1 

SUPREME COURT OF ARIZONA

En Banc

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-09-0019-AP 

 Appellee, ) 

 ) Maricopa County 

 v. ) Superior Court 

 ) No. CR1998-004885 

WAYNE BENOIT PRINCE, ) 

 ) 

 Appellant. ) 

 ) O P I N I O N

__________________________________) 

Appeal from the Superior Court in Maricopa County 

The Honorable Sally Schneider Duncan, Judge

AFFIRMED

________________________________________________________________

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix

 By Kent E. Cattani, Chief Counsel 

 Criminal Appeals/Capital Litigation Section

 Melissa A. Parham, Assistant Attorney General

Attorneys for State of Arizona

SHARMILA ROY, ATTORNEY AT LAW Laveen

 By Sharmila Roy

Attorney for Wayne Benoit Prince

________________________________________________________________

P E L A N D E R, Justice

¶1 Wayne Benoit Prince, Jr. was convicted of first degree 

murder of his stepdaughter and attempted first degree murder of 

his wife. He was sentenced to death for the murder and to a 

prison term for the attempt conviction. We have jurisdiction 

over this automatic appeal under Article 6, Section 5(3) of the 

Arizona Constitution and A.R.S. §§ 13-4031 and 13-4033(A)(1) 
2 

(2010).1

I. FACTUAL AND PROCEDURAL BACKGROUND 

¶2 The pertinent facts are set forth in our first opinion 

in this case, State v. Prince (Prince I), 204 Ariz. 156, 157-58 

¶¶ 2-3, 61 P.3d 450, 451-52 (2003). In brief, Prince engaged in 

a heated dispute with his wife, Christine, beating her and 

repeatedly threatening to kill her and her two children; he 

ultimately shot and killed his stepdaughter, Cassandra, and then 

shot and severely injured Christine. 

¶3 A jury found Prince guilty of first degree murder and 

attempted murder. The trial judge sentenced him to death for 

the murder of Cassandra and twenty-one years in prison for the 

attempted murder of Christine. We affirmed both convictions and 

the sentence for the attempted murder conviction, Prince I, 204 

Ariz. at 161 ¶ 28, 61 P.3d at 455, but in a supplemental opinion 

vacated the death sentence and remanded the case for 

resentencing pursuant to Ring v. Arizona (Ring II), 536 U.S. 584 

(2002). State v. Prince (Prince II), 206 Ariz. 24, 28 ¶ 15, 75 

P.3d 114, 118 (2003). 

¶4 During the aggravation phase of the ensuing 

resentencing, the jurors found two aggravating circumstances: 

(1) Prince committed the murder in an especially cruel manner, 

                                                           

1 This opinion cites the current version of statutes unless 

otherwise noted.
3 

A.R.S. § 13-751(F)(6), and (2) Prince was at least eighteen and 

Cassandra under fifteen years of age when she was killed, § 13-

751(F)(9). In the penalty phase, however, the jury could not 

reach a unanimous verdict on the appropriate sentence. 

¶5 In accordance with A.R.S. § 13-752(K), a second 

penalty-phase jury was impaneled. This jury found no mitigation 

sufficiently substantial to call for leniency and determined 

that Prince be sentenced to death. 

II. ISSUES ON APPEAL 

A. Challenges to Second Penalty Jury Process 

1. Ex Post Facto Violation 

¶6 Under the law in effect when Prince murdered 

Cassandra, the judge decided whether to impose a death sentence 

and resolved any doubt as to the ultimate sentence in favor of 

life imprisonment. See former A.R.S. § 13-703(E) (1997). In 

contrast, § 13-752(K) provides that if the jury cannot reach a 

verdict at the first penalty phase, “the court shall dismiss the 

jury and shall impanel a new jury.” Prince claims § 13-752(K) 

violates the ex post facto clauses of both the United States and 

Arizona Constitutions by giving the state a second chance to 

seek a death sentence, which could not occur under the law in 

effect at the time of the murder. 

¶7 We rejected an identical ex post facto argument in 

State v. Cropper, 223 Ariz. 522, 526 ¶ 11, 225 P.3d 579, 583 
4 

(2010). Prince acknowledges that decision but claims Cropper

violates the spirit of Stogner v. California, 539 U.S. 607, 611 

(2003), in which the Supreme Court struck, on ex post facto 

grounds, a California statute authorizing the prosecution of 

child sex crimes after the expiration of the statute of 

limitations. Prince analogizes his situation to Stogner, 

claiming former § 13-703(E) created “a statute of limitations 

regarding the death penalty: once a particular sentencer had 

doubts about the propriety of the death penalty, the limitations 

period expired.” 

¶8 The statute in Stogner created new criminal liability 

when none otherwise existed by resurrecting crimes after their 

limitation periods had expired. 539 U.S. at 613. Impaneling a 

second jury when the first cannot unanimously agree on a 

sentence creates no new liability unless a hung jury is 

tantamount to an acquittal. Yeager v. United States, 129 S. Ct. 

2360, 2366 (2009), rejected that characterization in the guilt 

phase for double jeopardy purposes, and Cropper appropriately 

extended Yeager’s reasoning to the penalty phase for sentencing 

purposes. Moreover, no analogue to a hung jury exists for 

judges. See Cropper, 223 Ariz. at 526 ¶ 11, 225 P.3d at 583 (“A 

judge, unlike a jury, cannot ‘deadlock’ on a sentencing 

decision[,]” and “[a] jury’s decision to acquit a defendant 

differs from a jury’s failure to reach a decision.”). Because 
5 

Prince offers no other compelling reason to revisit Cropper, we 

reject his ex post facto claim. 

2. Vagueness of § 13-752(K) 

¶9 Prince argues § 13-752(K) is unconstitutionally vague 

because it does not establish procedures governing the 

admission, to a new jury during the second penalty phase, of 

evidence of the aggravating factors previously found by the 

aggravation-phase jury. 

¶10 Before commencing the second penalty phase, the trial 

court ruled that it would inform the new jury only of Prince’s 

first degree murder conviction and of the descriptive titles and 

definitions of the two aggravating circumstances found by the 

aggravation-phase jury. The judge thus precluded either side 

from presenting any evidence relating to guilt or the 

aggravating circumstances. 

¶11 The court of appeals accepted jurisdiction of the 

State’s subsequent special action and vacated the trial court’s 

order, ruling that the facts of the crime and aggravating 

factors are relevant to determining whether there is mitigation 

sufficiently substantial to call for leniency. State ex rel. 

Thomas v. Duncan (Prince), 1 CA-SA 08-0042, 2008 WL 4501925, at 

*4 ¶ 15 (Ariz. App. May 6, 2008) (mem. decision). We denied 

Prince’s petition for review. State ex rel. Thomas v. Prince, 

219 Ariz. 127, 194 P.3d 394 (2008). 
6 

¶12 The State claims Prince is now barred from challenging 

the constitutionality of § 13-752 because the court of appeals’ 

decision is the law of the case. But we are not precluded from 

addressing issues in a direct mandatory appeal simply because we 

declined to review in the same case an interlocutory court of 

appeals’ decision. Our prior “denial of review does not mean we 

accepted the [c]ourt of [a]ppeals’ legal analysis or conclusion” 

and “has no precedential value.” Calvert v. Farmers Ins. Co., 

144 Ariz. 291, 297 n.5, 697 P.2d 684, 690 n.5 (1985). 

Consequently, the law of the case doctrine is inapplicable, and 

we thus address Prince’s argument on the merits. 

¶13 During the penalty phase, “the defendant and the state 

may present any evidence that is relevant to the determination 

of whether there is mitigation that is sufficiently substantial 

to call for leniency.” A.R.S. § 13-752(G).2

 Additionally, “the 

state may present any evidence that demonstrates that the 

defendant should not be shown leniency.” Id. The penalty jury 

“shall consider as [a] mitigating circumstance[] any factors 

proffered by the defendant or the state that are relevant in 

determining whether to impose a sentence less than death, 

                                                           

2

 Our rules of criminal procedure prescribe a similar 

standard. “The defense shall offer evidence in support of 

mitigation” and “[t]he state may . . . offer any evidence 

relevant to mitigation.” Ariz. R. Crim. P. 19.1(d)(4)-(5). A 

defendant may also “offer evidence in rebuttal” of the state’s 

proffered evidence. Ariz. R. Crim. P. 19.1(d)(6). 
7 

including any aspect of the defendant’s character, propensities 

or record and any of the circumstances of the offense.” A.R.S. 

§ 13-751(G). Any evidence admitted during the aggravation phase 

is deemed admitted at the penalty phase, as long as the penalty 

jury is the same jury that tried aggravation. See A.R.S. § 13-

752(I). 

¶14 As noted earlier, if the jury is “unable to reach a 

verdict” at the first penalty phase, “the court shall dismiss 

the jury and shall impanel a new jury.” A.R.S. § 13-752(K). 

This new jury may not retry “the defendant’s guilt or the issue 

regarding any of the aggravating circumstances that the first 

jury found by unanimous verdict to be proved or not proved.” 

Id.

¶15 Although no provision comparable to § 13-752(I) 

addresses the admissibility of aggravation-phase evidence during 

a second penalty phase, the statutes are not vague or wholly 

silent on the issue. Section 13-752(G) is framed broadly and 

generally governs the admission of evidence at the penalty 

phase. Significantly, that statute prescribes only one 

criterion for admissibility: relevance “to the determination of 

whether there is mitigation that is sufficiently substantial to 

call for leniency.” A.R.S. § 13-752(G). Subject to overarching 

due process considerations, see State v. Pandeli, 215 Ariz. 514, 

527-28 ¶ 43, 161 P.3d 557, 570-71 (2007), any evidence that 
8 

meets § 13-752(G)’s criterion is admissible, regardless of 

whether the evidence was admissible at a prior stage of the 

trial. 

¶16 Importantly, § 13-752(G) uses the phrase “mitigation 

that is sufficiently substantial to call for leniency,” rather 

than simply “mitigating factors.” The former phrase 

contemplates liberal admission of any evidence relevant not only 

to the existence of mitigating factors, but also to the jury’s 

ultimate determination of whether those factors call for 

leniency in sentencing. Thus, the statute’s standard for 

admissibility is framed in terms of the penalty-phase jury’s 

duty to “assess whether to impose the death penalty based upon 

each juror’s individual, qualitative evaluation of the facts of 

the case, the severity of the aggravating factors, and the 

quality of any mitigating evidence.” State ex rel. Thomas v. 

Granville (Baldwin), 211 Ariz. 468, 472 ¶ 17, 123 P.3d 662, 

666 (2005). Jurors cannot perform that duty without knowing 

relevant facts about the circumstances of the murder and the 

aggravating factors, making aggravation-phase evidence directly 

relevant to whether the mitigation is “sufficiently substantial 

to call for leniency.” 

¶17 Similarly, by also allowing the state to “present any 

evidence that demonstrates that the defendant should not be 

shown leniency,” § 13-752(G) permits any evidence probative on 
9 

that issue, subject only to due process limitations. That 

standard is not constrained by the existence or nature of 

“mitigating factors,” or limited to evidence that was relevant 

or admissible at a prior stage of the trial. 

¶18 Consequently, during a second penalty phase, the state 

and the defendant may introduce evidence pertaining to the 

aggravating circumstances previously found, subject to § 13-

752(G)’s general relevance standard. The parties largely 

control which facts are presented to the jury about the 

aggravating circumstances, with the trial judge acting as a 

gatekeeper. Cf. State v. Nichols (Nordstrom), 219 Ariz. 170 174 

¶ 12, 195 P.3d 207, 211 (App. 2008) (stating “the legislature 

has placed no express limits on what evidence a defendant may 

present” during the aggravation phase, except those limitations 

imposed by “the rules of evidence” (citing former A.R.S. § 13-

703(B), now A.R.S. § 13-751(B))).

¶19 Our cases support this conclusion. In State v. Garza, 

we affirmed the trial court’s admission of a 911 tape during the 

penalty phase, noting that it was relevant because the penalty 

jury “may consider the circumstances of the crime in its 

evaluation of mitigation.” 216 Ariz. 56, 68 ¶ 57, 163 P.3d 

1006, 1018 (2007). And in State v. Harrod, we held that A.R.S. 

§ 13-751(G) does not permit residual doubt evidence during the 

penalty phase, but stated that the phrase “any of the 
10 

circumstances of the offense” in § 13-751(G) refers “to such 

factors, among others, as [] how a defendant committed first 

degree murder.” 218 Ariz. 268, 280 ¶ 43, 183 P.3d 519, 531 

(2008). 

¶20 Our view of § 13-752(G) also comports with federal 

constitutional principles. At the penalty phase, the jury must 

make “a reasoned, individualized sentencing determination based 

on a death-eligible defendant’s record, personal 

characteristics, and the circumstances of his crime.” Kansas v. 

Marsh, 548 U.S. 163, 174 (2006) (citing Gregg v. Georgia, 428 

U.S. 153, 189 (1976) (Stewart, J., plurality opinion)). 

Construing § 13-752(G) as generally authorizing the admission of 

evidence concerning the circumstances of the crime and the 

aggravating factors thus preserves the entire statutory scheme’s 

constitutionality. See Kilpatrick v. Superior Court, 105 Ariz. 

413, 416, 466 P.2d 18, 21 (1970). Because the statutes 

governing the second penalty phase provide sufficient guidance, 

we reject Prince’s void-for-vagueness argument. 

3. Constitutionality of Trifurcated Jury Proceeding 

¶21 Prince challenges the trifurcation of his trial, in 

which separate juries tried the guilt, aggravation, and penalty 

phases. A defendant, however, is not entitled to have the same 

jury render verdicts in each phase of a capital trial. State v. 

Anderson, 210 Ariz. 327, 348 ¶ 85, 111 P.3d 369, 390 (2005). 
11 

Consequently, the use of different guilt and sentencing-phase 

juries does not violate a defendant’s rights. Id. We extended 

Anderson in State v. Moore, upholding the use of different 

juries in the aggravation and penalty phases. 222 Ariz. 1, 17 

¶ 90, 213 P.3d 150, 166 (2009).3

¶22 Prince nonetheless argues that the final penalty-phase 

jury in a trifurcated proceeding might not have heard all of the 

relevant circumstances of the crime. He repeats his claim that 

§ 13-752(K) does not adequately guide judges on the 

admissibility of aggravation-phase evidence during the second 

penalty phase. Additionally, even if the same witnesses testify 

in each proceeding, Prince contends a witness’s demeanor and 

words might change, altering how each jury perceives the same 

testimony. 

¶23 As explained earlier, however, § 13-752(G)’s general 

relevance standard governs the admissibility of evidence during 

a second penalty phase. If a defendant believes a trial judge 

incorrectly excluded admissible evidence or admitted excludable 

evidence at any phase, he has a remedy on appeal. And even if 

each jury in a trifurcated proceeding perceives the same 

                                                           

3 In Moore, the penalty-phase jury also retried an 

aggravating factor because the first jury failed to reach a 

verdict on that factor. 222 Ariz. at 6, ¶¶ 13-14, 213 P.3d at 

155. Thus, unlike this case, Moore did not involve a completely 

trifurcated proceeding. 
12 

testimony differently, that does not invariably disadvantage, 

and in some cases could greatly benefit, a defendant. 

¶24 Most importantly, Prince does not point to any 

relevant evidence that was excluded from the second penalty 

jury’s consideration because of the trifurcated proceeding. As 

in Moore, “[s]ubstantially the same evidence was introduced at 

the second sentencing trial as at the . . . first sentencing 

trial.” 222 Ariz. at 17 ¶ 90, 213 P.3d at 166; see Anderson, 

210 Ariz. at 348 ¶ 85, 111 P.3d at 390 (noting “the aggravation 

and penalty phases were essentially a full-blown re-presentation 

of the entire case”). 

¶25 The federal constitution requires only that the jury 

“render a reasoned, individualized sentencing determination 

based on a death-eligible defendant’s record, personal 

characteristics, and the circumstances of his crime.” Marsh, 

548 U.S. at 174. As long as a state’s procedures satisfy this 

requirement, the state “enjoys a range of discretion in imposing 

the death penalty.” Id. Nothing about a trifurcated proceeding 

under § 13-752(K) deprives a defendant of a fair trial or 

reliable sentencing determination. Thus, the trifurcated 

proceeding did not violate Prince’s constitutional rights. 

B. Aggravation Phase 

1. Exclusion of Jurors for Cause 

¶26 Prince argues that the trial court improperly excluded 
13 

four jurors for cause, three because of their reservations about 

the death penalty and one because of his out-of-state felony 

conviction. We review a trial court’s strikes of potential 

jurors for abuse of discretion. State v. Jones, 197 Ariz. 290, 

302 ¶ 24, 4 P.3d 345, 357 (2000). 

¶27 Prince contends that jurors 18, 32, and 66 were 

improperly excluded because of their views on the death penalty. 

The court may not strike a juror because he or she “voiced 

general objections to the death penalty or expressed 

conscientious or religious scruples against its infliction.” 

Witherspoon v. Illinois, 391 U.S. 510, 522 (1968); accord State 

v. Lynch, 225 Ariz. 27, 34-35 ¶ 26, 234 P.3d 595, 602-03 (2010). 

The judge, however, may strike a juror whose views about capital 

punishment “would prevent or substantially impair the 

performance of his duties as a juror in accordance with his 

instructions and his oath.” Wainwright v. Witt, 469 U.S. 412, 

433 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)). 

The juror’s views “need not be proven with ‘unmistakable 

clarity.’” State v. Ellison, 213 Ariz. 116, 137 ¶ 89, 140 P.3d 

899, 920 (2006) (quoting Wainwright, 469 U.S. at 424). Rather, 

in assessing whether to strike a juror, the judge must consider 

“the entirety of [the juror’s] answers.” Lynch, 225 Ariz. at 35 

¶ 28, 234 P.3d at 603. 

¶28 On his written questionnaire, Juror 18 stated he did 
14 

not oppose the death penalty and indicated he did not think 

capital punishment was imposed often enough. During voir dire, 

however, the juror changed his position, stating, “I don’t 

believe anybody has the right to put another person to death,” 

and “I’m still wavering on it right now. It’s tearing me 

apart.” Although the juror did not believe he could sentence 

anyone except a terrorist to death, he also claimed he could 

follow the jury instructions. But later, the juror twice stated 

he did not think he could impose a death sentence. 

¶29 The trial court did not err in striking Juror 18. We 

have upheld strikes for cause when, as here, a juror expressed 

clear reservations about the death penalty. E.g., Lynch, 225 

Ariz. at 35 ¶¶ 27-28, 234 P.3d at 603; State v. Speer, 221 Ariz. 

449, 455-56 ¶¶ 27-28, 212 P.3d 787, 793-94 (2009). And we have 

upheld strikes when a juror is conflicted about imposing the 

death penalty, as Juror 18 was. State v. Garcia, 224 Ariz. 1, 9 

¶¶ 18-19, 226 P.3d 370, 378 (2010); Ellison, 213 Ariz. at 137-38 

¶ 91, 140 P.3d at 920-21. Although Juror 18 said he could vote 

to put a terrorist to death, a juror need not be against the 

death penalty in every possible case to warrant dismissal for 

cause. See Wainwright, 469 U.S. at 421; Lynch, 225 Ariz. at 35 

¶¶ 27-28, 234 P.3d at 603. 

¶30 Juror 32 stated that he opposed the death penalty 

because of the possibility of putting an innocent person to 
15 

death, but indicated he could consider death in the case of a 

serial killer. Despite the juror’s claims that he could follow 

the court’s instructions, he also said it would be “tough” for 

him to set aside his feelings about capital punishment. And 

after the judge asked Juror 32 if he could consider the death 

penalty as an option, he said it would be “hard” for him to do 

so. 

¶31 As with Juror 18, Juror 32 repeatedly expressed 

reservations about his ability to consider the death penalty, 

despite his statement that he could follow the court’s 

instructions. The trial court did not abuse its discretion by 

striking Juror 32. 

¶32 On the written questionnaire, Juror 66 stated that she 

opposed the death penalty except for crimes involving children 

and “some well-thought-out crimes.” During voir dire, defense 

counsel asked the juror if she could consider capital punishment 

for the murder of a thirteen-year-old child, to which the juror 

responded, “That’s a hard one. Basically, I don’t believe in 

the death penalty.” The juror then indicated she could return a 

death sentence, but it would be a “hard decision.” 

¶33 When the prosecutor probed the juror’s definition of a 

“well-thought-out crime,” the following exchange occurred: 

[Prosecutor]: . . . Question 57, describe your views 

on the death penalty. “Life imprisonment only, not 

death except in some well-thought-out crimes.” I mean 
16 

this is a case where the defendant has been found 

guilty, having an argument with his wife, shooting his 

stepdaughter and killing her and then shooting the 

wife. Would that be your definition of a wellthought-out crime? 

[Juror 66]: That was an argument? 

[Prosecutor]: They were arguing first for a lengthy 

period of time. Then he had a gun. 

[Juror 66]: No. 

[Prosecutor]: What would you mean by that when you 

said a well-thought-out crime? 

[Juror 66]: Well, something that was done, thought out 

for months in advance, something that when the time 

was right. 

[Prosecutor]: So there’s really advance planning? 

[Juror 66]: Yes. 

Moments later, the juror acknowledged that her views on the 

death penalty would substantially impair her performance as a 

juror. When the trial court probed the inconsistency in her 

answers, Juror 66 claimed she could consider a death sentence, 

but then told the prosecutor, “I really don’t think I could vote 

for the death penalty.” 

¶34 When a juror “equivocat[es] about whether [she] would 

take [her] personal biases in the jury room[,]” the judge can 

reasonably conclude that her views about the death penalty will 

substantially impair her ability to carry out her duties as a 

juror. Ellison, 213 Ariz. at 137 ¶ 89, 140 P.3d at 920 

(quotation omitted). Viewing Juror 66’s answers as a whole, we 
17 

cannot say the trial court abused its discretion by striking 

her. 

¶35 Prince also contends the prosecutor asked improper 

stakeout questions during his inquiry into Juror 66’s definition 

of a “well-thought-out” crime. Stakeout questions “ask a juror 

to speculate or precommit to how that juror might vote based on 

any particular facts.” United States v. Fell, 372 F. Supp. 2d 

766, 770 (D. Vt. 2005) (quotation omitted) (noting that “not all 

case-specific questions are stake-out questions”). Here, the 

prosecutor merely sought to determine whether Prince’s murder 

fit the juror’s definition of a “well-thought-out crime,” and 

thus determine whether that juror could consider the death 

penalty. That questioning did not seek to precommit the juror 

to a specific result. See Garcia, 224 Ariz. at 9 ¶ 16, 226 P.3d 

at 378 (finding no error when prosecutor asked jurors “if they 

could consider imposing a death sentence if a defendant had not 

actually shot the victim” because the questions asked jurors “if 

they could consider the death penalty in circumstances in which 

it is permitted under Arizona law”). And even if it did, Prince 

does not argue that the questioning constituted prosecutorial 

misconduct or precluded the trial judge from striking Juror 66 

for cause. 

¶36 The trial judge excluded a fourth juror, Juror 62, 

based on his felony conviction in Oklahoma. That juror 
18 

completed an eighteen-month prison sentence and said he was not 

under the continuing supervision of the Oklahoma courts. He did 

not know, however, if his civil rights had been restored. 

Absent any such showing, the judge found Juror 62 ineligible for 

jury service. 

¶37 To qualify for jury service in Arizona, a person must 

“[n]ever have been convicted of a felony, unless the juror’s 

civil rights have been restored.” A.R.S § 21-201(3). 

Similarly, under Title 13, A.R.S., “[a] conviction for a felony” 

suspends various civil rights, including “[t]he right to serve 

as a juror.” A.R.S. § 13-904(A)(3). 

¶38 Prince argues that conviction of an out-of-state 

felony does not bar jury service in Arizona. Section 13-105(18) 

defines felony as “an offense for which a sentence to a term of 

imprisonment in the custody of the state department of 

corrections is authorized by any law of this state.” Prince 

claims that § 13-105’s definition of “felony” as requiring 

custody in Arizona applies to §§ 13-904 and 21-201 because both 

statutes address the subject of juror disqualification based on 

felony convictions. But § 13-105 limits its application to 

“this title,” making Title 13’s definition of felony 

inapplicable to a Title 21 statute. 

¶39 Section 21-201 sets forth general qualifications for 

jury service and reflects the policy that jurors should be 
19 

“citizens who uphold and obey the law.” State v. Bojorquez, 111 

Ariz. 549, 555, 535 P.2d 6, 12 (1975). Applying Title 13’s 

definition of felony to § 21-201 would disqualify from jury 

service only those convicted of a felony under Arizona law and 

exempt those convicted of a felony in federal court or another 

state, which would undermine the policy behind § 21-201(3). 

¶40 A juror convicted of an out-of-state felony whose 

civil rights have not been restored is disqualified from jury 

service by § 21-201(3). Because Juror 62 was a convicted felon 

who did not aver that his civil rights had been restored, the 

trial court did not abuse its discretion in striking him. 

2. Testimony of Gun Expert

¶41 Prince argues that reading a transcript of the State’s 

gun expert’s guilt-phase testimony to the aggravation-phase jury 

violated his Confrontation Clause rights. After a juror asked 

questions relating to the murder weapon, defense counsel 

informed the court that those questions could be answered by the 

gun expert. According to defense counsel, the parties 

originally planned to stipulate to the reading of that witness’s 

prior testimony. Although no such stipulation occurred, defense 

counsel did not object when the gun expert’s guilt-phase 

testimony was read to the jury. We therefore review Prince’s 

claim for fundamental error. See State v. Henderson, 210 Ariz. 

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

¶42 A defendant has a right to confront testimonial 

hearsay evidence introduced to establish an aggravating factor. 

State v. Tucker, 215 Ariz. 298, 315 ¶ 61, 160 P.3d 177, 194 

(2007). Prior trial testimony is hearsay, Ariz. R. Evid. 

804(b)(1), but admissible if (1) the declarant is unavailable, 

and (2) “[t]he party against whom the former testimony is 

offered . . . had the right and opportunity to cross-examine the 

declarant with an interest and motive similar to that which the 

party now has.” Ariz. R. Crim. P. 19.3(c)(1); accord State v. 

Armstrong, 218 Ariz. 451, 460 ¶ 32, 189 P.3d 378, 387 (2008) 

(citing Crawford v. Washington, 541 U.S. 36, 59 (2004)). 

¶43 Even if reading the transcript violated the 

Confrontation Clause (an issue we need not decide), Prince 

cannot show prejudice. The gun expert’s testimony was 

irrelevant to the (F)(9) aggravating factor (the ages of the 

defendant and the victim) and did not directly relate to the 

core (F)(6) issue: whether Cassandra consciously suffered 

physical pain or mental anguish. Although the expert bolstered 

Christine’s credibility by corroborating her testimony that 

Prince fired the gun through the pillow, two other witnesses 

also had testified to that fact.

¶44 Prince argues he was prejudiced because the gunexpert’s testimony created confusion about whether Prince had 

intended to commit suicide after he fled to a vacant apartment. 
21 

He now claims that issue was crucial to whether he could have 

reasonably foreseen Cassandra’s suffering, an element of the 

(F)(6) aggravator.4 Even if the expert’s testimony was relevant 

to this issue, Prince cannot show prejudice because he did not 

place his mental state at issue during the aggravation phase. 

Neither he nor any other witness testified about his state of 

mind on the night of the shooting. Prince also did not 

introduce any expert testimony that his mental state made him 

unable to reasonably foresee Cassandra’s mental anguish. Cf. 

State v. Moody, 208 Ariz. 424, 472 ¶ 226, 94 P.3d 1119, 1167 

(2004) (holding that the (F)(6) aggravator was not established 

beyond a reasonable doubt when “evidence was presented that [the 

defendant] was in a ‘dissociated state’ due to psychosis”) 

(emphasis added). Therefore, Prince has not established 

fundamental error. 

3. Waiver of Right to Testify 

¶45 Prince argues that the trial judge’s failure to obtain 

an on-the-record waiver of his right to testify during both the 

                                                           

4

 In the vacant apartment to which Prince fled after the 

shootings, police found the murder weapon, an expended shell 

casing, a six-inch piece of wire, and three damaged rounds of 

ammunition. The gun expert testified that the gun failed to 

feed on several occasions during his test fires, but that did 

not damage the bullets, unlike the bullets found in the vacant 

unit. According to Prince, his inability to cross-examine the 

expert in the aggravation phase limited his ability to contend 

that he was, in fact, suicidal. 
22 

aggravation and penalty phases violated his constitutional 

rights. A trial court need not inquire on the record whether a 

defendant has waived his right to testify. State v. 

Gulbrandson, 184 Ariz. 46, 64-65, 906 P.2d 579, 597-98 (1995); 

State v. Allie, 147 Ariz. 320, 328, 710 P.2d 430, 438 (1985). 

“[I]n an appropriate case,” however, “it may be prudent for a 

trial court” to do so. Gulbrandson, 184 Ariz. at 64-65, 906 

P.2d at 597-98 (declining to require an on-the-record waiver 

when defendant stated to trial court “he wanted to testify at 

the trial, but his lawyer told him it was too late”). 

¶46 Prince argues an on-the-record waiver was required 

because of his low IQ and his multiple motions to change 

counsel, which he claims indicated a strained attorney-client 

relationship. But throughout the trial, Prince never hesitated 

to assert his legal rights or make objections. He frequently 

filed pro se motions to change counsel, requested discovery 

materials from his lawyers, and filed an “inquiry” with the 

State Bar against one of his lawyers. In addition, Prince 

testified during the guilt phase, and nothing in the record 

suggests he was led to believe he could not also testify in the 

later phases. Had Prince wanted to testify in the aggravation 

or penalty phase, he could have expressed that desire, just as 

he made his other complaints known to the court. Cf. State v. 

Tillery, 107 Ariz. 34, 37, 481 P.2d 271, 274 (1971) (“Were 
23 

defendant’s desires to testify in his own behalf as strong and 

unrelent[ing] as he now claims they were, he would not have 

maintained his silence throughout the entire trial. He might 

very easily have directed his request to the court or made 

motion to have his attorney removed.”). 

¶47 Because Prince did not invoke his right to testify, he 

“cannot now be heard to complain.” Allie, 147 Ariz. at 328, 710 

P.2d at 438. The trial court did not err. 

4. Constitutionality of (F)(6) Jury Instruction 

¶48 Prince argues that the jury instruction on especial 

cruelty, A.R.S. § 13-751(F)(6), was unconstitutionally vague and 

failed to properly channel the jury’s sentencing discretion. 

Because he did not argue that below, Prince must show 

fundamental error. State v. Gomez, 211 Ariz. 494, 499 ¶ 20, 123 

P.3d 1131, 1136 (2005). 

¶49 Although the (F)(6) aggravator is facially vague, it 

“may be remedied with appropriate narrowing instructions.” 

Tucker, 215 Ariz. at 310 ¶ 28, 160 P.3d at 189; accord State v. 

Hargrave, 225 Ariz. 1, 13 ¶ 43, 234 P.3d 569, 581 (2010). The 

instructions must “sufficiently narrow[]” the statutory terms, 

Tucker, 215 Ariz. at 310 ¶ 28, 160 P.3d at 189, such that the 

sentencer has “sufficient guidance.” Walton v. Arizona, 497 

U.S. 639, 655 (1990), overruled on other grounds by Ring II, 536 

U.S. at 589. 
24 

¶50 The trial judge instructed the jury on especial 

cruelty as follows: 

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

However, this aggravating circumstance cannot be found 

to exist unless the State has proven beyond a 

reasonable doubt that the murder was “especially” 

cruel . . . . “Especially” means “unusually great or 

significant.” In other words, the murder must have 

been committed in such a way as to set the Defendant’s 

acts apart from the norm of first-degree murder. 

. . . . 

The term “cruel” focuses on the victim’s mental 

anguish. To find that the murder was committed in an 

“especially” cruel manner you must find that the 

victim consciously suffered extreme mental distress or 

anguish prior to death. A murder is “especially” 

cruel when there has been the infliction of mental 

suffering in an “especially” wanton and insensitive or 

vindictive manner. The Defendant must know or should 

have known that the victim would suffer anguish. 

A finding of “cruelty” requires conclusive evidence 

that the victim was conscious during the infliction of 

the violence and experienced significant uncertainty 

as to his or her ultimate fate. The passage of time 

is not determinative. 

¶51 Prince claims that the reference to “the norm of 

first-degree murder” is vague because juries have no experience 

with murder and therefore no context in which to understand the 

“norm” of first degree murder. Although the instruction’s “norm 

of first-degree murder” language is often urged by defendants, 

who can certainly make that point in closing arguments, it is 

neither necessary nor particularly helpful in a jury 

instruction. See State v. Bocharski, 218 Ariz. 476, 487-88 
25 

¶¶ 47-50, 189 P.3d 403, 414-15 (2008). But we have repeatedly 

upheld jury instructions using that phrase, and its inclusion in 

the (F)(6) instruction here was not fundamental error. State v. 

McCray, 218 Ariz. 252, 258-59 ¶ 26 n.3, 183 P.3d 503, 509-10 

(2008); State v. Andriano, 215 Ariz. 497, 506 ¶¶ 42-43, 161 P.3d 

540, 549 (2007); Tucker, 215 Ariz. at 310-11 ¶¶ 30, 33, 160 P.3d 

at 189-90. Prince also argues that the phrase “especially 

wanton and insensitive” is vague, but we have approved jury 

instructions using that language as well. State v. Chappell, 

225 Ariz. 229, 237-38 ¶ 27 & n.6, 236 P.3d 1176, 1184-85 & n.6 

(2010); Anderson, 210 Ariz. at 352-53 ¶ 111 & n.19, 111 P.3d at 

394-95 & n.19. Viewed as a whole, the instruction sufficiently 

narrowed the (F)(6) aggravator and, therefore, Prince has not 

established fundamental error. 

¶52 Prince next argues that the trial court erred by 

denying his request to give the following instruction: 

The passage of time is not determinative, but the 

length of time during which the victim contemplated 

her fate affects whether the mental anguish is 

sufficient to bring the first degree murder of the 

victim within that group of first degree murders that 

is especially cruel. 

Because most murders involve some period during which the victim 

experiences fear, Prince claims, his requested instruction was 

necessary to channel the jury’s discretion when, as here, the 

events occurred within a short time.
26 

¶53 The judge did not err by denying Prince’s requested 

instruction. We have repeatedly approved (F)(6) instructions 

that do not contain the language Prince requested. E.g., 

Tucker, 215 Ariz. at 310-11 ¶¶ 30-31, 160 P.3d at 189-90; State 

v. Cromwell, 211 Ariz. 181, 189 ¶ 42, 119 P.3d 448, 456 (2005); 

Anderson, 210 Ariz. at 352-53 ¶¶ 111, 113 & n.19, 111 P.3d at 

394-95 & n.19. The instruction in Anderson contained only the 

sentence “The passage of time is not determinative,” the same 

instruction given here. 210 Ariz. at 352 ¶ 111 n.19, 111 P.3d 

at 394 n.19. Although the passage of time is a relevant factor 

for evaluating the victim’s uncertainty about her fate, see 

State v. Snelling, 225 Ariz. 182, 188 ¶ 27, 236 P.3d 409, 415 

(2010), we have never required an instruction to this effect. 

More importantly, although proof that a victim experienced 

uncertainty about her fate may be sufficient, it is not a 

necessary element to establish that the victim consciously 

experienced mental pain. See Tucker, 215 Ariz. at 311 ¶ 33, 160 

P.3d at 190; Ellison, 213 Ariz. at 142 ¶ 120, 140 P.3d at 925. 

¶54 Notably, the instruction required the jury to find 

“extreme mental distress,” a phrasing that was more favorable to 

Prince than our case law otherwise requires. See Chappell, 225 

Ariz. at 237-38 ¶ 27, 236 P.3d at 1184-85 (stating “the mental 

or physical pain used to establish the (F)(6) aggravator” need 

not be “extreme”). The jury instructions adequately narrowed 
27 

the (F)(6) aggravator and properly channeled the jury’s 

sentencing discretion. 

5. Sleeping Juror 

¶55 Prince argues the trial court erroneously denied his 

motion for mistrial based on a juror sleeping during the 

aggravation phase. When the gun expert’s guilt-phase testimony 

was read to the jury, defense counsel informed the court that 

Juror 16 was asleep. The judge gave defense counsel an 

opportunity to designate that juror as an alternate, but counsel 

deferred that decision until the next day. Defense counsel 

never raised the issue again, however, and Juror 16 was among 

the deliberating jurors who found the two aggravators. During 

the first penalty phase (which ended with a hung jury), this 

juror fell asleep repeatedly and the parties agreed to replace 

him with an alternate. Prince then moved for a mistrial based 

on the juror sleeping during the aggravation phase, which the 

judge denied. 

¶56 Because Prince failed to take curative action to 

remove Juror 16 when he had the opportunity to do so during the 

aggravation phase, he must show that the trial court committed 

fundamental error in denying the motion for a mistrial. See 

Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607; cf. State v. 

Spratt, 126 Ariz. 184, 187-88, 613 P.2d 848, 851-52 (App. 1980) 

(concluding defendant waived any error caused by a sleeping 
28 

juror when counsel “refus[ed] to take curative action” such as 

“enter[ing] into any stipulation concerning the sleeping juror” 

or making a motion). 

¶57 Juror misconduct warrants a new trial if “the defense 

shows actual prejudice or if prejudice may be fairly presumed 

from the facts.” State v. Miller, 178 Ariz. 555, 558, 875 P.2d 

788, 791 (1994) (emphasis omitted). A juror’s “mere falling 

asleep for a short time . . . does not of itself constitute a 

sufficient cause for a new trial.” Whiting v. State, 516 N.E.2d 

1067, 1068 (Ind. 1987) (quotation omitted). Nor is reversal 

required when, as here, no evidence shows that the sleeping 

juror “missed large portions of the trial or that the portions 

missed were particularly critical.” United States v. Freitag, 

230 F.3d 1019, 1023 (7th Cir. 2000). 

¶58 No error, fundamental or otherwise, occurred here. 

Prince points to no specific prejudice that resulted from the 

juror falling asleep. Juror 16 nodded off just once during the 

aggravation phase, when the gun expert’s prior testimony was 

read. Nothing indicates that the testimony was particularly 

critical (see supra ¶¶ 43-44) or that Juror 16 missed large 

portions of the trial. Thus, prejudice may not be presumed, and 

the trial judge did not err by denying Prince’s motion for a 

mistrial. 

C. Penalty Phase 
29 

1. Caldwell Violation 

¶59 Prince claims that the second penalty-phase proceeding 

violated Caldwell v. Mississippi, 472 U.S. 320 (1985), in two 

ways. First, he contends the penalty-phase jury abdicated its 

responsibility for imposing a death sentence to the aggravationphase jury. Because Prince did not argue this at trial, we 

review for fundamental error. 

¶60 A death sentence must be vacated if the sentencer was 

“led to believe that the responsibility for determining the 

appropriateness of the defendant’s death rests elsewhere.” Id.

at 328-29. We have concluded that use of different juries for 

guilt and sentencing phases does not violate Caldwell as long as 

the sentencing jury is not misled about its role. E.g., State 

v. Dann, 220 Ariz. 351, 360-61 ¶¶ 29-30, 207 P.3d 604, 613-14 

(2009); Bocharski, 218 Ariz. at 483 ¶¶ 19-20, 189 P.3d at 410; 

cf. Anderson, 210 Ariz. at 347-48 ¶¶ 81-86, 111 P.3d at 389-90 

(noting a defendant has no absolute right to have the guiltphase jury also determine the sentence). Similarly, we have 

held that use of different juries for the aggravation and 

penalty phases does not violate Caldwell. Moore, 222 Ariz. at 

18 ¶ 93, 213 P.3d at 167 (stating the bifurcation of the 

sentencing phase into two different juries “is not substantively 

different from the bifurcation sanctioned under” Dann and 

Bocharski). 
30 

¶61 Prince distinguishes Moore because the penalty-phase 

jury in that case retried an aggravating factor, making it “no 

different from the aggravation phase jury” for Caldwell

purposes. But Moore approved bifurcation of the aggravation and 

penalty phases and did not suggest that bifurcation is 

permissible only if the penalty-phase jury also retries an 

aggravating factor. Moreover, the record does not indicate that 

the penalty-phase jurors were misled or confused about their 

role or otherwise abdicated their responsibility for Prince’s 

death sentence. To the contrary, the judge instructed that jury 

that it alone decided Prince’s fate, stating, “Your decision is 

not a recommendation. Your decision will be binding. If your 

verdict is that Mr. Prince should be sentenced to death, he will 

be sentenced to death.” That instruction “convey[s] the gravity 

of the [penalty] jurors’ task.” Hargrave, 225 Ariz. at 14 ¶ 49, 

234 P.3d at 582; accord Garcia, 224 Ariz. at 17 ¶ 73, 226 P.3d 

at 386. Bifurcating the aggravation and penalty phases thus did 

not violate Caldwell.

¶62 Second, Prince argues the trial court violated 

Caldwell by refusing his request for the following instruction 

before the second penalty phase: 

Your individual decision is not a recommendation. 

Your individual decision will be binding. If there is 

unanimous agreement of individual decisions for a 

sentence of death then Mr. Prince will be sentenced to 

death and you must assume that he will be executed. 
31 

Your verdict cannot be changed by me or on appeal. No 

one can change or reverse your ultimate determination 

on the appropriate sentence. 

¶63 In Caldwell, the Supreme Court vacated a death 

sentence when the prosecutor, in closing argument, told the jury 

its decision “[was] automatically reviewable by the Supreme 

Court.” 472 U.S. at 325-26, 341. “[T]he uncorrected suggestion 

that the responsibility for any ultimate determination of death 

will rest with others” violates the Eighth Amendment. Id. at 

333. The Supreme Court, however, later made Caldwell “relevant 

only to certain types of comment[s]-those that mislead the jury 

as to its role in the sentencing process in a way that allows 

the jury to feel less responsible than it should for the 

sentencing decision.” Romano v. Oklahoma, 512 U.S. 1, 9 (1994) 

(quotation omitted). 

¶64 Prince acknowledges that Caldwell applies only to 

affirmative comments that mislead the jury. See State v. 

Martinez, 218 Ariz. 421, 429 ¶ 33, 189 P.3d 348, 356 (2008). He 

nevertheless argues that “silence regarding appellate processes 

may violate Caldwell,” and that “an affirmative statement should 

be made that appellate review could lead to a reversal of the 

[death] penalty only in the most unlikely circumstances” because 

jurors can easily access information that could mislead them 

about the appellate process. No case, however, requires a jury 

instruction that explains the intricacies or likely results of 
32 

the appellate process. 

2. Victim Impact Evidence 

¶65 Arizona permits victim impact evidence during the 

penalty phase of capital sentencing proceedings. See A.R.S. 

§ 13-752(R). Although the Eighth Amendment “erects no per se 

bar” to the admission of such evidence, the Fourteenth 

Amendment’s Due Process Clause prohibits victim impact evidence 

that “is so unduly prejudicial that it renders the trial 

fundamentally unfair.” Payne v. Tennessee, 501 U.S. 808, 825-26 

(1991) (emphasis omitted); accord Dann, 220 Ariz. at 369 ¶ 98, 

207 P.3d at 622. Additionally, a victim may not recommend a 

particular sentence. Ellison, 213 Ariz. at 141 ¶ 111, 140 P.3d 

at 924. 

¶66 During the first penalty phase, Christine made a 

victim impact statement to the jury pursuant to § 13-752(R). 

After that jury deadlocked on the appropriate penalty and a new 

jury was convened for the second penalty phase, Christine did 

not appear, but a victim advocate read her statement verbatim to 

the second penalty-phase jury. 

¶67 Prince argues that § 13-752(R) violates the Eighth 

Amendment because it does not prohibit victim recommendations 

for a sentence or other victim impact evidence that renders the 

trial fundamentally unfair. But Payne, Dann, and Ellison

establish that such evidence is not admissible under § 13-
33 

752(R). And Christine did not try to recommend or otherwise 

suggest a particular sentence. 

¶68 Prince also asserts that victim impact evidence is 

irrelevant in the penalty phase because mitigation focuses on 

the defendant rather than the victim or the impact of the 

victim’s death on others. We have repeatedly rejected that 

argument. See, e.g., Bocharski, 218 Ariz. at 488 ¶ 51, 189 P.3d 

at 415 (citing Ellison, 213 Ariz. at 140-41 ¶ 111, 140 P.3d at 

923-24); see also Payne, 501 U.S. at 825 (upholding victim 

impact evidence as a method of “informing the sentencing 

authority about the specific harm caused by the crime,” thus 

allowing “the jury to assess meaningfully the defendant’s moral 

culpability”). 

¶69 Prince further contends that § 13-752(R) 

unconstitutionally permits evidence that “infus[es] irrelevant 

emotions into the proceeding.” We have rejected that argument 

too. E.g., Dann, 220 Ariz. at 369-70 ¶ 101, 207 P.3d at 622-23. 

Moreover, the trial court here instructed the jury to consider 

the victim impact evidence “to the extent it rebuts mitigation,” 

but not “as a new aggravating circumstance.” See Bocharski, 218 

Ariz. at 488 ¶ 53, 189 P.3d at 415 (finding no Eighth Amendment 

violation when jurors instructed to consider victim impact 

statement “only to rebut the mitigation evidence”). 

¶70 Next, Prince claims his Confrontation Clause rights 
34 

were violated when the victim advocate read Christine’s 

statement to the second penalty-phase jury. Because 

confrontation rights do not extend to the penalty phase under 

either the Arizona or federal Constitution, no Confrontation 

Clause violation occurs when a third party reads a victim impact 

statement to the jury during the penalty phase. Tucker, 215 

Ariz. at 320 ¶ 94, 160 P.3d at 199. 

¶71 Finally, Prince asserts that Christine’s statement was 

unduly prejudicial in part because it was too long, comprising 

eight pages of transcript compared to the five-sentence 

statement in Payne. The Court in Payne, however, did not 

suggest its result turned on the short length of the statement. 

Indeed, courts have upheld much longer victim impact statements 

against claims of undue prejudice. E.g., United States v. 

Nelson, 347 F.3d 701, 713-14 (8th Cir. 2003) (six statements 

totaling 101 pages); State v. Taylor, 838 So. 2d 729, 753 (La. 

2003) (eight and one-half pages). 

¶72 Prince also claims that several of Christine’s remarks 

were unduly prejudicial. Christine stated: 

Nine and a half years later and we’re all still going 

through the same pain and trying to just figure out 

how to get by another day. For me, because I was 

there every single moment of that night is in my head 

24 hours a day. I can still feel the stubble on my 

hands and my face. I can hear her crying when he 

threw her across the floor. I can hear, oh, the sound 

of her last breaths. I can hear her heart beating 
35 

when it was stopping. I can smell it. It never goes 

away, twenty-four hours a day, every single day. 

¶73 Prince argues that the jurors could have construed 

Christine’s reference to “nine and a half years later” as a plea 

for the death penalty. But that statement was in the context of 

Christine describing her persistent pain due to the loss of her 

daughter. Prince also contends that Christine improperly 

described details of the offense, but we have upheld similar 

comments. See State v. Glassel, 211 Ariz. 33, 53-54 ¶¶ 79, 86, 

116 P.3d 1193, 1213-14 (2005); cf. Simmons v. Bowersox, 235 F.3d 

1124, 1134-35 (8th Cir. 2001) (finding no undue prejudice when 

statement speculated at length about the victim’s thoughts and 

feelings during the murder). Prince has not shown undue 

prejudice. 

¶74 In her statement, Christine also spoke of Cassandra’s 

ambitions to become a doctor and practice on an Indian 

reservation. Prince contends that a victim impact statement may 

not describe the murder victim’s future plans, citing Conover v. 

State, 933 P.2d 904, 921 (Okla. Crim. App. 1997). Conover is 

inapposite, however, because its holding was based solely on 

Oklahoma’s statute, not due process considerations. Moreover, a 

victim impact statement that “show[s] . . . [the] victim’s 

uniqueness as an individual human being” is permissible. Payne, 

501 U.S. at 823 (quotation omitted). 
36 

¶75 Courts routinely uphold statements that touch on the 

victim’s future plans. E.g., Raulerson v. State, 491 S.E.2d 

791, 801-02 (Ga. 1997) (upholding statement describing victims’ 

plans to marry and attend college); State v. Rocheville, 425 

S.E.2d 32, 36 (S.C. 1993); State v. Gentry, 888 P.2d 1105, 1113, 

1134 (Wash. 1995) (upholding statement from victim’s father 

describing the twelve-year-old victim’s plans for the future). 

Here, Christine did not describe Cassandra’s ambitions at length 

or in an unduly prejudicial manner. 

¶76 Finally, Prince objects to Christine’s description of 

the impact Cassandra’s death had on the family. Once again, 

however, we have upheld similar comments. See Armstrong, 218 

Ariz. at 463 ¶¶ 52-53, 189 P.3d at 390 (“[The victim] ended her 

statement by describing how the murders negatively affected her 

family and [her son] in particular because he lacked a fatherly 

figure in his life.”); State v. Carreon, 210 Ariz. 54, 72 ¶¶ 91-

93, 107 P.3d 900, 918 (2005) (upholding statements that the 

victim’s daughter “almost committed suicide because she felt 

blamed” and that the victim’s son was “not going to school, 

hanging out with the wrong crowd [and] getting into drugs”). 

3. Jury Instructions on Mitigation 

¶77 Prince argues that the jury instructions on mitigation 

given during the second penalty phase were inconsistent and 

confusing. We review de novo whether jury instructions 
37 

correctly state the law, State v. Gallardo, 225 Ariz. 560, 567 

¶ 30, 242 P.3d 159, 166 (2010), “read[ing] the jury instructions 

as a whole to ensure that the jury receives the information it 

needs to arrive at a legally correct decision,” Granville, 211 

Ariz. at 471 ¶ 8, 123 P.3d at 665 (citing Kauffman v. Schroeder,

116 Ariz. 104, 106, 568 P.2d 411, 413 (1977)). 

¶78 At the close of the penalty phase, the judge 

instructed the jury that “[m]itigating circumstances may be 

found from any evidence presented during this hearing.” The 

judge then gave more specific instructions regarding mitigation: 

Mitigating circumstances are any factors that are a 

basis for a life sentence instead of a death sentence, 

so long as they relate to any sympathetic or other 

aspect of Mr. Prince’s character, propensity, history 

or record, or circumstances of the offense. 

Mitigating circumstances are not an excuse or 

justification for the offense, but are factors that in 

fairness or mercy may reduce Mr. Prince’s moral 

culpability. 

Mitigating circumstances may be offered by the defense 

or the State or be apparent from the evidence 

presented at this hearing. You are not required to 

find that there is a connection between a mitigating 

circumstance and the crime committed in order to 

consider the mitigation evidence. 

. . . . 

While all 12 of you must unanimously agree regarding 

the appropriate sentence, you do not need to 

unanimously agree on a particular mitigating 

circumstance. Each one of you must decide 

individually whether any mitigating circumstance 

exists. 
38 

The defense bears the burden of proving the existence 

of any mitigating circumstance by a preponderance of 

the evidence. That is, although the defense need not 

prove its existence beyond a reasonable doubt, the 

defense must convince you by the evidence presented 

that it is more probably true than not true that such 

a mitigating circumstance exists. 

¶79 Prince concedes that these instructions correctly 

stated the law, but argues they were likely to confuse the jury. 

Although the jury was instructed that the defense has the burden 

of proving the existence of mitigation, the jury was also told 

it could consider any evidence, even if adduced by the State, in 

making its final determination. According to Prince, “the 

interplay” between these instructions gave him the burden of 

persuasion, but not the burden of production, which is 

“inconceivable to the lay person not educated in the law.” 

Prince asserts that the confusing instructions could prompt “the 

average juror [to] simply ignore any evidence that was not 

affirmatively introduced by the defense.” Because Prince did 

not object on this ground at trial, we review for fundamental 

error only. See State v. Roque, 213 Ariz. 193, 225 ¶ 134, 141 

P.3d 368, 400 (2006). 

¶80 No error occurred, fundamental or otherwise. Jurors 

are presumed to follow jury instructions. State v. LeBlanc, 186 

Ariz. 437, 439, 924 P.2d 441, 443 (1996). Nothing in the record 

suggests that the final penalty-phase jurors were confused or 

failed to consider any evidence that could have been mitigating. 
39 

Additionally, both instructions find support in Supreme Court 

case law. See Marsh, 548 U.S. at 170-71 (allowing states to 

place on defendants the burden of proving mitigating 

circumstances); Skipper v. South Carolina, 476 U.S. 1, 4 (1986) 

(“[T]he sentencer may not refuse to consider or be precluded 

from considering any relevant mitigating evidence.”) (quotation 

omitted). 

4. Double-Counting of Cassandra’s Age 

¶81 Prince claims that because no special verdict form was 

used, the final penalty jury might have improperly considered 

Cassandra’s age twice in imposing the death sentence.5 Although 

a specific fact, such as the victim’s age, can establish two 

aggravating factors, that fact cannot be “weighed ‘twice in 

balancing aggravating and mitigating circumstances.’” Chappell, 

225 Ariz. at 241 ¶ 48, 236 P.3d at 1188 (quoting State v. 

Velazquez, 216 Ariz. 300, 307 ¶ 21, 166 P.3d 91, 98 (2007)). In 

Chappell, the judge instructed the jury not to “consider twice 

any fact or aspect of the offense.” Id. at ¶ 50; see also

Velazquez, 216 Ariz. at 307 ¶ 23, 166 P.3d at 98. 

¶82 The trial court here did not instruct the jury to 

refrain from counting Cassandra’s age twice. But unlike 

                                                           

5

 Prince raises this point as a reason to set aside the 

especial cruelty finding on independent review, but his 

contention is better viewed as a separate point of error. 
40 

Velazquez, Prince did not request a specific jury instruction on 

this point. Indeed, Prince never raised the double-counting 

issue at any time. Thus, fundamental error review applies. See 

Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607. 

¶83 Prince cannot show error, let alone fundamental error. 

As he acknowledges, “it is unknown, and indeed unknowable, 

whether [Cassandra’s] age was counted twice in imposing the 

death sentence.” But even if the trial court erred by failing 

to specifically instruct the jury on this point or by not using 

a special verdict form, no prejudice resulted. The court’s 

instruction defining the (F)(6) especial cruelty aggravator did 

not mention the victim’s age. Nor did the prosecutor suggest 

that the victim’s age is a factor in the (F)(6) analysis, unlike 

the situation presented in Chappell. 

D. Prosecutorial Misconduct 

¶84 Prince alleges several instances of prosecutorial 

misconduct. We will reverse a conviction because of 

prosecutorial misconduct if “(1) misconduct is indeed present; 

and (2) a reasonable likelihood exists that the misconduct could 

have affected the jury’s verdict, thereby denying defendant a 

fair trial.” Anderson, 210 Ariz. at 340 ¶ 45, 111 P.3d at 382 

(quotation omitted). Because Prince never objected or moved for 

a mistrial on grounds of prosecutorial misconduct, we review his 

claims for fundamental error. Roque, 213 Ariz. at 228 ¶ 154, 
41 

141 P.3d at 403. 

¶85 After shooting Cassandra, Prince shot Christine in the 

lower jaw. Prince claims that the prosecutor improperly 

questioned Christine about her medical condition during the 

aggravation phase. At the beginning of her testimony, the 

prosecutor sought to establish how Christine’s “physical 

condition . . . might relate to [her] testimony.” He asked 

Christine about her current medical condition, and she responded 

that she had hepatitis C and “bullet and bone fragments in [her] 

brain” that may be lethal if they move. After questioning 

Christine about the twenty-six medications she was taking, the 

prosecutor asked whether her medical condition affected her 

“memory or ability to testify,” and she said it did not. 

Moments later, Christine started crying, and the prosecutor then 

asked, “Do you think it’s the medication that’s making you cry?” 

Christine said no but also stated, “Because I sat for the last 

nine years dealing with this and I thought it was over.” The 

judge sustained defense counsel’s objection and instructed the 

jury to disregard that testimony. 

¶86 Later, as Christine described the shootings, the 

prosecutor again asked about Christine’s injuries, and after 

defense counsel asked to approach the bench, the prosecutor 

stated he would “move off of that area.” The prosecutor, 

however, ended his direct examination with more questions about 
42 

Christine’s injuries, asking her where the bullet hit her and 

how many surgeries she had, to which the answer was forty-six. 

¶87 The prosecutor’s initial questions about Christine’s 

health were not improper because they related to Christine’s 

ability to recall events and testify. And even if the 

prosecutor’s other questions about Christine’s health were 

improper, Prince has not shown prejudice. His claim that 

questions about Christine’s medical condition induced the jury 

to find Cassandra’s murder exceptionally cruel is speculative at 

best. Moreover, the trial court instructed the jury to 

disregard any questions to which objections were sustained, and 

“not to be swayed by mere sentiment, conjecture, sympathy, 

passion, prejudice, public opinion or public feeling.” Those 

instructions “sufficiently countered any negative impact” the 

prosecutor’s questions might have had on the jury. See State v. 

Atwood, 171 Ariz. 576, 609, 832 P.2d 593, 626 (1992), overruled 

on other grounds by State v. Nordstrom, 200 Ariz. 229, 241 ¶ 25, 

25 P.3d 717, 729 (2001). 

¶88 Prince alleges that, during the second penalty phase, 

the prosecutor improperly used the term “excuse” during his 

questioning of both psychiatric experts. On cross-examination 

of Prince’s expert, the prosecutor asked whether Prince’s 

molestation as a teenager was “an excuse for what he did” and 

whether the jury was “supposed to forgive [Prince] just – 
43 

because he got mad all the time[.]” Defense counsel promptly 

objected, claiming the prosecutor’s use of the term “excuse” 

implied an improper standard regarding mitigation. The judge 

sustained the objection. The next day, the prosecutor similarly 

questioned the State’s expert, asking “do we normally look at 

antisocial personality disorder as an excuse for commission of a 

crime.” Once again, the judge sustained defense counsel’s 

objection. 

¶89 Prince cannot show fundamental error. Even if the 

prosecutor’s questions misstated the standard governing 

mitigation, the trial court immediately corrected the error by 

sustaining Prince’s objections and instructing the jury to 

disregard any question and answer for which the court sustained 

an objection. Additionally, the court instructed the jury 

extensively about how to assess mitigation, stating 

“[m]itigating circumstances are not an excuse or justification 

for the offense.” Any confusion about the applicable standard 

was cured by the jury instructions. See State v. Newell, 212 

Ariz. 389, 403 ¶ 68, 132 P.3d 833, 847 (2006) (stating jurors 

are presumed to follow instructions). 

¶90 During the prosecutor’s second penalty-phase closing 

argument, he stated, “This guy’s bad temper doesn’t – is not 

mitigation that’s sufficiently substantial to call for leniency. 

It should be aggravation. [Prince] should have learned not to 
44 

be blowing his stack like that.” Although the prosecutor 

misstated the law regarding aggravation, see A.R.S. § 13-752(K) 

(stating the second penalty-phase jury shall not retry 

aggravation), the error was not fundamental. After the judge 

sustained defense counsel’s subsequent objection, the prosecutor 

immediately corrected himself, alleviating any prejudice caused 

by his misstatement. Additionally, the judge instructed the 

jury that two aggravating factors had already been found and 

that the lawyers’ closing arguments were not evidence, negating 

the remark’s effect. See State v. Morris, 215 Ariz. 324, 336-37 

¶ 55, 160 P.3d 203, 215-16 (2007); Anderson, 210 Ariz. at 341-42 

¶ 50, 111 P.3d at 383-84. 

¶91 Finally, Prince claims the prosecutor improperly said 

during the second penalty-phase closing argument that no 

connection existed between Prince having previously been 

molested and the crime: 

[The molestation] was damaging to him. It created 

this sexual identity crisis for him. It probably was 

carried over all the way until he was arrested for 

this crime. That was a problem for him. But you may 

want to consider what does that have to do with 

killing a 13-year-old girl? 

This argument, however, was not improper. Although a connection 

between a defendant’s proffered mitigation and the crime is not 

required, “the state may fairly argue that the lack of a nexus 

to the crime diminishes the weight to be given alleged 
45 

mitigation.” State v. Villalobos, 225 Ariz. 74, 83 ¶ 39, 235 

P.3d 227, 236 (2010). Prince thus has not established 

fundamental error resulting from any of the incidents of alleged 

misconduct. 

¶92 Even if any individual instances of prosecutorial 

misconduct do not warrant reversal, we also consider whether 

“persistent and pervasive misconduct occurred” and “the 

cumulative effect.” Morris, 215 Ariz. at 339 ¶ 67, 160 P.3d at 

218 (quotation omitted). The incidents discussed above, 

however, do not amount to persistent and pervasive misconduct 

that deprived Prince of a fair trial, particularly in view of 

the trial court’s sustaining defense objections and giving 

curative instructions to the jury. 

III. INDEPENDENT REVIEW 

¶93 Because Prince committed the murder before August 1, 

2002, we independently review the jury’s findings on 

“aggravation and mitigation and the propriety of the death 

sentence.” A.R.S. § 13-755(A)-(C); see 2002 Ariz. Sess. Laws, 

ch. 1, § 7 (5th Spec. Sess.). We review the record de novo and 

do not defer to the jury’s findings or decisions. Newell, 212 

Ariz. at 405 ¶ 82, 132 P.3d at 849. 

¶94 In our review, we determine whether the evidence 

supports the aggravating circumstances beyond a reasonable 
46 

doubt.6 Anderson, 210 Ariz. at 351 ¶ 104, 111 P.3d at 393. We 

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

of aggravating and mitigating factors.” State v. Womble, 225 

Ariz. 91, 103 ¶ 50, 235 P.3d 244, 256 (2010) (quoting State v.

Kiles (Kiles II), 222 Ariz. 25, 38 ¶ 62, 213 P.3d 174, 187 

(2009)). Although we do not require a nexus between the 

mitigating factors and the crime, the defendant’s failure to 

establish a causal connection “may be considered in assessing 

the quality and strength of the mitigation evidence.” Newell, 

212 Ariz. at 405 ¶ 82, 132 P.3d at 849; accord Ellison, 213 

Ariz. at 144 ¶ 132, 140 P.3d at 927. 

¶95 If we find the mitigation “sufficiently substantial to 

warrant leniency, then we must impose a life sentence.” Newell, 

212 Ariz. at 405 ¶ 81, 132 P.3d at 849 (quotation omitted). 

Otherwise, we must affirm the death sentence. Id.

A. Aggravating Factors 

1. Cassandra’s Age – A.R.S. § 13-751(F)(9) 

¶96 Prince was twenty-six and Cassandra thirteen years old 

                                                           

6

 Our independent review of the aggravating circumstances is 

limited to the evidence presented to the jury during the 

aggravation phase. Therefore, we do not consider evidence 

presented exclusively to the guilt-phase jury, the first, postremand jury during the penalty phase, or the second penaltyphase jury. See Snelling, 225 Ariz. at 187 ¶ 23, 236 P.3d at 

414; cf. Ellison, 213 Ariz. at 142 ¶ 121 n.19, 140 P.3d at 925 

n.19 (declining on independent review to consider evidence 

presented only to the guilt-phase jury and not to the sentencing 

jury). 
47 

when he murdered her. The State produced sufficient evidence to 

prove this uncontested aggravator. 

2. Especial Cruelty – A.R.S. § 13-751(F)(6) 

¶97 To show that a murder is especially cruel, the state 

must prove that “the victim consciously experienced physical or 

mental pain prior to death, and the defendant knew or should 

have known that suffering would occur.” Snelling, 225 Ariz. at 

188 ¶ 25, 236 P.3d at 415 (quotation omitted). We “examine the 

entire murder transaction and not simply the final act that 

killed the victim.” Ellison, 213 Ariz. at 142 ¶ 119, 140 P.3d 

at 925 (alteration and quotation omitted). 

¶98 We have found mental anguish when a victim hears the 

assailant discuss the impending murder, id. at ¶ 121 (victims 

heard one assailant order the other to kill one victim); State 

v. Libberton, 141 Ariz. 132, 139, 685 P.2d 1284, 1291 (1984) 

(victim heard the assailants discuss killing him), or when the 

victim experiences “uncertainty about her ultimate fate,” 

Hargrave, 225 Ariz. at 17 ¶ 70, 234 P.3d at 585 (quoting State 

v. Kiles (Kiles I), 175 Ariz. 358, 371, 857 P.2d, 1212, 1225 

(1993)). The length of time during which the victim 

contemplates her fate may affect whether the victim’s mental 

anguish is sufficient to support a finding of especial cruelty.7

 

                                                           

7

 We have found especial cruelty when the victim suffered 

mental pain for a very short time. Chappell, 225 Ariz. at 235 
48 

Prince II, 206 Ariz. at 27 ¶ 8, 75 P.3d at 117; cf. Snelling, 

225 Ariz. at 188-89 ¶¶ 29, 32, 236 P.3d at 415-16 (setting aside 

cruelty finding when “very little time elapsed between [the 

victim’s] initially seeing [the defendant] and the murder”); 

State v. Soto-Fong, 187 Ariz. 186, 204, 928 P.2d 610, 628 (1996) 

(finding time of contemplation insufficient to support cruelty 

when the victims were killed in rapid succession). 

¶99 The evidence establishes beyond a reasonable doubt 

that Cassandra experienced uncertainty about her fate, feared 

for her life, and consciously suffered mental anguish before 

being shot. On the night of the murder, Cassandra saw and heard 

Prince attack and savagely beat her mother in the family’s 

apartment. Cassandra looked “scared.” She stood beside 

Christine in the living room as Prince, gun in hand, screamed 

and threatened to kill the entire family. He locked a sliding 

glass door to prevent anyone from leaving. When Cassandra tried 

to run for help, Prince threw her violently to the floor. She 

was crying, “terrified,” and “scared” as she said to Christine, 

“Mama, mama. What are we gonna do, mama?” At that point, 

Cassandra would have known that she could not escape Prince’s 

                                                                                                                                                                                               

¶ 12, 236 P.3d at 1182 (finding sufficient evidence to support 

especial cruelty finding when drowning victim conscious for 

“thirty seconds to two minutes”); State v. Van Adams, 194 Ariz. 

408, 421 ¶ 45, 984 P.2d 16, 29 (1999) (two to three minutes); 

State v. Herrera, 176 Ariz. 21, 34, 859 P.2d 131, 144 (1993) 

(“18 seconds to two or three minutes”). 
49 

wrath. 

¶100 After Christine took Cassandra into her bedroom and 

walked back out toward the living room, Cassandra watched Prince 

throw her mother into Cassandra’s room and yell, “Who’s gonna 

help you now, bitch” when Christine unsuccessfully attempted to 

call 911. Prince repeated his threat to kill the family as 

Cassandra sat on her bed and clutched a pillow. He grabbed the 

pillow and pointed the gun at Cassandra, repeating his threat 

and saying the last thing Christine would see was her “kids 

dead.” Christine then stood in front of the gun and “begg[ed] 

[Prince] to kill [her],” saying “Just shoot me, Wayne.” She 

said, “[Y]ou don’t want to hurt Cassie, Wayne. You love Cassie. 

. . . You don’t want to hurt her.” Prince responded by hitting 

Christine and throwing her onto the bed beside Cassandra. As 

Cassandra cowered on her bed and reached for her mother, Prince 

pointed the gun at Cassandra’s head and shot her through the 

pillow. 

¶101 In challenging the especial cruelty finding, Prince 

compares his case to Soto-Fong, 187 Ariz. at 204, 928 P.2d at 

628, and Snelling, 225 Ariz. at 189 ¶ 32, 236 P.3d at 416, in 

which we set aside such a finding. Unlike those cases, however, 

the murder here did not occur rapidly. At least twenty minutes 

passed between the time Prince and Cassandra arrived home and 

the shooting occurred. During that time, Prince beat Christine, 
50 

locked the doors, threatened to kill the family, and assaulted 

both Christine and Cassandra. Christine begged Prince to spare 

Cassandra’s life. Cassandra witnessed the entire series of 

events, and the effect on her was clear: she was pale, crying, 

“scared to death,” and asked her mother “what [they] [were] 

going to do.” Considering the entire sequence of events, we 

find Cassandra had significant time to contemplate her fate, 

unlike the victims in Soto-Fong and Snelling.

¶102 Prince next points to our statement in Prince II that 

“[f]ew especially cruel findings . . . are predicated solely on 

an inference that the victim contemplated his or her fate.” 206 

Ariz. at 26 ¶ 8, 75 P.3d at 116. But later cases clearly 

establish that the victim’s uncertainty is a sufficient, but not 

necessary, basis for a finding of especial cruelty. See Tucker, 

215 Ariz. at 311 ¶ 33, 160 P.3d at 190; Ellison, 213 Ariz. at 

142 ¶ 120, 140 P.3d at 925. And Cassandra exhibited obvious 

signs of mental anguish before Prince shot her. 

¶103 Finally, Prince denies that he knew or should have 

known that Cassandra would suffer because he was in a 

dissociative state, making him unable to act reasonably. 

Nothing in the record, however, supports this claim. Neither 

mental health expert testified that Prince was in a dissociative 

state at the time of the murder, and no other evidence was 

presented on that point. To the contrary, the defense expert 
51 

testified that Prince knew right from wrong at that time, and 

the State’s expert testified that Prince had time to reflect and 

stop himself from committing the murder. 

¶104 Prince asks us to take judicial notice that 

individuals with borderline personality disorder also may suffer 

from dissociative disorders. But an appellate court may take 

judicial notice of a fact only if it is “so notoriously true as 

not to be subject to reasonable dispute.” In re Cesar R., 197 

Ariz. 437, 440 ¶ 7, 4 P.3d 980, 983 (App. 1999) (quotation 

omitted). Because the subject matter involves psychiatric 

diagnoses and disorders, it is not appropriate for judicial 

notice. 

¶105 The State produced sufficient evidence to establish 

beyond a reasonable doubt the “especially cruel” aggravator 

under § 13-751(F)(6). 

B. Mitigation 

¶106 Prince presented evidence of one statutory mitigating 

factor and four non-statutory mitigating factors. Prince has 

the burden to prove mitigating circumstances by a preponderance 

of the evidence. A.R.S. § 13-751(C).

1. Significant Impairment - § 13-751(G)(1) 

¶107 If the defendant’s capacity to appreciate the 

wrongfulness of his conduct or to conform his conduct to the 

requirements of the law is significantly impaired, it 
52 

constitutes statutory mitigation. A.R.S. § 13-751(G)(1). 

Personality or character disorders, however, usually are 

insufficient to establish this mitigator. Velazquez, 216 Ariz. 

at 314 ¶ 65, 166 P.3d at 105; State v. Kayer, 194 Ariz. 423, 437 

¶ 49, 984 P.2d 31, 45 (1999). 

¶108 Prince claims his ability to conform his conduct to 

the law was significantly impaired on the night of the murder. 

Although he correctly points out that neither mental health 

expert opined that he had the capacity to conform his actions to 

the law, neither expert testified that Prince did not have that 

capability. Importantly, neither expert testified that Prince 

had entered a dissociative state when he shot Cassandra. Once 

again, Prince asks this Court to take judicial notice that 

people with a borderline personality disorder suffer from 

dissociative disorders, but as discussed earlier (see supra

¶ 104), psychiatric diagnoses are not an appropriate subject for 

judicial notice. Prince has thus failed to prove this 

mitigating factor. 

2. Difficult Childhood 

¶109 A difficult or traumatic childhood is a mitigating 

circumstance. Armstrong, 218 Ariz. at 465 ¶ 74, 189 P.3d at 

392. Although the defendant need not prove a causal nexus 

between the mitigating circumstance and the crime, the lack of 

such a connection may lessen the mitigation’s weight. Id.; 
53 

McCray, 218 Ariz. at 260 ¶ 36, 183 P.3d at 511. Difficult 

childhood circumstances also receive less weight as more time 

passes between the defendant’s childhood and the offense. 

McCray, 218 Ariz. at 260 ¶ 36, 183 P.3d at 511; Pandeli, 215 

Ariz. at 532 ¶ 72, 161 P.3d at 575. 

¶110 Prince established by a preponderance of the evidence 

that he endured a difficult and abusive childhood. His father 

was an alcoholic, abusive to his wife and children and often on 

the run from law enforcement. As a child, Prince lived in an 

old barn in rural Virginia that lacked adequate heat, running 

water, a kitchen, or a bathroom. Prince’s psychiatric expert 

characterized those economic conditions as “really, really 

severe poverty.” When Prince was ten, his mother and the 

children fled by bus to Arizona. During his teenage years, 

Prince lived at various times with an adult male who provided 

drugs and alcohol in return for sex. At trial, the parties 

stipulated that this individual molested and sexually abused 

Prince. 

¶111 Prince undoubtedly had a very difficult childhood. We 

consider it in mitigation but give it little weight because he 

has not established a connection between his childhood trauma 

and the murder. Moreover, Prince was twenty-six years old when 

he killed Cassandra, attenuating the impact of his dysfunctional 

childhood on his conduct. See State v. McGill, 213 Ariz. 147, 
54 

161 ¶ 63, 140 P.3d 930, 944 (2006). 

¶112 Prince compares his case with Bocharski, in which we 

vacated a death sentence on independent review because of the 

defendant’s abusive childhood, severe neglect, and alcoholism. 

218 Ariz. at 497-99 ¶¶ 101-12, 189 P.3d at 424-26. In 

Bocharski, however, the defendant established a causal nexus 

between the crime and the mitigating evidence. Id. at 499 

¶ 110, 189 P.3d at 426 (“Dr. Beaver testified that Bocharski’s 

troubled upbringing helped cause the murder of [the victim]: He 

testified that Bocharski’s emotional and alcoholic state likely 

played a substantial role in the events that led to the murder 

. . . and that a person in his state would have been far less 

able than others to control and manage his feelings and 

reactions.”). Here, in contrast, Prince did not prove a causal 

connection between his childhood and the crime. 

3. Poor Mental Health 

¶113 Poor mental health that does not rise to the level of 

statutory mitigation under § 13-751(G)(1) may nonetheless be a 

non-statutory mitigating factor. See Velazquez, 216 Ariz. at 

314 ¶ 65, 166 P.3d at 105. Absent a causal nexus to the crime, 

however, we usually give it little weight. Armstrong, 218 Ariz. 

at 465 ¶ 77, 189 P.3d at 392. We weigh mental health mitigation 

“in proportion to a defendant’s ability to conform or appreciate 

the wrongfulness of his conduct.” State v. Boggs, 218 Ariz. 
55 

325, 344 ¶ 94, 185 P.3d 111, 130 (2008) (quotation omitted).

¶114 Prince established that he suffers from mental 

illness. Both mental health experts opined that Prince suffered 

from a mental disorder. Prince’s expert diagnosed him with 

borderline personality disorder. The State’s expert diagnosed 

Prince with anti-social personality disorder and agreed that 

Prince also exhibited some symptoms of borderline personality 

disorder. Regardless of which specific diagnosis is correct, 

the record reflects that Prince’s mental health is poor and, 

therefore, is a mitigating factor. 

¶115 Prince claims a connection exists between his 

borderline personality disorder and the murder. His expert 

testified that individuals with borderline personality disorders 

have “labile mood[s]” characterized by bouts of “intense and 

inappropriate anger,” causing them to destroy relationships and 

act impulsively. According to Prince, his violent upbringing 

exacerbated his disorder, making him unable to cope with the 

violent domestic dispute that resulted in Cassandra’s death. 

¶116 The expert, however, also testified that Prince knew 

right from wrong, and the State’s expert testified that Prince 

had time to reflect and stop himself from committing the murder. 

Neither expert could establish Prince’s mental state on the 

night of the shootings. And as stated earlier, neither expert 

testified that Prince was in a dissociative state, as Prince now 
56 

claims. 

¶117 At most, Prince proved that he has a personality 

disorder, not that “the disorder controlled [his] conduct.” 

State v. Brewer, 170 Ariz. 486, 505-06, 826 P.2d 783, 802-03 

(1992) (concluding “[d]efendant’s borderline personality 

disorder [did] not warrant a reduction of his sentence to life 

imprisonment”); see State v. Stuard, 176 Ariz. 589, 613, 863 

P.2d 881, 905 (1993) (“Even if [the defendant] became enraged 

when confronted by his victims, he still displayed some ability 

to control his actions . . . . The doctors agree he appreciated 

the wrongfulness of his conduct and that he did not lose touch 

with reality.”). Consequently, because Prince has failed to 

establish a causal nexus between his poor mental health and the 

murder, we give this factor little mitigating weight. See

Boggs, 218 Ariz. at 344 ¶ 95, 185 P.3d at 130 (finding no causal 

link between mental health issues and crime when experts could 

not establish defendant’s mental state or that defendant “did 

not know right from wrong”); Pandeli, 215 Ariz. at 533 ¶ 81, 161 

P.3d at 576 (giving the defendant’s “mental health mitigation 

minimal weight” when the evidence showed he “knew right from 

wrong, was not significantly impaired, and did not demonstrate a 

causal nexus between his mental impairments and the murder”). 

¶118 Prince also claims that his suicidal behavior on the 

night of the murder is a mitigating factor. Although suicidal 
57 

behavior is arguably subsumed within the statutory mitigating 

factor of significant impairment or the non-statutory factor of 

poor mental health, we give this factor its own mitigating 

weight. See Williams v. Ryan, 623 F.3d 1258, 1270 (9th Cir. 

2010) (“[A] sentencing court must consider all mitigating 

evidence.”). Although the testimony established that Prince 

exhibited suicidal tendencies, it also established that Prince 

knew it was wrong to shoot Cassandra, even if he was suicidal. 

As a result, Prince’s suicidal behavior is entitled to little 

mitigating weight. 

¶119 Finally, Prince claims as a mitigating factor his 

emotional and learning disabilities. These disabilities are a 

non-statutory mitigating factor but their lack of connection to 

the crime affects the weight we accord them. See State v. 

Doerr, 193 Ariz. 56, 71 ¶ 73, 969 P.2d 1168, 1183 (1998) 

(concluding no connection existed between the defendant’s low IQ 

and the murder).

¶120 When Prince moved to Arizona, he was placed in classes 

for children with significant emotional disabilities. In high 

school, he attended classes for the learning disabled, but 

dropped out during the tenth grade. Prince has an IQ of 85 to 

90, which his expert described as borderline mental retardation, 

but which the State’s expert described as normal intelligence. 

Once again, however, Prince has not established any connection 
58 

between his disabilities and the crime, making them entitled to 

little mitigating weight. 

4. Remorse 

¶121 A defendant’s expression of remorse is a non-statutory 

mitigating factor. State v. Spreitz, 190 Ariz. 129, 150, 945 

P.2d 1260, 1281 (1997). During his mental health evaluation, 

Prince said that he felt great remorse for Cassandra’s death and 

that he would always regret killing her because she did not 

deserve to die. Prince also gave a brief allocution in the 

penalty phase, stating he was “extremely sorry for the pain that 

[he] caused everyone.” Prince has thus established this 

mitigating factor, and it is entitled to some weight. 

C. Propriety of Death Sentence 

¶122 In light of the relatively weak mitigation and the two 

aggravating factors, we conclude that Prince’s mitigation is not 

sufficiently substantial to warrant leniency. 

IV. CONCLUSION 

¶123 For the foregoing reasons, we affirm Prince’s death 

sentence.8

 __________________________________

 A. John Pelander, Justice

                                                           

8

 Prince raises twenty-two issues to avoid preclusion on 

federal review. Those issues are presented verbatim in the 

Appendix. 
59 

CONCURRING:

__________________________________

Rebecca White Berch, Chief Justice

__________________________________

W. Scott Bales, Justice

__________________________________

Robert M. Brutinel, Justice

__________________________________

Michael D. Ryan, Justice (Retired)∗

APPENDIX 

1. 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, Sections 1, 4, and 15 of 

the Arizona Constitution. See State v. Cromwell, 211 

Ariz. 181, 192, 119 P.3d 449, 459 (2005). 

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

discriminate against poor, young, and male defendants 

whose victims have been Caucasian, in violation of the 

Eighth and Fourteenth Amendments and Article 2, 

Sections 1, 4, and 13 of the Arizona Constitution. 

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

215 (1993). 

3. 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, Section 15 of the Arizona Constitution. 

                                                           

∗

 Justice Andrew D. Hurwitz has recused himself from this 

case. Pursuant to Article 6, Section 3 of the Arizona 

Constitution, the Honorable Michael D. Ryan, Retired, was 

designated to sit in this matter. 
60 

See State v. Harrod, 200 Ariz. 309, 26 P.3d 492 

(2001). 

4. Execution by lethal injection is per se cruel and 

unusual punishment. State v. Hinchey, 161 Ariz. 307, 

315, 890 P.2d 602, 610 (1995). 

5. Arizona’s death penalty statute 

unconstitutionally requires defendants to prove that 

their lives should be spared. State v. Fulminante, 

161 Ariz. 237, 258, 779 P.2d 602, 623 (1988). 

6. Arizona’s death penalty statute 

unconstitutionally requires imposition of the death 

penalty whenever at least one aggravating circumstance 

and no mitigating circumstances exist. State v. 

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

7. The statute unconstitutionally fails to require 

the cumulative consideration of multiple mitigating 

factors or require specific findings to be made as to 

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

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

8. The death penalty is unconstitutional because it 

permits jurors unfettered discretion to impose death 

without adequate guidelines. State v. Johnson, 212 

Ariz. 425, 440, 133 P.3d 735, 750 (2006). 

9. The statute is unconstitutional because there are 

no statutory standards for weighing. State v. Atwood, 

171 Ariz. 576, 645-46, 832 P.2d 593, 662-63 (1992). 

10. The statute insufficiently channels the 

sentencer’s discretion in imposing the death sentence. 

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

(1991). 

11. Appellant claims that a proportionality review of 

a defendant’s death sentence is constitutionally 

required. State v. Gulbrandson, 184 Ariz. 46, 73, 906 

P.2d 579, 606 (1995). 

12. Appellant claims that the State’s failure to 

allege an element of a charged offense, the 

aggravating factors that made the defendant death 

eligible, is a fundamental defect that renders the 
61 

indictment constitutionally defective. McKaney v. 

Foreman, 209 Ariz. 268, 271, 100 P.3d 18, 21 (2004). 

13. Appellant asserts that the application of the new 

death penalty statute passed in response to Ring v. 

Arizona, 536 U.S. 584 (2002), violates a defendant’s 

right against ex post facto application of new laws. 

State v. Ring, 204 Ariz. 534, 547 ¶ 23, 65 P.3d 915, 

928 (2003). 

14. Appellant claims that execution by lethal 

injection is cruel and unusual punishment. State v. 

Van Adams, 194 Ariz. 408, 422, 984 P.2d 16, 30 (1999). 

15. Subjecting Appellant to a new trial on the issues 

of aggravation and punishment before a new jury 

violated the double jeopardy clause of the Fifth 

Amendment. State v. Ring, 204 Ariz. 534, 547, 65 P.3d 

915, 928 (2003). 

16. Arizona’s statutory scheme for considering 

mitigating evidence is unconstitutional because it 

limits full consideration of that evidence. State v. 

Mata, 125 Ariz. 233, 242, 609 P.2d 48, 57 (1980). 

17. The absence of notice of aggravating factors 

prior to Appellant’s guilt phase trial violates the 

Sixth, Eighth, and Fourteenth Amendments. State v. 

Anderson, [210] Ariz. 327, 347, 111 P.3d 369, 389 

(2005). 

18. The reasonable doubt instruction at the 

aggravation phase lowered the 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, 74 

P.3d 231, 249 (2003). 

19. Subjecting Appellant to a new trial on the issues 

of aggravation and punishment before a new jury 

violated the due process clause of the Fourteenth 

Amendment. State v. Ellison, 213 Ariz. 116, 137, 140 

P.3d 899, 920 (2006). 

20. Requiring the jury to unanimously determine 

whether the mitigating factors were sufficiently 

substantial to call for leniency violated the Eighth 
62 

Amendment. State v. Ellison, 213 Ariz. 116, 137, 140 

P.3d 899, 920 (2006). 

21. The trial court’s refusal to admit stipulation 

that Appellant would waive parole violated his right 

to due process under the Fourteenth Amendment and his 

right to have jury consider all mitigation under the 

Eighth Amendment. State v. Dann, 220 Ariz. 351, 207 

P.3d 604 (2009). 

22. Arizona’s death statute create an 

unconstitutional presumption of death and places an 

unconstitutional burden on Appellant to prove that 

mitigation is sufficiently substantial to call for 

leniency. State v. Glassel, 211 Ariz. 33, 52, 116 

P.3d 1193, 1212 (2005).