1

SUPREME COURT OF ARIZONA

En Banc

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-09-0342-AP 

 Appellee, ) 

 ) Maricopa County 

 v. ) Superior Court 

 ) No. CR2006-114651-001 DT 

ISIAH PATTERSON, ) 

 ) 

 Appellant. ) 

 ) O P I N I O N

__________________________________) 

Appeal from the Superior Court in Maricopa County 

The Honorable Janet E. Barton, Judge

AFFIRMED

________________________________________________________________

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix

 By Kent E. Cattani, Division Chief Counsel 

 Jeffrey A. Zick, Section Chief Counsel

 Julie A. Done, Assistant Attorney General, 

 Capital Litigation Section

Attorneys for State of Arizona

STEPHEN M. JOHNSON Phoenix

 By Stephen M. Johnson

Attorney for Isiah Patterson

________________________________________________________________

B R U T I N E L, Justice

¶1 In 2009, a jury found Isiah Patterson guilty of the 

first degree murder of Consquelo Barker, and he was sentenced to 

death. We have jurisdiction over this automatic appeal under 

Article 6, Section 5(3) of the Arizona Constitution and A.R.S. 
2

§ 13-4031 (2010).1

I. FACTUAL AND PROCEDURAL BACKGROUND 

¶2 At approximately 1:30 a.m. on March 17, 2006, 

Patterson and Consquelo, his girlfriend, were in his Mesa 

apartment with their three-year-old son when they began 

fighting.2

 A downstairs neighbor heard loud crashes and things 

rolling on the floor. After about ten minutes, the noises 

stopped. After another ten minutes or so had passed, Consquelo 

ran from the apartment, naked and screaming for help.

¶3 Patterson chased Consquelo through the outdoor common 

areas of the apartment complex. He caught her at a sand 

volleyball pit, sat over her, and stabbed her thirteen times in 

the face, torso, and arm. The wounds perforated her lungs, 

diaphragm and spleen, and fractured her arm. Patterson 

continued stabbing Consquelo until a neighbor, awakened by her 

screams, yelled for him to stop. Consquelo then stumbled from 

the volleyball pit, asking for help before collapsing beneath a 

bush, where she died. Patterson walked back toward his 

apartment, telling neighbors, “That’s what happens when you try 

to turn a whore into a housewife.”

¶4 Patterson was arrested and indicted for Consquelo’s 

                                                           

1

 This opinion cites the current version of statutes, unless 

otherwise noted. 

2

 “We view the facts in the light most favorable to upholding 

the verdicts.” State v. Chappell, 225 Ariz. 229, 233 ¶ 2 n.1, 

236 P.3d 1176, 1180 n.1 (2010). 
3

murder. The State sought the death penalty. Finding Patterson 

guilty and that the crime was especially cruel, see A.R.S. § 13-

751(F)(6), the jury determined he should be sentenced to death.

II. ISSUES ON APPEAL 

A. Voir Dire Questioning 

¶5 Patterson contends the trial court restricted his 

questioning of prospective jurors contrary to Morgan v. 

Illinois, 504 U.S. 719 (1992). Morgan held that due process 

requires a trial court to allow inquiry into whether a potential 

juror would automatically impose the death penalty. Id. at 733.3

 

Patterson challenges the trial court’s refusal to let him 

question potential jurors about specific aggravating and 

mitigating factors and its requirement that he mention the 

mitigation phase of the trial in a hypothetical question he 

asked jurors. We review a trial court’s ruling on voir dire for 

an abuse of discretion. See State v. Glassel, 211 Ariz. 33, 45 

¶ 36, 116 P.3d 1193, 1205 (2005). Patterson is not entitled to 

relief on these claims. 

                                                           

3

 Although Patterson purports to base this and all his other 

constitutional claims on both the federal and the Arizona 

constitutions, his arguments relate solely to the federal 

constitution. Because he has not separately argued any state 

constitutional claims, we consider only his federal claims. See 

State v. Dean, 206 Ariz. 158, 161 ¶ 8 n.1, 76 P.3d 429, 432 n.1 

(2003). 
4

 1. Specific Aggravator and Mitigator Questions 

¶6 Before trial, the State moved to preclude Patterson 

from asking prospective jurors what factors they would find 

aggravating or mitigating. Patterson did not oppose the motion. 

Accordingly, we review this issue only for fundamental error. 

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

607 (2005). 

¶7 During voir dire, Patterson asked one juror what kind 

of circumstances she would find mitigating. The court sustained 

the State’s objection. 

¶8 The trial court did not err by granting the State’s 

motion or sustaining its objection. Defendants are not entitled 

to “ask potential jurors what types of evidence they will 

consider to be mitigating.” Glassel, 211 Ariz. at 47 ¶ 44, 116 

P.3d at 1207; see also State v. Johnson, 212 Ariz. 425, 434 

¶ 31, 133 P.3d 735, 744 (2006) (noting that “[e]xtant authority 

unanimously rejects” the argument that a defendant is entitled 

to voir dire jury panel about specific mitigating factors). 

Similarly, neither the state nor the defense is entitled to ask 

jurors about specific aggravators. See State v. Smith, 215 

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

¶9 This restriction did not prevent Patterson from 

sufficiently investigating the beliefs of potential jurors. 

Although precluding him from questioning on specific aggravating 
5

and mitigating circumstances, the trial judge allowed Patterson 

to probe jurors “on their basic beliefs, views, biases and 

prejudices concerning the death penalty, as well as their 

general views concerning aggravating and mitigating 

circumstances that must be considered in determining whether to 

impose a sentence of life or death.” As the trial court 

suggested, a defendant may legitimately ask what mitigation 

means to that juror. He could also ask whether the juror can 

imagine a situation where the totality of a defendant’s 

character, including things he has endured or accomplished, 

could warrant mercy despite his crimes. See, e.g., State v. 

Velazquez, 216 Ariz. 300, 307 ¶ 20, 166 P.3d 91, 98 (2007);

Glassel, 211 Ariz. at 46 ¶ 41, 116 P.3d at 1206 (allowing 

defendant to ask potential jurors what “sufficiently substantial 

to call for leniency” meant to them). And the record here shows 

that Patterson did, in fact, ask these types of questions.

 2. Hypothetical Question 

¶10 The trial court also did not abuse its discretion by 

requiring Patterson to mention mitigation in a hypothetical 

question he asked. During the first voir dire session, 

Patterson’s counsel asked four jurors whether they thought death 

is an appropriate sentence if the jury finds a defendant guilty 

of premeditated first degree murder and also finds at least one 

aggravator. They agreed that it is. The trial court 
6

interjected to clarify that a fair and impartial juror is one 

who, even after finding guilt and aggravation, would be able to 

begin the sentencing phase without leaning toward or against the 

death penalty.

¶11 When questioning concluded, Patterson moved to strike 

three of the jurors who had been questioned before the trial 

court’s clarification.4

 The State objected, arguing that 

Patterson’s counsel had intentionally “bait[ed]” them into 

suggesting they would not consider mitigation. It then 

requested that, prospectively, if counsel used this 

hypothetical, she be required to mention mitigation. The trial 

court agreed.

¶12 On appeal, Patterson notes that defendants are 

entitled to impartial juries, but he has not explained how the 

trial court erred in its ruling. Error does not result from the 

court’s correctly instructing prospective jurors on the law. 

See State v. Kreutzer, 928 S.W.2d 854, 864-65 (Mo. 1996) 

(finding no error when court required counsel to conform 

questions “to the dictates of existing law” and “allowed 

sufficient latitude in determining whether each venireperson 

could fairly and impartially follow the court’s instructions”); 

see also State v. Riggins, 111 Ariz. 281, 285, 528 P.2d 625, 629 

                                                           

4

 None of these jurors was ultimately chosen for the jury 

panel.
7

(1974) (noting that, under the Arizona Rules of Criminal 

Procedure, trial court has discretion to forbid confusing voir 

dire questions).

¶13 Here, the trial court clarified that the appropriate 

inquiry was whether a juror could be impartial at the beginning 

of the penalty phase. It did not curtail questions tending to 

reveal a prospective juror’s predisposition to vote for death 

after finding guilt and an aggravator, but before hearing 

mitigation. Because the court interfered only minimally with 

Patterson’s voir dire questioning in order to avoid juror 

confusion and allowed him wide latitude to discover death-biased 

jurors, it did not abuse its discretion. See Kreutzer, 928 

S.W.2d at 864-65.

B. Juror Strike 

¶14 Patterson next argues that the trial court abused its 

discretion by striking for cause a juror who worked for the 

Maricopa County Public Defender’s Office and had expressed 

strong opposition to the death penalty. We review for an abuse 

of discretion, giving great deference to the trial court, which 

was in the best position to personally observe the juror. 

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

¶15 Juror Twelve stated in her juror questionnaire that 

she was an “Initial Services Specialist” for the Maricopa County 

Public Defender’s Office, who “conduct[ed] initial interviews” 
8

and “jail visits.” She knew that Patterson’s lead attorney had 

once worked for the Public Defender’s Office and also knew two 

other members of Patterson’s defense team. Juror Twelve further 

reported that “it would be hard for [her]” to participate in a 

capital case because she had “worked close to death penalty 

cases in [her] office,” she did not believe in the death 

penalty, and she has always held anti-death penalty views. She 

marked a box stating that her “position against the death 

penalty [was] so strong that [she] could not vote for the death 

penalty under any circumstances” and added that she did not 

believe she has “the right to be part of taking someone’s life.”

¶16 During voir dire, Juror Twelve initially reiterated 

these positions, but on further questioning by the State, she 

responded that she was able to be fair and impartial and that 

she thought she would be able to serve on this jury. She 

further stated that she would be able to sentence someone to 

death if she felt that it was the appropriate sentence.

¶17 The State moved to strike Juror Twelve, pointing out 

that in her questionnaire, she had “repeatedly and clearly 

pointed out her absolute objection” to the death penalty and 

“indicated she cannot follow the law.” Yet, the State noted, 

during questioning she provided answers “completely different 

and contrary” to those in her questionnaire. Over Patterson’s 

objection, the trial court struck Juror Twelve, explaining:
9

I have concerns, as I said before, over that juror’s 

veracity. I have the ability to observe her here, 

to review the question[naire]. This is not a 

situation where this juror was wishy-washy in her 

questionnaire as to what she could or could not do, 

nor is this a situation where she was rehabilitated. 

This is a situation where this juror, who works for 

the Public Defender’s office and says she has worked 

on death-penalty cases, totally flip-flopped her 

answers. 

¶18 The trial court did not abuse its discretion. 

Although a juror may not be excluded merely for voicing 

objection to the death penalty, Witherspoon v. Illinois, 391 

U.S. 510, 520 (1968), the trial court is entitled to remove 

potential jurors whose views and biases would interfere with the 

performance of their duties, Glassel, 211 Ariz. at 47-48 ¶ 47, 

116 P.3d at 1207-08. “[E]ven 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 in 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 ¶¶ 49-50, 116 P.3d at 1208).

C. Denial of Mistrial 

¶19 Patterson maintains that the trial court erred by 

denying his request for a mistrial based on prosecutorial 

misconduct. He contends that the prosecutor’s unprofessional 

behavior, combined with the State’s failure to timely disclose a 
10

PowerPoint presentation, which itself contained a misstatement 

of law, amounted to misconduct warranting a mistrial. We review 

the trial court’s ruling for an abuse of discretion, see State 

v. Lehr, 227 Ariz. 140, 150 ¶ 43, 254 P.3d 379, 389 (2011), and 

will not reverse unless misconduct occurred and there is a 

reasonable likelihood it could have affected the jury’s verdict 

and denied Patterson a fair trial, see State v. Prince, 226 

Ariz. 516, 537 ¶ 84, 250 P.3d 1145, 1166 (2011).

¶20 Patterson contends that “[d]uring jury selection[,] 

the defense was constantly pointing out” that the prosecutor had 

“sighed inappropriately, smirked at the questions proposed by 

the defense, and constantly called attention to [her]self by 

head nodding, and other unprofessional conduct.” This conduct, 

if it occurred, would certainly deserve disapprobation even if 

it did not rise to the level of misconduct. But the record does 

not support Patterson’s contention that the prosecutor’s 

courtroom demeanor and behavior amounted to misconduct.

¶21 Patterson points to a single motion accusing the State 

of unprofessionalism during voir dire. In denying this motion, 

the trial court did not confirm that any of the alleged behavior 

actually occurred.5 And even if it did, Patterson has not shown 

                                                           

5

 The record does suggest that some jurors might have 

perceived the prosecutor’s behavior as inappropriate at times. 

On a jury question form, one juror asked the trial court to tell 
11

that it amounted to “persistent and pervasive misconduct” that 

denied him a fair trial. Prince, 226 Ariz. at 539 ¶ 92, 250 

P.3d at 1168 (considering cumulative effect of prosecutor’s 

actions without first concluding any misconduct had occurred) 

(internal quotation omitted).

¶22 We next consider Patterson’s claim that the State’s 

belated disclosure of a PowerPoint presentation that misstated 

the law amounted to prosecutorial misconduct. The State first 

disclosed the presentation on the day of its guilt-phase closing 

argument. Patterson moved to preclude the presentation. 

Although displeased with the late disclosure, the trial court 

denied Patterson’s request, while remaining open to specific 

objections to the presentation’s contents. During the State’s 

argument, Patterson objected to a slide explaining the law on 

second degree murder.

¶23 During a break, Patterson moved for a mistrial based 

on both the late disclosure and a diagram in one of the State’s 

slides.6

 The trial court denied the motion, but reconsidered 

                                                                                                                                                                                               

the prosecutor to stop rolling her eyes and talking during 

testimony, describing the conduct as “distracting” and 

“unprofessional.” The juror appears to have concluded that, 

rather than prejudicing Patterson, the prosecutor’s behavior 

reflected poorly on the State. 

6

 Although Patterson recounts his objection to this slide, he 

makes no argument based on it. And, in any event, we would 

decline to address any such argument because Patterson has not 
12

Patterson’s previous objection to the State’s description of 

second degree murder, noting that the prosecutor had incorrectly 

stated that to find Patterson guilty of second degree murder, 

the jury would “have to find [the murder] was the instant result 

of sudden quarrel or heat of passion.” The court instructed the 

prosecutor to “straighten[] [it] out in front of the jury.” 

Upon resuming its argument, the State cured the misstatement, 

explaining that the distinction between first and second degree 

murder is premeditation. Patterson did not object to the 

State’s revised statement of the law.

¶24 We find no abuse of discretion. The choice of a 

sanction for late disclosure is a matter within the discretion 

of a trial court, and we will not reverse its ruling absent a 

showing of prejudice. See State v. Rienhardt, 190 Ariz. 579, 

586, 951 P.2d 454, 461 (1997). Patterson has not explained how 

the State’s late disclosure prejudiced him, and no prejudice is 

evident from the record.

¶25 Similarly, the State’s misstatement of law in its 

                                                                                                                                                                                               

preserved the slide as part of the record. See State v. 

Herrera, 174 Ariz. 387, 396, 850 P.2d 100, 109 (1993) (declining 

to address trial court’s exclusion of hearsay evidence when 

defendant did not offer it into evidence and no copy of it made 

part of the record); see also State v. Hargrave, 225 Ariz. 1, 16 

¶ 61, 234 P.3d 569, 584 (2010) (stating that appellate court 

needs a sufficient record “to allow adequate consideration of 

the errors assigned”) (internal quotation omitted). 
13

argument and on the slide did not require a mistrial. The slide 

was not admitted into evidence. Although the prosecutor 

misstated the law, it corrected the misstatement. And the trial 

court properly defined second degree murder in its jury 

instructions. These actions cured any error resulting from the 

prosecutor’s initial misstatement. See Prince, 226 Ariz. at 538 

¶¶ 89-90, 250 P.3d at 1167 (concluding that jury instructions 

and prosecutor’s correction of his own statements cured 

misstatements of law).

D. Denial of Manslaughter Instruction

¶26 Patterson contends that the trial court abused its 

discretion by denying his requested jury instruction on the 

lesser included offense of manslaughter. See State v. Wall, 212 

Ariz. 1, 3 ¶ 12, 126 P.3d 148, 150 (2006) (reviewing denial of 

lesser included offense instruction for abuse of discretion). 

He contends that evidence that he and Consquelo fought in the 

apartment supported such an instruction. See A.R.S. § 13-

1103(A)(2) (defining manslaughter as “[c]ommitting second degree 

murder . . . upon a sudden quarrel or heat of passion resulting 

from adequate provocation by the victim”).

¶27 The trial court correctly rejected Patterson’s request 

for a manslaughter instruction because the evidence did not 

support one. See State v. Gomez, 211 Ariz. 494, 501 ¶ 32, 123 

P.3d 1131, 1138 (2005) (finding no error in refusing 
14

manslaughter instruction when defendant presented no evidence of 

adequate provocation for killing). Testimony reflected that any 

mutual combat, if it occurred at all, ended at least ten minutes 

before Consquelo fled the apartment. No reasonable juror could 

find that the unarmed Consquelo had done anything constituting 

“adequate provocation” for Patterson to chase her from the 

apartment, run her down, and stab her to death.

E. Inclusion of Dangerousness Allegation in Guilt-Phase Verdict 

Forms and Jury Instructions 

¶28 Patterson argues, and the State concedes, that the 

trial court erred by instructing the jury at the guilt phase on 

the State’s allegation of dangerousness and by including a 

finding on this issue in the verdict forms. We conclude that 

the error was harmless.

¶29 When the State alleges a non-capital sentencing 

aggravator such as dangerousness, see A.R.S. § 13-704, the 

aggravator should not be mentioned in jury instructions or 

otherwise during the guilt phase of the trial. Ariz. R. Crim. 

P. 19.1(b). The non-capital sentencing aggravator should be 

tried only if a guilty verdict is returned unless the defendant 

has admitted the allegation. Id. Ariz. R. Crim. P. 19.1(b)(2).

¶30 Contrary to Rule 19.1(b)(1), the trial court included 

the dangerousness allegation in its guilt-phase verdict forms 

and instructed the jury that a dangerous offense is one that 
15

“involved the discharge, use or threatening exhibition of a 

‘deadly weapon’ or ‘dangerous instrument’ or the ‘intentional’ 

or ‘knowing’ infliction of ‘serious physical injury’ upon 

another.” It also instructed the jury on the definitions of the 

terms “deadly weapon,” “dangerous instrument,” “intent,” 

“knowingly,” and “serious physical injury.”

¶31 This error was undoubtedly harmless. Patterson never 

disputed that he killed Consquelo with a butcher knife, which 

any reasonable jury would find to be a dangerous instrument. As 

the State correctly noted, the evidence of dangerousness was the 

same as the evidence of the underlying murder. The jury was 

instructed not to decide dangerousness unless it first found 

Patterson guilty of first degree murder. Accordingly, the 

dangerousness finding was implicit in the guilty verdict and, 

under these circumstances, failing to bifurcate the trial could 

not have influenced the verdict.

F. Exclusion of Defense Witnesses During Aggravation Phase

¶32 Patterson contends that the trial court abused its 

discretion by excluding defense mitigation witnesses from the 

courtroom during the aggravation phase of trial. A trial court 

must, at the request of a party, “exclude prospective witnesses 

from the courtroom during opening statements and the testimony 

of other witnesses.” Ariz. R. Crim. P. 9.3(a). This rule 

applies during the aggravation and penalty phases, and the trial 
16

court did not err in granting the State’s motion to exclude 

prospective witnesses under Rule 9.3. See id. cmt. (“Section 

(a) extends the language of the 1956 Arizona Rules of Criminal 

Procedure . . . to all proceedings.”)

G. Denial of Right to Allocute

¶33 Patterson claims that the trial court 

unconstitutionally denied him the opportunity to allocute by not 

asking him if he wanted to do so before the jury began 

deliberating. The court discussed allocution with the parties 

on the record before the penalty phase. A few days later, the 

trial court asked defense counsel whether Patterson intended to 

allocute, and counsel responded that she did not know. On the 

last day of the penalty phase, the court again inquired whether 

Patterson intended to allocute. Patterson declined through 

counsel. After the jury had retired, however, the trial judge 

spoke with Patterson to assure that he was knowingly and 

willingly foregoing allocution. When the judge asked if he knew 

he had the right to allocute and whether it was his decision not 

to, Patterson responded equivocally, ultimately failing to 

answer.

¶34 Although the better practice would have been to 

confirm Patterson’s waiver of allocution before the jury 

retired, we see no error on this record. The judge explained 

allocution and Patterson was advised by his counsel on his 
17

decision. Patterson declined through counsel and, moreover, 

never claimed — and does not now claim — that he wanted to 

allocute.

H. Review of the Death Sentence

¶35 Because Patterson committed the murder after August 1, 

2002, we review the jury’s aggravation finding and death 

sentence for abuse of discretion. A.R.S. § 13-756(A).

¶36 Patterson does not dispute that his murder of 

Consquelo was especially cruel. “A murder is especially cruel 

under A.R.S. § 13-751(F)(6) when the victim consciously suffered 

physical pain or mental anguish during at least some portion of 

the crime and the defendant knew or should have known that the 

victim would suffer.” State v. Dixon, 226 Ariz. 545, 556 ¶ 61, 

250 P.3d 1174, 1185 (2011) (internal quotation omitted).

¶37 The record supports a finding that Consquelo suffered 

both mental anguish and physical pain during the crime. She 

remained conscious while Patterson repeatedly stabbed her. 

Although mortally wounded, she attempted to escape and seek 

help. The jury did not abuse its discretion in finding the 

(F)(6) “especially cruel” aggravating factor.

¶38 Patterson maintains, however, that the mitigation he 

presented supports a life sentence. Patterson presented 

evidence regarding thirteen mitigating circumstances: (1) his 

mother’s lack of mental stability; (2) mental illness; (3) 
18

abandonment by his father at a young age; (4) strong family 

support from his children and grandchildren; (5) consistent 

employment despite poor education; (6) ongoing separation from 

his siblings; (7) a family history of severe mental illness; (8) 

childhood bed wetting; (9) his father forcing him to leave the 

family home at age fourteen; (10) lack of education; (11) that 

he loves and is loved by his family; (12) that he is the father 

of many children; and (13) remorse. The State presented 

rebuttal evidence with respect to much of Patterson’s mitigation 

evidence and otherwise argued that it was not substantial. 

¶39 Patterson chased down a helpless woman, sat over her, 

and then brutally murdered her by stabbing her repeatedly. The 

(F)(6) especially cruel aggravating circumstance was clearly 

established. On this record, even if we assume that Patterson 

met his burden of establishing the existence of mitigating 

circumstances by a preponderance of the evidence, we cannot 

conclude that the jury abused its discretion in determining that 

the mitigating circumstances, taken as a whole, were not 

sufficiently substantial to call for leniency. See State v. 

Villalobos, 225 Ariz. 74, 85 ¶ 51, 235 P.3d 227, 238 (2010). We 

therefore affirm the death sentence.

III. CONCLUSION 

¶40 For the foregoing reasons, we affirm Patterson’s 
19

conviction and sentence.7

 _____________________________________

 Robert M. Brutinel, Justice

CONCURRING:

_____________________________________

Rebecca White Berch, Chief Justice

_____________________________________

Scott Bales, Vice Chief Justice

_____________________________________

A. John Pelander, Justice

APPENDIX 

1. The death penalty is cruel and unusual under any 

circumstances and violates the Eighth and Fourteenth 

Amendments to the United States Constitution and 

Article 2, § 15 of the Arizona Constitution. State v. 

Harrod, 200 Ariz. 309, 320, 26 P.3d 492, 503 (2001).

2. The death penalty is imposed arbitrarily and 

irrationally in Arizona in violation of the Eighth and 

Fourteenth Amendments to the United States 

Constitution and Article 2, § 15 of the Arizona 

                                                           

7

 Patterson raises twenty-two issues to avoid preclusion on 

federal review. His statements of those issues and the cases he 

cites as rejecting his contentions are presented verbatim in the 

Appendix. Some of these contentions, however, do not appear to 

apply to Patterson; we have included footnotes denoting which 

are inapplicable. 
20

Constitution, as well as Patterson’s right to due 

process under the Fifth and Fourteenth Amendments to 

the United States Constitution and Article 2, § 4 of 

the Arizona Constitution. State v. Beaty, 158 Ariz. 

232, 762 P.2d 519 (1988).

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

case would constitute cruel and unusual punishment in 

violation of the Eighth and Fourteenth Amendments to 

the United States Constitution and Article 2 §§ 1, 4, 

and 15 of the Arizona Constitution. 

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

has no standards and therefore violates the Eighth and 

Fourteenth Amendments to the United States 

Constitution and Article 2, §§ 1, 4, and 15 of the 

Arizona Constitution. State v. Sansing, 200 Ariz. 

347, 361, 26 P.3d 1118, 1132 (2001).

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

elements of capital murder and must be alleged in an 

indictment and screened for probable cause. Arizona’s 

failure to require this violates a defendant’s right 

to due process and a fair trial under the Sixth and 

Fourteenth Amendments to the United States 

Constitution and Art. 2, §§ 4 and 24 of the Arizona 

Constitution. McKaney v. Foreman, 209 Ariz. 268, 100 

P.3d 18 (2004). Recently, although not mandating 

aggravators to be screened for probable cause on 

constitutional grounds, this Court found that 

defendants had a right under the rules of criminal 

procedure to have the aggravators screened for 

probable cause. See Chronis v. Steinle, 220 Ariz. 

559, 208 P.3d 210 (2009).8

6. The absence of proportionality review of the death 

sentences by Arizona courts denies capital defendants 

due process of law and equal protection and amounts to 

cruel and unusual punishment in violation of the 

Fifth, Eighth, and Fourteenth Amendments to the United 

States Constitution and Article 2, § 15 of the Arizona 

Constitution. Harrod, 200 Ariz. at 320, 26 P.3d at 

                                                           

8

 This claim does not appear to apply to Patterson because 

the record reflects he did receive a Chronis hearing. 
21

503. Proportionality review serves to identify which 

cases are “above the norm” of first degree murder thus 

narrowing the class of defendants who are eligible for 

the death penalty. 

7. Arizona’s capital sentencing scheme is 

unconstitutional because it does not require that the 

State prove that the death penalty is appropriate. 

Failure to require this proof violates the Fifth, 

Eighth, and Fourteenth Amendments to the United States 

Constitution and Article 2, § 15 of the Arizona 

Constitution. State v. Ring, 200 Ariz. 267, 284, 25 

P.3d 1139, 1156 (2001) (Ring I), rev’d on other 

grounds by Ring II.

8. A.R.S. § 13-703 provides no objective standards to 

guide the sentencer in weighing the aggravating and 

mitigating circumstances and therefore violates the 

Eighth and Fourteenth Amendments of the United States 

Constitution and Article 2, § 15 of the Arizona 

Constitution. State v. Pandeli, 200 Ariz. 365, 382, 

26 P.3d 1136, 1153 (2001).

9. 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, in violation of the Fifth, Eighth, and 

Fourteenth Amendments to the United States 

Constitution and Article 2, §§ 4 and 15 of the Arizona 

Constitution. State v. Poyson, 198 Ariz. 70, 83, 7 

P.3d 79, 92 (2000).

10. A.R.S. § 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, in violation of the Eighth and Fourteenth 

Amendments to the United States Constitution and 

Article 2, § 15 of the Arizona Constitution. Pandeli, 

200 Ariz. at 382, 26 P.3d at 1153. 
22

11. Execution by lethal injection is cruel and unusual 

punishment in violation of the Eighth and Fourteenth 

Amendments to the United States Constitution and 

Article 2, § 15 of the Arizona Constitution. State v. 

Hinchey, 181 Ariz. 307, 315, 890 P.2d 602, 610 (1994).

12. 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, 161 P.3d 540, 553 (2007).

13. Arizona’s death penalty unconstitutionally requires 

imposition of the death penalty whenever at least one 

aggravating circumstance and no mitigating 

circumstances exist, in violation of the Eighth and 

Fourteenth Amendments to the United States 

Constitution and Aritcle 2, § 15 of the Arizona 

Constitution. State v. Miles, 186 Ariz. 10, 19, 918 

P.2d 1028, 1037 (1996).

14. A.R.S. § 13-703, (now 13-751, et. seq.) 

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).

15. Arizona’s statutory scheme for considering mitigating 

evidence is unconstitutional because it limits full 

consideration for that evidence. State v. Mata, 125 

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

16. Death sentences 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).9

                                                           

9

 Although the record suggests that Patterson was not wellto-do at the time of the murder, neither the State nor Patterson 

presented any evidence that he was actually impoverished. 

Additionally, his victim was not Caucasian. This claim does not 

appear to apply to Patterson. 
23

17. Subjecting Appellant 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, 204 Ariz. 534, 550, 65 P.3d 915, 931 

(2003) (Ring III).10

18. The reasonable doubt jury instruction at the 

aggravation trial lowered the state’s burden of proof 

and deprived Appellant of his right to a jury trial 

and due process under the Sixth and Fourteenth 

Amendments. State v. Dann, 205 Ariz. 557, 575-76, 74 

P.3d 231, 249-50 (2003) (Dann I). 

19. Arizona’s death statute creates an unconstitutional 

presumption of death and places an unconstitutional 

burden on Appellant to prove mitigation is 

“sufficiently substantial to call for leniency.” 

State v. Glassel, 211 Ariz. 33, 52, 116 P.3d 1193, 

1212 (2005).

20. The introduction of victim impact evidence is improper 

because a defendant does not receive pretrial notice 

or an opportunity to confront and cross examine the 

victim witness. Lynn v. Reinstein, 205 Ariz. 186, 

191, 68 P.3d 412, 417 (2003).

21. 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 the defendant to 

death. State v. Carreon, 210 Ariz. 54, 70-71, 107 

P.3d 900, 916-917 (2005).

22. The jury instruction requiring 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, 140 P.3d 899, 922 (2006).

                                                           

10 This case is not a Ring remand and the same jury found 

guilt, aggravation, and imposed the death sentence. This claim 

clearly does not apply to Patterson.