granville (Baldwin), 

211 Ariz. 468, 471, ¶ 8, 123 P.3d 662, 665 (2005). 

¶51 Each juror in a death penalty case must individually 

determine whether any mitigating circumstances exist. A.R.S. 

§ 13-703(C); see Baldwin, 211 Ariz. at 472, ¶ 13, 123 P.3d at 

666; see also Ellison, 213 Ariz. at 139, ¶ 102, 140 P.3d at 922 

(discussing Supreme Court cases holding that capital sentencing 

statutes may not require unanimity as to mitigating 

circumstances). Then, in light of the aggravating circumstances 

the jury has already found to exist, each juror must 

individually determine whether the mitigation that juror has 

found to exist is sufficiently substantial to call for leniency. 

See A.R.S. § 13-703(C), (E); Baldwin, 211 Ariz. at 473, ¶ 18, 
- 24 -

123 P.3d at 667. 

¶52 Read as a whole, the instructions given here correctly 

advised the jurors that they did not have to agree upon the 

existence of any particular mitigating circumstance before each 

juror could individually assess whether the mitigation was 

sufficiently substantial to call for leniency. The court 

repeatedly advised them during the penalty phase that each juror 

was required to “individually” determine the existence of 

mitigating circumstances.6

 We therefore conclude that the trial 

 

6

 Before being given the instruction to which Andriano 

objects, the jurors had been instructed as follows: 

 Although a final decision on a penalty of death 

or life imprisonment must be unanimous, the 

determination of what circumstances are mitigati[ng] 

is for each one of you to resolve, individually, based 

upon all the evidence that has been presented to you 

during this phase and at any of the prior phases of 

the trial. 

(Emphasis added.) The jurors were also given the following 

instruction: 

 You must make your decision about whether 

mitigation is sufficiently substantial to call for 

leniency based solely upon your weighing of any 

mitigation proven to you and the aggravating factor 

you have already found during the Aggravation Phase. 

To do this, you must individually determine the nature 

and extent of mitigating circumstances. Then, in 

light of the aggravating circumstance that has been 

proven to exist, you must individually determine if 

the totality of the mitigating circumstances is 

sufficiently substantial to call for leniency and a 

life sentence. 

(Emphasis added.) 
- 25 -

court’s instruction, considered in light of the other 

instructions, adequately informed the jury and does not require 

reversal. 

 4. Jury coercion

¶53 Andriano argues that the trial court coerced the 

jury’s death verdict in two ways when it gave an impasse 

instruction: (1) by giving the instruction before ascertaining 

whether the jury was truly deadlocked; and (2) by improperly 

instructing the jury about its duty to deliberate. “In 

determining whether a trial court has coerced the jury’s 

verdict, this court views the actions of the judge and the 

comments made to the jury based on the totality of the 

circumstances and attempts to determine if the independent 

judgment of the jury was displaced.” State v. Huerstel, 206 

 

 Moreover, at the outset of the penalty phase, the jury was 

preliminarily advised that “[t]he jurors do not have to agree 

unanimously that a mitigating circumstance has been proven to 

exist. Each juror may consider any mitigating circumstance 

found by that juror in determining the appropriate penalty.” 

The jury was further instructed at that time to “individually 

decide whether there is mitigation and whether it is 

sufficiently substantial to call for the imposition of a life 

sentence rather than a sentence of death.” 

 Defense counsel’s closing argument in the penalty phase 

also correctly advised the jurors regarding their 

responsibilities. Defense counsel told the jury, “[t]o clarify 

once again, individually determine the nature and extent of the 

mitigating circumstances. Not as a group, individually. What 

is it to me, as one juror. What is my moral position on that 

circumstance.” 
- 26 -

Ariz. 93, 97, ¶ 5, 75 P.3d 698, 702 (2003). 

¶54 Near the end of the second day of penalty phase 

deliberations, the jury submitted the following question to the 

trial court: “If we are unable to reach an unanimous verdict, 

what is the procedure that will be followed?” The court 

instructed the jury as follows: 

 It appears from your note that you are at a 

deadlock in your deliberations. I have some 

suggestions to help your deliberations, not to force 

you to reach a verdict. I am merely trying to be 

responsi[ve] to your apparent need for help. I do not 

wish or intend to force a verdict. Each juror has a 

duty to consult with one another, to deliberate with a 

view to reaching an agreement if it can be done 

without violence to individual judgment. No juror 

should surrender his or her honest conviction as to 

the weight or effect of the evidence solely because of 

the opinion of other jurors or for the purpose of 

reaching a verdict. 

 However, you may want to identify areas of 

agreement and disagreement and discuss the law and the 

evidence as they relate to the areas of disagreement. 

 If you still disagree, you may wish to tell the 

attorneys and me which issues, questions, law, or 

facts you would like us to assist you with. If you 

decide to follow this suggestion, please write down 

the issues, questions, law or facts on which we can 

possibly help. Please give your note to the bailiff. 

We will then discuss your note and try to help.7

The jury asked no further questions and returned a death verdict 

two days later. 

 

7

 This instruction contains language very similar to that set 

forth in the comment to the 1995 amendment to Arizona Rule of 

Criminal Procedure 22.4. 
- 27 -

 a. Prematurely given instruction 

¶55 Rule 22.4 of the Arizona Rules of Criminal Procedure 

permits the trial court, upon being advised by the jury that it 

has reached an impasse in its deliberations, to inquire how it 

can assist the jury in its deliberations. “Although the rule 

gives a trial judge broad discretion in dealing with juries at 

an impasse, the rule requires an affirmative indication from the 

jury it is in need of help before assistance may be offered.” 

Huerstel, 206 Ariz. at 99, ¶ 17, 75 P.3d at 704. In Huerstel, 

the trial court sent an impasse instruction to the guilt phase 

jury after three days of deliberations although it had received 

no note or other indication that the jury had reached an 

impasse. Id. at 97-98, ¶¶ 6-8, 75 P.3d at 702-03. The only 

questions the court had received related to the credentials of 

an expert witness, evidentiary matters, and a jury instruction. 

Id. We held that the impasse instruction was prematurely given 

because it was given “without any clear evidence the jury needed 

help.” Id. at 99, ¶ 17, 75 P.3d at 704. 

¶56 In this case, unlike the situation in Huerstel, the 

jury’s question inquiring what would happen if the jury could 

not reach a verdict affirmatively indicated that the jurors were 

at an impasse. The Huerstel rule does not require that the jury 

unequivocally state that it cannot reach a verdict, only that it 

give an “affirmative indication” that it is deadlocked. The 
- 28 -

trial court did not err in giving the impasse instruction. 

 b. Duty to deliberate instruction 

¶57 Andriano also argues that the impasse instruction 

given by the trial court inaccurately stated the law regarding a 

capital jury’s duty in penalty phase deliberations. The crux of 

the argument is that, although the trial court’s instruction 

would have been proper in the guilt phase or the aggravation 

phase of the proceedings, it was not appropriate in the penalty 

phase because jurors have no duty to “deliberate with a view to 

reaching an agreement” in the penalty phase. 

¶58 In Lowenfield v. Phelps, the United States Supreme 

Court addressed whether an impasse instruction given to a 

capital sentencing jury coerced the death sentence in that case. 

484 U.S. 231, 233 (1988).8

 The Supreme Court held that the 

 

8

 In Lowenfield, the trial court gave an instruction that 

said in part, 

 When you enter the jury room it is your duty to 

consult with one another to consider each other’s 

views and to discuss the evidence with the objective 

of reaching a just verdict if you can do so without 

violence to that individual judgment. 

 Each of you must decide the case for yourself but 

only after discussion and impartial consideration of 

the case with your fellow jurors. You are not 

advocates for one side or the other. Do not hesitate 

to reexamine your own views and to change your opinion 

if you are convinced you are wrong but do not 

surrender your honest belief as to the weight and 

effect of evidence solely because of the opinion of 
- 29 -

instruction did not coerce the jury’s death verdict. Id. at 

241. The Court quoted with approval another capital case in 

which it had opined that jurors must try to reach a verdict: 

The very object of the jury system is to secure 

unanimity by a comparison of views, and by arguments 

among the jurors themselves. It certainly cannot be 

the law that each juror should not listen with 

deference to the arguments and with a distrust of his 

own judgment, if he finds a large majority of the jury 

taking a different view of the case from what he does 

himself. It cannot be that each juror should go to 

the jury room with a blind determination that the 

verdict shall represent his opinion of the case at 

that moment; or, that he should close his ears to the 

arguments of men who are equally honest and 

intelligent as himself. 

Id. at 237 (quoting Allen v. United States, 164 U.S. 492, 501-02 

(1896)). The Court emphasized that “[t]he continuing validity 

of this Court’s observations in Allen are beyond dispute.” Id.

¶59 Lowenfield thus makes clear that jurors in capital 

cases have a duty to deliberate in sentencing proceedings. 

Arizona’s death penalty sentencing scheme does not alter this 

duty. While jurors individually determine whether a mitigating 

circumstance exists, A.R.S. § 13-703(C), the jury must still be 

unanimous in its decision to impose a death sentence or a life 

sentence, id. § 13-703.01(H). Therefore, the jurors may be 

instructed that they have a duty to deliberate in the penalty 

 

your fellow jurors or for the mere purpose of 

returning a verdict. 

484 U.S. at 235.
- 30 -

phase of a capital case. 

¶60 In sum, because the impasse instruction correctly 

stated the law and was given after an affirmative indication 

from the jury that it was deadlocked, it cannot be said that the 

verdict was coerced. 

D. Constitutionality of Lethal Injection Statute 

¶61 Arizona Revised Statutes § 13-704(A) (2001) provides 

that “[t]he penalty of death shall be inflicted 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.” Andriano contends that this 

statute is unconstitutionally vague because it does not 

prescribe the type or dosage of drugs that must be administered, 

the order in which they must be administered, or the 

qualifications of the personnel who administer them, thereby 

failing to ensure that death by lethal injection is not cruel 

and unusual. She argues that to comport with the Eighth 

Amendment, “[t]he statute must [also] address the inherent 

difficulties with individual issues . . . such as vein 

accessibility and chemical resistances.” 

¶62 Section 13-704(A) constitutionally prescribes that the 

method of death shall be lethal injection. See State v. 

Hinchey, 181 Ariz. 307, 315, 890 P.2d 602, 610 (1995) 

(considering and rejecting argument that death by lethal 
- 31 -

injection constitutes cruel and unusual punishment). Hinchey’s

pronouncement that lethal injection as a method of execution 

comports with the Eighth Amendment was not conditioned upon the 

use of particular procedures in implementing lethal injection. 

Moreover, the United States Supreme Court has never held that 

death by lethal injection is cruel and unusual absent specific 

procedures for implementation, nor does Andriano cite any cases 

to that effect. Andriano has thus failed to establish an Eighth 

Amendment right to a particular protocol for lethal injection.9

E. Independent Review

¶63 Because Andriano’s offense occurred before August 1, 

2002, we independently review the aggravating and mitigating 

circumstances and the propriety of the death sentence. A.R.S. 

§ 13-703.04(A) (Supp. 2006); see 2002 Ariz. Sess. Laws, 5th 

Spec. Sess., ch. 1, § 7. In conducting our 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)). 

 

9

 Andriano may raise in a petition filed pursuant to Arizona 

Rule of Criminal Procedure 32 any objections to the protocol to 

be used. 
- 32 -

 1. Aggravation

¶64 The jury found one aggravating factor – that Andriano 

committed the murder in an especially cruel manner. A.R.S. 

§ 13-703(F)(6). Andriano argues that we should find the 

evidence insufficient to support the “especially cruel” finding 

by the jury because (1) Joe experienced only “distress,” but not 

“extreme” physical pain or mental anguish after ingesting the 

sodium azide; (2) the defensive wounds were “minor and . . . not 

indicative of a great or prolonged struggle,” showing that Joe 

was rendered unconscious “very quickly” after the bar stool 

attack began; and (3) Joe’s distress was not reasonably 

foreseeable. We review the jury’s finding de novo. Anderson 

II, 210 Ariz. at 354, ¶ 119, 111 P.3d at 396 (citing A.R.S. 

§ 13-703.04 (independent review)). 

¶65 The cruelty prong of the (F)(6) aggravating 

circumstance may be proved by showing that the defendant knew or 

should have known that the manner in which the crime was 

committed would cause the victim to consciously experience 

either physical pain or mental anguish before death. Trostle, 

191 Ariz. at 18, 951 P.2d at 883. The evidence showed that 

Andriano poisoned Joe with sodium azide and left him to suffer 

for what felt to Joe like a “long time.” During that period, 

Joe vomited at least twice, was too weak to sit or stand, and 

was having difficulty breathing. After pretending to call 911, 
- 33 -

Andriano stood by for approximately forty-five minutes as Joe 

suffered from the effects of sodium azide poisoning. Andriano’s 

Internet research on sodium azide and the warnings accompanying 

the shipped chemical demonstrate that she knew or should have 

known that poisoning her husband with sodium azide would cause 

him physical pain and mental anguish. Joe, who was conscious 

during this time, as evidenced by his interaction with Chris, 

undoubtedly “experienced significant uncertainty as to [his] 

ultimate fate.” See Ellison, 213 Ariz. at 142, ¶ 120, 140 P.3d 

at 925 (quoting State v. Van Adams, 194 Ariz. 408, 421, ¶ 44, 

984 P.2d 16, 29 (1999)) (mental anguish, and hence cruelty, 

established upon this showing). 

¶66 Moreover, Andriano struck her terminally ill husband 

at least twenty-three times in the back of the head with a bar 

stool. Defensive wounds on Joe’s hands and wrists indicate that 

he was conscious for at least some of the attack and thus knew 

his wife was attacking him as he lay on the floor, unable to 

defend himself. Andriano also knew or should have known that 

beating her husband with a bar stool would cause him physical 

pain and mental anguish.10

¶67 Andriano asks us to require that the physical or 

 

10 The evidence established that Joe was likely unconscious 

when his throat was slashed. We therefore do not consider 

whether the stabbing caused physical pain or mental anguish. 
- 34 -

mental pain experienced by the victim be “extreme.” There is no 

such requirement for a cruelty finding. See Trostle, 191 Ariz. 

at 18, 951 P.2d at 883. Nonetheless, the physical pain and 

mental anguish Joe experienced likely were “extreme” by any 

standards. 

¶68 Although Andriano argued at trial that she was 

assisting Joe in a suicide by poisoning, she argues on appeal 

that because Joe did not know he was being poisoned, mental 

anguish cannot be proved. While a victim’s knowledge of the 

source of physical pain may be relevant to whether the victim 

experienced mental anguish, it is not a requisite for a finding 

of mental anguish. And on the facts of this case, mental 

anguish is established even if Joe did not know he had been 

poisoned. Moreover, cruelty can be established upon a showing 

of either mental anguish or physical pain. Id. We thus 

conclude that cruelty was established based on either – or both 

– mental anguish or physical pain. 

 2. Mitigation11

¶69 Andriano presented several mitigating circumstances 

 

11 Andriano did not argue why the Court should find in its 

independent review that the mitigating circumstances were 

“sufficiently substantial to call for leniency.” A.R.S. § 13-

703(E). Counsel in capital cases “should take advantage of all 

appropriate opportunities to argue why death is not suitable 

punishment for their particular client.” ABA Guidelines for the 

Appointment and Performance of Defense Counsel in Death Penalty 

Cases Guideline 10.11(L) (2003). 
- 35 -

for the jury’s consideration, including the stress of Joe’s 

cancer, her good grades in school, missionary and community 

work, and strong religious convictions. In addition, she 

presented evidence that she was a sexual abuse and domestic 

violence victim, a good mother to two children, married for six 

years, and a good inmate. 

¶70 Although Andriano presented some evidence that she was 

a domestic violence victim, we assign little weight to this 

mitigating circumstance, in part because it is not related to 

the murder. See Roque, 213 Ariz. at 231, ¶ 169, 141 P.3d at 406 

(“[T]he relationship between mitigating evidence and the murder 

may affect the weight given to the mitigating evidence.”) 

(citation omitted); State v. Newell, 212 Ariz. 389, 405, ¶ 82, 

132 P.3d 833, 849, cert. denied, 127 S. Ct. 663 (2006). The 

evidence established that Andriano did not kill Joe while 

defending against a domestic violence attack. Instead, she 

poisoned her terminally ill husband, struck him in the back of 

the head twenty-three times, and slit his throat. Joe posed no 

threat to Andriano at the time of the attack because he was so 

weak from the poison and chemotherapy that he could not get up. 

¶71 Andriano was under substantial stress from having to 

deal with Joe’s terminal cancer. The record does not indicate, 

however, that at the time of the offense, the stress was any 

greater than it had been two years earlier when she and Joe 
- 36 -

first learned he was terminally ill, and she was pregnant with 

their second child. Moreover, this is not a case in which 

Andriano suddenly “cracked” under extreme stress. Andriano 

methodically premeditated Joe’s murder, showing that her stress 

bore little relation to Joe’s death. This mitigating 

circumstance thus does not warrant substantial weight. 

¶72 Andriano also offered evidence that she “may have 

been” sexually abused by her biological father when she was 

around the age of two, although she does not recall it, and that 

a member of the traveling ministry to which her family belonged 

exposed himself to Andriano when she was between six and eight 

years old. Andriano also showed that she maintained good grades 

in school and participated in missionary and community work. We 

do not weigh these mitigating circumstances heavily because the 

events are remote in time to the offense and thus their 

relevance is minimal. Cf. Ellison, 213 Ariz. at 144, ¶ 136, 140 

P.3d at 927 (finding defendant’s “childhood troubles deserve 

little value as a mitigator for the murders he committed at age 

thirty-three”). 

¶73 The record contains conflicting evidence on whether 

Andriano was a good mother. In any event, we afford this 

mitigating circumstance minimal value in light of the fact that 

Andriano murdered her children’s father while the children were 

present in the apartment. Moreover, neither the fact of 
- 37 -

Andriano’s marriage nor its six-year duration is mitigating 

considering that she would have remained married and the 

marriage would have lasted longer had she not killed her 

husband. 

¶74 Andriano was a good inmate in jail and helpful to 

staff and inmates from September 2003 until the penalty phase of 

her trial in December 2004. Because inmates are expected to 

behave, however, we assign this mitigating circumstance little 

weight. State v. Harrod, 200 Ariz. 309, 319, ¶ 53, 26 P.3d 492, 

502 (2001), vacated on other grounds, 536 U.S. 953 (2002). 

¶75 Although Andriano had what might be considered a 

strict religious upbringing, many of her actions, such as 

killing her husband and having extramarital affairs, appear 

inconsistent with holding strong religious convictions. We thus 

assign this evidence minimal value. 

¶76 Andriano also alleged as mitigating circumstances 

cooperation with law enforcement authorities, remorse, and age. 

The evidence presented, however, contradicts Andriano’s 

assertion that she cooperated in the investigation of Joe’s 

murder.12 Moreover, because Andriano continues to deny 

 

12 Andriano did not mention the sodium azide when she was 

questioned by police and later asked her coworker to hide 

evidence. Evidence was also presented that Andriano staged the 

scene of the murder to make it appear as though she acted in 

self-defense. 
- 38 -

responsibility for her conduct, we reject her contention that 

she is remorseful. See State v. Gulbrandson, 184 Ariz. 46, 70-

71, 906 P.2d 579, 603-04 (1995) (noting that defendant continued 

to deny responsibility in finding that he had not proven remorse 

as a mitigating circumstance). We likewise do not find her age 

- thirty at the time of the offense - to be mitigating, 

particularly in light of her above-average I.Q. 

¶77 We likewise give minimal weight to the remaining 

mitigating circumstances urged: lack of prior convictions, good 

candidate for rehabilitation, no future threat to the community, 

and impact on family and friends. 

 3. Propriety of the death sentence

¶78 The quality and strength of Andriano’s mitigation 

evidence is not sufficiently substantial to call for leniency in 

light of the especially cruel manner in which Andriano murdered 

her husband. We therefore affirm Andriano’s sentence of death. 

III. CONCLUSION 

¶79 For the foregoing reasons, we affirm Andriano’s 

conviction and death sentence. 

 _______________________________________ 

 Rebecca White Berch, Vice Chief Justice 
- 39 -

CONCURRING: 

_______________________________________ 

Ruth V. McGregor, Chief Justice 

_______________________________________ 

Michael D. Ryan, Justice 

_______________________________________ 

Andrew D. Hurwitz, Justice 

_______________________________________ 

W. Scott Bales, Justice 
- 40 -

APPENDIX 

Claims Raised to Avoid Preclusion 

Andriano raises the following thirteen challenges to the 

constitutionality of Arizona’s death penalty scheme to avoid 

preclusion: 

1. The death penalty is cruel and unusual punishment 

under any circumstances. This argument was rejected 

by the United States Supreme Court in Gregg v. 

Georgia, 428 U.S. 153, 187 (1976), and by this Court 

in Harrod, 200 Ariz. at 320, ¶ 59, 26 P.3d at 503. 

2. The death penalty is imposed arbitrarily and 

irrationally in Arizona. We rejected this argument in 

State v. Beaty, 158 Ariz. 232, 247, 762 P.2d 519, 534 

(1988). 

3. Application of the death penalty on the facts of this 

case would constitute cruel and unusual punishment. 

No argument or authority is presented to support this 

claim. 

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

is not channeled by standards. We rejected this 

argument in State v. Sansing, 200 Ariz. 347, 361, 

¶ 46, 26 P.3d 1118, 1132 (2001), vacated on other 

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

5. The aggravating factors set forth in A.R.S. § 13-

703(F) are elements of capital murder and must be 

alleged in an indictment and screened for probable 

cause. We rejected this argument in McKaney v. 

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

270, ¶ 9, 100 P.3d 18, 20 (2004). 

6. Application of the death penalty statutes promulgated 

after Ring II, 536 U.S. at 584, violates the 

prohibition against ex post facto laws. The changes 

altered the rules of evidence to permit different 

testimony than that permitted at the time of 

Andriano’s offense. We rejected this argument in 

State v. Ring (Ring III), 204 Ariz. 534, 547, ¶ 24, 65 

P.3d 915, 928 (2003). 
- 41 -

7. The absence of proportionality review of death 

sentences by Arizona courts denies capital defendants 

due process of law and equal protection and amounts to 

cruel and unusual punishment. We rejected this 

argument in Gulbrandson, 184 Ariz. at 73, 906 P.2d at 

606. 

8. Arizona’s capital sentencing scheme is 

unconstitutional because it does not require that the 

State prove that the death penalty is appropriate. We 

rejected this argument in Gulbrandson, 184 Ariz. at 

72, 906 P.2d at 605. 

9. Arizona Revised Statutes § 13-703 provides no 

objective standards to guide the sentencer in weighing 

the aggravating and mitigating circumstances. We 

rejected this argument in State v. Pandeli, 200 Ariz. 

365, 382, ¶ 90, 26 P.3d 1136, 1153 (2001), vacated on 

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

10. Arizona’s death penalty scheme is unconstitutional 

because it does not require the sentencer to find 

beyond a reasonable doubt that the aggravating 

circumstances outweigh the accumulated mitigating 

circumstances. We rejected this argument in State v. 

Poyson, 198 Ariz. 70, 83, ¶ 59, 7 P.3d 79, 92 (2000). 

11. Arizona Revised Statutes § 13-703 does not 

sufficiently channel the sentencer’s discretion. 

Aggravating circumstances should narrow the class of 

persons eligible for the death penalty and reasonably 

justify the imposition of a harsher penalty. The 

broad scope of Arizona’s aggravating factors 

encompasses nearly anyone involved in a murder. We 

rejected this argument in Pandeli, 200 Ariz. at 382, 

¶ 90, 26 P.3d at 1153. 

12. Execution by lethal injection is cruel and unusual 

punishment. We rejected this argument in Hinchey, 181 

Ariz. at 315, 890 P.2d at 610. 

13. Arizona’s death penalty scheme unconstitutionally 

requires imposition of the death penalty whenever at 

least one aggravating circumstance exists and there is 

no mitigation sufficiently substantial to call for 

leniency. We rejected this argument in State v. 

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