SUPREME COURT OF ARIZONA 

En Banc 

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-07-0164-AP 

 Appellee, ) 

 ) Maricopa County 

 v. ) Superior Court 

 ) No. CR1999-016742-001 DT 

JULIUS JARREAU MOORE, ) 

 ) 

 Appellant. ) 

 ) O P I N I O N

__________________________________) 

Appeal from the Superior Court in Maricopa County 

The Honorable Norman D. Hall, Judge (Deceased) 

CONVICTIONS OTHER THAN FIRST-DEGREE PREMEDITATED MURDER 

AFFIRMED; FIRST-DEGREE PREMEDITATED MURDER CONVICTIONS AFFIRMED 

IN PART, REVERSED IN PART; SENTENCES AFFIRMED 

________________________________________________________________ 

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix 

 By Kent E. Cattani, Chief Counsel 

 Criminal Appeals/Capital Litigation Section 

 Lacey Stover Gard, Assistant Attorney General Tucson 

Attorneys for State of Arizona 

DAVID GOLDBERG, ATTORNEY AT LAW Fort Collins, CO 

 By David Goldberg 

Attorney for Julius Jarreau Moore 

________________________________________________________________

B A L E S, Justice 

¶1 This mandatory appeal is from a jury’s determination 

that Julius Jarreau Moore should be sentenced to death for two 

of the three murders for which he was convicted. We have 

jurisdiction under Article 6, Section 5(3), of the Arizona 

Constitution and Arizona Revised Statutes (“A.R.S.”) section 13-

4031 (2001). 
2

FACTUAL AND PROCEDURAL BACKGROUND 

¶2 In November 1999, Delia Ramos and Sergio Mata were 

selling crack cocaine from a small rental house in which they 

lived on East Yale Street in Phoenix.1 Delia’s brother Guadalupe 

Ramos lived with the couple. 

¶3 On November 15, Debra Ford came to the house around 

5:30 p.m., bought $30 to $40 of crack cocaine, and began smoking 

it. After Ford ran out of money and drugs, she remained at the 

house hoping Delia would give her more crack. Later that 

evening, Ford sat outside the house smoking crack with Moore and 

Sarry Ortiz. At some point, Moore left and Ford went with Ortiz 

to drive around and smoke more crack. Ford again smoked crack 

when she later returned to the Yale Street house.

¶4 While Ford was away with Ortiz, Moore went to his 

mother’s house, where he lived with his girlfriend, Jessica 

Borghetti. Moore told Borghetti that he had seen a person who 

had tried to run him over and he was not going to stand for it. 

He took a 9 mm pistol and drew a map for Borghetti of where he 

was going in case something happened to him. The map showed a 

destination other than the Yale Street house. 

¶5 Tony Brown, an acquaintance of Ford, stopped by the 

                                                           

1

 Except in our independent review of the death sentence, A.R.S. 

§ 13-755(A) (Supp. 2008), we view the facts in the light most 

favorable to sustaining the jury’s verdict. See State v. Garza, 

216 Ariz. 56, 61 n.1, 163 P.3d 1006, 1011 n.1 (2007).
3

Yale Street house at about 4:00 a.m. on November 16, looking for 

his girlfriend. Brown saw Mata outside and offered him cash if 

he would tell Brown’s girlfriend to come out. When Mata tried 

to take the cash, Brown hit Mata and threatened him. Mata ran 

inside and Brown decided to leave. 

¶6 As he was leaving, Brown saw a man, whom he later 

identified as Moore, hiding in oleander bushes near the house. 

Brown had seen Moore earlier that evening at a different crack 

house. Brown testified that Moore called him over to the 

bushes, flashed a gun, and asked if Brown wanted to help Moore 

“get” Mata. Brown declined and left on his bicycle. 

¶7 After Brown left, Moore sat outside the Yale Street 

house smoking cigarettes with Ford and Guadalupe. Moore went 

inside, obtained a small amount of crack, and then came back 

outside to smoke it. Guadalupe and Ford went back inside the 

house. While inside, Ford could hear Moore repeatedly knocking 

on the door and calling for her. Delia gave Ford some crack and 

asked her to leave. 

¶8 When Ford went outside, Moore asked if she got more 

crack and offered to let her use his pipe. Mata then came 

outside. Moore asked whether Mata had a problem with him. Ford 

heard no response; instead, she saw Moore shoot Mata and then 

turn and shoot her. Ford fell to the ground and heard several 

more gunshots in quick succession. 
4

¶9 Shortly afterward, Ortiz picked up Moore near the Yale 

Street house and drove him to his mother’s house. When he went 

inside, his mother began yelling at him. Moore told Borghetti 

he did not “need that right now” because he had just shot four 

people. Upon learning that Moore had been out all night, his 

mother kicked him and Borghetti out of the house. Moore and 

Borghetti left with Ortiz. Moore gave Ortiz some crack while 

they drove around.

¶10 While driving, Ortiz saw Ford lying in the front yard 

of the Yale Street house. Ortiz got out of her car and flagged 

down a taxi driver who called 911. Ortiz noticed Moore trying 

to “take off in [her] car.” She got back in her car and they 

drove around the neighborhood, picked up Ortiz’s friend, stopped 

at another crack house to smoke crack, and then drove past the 

crime scene again. After seeing the police had arrived, Ortiz 

took Moore and Borghetti back to his mother’s house. As he got 

out of the car, Moore gave Ortiz and her friend some crack. 

¶11 Moore and Borghetti packed some belongings, including 

Moore’s gun and the clothes he had worn the previous night, and 

went to some friends’ apartment. After his photo appeared in 

the newspaper, Moore cut off his braids in an effort to alter 

his appearance. On November 23, 1999, Phoenix police officers 

arrested Moore and Borghetti at the apartment. A firearms 

examiner later concluded that bullets found at the crime scene 
5

had been fired from Moore’s gun. 

¶12 Moore was indicted for and convicted of two counts of 

premeditated and felony murder for the murders of Delia and 

Guadalupe, one count of premeditated murder for the murder of 

Mata, one count of attempted first-degree murder for the 

injuries to Ford, and one count of first-degree burglary. The 

trial court was to sentence Moore in August 2002, but the 

hearing was vacated after the Supreme Court held that Arizona’s 

capital sentencing scheme was unconstitutional. See Arizona v. 

Ring (Ring II), 536 U.S. 584, 609 (2002). 

¶13 In November 2004, the trial court empanelled a jury to 

determine Moore’s sentence. The State alleged two aggravators: 

that Moore murdered Delia in an especially cruel manner, see 

A.R.S. § 13-703(F)(6) (Supp. 1999), and that Moore murdered 

multiple persons on the same occasion, see id. § 13-703(F)(8). 

The jury did not reach a verdict on the (F)(6) aggravator, but 

did find the (F)(8) aggravator. Before the penalty phase 

concluded, the court declared a mistrial because Moore’s medical 

expert suffered a heart attack. 

¶14 In May 2007, the trial court empanelled a second jury 

to determine Moore’s sentence. The court allowed the State to 

retry the (F)(6) aggravator, and the second jury also failed to 

reach a verdict on this aggravator. The court instructed the 

jury that the (F)(8) aggravator had been established. The jury 
6

determined that Moore should be sentenced to death for the 

murders of Delia and Guadalupe, but should serve life 

imprisonment for the murder of Mata. 

DISCUSSION 

A. Suggestive Identification 

1. Pretrial Identification Procedures 

¶15 Moore challenges the trial court’s denial of his 

motions to suppress Ford’s pretrial and in-court 

identifications. He argues that the court correctly concluded 

that the pretrial identification procedures were unduly 

suggestive, but erroneously found that Ford’s identification of 

Moore was nonetheless reliable and therefore admissible under 

Neil v. Biggers, 409 U.S. 188, 199-201 (1972). 

¶16 Even if a pretrial identification procedure was 

impermissibly suggestive, a subsequent identification is 

admissible if it is nonetheless reliable. See State v. Lehr, 

201 Ariz. 509, 520 ¶ 46, 38 P.3d 1172, 1183 (2002). To 

determine reliability, Arizona courts consider the Biggers 

factors. Id. at 521 ¶ 48, 38 P.3d at 1184. 

[T]he factors to be considered [in evaluating the 

likelihood of misidentification] include the 

opportunity of the witness to view the criminal at the 

time of the crime, the witness’ degree of attention, 

the accuracy of his prior description of the criminal, 

the level of certainty demonstrated at the 

confrontation, and the time between the crime and the 

confrontation. 
7

Id. (alterations in original) (quoting Manson v. Brathwaite, 432 

U.S. 98, 114 (1977)). 

¶17 This Court reviews trial court rulings on pretrial 

identifications for abuse of discretion. Id. at 520 ¶ 46, 38 

P.3d at 1183. We defer to a trial court’s factual findings that 

are supported by the record and are not clearly erroneous. See 

State v. Grell, 212 Ariz. 516, 528 ¶ 58, 135 P.3d 696, 708 

(2006). The ultimate question of the constitutionality of a 

pretrial identification is, however, a mixed question of law and 

fact. Sumner v. Mata, 455 U.S. 591, 597 & n.10 (1982) 

(discussing difference between factual findings on particular 

Biggers factors and ultimate conclusion whether facts state a 

constitutional violation). This Court reviews de novo such 

mixed questions of law and fact. See State v. Altieri, 191 

Ariz. 1, 2 ¶ 7, 951 P.2d 866, 867 (1997) (applying de novo

review to ultimate legal determination of whether facts 

supported investigatory stop). A trial court ruling on a motion 

to suppress is reviewed based solely on the evidence presented 

at the suppression hearing. State v. Newell, 212 Ariz. 389, 396 

¶ 22, 132 P.3d 833, 840 (2006); State v. Dessureault, 104 Ariz. 

380, 384, 453 P.2d 951, 955 (1969) (outlining procedures for 

hearing). 

¶18 On the morning of the shooting, Detective Tim Cooning 

questioned Ford at the hospital. Ford described her assailant 
8

as “Jay,” a “black male, approximately twenty-one years of age.” 

She also said that she had not seen Jay before the shooting. In 

the days that followed, Cooning showed Ford a photo of another 

suspect – Tony Brown. Ford indicated that Brown was not the 

shooter and that the shooter was “smaller in size and thinner 

than [Brown].” 

¶19 On November 20, 1999, four days after the shootings, 

Cooning questioned Ford again at the hospital. Lying in a 

hospital bed, Ford could not easily speak because she had a 

tracheotomy and tubes in her nose. Cooning showed Ford a photo 

lineup of six African-American males that included Moore. Asked 

if she recognized anyone, Ford shook her head no. Cooning then 

asked Ford if she had any doubt that it was “Jay” who shot her 

and she again shook her head no. She nodded in assent when 

asked to confirm that she had previously said that Jay acted 

alone, that he was smaller and skinnier than Brown, and that he 

was a black male, approximately twenty-one years of age, who 

wore braids. Cooning also showed Ford two composite sketches, 

which she indicated looked a bit like the shooter. 

¶20 Ford was deposed on videotape on April 28, 2000. 

Although Ford was in a wheelchair and paralyzed from the neck 

down, she was able to speak and appeared alert. At the 

deposition Ford testified that Jay, the man who shot her, had 

medium-size braids and was wearing a stocking cap and hooded 
9

shirt. Ford also testified that she had met Jay three years 

earlier while using crack and hanging out near 23rd Avenue and 

Indian School and that she had not seen him again until the 

night before the shootings. She stated that her shooter was 

eighteen years old and about 6’1”. The prosecutor showed Ford a 

video lineup comprised of short video clips of seven AfricanAmerican men, including Moore. Ford was again unable to 

identify Moore. 

¶21 On cross-examination defense counsel asked Ford to 

confirm that she had previously been shown pictures to see if 

she could identify the shooter. Ford said that while she was in 

the hospital an unidentified policeman had shown her a picture 

of the person who shot her. On redirect, the prosecutor showed 

Ford the video of the November 20, 1999 interview in which 

Cooning showed her the six-person photo lineup and the two 

composite sketches. The prosecutor then asked if the composite 

in the video looked like someone she knew. Ford instead focused 

on the photo lineup and said: “That looked like — one of them —

it’s two of them in the middle, right? Looked more like him — 

more like him than the picture I just seen just now.” The 

prosecutor then showed her the original photo lineup and she 

immediately identified Moore as the shooter. 

¶22 Before trial, Moore moved to suppress Ford’s out-ofcourt identification and any prospective in-court 
10

identification. Moore argued that the identification was unduly 

suggestive because Moore was the only common subject in the sixperson photo lineup and the seven-person video lineup and Ford 

had identified him only upon the fourth showing of a lineup that 

included his picture. After conducting a Dessureault hearing, 

the court found that the State had failed to establish that the 

deposition identification procedures were not unduly suggestive, 

but the State had established that Ford’s “in-court 

identification could be reliable, independent of and untainted 

by the April 28, 2000 identification.” 

¶23 Because the State does not challenge on appeal the 

trial court’s conclusion that the identification procedures at 

the April deposition were unduly suggestive, we must apply the 

Biggers factors to determine whether the trial court erred in 

concluding that Ford’s identification was nevertheless reliable. 

See Lehr, 201 Ariz. at 521 ¶ 48, 38 P.3d at 1183-84. 

a. Opportunity to view the criminal at the time of the 

crime 

¶24 The trial court found, with support in the record, 

that Ford had an adequate opportunity to view Moore. Although 

the shootings occurred in the darkness of early morning, and 

Ford had been consuming crack throughout the night, Ford 

testified that thirty seconds before Mata came outside she 

talked with Moore from a distance of six to seven feet. She 
11

also had spent time with Moore earlier that evening when they 

had smoked crack together, and she had heard him calling for her 

several times during a fifteen minute period before she went 

outside. 

b. Witness’s degree of attention 

¶25 Although the trial court did not make an explicit 

finding on this factor, the record shows that Ford’s attention 

was directed to Moore when the shootings began. She went 

outside in response to his persistent calling for her, and when 

she emerged they talked about whether she had more crack. 

Within seconds Mata came outside and the encounter between the 

two men occurred. 

c. Accuracy of the witness’s prior description of the 

criminal 

¶26 Under Biggers, we assess the accuracy of a witness’s 

prior description, i.e., before the unduly suggestive procedure. 

See 409 U.S. at 199-200. Moore did not argue below, and we do 

not find, that the initial showing of the six-person photo 

lineup to Ford in November 1999 was unduly suggestive. In that 

interview, Ford confirmed an earlier description of her 

assailant as a black male, twenty-one years old, named Jay, who 

wore braids, and who was smaller and thinner than Tony Brown. 

The record supports the trial court’s finding that Ford’s prior 

description of the shooter coincided with Moore’s appearance. 
12

d. Level of certainty demonstrated by the witness at 

the confrontation 

¶27 Although the prosecution did not ask Ford about her 

level of certainty in identifying Moore, the video deposition 

reflects that she was certain that the person she identified in 

the photo lineup shot her. Before seeing the photo lineup 

again, she testified, “I know who shot me.” After watching the 

video of her November 1999 interview, she said that one of 

photos “looked more like him” than the composite sketches. When 

she was then shown the actual photo lineup, she immediately 

identified Moore.

e. Length of time between the crime and the 

confrontation 

¶28 The deposition took place nearly six months after Ford 

witnessed the shooting. This passage of time does not in itself 

defeat the reliability of the identification. See, e.g., id. at 

201 (finding identification made seven months after crime 

reliable); Lehr, 201 Ariz. at 521 ¶ 51, 38 P.3d at 1184 (stating 

passage of four months gives pause but ultimately does not 

threaten reliability). 

f. Weighing of factors and conclusion 

¶29 Whether a pretrial identification is reliable is based 

on the “totality of the circumstances.” Biggers, 409 U.S. at 

199. We find that the State established a reliable basis for 

Ford’s identification independent of any suggestive procedures 
13

used at the April 2000 deposition. Ford’s use of crack cocaine, 

her failure to identify Moore in her November 1999 interview, 

and any inconsistencies in her account affect the weight, rather 

than the admissibility, of her identification and were 

appropriately the subject of cross-examination. The trial court 

did not err in admitting Ford’s pretrial and in-court 

identifications. 

2. The Prosecution’s Opening Statement Comment 

¶30 During opening statements, the prosecutor told the 

jury, “Debra . . . knew Julius Moore, Jay. She described him. 

She recognized him from the night of the shooting from seeing 

him before, and she recognized him sometime later as well.” 

Toward the end of his remarks, the prosecutor again emphasized 

Ford’s identification. While the prosecutor spoke, Ford sat in 

the courtroom without objection from Moore. 

¶31 After opening statements, defense counsel renewed the 

Dessureault objection. Counsel asserted that Ford had not 

previously been told that the person she identified in the photo 

lineup was indeed Moore, and therefore any in-court 

identification by Ford would be “even more suggestive, and less 

likely to have a source independent of the previous unduly 

suggestive out-of-court identification.” 

¶32 “[I]f [a] pretrial identification comports with due 

process, subsequent identification at trial does not violate a 
14

defendant’s rights merely by following on the heels of the 

earlier confrontation.” Lehr, 201 Ariz. at 521 ¶ 52, 38 P.3d at 

1184. Because Ford’s pretrial identification was otherwise 

reliable, and therefore did not violate due process, the 

prosecutor’s reference to it in his opening statement does not 

render inadmissible either the pretrial identification or the 

later in-court identification. 

B. Guilt-Phase Jury Selection Issues 

1. Morgan v. Illinois Challenge 

¶33 In Morgan v. Illinois, the Supreme Court held that a 

capital defendant is entitled, upon request, to inquire whether 

prospective jurors believe death should always be imposed for 

the conviction of a capital offense. 504 U.S. 719, 735-36 

(1992). Failure to permit such questioning is structural error. 

Id. at 729-30. 

¶34 Moore argues that the trial court committed structural 

error by not asking jurors if they thought the death penalty 

should be imposed in all cases in which a person knowingly or 

intentionally kills another, even though counsel had 

specifically requested a jury questionnaire including such 

“life-qualifying” questions.

¶35 There was no Morgan error here. The trial court 

declined to use a written juror questionnaire and instead told 

counsel: “[T]hat is not to suggest that these questions can’t 
15

and won’t be asked.” After conducting oral voir dire, the trial 

court allowed the prosecutors and defense counsel to question 

the panel. Among other questions, Moore’s counsel asked: “Is 

there anyone on the panel here that thinks the death penalty is 

not given enough in the United States, or this state, for that 

matter?” Defense counsel did not ask other life-qualifying 

questions.

¶36 Because Moore was allowed to question the jurors, he 

cannot complain that the trial court did not itself ask lifequalifying questions. See State v. Moody (Moody II), 208 Ariz. 

424, 452 ¶ 98, 94 P.3d 1119, 1147 (2004) (“[A] defendant who 

believes a trial court’s voir dire to be deficient cannot sit on 

his rights and bypass the opportunity to cure the error 

. . . .”). The trial court did not prevent defense counsel from 

asking life-qualifying questions, but instead refused to ask 

them in a written questionnaire and invited counsel to ask such 

questions in oral voir dire.

2. Witherspoon v. Illinois Challenge 

¶37 Moore argues that the trial court erroneously struck 

three jurors for cause in violation of Witherspoon v. Illinois, 

391 U.S. 510 (1968). We review a trial court’s decision to 

strike a potential juror for cause for abuse of discretion. 

State v. Jones, 197 Ariz. 290, 302 ¶ 24, 4 P.3d 345, 357 (2000). 

¶38 “A death sentence cannot be upheld if the jury was 
16

selected by striking for cause those who ‘voiced general 

objections to the death penalty or expressed conscientious or 

religious scruples against its infliction.’” State v. Ellison, 

213 Ariz. 116, 137 ¶ 88, 140 P.3d 899, 920 (2006) (quoting

Witherspoon, 391 U.S. at 522). A judge, however, is required to 

question jurors regarding their opinions on the death penalty, 

see, e.g., State v. Anderson (Anderson I), 197 Ariz. 314, 318-19 

¶¶ 7-10, 4 P.3d 369, 373-74 (2000), and, after attempting 

rehabilitation, must remove a potential juror from the jury pool 

if the juror’s personal views may “prevent or substantially 

impair the performance of [the juror’s] duties.” Wainwright v. 

Witt, 469 U.S. 412, 424 (1985) (internal quotation marks 

omitted). We defer to the trial judge and a juror’s bias need 

not be proved with unmistakable clarity. Id. at 424-25. 

Instead, “even if a juror is sincere in his promises to uphold 

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

equivocation ‘about whether he would take his personal biases in 

the jury room’ sufficient to substantially impair his duties as 

a juror, allowing a strike for cause.” Ellison, 213 Ariz. at 

137 ¶ 89, 140 P.3d at 920 (quoting State v. Glassel, 211 Ariz. 

33, 48 ¶¶ 49-50, 116 P.3d 1193, 1208 (2005)).

¶39 Moore makes two arguments with regard to the striking 

of the three potential jurors. He primarily argues that the 

trial court committed structural error under Anderson I by 
17

striking jurors who had expressed general reservations about the 

death penalty without specifically asking if they could set 

aside their beliefs and follow the law. He also suggests that 

the trial judge abused his discretion in excluding these jurors 

given their responses to the questions asked. 

¶40 During jury selection, the court informed the 

prospective jurors that if they were selected they would be 

instructed not to consider the possible punishment in 

determining guilt or innocence; that if the defendant were found 

guilty of first-degree murder, the court may impose a sentence 

of either life imprisonment or death; and that the jury would 

not determine the sentence. The court then asked the potential 

jurors: “Do any of you have any conscientious or religious 

scruples or feeling that would prevent you from voting for first 

degree murder because of the possible imposition of the death 

penalty?” In response, three jurors responded affirmatively. 

After briefly questioning these jurors, the court dismissed each 

for cause. 

¶41 Moore relies on Anderson I to argue that the trial 

court’s failure to ask prospective jurors if they could set 

aside their beliefs and follow the law is itself a structural 

error that requires reversal. We reject this argument. 

Anderson I held that structural error results if jurors are 

dismissed based on their generalized answers to a written 
18

questionnaire without any opportunity to rehabilitate them 

through oral voir dire. Ellison, 213 Ariz. at 137 ¶ 87, 140 

P.3d at 920. 

¶42 The court’s failure here to specifically ask jurors if 

they could set aside their beliefs is not analogous to the trial 

court’s refusal in Anderson I to allow any oral voir dire after 

jurors voiced general objections. The Federal Constitution does 

not dictate a “catechism” for voir dire, and we have recognized 

that jurors may be excluded for cause even if they affirm that 

they can set aside their beliefs and follow the law. Id. at 

¶ 89. 

¶43 The issue thus becomes whether, given the questions 

that were asked and the responses, the trial judge abused his 

discretion in dismissing Jurors M., S., and G. for cause. These 

jurors did not merely state general objections to the death 

penalty. Instead, after the judge explained that the jury would 

not determine, and should not consider, sentencing, they each 

stated that their views on the death penalty could affect their 

ability to decide the merits. Juror M. said that even though 

the jury was not going to decide punishment, she was so strongly 

opposed to the death penalty that it might affect her ability to 

decide the case on its own merits. Juror S. said that his 

feelings about the death penalty would probably interfere with 

how he would decide the case. Finally, Juror G. said there was 
19

a pretty good chance that her strong feelings about the death 

penalty would “come into play” in her decision on guilt or 

innocence. 

¶44 Although the trial court asked less extensive followup questions than trial courts in many other cases we have 

considered, cf. Uttecht v. Brown, 551 U.S. 1 (2007) (noting that 

deference to trial court’s assessment of prospective demeanor of 

juror is appropriate when trial court “has supervised a diligent 

and thoughtful voir dire”), given the trial court’s prefatory 

statement that the court and not the jury would decide 

sentencing, as well as the individual juror’s responses, the 

trial court could reasonably conclude that the views of these 

prospective jurors might substantially impair the performance of 

their duties as jurors. 

C. Refusal to Order Drug Test of State’s Witness 

¶45 Moore asserts that the trial court abused its 

discretion by refusing to order Ortiz to undergo a drug test to 

determine if she was under the influence of drugs while 

testifying. “We review a trial court’s ruling on the competency 

of a witness for an abuse of discretion.” State v. Cruz, 218 

Ariz. 149, 166 ¶ 105, 181 P.3d 196, 213 (2008). A trial court’s 

refusal to order a witness to submit to a drug test is also 

reviewed for abuse of discretion. See State v. Apodaca, 166 

Ariz. 274, 276, 801 P.2d 1177, 1179 (App. 1990). 
20

¶46 A witness under the influence of drugs is not 

necessarily incompetent to testify. See State v. Ballesteros, 

100 Ariz. 262, 265, 413 P.2d 739, 741 (1966). A witness is 

competent unless she is so impaired that she cannot coherently 

respond to questioning. See Cruz, 218 Ariz. at 166 ¶ 106, 181 

P.3d at 213. 

¶47 Ortiz testified during the guilt phase trial; among 

other things, her testimony placed Moore near the scene of the 

murders. After her redirect examination, defense counsel asked 

the trial court to order Ortiz to submit to a urinalysis test to 

determine whether she was under the influence of drugs. Counsel 

said that Ortiz was acting strangely because she was talking 

rapidly and got “off track” during questioning. The court 

denied the request because it did not view Ortiz’s behavior as 

atypical of a witness. The court stated that Ortiz was 

coherent, quick to respond to questions, and not slurring her 

speech. 

¶48 The trial court did not abuse its discretion in 

refusing to order a drug test. The transcript and partial video 

recording of Ortiz’s testimony show that Ortiz was coherent and 

responded appropriately to questioning, even though she had a 

tendency to ramble and interrupt counsel. Cf. id. (“Although 

[witness’s] testimony was somewhat rambling, it was coherent.”). 

The trial court therefore did not abuse its discretion in 
21

finding her competent to testify. Moreover, defense counsel was 

not prevented from cross-examining Ortiz regarding her drug 

history or whether she was under the influence of drugs while 

testifying. Cf. State v. Orantez, 183 Ariz. 218, 222-23, 902 

P.2d 824, 828-29 (1995) (discussing impeachment of witness based 

on drug use). 

D. Notice and Sufficiency of Evidence of Burglary and Felony 

Murder Charges 

¶49 With regard to the deaths of Delia and Guadalupe, the 

indictment charged that Moore had committed first-degree 

premeditated murder or, in the alternative, had committed firstdegree felony murder with a predicate felony of first-degree 

burglary. The indictment also charged Moore with first-degree 

burglary, alleging that he, while possessing a handgun, had 

“with the intent to commit a theft or a felony therein, entered 

or remained unlawfully in or on the residential structure of 

Delia Ramos” at East Yale Street. Arizona statutes identify 

burglary as one of the predicates for felony murder, A.R.S. 

§ 13-1105(A)(2) (Supp. 1999), and define burglary to include 

unlawfully entering or remaining in a residence with the intent 

to commit “theft or any felony therein.” Id. §§ 13-1506, -1507, 

-1508 (1989). 

¶50 Moore argues that he was denied due process because 

the State did not provide notice until the settling of jury 
22

instructions, and after the close of evidence, that it intended 

to establish burglary based on Moore’s entering the house with 

the intent to commit murder rather than theft. Moore further 

argues that burglary based on a defendant’s intent to murder 

cannot validly serve as a predicate for felony murder and 

accordingly there was insufficient evidence to support his 

felony-murder convictions. 

1. Notice

¶51 This Court reviews constitutional issues and purely 

legal issues de novo. Moody II, 208 Ariz. at 445 ¶ 62, 94 P.3d 

at 1140. The Sixth Amendment and due process require that a 

defendant be given “notice of the specific charge, and a chance 

to be heard in a trial of the issues raised by that charge.” 

Cole v. Arkansas, 333 U.S. 196, 201 (1948). Similarly, Arizona 

Rule of Criminal Procedure 13.2 provides that an “indictment or 

information shall be a plain, concise statement of the facts 

sufficiently definite to inform the defendant of the offense 

charged.” 

¶52 Moore chiefly relies on State v. Blakley, 204 Ariz. 

429, 65 P.3d 77 (2003). In Blakley, the state initially 

disclosed sexual assault as the predicate offense for felony 

murder; at the close of evidence and before closing arguments, 

however, the state requested a jury instruction that added child 

abuse as an alternative predicate offense. Id. at 439 ¶ 46, 65 
23

P.3d at 87. Blakley had defended the case assuming that sexual 

assault was the sole predicate felony and had presented evidence 

suggesting that the victim died of injuries consistent with 

child abuse rather than sexual assault. Id. at 440 ¶ 54. He 

also identified other evidence he would have presented had he 

known child abuse was also alleged. Id.

¶53 Blakley concluded that “[t]he insertion of a new 

predicate felony after all the evidence was in and the defense 

had rested constitutes reversible error. The prejudice caused 

by such late notice was obvious. The defendant was deprived of 

his constitutional right to a fair trial.” Id. at ¶ 55. We 

further noted, “[i]n order to avoid injustice and to ensure that 

proper notice has been given in a felony murder case, we believe 

the state should include the predicate felony in the original or 

an amended indictment.” Id. at ¶ 56. 

¶54 Moore’s case is distinguishable from Blakley. Moore 

does not argue that the State charged or argued one theory and 

then attempted to adopt another after the close of evidence. 

Instead, Moore complains that the State, while charging felony 

murder based on burglary, did not specify until the settling of 

jury instructions, and after the close of evidence, that 

burglary would be defined by his intent to commit murder rather 

than theft. 

¶55 We agree with Moore that Blakley implies that the 
24

state should identify before trial the particular felony that 

will be used to define burglary when the latter crime is the 

predicate for felony murder. But Blakley itself recognizes that 

the state’s failure to specify the predicate felony before trial 

will not be reversible error if the defendant otherwise has 

notice and an opportunity to respond to the accusations. See 

id. at 439-40 ¶¶ 50, 52, 65 P.3d at 87-88. Blakley explained 

that in State v. Arnett, 158 Ariz. 15, 18, 760 P.2d 1064, 1067 

(1988), the Court found adequate notice when the state mentioned 

the predicate felony on the first day of trial, “giving defense 

counsel a reasonable chance to rebut the allegation.” Blakley, 

204 Ariz. at 439 ¶ 50, 65 P.3d at 87. Similarly, in State v. 

Eastlack, 180 Ariz. 243, 258, 883 P.2d 999, 1014 (1994), the 

Court rejected the defendant’s argument that he had received 

inadequate notice that kidnapping would be used as a predicate 

felony when the defendant failed to show either prejudice or 

unfair surprise. 

¶56 Like the defendants in Eastlack and Arnett, Moore was 

not denied notice of the predicate felony in a way that violates 

due process or otherwise constitutes reversible error. Although 

the State did not specifically identify until after the close of 

evidence that the predicate burglary would itself be based on 

Moore’s intent to murder, he had both notice and an opportunity 

to defend against the underlying accusations. Moore had notice 
25

he was accused of entering or remaining in the Yale Street house 

with the intent to murder because he was charged with the 

premeditated murders of Guadalupe and Delia and with firstdegree burglary of the house. 

2. Felony Murder and the Merger Doctrine

¶57 Relying on State v. Essman, 98 Ariz. 228, 403 P.2d 540 

(1965), Moore also argues that under the merger doctrine, felony 

murder cannot be predicated upon a burglary that is itself based 

on the intent to murder. 

¶58 In Essman, the Court held that the trial court had 

erred by instructing the jury that the felony-murder doctrine 

could apply based on assault with a deadly weapon. Id. at 235, 

403 P.2d at 545. Although Arizona statutes did not identify 

assault as a predicate for felony murder, the Court reasoned 

more generally that allowing assault to serve as a predicate 

would eliminate any requirement of proof of premeditation for 

nearly all first-degree murders. See id. at 235-36, 403 P.2d at 

545. Quoting Judge Cardozo, the Court observed: 

“The felony that eliminates the quality of the intent 

must be one that is independent of the homicide and of 

the assault merged therein, as e.g., robbery or 

larceny or burglary or rape.” 

Id. (quoting People v. Moran, 158 N.E. 35, 36 (1927)). 

¶59 Later Arizona cases implicitly rejected the broad 

language in Essman suggesting that the predicate felony must be 
26

“independent of the homicide.” For example, in State v. 

Miniefield, the defendant argued that it was fundamental error 

to charge him with felony murder by arson because “the arson was 

merely the use of fire to attempt to kill the victim.” 110 

Ariz. 599, 601, 522 P.2d 25, 27 (1974). The Court rejected this 

argument by noting that the felony murder statute provided that 

when a person commits arson and the arson results in death it is 

first-degree murder. Id. at 602, 522 P.2d at 28. “The statute 

does not draw a distinction between a person who intends to kill 

another by fire and one who only intends to burn down a dwelling 

house and accidentally kills one of the occupants.” Id.; see 

also State v. Lopez, 174 Ariz. 131, 141-42, 847 P.2d 1078, 1088-

89 (1992) (distinguishing Essman). 

¶60 Most recently, the Court distinguished Essman in State 

v. Dann (Dann I), 205 Ariz. 557, 74 P.3d 231 (2003). There, the 

defendant argued that because he intended to murder a victim 

rather than assault him, he could not be convicted of felony 

murder. Id. at 567 ¶ 29, 74 P.3d at 241. Noting that the 

defendant did not dispute that felony murder could be predicated 

on burglary based on intent to commit assault, the Court held 

that sufficient evidence supported the finding of the predicate 

offense. Id. at 567-68 ¶¶ 27-29, 74 P.3d at 241-42. The Court 

further observed that “[m]erger does not apply in cases in which 
27

the separate crime of burglary is alleged and established.” Id. 

at 568 n.7 ¶ 29, 74 P.3d at 242 n.7. 

¶61 Dann I and Miniefield defeat Moore’s argument that 

felony murder cannot be predicated on a burglary that is based 

on the intent to murder. The felony murder statute, A.R.S. 

§ 13-1105(A)(2), does not distinguish between burglaries defined 

by intent to commit assault versus intent to murder. It would, 

moreover, be anomalous to conclude that first-degree murder 

occurs if a burglary with intent to assault results in death but 

not if the burglary is based on the more culpable intent to 

murder. 

¶62 Moore notes that courts in several other states have 

held that a felony-murder conviction cannot be based on a 

burglary intended solely to murder the victim. See Parker v. 

State, 731 S.W.2d 756, 758-59 (Ark. 1987); People v. Garrison, 

765 P.2d 419, 435 (Cal. 1989); People v. Wilson, 462 P.2d 22, 

27-28 (Cal. 1969); Williams v. State, 818 A.2d 906, 910-13 (Del. 

2002); People v. Cahill, 809 N.E.2d 561, 588-89 (N.Y. 2003). We 

find these cases unpersuasive because we have already recognized 

that Arizona’s felony-murder statute identifies burglary based 

on assault as a valid predicate offense; these out-of-state 

cases conflict with Miniefield and Lopez insofar as they require 

the predicate offense to be separate or independent from the 

homicide, and our Court in Lopez distinguished Arizona’s felony 
28

murder scheme from that of California. 174 Ariz. at 142, 847 

P.2d at 1089. Cf. People v. Farley, 2009 WL 1886072, No. 

S024833 (Cal. July 2, 2009) (overruling Wilson and holding 

merger doctrine does not apply to first-degree felony murder). 

¶63 We therefore reject Moore’s use of the merger doctrine 

to challenge his convictions for felony murder. 

E. Definition of Premeditation 

¶64 Moore argues that the trial court incorrectly 

instructed the jury that “proof of actual reflection is not 

required” to establish premeditation and the prosecutor’s 

closing argument compounded this error.

¶65 The use of the phrase “proof of actual reflection is 

not required” is an erroneous instruction on premeditation if 

given in a jury instruction “without further clarification.” 

State v. Thompson, 204 Ariz. 471, 480 ¶ 34, 65 P.3d 420, 429 

(2003); accord Dann I, 205 Ariz. at 565 ¶ 16, 74 P.3d at 239.

¶66 Here, the court instructed the jury that 

“[p]remeditation” means that a person acts with either 

the intention or the knowledge that he will kill 

another human being, when such intention or knowledge 

precedes the killing by a length of time to permit 

reflection. Proof of actual reflection is not 

required, but an act is not done with premeditation if 

it is the instant effect of a sudden quarrel or heat 

of passion. 
29

During closing arguments the prosecutor reinforced the court’s 

instruction by repeatedly telling the jury that Moore “had time 

to reflect” with respect to the murders.

¶67 Moore properly objected to the instruction, and the 

State correctly concedes that it was erroneous. Accordingly, we 

must determine if the error was harmless. Dann I, 205 Ariz. at 

565 ¶ 18, 74 P.3d at 239. “An error is harmless if it appears 

beyond a reasonable doubt that the error . . . did not 

contribute to the verdict obtained.” Id. (alteration in 

original) (internal quotation marks omitted).

¶68 The State argues that Moore was not prejudiced by the 

erroneous premeditation instruction because he pursued a 

mistaken identity offense. We have previously rejected a 

similar argument in the context of harmless error review. See 

State v. Gomez, 211 Ariz. 494, 499-500, 123 P.3d 1131, 1136-37 

(2005); Dann I, 205 Ariz. at 566 & n.3 ¶¶ 19-20, 74 P.3d at 240 

& n.3.

¶69 There was, however, overwhelming evidence of Moore’s 

premeditation with respect to the murder of Mata. Before 

leaving his mother’s house with his gun, Moore told his 

girlfriend that he had seen the person who had tried to run him 

over and he was not going to stand for it. He later told Brown 

that he was going to “smoke” Mata and asked if Brown wanted to 

“get” Mata with him. When Mata came outside, Moore confronted 
30

him by asking if Mata had a problem with him and then began 

shooting. Moore told Borghetti after the shootings that he had 

shot the person who had tried to run him over and he was sorry 

about the other victims who “didn’t have anything to do with 

it.” Given this evidence, the error in the premeditation 

instruction was harmless beyond a reasonable doubt with regard 

to the murder of Mata.

¶70 In contrast, the evidence of premeditation is less 

compelling with regard to the other victims. The State argues 

that premeditation was established because Moore, after shooting 

Mata and Ford, “entered the house and hunted for Guadalupe and 

Delia.” The State’s assertion that Moore “hunted” for the 

victims is based on the fact that Moore entered the house, shot 

Guadalupe in his sleep, and then immediately shot Delia as she 

hid behind a pillow in the closet of another room.

¶71 In Dann I, the Court did not find overwhelming 

evidence of premeditation based on the defendant’s killing the 

victims by placing his gun muzzle against their heads or his 

later making incriminating statements about his motives for 

these shootings. See Dann I, 205 Ariz. at 566 ¶ 20, 74 P.3d at 

240. This Court also noted that this evidence had to be 

considered in light of the court’s erroneous instruction and the 

prosecutor’s statements in closing that the passage of time 

alone would support a finding of first-degree murder. See id.
31

at 565 ¶ 16, 74 P.3d at 239.

¶72 Consistent with Dann I, the evidence here is not so 

overwhelming that this Court can conclude, beyond a reasonable 

doubt, that the error in the premeditation instruction did not 

affect the verdicts as to Delia and Guadalupe. We therefore 

reverse the convictions for the premeditated murders of Delia 

and Guadalupe. Because Moore remains convicted of felony murder 

for their deaths, however, remand is unnecessary.

F. Lesser-Included Offense Instruction 

¶73 Moore argues that the trial court committed 

fundamental error by instructing the jury that it could find the 

defendant guilty of second-degree murder only if it unanimously 

found that the State had failed to prove first-degree murder 

beyond a reasonable doubt, but did prove the less serious crime 

beyond a reasonable doubt.

¶74 This Court disapproved such an “acquittal-first” 

instruction in State v. LeBlanc, 186 Ariz. 437, 438-39, 924 P.2d 

441, 442-43 (1996). Because Moore’s counsel did not object to 

the instruction at trial, we review for fundamental error. 

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

(2005).

¶75 The use of the instruction, although erroneous in 

light of LeBlanc, does not constitute fundamental error. The 

error is not fundamental in nature because Moore has not shown 
32

that it denied him a fair trial or deprived him of a right 

essential to his defense. See id. at 567 ¶ 19, 115 P.3d at 607. 

Although LeBlanc disapproved of the instruction’s prospective 

use, the Court expressly noted that the instruction does not 

violate the state or federal constitutions, that its use is not 

fundamental error, and that the adoption of a new instruction 

was a procedural change made for purposes of judicial 

administration. See LeBlanc, 186 Ariz. at 439-40, 924 P.2d at 

443-44. We reject Moore’s argument that once LeBlanc

disapproved the instruction, its subsequent use necessarily 

makes the error fundamental.

G. Right to Conflict-Free Counsel 

¶76 Moore argues that he was denied his Sixth Amendment 

right to conflict-free counsel when, after he had been convicted 

in his first trial, the trial court denied two motions for 

substitute counsel before the sentencing trials.

¶77 A trial court’s decision to deny a request for new 

counsel will not be disturbed absent an abuse of discretion. 

State v. Cromwell, 211 Ariz. 181, 186 ¶ 27, 119 P.3d 448, 453 

(2005). “The presence of an irreconcilable conflict or a 

completely fractured relationship between counsel and the 

accused ordinarily requires the appointment of new counsel.” 

Id. at ¶ 29. Disagreements over defense strategy do not 

constitute an irreconcilable conflict. Id.
33

¶78 In 2002, Moore’s counsel moved to withdraw on the 

grounds that there was an irreconcilable conflict between them 

and Moore. The identified conflict concerned the evidence to be 

presented at sentencing. Moore desired to maintain his 

innocence and to offer testimony by an alibi witness (whom 

counsel, with Moore’s agreement, decided not to call at the 

guilt trial) and also to inform the jury, in allocution, that he 

had passed a polygraph examination after his convictions. 

Moore’s counsel instead wanted to present Moore’s drug use as 

mitigation. The trial court denied the motion to withdraw on 

the grounds that the conflict concerned sentencing strategy.

¶79 Moore contends that determining what evidence to 

present at a capital sentencing trial is a “fundamental 

decision” that must be made by the defendant himself, and not 

merely a strategic decision to be made by his lawyers. Cf. 

Jones v. Barnes, 463 U.S. 745, 751 (1983) (recognizing that 

defendant has “ultimate authority” over certain “fundamental 

decisions regarding the case” including whether to plead guilty, 

waive a jury trial, testify on his own behalf, or take an 

appeal).

¶80 The trial court did not abuse its discretion in 

denying the motion to withdraw. Recognizing that certain 

decisions during the sentencing phase of a capital case may be 

fundamental, we do not regard Moore’s desire to present evidence 
34

of actual innocence to be such a decision. The trial court 

properly precluded evidence of actual innocence from the 

sentencing phase. See infra ¶¶ 107-09. A defendant’s desire to 

present inadmissible evidence contrary to counsel’s sentencing 

strategy does not give rise to an irreconcilable conflict.

¶81 Moore’s counsel again sought to withdraw in 2003, this 

time arguing that they had an actual conflict because their 

office had previously represented a statutory victim in the case 

who did not want to testify. This victim, counsel avowed, knew 

that other persons wanted to kill the victims, which would be 

relevant to residual doubt, and that the victims were drug 

dealers, which could rebut any victim impact evidence the State 

might present. Moore’s counsel argued that new counsel could 

call the witness in question without violating any ethical 

rules. After a hearing, the trial court denied the motion 

because Moore had failed to show the witness could offer any 

relevant, noncumulative information.

¶82 To succeed on a conflict of interest claim, a 

defendant must prove the existence of an actual conflict that 

adversely affected counsel’s representation. State v. Jenkins, 

148 Ariz. 463, 465-66, 715 P.2d 716, 718-19 (1986). To 

establish an actual conflict, a defendant must demonstrate that 

some plausible alternative defense strategy or tactic might have 

been pursued. Id. at 466 n.1, 715 P.2d at 719 n.1.
35

¶83 The trial court correctly denied the second motion to 

withdraw. Moore has not shown that there was a plausible 

alternative defense strategy that could have been pursued absent 

the alleged conflict. Moore argues that a conflict-free lawyer 

could have subpoenaed the former client and forced him to 

testify. This possibility, however, was not a plausible 

alternative strategy because the witness’s contemplated 

testimony concerned either residual doubt, which would not have 

been admissible at sentencing, or rebuttal of victim impact 

evidence, which the State did not introduce. Moore has not 

shown that the identified conflict adversely affected his 

counsel’s representation.

H. (F)(8) Aggravator 

¶84 Moore contends that trial court erroneously failed to 

completely instruct the jury on the elements of the (F)(8) 

aggravator at the first sentencing trial, that the instruction 

given was unconstitutionally vague, and that structural error 

occurred.

¶85 This Court reviews de novo whether “instructions to 

the jury properly state the law.” See Glassel, 211 Ariz. at 53 

¶ 74, 116 P.3d at 1213. Because Moore did not object to the jury 

instruction at the first sentencing trial, we review for 

fundamental error. See Henderson, 210 Ariz. at 567 ¶ 19, 115 

P.3d at 607.
36

¶86 To prove the (F)(8) aggravator, the State must 

establish beyond a reasonable doubt that the murders took place 

during a “continuous course of criminal conduct” and were 

“temporally, spatially, and motivationally related.” State v.

Armstrong (Armstrong III), 218 Ariz. 451, 464 ¶ 67, 189 P.3d 

378, 391 (2008). The instruction here instead required only a 

finding that the homicides were “committed on the same 

occasion,” and was therefore erroneous, which the State 

concedes. See State v. Ring (Ring III), 204 Ariz. 534, 560-61 

¶¶ 80-81, 65 P.3d 915, 941-42 (2003). 

¶87 Moore must also show prejudice to establish that the 

incomplete instruction was fundamental error. He cannot meet 

this burden because the record of Moore’s first sentencing trial 

demonstrates a temporal, spatial, and motivational relationship 

substantial enough that no reasonable jury could fail to find 

the (F)(8) aggravator beyond a reasonable doubt. See State v. 

Armstrong (Armstrong II), 208 Ariz. 360, 364-65 ¶ 11, 93 P.3d 

1076, 1080-81 (2004). Ford’s uncontroverted testimony 

established the temporal element because within seconds, she saw 

Moore shoot Mata and her and then heard multiple gunshots. See 

State v. Dann (Dann II), 206 Ariz. 371, 373 ¶ 9, 79 P.3d 58, 60 

(2003) (finding temporal element established when murders 

occurred in a “short, uninterrupted span of time”). The spatial 

element was established by the uncontested evidence that 
37

Guadalupe and Delia were shot inside the Yale Street house, 

while Mata was shot just outside the front door. See State v. 

Tucker (Tucker I), 205 Ariz. 157, 169 ¶ 66, 68 P.3d 110, 122 

(2003) (noting that spatial relationship was established when 

victims were in different rooms of an apartment). Finally, no 

reasonable jury could fail to find the motivational element 

because the murders involved a continuous course of criminal 

conduct and “it is difficult to imagine a motive for the 

killings unrelated to the murder of [Mata].” See id.; see also 

State v. Boggs, 218 Ariz. 325, 342 ¶ 81, 185 P.3d 111, 128 

(2008) (upholding (F)(8) aggravator where “all the murders 

involved a continuous course of criminal conduct”).

¶88 We also reject Moore’s arguments that the (F)(8) 

instruction here was facially vague or that we should reconsider 

Ring III and hold that a jury finding of an aggravator based on 

an incomplete instruction is structural error. 

I. Sentencing Jury Did Not Decide Guilt or Aggravating 

Circumstance 

¶89 Moore argues that his death sentences must be reversed 

because the second sentencing jury did not itself find the 

(F)(8) aggravator. He contends that because the first 

sentencing jury invalidly found the (F)(8) aggravator based on a 

flawed jury instruction, the State should have been required to 

reprove this aggravator. He argues that this situation is 
38

analogous to State v. Pandeli (Pandeli IV), 215 Ariz. 514, 522 

¶ 15, 161 P.3d 557, 565 (2007), which recognizes that when a 

capital sentence is vacated and remanded for resentencing, the 

State must reprove the aggravating circumstances. Pandeli IV is 

inapposite because neither Moore’s capital sentence nor the 

first jury’s finding of the (F)(8) aggravator was vacated.

¶90 We also reject Moore’s related argument that the 

second sentencing jury could not properly determine his sentence 

in a “vacuum.” Substantially the same evidence was introduced 

at the second sentencing trial as at the guilt phase trial and 

the first sentencing trial. There was extensive presentation of 

mitigation evidence. The second sentencing jury was therefore 

able to make an individualized determination of Moore’s sentence 

consistent with the case law of the Supreme Court and this 

Court. See Tuilaepa v. California, 512 U.S. 967, 972 (1994);

State ex rel. Thomas v. Granville (Baldwin), 211 Ariz. 468, 472 

¶ 17, 123 P.3d 662, 666 (2005).

¶91 Moore also argues that notwithstanding Lockhart v. 

McCree, 476 U.S. 162 (1986), juries should no longer be death 

qualified because “they unconstitutionally stack the deck 

against a capital defendant.” We have previously upheld death 

qualification of jurors. See, e.g., State v. Dann (Dann III), 

220 Ariz. 351, ___ ¶ 28, 207 P.3d 604, 613 (2009); State v. 

Bocharski, 218 Ariz. 476, 483 ¶ 18, 189 P.3d 403, 410 (2008).
39

¶92 Finally, Moore argues that permitting a jury to impose 

a death sentence when it did not determine his guilt or the 

(F)(8) aggravator violates the Sixth and Eighth Amendments 

because the jury that sentenced him to death was able to 

abdicate its responsibility to the other juries. Under Caldwell 

v. Mississippi, “it is constitutionally impermissible to rest a 

death sentence on a determination made by a sentencer who has 

been led to believe that the responsibility for determining the 

appropriateness of the defendant’s death rests elsewhere.” 472 

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

¶93 We have previously concluded that Caldwell’s dictate 

is not violated when different juries determine guilt and 

sentence if the sentencing jury is not misled as to its role. 

Dann III, 220 Ariz. at ___ ¶¶ 29-30, 207 P.3d at 613-14;

Bocharski, 218 Ariz. at 483 ¶ 20, 189 P.3d at 410; State v. 

Anderson (Anderson II), 210 Ariz. 327, 337 ¶¶ 21-23, 111 P.3d 

369, 379 (2005). Moore argues, however, that this Court has 

never sanctioned a bifurcation of the aggravation phase and 

penalty phase juries. But this kind of bifurcation is not 

substantively different from the bifurcation sanctioned under 

our prior cases, and it did not mislead the sentencing jury to 

believe that the responsibility for determining Moore’s sentence 

would rest elsewhere. Moore’s sentencing jury received clear 

instruction that it alone was responsible for the sentencing 
40

decision. Therefore, Caldwell was not violated. 

J. Sentencing Jury Voir Dire

¶94 Moore argues that the trial court deprived him of his 

right to a fair and impartial sentencing jury by refusing to 

strike pro-death jurors and restricting his questions to 

potential jurors about their views on mitigation.

¶95 Morgan requires that defendants be afforded an 

opportunity during voir dire to identify, and to strike for 

cause, prospective jurors who would automatically impose the 

death penalty once guilt is found. See Glassel, 211 Ariz. at 

45-46 ¶¶ 37-41, 116 P.3d at 1205-06. Morgan does not, however, 

entitle defendants to ask prospective jurors to identify 

circumstances they would find mitigating or to answer open-ended 

questions about their views on mitigation. See id. at 45-47 

¶¶ 37, 42-44, 116 P.3d at 1205-07.

¶96 Trial court rulings on the scope of voir dire and 

whether to strike jurors for cause are reviewed for abuse of 

discretion. State v. Smith, 215 Ariz. 221, 230 ¶ 37, 159 P.3d 

531, 540 (2007); Ellison, 213 Ariz. at 137 ¶ 88, 140 P.3d at 

920. If a defendant is forced to use a peremptory challenge to 

remove a juror who should have been excused for cause, an 

otherwise valid conviction will not be reversed unless the 

defendant shows prejudice. State v. Hickman, 205 Ariz. 192, 198 

¶ 28, 68 P.3d 418, 424 (2003).
41

1. Denial of the Motions to Strike 

¶97 Moore contends that the trial court misapplied Morgan 

and improperly denied his motions to strike prospective Jurors 

4, 9, 22, 61, 62, and 122.

¶98 Only one of these six jurors – Juror 9 – was selected 

for the jury. In her responses during voir dire, Juror 9 

indicated that she would listen to all of the evidence and the 

instructions and could decide between a sentence of life or 

death depending on the facts. Defense counsel did not object 

that Juror 9 would automatically vote for a death sentence. 

Instead, counsel argued that she should be disqualified because 

she had said, in response to a question from defense counsel, 

that she did not think age would make a difference to her as a 

mitigating factor. As the trial court noted, the juror had not 

been instructed on the law and was being posed the question in a 

vacuum. Given Juror 9’s other responses to the voir dire 

questions, the trial court did not abuse its discretion in 

denying the motion to strike.

¶99 Jurors 4, 22, 61, 62 and 122 did not sit on the jury. 

Thus, under Hickman, any error by the trial court in refusing to 

strike them was not reversible error absent prejudice to Moore. 

See Glassel, 211 Ariz. at 50 ¶ 56-57, 116 P.3d at 1210. No 

evidence suggests that the sentencing jury was not fair and 

impartial. We reject Moore’s argument that Hickman should not 
42

apply because the trial court systematically misapplied Morgan. 

Consistent with Morgan’s requirements, prospective jurors were 

asked questions in both a twelve-page jury questionnaire and in 

oral voir dire aimed at identifying those who would 

automatically impose the death penalty.

2. Restrictions on voir dire regarding mitigation

¶100 Moore argues that the trial court refused to allow him 

to “meaningfully” question “many additional” jurors on “whether 

they were open to considering any evidence of mitigation.” In 

this regard, Moore cites to the transcripts of the oral voir 

dire of eleven prospective jurors, but five were not empanelled 

and two were designated as alternates and did not deliberate. 

Any error in the voir dire of these seven jurors was harmless. 

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

that alleged error in restricting voir dire was harmless as to 

jurors that did not participate in deliberations).

¶101 With regard to the remaining jurors who were 

empanelled – Jurors 27, 77, 196, and 210 – Moore sought to 

strike for cause all but Juror 77. The question becomes whether 

the court abused its discretion in restricting Moore’s voir dire 

or denying his motions to strike these jurors. 

¶102 The four identified jurors each completed a written 

questionnaire and answered questions in oral voir dire. None 

indicated that they would automatically impose the death 
43

penalty. We are not persuaded by Moore’s arguments that the 

trial court’s restrictions on voir dire regarding mitigation 

violated Morgan.

¶103 The trial court refused to allow Moore to ask Juror 27 

what things she would or would not consider mitigating. The 

trial court also sustained an objection when Moore asked Juror 

77 if there were particular areas the juror would want to hear 

about. With respect to Juror 196, the trial court sustained the 

State’s objection when counsel asked “how can you tell us that 

you’d be open minded to consider all mitigation without knowing 

anything about what might be out there?” Defense counsel was 

allowed, however, to ask this juror if she was open minded and 

if “there [were] some things that you’re not open minded about?” 

With regard to Juror 210, the trial court sustained objections 

to open-ended questions asking the juror to identify what she 

thought were “good reasons” for having or not having a death 

penalty. The trial court did allow Moore to ask this juror 

whether “there [are] some cases in particular in which you think 

the death penalty would be justified, some cases where you would 

be less open minded?” 

¶104 The trial court’s restrictions on voir dire were 

consistent with this Court’s decisions. We have repeatedly 

rejected arguments that Morgan requires courts to allow 

defendants to ask prospective jurors to identify circumstances 
44

that they would find mitigating or to respond to open-ended 

questions on this topic. For example, in Glassel, this Court 

held that Morgan does not require that courts permit defendants 

to question prospective jurors as to their understanding of the 

phrase “sufficiently substantial to call for leniency.” 211 

Ariz. at 46 ¶ 40, 116 P.3d at 1206. The Court also rejected the 

use of open-ended questions about the mitigating circumstances a 

juror would consider important in deciding whether to impose 

death. Id. at ¶ 44. 

¶105 The Court further narrowed the scope of sentencing 

jury voir dire in State v. Johnson, 212 Ariz. 425, 435 ¶ 33, 133 

P.3d 735, 745 (2006). In that case, the Court held that Morgan

does not require courts to allow defendants to ask prospective 

jurors about their views on specific mitigating circumstances. 

Id. In Smith, the Court held that trial courts may prohibit 

open-ended questions seeking to determine a juror’s views “about 

the best reason for having or not having the death penalty, the 

importance of considering mitigation, and the type of offense 

for which the juror would consider death to be appropriate.” 

215 Ariz. at 231 ¶ 41, 159 P.3d at 541. 

¶106 Under these precedents, the questions that Moore 

sought to ask prospective jurors about their views on mitigation 

were not required by Morgan. Accordingly, the trial court did 
45

not abuse its discretion in limiting voir dire or denying 

Moore’s related motions to strike Jurors 27, 196 and 210. 

K. Preclusion of Actual Innocence Evidence and Argument

¶107 Moore next asserts that the trial court’s preclusion 

of evidence and argument regarding actual innocence violates his 

rights to due process, to present a complete defense, and to 

have his sentencer consider all relevant mitigation, as well as 

the prohibition against ex post facto laws. Moore sought at 

sentencing to introduce expert testimony on eyewitness 

identification and evidence that he passed a polygraph 

examination after the jury found him guilty, and to argue 

residual doubt as a mitigating factor. On the State’s motion, 

the trial court precluded all evidence on residual doubt from 

both the aggravation and penalty phases. 

¶108 We have previously rejected the argument that trial 

courts are constitutionally or statutorily required to admit 

evidence or permit argument regarding residual doubt at a 

sentencing trial. See State v. Harrod (Harrod III), 218 Ariz. 

268, 281 ¶ 46, 183 P.3d 519, 532 (2008); State v. Garza, 216 

Ariz. 56, 70 ¶ 67, 163 P.3d 1006, 1020 (2007); see also Oregon 

v. Guzek, 546 U.S. 517, 523 (2006) (“We can find nothing in the 

Eighth or Fourteenth Amendments that provides a capital 

defendant a right to introduce new evidence of this kind at 

sentencing.”). Moore attempts to distinguish his situation by 
46

arguing that actual innocence evidence should be admitted 

because the (F)(8) aggravator focuses on the defendant’s role in 

the murders. However, in Dann III we specifically rejected 

using residual doubt evidence at the aggravation phase to 

disprove the (F)(8) aggravator when the evidence is to be used 

only to disprove guilt. See Dann III, 220 Ariz. at ___ ¶¶ 66-

69, 207 P.3d at 618-19. 

¶109 In Dann III, we also rejected the claim that 

preclusion of residual doubt evidence is an ex post facto law. 

Id. at ___ ¶¶ 119-20, 207 P.3d at 625. Moore also argues that 

the preclusion of residual doubt evidence violated his right to 

due process because his trial strategies assumed that the judge 

presiding over his guilt trial could consider residual doubt in 

determining the sentence. This argument, however, mistakenly 

presumes that, before jury sentencing, Moore had a right to have 

residual doubt considered as mitigation. This Court had never 

recognized such a right and more recent cases have clarified 

that a defendant has no constitutional right to present residual 

doubt evidence at sentencing. See Harrod III, 218 Ariz. at 278-

81 ¶¶ 37-46, 183 P.3d at 528-31. 

L. Constitutionality of Burden of Proof at Sentencing

¶110 Moore argues that Arizona’s death penalty scheme is 

unconstitutional under the Eighth and Fourteenth Amendments 

because it does not require the State to prove beyond a 
47

reasonable doubt that mitigating circumstances are not 

“sufficiently substantial to call for leniency.” 

¶111 This Court, as Moore acknowledges, has previously 

rejected this argument. See, e.g., Glassel, 211 Ariz. at 52 

¶ 70, 116 P.3d at 1212. Moore argues, however, that under 

Kansas v. Marsh, 548 U.S. 163 (2006), when a state allows the 

jury to decide whether the death penalty is appropriate, the 

issue is an element of the offense of capital murder that must 

be proven by the state beyond a reasonable doubt. 

¶112 We have rejected this reading of Marsh. That opinion 

does not hold that the Federal Constitution requires the state 

to prove that mitigating circumstances do not warrant leniency; 

instead, as we noted in State v. Tucker (Tucker II), the Supreme 

Court held that so long as the state is required to prove the 

elements of the offense and aggravating circumstances, the state 

may place on the defendant “the burden of proving mitigating 

circumstances sufficiently substantial to call for leniency.” 

215 Ariz. 298, 316 ¶ 67, 160 P.3d 177, 195 (2007) (internal 

quotation marks omitted). For this reason, we held that 

instructing a jury that the defendant had the burden of proving 

mitigation was sufficiently substantial to warrant leniency, 

although contrary to our decision in Baldwin, did not constitute 

fundamental error. See id. at 316-17 ¶ 69, 160 P.3d at 195-96. 
48

¶113 The trial court here did not err by instructing the 

jury, consistent with Baldwin, that the determination of the 

appropriate sentence is not a fact question on which either side 

has a burden of proof. 

M. Independent Review

¶114 Because the murders occurred before August 1, 2002, 

this Court must “independently review the trial court’s findings 

of aggravation and mitigation and the propriety of the death 

sentence.” A.R.S. § 13-755 (Supp. 2009); see 2002 Ariz. Sess. 

Laws, ch. 1, § 7 (5th Spec. Sess.). 

1. Aggravating Circumstance – (F)(8) 

¶115 As discussed in Part H above, the evidence presented 

during aggravation establishes beyond a reasonable doubt that 

the murders were temporally, spatially, and motivationally 

related as required for the (F)(8) aggravator.

2. Mitigating Circumstances 

¶116 Moore presented evidence related to two statutory 

mitigating factors and several non-statutory mitigating factors.

a. Statutory Mitigation 

i. Intoxication 

¶117 To establish intoxication as a statutory mitigator, a 

defendant must prove by a preponderance of the evidence that 

“[t]he defendant’s capacity to appreciate the wrongfulness of 

his conduct or to conform his conduct to the requirements of law 
49

was significantly impaired, but not so impaired as to constitute 

a defense to prosecution.” A.R.S. § 13-703(G)(1) (Supp. 1999). 

¶118 Moore established that he used crack cocaine in the 

days and hours leading up to the murders. Dr. Stan Cabanski, 

who performed a juvenile court psychological evaluation on Moore 

when he was seventeen years, eight months old, concluded Moore 

was abusing several street drugs. Moore also offered the expert 

testimony of Dr. Alex Stalcup, a doctor specializing in 

addiction medicine. Stalcup concluded that Moore had been 

addicted to crack since age fifteen, that Moore’s drug use had 

impaired his brain development and impulse control, and that 

Moore had committed the murders in an explosive rage caused by 

his craving for cocaine. He further opined that Moore’s 

irritability would have been enhanced by his diabetes if his 

blood sugar was low because he had not eaten. 

¶119 To rebut Moore’s evidence, the State offered testimony 

by Dr. Eugene Almer, who acknowledged that Moore had a cocaine 

habit and had smoked crack before the murders, but opined that 

Moore’s acts the morning of the shooting were volitional. He 

noted that although Moore showed signs of anger or rage earlier 

in the evening when he informed his girlfriend that he intended 

to confront the person who tried to run him over, there were no 

signs of rage immediately before the shooting. Dr. Almer also 

noted that Moore made efforts to avoid detection by not leaving 
50

behind fingerprints or cigarette butts. Neither Dr. Stalcup nor 

Dr. Almer interviewed or otherwise examined Moore; they based 

their conclusions on reviewing trial evidence and other 

information. 

¶120 Based on our review of the record, we do not find that 

Moore has established the statutory mitigator of intoxication. 

“[A] defendant’s claim of alcohol or drug impairment fails when 

there is evidence that the defendant took steps to avoid 

prosecution shortly after the murder, or when it appears that 

intoxication did not overwhelm the defendant’s ability to 

control his physical behavior.” State v. Reinhardt, 190 Ariz. 

579, 591-92, 951 P.2d 454, 466-67 (1997). Moore took steps to 

avoid prosecution and we do not find that his use of crack 

cocaine overwhelmed his ability to control his behavior. 

¶121 Although Moore’s evidence of impairment from his crack 

cocaine use does not satisfy the statutory mitigation 

requirements, we will consider such evidence as non-statutory 

mitigation. See State v. Gallegos (Gallegos I), 178 Ariz. 1, 

17-18, 870 P.2d 1097, 1113-14 (1994). 

ii. Age 

¶122 In assessing age as a mitigating circumstance, the 

Court considers the defendant’s chronological age, as well as 

“his level of intelligence, maturity, past experience, and level 
51

of participation in the killings.” State v. Poyson, 198 Ariz. 

70, 80 ¶ 37, 7 P.3d 79, 89 (2000). 

¶123 Moore was eighteen years, seven months old at the time 

of the murders. Although his teachers testified that he was 

intelligent, Moore was held back a year in elementary school. 

Further, Moore stopped attending school in the ninth grade. He 

appears to have lacked maturity, possibly due to his crack 

cocaine use, which the experts agreed stunted his emotional 

development. Although Moore had a child, he lived with his 

mother and never consistently held a job. 

¶124 Moore also had extensive experience with the juvenile 

justice system. By the time he became an adult, he had twelve 

referrals to juvenile court. Although criminal history 

typically lessens the mitigating weight assigned to age, see 

id., we do not believe Moore’s juvenile record should have a 

similar effect because he was never adjudicated delinquent and 

the offenses were all non-violent. That is not to say, as Moore 

argues, that the failure of the criminal justice system to hold 

him accountable as a juvenile itself qualifies as mitigation. 

¶125 Moore was the sole participant in the murders, a fact 

that tends to reduce any mitigating significance of his age. 

¶126 On balance, we conclude that Moore’s age deserves some 

weight as a mitigating factor. 
52

b. Non-Statutory Mitigation 

i. Appellant’s addiction to crack cocaine 

¶127 Moore has clearly established his use of crack 

cocaine, both habitually and on the night of the shootings, and 

this factor combined with Moore’s relative youth and early-onset 

drug use, which likely impacted his mental development, deserves 

some mitigating weight.

ii. Appellant’s dysfunctional childhood 

¶128 A difficult family background may be a mitigating 

circumstance in determining whether a death sentence is 

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

showing that it affected the defendant’s conduct in committing 

the crime. State v. Sansing (Sansing II), 206 Ariz. 232, 240-41 

¶¶ 34-36, 77 P.3d 30, 38-39 (2003). 

¶129 Moore established that he had a dysfunctional 

childhood. His father suffered from depression and flashbacks 

related to his service in the Vietnam War. He testified that he 

was a chronic alcoholic and that his children grew up watching 

him kill himself by drinking. Before the murders, Moore’s 

father had stopped communicating with his family. 

¶130 As a child, Moore was often depressed and kept to 

himself. His mother filed for divorce when he was in eighth 

grade, and Moore soon thereafter began running away from home. 

Approximately one month before Moore’s eighth grade graduation, 
53

and weeks after his fifteenth birthday, police stopped Moore in 

an area known for drug activity. Moore skipped his graduation 

and was arrested that day for consumption of alcohol as a minor. 

¶131 On several occasions, Moore’s mother kicked Moore out 

of the house. Because he was a minor, the police made her take 

him back. Ultimately she filed papers with the courts 

unsuccessfully seeking to have Moore declared incorrigible. 

Moore’s twelve referrals to juvenile court included several 

involving possession of drug paraphernalia. 

¶132 Moore has offered sufficient evidence to prove that he 

was raised in a dysfunctional environment, but we do not find 

that it merits significant weight as a mitigating factor 

independent of his drug use as a youth. 

iii. Residual doubt 

¶133 Once a person is found guilty beyond a reasonable 

doubt, claims of innocence or residual doubt do not constitute 

mitigation for sentencing purposes. See Dann III, 220 Ariz. at 

___ ¶ 136, 207 P.3d at 628; Harrod III, 218 Ariz. at 280 ¶¶ 42-

43, 183 P.3d at 531.

iv. Appellant’s family support and impact on his 

family 

¶134 “The existence of family ties is a mitigating factor.” 

State v. McGill, 213 Ariz. 147, 162 ¶ 67, 140 P.3d 930, 945 

(2006). During the penalty phase, Moore’s mother, father, 
54

sisters, and grandmother provided testimony or interviews 

expressing their love for Moore and indicating that his family, 

including his daughter who was eighteen months old at the time 

of the murders, would be negatively impacted by his execution. 

Although Moore established this mitigating factor, we give it 

minimal weight. See Poyson, 198 Ariz. at 82 ¶ 47, 7 P.3d at 91.

v. Appellant has expressed remorse 

¶135 Remorse may be a non-statutory mitigating 

circumstance, but we give this factor little weight when a 

defendant denies responsibility for his or her conduct. See 

Dann III, 220 Ariz. at ___ ¶ 150, 207 P.3d at 629; State v. 

Andriano, 215 Ariz. 497, 512 ¶ 76, 161 P.3d 540, 555 (2007). 

¶136 Although Moore points to statements he made to 

Borghetti and his sister as indicating remorse, these statements 

carry little weight given that Moore continues to deny 

responsibility for the murders. His comments to his sister 

express regret about the impact on his family rather than 

remorse about the murders. Moore has not established remorse by 

a preponderance of the evidence. 

3. Propriety of Death Sentence 

¶137 In reviewing the propriety of the death sentence, “‘we 

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

aggravating and mitigating factors.’” State v. Roque, 213 Ariz. 

193, 230 ¶ 166, 141 P.3d 368, 405 (2006) (quoting State v. 
55

Greene, 192 Ariz. 431, 443 ¶ 60, 967 P.2d 106, 118 (1998)). We 

give the multiple murders aggravator extraordinary weight. 

Garza, 216 Ariz. at 72 ¶ 81, 163 P.3d at 1022. In light of this 

significant aggravator, we must determine whether Moore’s 

mitigating evidence is “sufficiently substantial to warrant 

leniency.” See A.R.S. § 13-755(B). 

¶138 Although Moore presented significant mitigating 

evidence based on his age and the impact of his extensive use of 

crack cocaine both habitually and on the night of the murders, 

this evidence is not sufficiently substantial to warrant 

leniency. 

N. Issues Preserved for Federal Review

¶139 To avoid preclusion, Moore raises twenty-six other 

constitutional challenges that he states have been rejected by 

the Supreme Court or this Court. These claims and the decisions 

Moore identifies as rejecting them are set forth verbatim in the 

Appendix. 

CONCLUSION

¶140 For the foregoing reasons, we affirm Moore’s 

convictions for the first-degree felony murders of Delia Ramos 

and Guadalupe Ramos, for the first-degree premeditated murder of 

Sergio Mata, for the attempted first-degree murder of Debra 

Ford, and for first-degree burglary, and affirm Moore’s death 
56

sentences. We reverse Moore’s convictions for the first-degree 

premeditated murders of Delia Ramos and Guadalupe Ramos. 

 _______________________________________ 

 W. Scott Bales, Justice 

CONCURRING: 

_______________________________________ 

Rebecca White Berch, Chief Justice 

_______________________________________ 

Michael D. Ryan, Justice 

_______________________________________ 

Ruth V. McGregor, Justice (Retired) 

_______________________________________ 

Daniel A. Barker, Judge* 

*Vice Chief Justice Andrew D. Hurwitz has recused himself from 

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

Constitution, the Honorable Daniel A. Barker, Judge of the 

Arizona Court of Appeals, Division One, was designated to sit in 

this matter. 
57

APPENDIX 

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

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

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

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

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

602, 610 (1995). 

(3) The statute unconstitutionally requires imposition of the 

death penalty whenever at least one aggravating circumstance 

and no mitigating circumstances exist. Walton v. Arizona, 497 

U.S. 639, 648 (1990); State v. Miles, 186 Ariz. 10, 19, 918 

P.2d 1028, 1037 (1996); 

(4) The death penalty is unconstitutional because it permits 

jurors unfettered discretion to impose death without adequate 

guidelines to weigh and consider appropriate factors and fails 

to provide principled means to distinguish between those who 

deserve to die or live. State v. Johnson, 212 Ariz. 425, 440 

¶ 69, 133 P.3d 735, 750 (2006). 

(5) Arizona’s death statute unconstitutionally requires 

defendants to prove that their lives should be spared. State 

v. Fulminante, 161 Ariz. 237, 258, 778 P.2d 602, 623 (1988). 

(6) The statute unconstitutionally fails to require the 

cumulative consideration of multiple mitigating factors or 

require that the jury make specific findings as to each 

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

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

(7) Arizona’s statutory scheme for considering mitigating 

evidence is unconstitutional because it limits full 

consideration of that evidence. State v. Mata, 125 Ariz. 233, 

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

(8) The statute is unconstitutional because there are no 

statutory standards for weighing. State v. Atwood, 171 Ariz. 

576, 645-46 n.21(4), 832 P.2d 593, 662-63 n.21(4) (1992). 

(9) Arizona’s death statute insufficiently channels the 

sentencer’s discretion in imposing the death sentence. State 

v. Greenway, 170 Ariz. 151, 164, 823 P.2d 22, 31 (1991). 
58

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

unconstitutionally lacks standards. State v. Cromwell, 211 

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

(11) Death sentences in Arizona have been applied arbitrarily 

and irrationally and in a discriminatory manner against 

impoverished males whose victims have been Caucasian. State 

v. West, 176 Ariz. 432, 455, 862 P.2d 192, 215 (1993). 

(12) The Constitution requires a proportionality review of a 

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

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

(13) Subjecting Appellant to a second trial on the issue of 

aggravation and punishment before a new jury violates the 

double jeopardy clause of the Fifth Amendment. State v. Ring 

(Ring III), 204 Ariz. 534, 550-51 ¶ 39, 65 P.3d 915, 931-32 

(2003). 

(14) Appellant’s death sentence is in violation of his rights 

to a jury trial, notice and due process under the Fifth, 

Sixth, and Fourteenth Amendments since he was not indicted for 

a capital crime. McKaney v. Foreman, 209 Ariz. 268, 271 ¶ 13, 

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

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

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

under the Fourteenth Amendment. State v. Ellison, 213 Ariz. 

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

(16) The absence of notice of aggravating circumstance prior 

to Appellant’s guilt phase trial violated the Sixth, Eighth 

and Fourteenth Amendments. State v. Anderson (Anderson II), 

210 Ariz. 327, 347 ¶¶ 79-80, 82, 111 P.3d 369, 389 (2005). 

(17) The reasonable doubt jury instruction at the aggravation 

trial lowered the state’s burden of proof and deprived 

Appellant of his right to a jury trial and due process under 

the Sixth and Fourteenth Amendments. State v. Dann (Dann I), 

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

(18) Arizona’s death statute creates an unconstitutional 

presumption of death and places an unconstitutional burden on 

Appellant to prove mitigation is “sufficiently substantial to 

call for leniency.” State v. Glassel, 211 Ariz. 33, 52 ¶ 72, 

116 P.3d 1193, 1212 (2005). 
59

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

Appellant’s proffered mitigation deprived him of his rights to 

not be subject to ex post facto legislation and right to 

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

360, 373 ¶ 74 & n.12, 111 P.3d 402, 415 (2005). 

(20) The trial court improperly omitted penalty phase 

instructions that the jury could consider mercy or sympathy in 

evaluating the mitigation evidence and determining whether to 

sentence the defendant to death. State v. Carreon, 210 Ariz. 

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

(21) Arizona’s current protocols and procedures for execution 

by lethal injection constitute cruel and unusual punishment in 

violation of the Eighth and Fourteenth Amendments. State v. 

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

(2007). 

(22) The jury instruction that required the jury to 

unanimously determine that the mitigating circumstances were 

“sufficiently substantial to call for leniency” violated the 

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

¶¶ 101-102, 140 P.3d 899, 922 (2006). 

(23) The failure to instruct the jury that only murders that 

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

violates the Sixth, Eighth and Fourteenth Amendments. State 

v. Bocharski, 218 Ariz. 476, 487-88 ¶¶ 47-50, 189 P.3d 403, 

414-15 (2008). 

(24) The State’s introduction of unsworn rebuttal testimony 

violated Appellant’s rights to confrontation and cross 

examination under the Sixth Amendment. State v. McGill, 213 

Ariz. 147, 158-59, 140 P. 3d 930, 941-42 (2006). 

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

regarding their views on specific aggravating and mitigating 

circumstances violates Appellant’s rights under the Sixth and 

Fourteenth Amendments. State v. Johnson, 212 Ariz. 425, 440 

¶¶ 29-35, 133 P.3d 735, 750 (2006). 

(26) Refusing to instruct the jury or permit the introduction 

of evidence and argument regarding residual doubt violated 

Appellant’s rights under the Sixth, Eighth and Fourteenth 

Amendments and Arizona law. State v. Harrod (Harrod III), 218 

Ariz. 268, 278-79 ¶¶ 37-39, 183 P.3d 519, 529-30 (2008); State 

v. Garza, 216 Ariz. 56, 70 ¶ 67, 163 P.3d 1006, 1020 (2007).