IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,

Plaintiff,

v.

HOMER RAY ROSEBERRY,

Defendant.

No. CR-14-0277-PC

Filed July 27, 2015

On Review from the Superior Court in Yavapai County

The Honorable Celé Hancock, Judge

No. CR 20010177

AFFIRMED

COUNSEL:

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor 

General, Lacey Stover Gard, Chief Counsel, Capital Litigation Section, 

Laura P. Chiasson and Jon G. Anderson, Assistant Attorneys General, 

Tucson, Attorneys for State of Arizona

Matthew G. Newman, Newman Law Center PLLC, Parker, Attorneys for 

Homer Ray Roseberry

David J. Euchner, Tucson, Attorney for Arizona Attorneys for Criminal 

Justice

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

JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES

BRUTINEL and TIMMER joined.

JUSTICE BERCH, opinion of the Court:
STATE v. ROSEBERRY

Opinion of the Court

2

¶1 We granted review to determine whether Homer Ray 

Roseberry should receive a new penalty phase hearing based on his claim

that his appellate counsel was ineffective for failing to timely raise the issue 

of an unconstitutional jury instruction. Because Roseberry was not 

prejudiced by the alleged deficiency in counsel’s representation, the trial 

court did not abuse its discretion in denying his petition for post-conviction 

relief.

I. BACKGROUND

¶2 In October 2000, Roseberry agreed to transport approximately

one thousand pounds of marijuana in his motorhome for a drug cartel. State 

v. Roseberry, 210 Ariz. 360, 363 ¶ 4, 111 P.3d 402, 405 (2005). The cartel had 

Fred Fottler accompany Roseberry on the trip. Id. Roseberry and a friend 

concocted a scheme to steal the marijuana. Id. at 363 ¶ 5, 111 P.3d at 405.

But instead of following the plan, Roseberry pulled the motorhome over,

shot Fottler three times while he was sleeping, and dumped his body beside 

the road. Id. at 363 ¶¶ 5–7, 111 P.3d at 405.

¶3 A jury found Roseberry guilty of first-degree murder and,

after finding that he killed Fottler for pecuniary gain, see A.R.S. § 13–

751(F)(5),

1 returned a verdict of death. Roseberry, 210 Ariz. at 364 ¶¶ 15–16, 

111 P.3d at 406. Roseberry’s convictions and sentences were affirmed on 

his automatic appeal to this Court. Id. at 373–74 ¶¶ 77–80, 111 P.3d at 415–

16.

¶4 In 2012, Roseberry filed a petition for post-conviction relief

(“PCR”), claiming, among other issues, that his appellate counsel was 

ineffective for failing to raise on appeal that the trial court improperly 

instructed the jury not to consider mitigation evidence unless the defense 

proved a causal nexus between the mitigation and the crime. The superior 

court denied the claim, finding the issue precluded because it could have 

been, but was not, raised on appeal. See Ariz. R. Crim. P. 32.2(a). The court 

further found that any prejudice caused by appellate counsel’s failure to 

 

1 We cite the current version of statutes that have not materially 

changed since the time of the events at issue.
STATE v. ROSEBERRY

Opinion of the Court

3

timely raise the issue on appeal was cured by this Court’s independent 

review of Roseberry’s convictions and sentences.

¶5 We granted review to clarify that our independent review of 

Roseberry’s death sentence considered all the mitigation evidence 

presented, without requiring a causal connection to the crimes, and we 

found it not sufficiently substantial to call for leniency. Roseberry therefore 

suffered no prejudice from any deficient performance by appellate counsel.

¶6 We have jurisdiction pursuant to Article 6, Section 5(3) of the 

Arizona Constitution.

II. DISCUSSION

¶7 We review a trial court’s denial of post-conviction relief for 

abuse of discretion. State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19, 278 P.3d 1276, 

1280 (2012). We will affirm a trial court’s decision if it is legally correct for 

any reason. State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984).

¶8 Roseberry claims that the PCR court abused its discretion by 

not concluding that his appellate counsel was ineffective for failing to 

timely challenge the trial court’s improper jury instruction. Requiring a 

jury to find a causal nexus between mitigating circumstances and the crime

may prevent jurors from considering all relevant mitigation evidence, in 

violation of the Eighth Amendment. See Tennard v. Dretke, 542 U.S. 274, 285

(2004). Thus, the trial court erred by giving the instruction.2

¶9 Roseberry’s appellate counsel did not timely raise this error

on direct appeal even though Tennard was issued nearly two months before 

the opening brief was filed. Instead, long after all briefing had been 

concluded and a month after oral argument had been held, appellate 

counsel asked this Court to permit the late filing of an amended opening 

brief that included the issue. After review and consideration, we denied 

 

2 The jury returned the death verdict on June 6, 2003. Roseberry, 210 

Ariz. at 364 ¶ 16, 111 P.3d at 406. The opinion in Tennard did not issue until 

June 24, 2004.
STATE v. ROSEBERRY

Opinion of the Court

4

the request, as well as counsel’s subsequent motion for reconsideration of 

our opinion in the case.

¶10 Roseberry now contends that the PCR court abused its 

discretion by denying post-conviction relief on this claim. We disagree. To 

prevail on his claim for ineffective assistance of counsel, Roseberry must 

show that counsel’s performance fell below reasonable standards and that 

the deficient performance prejudiced him. See Strickland v. Washington, 466 

U.S. 668, 687 (1984); see also Ariz. R. Crim. P. 32.8(c). If Roseberry fails to 

establish either element, his claim of ineffective assistance of counsel fails. 

Strickland, 466 U.S. at 697.

¶11 We agree with the PCR court that counsel’s failure to timely 

raise the nexus issue on appeal did not prejudice Roseberry. To establish

prejudice, Roseberry must show that “there is a reasonable probability that, 

absent the errors, the sentencer—including an appellate court, to the extent it 

independently reweighs the evidence—would have concluded that the balance 

of aggravating and mitigating circumstances did not warrant death.” Id. at 

695 (emphasis added). In this case, this Court, in its independent review, 

concluded that the evidence supported a sentence of death. Roseberry, 210 

Ariz. at 373–74 ¶¶ 77–79, 111 P.3d at 415–16.

¶12 It has long been the rule that jurors must be able to consider 

all evidence in mitigation. See, e.g., Payne v. Tennessee, 501 U.S. 808, 822 

(1991) (emphasizing that “a State cannot preclude the sentencer from 

considering ‘any relevant mitigating evidence’ that the defendant proffers 

in support of a sentence less than death” and “virtually no limits are placed 

on the relevant mitigating evidence a capital defendant may introduce”)

(quoting Eddings v. Oklahoma, 455 U.S. 104, 114 (1982)). In reviewing 

Roseberry’s death sentence on direct appeal, this Court was, of course,

aware of the Supreme Court’s then-recent ruling in Tennard, 542 U.S. at 285. 

Indeed, just one week before we issued the opinion affirming Roseberry’s 

death sentence, we issued an opinion explicitly recognizing that “a jury 

cannot be prevented from giving effect to mitigating evidence solely 

because the evidence has no causal ‘nexus’ to a defendant’s crimes.” State 

v. Anderson, 210 Ariz. 327, 349 ¶ 93, 111 P.3d 369, 391 (2005) (quoting

Tennard, 542 U.S. at 282–87). Moreover, we reviewed Roseberry’s amended 
STATE v. ROSEBERRY

Opinion of the Court

5

opening brief, as well as his motion for reconsideration of our opinion, both

of which addressed the causal nexus issue. Thus, although we denied 

Roseberry permission to amend his brief to include the nexus issue, this 

Court was well aware that all mitigation evidence must be considered and 

that its causal relationship to the crimes goes to the weight to be given to 

the evidence, not to its admissibility. See id. Accordingly, any error in the 

jury instruction was cured when this Court considered all mitigation 

evidence in its independent review of the entire record and found it 

insufficient to call for leniency. Roseberry, 210 Ariz. at 373–74 ¶¶ 77–79, 111 

P.3d at 415–16; see also A.R.S. § 13–755 (requiring independent review of 

death sentences).

¶13 For cases involving murders that occurred before August 1, 

2002, like the one at issue here, this Court reviews the entire record and 

independently considers whether a capital sentence is not only legally 

correct, but also appropriate. A.R.S. § 13-755; see 2002 Ariz. Sess. Laws, ch. 

1, § 7(B) (5th Spec. Sess.). On independent review, we do not defer to the

jury’s findings. State v. Prince, 226 Ariz. 516, 539 ¶ 93, 250 P.3d 1145, 1168 

(2011). “When ‘there is a doubt whether the death sentence should be 

imposed, we . . . resolve that doubt in favor of a life sentence.’” State v. 

Carlson, 202 Ariz. 570, 588 ¶ 70, 48 P.3d 1180, 1198 (2002) (quoting State v. 

Valencia, 132 Ariz. 248, 250, 645 P.2d 239, 241 (1982)). On independent 

review this Court will modify a death sentence to a life sentence if 

warranted. See, e.g., State v. Grell, 231 Ariz. 153, 160 ¶ 37, 291 P.3d 350, 357

(2013) (reducing sentence from death to life in prison after finding on 

independent review that defendant proved intellectual disability); State v. 

Wallace, 229 Ariz. 155, 157 ¶ 1, 272 P.3d 1046, 1048 (2012) (same result after 

finding on independent review that the heinous and depraved aggravating 

factor found by the jury was not proven); Carlson, 202 Ariz. at 588 ¶ 70, 48 

P.3d at 1198 (same result after finding on independent review that the 

totality of the evidence raised a substantial question about the 

appropriateness of the death sentence). Consistent with these principles, in 

reviewing Roseberry’s sentence on direct appeal, this Court considered all 

mitigation evidence without regard to its connection to the crimes and 

comprehensively reviewed the record and the sentence.

¶14 Roseberry argues that, because the jury was erroneously 
STATE v. ROSEBERRY

Opinion of the Court

6

instructed, he was denied his constitutional right to have a properly

instructed jury determine his sentence. But independent review serves as 

a constitutional means to cure sentencing errors. Clemons v. Mississippi, 494 

U.S. 738, 748–50 (1990) (holding that an appellate court is constitutionally 

permitted to affirm a death sentence based on independent review of 

mitigating evidence despite an error at sentencing); Gallegos v. Schriro, 583 

F. Supp. 2d 1041, 1082 (D. Ariz. 2008) (stating that “[e]ven if the trial court 

had committed constitutional error at sentencing, a proper and 

independent review of the mitigation and aggravation by the Arizona 

Supreme Court cured any such defect”).

¶15 In this case, the evidence was overwhelming that Roseberry 

killed Fottler so that he could steal the load of marijuana, establishing the

pecuniary gain aggravating circumstance. Roseberry, 210 Ariz. at 369 ¶¶ 46–

51, 111 P.3d at 411.

¶16 As to mitigation, Roseberry was not precluded from 

presenting any evidence. At the penalty phase trial, he presented evidence 

of five statutory and five non-statutory mitigating factors. The five 

statutory mitigating factors presented were causally connected to the crime: 

(1) that Roseberry could not “appreciate the wrongfulness of his conduct or 

. . . conform his conduct to the requirements of law” at the time of the crime, 

A.R.S. § 13–751(G)(1); (2) that he was “under unusual and substantial 

duress” at the time of the crime, id. § (G)(2); (3) that he was only a minor 

participant in the murder, id. § (G)(3); (4) that he “could not reasonably have 

foreseen” that his conduct (shooting a sleeping person three times at close 

range) “would cause . . . death to another person,” id. § (G)(4); and (5) that 

he was fifty-six years old at the time of the crime, id. § (G)(5). The erroneous 

instruction would not have prevented the jury from considering these

mitigating factors because of their close causal connection to the crimes.

¶17 Roseberry also presented evidence of five non-statutory 

mitigating factors: (1) his love of family and his good character; (2) his 

medical conditions, including diabetes, hypertension, sleep apnea, 

asbestosis, depression, and two prior comas; (3) mental impairment; (4) the 

death of his two young children; and (5) his lack of criminal history. This

Court considered all mitigation evidence presented without regard to its 
STATE v. ROSEBERRY

Opinion of the Court

7

connection to the crime (except as it might have affected the weight 

afforded to the evidence) and concluded on independent review that the 

mitigation evidence was not sufficiently substantial to warrant leniency. 

Roseberry, 210 Ariz. at 373–74 ¶¶ 77–79, 111 P.3d at 415–16.

¶18 We therefore conclude that the PCR court did not abuse its 

discretion in denying relief because any deficiency in appellate counsel’s 

performance was cured by this Court’s independent review. Roseberry 

therefore did not suffer prejudice, as that term is defined in Strickland, 466 

U.S. at 695.

III. CONCLUSION

¶19 We affirm the trial court’s order denying post-conviction 

relief.