SUPREME COURT OF ARIZONA 

En Banc 

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-10-0138-AP 

 Appellee, ) 

 ) Maricopa County 

 v. ) Superior Court 

 ) No. CR2005-014235-001 

RONNIE LOVELLE JOSEPH, ) 

 ) 

 Appellant. ) O P I N I O N 

_________________________________ ) 

Appeal from the Superior Court in Maricopa County 

The Honorable Arthur T. Anderson, Judge 

AFFIRMED

________________________________________________________________ 

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix 

 By Kent E. Cattani, Chief Counsel, 

 Criminal Appeals/Capital Litigation Section 

 Amy Pignatella Cain, Tucson 

 Assistant Attorney General 

 Jeffrey A. Zick, Phoenix 

 Assistant Attorney General 

Attorneys for State of Arizona 

MICHAEL J. DEW ATTORNEY AT LAW Phoenix 

 By Michael J. Dew 

Attorney for Ronnie Lovelle Joseph 

________________________________________________________________ 

B E R C H, Chief Justice 

¶1 A jury found Ronnie Lovelle Joseph guilty of felony 

murder and other crimes. He was sentenced to death for the 

murder and to prison terms on the other convictions. We have 

jurisdiction over this automatic appeal under Article 6, Section 

5(3) of the Arizona Constitution and A.R.S. § 13–4031 (2010). 
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I. FACTS AND PROCEDURAL HISTORY1

¶2 Ronnie Joseph went to the apartment where his wife, 

Darlene Brown, lived with Jerry Roundtree and her fourteen-yearold nephew, Tommar Brown. Joseph and Darlene began to argue in 

Darlene’s locked bedroom, and Joseph pulled a gun and shot her. 

Jerry kicked open the bedroom door, but turned and ran when he 

saw Joseph holding a gun. Joseph shot at him, hitting him in 

the hand. 

¶3 As Jerry fled, he saw Tommar go into the bathroom. 

Joseph pushed open the bathroom door and fired two or three 

shots, hitting Tommar in his left buttock and chest. The shot 

to Tommar’s chest passed through his heart, killing him. 

¶4 Joseph saw Jerry near the front door of the apartment 

and shot him in the chest before returning to Darlene’s bedroom 

and firing a few more shots, at least two of which hit Darlene. 

Joseph then fled. 

¶5 When police arrived, both Darlene and Jerry identified 

Joseph as the shooter. Police apprehended Joseph three days 

later. 

¶6 The jury found Joseph guilty of the first degree murder 

of Tommar, attempted second degree murder of Darlene, attempted 

first degree murder of Jerry, first degree burglary, and 

 

1

 We view the facts in the light most favorable to sustaining 

the jury’s verdict. State v. Dann, 205 Ariz. 557, 562 n.1, 74 

P.3d 231, 236 n.1 (2003).
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misconduct involving weapons. In the aggravation phase of the 

trial, the jury found two aggravating factors: Joseph 

previously had been convicted of a serious offense, A.R.S. § 13-

751(F)(2) (2010), and the victim was less than fifteen years 

old, id. § 13-751(F)(9). Joseph did not present any mitigating 

evidence in the penalty phase, and the jury determined that he 

should be sentenced to death for Tommar’s murder. The trial 

judge imposed prison terms for the other convictions. 

II. ISSUES ON APPEAL

 A. Confrontation Clause 

¶7 To prepare for his testimony, the State’s medical 

expert, Dr. Philip Keen, reviewed Tommar’s autopsy report, which 

Dr. Ruth Kohlmeier had prepared. Dr. Kohlmeier did not testify 

and the report itself was not admitted into evidence. Joseph 

asserts that the trial court violated his Sixth Amendment right 

to confront Dr. Kohlmeier when, over his objection, it allowed 

Dr. Keen to testify based on Dr. Kohlmeier’s report. We review 

de novo whether the admission of evidence violates the 

Confrontation Clause. See State v. Smith, 215 Ariz. 221, 228 

¶ 20, 159 P.3d 531, 538 (2007). 

¶8 This Court has previously held that a testifying 

medical examiner may offer an opinion based on an autopsy 

performed by a non-testifying expert without violating the 

Confrontation Clause. Id. at 229 ¶ 26, 159 P.3d at 539; see 
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also State v. Tucker, 215 Ariz. 298, 315 ¶ 62, 160 P.3d 177, 194 

(2007). We reasoned that “[b]ecause the facts underlying an 

expert’s opinion are admissible only to show the basis of that 

opinion and not to prove their truth, an expert does not admit 

hearsay or violate the Confrontation Clause by revealing the 

substance of a non-testifying expert’s opinion.” Tucker, 215 

Ariz. at 315 ¶ 62, 160 P.3d at 194. Joseph presents no argument 

persuading us to abandon this reasoning today. 

¶9 Joseph asserts that Dr. Keen’s testimony 

“constructively placed [the autopsy report] before the jury,” 

making the report like the affidavit of the non-testifying 

witness in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). 

But this case differs in two material respects from MelendezDiaz. Here, the court did not admit the autopsy report into 

evidence and the State presented testimony by a witness subject 

to cross-examination. 

¶10 Even if the autopsy report were itself “testimonial,” 

Dr. Keen did not testify to any of Dr. Kohlmeier’s conclusions. 

Cf. United States v. Feliz, 467 F.3d 227, 236 (2d Cir. 2006) 

(stating that autopsy reports are not testimonial because they 

are not prepared for purposes of litigation). He testified 

instead to opinions he formed after reviewing facts and 

photographs contained in the report. See State v. Dixon, 226 

Ariz. 545, 553 ¶¶ 36-37, 250 P.3d 1174, 1182 (2011) (finding no 
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error when medical examiner testified based on his review of an 

autopsy report and photographs). 

¶11 Joseph also argues that the State’s failure to 

establish Dr. Kohlmeier’s unavailability violated his right to 

confrontation. Before testimonial statements of an absent 

witness may be admitted into evidence, the Confrontation Clause 

requires a showing that the witness is unavailable and that the 

defendant had a prior opportunity for cross-examination. 

Bullcoming v. New Mexico, 131 S. Ct. 2705, 2713 (2011). But 

here, no testimonial “statement” by Dr. Kohlmeier was admitted 

into evidence. The report itself was not admitted and Dr. Keen 

did not testify to any of Dr. Kohlmeier’s conclusions. Instead, 

Dr. Keen testified to his own conclusions regarding Tommar’s 

injuries and did not act as a mere “conduit” for Dr. Kohlmeier’s 

opinions. See State v. Snelling, 225 Ariz. 182, 187 ¶ 19, 236 

P.3d 409, 414 (2010). Thus, there was no error. 

¶12 Finally, Joseph argues that the trial court abused its 

discretion by denying his motion to limit Dr. Keen’s testimony 

and failing to instruct the jury not to consider the facts 

recited by Dr. Keen for their truth. But in Smith, this Court 

concluded that “[e]xpert testimony that discusses reports and 

opinions of another is admissible under [Arizona Rule of 

Evidence 703] if the expert reasonably relied on these matters 

in reaching his own conclusion.” 215 Ariz. at 228 ¶ 23, 159 
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P.3d at 538; see also Williams v. Illinois, 132 S. Ct. 2221, 

2228 (2012) (“Out-of-court statements that are related by the 

expert solely for the purpose of explaining the assumptions on 

which that opinion rests are not offered for their truth and 

thus fall outside the scope of the Confrontation Clause.”) 

(plurality opinion). Similarly, testimony regarding an autopsy 

photograph is not hearsay when offered to show the basis of the 

testifying expert’s opinion and not to prove the truth of prior 

reports or opinions. Smith, 215 Ariz. at 228 ¶ 23, 159 P.3d at 

538. 

¶13 The trial court did not err in permitting Dr. Keen to 

testify about the basis for his conclusions regarding Tommar’s 

injuries and cause of death. Dr. Keen’s testimony did not 

exceed its permissible scope, and he did not offer any matters 

contained in Dr. Kohlmeier’s autopsy report to show their truth. 

Although the trial court might properly have given a limiting 

instruction regarding the use of Dr. Keen’s testimony, Joseph 

did not request one and the failure to give it was not 

fundamental error. 

 B. Enmund/Tison Instructions 

¶14 Joseph contends that the trial court erred by denying 

his request for an Enmund/Tison jury instruction at the 

aggravation phase of trial. We review a trial court’s refusal 

to give requested instructions for an abuse of discretion. 
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State v. Johnson, 212 Ariz. 425, 431 ¶ 15, 133 P.3d 735, 741 

(2006). 

¶15 The jury found Joseph guilty of felony murder for 

killing Tommar during the course of a burglary. The Eighth 

Amendment does not allow the death penalty to be imposed for 

felony murder unless the defendant “himself kill[s], attempt[s] 

to kill, or intend[s] that a killing take place or that lethal 

force will be employed,” Enmund v. Florida, 458 U.S. 782, 797 

(1982), or is a major participant in the crime and acts with 

reckless indifference, Tison v. Arizona, 481 U.S. 137, 157-58 

(1987). Joseph does not dispute that he acted alone in killing 

Tommar. Because Enmund allows imposition of capital punishment 

on a defendant who actually kills a victim in the course of 

committing another felony, 458 U.S. at 797-98, the Eighth 

Amendment did not require that an Enmund/Tison instruction be 

given. 

¶16 Joseph nonetheless asserts that the State failed to 

present sufficient evidence of his intent to kill to support 

imposition of the death penalty. He argues that because the 

felony murder instruction required only a finding that he caused 

Tommar’s death during the course of the felony, without 

reference to any mental state, the one juror who voted for 

felony murder but not premeditated murder might have believed 

that Joseph unintentionally killed Tommar, and such intent 
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cannot suffice to support the death penalty. 

¶17 Joseph misapprehends the Enmund/Tison requirements. A 

defendant convicted of felony murder may receive a death 

sentence regardless of his intent if he actually kills a victim 

during the course of a felony, or if he is a major participant 

along with others in committing the felony and “acts with 

reckless indifference to human life.” State v. Garcia, 224 

Ariz. 1, 15 ¶ 55, 226 P.3d 370, 384 (2010) (citing Tison, 481 

U.S. at 158). 

¶18 Here, the jury found Joseph guilty of felony murder 

because he fatally shot Tommar during the course of first degree 

burglary. The burglary was established because Joseph brought a 

gun into the apartment and remained there unlawfully, intending 

to commit the attempted murders at issue. See A.R.S. §§ 13-

1507, -1508 (2010). Sufficient evidence supports the felony 

murder finding. Enmund required the State to show only that, 

during the commission of a felony, Joseph personally killed 

Tommar, a fact that is not in dispute. The State must show 

“reckless indifference” to human life only when the defendant is 

a major participant in the felony, but is not the actual killer. 

See Garcia, 224 Ariz. at 15 ¶ 55, 226 P.3d at 384 (because the 

defendant was convicted under Tison, the State had to prove 

beyond a reasonable doubt that he had acted as a major 

participant in the crime and was recklessly indifferent to the 
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victim’s life); State v. Bearup, 221 Ariz. 163, 170 ¶ 33, 211 

P.3d 684, 691 (2009) (same); accord People v. Letner, 235 P.3d 

62, 132 (Cal. 2010) (rejecting argument that death sentence 

cannot be imposed on actual killer convicted of felony murder 

absent finding that defendant was a major participant and had a 

culpable mental state). Joseph does not dispute that he shot 

and killed Tommar during the commission of a felony. Thus, 

there is sufficient evidence to support the imposition of the 

death penalty. The trial court did not abuse its discretion by 

not giving an Enmund/Tison instruction in this case. 

 C. Waiver of Mitigation 

¶19 Joseph argues that his waiver of the right to present 

mitigating evidence was “constitutionally invalid” because he 

did not make his waiver knowingly, voluntarily, and 

intelligently. 

¶20 Although a defendant has a “constitutionally protected 

right[] to provide the jury with the mitigating evidence,” 

Williams v. Taylor, 529 U.S. 362, 393 (2000), he may waive that 

right even if mitigating evidence exists, see Schriro v. 

Landrigan, 550 U.S. 465, 476 (2007); accord State v. Hausner, 

___ Ariz. ___, ___ ¶¶ 121-22, ___ P.3d ___, ___ (2012); State v. 

Delahanty, 226 Ariz. 502, 507-08 ¶¶ 28-34, 250 P.3d 1131, 1136-

37 (2011). The Supreme Court has never imposed an “informed and 

knowing” requirement upon a defendant’s decision to waive 
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mitigating evidence, Landrigan, 550 U.S. at 479, but this Court 

requires a voluntary, knowing, and informed waiver of this 

important constitutional right, see Delahanty, 226 Ariz. at 504 

¶ 5, 508 ¶ 34, 250 P.3d at 1133, 1137. 

¶21 We recently addressed this issue in detail in Hausner, 

___ Ariz. at ___ ¶ 122, ___ P.3d at ___, and there set forth the 

inquiries that the trial court should make to determine that the 

defendant (1) understands what mitigation is, the right to 

present mitigation evidence, and the consequences of waiving 

that right, and (2) makes the decision voluntarily. 

¶22 The trial judge here took many of the steps recommended 

in Hausner and repeatedly had Joseph confirm that he understood 

his rights and yet chose not to present any mitigating evidence. 

For example, during a status conference after the guilt phase, 

the judge explained the penalty phase and what mitigation might 

entail: 

As you know, that is the time where the jury considers 

any mitigation evidence they may have found [in] the 

case thus far, and any mitigating evidence they might 

find during the mitigation or penalty phase itself. 

And as I indicated before, it’s a pretty wide open 

presentation. There could be witnesses that could be 

called on your behalf. You can speak on your behalf. 

You can also submit something in writing, if you 

choose, to alert the jury to any factors that you 

believe are mitigating; or in other words, to have 

them render a finding that leniency would be 

appropriate here. 

Joseph replied that he wanted to waive his right to mitigation. 
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After continued discussion, the court reminded Joseph that he 

could do as he chose, but cautioned that the court had to ensure 

that Joseph understood his rights. 

¶23 The trial court explained mitigation to Joseph at 

length. Joseph demonstrated that he understood the consequences 

of the penalty phase by giving such responses as, “there’s no 

mitigation circumstances that I would ask you to feel pity or 

mercy on me. Let the hatchet fall.” His statements satisfied 

the “knowing” requirement. Joseph also stated that “death don’t 

scare me,” reflecting his understanding that his case could 

result in a death sentence and that he could ask the jury for 

“pity or mercy” if he so desired. The court found Joseph 

competent and detailed its reasons for allowing Joseph to waive 

mitigation. 

¶24 Joseph repeatedly expressed his desire not to present 

mitigating evidence. Although defense counsel notified the 

court pursuant to Rule 15.2(h) of certain mitigating 

circumstances that might have helped Joseph’s case and later 

made an offer of proof of mitigating circumstances, Joseph 

voluntarily refused to present any mitigating evidence or 

statements during the penalty phase. We conclude that Joseph’s 

waiver of his right to present mitigation was voluntary, 

knowing, and informed. 
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 D. Review of the Death Sentence 

¶25 Because the murder occurred after August 1, 2002, we 

review the death sentence to “determine whether the trier of 

fact abused its discretion in finding aggravating circumstances 

and imposing a sentence of death.” A.R.S. § 13–756(A) (2010). 

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.” State v. 

Morris, 215 Ariz. 324, 341 ¶ 77, 160 P.3d 203, 220 (2007) 

(internal quotation marks omitted). 

¶26 The jury found two aggravating factors proven: Joseph 

previously had been convicted of a serious offense, A.R.S. § 13-

751(F)(2), and the victim was less than fifteen years of age, 

§ 13-751(F)(9). Joseph does not contest either finding and the 

record supports the jury’s findings. 

¶27 Once an aggravating factor has been established, the 

penalty phase jury determines whether, in light of any 

mitigating circumstances, death is the appropriate penalty. 

A.R.S. §§ 13-751(C), -752(D), (F). 

¶28 Although Joseph elected not to present any mitigating 

evidence, the jury still could consider in mitigation “any 

evidence that was presented at any prior phase of the trial.” 

A.R.S. § 13-752(I). The record, however, shows little 

mitigation. The jury did not abuse its discretion in concluding 
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that the mitigating circumstances were not sufficiently 

substantial to call for leniency. 

III. CONCLUSION 

¶29 We affirm Joseph’s convictions and sentences.2

 _____________________________________ 

 Rebecca White Berch, Chief Justice 

CONCURRING: 

_____________________________________ 

Scott Bales, Vice Chief Justice 

_____________________________________ 

A. John Pelander, Justice 

_____________________________________ 

Robert M. Brutinel, Justice 

 

2

 Joseph did not challenge any of the non-capital convictions 

or sentences. He did raise eighteen claims to avoid federal 

preclusion. Those claims, and the opinions by this Court he 

identifies as rejecting them, are presented verbatim in the 

Appendix. 
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APPENDIX: ISSUES RAISED TO AVOID PRECLUSION 

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

Gregg v. Georgia, 428 U.S. 153, 186-87, 96 S.Ct 2909, 49 L.Ed.2d 

859 (1976); State v. Salazar, 173 Ariz. 399, 411, 844 P.2d 566, 

578 (1992); State v. Gillies, 135 Ariz. 500, 507, 662 P.2d 1007, 

1014 (1983). 

2. Execution by lethal injection is cruel and unusual 

punishment. State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d 602, 

610 (1995). 

3. The death statute is unconstitutional because it fails to 

guide the sentencing jury. State v. Greenway, 170 Ariz. 155, 

164, 823 P.2d 22, 31 (1991). 

4. The statute unconstitutionally fails to require either 

cumulative consideration of multiple mitigating factors or that 

the jury make specific findings as to each mitigating factor. 

State v. Gulbrandson, 184 Ariz. 46, 69, 906 P.2d 579, 602 

(1995); State v. Ramirez, 178 Ariz. 116, 131, 871 P.2d 237, 252 

(1994); State v. Fierro, 166 Ariz. 539, 551, 804 P.2d 72, 84 

(1990). 

5. 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). 

6. Arizona’s death statute insufficiently channels the 

sentencer’s discretion in imposing the death sentence. State v. 

West, 176 Ariz. 432, 454, 862 P.2d 192, 214 (1993); Greenway, 

170 Ariz. at 162, 823 P.2d at 31. 

7. Arizona’s death statute is unconstitutionally defective 

because it fails to require the State to prove that death is 

appropriate. Gulbrandson, 184 Ariz. at 72, 906 P.2d at 605. 

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

unconstitutionally lacks standards. Salazar, 173 Ariz. at 411, 

844 P.2d at 578. 

9. The Constitution requires a proportionality review of a 

defendant’s death sentence. Salazar, 173 Ariz. at 416, 844 P.2d 

at 583; State v. Serna, 163 Ariz. 260, 269-70, 787 P.2d 1056, 

1065-66 (1990). 

10. There is no meaningful distinction between capital and non-
- 15 - 

capital cases. Salazar, 173 Ariz. at 411, 844 P.2d at 578. 

11. Applying a death statute enacted after the Supreme Court’s 

decision in Ring II violates the ex post facto clauses of the 

federal and state constitutions and A.R.S. § 1-244. Ring III, 

204 Ariz. at 545-47 ¶¶ 15-24, 65 P.3d at 926-928. 

12. The death penalty is cruel and unusual because it is 

irrationally and arbitrarily imposed and serves no purpose that 

is not adequately addressed by life in prison. State v. Pandeli, 

200 Ariz. 365, 382, ¶ 88, 26 P.3d 1136, 1153 (2001), vacated on 

other grounds, Ring v. Arizona, 536 U.S 584, 122 S.Ct. 2428, 153 

L.Ed.2d 556 (2002); State v. Beaty, 158 Ariz. 232, 247, 762 P.2d 

519, 534 (1988). 

[13. missing; no text] 

[14. missing; no text] 

15. Arizona’s death penalty statute is unconstitutional because 

it 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, 110 S.Ct. 3047, 111 

L.Ed.2d 511 (1990); State v. Miles, 186 Ariz. 10, 19, 918 P.2d 

1028, 1037 (1996); State v. Bolton, 182 Ariz. 290, 310, 896 P.2d 

830, 850 (1995). State v. Tucker (“Tucker II”), 215 Ariz. 298, 

160 P.3d 177 (2007). 

16. 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 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). 

17. 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). 

18. 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). 
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19. 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). 

20. 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).