IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,

Appellee,

v.

ALLYN AKEEM SMITH,

Appellant.

No. CR-18-0295-AP

Filed November 4, 2020

Appeal from the Superior Court in Maricopa County

The Honorable Michael W. Kemp, Judge

No. CR2015-106788-001

AFFIRMED

COUNSEL:

Mark Brnovich, Arizona Attorney General, Brunn (Beau) W. Roysden III, 

Solicitor General, Lacey Stover Gard, Chief Counsel, David R. Cole, Nate 

Curtisi (Argued), J.D. Nielsen, Vineet Mehta Shaw, Assistant Attorneys

General, Capital Litigation Section, Phoenix, Attorneys for State of Arizona

James J. Haas, Maricopa County Public Defender, Peg Green, Nicholaus

Podsiadlik (argued), Deputy Public Defenders, Phoenix, Attorneys for 

Allyn Smith
STATE V. SMITH

Opinion of the Court

2

JUSTICE GOULD authored the opinion of the Court, in which CHIEF 

JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER and JUSTICES 

BOLICK, LOPEZ, BEENE, and JUSTICE PELANDER (Retired)* joined.

JUSTICE GOULD, opinion of the Court:

¶1 Allyn Akeem Smith was sentenced to death after a jury found 

him guilty of first-degree murder and child abuse. We have jurisdiction of 

this automatic appeal pursuant to article 6, section 5(3) of the Arizona 

Constitution and A.R.S. § 13-4031. We affirm Smith’s convictions and 

sentences.

I.

¶2 On December 11, 2014, K.L. was fatally shot by Smith, her 

former boyfriend and the father of her two-month-old daughter, K.S.1 K.L.

and K.S. were found on a hiking path near South Mountain in Phoenix. K.L.

was shot in the back of the head, while K.S. was left facedown against the

ground with a bullet wound in her thigh. K.S. survived after surgery.

¶3 Smith and K.L. had a stormy relationship. Before meeting 

K.L., Smith was in an on-again-off-again relationship with K. Ward. At 

some point in 2014, Ward cheated on Smith and Smith began dating K.L. 

Smith and Ward were back together by October of 2014.

¶4 In early 2014, Smith got K.L. pregnant. Ward obsessed over 

K.L.’s pregnancy, expressing anger that Smith may have fathered a child

with another woman. Smith tried to convince Ward that he was not the 

father. Smith and Ward also had a son, and Ward threatened to leave Smith 

and take their son away if Smith was indeed the father of K.L.’s child.

¶5 Almost four months before the murder, on August 17, 2014, 

K.L. and Smith met at Kiwanis Park. They took a walk through the park, 

with Smith walking several feet ahead of K.L. As they were walking, K.L.

was assaulted from behind. At the time, K.L. was seven months pregnant 

 * Justice William G. Montgomery has recused himself from this case. 

Pursuant to article 6, section 3 of the Arizona Constitution, Justice John 

Pelander (Retired) was designated to sit in this matter.

1 We view the facts in the light most favorable to sustaining the jury’s 

verdict. State v. Rushing, 243 Ariz. 212, 216 n.2 (2017).
STATE V. SMITH

Opinion of the Court

3

with Smith’s child, and her assailant kicked her in the stomach, punched 

her in the back of the head and cheek, knocked her to the ground, and then 

punched her again. K.L. had to be treated at a hospital.

¶6 Evidence suggested that Smith was involved in the attack. 

Before the attack, Smith told his friend, G. Curley, that he needed help with 

a pregnant girl, he needed to “fuck her up” because she was pregnant, and 

that he was “ready to fuck this bitch up.” Curley declined to help, and 

when Smith later repeated the request, Curley responded that it was “all on 

him.” After the attack, Smith told K.L. he called 911, but there was no 

record of the call. Because no one was able to identify K.L.’s assailant, no

charges were filed. However, Cell Site Location Information (“CSLI”) 

revealed that Smith’s long-time friend, R. Marley, was at or within a mile 

and a half radius of the park when K.L. was attacked. CSLI also revealed 

that Smith and Marley were together near Smith’s apartment immediately 

after the attack.

¶7 In October 2014, K.L. gave birth to K.S. When K.L. applied for 

welfare benefits, the Department of Economic Security (“DES”) required 

her to collect child support from K.S.’s father. As a result, on October 27, 

K.L. named Smith as the father and provided his contact information to DES 

to set up a DNA test.

¶8 Smith, however, repeatedly failed to show up for his 

appointments with DES. On December 1, after K.L.’s urging, Smith made 

an appointment for December 4. He did not, however, show up for that 

appointment. Smith made another appointment on December 9, but he did 

not show up for that one either. On December 10, the day before her 

murder, K.L. persisted in trying to get Smith to take the paternity test, 

informing him that DES would refer the matter to the courts if he did not 

show up for his test by December 11. Smith told K.L. that he wanted to 

meet K.S. and play with her before he took the paternity test. Smith said he 

would meet with K.L. and K.S. only if they were alone, reiterating, “If 

anyone else is there, I don’t want to come.” On December 10, K.L. gave 

Smith her address, and Smith told her that he would be there at 12:00 or 

12:30 p.m. the following day.

¶9 On December 11, at 10:54 a.m., Smith deleted K.L. as a friend 

on Facebook. Four minutes later, he deleted his OG Triple Facebook 

account (an account associated with his email address), which he had used 

to contact K.L. Smith then went to a firearms store and purchased a Phoenix 

Arms .22 handgun and ammunition. He filled out paperwork and was 
STATE V. SMITH

Opinion of the Court

4

captured on store video surveillance at 11:46 a.m. Then, according to 

Smith’s CSLI, he arrived at K.L.’s apartment at approximately 12:16 p.m. 

Tashae Jones, K.L.’s roommate, saw Smith enter K.L.’s apartment at 

approximately 12:40 p.m. Smith immediately asked K.L. to have Jones 

leave the apartment.

¶10 Smith drove K.L. and two-month-old K.S. to a trail near the 

base of South Mountain, where he fired two shots; one hit K.L. in the back 

of the head, and another struck K.S. in the thigh. K.L. and K.S. were found 

around 3:00 p.m. by a hiker. K.L. was unconscious, and K.S. was lying 

outside her carrier face down on the ground. The paramedic who first 

treated K.S. had to remove gravel from her mouth. The bullet fractured 

K.S.’s femur, but she survived after undergoing emergency surgery. 

Because of K.S.’s small size, she had to be placed in a body cast to treat her 

fracture.

¶11 K.L. could not be revived, and a medical examiner 

determined that she died of a gunshot wound to the head. The Phoenix 

Police Department (“PPD”) recovered a shell casing for a .22 caliber weapon 

from the crime scene.

¶12 After murdering K.L., Smith immediately drove to DES and 

took a paternity test. He asked an employee what would happen if K.L. did 

not arrive for testing. He was told that the matter would be closed. The 

test established that K.S. is his daughter.

¶13 Smith was indicted for first-degree murder and one count of 

child abuse. On September 13, 2016, the State obtained Smith’s CSLI by 

court order pursuant to A.R.S. § 13-3016. Smith’s CSLI revealed that his cell 

phone was within a mile and a half radius of K.L.’s apartment at 12:16 p.m. 

and within a mile and a half radius of the crime scene from 1:29 p.m. until 

2:04 p.m. Additionally, Smith and Ward had been communicating 

throughout the morning, but there was a period from 12:28 p.m. to 1:39 p.m. 

where Smith did not answer Ward’s text messages.

¶14 At trial, the jury found Smith guilty of premeditated 

first-degree murder of K.L. and one count of knowing or intentional child 

abuse involving threat of death or serious physical injury of K.S. At the end 

of the aggravation phase, the jury found two aggravators: (1) Smith was 

convicted of a serious offense (child abuse of K.S.), see A.R.S. § 13-751(F)(2); 

and (2) Smith murdered K.L. for pecuniary gain, see id. (F)(5), i.e. to avoid 

child support payments.
STATE V. SMITH

Opinion of the Court

5

¶15 In the penalty phase, Smith did not testify or exercise his right 

of allocution but presented twenty-nine non-statutory mitigating 

circumstances. Infra ¶ 160. He presented no statutory mitigators. After 

considering the mitigation evidence, the jury determined that Smith should 

be sentenced to death. Additionally, the trial court sentenced Smith to a 

consecutive presumptive prison term for his child abuse conviction.

II.

A.

¶16 Smith argues that the trial court erred in denying his motion 

to suppress his CSLI. We review a court’s factual findings on a motion to 

suppress for an abuse of discretion “but review de novo the trial court’s 

ultimate legal determination that the search complied with the Fourth 

Amendment.” State v. Jean, 243 Ariz. 331, 334 ¶ 9 (2018) (quoting State v. 

Gilstrap, 235 Ariz. 296, 297 ¶ 6 (2014)). Additionally, we review de novo

whether the good-faith exception to the exclusionary rule applies. State v. 

Weakland, 246 Ariz. 67, 69 ¶ 5 (2019).

¶17 PPD Detective Helen Balmir prepared an affidavit and 

applied for a court order (“CSLI Order”) to obtain Smith’s CSLI through the 

Initial Appearance Court (“IA Court”). Balmir later testified at the 

suppression hearing that it was common practice for PPD to make such 

applications to the IA Court. The IA Court Commissioner granted the order

that same day.

¶18 In response to the CSLI Order, AT&T (Smith’s service 

provider) provided “call detail reports,” which included Smith’s CSLI, 

subscriber information, historical detail records, and device information 

from March 1, 2014 through December 14, 2014. AT&T did not disclose any

information regarding the content of Smith’s communications, such as 

texts, voicemails, or emails.

¶19 Smith moved to suppress the CSLI, arguing that under 

Carpenter v. United States, 138 S. Ct. 2206, 2220–21 (2018), the State could 

not obtain his CSLI without a search warrant supported by probable cause. 

Additionally, Smith claimed that the State violated § 13-3016 by failing to 

provide him notice of the CSLI Order. Following an evidentiary hearing, 

the trial court denied Smith’s motion, concluding that (1) there was 

probable cause to support the CSLI Order, and (2) lack of notification 

under § 13-3016 was not grounds for suppression of Smith’s CSLI.
STATE V. SMITH

Opinion of the Court

6

¶20 On appeal, Smith asserts that because the State did not have 

a warrant and the CSLI Order was only based on reasonable grounds, it 

did not comply with Carpenter, and his CSLI should have been suppressed. 

Further, Smith argues that § 13-3016(C)(3) is facially unconstitutional to the 

extent it allows CSLI to be obtained without a warrant.

1. Functional Equivalent of a Warrant

¶21 On appeal, the State concedes that under Carpenter, a search 

warrant was required to obtain Smith’s CSLI. However, the State argues 

that because the CSLI Order was the functional equivalent of a warrant, it 

complied with Carpenter. The State bases this argument on the trial court’s 

finding that “regardless of the language used in the order,” the order set 

forth probable cause for the search. See People v. Edwards, 97 N.Y.S.3d 418, 

421–22 (N.Y. Sup. Ct. 2019). In Edwards, the court held that a CSLI order 

complied with Carpenter because it “ma[de] out probable cause,” and 

therefore “the resulting CSLI order [was] the equivalent of a search warrant, 

even though the issuing court used the lower” reasonable grounds 

standard. Id. at 422; see also State v. Conner, 249 Ariz. 121, 248 ¶ 4, 250 ¶¶ 21–

22 (App. 2020) (holding that a CSLI order issued under A.R.S. § 13-3017 and 

18 U.S.C. § 2703, which requires a showing of “reasonable grounds,” 

substantially complied with the requirements of a search warrant where the 

trial court expressly found there was “probable cause” supporting the 

state’s application).

¶22 We are not persuaded by the State’s argument. Although the 

CSLI Order cites § 13-3016(C)(1) and (D)(1), which apply to warrants, the 

IA Court issued an “order,” not a search warrant. Further, Balmir stated 

that she prepared her affidavit as a request for an order, not a warrant. 

Finally, the CSLI Order is based on a showing of reasonable grounds, not 

probable cause. Accordingly, we decline to recast the CSLI Order as a 

warrant.

2. Good Faith

¶23 On appeal, the State argues that even if the CSLI Order did 

not comply with Carpenter, the good-faith exception applies because PPD

obtained the CSLI Order in good faith reliance on § 13-3016. See Illinois v. 

Krull, 480 U.S. 340, 342, 352 (1987) (applying the good-faith exception where 

officers “act[ed] in objectively reasonable reliance upon a statute 

authorizing warrantless administrative searches” where the statute was 

later found to be unconstitutional (emphasis omitted)); Davis v. United 

States, 564 U.S. 229, 232 (2011) (holding that “searches conducted in 
STATE V. SMITH

Opinion of the Court

7

objectively reasonable reliance on binding appellate precedent are not 

subject to the exclusionary rule”).

¶24 Courts have consistently applied the good-faith exception to 

CSLI orders issued prior to Carpenter. See, e.g., United States v. Korte, 918 

F.3d 750, 758 (9th Cir. 2019) (applying the good-faith exception to CSLI 

obtained under the federal Stored Communications Act (“SCA”) where the 

“[g]overnment had [no] reason to doubt the [law’s] constitutionality”); 

United States v. Beverly, 943 F.3d 225, 235 (5th Cir. 2019) (stating that “every 

one of our sister courts” has “agreed that the good-faith exception—

specifically, the Krull exception—applies to CSLI obtained under [the SCA] 

prior to Carpenter”); United States v. Goldstein, 914 F.3d 200, 204–05 (3d Cir. 

2019) (to same effect); State v. Brown, 921 N.W.2d 804, 811–12 (Neb. 2019) (to 

same effect); Reed v. Commonwealth, 834 S.E.2d 505, 511 (Va. Ct. App. 2019) 

(applying the good-faith exception to CSLI obtained under a Virginia 

statute).

¶25 We conclude that the good-faith exception applies here. 

Balmir obtained Smith’s CSLI pursuant to the IA Court’s September 13, 

2016 CSLI Order. In applying for the CSLI Order, Balmir reasonably relied

on § 13-3016(C), which permitted the state to obtain CSLI without a 

warrant. Two years later, in June 2018, the Supreme Court decided 

Carpenter. See 138 S. Ct. 2206.

¶26 Smith argues, however, that the good-faith exception should 

not apply because Riley v. California, 573 U.S. 373 (2014), was decided before 

Balmir obtained the CSLI order. As a result, Smith contends that Riley’s

holding—that a cellphone’s “historical location information” deserves 

greater protection than physical records—should have notified law 

enforcement that acquiring CSLI without a warrant was unconstitutional. 

Id.

¶27 Smith’s reliance on Riley is misplaced. Riley addressed a 

warrantless search of the content of a cell phone. Id. at 379. In contrast, here, 

Smith’s CSLI simply contains records about his general location; there is no 

content. Additionally, courts have not recognized Riley as a barrier to 

applying the good-faith exception to CSLI obtained without a warrant 

pre-Carpenter. See, e.g., Korte, 918 F.3d at 756; Beverly, 943 F.3d at 234; Brown, 

921 N.W.2d at 807.

¶28 Because we apply the good-faith exception, Smith’s 

arguments regarding the more stringent standards for obtaining search 
STATE V. SMITH

Opinion of the Court

8

warrants and wiretaps are irrelevant. For example, Smith cites Berger v.

New York, 388 U.S. 41, 54 (1967), to argue that the CSLI Order was invalid. 

There, the Supreme Court struck down an eavesdropping statute that 

allowed a judge to issue a wiretap order based upon reasonable grounds. 

Id. at 54, 60. But the heightened standards for obtaining a wiretap, which 

involve ongoing surveillance of the content of phone conversations, do not 

apply to CSLI. Similarly, Smith argues that the CSLI Order did not satisfy 

the notice requirements for a search warrant. However, since we apply the 

good-faith exception here, the requirements for a search warrant are not 

relevant.

3. Notice

¶29 Next, Smith claims that the CSLI Order was invalid because 

the State did not, as required by § 13-3016(B)(3), provide “prior notice to 

[Smith].” Smith is wrong for two reasons. First, § 13-3016(D)(1) allows 

notice to “be delayed for a period of not to exceed ninety days” if the 

applicant “requests a delay of notification and the court finds that delay is 

necessary to protect the safety of any person or to prevent flight from 

prosecution, tampering with evidence, intimidation of witnesses or 

jeopardizing an investigation.” Here, Balmir requested the IA Court delay 

disclosure of the CSLI Order pursuant to § 13-3016(C)(1), (D)(1) to prevent 

“jeopardizing” the investigation. The IA Court approved the request, 

giving the State ninety days to notify Smith.

¶30 Second, the State timely disclosed the CSLI to Smith. 

Specifically, in a motion dated November 8, 2016, Smith’s counsel admitted 

that the State disclosed Smith’s CSLI on October 18, 2016, which was 

thirty-five days after the IA Court issued the order and within the ninety 

days permitted by § 13-3016(D)(1). We recognize that approximately two 

years later, in his motion to suppress the CSLI and at the suppression 

hearing, Smith argued that he never received notice. But here, counsel’s 

prior statement constitutes a judicial admission. State v. Schmid, 107 Ariz. 

191, 193 (1971) (explaining that counsel’s statement in a motion for 

continuance was a judicial admission). And although we typically 

“consider only the evidence adduced at the suppression hearing,” Jean, 243 

Ariz. at 333 ¶ 2, neither Jean nor our other precedent hold that we are bound 

by inaccurate statements refuted by the record.

¶31 Smith also argues that there were no grounds for delaying 

notice. Specifically, he asserts that he could not flee the jurisdiction (he was 

in custody) and, because the investigation had been ongoing for over a year, 

providing notification could not have threatened the investigation. We 
STATE V. SMITH

Opinion of the Court

9

disagree. Any one of the grounds listed in § 13-3016(D)(1) provides a basis 

for delaying notification. And here, based on Balmir’s affidavit describing 

PPD’s ongoing murder investigation, there was a reasonable basis for the 

IA Court to conclude that delayed notification was necessary to protect the 

State’s investigation.

4. Arizona Constitution

¶32 Finally, Smith argues that the Arizona Constitution 

independently requires suppression. Citing State v. Bolt, 142 Ariz. 260, 265 

(1984), Smith observes that article 2, section 8 was intended to give 

individuals a sense of security in their “homes and personal possessions.” 

Bolt addressed warrantless entry into the home and stated that Arizona’s 

Constitution specifically preserves “the sanctity of homes . . . in creating a 

right of privacy.” Id. at 264–65. Thus, Smith argues, because CSLI provides 

“near perfect surveillance” akin to an ankle monitor, see Carpenter, 138 S. Ct. 

at 2218, CSLI must also implicate the same sense of security in one’s home 

under article 2, section 8.

¶33 We disagree. Unlike Bolt, CSLI does not involve a warrantless 

entry into a person’s home. And here, even if the Arizona Constitution 

provided greater protection, the good-faith exception applies.

5. Due Process

¶34 Smith argues that the trial court violated his due process 

rights under the Fourteenth Amendment for two reasons. First, he claims

that he was denied the opportunity to oppose the State’s application for the 

CSLI Order. Second, he asserts that his CSLI was obtained in violation of 

Arizona Rule of Criminal Procedure 15.2(g) and A.R.S. § 13-3016. We 

review constitutional challenges de novo. State v. Hidalgo, 241 Ariz. 543, 548 

¶ 7 (2017).

¶35 Neither argument is persuasive. “[D]ue process entitles 

parties to notice and a meaningful opportunity to be heard . . . .” Id. ¶ 10. 

To protect this constitutional guarantee, procedural due process requires 

that a defendant be provided “an adequate opportunity to fully present 

factual and legal claims,” including the opportunity to respond to evidence 

submitted against him by the State. Id. at 549 ¶ 11 (quoting Kessen v. Stewart, 

195 Ariz. 488, 492 ¶ 16 (App. 1999)); State v. Hampton, 213 Ariz. 167, 179 

¶¶ 48–50 (2006) (to same effect).

¶36 Citing State v. Rosengren, 199 Ariz. 112, 116–17 ¶ 29 (App. 

2000), Smith claims that he had a due process right to oppose the State’s 
STATE V. SMITH

Opinion of the Court

10

application for the CSLI Order. Smith’s reliance on Rosengren is misplaced. 

That case, which involved DUI/vehicular manslaughter charges,

addressed a defendant’s due process right to gather “contemporary, 

independent exculpatory evidence of sobriety” during the “critical window 

of availability” after his arrest. Id. at 121 ¶¶ 28–29. But here, Smith was 

provided the CSLI and was given a full and fair opportunity to suppress 

this evidence at an evidentiary hearing. And, unlike evidence of 

intoxication, which is fleeting and evanescent, see id., Smith’s CSLI was 

adequately preserved despite its delayed disclosure.

¶37 Smith next argues that the State illegally obtained his CSLI by 

“ignor[ing] the protections” of Arizona Rule of Criminal Procedure 

15.2(g)(1). Relying on Carpenter v. Superior Court, 176 Ariz. 486, 488 (App. 

1993), and Wells v. Fell, 231 Ariz. 525, 528 ¶ 10 (App. 2013), Smith asserts 

that the State could only obtain his CSLI through a court order issued under 

Rule 15.2(g)(1), and that it was prohibited from obtaining such information 

using the procedure set forth in § 13-3016.

¶38 We disagree. Rule 15.2(g) does not, by its terms, provide the 

exclusive means for obtaining records and information in the possession or 

control of a third party. Additionally, Carpenter and Wells do not apply here 

because they address records within the control of a party. See Carpenter, 

176 Ariz. at 487, 489–90 (requiring a defendant to request police reports 

under Rule 15.1 because such records were within the control of the State); 

Wells, 231 Ariz. at 526 ¶ 2, 527 ¶ 7, 528 ¶ 10 (providing that under Rule 

15.2(g), a court may order disclosure of witness interviews in the possession 

of defense counsel to the state). Here, Smith did not possess or control his 

CSLI; this information was in the control and possession of AT&T.

¶39 Finally, Smith argues that the State violated his due process 

rights by failing to provide notice of the CSLI Order under § 13-3016. 

However, as noted above, this is inaccurate; the State provided Smith with 

notice of the CSLI Order. Supra ¶ 30.

6. Sixth Amendment

¶40 Smith claims that the State violated his Sixth Amendment 

right to counsel because, when it submitted its request for the CSLI Order, 

it did not provide notice to his attorney. As a result, he asserts that his 

attorney was denied the opportunity to oppose the State’s request. We 

review constitutional issues de novo. Hidalgo, 241 Ariz. at 548 ¶ 7. Because 

Smith did not raise this argument in the trial court, we review for 

fundamental error. State v. Escalante, 245 Ariz. 135, 138 ¶ 1 (2018).
STATE V. SMITH

Opinion of the Court

11

¶41 There was no error, much less fundamental error. Smith’s 

Sixth Amendment right to counsel was satisfied because his attorney was 

(1) provided copies of the CSLI and (2) had an opportunity to suppress this 

evidence at an evidentiary hearing.

¶42 Additionally, Smith’s reliance on State v. Groshong, 175 Ariz. 

67, 71 (App. 1993), is misplaced. There, the State filed a motion to obtain 

the defendant’s medical records after defense counsel asserted the records 

were protected by the physician-patient privilege (A.R.S. § 13-4062(4)). Id. 

While the discovery dispute was pending, the State inadvertently applied 

for and obtained the privileged records through a warrant. Id. The court 

of appeals affirmed the trial court’s order suppressing the records, noting 

that under the specific circumstances of the case, the State’s obtaining the 

records through a warrant, although inadvertent, interfered with the 

defendant’s right to counsel. Id.

¶43 Here, unlike in Groshong, the State did not attempt to 

circumvent a court order or a defendant’s assertion of privilege; it used 

lawful means to obtain non-privileged records from a third party. 

Additionally, Smith’s counsel was not restricted from challenging the 

admissibility of his CSLI, and there is no evidence that the thirty-five-day

delayed notice impacted his representation. See United States v. Morrison, 

449 U.S. 361, 363 (2000) (finding that a hypothetical error did not impact the 

proceedings when it did not interfere with the “quality or effectiveness of 

[the] legal representation”).

B.

¶44 Smith argues that the trial court violated the Due Process 

Clause of the Fourteenth Amendment by admitting Jones’s pretrial 

identification of Smith because it was unduly suggestive and unreliable. 

This Court “review[s] the reliability and fairness of a challenged 

identification for abuse of discretion.” State v. Goudeau, 239 Ariz. 421, 451 

¶ 103 (2016). But it “review[s] de novo the ‘ultimate question’ of the 

constitutionality of a pretrial identification.” Id. (quoting State v. Garcia, 224 

Ariz. 1, 7–8 ¶ 6 (2010)). 

¶45 After Detective Udd learned that Smith was K.S.’s father, he

obtained an MVD photograph of Smith. The day after the murder, Udd 

took the photograph to visit Jones, K.L.’s roommate. Udd showed Jones the 

photograph of Smith, asking her if she recognized the person in the 

photograph. Jones replied, “That’s the baby’s daddy.” Jones also told Udd 

that K.L. had shown her pictures of Smith on Facebook and had identified 

him to her as K.S.’s father. Additionally, Jones said that Smith was at the 
STATE V. SMITH

Opinion of the Court

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apartment the day of the murder. The interview, which was recorded, was 

played at a subsequent Dessureault2 hearing.

¶46 During the Dessureault hearing, Jones testified that she 

viewed Smith for multiple minutes in a bright room, wanted to see what he 

looked like, focused on him, and could clearly see his face. Jones also 

testified that she was “very sure” Smith was at the apartment. Udd later 

testified that Jones was “100 percent” sure when she identified Smith.

¶47 The trial court found that although showing Jones just one 

picture was “inherently suggestive,” the identification was admissible 

because it was reliable. During trial, the court properly instructed the jury 

on determining whether Jones’s identification was reliable. See Rev. Ariz. 

Jury Instr. (“RAJI”) (Crim.) Standard Instruction 39, at 32 (3d ed. 2016).

¶48 Due process requires that pretrial identification procedures 

be conducted in a manner that is “fundamentally fair and secures the 

suspect’s right to a fair trial.” State v. Lehr, 201 Ariz. 509, 520 ¶ 46 (2002). In 

Dessureault, we set forth the procedure for Arizona courts to follow when a 

defendant challenges a pretrial identification. 104 Ariz. at 383–84. The 

identification must not be the product of an “inherently suggestive”

procedure or, if the procedure was inherently suggestive, it must be 

reliable. State v. Rojo-Valenzuela, 237 Ariz. 448, 450 ¶ 7 (2015); see also Manson 

v. Brathwaite, 432 U.S. 98, 114 (1977) (concluding that “reliability is the 

linchpin in determining the admissibility of identification testimony”). 

¶49 The State concedes that the use of a single photograph was 

inherently suggestive. State v. (Johnny) Williams, 144 Ariz. 433, 439 (1985); 

see Manson, 432 U.S. at 99, 106 (considering reliability of an identification 

where a single photograph lineup was “suggestive and unnecessary”).

¶50 Thus, we must determine whether Jones’s identification was 

reliable. In making this determination, courts apply several factors, 

including: (1) the witness’s opportunity “to view the criminal at the time of 

the crime”; (2) the “witness’ degree of attention”; (3) the “accuracy of the 

witness’ prior description of the criminal”; (4) the witness’s “level of 

certainty” at the initial viewing; and (5) the “length of time between the 

crime” and the witness’s identification of the defendant. Neil v. Biggers, 409 

U.S. 188, 199–200 (1972). The witness’s identification must exhibit sufficient 

 

2 State v. Dessureault, 104 Ariz. 380 (1969). 
STATE V. SMITH

Opinion of the Court

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indicia of reliability under the totality of the circumstances. Rojo-Valenzuela, 

237 Ariz. at 451 ¶ 11.

¶51 For the reasons discussed below, we conclude that based on 

the totality of the circumstances, the record supports the trial court’s 

determination that Jones’s identification of Smith was reliable.

1. Opportunity to View the Suspect

¶52 The record supports the trial court’s finding of reliability 

under the first factor. A few minutes is enough time to view a suspect. State 

v. Ware, 113 Ariz. 337, 339 (1976) (determining that the first factor weighed 

in favor of reliability where the witness “observed the suspect face to face 

in the well-lighted store for approximately three minutes”); State v. 

(Bernard) Smith, 146 Ariz. 491, 497 (1985) (determining that the witness 

viewing the suspect walk across a parking lot weighed in favor of 

reliability). But see State v. Schilleman, 125 Ariz. 294, 296 (1980) (finding ten 

seconds insufficient); State v. (Ronald T.) Williams, 166 Ariz. 132, 137 (1987)

(finding approximately five seconds insufficient).

¶53 Jones said she viewed Smith for “[m]aybe about–not even ten 

minutes. He walked in my house, he had on black gloves. He saw me, went 

in the bathroom.” A few questions later, however, Jones testified that she 

viewed him for about two minutes. Either amount of time is sufficient. At 

trial, Jones testified that she saw Smith for “maybe not even five minutes.” 

She also testified that Smith walked out “really fast” from the bathroom, 

but when she later left the apartment, she noticed he was standing by the 

stairs and she could “see his face.” She said the lights were on and the 

apartment was “bright,” and she could “clearly” see everything in the 

living room. She also recognized him from Facebook.

¶54 Although Jones also stated she “didn’t really—I mean, he 

wasn’t really—like, I didn’t see him because he went into the bathroom so 

fast so—” most of her statements express that she was able to see him. 

When she was able to see Smith, she tried to look at him the entire time and 

saw him clearly.

2. Degree of Attention on Smith

¶55 The record also supports the trial court’s finding under the 

second factor. Jones’s attention was directed at Smith when he was in the 

apartment. See (Bernard) Smith, 146 Ariz. at 497 (finding the second factor 

weighed in favor of reliability where the witness testified that she was “able 

to fix her full attention on [the] defendant”). Jones also testified that she 
STATE V. SMITH

Opinion of the Court

14

“wanted to see what he looked like” and was “trying to focus [her] attention 

on him” “the entire time.” Although she said she was “not really” curious 

about him, she also said she “want[ed] to meet him.”

¶56 Smith argues, however, that Jones did not pay attention to 

him because she could not describe his clothing or appearance. This is not 

entirely accurate. Jones was able to describe some of Smith’s clothing (he 

was wearing tight black gloves) as well as his general appearance (he was 

“tall, light skinned,” and “maybe African-American”). Although her 

inability to recall more details certainly lessens the weight of this factor, we 

conclude that substantial evidence supports the trial court’s finding.

3. Prior Description

¶57 Under the third factor, the court must consider the accuracy 

of a witness’s description before the unduly suggestive procedure. Biggers, 

409 U.S. at 199. But here, Jones never provided a description of Smith before 

Udd showed her the photo. As a result, this factor weighs against a finding 

of reliability. But see (Johnny) Williams, 144 Ariz. at 440 (determining that a 

suggestive identification was reliable even though witness had given no 

prior description of the perpetrator).

4. Level of Certainty

¶58 The record also supports the trial court’s finding under the 

fourth factor. Jones was confident when she identified Smith. See State v. 

Alvarez, 145 Ariz. 370, 372 (1985) (determining that level of certainty favored 

admission where the witness responded “immediately and without 

hesitation”); State v. (Joe) Williams, 113 Ariz. 14, 18 (1976) (stating that 

identification was reliable in part because the witness testified that “she was 

sure” about the identification); State v. Taylor, 109 Ariz. 518, 520 (1973) (to 

same effect).

¶59 Udd testified that Jones was “100 percent” sure, “seemed 

confident,” and never hesitated. Jones testified that after looking at his 

photo she was “very sure” Smith was at the apartment. Additionally, at the 

hearing, the court played Jones’s interview. In the interview Udd stated, “I 

showed you a photograph and you identified an individual. Is that the 

same individual that came over yesterday?” Jones responded, “I believe 

so.”
STATE V. SMITH

Opinion of the Court

15

¶60 Smith argues that this factor weighs against reliability. To 

support his claim, he notes that when the State asked Jones, “When you saw 

[Smith], did you recognize him?” she replied, “no.” But Smith ignores the 

fact that the State clarified Jones’s response with its next question. 

Specifically, the State asked Jones whether Smith “look[ed] like anybody 

you had seen a photograph of before?” Jones then responded that she had 

seen him before in K.L.’s Facebook pictures. In short, Jones’s testimony, 

when examined as a whole and in context, supports the court’s finding that 

Jones was certain. And although Smith criticizes the certainty factor as 

empirically unreliable, Arizona courts have consistently given weight to 

this factor. See, e.g., State v. Moore, 222 Ariz. 1, 9 ¶ 27 (2009) (considering 

witness’s level of certainty); Alvarez, 145 Ariz. at 372 (same).

5. Length of Time

¶61 Finally, because Jones identified Smith the day after seeing 

him, the fifth factor also weighs in favor of admitting her identification. See 

Taylor, 109 Ariz. at 520 (finding reliability where “there was only a lapse of 

seven days between the time of the attack and the confrontation”).

C.

¶62 Smith argues that the trial court erred in denying his Batson

challenges to the State’s peremptory strikes of Jurors 14 and 211. Batson v. 

Kentucky, 476 U.S. 79 (1986). These jurors were the only African Americans 

on the prospective jury panel. “We defer to the trial court’s ruling, which 

is based ‘largely upon an assessment of the prosecutor’s credibility.’” 

Garcia, 224 Ariz. at 10 ¶ 22 (quoting State v. Roque, 213 Ariz. 193, 203 ¶ 12

(2006)). We will not reverse a trial court’s ruling on a Batson challenge 

unless it is clearly erroneous. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

¶63 The Equal Protection Clause of the Fourteenth Amendment 

provides that no state shall “deny to any person within its jurisdiction the 

equal protection of the laws.” In Batson, the Supreme Court held that 

prohibiting an individual from serving on a jury based on race violates the 

Equal Protection Clause. 476 U.S. at 89. “A Batson challenge involves three 

steps: (1) The defendant must make a prima facie showing of 

discrimination, (2) the prosecutor must offer a race-neutral reason for each 

strike, and (3) the trial court must determine whether the [defendant]

proved purposeful racial discrimination.” State v. Medina, 232 Ariz. 391, 404 

¶ 44 (2013) (quoting State v. Hardy, 230 Ariz. 281, 285 ¶ 12 (2012)).
STATE V. SMITH

Opinion of the Court

16

¶64 Here, by asking the State to provide race neutral-reasons, the 

trial court implicitly found that Smith made a prima facie showing of 

discrimination. See id. ¶ 45. Thus, under Batson’s second step, the 

prosecutor explained that Juror 14 was hesitant about imposing the death 

penalty, stating that he “had to do a lot of soul searching” and that he 

“couldn’t make a decision” and “did not want that weight” of imposing the 

death penalty. The State then claimed it struck Juror 211 because she had 

two surgery follow-up appointments that conflicted with the trial schedule.

The prosecutor also noted that Juror 211 suffered from migraines and took 

daily medication.

¶65 After listening to the State’s reasons for striking the jurors, the 

court stated: 

All right. The Batson motions are denied. I find that the State 

has made race-neutral reasons for striking them. I remember 

juror 14 very clearly being very hesitant about being able to 

serve on this. We talked to him for some period of time. And 

I believe we spoke to him privately. 211 there were 

race-neutral reasons given. She does have hardships with 

regard to her health, at least to a certain degree. So I find that 

the Batson challenges shall be denied.

¶66 The trial court correctly concluded that the State offered 

race-neutral reasons for striking both jurors. The State struck Juror 14 based 

on his reluctance to impose the death penalty. See State v. Escalante-Orozco,

241 Ariz. 254, 271 ¶ 36 (2017) (explaining that potential reluctance to impose 

the death penalty was a race-neutral reason), abrogated on other grounds by 

Escalante, 245 Ariz. 135; State v. Bolton, 182 Ariz. 290, 302 (1995) (determining 

that prosecutors may strike jurors “who have expressed reservations about 

capital punishment” even if they are “not excludable for cause”). 

Additionally, the State explained it struck Juror 211 because she had health 

problems and the trial schedule conflicted with her surgery follow-up 

appointments. See State v. Gay, 214 Ariz. 214, 220–21 ¶¶ 18–19 (App. 2007) 

(holding that State’s explanation for striking an African American juror, 

which was based in part on the State’s concern that “she would be 

distracted by upcoming medical tests” was a race-neutral reason).

¶67 Under Batson’s third step, the court “must determine whether 

the prosecutor’s stated reasons were the actual reasons or instead were a 

pretext for discrimination.” Flowers v. Mississippi, 139 S. Ct. 2228, 2241 

(2019); Hardy, 230 Ariz. at 285 ¶ 12 (explaining that under Batson’s third step 

the court evaluates the striking party’s credibility, as well as the demeanor 
STATE V. SMITH

Opinion of the Court

17

of the striking attorney and the excluded juror). If the strike is based on the 

juror’s demeanor, such as nervousness or inattention, the trial court must 

also evaluate whether the juror’s “demeanor can credibly be said to have 

exhibited the basis for the strike.” Snyder v. Louisiana, 552 U.S. 472, 477 

(2008). Smith bears the burden of proving purposeful discrimination, and 

we will not reverse “unless the reasons provided by the State are clearly 

pretextual.” Roque, 213 Ariz. at 204 ¶ 15, abrogated on other grounds by 

Escalante-Orozco, 241 Ariz. 254.

¶68 The record supports the trial court’s conclusion that the 

strikes were not pretextual. In denying Smith’s Batson challenge as to Juror 

14, the court stated that “we talked to him for some period of time,” and 

observed that he was “very hesitant” about serving on the jury. Indeed, 

Juror 14 made it clear throughout jury selection that he was extremely 

reluctant to serve on a death penalty case. He explained that he would 

“have to do some soul searching” about imposing the death penalty and 

didn’t know if he wanted a death sentence on his conscience. He also stated 

that it would be “difficult” for him to “deci[de] . . . life or death” and he 

questioned whether he “should . . . be the one really making [the] decision.” 

He agreed with the State that he should not be empaneled on the jury 

because of this issue and expressed that he may become “frozen and unable 

to make that decision.” Later, Juror 14 spoke privately with the court and 

reiterated that he would have difficulty imposing a death sentence and 

would consider it a “last option.” See State v. Newell, 212 Ariz. 389, 401–02 

¶¶ 55, 58 (2006) (affirming denial of Batson challenge where juror provided 

conflicting responses about the death penalty).

¶69 Similarly, the trial court did not err in denying Smith’s Batson 

challenge as to Juror 211. The court concluded that the State struck Juror 

211 based on “hardships with respect to her health.” Specifically, during 

voir dire and in her written questionnaire, Juror 211 advised the court that 

she suffered from migraines, and that serving on the jury would create an 

“undue hardship” because she had two surgery follow-up appointments 

that conflicted with the trial schedule and could not be rescheduled.

¶70 Smith asserts that Juror 211 later advised the court that she 

could reschedule her surgical appointments. We disagree. It is unclear 

from the record whether Juror 211 was referring to rescheduling “four 

appointments” that she had for “injections” (appointments she consistently 

stated could be rescheduled) or her surgery follow-up appointments. 

Although the record is less than clear as to which appointments could be 
STATE V. SMITH

Opinion of the Court

18

rescheduled, the trial court did not abuse its discretion in determining that 

Juror 211’s medical hardships were the basis for the State’s strike.

¶71 Smith argues this Court, for the first time on appeal, must 

conduct a comparative analysis of Jurors 14 and 211 vis-à-vis other jurors

whom the State did not strike. We disagree. Because Smith did not raise 

this issue in the trial court, it is waived. See Foster v. Chatman, 136 S. Ct. 

1737, 1749–50 (2016) (acknowledging that it made an “independent 

examination of the record,” but not requiring a comparative analysis where 

it was not raised before the trial court); Snyder, 552 U.S. at 483 (“[A] 

retrospective comparison of jurors based on a cold appellate record may be 

very misleading when alleged similarities were not raised at trial.”); 

Medina, 232 Ariz. at 404–05 ¶¶ 48–49 (finding comparative analysis not 

required where defendant did not raise it before the trial court);

Escalante-Orozco, 241 Ariz. at 272 ¶ 37 (same). And although Flowers

explained that a comparative analysis may be relevant in addressing a 

Batson challenge, it did not require such an analysis for the first time on 

appeal. 139 S. Ct. at 2247–49; see State v. Curry, 447 P.3d 7, 11 (Or. Ct. App. 

2019) (explaining that assessment under Flowers should include a 

comparative juror analysis “when the record is adequate to do so”).

¶72 Citing United States v. You, Smith also argues that the trial 

court erred by failing to make specific findings regarding the “prosecutor’s 

credibility,” as well as the court’s “reason[s] for accepting” the State’s 

race-neutral explanations. Addressing a Batson challenge, You held that a 

trial court cannot simply deem a race-neutral explanation “plausible,” but 

must make a “clear record” and “deliberate decision” as to whether there 

was purposeful discrimination. 382 F.3d at 968 n.2, 969 (quoting United 

States v. Alanis, 335 F.3d 965, 967 (9th Cir. 2003)).

¶73 Smith’s argument is not persuasive. Unlike You, the trial 

court here did more than simply deem the State’s explanations “plausible.” 

Rather, the court made specific findings as to each juror, stating that “Juror 

14 [was] very clearly being very hesitant about being able to serve,” and 

Juror 211 had “hardships with regard to her health.” Moreover, our 

precedent allows us to defer to an “implicit finding” that a “reason . . . was 

non-discriminatory” even when “the trial court did not expressly rule on 

[the third Batson factor].” State v. Prasertphong, 206 Ariz. 70, 87 ¶¶ 63–64,

supplemented, 206 Ariz. 167 (2003); State v. Canez, 202 Ariz. 133, 147 ¶ 28 

(2002) (affirming the court’s “implicit[] finding” under step three in 
STATE V. SMITH

Opinion of the Court

19

denying the Batson challenge), abrogated on other grounds by State v. 

Valenzuela, 239 Ariz. 299 (2016).3

¶74 Accordingly, we affirm the trial court’s order denying Smith’s 

Batson challenges.

D.

¶75 At trial, the court admitted a PowerPoint and video 

demonstrating the location and movement of Smith’s and K.L.’s cellphones 

on the day of the murder. Smith argues that the video was misleading 

because (1) CSLI can only show the general location of a cell phone (within 

one and a half miles of a cell tower) and (2) it cannot track the specific path 

a cell phone travels between cell towers. Thus, Smith argues that the trial 

court erred by admitting the video.

¶76 We review evidentiary rulings for an abuse of discretion. 

State v. (Joe C.) Smith, 215 Ariz. 221, 232 ¶ 48 (2007). Relevant evidence may 

be excluded “if its probative value is substantially outweighed” by a danger 

of misleading or confusing the jury. Ariz. R. Evid. 403. Additionally, “[t]he 

trial court has discretion to determine whether the probative value of 

evidence is outweighed by the danger of unfair prejudice or confusion of 

the issues; we will not disturb a trial court decision unless the court has 

clearly abused its discretion.” State v. Mauro, 159 Ariz. 186, 199 (1988).

¶77 Inaccuracies in a video go to the weight of the evidence, not 

its admissibility, and may be clarified through witness testimony. See State 

v. Steinle, 239 Ariz. 415, 419 ¶ 15 (2016) (explaining that a video may be 

misleading, but “[s]uch dangers” may be “mitigated by testimony” or 

“cautionary instructions”); State v. Doerr, 193 Ariz. 56, 66 ¶¶ 46–48 (1998)

(holding that the State’s maps and diagrams of the crime scene were 

admissible even if not “absolutely correct,” so long as they allowed the jury 

“to understand better the statements of the witness” and the inaccuracies 

 3 The court of appeals recently issued an opinion that the State contends 

does not follow our precedent on this issue. See State v. Porter, 248 Ariz. 392, 

394 ¶ 1, 399 ¶ 20 (App. 2020) (holding that a trial court must expressly 

determine “that the racially disproportionate impact” of strikes is “justified 

by genuine, not pretextual, race-neutral reasons” whenever there is a pattern 

of strikes against minority jurors). The State’s petition for review in Porter

is currently pending before this Court, and we express no opinion on that 

case here.
STATE V. SMITH

Opinion of the Court

20

were clarified by witness testimony (quoting Young Mines Co. v. Blackburn, 

22 Ariz. 199, 207 (1921))).

¶78 Here, any inaccuracies in the video were clarified by Balmir’s 

testimony. On at least sixteen occasions, Balmir testified that the video 

could not portray the path or exact locations of the phones. For example, 

she stated that the video did not “demonstrate the exact route that someone 

may have taken” and was “absolutely not a representation of how [the 

individuals] travel or which route they took.” The jury was also advised 

that CSLI does not provide the precise location of a cell phone, but rather 

tracks its location anywhere within a mile and a half radius of the nearest 

tower. The court, therefore, did not abuse its discretion.

¶79 Smith argues for the first time on appeal that the video was 

unfairly prejudicial because it showed K.L.’s phone fade away after her 

death. Specifically, after the time of K.L.’s death, the video shows a small 

circle surrounding her cell phone slowly fading away.

¶80 We find no error, much less fundamental error. Even if the 

depiction in the video suggests K.L.’s death, Smith does not explain how he 

was prejudiced. No one disputes that K.L. did, in fact, die near the location 

of her cell phone, and there is nothing about the “fading circle” that is 

unduly prejudicial or inflammatory.

¶81 Finally, Smith argues that the court abused its discretion by 

admitting the video without watching it. The court, however, viewed 

essentially the same material in the PowerPoint. And, based on Smith’s 

objections, the court was apprised of the inaccuracies in the video. 

Although it would have been better practice to view the video in its entirety, 

the trial court did not abuse its discretion.

E.

¶82 Smith argues the trial court violated the Confrontation Clause 

by restricting his cross-examination of the State’s former case agent,

Detective Udd. “We review limitations on the scope of cross-examination 

for abuse of discretion.” State v. Delahanty, 226 Ariz. 502, 506 ¶ 17 (2011).

¶83 PPD investigated former case agent Detective Udd’s 

timekeeping practices from October 2015 through October 2016. PPD 

ultimately determined that Udd had logged ninety-six hours of 

unaccounted-for work time. Udd was demoted and PPD recommended he 
STATE V. SMITH

Opinion of the Court

21

be charged with theft, a class three felony. But on September 1, 2017, the 

Maricopa County Attorney’s Office (“MCAO”) declined to charge Udd.

¶84 Before trial, Smith filed a motion in limine asking the court to 

allow him to question Udd about the circumstances of his demotion. Smith 

did not, however, request permission to ask Udd about MCAO’s charging 

decision.4 The trial court granted Smith’s motion in part, allowing him to 

question Udd about his unaccounted-for hours, PPD’s inquiry into his 

hours, and his retirement. In its ruling, the court further stated that Udd

could not be questioned about “the county attorney’s office not charging 

him.”

¶85 Smith now claims that Udd might have been motivated to 

testify unfavorably against him based on MCAO’s charging decision. He 

argues that Udd “had every incentive to prove his value to the 

prosecution,” suggesting that Udd testified against him to avoid being 

charged.

¶86 “The right to cross-examination must be kept within 

‘reasonable’ bounds and the trial court has discretion to curtail its scope.” 

State v. Fleming, 117 Ariz. 122, 125 (1977). “The test is whether the defendant 

has been denied the opportunity of presenting to the trier of fact 

information which bears either on the issues in the case or on the credibility 

of the witness.” Id. Although a court cannot prohibit all questioning 

bearing on a witness’s credibility, courts retain “wide latitude” to 

reasonably limit cross-examination based on, “among other things, 

harassment, prejudice, confusion of the issues, the witness’ safety, or 

interrogation that is repetitive or only marginally relevant.” Delaware v. Van 

Arsdall, 475 U.S. 673, 679 (1986).

¶87 We find no Confrontation Clause violation. As an initial 

matter, the trial court gave Smith broad latitude in impeaching Udd’s 

credibility. Specifically, the court allowed Smith to question Udd about

several matters related to the PPD investigation, including his theft of time. 

State v. Adams, 155 Ariz. 117, 121–22 (App. 1987) (finding no Confrontation 

 

4 Smith now claims that the State raised the issue of whether MCAO’s 

charging decision was admissible for impeachment purposes. The record 

does not support this contention. Nevertheless, because we find no error, 

much less fundamental error, whether this claim was preserved for our 

review does not affect our decision.
STATE V. SMITH

Opinion of the Court

22

Clause violation in part because the defendant was able to attack the 

witness’s credibility on several matters).

¶88 Further, Smith had no good-faith basis to support his claim 

that Udd altered his testimony in return for leniency from the State. Rather, 

he simply speculates that the State may have tried to elicit favorable 

testimony from Udd in exchange for leniency. Such speculation, however, 

does not give rise to a Confrontation Clause violation. See State v. McElyea, 

130 Ariz. 185, 186–87 (1981) (finding no Confrontation Clause violation 

where defendant sought to question a witness about a subsequent criminal 

charge not subject to any plea agreement because there was no evidence it 

would have revealed that the witness had a bias or interest in testifying 

against a former codefendant); Fleming, 117 Ariz. at 126 (finding no abuse 

of discretion where the defendant could not show that further 

cross-examination regarding a witness’s brief stay in a mental hospital four 

years prior bore on his credibility where there was no indication that the 

witness continued to have mental problems); State v. Abdi, 226 Ariz. 361, 

366–67 ¶ 22–23 (App. 2011) (finding no violation in part because the record 

contained no evidence supporting the defendant’s theory that a witness 

was motivated to lie).

¶89 Relying on State v. Little, Smith argues he had a right to 

cross-examine Udd to see what facts “might develop.” 87 Ariz. 295, 301 

(1960). We are unpersuaded. Little did not address what kind of proof, if 

any, was submitted to support the defendant’s attack on the witness’s 

credibility. Id. Rather, the court simply stated that the offer of proof was 

within “the range of permissible cross-examination.” Id. Here, Smith gave 

no offer of proof that Udd agreed to testify against Smith in return for 

leniency from the State. See State v. Cadena, 9 Ariz. App. 369, 371 (1969) 

(finding reversible error where a defendant attached an offer of proof—that 

the officer was facing a departmental inquiry after a fatal shooting occurred 

during his investigation—with his request to question the officer to show 

that he was motivated to secure a conviction against the defendant).

¶90 Finally, Smith has failed to show that he suffered prejudice. 

He argues that the “entire case relied on the jury’s faith in Udd’s 

investigation” and impeaching Udd would have shown he had “every 

incentive to prove his value to the prosecution.” We disagree. Based on 

the evidence presented at trial, Udd’s credibility was not a central issue in 

this case. Cf. State v. Glissendorf, 235 Ariz. 147, 149 ¶ 2, 152 ¶ 19 (2014) 

(explaining that a defendant was prejudiced by destruction of recordings 

that could have been used to impeach the State’s only witness in a child 
STATE V. SMITH

Opinion of the Court

23

molestation case). Rather, Udd testified about photos, video footage, CSLI, 

documents, texts, and Facebook messages he gathered during his 

investigation almost three years before MCAO’s charging decision.

Further, there is no evidence that Udd altered these exhibits to ensure a 

conviction, nor is there any evidence that the investigation was tainted by 

MCAO’s charging decision. See State v. Carreon, 210 Ariz. 54, 63 ¶ 37,

supplemented, 211 Ariz. 32 (2005) (finding no Confrontation Clause violation 

and explaining that unrelated information sought through 

cross-examination could have confused the jury).

¶91 Therefore, given the trial court’s wide latitude to limit the 

scope of cross-examination on issues regarding a witness’s bias, see Van 

Arsdall, 475 U.S. at 679, we conclude there was no error.

F.

¶92 Smith argues that the trial court erred by failing to reinstruct 

the jury at the end of the aggravation phase in violation of Smith’s right to 

a fair trial under the Due Process Clause. Because Smith did not object, we 

review this claim for fundamental error. Escalante, 245 Ariz. at 138 ¶ 1.

¶93 At the beginning of the aggravation phase, the court read the 

final aggravation phase instructions to the jury. Following the instructions, 

counsel presented arguments highlighting the evidence that was already 

presented during the guilt phase. At the conclusion of the arguments, the 

judge did not reinstruct the jurors, but simply reminded them that their

verdict had to be unanimous, the admonition was still in effect, and told 

them to take their copies of the jury instructions with them to deliberate. 

The entire aggravation phase, including instructions, lasted less than fifty 

minutes.

¶94 Arizona Rule of Criminal Procedure 19.1(a)(1),(b), which 

“generally applies to all trials,” states that a court should instruct the jury 

after the presentation of evidence and closing arguments “unless the court 

directs otherwise.” The comment to Rule 19.1 provides “[t]he court has 

discretion to give final instructions to the jury before closing arguments of 

counsel instead of after.” Ariz. R. Crim. P. 19.1 cmt; see State v. Nieto, 186 

Ariz. 449, 457 (App. 1996) (finding no error or prejudice where the court 

gave final jury instructions before closing arguments under Rule 19.1).

¶95 In contrast, Rule 19.1(d), which specifically applies to the 

“aggravation phase” of a capital case, does not expressly state that the court 
STATE V. SMITH

Opinion of the Court

24

may “direct otherwise” with respect to the order of the trial. Rather, Rules

19.1(d) (4), (7)–(8) provide that during the aggravation phase, the State must 

first offer evidence in support of each aggravator, and the court must 

instruct the jury after the parties “present arguments.” In short, Rule 

19.1(d), by its terms, indicates that the trial judge has less discretion to 

change the order of the trial during the aggravation phase than the guilt 

phase. As a result, we conclude that the trial court did not comply with 

Rule 19.1(d)(7)–(8) by instructing the jury at the beginning of the 

aggravation phase.

¶96 Nevertheless, even assuming the error was fundamental, 

Smith has not shown prejudice. State v. Kinkade, 140 Ariz. 91, 94–95 (1984) 

(finding no fundamental error where the court instructed the jury on 

reasonable doubt before the guilt phase, the court referred the jury to their 

copy of the instructions, and the attorneys reiterated the standard in their 

closing arguments); see State v. Jackson, 144 Ariz. 53, 55 (1985) (declining to 

reverse even under a harmless error standard where the failure to instruct 

at the end of the trial did not influence the verdict). Here, the trial court

read the final instructions to the jury less than fifty minutes before they 

recessed to deliberate, referenced the instructions at the end of the 

aggravation phase, and provided the jury with written copies of the 

instructions.

¶97 Smith’s reliance on State v. (Carl D.) Johnson, 173 Ariz. 274 

(1992), is misplaced. There, the jury listened to a full day of evidence after 

the court read the instructions. Id. at 276. Here, the entire aggravation 

phase lasted less than fifty minutes. And unlike (Carl D.) Johnson, where 

the trial court gave an improper reasonable doubt instruction that shifted 

the burden of proof to the defendant, here it is undisputed that the trial 

court’s instructions were proper. Id.

¶98 Therefore, even if the court erred by failing to reinstruct the 

jury at the close of the aggravation phase, it was not fundamental error.

G.

¶99 Smith argues there is insufficient evidence to show that he 

committed the murder “as consideration for the receipt, or in expectation 

of the receipt, of anything of pecuniary value.” § 13-751(F)(5) (2012). We 

will uphold the jury’s verdict if it is supported by substantial evidence, and 

we “view[] the evidence in the light most favorable to sustaining the jury 
STATE V. SMITH

Opinion of the Court

25

verdict.” State v. Gunches, 225 Ariz. 22, 25 ¶¶ 13–14 (2010) (quoting Roque, 

213 Ariz. at 218 ¶ 93). 

¶100 Pecuniary gain does not have to be the defendant’s only 

motive for a murder. See State v. Acuna Valenzuela, 245 Ariz. 197, 212 ¶ 42 

(2018) (stating that “pecuniary gain need not be the only motive for the 

(F)(5) aggravator to apply”); State v. Martinez, 218 Ariz. 421, 435 ¶ 66 (2008)

(“Pecuniary gain . . . need only be a motive for the murder, not the sole 

motive.”). Additionally, pecuniary gain may be proved by direct or 

circumstantial evidence. State v. Rose, 231 Ariz. 500, 515 ¶ 73, 516 ¶ 75 

(2013); see also Walker v. State, 707 So. 2d 300, 304–05, 317 (Fla. 1997) 

(providing that substantial evidence supported pecuniary gain aggravator 

where the State showed that the defendant, who was convicted of 

murdering the victim, encouraged her to have an abortion before the 

murder, expressed concerns over paying child support, and admitted he 

was arguing with the victim before he killed her); People v. Carasi, 190 P.3d 

616, 648 (Cal. 2008) (holding that the jury could reasonably “conclude that 

defendant sought to benefit financially” from the victim’s death by 

eliminating his monthly child support obligation, given the fact defendant 

had limited financial resources and he “perceived his child support 

obligation to [the victim] as a tremendous burden, calling her a ‘bitch’ and 

‘whore’ who deserved to die, and saying that his financial future would be 

‘fucked’ if nothing changed”).

¶101 Here, there was substantial circumstantial evidence showing 

that Smith murdered K.L. to avoid paying child support for K.S. The 

assault on K.L. at Kiwanis Park strongly suggests that Smith tried to end 

her pregnancy. Supra ¶¶ 5–6. Additionally, throughout the DES

proceedings, Smith engaged in a course of conduct, as well as made several 

statements, showing that he did not want to pay child support to K.L.

¶102 During the child support proceedings, Smith made several 

statements to K.L. showing that he was focused on what his financial 

obligations would be if the paternity tests determined he was K.S.’s father. 

For example, on November 13, Smith contacted K.L. on Facebook and said, 

“We need to do a legal DNA test so we can get this situation handled. Since 

you need diapers and wipes and money, we need to do a DNA test through 

the courts to establish paternity legally because I’m done with all this 

drama.” (emphasis added). Smith also expressed his frustration with K.L.’s 

efforts to establish paternity so that she could collect support. On December 

10, the day before the murder, Smith stated, “I know you only care because 

your benefits will get cut off without the test,” and said, “If you don’t want 
STATE V. SMITH

Opinion of the Court

26

me to see the baby and you just want money then let me know.” (emphasis 

added).

¶103 Smith also failed to appear for a paternity test, effectively 

blocking K.L.’s efforts to collect support.5 As a result, on December 10, the 

day before the murder, K.L. brought the issue to a head. She told Smith to 

“stop talking to me and take your DNA test,” and warned that he “ha[d] 

till tomorrow till [a DES worker] sends everything off to the courts.” When 

Smith said he would come at noon on December 11, K.L. pressed him and 

asked why he could not come sooner and said “Don’t say you coming 

tomorrow then don’t come. Don’t tell me you are going to take the test and 

then don’t show.” She also asked if she could drive with him to the DES 

testing site, indicating she wanted to make sure that Smith appeared.

¶104 Smith knew that on December 11 he could no longer avoid 

paternity testing. As a result, substantial evidence demonstrates he 

murdered K.L. that day. Then, immediately after the murder, he drove to 

DES and submitted to DNA testing. Upon his arrival, Smith asked a DES 

employee what would happen if K.L. did not show up for her DNA test. 

He was told the matter would be closed. Smith secretly recorded the 

conversation on his cell phone, indicating he wanted to preserve a record 

of this statement.

¶105 Smith argues, however, that there is insufficient evidence to 

prove the pecuniary gain aggravator because the evidence showed that (1) 

he was uncertain about whether he was the father of K.S., and (2) as a legal 

 5 Defense counsel claimed at oral argument in this Court that Smith 

appeared for his December 4 appointment and suggested that he was sent 

away by DES for some reason, perhaps because he had a minor child with 

him. This argument was never raised in Smith’s briefs and is therefore 

waived. Moreover, the record shows that Smith either never arrived for the 

appointment or voluntarily left without providing a DNA sample. Kathy 

McGill, a DES caseworker, testified that although the DES file contained a 

code indicating that the “noncustodial parent” “showed for genetic tests,” 

there was no record that Smith signed the sign-in sheet on December 4. 

McGill also testified that in her experience, a DES employee would not turn 

away a person who showed up for DNA testing. Additionally, McGill 

stated that when Smith missed his appointment, she called him to 

reschedule. When Smith finally returned her call on December 8, he never 

told her that he made the December 4 appointment.
STATE V. SMITH

Opinion of the Court

27

matter, despite the death of K.L., as long as K.S. was alive he might have 

still been responsible for child support. We disagree.

¶106 Based on the Kiwanis Park incident, as well as Smith’s 

statements and behavior throughout the DES proceedings, the jury could 

well conclude that Smith knew he was the father of K.S. Additionally, the 

evidence supports the conclusion that Smith—even if he was legally 

mistaken—had an expectation that he could avoid paying child support if 

he murdered K.L. Indeed, on the day of the murder, the DES worker 

confirmed this expectation. In short, because § 13-751(F)(5)6 only requires 

evidence of an expectation of pecuniary gain, it is irrelevant whether Smith’s 

actions, as a matter of law, released him from paying child support. See 

Carasi, 190 P.3d at 647–48 (stating pecuniary gain aggravator did not require 

proof that the defendant “experience[d] any actual pecuniary benefit”); 

People v. Edelbacher, 766 P.2d 1, 26 (Cal. 1989) (rejecting a similar argument 

and reasoning that “[p]roof of actual pecuniary benefit” is unnecessary 

because “the relevant inquiry is whether the defendant committed the 

murder in the expectation” of financial gain (quoting People v. Howard, 749 

P.2d 279, 298 (Cal. 1988))).

¶107 In sum, substantial evidence supports the jury’s finding that 

Smith killed K.L. for pecuniary gain.

H.

¶108 Smith argues that his conviction for child abuse of K.S. did 

not qualify as a serious offense aggravator under § 13-751(F)(2) because the 

trial court failed to instruct the jury that the crime of child abuse must be 

committed “against a child.” We review de novo “whether jury 

instructions properly state the law.” State v. (Christopher M.) Payne, 233 Ariz. 

484, 505 ¶ 68 (2013).

¶109 The list of serious offenses under § 13-751(F)(2) includes 

Dangerous Crimes Against Children (“DCAC”) under A.R.S. § 13-705. 

 6 We note that although this version of the pecuniary gain statute applies 

here, in 2019 the legislature amended and renumbered the statute. As 

amended, § 13-751(F)(3) is more limited in its scope, stating that pecuniary 

gain requires proof the “defendant procured the commission of the offense 

by payment, or promise of payment, of anything of pecuniary value, or the 

defendant committed the offense as a result of payment, or a promise of 

payment, of anything of pecuniary value.”
STATE V. SMITH

Opinion of the Court

28

Child abuse committed pursuant to § 13-3623(A)(1) is a DCAC, and 

therefore qualifies as a serious offense aggravator, if it is “intentionally or 

knowingly” committed “against a minor who is under fifteen years of age.” 

§§ 13-705(Q)(1)(h); -3623(A)(1).

¶110 Here, the jury convicted Smith of intentional or knowing child 

abuse under § 13-3623(A)(1) and found that K.S. was under the age of 

fifteen. As a result, Smith’s conviction for child abuse was a DCAC and 

qualified as a serious offense aggravator. §§ 13-705(Q)(1)(h), -751(F)(2).

¶111 Smith argues, however, that because § 13-3623(A)(1) allows 

child abuse to be committed “knowingly,” to qualify as a serious offense 

the jury must determine whether the offense was committed against a child. 

Smith contends that the jury never made this finding and, as a result, it

never determined whether he knowingly shot K.S. (a crime against a child), 

or whether he simply “pulled the trigger” with no intent to harm her (a 

crime committed fortuitously, but not knowingly against a child). See State 

v. (Roger) Williams, 175 Ariz. 98, 101, 102–04 (1993) (holding that the 

evidence did not show the defendant committed a crime against a child 

where the defendant, who was driving while intoxicated, struck and 

injured the occupants of a car, including a minor under the age of fifteen; 

under these specific circumstances, the court determined that the defendant 

could not be convicted of a DCAC because he had no way of knowing a 

child was in the car).

¶112 We disagree. The record shows that Smith’s conduct was 

directed against K.S. Smith fired one bullet into the back of K.L.’s head, and 

another bullet into K.S.’s thigh. Further, after K.S. was wounded, Smith 

knowingly left the scene while the infant was bleeding and lying face down 

on the ground. See State v. Sepahi, 206 Ariz. 321, 322–23 ¶¶ 10, 12, 324 ¶ 19 

(2003) (holding that defendant committed a DCAC where he shot a 

fourteen-year-old in the stomach; the court concluded that such conduct 

was “directed, aimed at, and targeted . . . against a victim under the age of 

fifteen”). And here the State alluded to both theories—shooting K.S. in the 

thigh and abandoning her after she was wounded—as grounds for 

convicting Smith of child abuse. See also State v. Herrera, 176 Ariz. 9, 16

(1993) (explaining that the state must only prove the elements of the crime, 

and a defendant is not entitled to a unanimous verdict on the “precise 

manner in which the act was committed” (quoting State v. Encinas, 132 Ariz. 

493, 496 (1982))).
STATE V. SMITH

Opinion of the Court

29

¶113 Additionally, none of Smith’s proffered cases suggests that 

child abuse under § 13-3623(A)(1) is not a crime committed “against” a 

child. See (Christopher M.) Payne, 233 Ariz. at 505–06 ¶¶ 69–72 (holding that, 

with respect to the crime of child abuse under § 13-3623(A)(1), the State 

need not establish any mental state regarding the circumstances of the 

offense, but emphasizing that the mental states of “intentionally or 

knowingly” applied to the defendant’s actions); State v. Millis, 242 Ariz. 33, 

41 ¶ 26 n.7 (App. 2017) (to same effect); State v. (Joe M.) Johnson, 181 Ariz. 

346 (App. 1995) (holding that under § 13-3623(B), which makes it illegal to 

place children in a physically dangerous environment, maintaining such a 

dangerous environment in an apartment was child abuse); State v. Greene, 

168 Ariz. 104, 107–08 (App. 1991) (holding that unsanitary apartment was 

not necessarily “likely” to produce serious physical injury under § 13-

3623(B)(1)); State v. Cantua-Ramirez, 149 Ariz. 377, 379–80 (App. 1986) 

(determining that a defendant who accidentally struck a baby could be 

guilty under transferred intent).

¶114 Smith also argues that he was entitled to a separate jury 

instruction in the aggravation phase stating that for child abuse to qualify 

as a serious offense under § 13-751(F)(2), the jury must determine the 

offense was committed against a child. We disagree. The trial court was 

not required to give this instruction because proof of the underlying crime 

necessarily included a finding that the offense was committed against a 

child. See supra ¶¶ 109–10, 112; State v. Coghill, 216 Ariz. 578, 590 ¶ 49 (App. 

2007) (determining that defendant who knowingly possessed child 

pornography satisfied the DCAC statute because the jury “implicitly found 

that his conduct focused on the children”); cf. (Bernard) Smith, 146 Ariz. at 

498–99 (explaining that a jury is not required to separately find 

dangerousness where an element of the offense charged requires proof of 

its dangerous nature); State v. Gatliff, 209 Ariz. 362, 365–66 ¶¶ 17–18 (App. 

2004) (to same effect). But see State v. Larin, 233 Ariz. 202, 212–13 ¶¶ 38, 42 

(App. 2013) (stating that even though a defendant’s armed robbery 

conviction was “inherently dangerous” because it involved possessing a 

deadly weapon during the course of a robbery, the jury could have found 

the dangerousness allegation not proven because it acquitted the defendant 

of the related possession of a deadly weapon charge).

¶115 We reject Smith’s claim that failure to give the subject 

instruction was structural error. The “relatively few instances in which 

we . . . regard error as structural” are those that “deprive defendants of 

basic protections and infect the entire trial process from beginning to end.” 

State v. Bush, 244 Ariz. 575, 591 ¶ 66 (2018) (internal quotation marks 
STATE V. SMITH

Opinion of the Court

30

omitted) (quoting State v. Ring, 204 Ariz. 534, 552 ¶ 45 (2003)). Those 

instances include:

a biased trial judge, complete denial of criminal defense 

counsel, denial of access to criminal defense counsel during 

an overnight trial recess, denial of self-representation in 

criminal cases, defective reasonable doubt jury instructions, 

exclusion of jurors of the defendant’s race from grand jury 

selection, excusing a juror because of his views on capital 

punishment, and denial of a public criminal trial. 

Ring, 204 Ariz. at 552–53 ¶ 46. None of those instances are present here.

I.

¶116 Smith argues that the trial court violated the Eighth 

Amendment by instructing the jury that it could consider mitigation only 

“so long as” it related to Smith’s character, propensity, history or record, or 

circumstances of the offense. “‘We review a trial court’s refusal to give a 

jury instruction for abuse of discretion,’ but we assess the legal adequacy of 

the instructions de novo, viewing them in their entirety.” State v. Miller, 234 

Ariz. 31, 43 ¶ 41 (2013) (quoting Garcia, 224 Ariz. at 18 ¶ 75).

¶117 The “Capital Case 2.3–Mitigation” instruction provides that 

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 the defendant’s character, propensity, history or record or 

circumstances of the offense.” RAJI (Crim.) Capital Case 2.3, at 553 (3d ed. 

2016) (emphasis added). Before the penalty phase, Smith requested that the 

court deviate from the RAJI and instead instruct the jury to consider 

“relevant factors . . . including any aspect of the defendant’s character, 

propensities or record and any other circumstances of the offense.” 

(emphasis added). Denying Smith’s request, the trial court followed the 

RAJI.

¶118 The court’s instructions were proper. A jury may only 

consider relevant mitigation factors, which “includ[e] any aspect of the 

defendant’s character, propensities or record and any of the circumstances 

of the offense.” § 13-751(G); State v. Villalobos, 225 Ariz. 74, 83 ¶ 40 (2010) 

(“Relevance . . . is the only statutory limitation on the jury’s ability to 

consider mitigation evidence.”); see also Lockett v. Ohio, 438 U.S. 586, 604 & 

n.12 (1978) (requiring a jury consider categories of relevant mitigation as 

“any aspect of a defendant’s character or record and any of the 
STATE V. SMITH

Opinion of the Court

31

circumstances of the offense”); Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) 

(adopting Lockett’s plurality opinion).

¶119 Smith first argues that the United States Supreme Court 

expanded the Lockett/Eddings mitigation categories in Tennard v. Dretke, 542 

U.S. 274, 284–85 (2004) (citing McKoy v. North Carolina, 494 U.S. 433 (1990)). 

Smith is incorrect. In Tennard, the Court held that a jury must be allowed 

to consider factors without a causal connection to the crime if they “tend[]

logically to prove or disprove” a fact that the jury could “reasonably deem 

to have mitigating value.” 542 U.S. at 284 (quoting McKoy, 494 U.S. at 440).

Neither Tennard nor McKoy expanded or altered the categories provided by 

Lockett/Eddings. See id. at 285; McKoy, 494 U.S. at 438–39, 443; see also State 

v. Burns, 237 Ariz. 1, 31 ¶ 144 (2015) (holding that jury instructions 

restricting mitigation to the Lockett/Eddings categories were proper); State v. 

Velazquez, 216 Ariz. 300, 311 ¶ 44 (2007) (to same effect); State v. Tucker, 215 

Ariz. 298, 317 ¶ 72 (2007) (providing that the “so long as” mitigation 

instruction allowed the jury to consider “all relevant evidence”).

¶120 Next, Smith argues that the instruction was invalid because it 

misstated § 13-751(G), which provides that the jury must consider relevant 

factors “including any aspect of the defendant’s character, propensities or 

record and any of the circumstances of the offense.” But we have 

consistently held that the “so long as” language in RAJI 2.3 complies with 

§ 13-751(G). Burns, 237 Ariz. at 31 ¶ 144; Velazquez, 216 Ariz. at 311 ¶ 44; 

Tucker, 215 Ariz. at 317 ¶ 72.

¶121 Accordingly, we conclude that the jury was properly 

instructed, and no error occurred.

J.

¶122 Smith argues that the trial court and the State violated the 

Sixth and Eighth Amendments and article 2, section 24 of the Arizona 

Constitution by advising the jury that they could grant mercy only if the 

evidence supported it. We review de novo whether the trial court has 

properly instructed the jury in a capital case. State v. Glassel, 211 Ariz. 33, 

53 ¶ 74 (2005). Where the error is not preserved, we will reverse if the error 

is structural or fundamental. Valverde, 220 Ariz. at 584–85 ¶¶ 10–12.

¶123 During the penalty phase, the trial court instructed the jury

that “mitigating circumstances are not an excuse or justification for the 

offense but are factors that, in fairness and mercy, may reduce the 
STATE V. SMITH

Opinion of the Court

32

Defendant’s moral culpability.” RAJI Capital Case 2.3. During its closing 

argument, the State told the jury that it could not base its decision on “just 

mere sympathy not related to the evidence . . . . It cannot be mercy for 

mercy’s sake” and “[y]ou’re not to be swayed by mere sympathy not related 

to the evidence . . . . You cannot have mercy for mercy’s sake. You cannot 

have sympathy for sympathy’s sake. It must be related to this case.”

¶124 We find no error, much less fundamental error. The court’s 

instruction and the State’s argument were legally accurate. “The 

Constitution does not require . . . that a jury ‘be able to dispense mercy on 

the basis of a sympathetic response to the defendant.’” Carreon, 210 Ariz. 

at 70 ¶ 83 (quoting Johnson v. Texas, 509 U.S. 350, 371 (1993)); California v. 

Brown, 479 U.S. 538, 542–43 (1987) (to same effect). “[M]ercy is not a 

mitigating circumstance” but is a “concept jurors may apply in evaluating 

the existence of mitigating circumstances.” State v. Andriano, 215 Ariz. 497, 

507 ¶¶ 47–49 (2007), abrogated on other grounds by State v. Ferrero, 229 Ariz. 

239 (2012). 

¶125 Smith’s reliance on Gregg v. Georgia, 428 U.S. 153, 199 (1976), 

is misplaced. There, the Supreme Court upheld a statute allowing a jury to 

make a binding recommendation of mercy absent any mitigation. Id. at 197. 

The Court, however, did not suggest that juries must be permitted to 

consider mercy for mercy’s sake. See id.; Johnson, 509 U.S. at 371–72 

(subsequently explaining that a jury need not be allowed to dispense mercy 

on the basis of sympathy).

¶126 Smith also cites article 2, section 24 of the Arizona 

Constitution, claiming it “requires that juries have an unfettered right to 

grant mercy in capital cases.” But article 2, section 24 requires only the right 

to a “speedy public trial by an impartial jury.” It does not suggest an 

“unfettered right” to mercy. See Ariz. Const. art. 2, § 24.

¶127 Finally, we reject Smith’s claim that the trial court’s 

instruction regarding mercy was structural error. None of the instances 

involving structural error are present here. See Ring, 204 Ariz. at 552–53 

¶ 46 (listing the “relatively few instances” of structural error and noting that 

in each the error infected “the entire trial process” from beginning to end).

K.

¶128 Smith argues the trial court abused its discretion by allowing 

inadmissible mitigation rebuttal by the State. We review a trial court’s 
STATE V. SMITH

Opinion of the Court

33

admission of evidence during the penalty phase for abuse of discretion and 

give “deference to a trial judge’s determination of whether rebuttal 

evidence offered during the penalty phase is ‘relevant’ within the meaning 

of the statute.” State v. Champagne, 247 Ariz. 116, 142 ¶ 87 (2019) (quoting 

State v. McGill, 213 Ariz. 147, 156–57 ¶ 40 (2006)). “The threshold for 

relevance is a low one.” State v. Leteve, 237 Ariz. 516, 529 ¶ 48 (2015) 

(quoting Roque, 213 Ariz. at 221 ¶ 109). Because Smith failed to object at 

trial, we review this claim for fundamental error. Escalante, 245 Ariz. at 138 

¶ 1.

¶129 Smith first claims that the testimony of the State’s rebuttal

expert, Dr. Pitt, was inadmissible because it was not relevant to his 

proffered mitigation. We disagree. Dr. Pitt, a forensic psychologist, 

testified about several matters relevant to whether Smith should be shown 

leniency, including Smith’s mental health, relationship with Ward, and 

actions leading up to K.L.’s murder. Moreover, under § 13-752(G), the State 

“may present any evidence” during the penalty phase “that is relevant to 

the determination of whether there is mitigation that is sufficiently 

substantial to call for leniency.” Additionally, “regardless of whether the 

defendant presents evidence of mitigation, the state may present any 

evidence that demonstrates that the defendant should not be shown 

leniency including any evidence regarding the defendant’s character, 

propensities, criminal record or other acts.” Id.; see § 13-751(G) (providing 

that the jury “shall consider as mitigating circumstances any factors 

proffered by the defendant or the state that are relevant in determining 

whether to impose a sentence less than death”); Champagne, 247 Ariz. at 142 

¶¶ 89–90 (explaining that mitigation rebuttal may include any evidence 

that demonstrates the defendant should not be shown leniency, and need 

not be relevant to the defendant’s proffered mitigation); see also State v. 

Guarino, 238 Ariz. 437, 440 ¶ 13 (2015) (“Taken together, A.R.S. §§ 13-751(G) 

and -752(G) permit jurors to hear evidence relating to circumstances of the 

crime and the defendant’s character.”); State v. Pandeli, 215 Ariz. 514, 527 

¶¶ 41–42 (2007) (allowing any evidence demonstrating the defendant 

should not be shown leniency).

¶130 Smith next argues that four of Pitt’s comments were improper 

because they were more prejudicial than probative and violated due 

process by rendering the trial “fundamentally unfair.” Guarino, 238 Ariz. 

at 441 ¶ 15 (stating that due process is violated if rebuttal evidence “is so 

unduly prejudicial that it renders the trial fundamentally unfair” (quoting 

Payne v. Tennessee, 501 U.S. 808, 825 (1991))).
STATE V. SMITH

Opinion of the Court

34

1. Assault at Kiwanis Park

¶131 Pitt stated that Ward did not compel Smith to “set up what 

happened at Kiwanis Park” and it was “his opinion” that “Smith engaged 

in a significant amount of planning [for the murder] that date[d] back to at 

least that incident in Kiwanis Park in August.” Smith argues that these 

statements were unduly prejudicial and improperly implied that Smith was 

responsible for K.L.’s attack. We disagree. Although Smith was not 

charged for the Kiwanis Park incident, substantial evidence had been 

presented to the jury suggesting that Smith helped plan the attack. Supra 

¶¶ 5–6. Thus, Pitt’s statements were not prejudicial to the extent they

rendered the trial “fundamentally unfair.” Guarino, 238 Ariz. at 441 ¶ 15.

2. Attempted Murder of K.S.

¶132 Pitt implied that Smith attempted to kill K.S. For example, 

Pitt stated that not everyone involved in a dysfunctional relationship goes 

“out and commit[s] murder and attempted murder” and that Smith chose 

“to tak[e] another person’s life and attempt[] to take the life of his own 

baby.” Smith argues these statements were unduly prejudicial because 

Smith was not charged with attempting to murder K.S.

¶133 We conclude that these statements were not so prejudicial as 

to make the trial “fundamentally unfair.” Id. Pitt’s comments addressed 

whether Smith should be shown leniency. Further, any prejudice Smith 

may have suffered by Pitt referring to his crime against K.S. as attempted 

murder was minimal. Specifically, the jury had already convicted Smith of 

child abuse for shooting K.S., a two-month-old infant, and leaving her face

down on the ground with a bullet wound. We find no error.

3. Dr. Lacey

¶134 Pitt also disagreed with Dr. Lacey, Smith’s mitigation witness, 

about the impact of Ward’s emotional abuse on Smith. Pitt testified that he 

“respectfully disagree[d]” with Dr. Lacey about blaming “solely . . . the 

relationship between [Smith] and [K.] Ward . . . for choices that [Smith] 

made.” Pitt also stated that, “my sense in looking at Dr. Lacey’s report—I 

didn’t know him—or I didn’t know of him and my sense is that he didn’t—

my guess was he really didn’t have much forensic experience” and was 

“making this leap” between the dysfunctional relationship with Ward and 

Smith’s actions.
STATE V. SMITH

Opinion of the Court

35

¶135 Pitt’s comments about Lacey’s qualifications were not unduly 

prejudicial. As a general matter, an expert should not comment on the 

credibility of another witness. See, e.g., State v. Lindsey, 149 Ariz. 472, 475 

(1986) (explaining that expert witnesses should not provide opinions about 

the credibility of another witness); State v. Reimer, 189 Ariz. 239, 240–41 

(App. 1997) (to same effect). However, it was not improper for Pitt to 

question Lacey’s conclusions or his expert qualifications. See Ariz. R. Evid. 

702; State v. Hummert, 188 Ariz. 119, 126 (1997) (explaining that an expert’s 

opinion and the extent of their knowledge is “fair game during 

cross-examination”); Downs v. Scheffler, 206 Ariz. 496, 501 ¶ 21 (App. 2003) 

(“Arizona has a long-favored practice of allowing full cross-examination of 

expert witnesses, including inquiry about the expert’s sources, relations 

with the hiring party and counsel, possible bias, and prior opinions.” 

(quoting Ariz. Indep. Redistricting Comm’n v. Fields, 206 Ariz. 130, 143 ¶ 43 

(App. 2003))).

4. Premeditation

¶136 Finally, Pitt testified that there was “nothing rash or 

impulsive” about K.L.’s murder; it was “thought out, was executed,” and 

there “were a series of behaviors engaged [in] after the offense to attempt 

to evade apprehension and avoid detection.” Smith argues that Pitt’s 

discussion of premeditation “improperly implied” that Smith did not 

deserve leniency because the murder was premeditated. We disagree. An 

expert may comment about a defendant’s deliberate actions in planning a 

murder and avoiding detection. See Champagne, 247 Ariz. at 143 ¶¶ 92–93 

(finding testimony not unduly prejudicial when it “simply explained facts” 

and gave “details . . . about [the defendant] fleeing the scene”).

¶137 Thus, we conclude that none of Smith’s claims regarding 

Pitt’s testimony survive fundamental error review. Escalante, 245 Ariz. at 

140–41 ¶ 16. Pitt’s testimony, at most, offered opinions based on evidence

already presented to the jury. As a result, there was no prejudice.

L.

¶138 Smith argues that the State engaged in prosecutorial error in 

violation of his due process rights. We will reverse Smith’s conviction 

because of prosecutorial error 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.” State v. Anderson, 210 

Ariz. 327, 340, supplemented, 211 Ariz. 59 (2005) (quoting State v. Atwood, 171 
STATE V. SMITH

Opinion of the Court

36

Ariz. 576, 606 (1992)). Because Smith never objected, we review this claim 

for fundamental error. State v. Prince, 226 Ariz. 516, 537 ¶ 84 (2011). To 

establish prejudice, a defendant must show that absent the prosecutorial 

error, “a reasonable jury could have [plausibly and intelligently] reached a 

different verdict.” Escalante, 245 Ariz. at 144 ¶¶ 29, 31. Although a 

defendant must typically establish prejudice under prongs 1 or 2 of 

Escalante, id. at 142 ¶ 21, a “defendant claiming cumulative error based on 

prosecutorial misconduct need not separately assert prejudice since a 

successful claim necessarily establishes the unfairness of a trial.” State v. 

Vargas, 249 Ariz. 186, 190 ¶ 13 (2020). 

1. Fraud on the Court

¶139 Smith argues that the State committed “fraud on the court” 

by obtaining the CSLI Order from the IA Court rather than the judge 

assigned to the case. Smith’s claim finds no support in the record. Neither 

§ 13-3016(C) nor the Arizona Rules of Criminal Procedure require the State 

to obtain a court order from the trial judge assigned to the case. Supra 

¶¶ 37–39. And here, the record shows that it was common practice for PPD 

to apply for such an order with the IA Court.

2. Serious Offense Aggravator

¶140 In the aggravation phase, the State argued that the (F)(2) 

“serious offense” aggravator had been proven when the jury found Smith 

guilty of child abuse. Specifically, the State argued “You have already 

found the Defendant guilty of child abuse of [K.S.] in this case. The 

Defendant shot [K.S.] in the leg.” Smith argues that the State misstated the 

law because the (F)(2) aggravator requires more than “bare child abuse”; 

rather, it requires a separate finding that the offense was “against a child.”

As discussed supra ¶¶ 112–15, the trial court was not required to instruct 

the jury that the child abuse must be against K.S. Therefore, the State

properly stated that Smith’s child abuse conviction was a serious offense.

3. Sentencing

¶141 At the end of the penalty phase, the State argued: “The 

question for you now is what is the appropriate punishment for the murder 

of [K.L.] and the shooting of a two-month-old child. Do these acts deserve 

the death penalty?” The State later argued, “[L]ook at the murder, look at 

the child abuse, the aggravating factors, and then decide for yourself is it 

enough?” Smith claims that by making this argument, the State improperly 
STATE V. SMITH

Opinion of the Court

37

suggested that the jury could sentence Smith for his child abuse conviction, 

even though Smith’s child abuse sentence was imposed by the trial court.

¶142 The State’s argument was proper. The jury was required to 

consider the (F)(2) serious offense aggravator in making its sentencing 

determination. See § 13-751(F). The fact that the (F)(2) aggravator, child 

abuse, also carried a separate sentence did not prohibit the State from 

urging the jury to consider it as an aggravator for capital sentencing 

purposes.

4. Kiwanis Park

¶143 Finally, during closing argument, the State told the jury that 

Smith “probably” asked Marley to assault K.L. Smith argues that this 

statement amounts to prosecutorial error because it is speculative and 

unsupported by evidence.

¶144 We disagree. “[D]uring closing arguments counsel may 

summarize the evidence, make submittals to the jury, urge the jury to draw 

reasonable inferences from the evidence, and suggest ultimate 

conclusions.” Goudeau, 239 Ariz. at 466 ¶ 196 (quoting State v. Bible, 175 

Ariz. 549, 602 (1993)). In determining whether the State engaged in 

prosecutorial error during its closing, “we consider two factors: (1) whether 

the prosecutor’s statements called to the jury’s attention matters it should 

not have considered in reaching its decision and (2) the probability that the 

jurors were in fact influenced by the remarks.” Id. (internal quotation marks 

omitted) (quoting State v. Nelson, 229 Ariz. 180, 189 ¶ 39 (2012)). 

¶145 Smith has not shown error, much less fundamental error. The

prosecutor’s statements were based on reasonable inferences from the 

evidence, supra ¶¶ 5–6, and there is no evidence that they could have caused

the jury to change its verdict. Escalante, 245 Ariz. at 144 ¶ 31. Additionally, 

any prejudice was cured by the court instructing the jury that closing 

arguments were not evidence. (Christopher M.) Payne, 233 Ariz. at 518 ¶ 151.

¶146 Finally, because none of these instances amount to 

prosecutorial error, we need not consider if the individual acts collectively 

amount to “persistent and pervasive misconduct.” Escalante-Orozco, 241 

Ariz. at 280 ¶ 91; see State v. Bocharski, 218 Ariz. 476, 492 ¶ 75 (2008) (holding 

that “[a]bsent any finding of [error], there can be no cumulative effect”).
STATE V. SMITH

Opinion of the Court

38

M.

¶147 Smith argues that the trial court coerced a death verdict when 

it gave an impasse instruction after the jury claimed it could not reach a 

verdict. We review a court’s decision to give an impasse instruction for an 

abuse of discretion. State v. Kuhs, 223 Ariz. 376, 384 ¶ 42 (2010). Coercing a 

verdict from the jury is reversible error. State v. Cruz, 218 Ariz. 149, 167

¶ 112 (2008). 

¶148 The jury deliberated for two and a half hours before telling 

the bailiff that they were unable to “come to an agreement.” The court then 

conferred with counsel and stated that the jurors were at an impasse. The 

court decided “to explore” the issue with the foreperson:

THE COURT: All right. Madam foreperson, I’ve been 

informed that you’ve been unable to reach a decision at this 

point.

THE FOREPERSON: That’s correct.

THE COURT: All right. In your view, do you think further 

deliberation could result in a verdict?

THE FOREPERSON: No.

THE COURT: All right. I note that you probably were 

deliberating about two and a half hours. That actually isn’t 

that long of a period of time. You don’t think there’s any 

chance that you could reach a consensus?

THE FOREPERSON: It’s possible. I guess we could.

THE COURT: All right. Let’s go ahead and –

THE FOREPERSON: Is that not a long time?

THE COURT: I’m sorry?

THE FOREPERSON: Is that not a long time to deliberate? I 

mean –
STATE V. SMITH

Opinion of the Court

39

THE COURT: Well, it’s however long that you feel that you 

need to deliberate. Let’s go ahead and pass out – I’m going to 

give you one more instruction.

¶149 Following this exchange, the court referenced the previously 

read instruction, “Duty to Consult With One Another,” which explains that 

jurors should deliberate to reach a just verdict but not change their “honest 

belief[s] . . . because of the opinions of . . . [other] jurors, or for the mere 

purpose of returning a verdict.” RAJI (Crim.) Capital Case 2.4, at 554 (3d

ed. 2016). Next, the court gave the standard impasse instruction. RAJI 

(Crim.) Standard Instruction 42, at 15.3 (3d ed. 2016). Immediately 

following the impasse instruction, the court stated:

All right. And having said that, there are no time limits. 

Whatever you think is appropriate. If you think that the 

amount of time that you’ve spent already is appropriate, 

that’s fine. And we will accept that. And if you discuss this 

amongst yourselves and feel that you don’t need to deliberate 

further, let us know that and we’ll take the next step at that 

point. Okay. So just consider this instruction. Take it into 

consideration. Let us know how you want us to proceed.

The jury deliberated for another forty-nine minutes before returning a 

death sentence.

¶150 Arizona Rule of Criminal Procedure 22.4 provides: 

If the jury advises the court that it has reached an impasse in 

its deliberations, the court may, in the parties’ presence, ask 

the jury to determine whether and how the court and counsel 

can assist the jury’s deliberations. After receiving the jurors’

response, if any, the court may direct further proceedings as 

appropriate.

¶151 Here, we must “determine if the independent judgment of the 

jury was displaced.” State v. Huerstel, 206 Ariz. 93, 97 ¶ 5 (2003). In 

conducting this analysis, we “view[] the actions of the judge and the 

comments made to the jury based on the totality of the circumstances.” Id.

One factor we consider is whether the court knew the numerical split 

among the jurors when it addressed the impasse. Id. at 99–100 ¶¶ 17–19, 

100–01 ¶ 23 (finding coercion where the jury did not indicate a need for 

assistance and the court knew the numerical division of the jurors and twice 

suggested that a holdout juror reconsider); State v. McCrimmon, 187 Ariz. 
STATE V. SMITH

Opinion of the Court

40

169, 172 (1996) (explaining that awareness of the numerical division was 

“an important factor”). Additionally, we also consider the length of 

deliberations prior to the jury’s impasse. See Huerstel, 206 Ariz. at 99 ¶ 17 

(determining that three days of deliberations following a three-week trial 

“did not clearly signal that th[e] jury had reached an impasse”); Cruz, 218 

Ariz. at 166–67 ¶¶ 108–09, 115 (2008) (finding no coercion where the jury 

indicated they were deadlocked but they had only been deliberating three 

hours); Kuhs, 223 Ariz. at 384 ¶ 44, 385–86 ¶¶ 59–60 (finding no coercion 

when impasse instruction was given after two days where jury did not ask 

for help).

¶152 We find no error. The court did not know the numerical split 

among jurors, and the jury deliberated for only two and a half hours before 

reaching an impasse. Additionally, the court reiterated several times that it 

was not trying to displace the jury’s judgment, explaining that the jury had 

“however long that you feel that you need to deliberate,” and “there are no 

time limits” and they should take “whatever [they] think is appropriate.” 

The standard impasse instruction provided to the jury also stated that it 

was not an attempt to “force . . . a verdict,” jurors “should not change [their] 

beliefs,” but should simply “discuss this instruction . . . [and] advise [the 

judge] in writing . . . whether [the court or lawyers] can attempt to assist” 

the jurors. RAJI Standard Instruction 42. The court also stated that it was 

“fine” if they thought the time already spent was sufficient.

¶153 Smith’s other arguments are unpersuasive. For example, 

Smith contends that the court improperly told the jurors that they had an 

“apparent need for help,” suggesting there was something wrong, e.g., in 

failing to reach a verdict. We disagree. A judge is not required to “blindly 

accept” an impasse, see Kuhs, 223 Ariz. at 384 ¶ 41, and here, it was not 

unreasonable for the judge to assist the jury.

¶154 Next, Smith argues that the court’s assurances—that it was 

not trying to coerce a verdict and the jury should take however long they 

need—were “hollow.” He relies on Huerstel, 206 Ariz. at 101 ¶ 24, but that 

case is distinguishable. There, the court’s impasse instruction effectively 

singled out one holdout juror. Id. at 98 ¶¶ 9, 11. In contrast, here, the court 

made a general statement—that two and half hours is not actually that 

long—to the entire jury and then immediately instructed them to take all 

the time they needed.

¶155 Smith also argues that the trial court erred by denying his 

request to include a non-unanimous option on the verdict form. 
STATE V. SMITH

Opinion of the Court

41

Specifically, Smith requested a verdict form that included an option stating,

“unable to reach a unanimous decision” or “unable to agree.” But the 

absence of this option does not establish coercion. The court informed the 

jury that if they could not unanimously agree, the foreperson should let the 

judge know. And the court informed the jury several times that a nonunanimous verdict was “perfectly acceptable.”

¶156 Finally, we note that although the jury returned its verdict 

shortly after the impasse instruction, see Lowenfield v. Phelps, 484 U.S. 231, 

237, 240 (1988) (considering the length of time between reaching a verdict 

and receiving an impasse instruction), under the totality of the 

circumstances we conclude that the trial court did not coerce the jury.

N.

¶157 Because Smith committed the murder after August 1, 2002, 

this Court must review the jury’s findings of aggravating circumstances 

and the imposition of a death sentence for abuse of discretion, A.R.S. 

§ 13-756(A), viewing the facts in the light most favorable to sustaining the 

verdict. State v. Naranjo, 234 Ariz. 233, 249 ¶ 81 (2014). “A finding of 

aggravating circumstances or the imposition of a death sentence is not an 

abuse of discretion if ‘there is any reasonable evidence in the record to 

sustain it.’” Id. (quoting Delahanty, 226 Ariz. at 508 ¶ 36).

1. Aggravating Circumstances

¶158 The State alleged, and the jury found beyond a reasonable 

doubt, two aggravating circumstances: (1) Smith was convicted of a serious 

offense (child abuse), § 13-751(F)(2); and (2) Smith killed K.L. for pecuniary 

gain, id. (F)(5). The (F)(2) aggravator involved the shooting of an infant, 

K.S., and, as a result, was a particularly strong aggravating circumstance. 

The record provides substantial evidence to support both aggravators, 

supra ¶¶ 101–07, 110–15. Therefore, the jury did not abuse its discretion in 

finding these aggravating circumstances.

2. Death Sentence

¶159 The jury also did not abuse its discretion in sentencing Smith 

to death. This Court must uphold a death sentence “if any reasonable juror 

could conclude that the mitigation presented was not sufficiently 

substantial to call for leniency.” Naranjo, 234 Ariz. at 250 ¶ 89 (internal 
STATE V. SMITH

Opinion of the Court

42

quotation marks omitted) (quoting State v. Gallardo, 225 Ariz. 560, 570 ¶ 52 

(2010)).

¶160 Smith presented twenty-nine non-statutory mitigators, 

asserting that he was driven to keep his family together and avoid negative 

stereotypes about African American fathers. He also argued that he 

provided for Ward though she emotionally abused, harassed, and 

emasculated him, threatened to take his son away from him, and displayed 

Borderline Personality Disorder symptoms. Smith argued that he did not 

live up to his family’s expectations and that they were highly critical of his 

romantic relationships, had a history of failed relationship, and did not 

believe in therapy. Finally, he argued that he was sleep deprived, grieving 

a miscarriage suffered by Ward, lacked conflict resolution skills, had no 

criminal record, maintained employment, volunteered, played sports in 

high school, earned an academic scholarship, earned an associate degree, 

loves children, was a candidate to become a foster parent, and had been a 

model inmate. He presented no statutory mitigators.

¶161 The record supports the jury’s determination. A reasonable 

juror could find many of these mitigators—sleep deprivation, grief, family 

pressure—unpersuasive. And Smith’s positive background could have 

demonstrated his ability to handle conflict without murder. Therefore, the 

jury did not abuse its discretion in sentencing Smith to death.

III. 

¶162 Smith raises seventeen other issues to avoid their preclusion. 

Because this Court has previously rejected each of these claims, we decline 

to revisit them here.

CONCLUSION

¶163 We affirm Smith’s convictions and sentences.