IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA, 

Appellee, 

v. 

THOMAS MICHAEL RILEY, 

 Appellant, 

No. CR-15-0411-AP

Filed March 10, 2020 

Appeal from the Superior Court in Maricopa County 

The Honorable Peter C. Reinstein, Judge

No. CR2011-008004-002 

CR2013-002559-002 

AFFIRMED

COUNSEL: 

Mark Brnovich, Arizona Attorney General, O.H. Skinner, Solicitor General, 

Lacey Stover Gard (argued), Chief Counsel, Capital Litigation Section, 

Tucson, Attorneys for State of Arizona

James J. Haas, Maricopa County Public Defender, Mikel Steinfeld (argued), 

Deputy Public Defender, Phoenix; Attorneys for Thomas Michael Riley

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

JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, AND JUSTICES

BOLICK, GOULD, BEENE, and PELANDER (RETIRED)* joined.

JUSTICE LOPEZ, opinion of the Court:

¶1 This automatic appeal arises from Thomas Michael Riley’s 

convictions and death sentence for the murder of Sean Kelly. We have 

 

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

Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable 

John Pelander, Justice of the Arizona Supreme Court (Retired), was 

designated to sit in this matter.
STATE V. RILEY

Opinion of the Court

2 

jurisdiction under article 6, section 5(3) of the Arizona Constitution and 

A.R.S. §§ 13-4031, -4033(A)(1).

BACKGROUND

¶2 In June 2008, Riley and Kelly were inmates at the Arizona 

State Prison Complex-Lewis in Buckeye. With the intent of gaining full 

membership into the Aryan Brotherhood (“AB”), a violent prison gang 

composed of white inmates, Riley requested and received authorization 

from the AB to assault Kelly. On June 29, after divulging his plan to three 

other AB prospective members (“probates”), all of whom refused to assist 

and tried to talk him out of the murder, Riley and two accomplices sneaked

into Kelly’s cell and stabbed him with homemade prison knives 114 times.1 

Riley then changed into Kelly’s clothing from his cell, washed up, and 

returned to his cell. Kelly was dead by the time correctional officers and 

medical staff responded to his cell. 

¶3 In the subsequent investigation, correctional officers found 

blood on Riley’s elbows and forearm. Inside Kelly’s cell, investigators 

found a bloody pair of pants with Riley’s inmate card inside its pocket and 

a bloody shirt imprinted with Riley’s inmate number. Inside Riley’s cell, 

investigators found a pair of socks and a t-shirt with Riley’s inmate number, 

both of which had blood on them. Subsequent DNA testing confirmed that 

the blood on Riley, as well as the blood on the socks and t-shirt in his cell, 

matched Kelly’s DNA profile. 

¶4 An investigator discovered that Riley had sent a change-ofaddress form to a book publisher listing his new address as a maximumsecurity facility. The investigator surmised that Riley mailed the form 

before Kelly’s murder because he had been in lockdown since the incident. 

At the time, Riley had not been scheduled for relocation. 

¶5 Nearly two years after Kelly’s murder, another inmate gave 

investigators a letter he had received from Riley, explicitly describing the 

murder. Handwriting analysis, as well as the identification of Riley’s 

fingerprint on the letter, confirmed that he wrote it. In the letter, Riley 

 

1 Investigators suspected that one of Riley’s accomplices was Eric Olsen, an 

inmate living in C Pod in a cell immediately above Kelly’s, who was 

affiliated with the AB. 
STATE V. RILEY

Opinion of the Court

3 

claimed he had stabbed Kelly fifty times and his accomplices had stabbed 

Kelly twenty times each. He also listed three “defining moments” from the 

murder: (1) passing a frightened, young inmate on his way into Kelly’s 

housing area; (2) the look on the face of an inmate who had stumbled onto 

the scene while Riley was washing up; and (3) the sound of Kelly’s last 

breath leaving his limp body. Riley drew a large smiley face after that final 

sentence and signed the letter “Your hero the butcher” in both German and 

English.

¶6 A jury found Riley guilty of first degree murder and assisting 

a criminal street gang. The jury also found five aggravating circumstances: 

Riley was previously convicted of a serious offense; he committed the 

murder in an especially heinous, cruel, or depraved manner; he committed 

the murder while in the custody of the Arizona Department of Corrections

(“ADOC”); he committed the murder to promote, further or assist a 

criminal street gang; and he committed the murder in a cold and calculated 

manner without pretense of moral or legal justification. A.R.S. §§ 13-

751(F)(2), (F)(6), (F)(7)(a), (F)(11), and (F)(13) (2012). Considering these 

factors and the mitigation evidence, the jury found death was the 

appropriate sentence for Kelly’s murder. The trial court also sentenced 

Riley to 11.25 years’ imprisonment, consecutive to the death sentence, for 

the criminal street gang offense.

DISCUSSION

A. Denial of Motion to Change Counsel

¶7 Riley argues the trial court erroneously denied his motion to 

change counsel. We review the court’s denial of a request for new counsel 

for abuse of discretion. State v. Hernandez, 232 Ariz. 313, 318 ¶ 11 (2013). 

An abuse of discretion occurs when “the reasons given by the court for its 

action are clearly untenable, legally incorrect, or amount to a denial of 

justice.” State v. Chapple, 135 Ariz. 281, 297 n.18 (1983), superseded by statute 

on other grounds. 

¶8 On August 25, 2013, nearly two years after the initial 

indictment and two years before trial, Riley filed a motion to change his 

lead counsel, Randall Craig, on a pre-prepared form that provided no 

factual basis for the request. Craig responded by informing the court in 

writing “that communication between Defendant and Counsel now ceases 
STATE V. RILEY

Opinion of the Court

4 

to exist. Defendant is no longer accepting Counsel’s advice.” Craig also 

stated, “A mutual distrust exists between Defendant and Counsel. Counsel 

has tried to repair the damaged relationship but has been unable to do so.” 

Ultimately, he urged the court to grant the motion to ensure Riley 

“receive[d] adequate assistance of counsel.”

¶9 On September 11, the trial court held a hearing to address 

Riley’s motion. After noting the lack of grounds supporting the motion, the 

court asked Riley if he had anything to add. Riley made general statements 

regarding the lack of communication, cooperation, and trust between him 

and Craig, dating back six to eight months. The court informed Riley he 

was entitled to competent counsel, not “a great relationship,” and observed 

that both of Riley’s attorneys were competent. Riley complained Craig was 

frequently unreachable and had only spent four hours at the prison

discussing Riley’s case with him in the preceding year-and-a-half. Riley 

stated that his relationship with Craig had “clearly deteriorated to where 

there is no trust at all.”

¶10 When questioned by the court, Craig stated, “[W]ith all 

candor to the court, I must say we aren’t communicating. I have to be 

honest with that fact. We are not. He doesn’t seem to like me.” After the 

court noted that Riley did not have to like his attorneys, Craig stated, “I 

understand. And that’s all that I am going to say at this point.” The court 

then informed Riley that it was not inclined to grant the motion “without 

more.” Riley added that Craig had failed to show up to four or five 

scheduled meetings at the prison, had failed to conduct witness interviews, 

and had failed to appear at an appointment to view the crime scene. In 

response to the trial court’s observation that Craig appeared to be preparing 

his defense, as evidenced by his hiring mitigation specialists and an 

investigator, Riley conceded that “[t]he mitigation aspect is ahead of 

schedule. I will give him credit.” After Riley finished his argument and 

after a brief recess, the trial court denied Riley’s motion to change lead 

counsel.

¶11 Craig continued as Riley’s counsel after the trial court denied 

the motion to change counsel. Craig served as Riley’s advisory counsel 

during his brief period of self-representation (April 1, 2015–October 5, 2015) 

and then resumed his role as lead counsel during the trial. Riley did not 

renew his motion to change counsel.
STATE V. RILEY

Opinion of the Court

5 

¶12 The Federal and Arizona Constitutions guarantee criminal 

defendants the right to representation by competent counsel. State v. 

Goudeau, 239 Ariz. 421, 447 ¶ 77 (2016) (citing U.S. Const. amend. VI; Ariz. 

Const. art. 2, § 24; A.R.S. § 13-114(2); State v. LaGrand, 152 Ariz. 483, 486 

(1987)). An indigent defendant, however, is not “entitled to counsel of 

choice, or to a meaningful relationship with his or her attorney.” State v. 

Torres, 208 Ariz. 340, 342 ¶ 6 (2004) (quoting State v. Moody (“Moody I”), 192 

Ariz. 505, 507 ¶ 11 (1998)). “But when there is a complete breakdown in 

communication or an irreconcilable conflict between a defendant and his 

appointed counsel, that defendant’s Sixth Amendment right to counsel has 

been violated” and a resulting conviction must be reversed. Id.; accord 

Moody I, 192 Ariz. at 509 ¶ 23. 

¶13 To preserve a defendant’s Sixth Amendment right to counsel, 

the trial court has a “duty to inquire as to the basis of a defendant’s request 

for substitution of counsel.” Torres, 208 Ariz. at 343 ¶ 7. During this

inquiry, the defendant bears the burden of proving either a “complete 

breakdown in communication or an irreconcilable conflict.” Id. at 342 ¶ 6. 

“To satisfy this burden, the defendant must present evidence of a ‘severe 

and pervasive conflict with his attorney or evidence that he had such 

minimal contact with the attorney that meaningful communication was not 

possible.’” Hernandez, 232 Ariz. at 318 ¶ 15 (quoting United States v. Lott, 

310 F.3d 1231, 1249 (10th Cir. 2002)). A defendant must show more than 

“personality conflicts or disagreements with counsel over trial strategy.” 

State v. Cromwell, 211 Ariz. 181, 187 ¶ 30 (2005). A defendant’s claims 

against his attorney of ineffective trial preparation and failure to 

communicate, when unsupported by the record, are generally 

characterized as disagreements over trial strategy. See Hernandez, 232 Ariz. 

at 321 ¶ 33. 

¶14 In response to Riley’s complaints, Craig acknowledged that 

“communication between Defendant and counsel now ceases to exist,” 

which is precisely the situation that, if true, would entitle Riley to 

substitution of counsel. Craig added that mutual distrust existed with his 

client, that efforts to repair the relationship were unsuccessful, and that the 

motion should be granted to ensure Riley received adequate counsel. But 

the “mere possibility that the defendant had a fractured relationship with 

counsel does not amount to structural error.” Torres, 208 Ariz. at 344 ¶ 12. 

The trial court was entitled to delve into the substance behind the assertions

and, in doing so, it found the basis for substitution wanting.
STATE V. RILEY

Opinion of the Court

6 

¶15 At the hearing, Riley alleged that Craig failed to conduct any 

interviews and failed to appear for an appointment to view the crime scene. 

We have repeatedly rejected these types of complaints as disagreements 

over trial strategy, which do not amount to irreconcilable differences. See 

Goudeau, 239 Ariz. at 447 ¶ 76, 448 ¶ 84; State v. Henry, 189 Ariz. 542, 547 

(1997). Riley’s primary complaint against Craig at the hearing, however, 

was lack of communication. Riley alleged Craig had only met with him for

a total of four hours in the preceding year and a half and had missed several 

appointments to meet with him in prison. Craig agreed in his response to 

Riley’s motion and at the hearing that his communications with Riley had 

ceased to exist.

¶16 We have historically required “intense acrimony and depth of 

conflict” before finding a complete breakdown in communication and

requiring new counsel. See Cromwell, 211 Ariz. at 188 ¶ 37; see also 

Hernandez, 232 Ariz. at 318 ¶ 16, 321 ¶ 36 (finding no abuse of discretion 

even though defendant alleged only four visits with counsel over the course 

of two years). Riley attempts to compare his minimal interactions with his 

attorney to those between the defendant and his attorney in Moody I. But 

the Moody I record was “replete with examples of a deep and irreconcilable 

conflict” between the defendant and his attorney. 192 Ariz. at 507 

¶ 13. Moody accused his lawyer and the lead public defender of being 

“incompetent and crazy.” Id. at 508 ¶ 16. He developed an “obsessive 

hatred” for his attorney and the public defender’s office and, on at least one 

occasion, he and his attorney were “almost at blows” with one 

another. Id. Moody believed his lawyers were conspiring with the 

prosecutor, the court, and the doctor tasked with evaluating his 

competency to have him declared insane. Id. He also threatened to file 

ethical complaints against his lawyer and the public defender’s 

office. Id. ¶ 18. None of these examples of “intense acrimony and depth of 

conflict” is present here. See also Torres, 208 Ariz. at 343 ¶ 9 (“[Defendant] 

presented specific factual allegations that raised a colorable claim that he 

had an irreconcilable conflict with his appointed counsel.”).

¶17 On the contrary, despite Riley’s and Craig’s claim of an 

irreconcilable conflict or a complete breakdown in communications, the 

record belies their stark characterization of their relationship. Riley gave 

Craig’s defense team “credit” for their efforts in preparing mitigation. 

Riley’s knowledge of the status of his case further demonstrates that he and 
STATE V. RILEY

Opinion of the Court

7 

Craig were communicating about his defense. In fact, Riley regularly 

corresponded with Craig in writing before the change of counsel hearing, 

albeit primarily to complain about the frequency of Craig’s visitation and 

status reports, but their substantive written correspondence continued after 

denial of his motion. Thus, because Riley failed to demonstrate an 

irreconcilable conflict or a completely fractured relationship with Craig, the 

trial court was not required to appoint new counsel. See Cromwell, 211 Ariz. 

at 186 ¶ 29. 

¶18 To the extent Riley faults the trial court for failing to conduct 

further inquiry into the source of his alleged conflict with Craig, Riley and 

Craig effectively foreclosed further inquiry. For his part, Riley explained 

the reasons for his dissatisfaction, which the trial court deemed insufficient 

to require new counsel. Craig simply noted that “[Riley] doesn’t seem to 

like me” and “that’s all I’m going to say at this point.” Moreover, neither 

Riley nor Craig requested or intimated that an ex parte hearing was 

necessary to determine the source of the alleged conflict. Under these 

circumstances, the record does not support Riley’s assertion of an 

irreconcilable conflict or complete breakdown in communications.

¶19 If the defendant shows “[c]onflict that is less than 

irreconcilable,” a trial court should consider the conflict as a factor among 

several other factors in determining whether to appoint new counsel. Id.

¶ 29. The other factors—often referred to as the LaGrand factors—are: 

(1) “whether new counsel would be confronted with the same conflict;” 

(2) “the timing of the motion;” (3) “inconvenience to witnesses;” (4) “the 

time period already elapsed between the alleged offense and trial;” (5) “the 

proclivity of the defendant to change counsel;” and (6) the “quality of 

counsel.” Id. at 187 ¶ 31 (quoting LaGrand, 152 Ariz. at 486–87). 

¶20 These factors tend to favor substitution here, save the last, 

given that no dispute exists that Riley’s counsel was competent. But 

“quality of counsel” was the only one of the six factors that the trial court 

expressly considered. The State acknowledged that different counsel 

would probably not have the same conflict. Although the request for 

substitution occurred well into trial preparation, no trial date was yet 

scheduled, so the case presumably could have proceeded without 

significant disruption as Riley showed no prior proclivity toward 

substituting counsel. See Moody I, 192 Ariz. at 509–10 ¶ 21. 
STATE V. RILEY

Opinion of the Court

8 

¶21 Applying the LaGrand factors against the backdrop of Craig’s 

avowal of a complete breakdown in communication, there were clear 

grounds to grant the motion. However, because the trial court conducted 

a hearing to determine whether there was an actual breakdown in the 

attorney/client relationship, we review the trial court’s decision to deny the

request for an abuse of discretion. Goudeau, 239 Ariz. at 446 ¶ 68. In 

denying Riley’s motion to change counsel, the trial court did not refer to the 

LaGrand factors and gave no explicit reasons for denying the motion. But 

this Court may affirm on any basis in the record. See, e.g., State v. Robinson, 

153 Ariz. 191, 199 (1987).

¶22 Based on the hearing, it appears that the core of Riley’s claims 

against Craig regarding the cause of their asserted breakdown in 

communication was rooted in disagreements over trial strategy. 2 But “[a]

single allegation of lost confidence in counsel does not require the 

appointment of new counsel, and disagreements over defense strategies do 

not constitute an irreconcilable conflict.” Cromwell, 211 Ariz. at 186 ¶ 29;

Hernandez, 232 Ariz. at 321 ¶ 33. Moreover, the trial court witnessed Riley 

and Craig interact for more than a year which led to the trial court’s 

conclusion that Riley’s lead counsel was providing competent 

representation. Accordingly, the trial court did not abuse its discretion 

when it denied Riley’s motion to change lead counsel, and Riley is not 

entitled to relief on this issue.

¶23 Finally, even if the trial court abused its discretion in denying

Riley’s change of counsel motion, it is subject to harmless error review 

because Riley failed to prove an irreconcilable conflict or complete 

breakdown in communication. Cf. Torres, 208 Ariz. at 343–44 ¶¶ 11–13 

(holding that structural error applies to only a few enumerated situations 

and the harmless error standard applies to a trial judge’s summary denial 

of a motion to change counsel); see also State v. Ring (III), 204 Ariz. 534, 552–

53 ¶ 46 (2003) (“The Supreme Court has defined relatively few instances in 

 

2 Riley’s trial strategy dispute with Craig persisted after the trial court 

denied his motion for new counsel. On April 1, 2015, when the trial court 

granted Riley’s motion for self-representation, Riley clarified that the basis 

for his motion was that he and Craig were “at odds with strategy and the 

direction of the case.” But Riley also emphasized the importance of 

retaining “the same team as [his] legal advisors” because they had been 

working on the case together for three and a half years.
STATE V. RILEY

Opinion of the Court

9 

which we should regard error as structural.”). It is difficult to understand 

how any error caused an unfair trial given that Riley does not contest that 

his counsel was competent; and indeed, Riley complains here about issues 

that arose when he self-represented or rejected his attorney’s advice. Riley 

is not foreclosed from raising issues concerning inadequate representation 

in subsequent proceedings, but we conclude that his Sixth Amendment 

right to counsel was not violated in light of the evidence before the trial 

court.

B. Description of Aggravating Factors in Juror Questionnaire 

¶24 Riley argues the juror questionnaires erroneously described 

Arizona’s aggravating factors as “very few” and “very specific,” which 

created an illegitimate eligibility factor that the State never proved. Because 

Riley did not object to the language in the questionnaires at trial, we review 

for fundamental error. See State v. Anderson, 210 Ariz. 327, 341 ¶ 45 (2005). 

Under fundamental error review, the defendant bears the burden to 

establish that (1) error exists, (2) the error is fundamental, and (3) the error 

caused him prejudice. State v. Escalante, 245 Ariz. 135, 140 ¶ 21 (2018); State 

v. Bearup, 221 Ariz. 163, 168 ¶ 21 (2009); see also State v. Henderson, 210 Ariz. 

561, 567–68 ¶¶ 19–20 (2005). An error is fundamental when it “goes to the 

foundation of [the defendant’s] case, takes away a right that is essential to 

[the defendant’s] defense, [or] is of such magnitude that [the defendant] 

could not have received a fair trial.” Henderson, 210 Ariz. at 568 ¶ 24 (citing 

State v. Hunter, 142 Ariz. 88, 90 (1984)); see also Escalante, 245 Ariz. at 140 

¶ 16 (holding that the three prongs for determining when an error is 

fundamental are disjunctive). 

¶25 At the beginning of jury selection, the trial court provided 

jurors with written questionnaires. Both Riley (then pro per) and the 

prosecutor reviewed and approved the questionnaire at a status conference 

prior to trial. In describing the penalty phase of the trial, the questionnaire 

stated:

The penalty phase of the trial may contain two 

parts. The state must first prove beyond a 

reasonable doubt that one or more aggravating 

circumstances exist for a defendant to be eligible 

for a death sentence. Aggravating 

circumstances are set forth in the law. The law 
STATE V. RILEY

Opinion of the Court

10 

allows only a very few and very specific aggravating 

circumstances to be used, if proven beyond a 

reasonable doubt, to make a defendant convicted of 

Murder in the First Degree eligible for a death 

sentence. 

(emphasis added). The portion emphasized above was also repeated as an 

introduction to Question 59 of the questionnaire. 

¶26 While questioning one of the jurors during voir dire, Riley 

highlighted the “very few” and “very specific” language, asking the 

prospective juror whether he or she agreed with the statement made in the 

preamble to Question 59. After reading the statement twice verbatim, Riley 

reworded the statement as follows:

In layman’s terms, there is a [sic] very few 

criteria that qualify a murder from being a 

murder to being a capital murder warranting 

the death penalty, and you would have to agree 

and follow those rules and not allow other 

subjectivity to come in to make your decision on 

that.

Riley then asked the prospective juror whether he or she would follow 

those instructions.

i. Legal Accuracy of the Statement

¶27 Although the court provided further instructions to the jurors 

regarding the aggravating factors during both the aggravation and penalty 

phases of the trial, neither the court nor the parties ever used the “very few” 

or “very specific” language again during the trial.

¶28 Riley argues (1) the statement in the jury questionnaire 

describing Arizona’s aggravating factors as “very few” and “very specific” 

misstates the law; (2) that misstatement created an unproven, invalid 

sentencing factor that constituted fundamental error; and (3) he was 

prejudiced by this error because it led the jury to believe that he was one of 

only a “very few” individuals eligible for the death penalty.
STATE V. RILEY

Opinion of the Court

11 

¶29 The legal accuracy of the description of Arizona’s aggravators 

as “very few” is debatable. Both Riley and the State recognize that the 

statement provided a subjective description of the number of statutory

aggravating factors in Arizona. But while Riley argues that thirty different 

aggravating circumstances (ten individual circumstances with a total of 

twenty sub-parts) cannot reasonably equate to a “very few,” the State, 

ironically, relies solely on the semantic ambiguity of the description to 

defend the statement’s legal accuracy. At most, the description of Arizona’s 

aggravators as “very few” is ambiguous and irrelevant. 

¶30 The description of Arizona’s aggravators as “very specific,” 

however, likely misstates the law. To pass constitutional muster, 

aggravators must “not apply to every defendant convicted of a murder, but 

only to a subclass, and the aggravating circumstance may not be overly 

vague.” State v. Hausner, 230 Ariz. 60, 82 ¶ 99 (2012) (citing Tuilaepa v. 

California, 512 U.S. 967, 972 (1994)). We have repeatedly upheld the 

constitutionality of Arizona’s aggravators, especially those deemed facially 

vague, based on the “adequate specificity” of narrowing constructions in 

jury instructions. See, e.g., Anderson, 210 Ariz. at 352–53 ¶¶ 109–14 

(addressing constitutionality of (F)(6) aggravator). Undoubtedly then, 

Arizona’s aggravators must contain some specificity to overcome challenges 

for vagueness. But there is a substantial semantic difference between “not 

overly vague” and “very specific.” More to the point, there is a noteworthy 

distinction between “adequately specific” and “very specific.”

¶31 Accordingly, because all or part of the statement likely 

misstates the law, Riley has fulfilled the first requirement to prove

fundamental error. See supra ¶ 24 

ii. Fundamental Nature of the Error

¶32 Assuming the statement misstates the law, its single 

appearance in the jury questionnaire was insufficient to constitute 

fundamental error. Riley must also prove that the error went to the 

foundation of his case, took away a right essential to his defense, or was of 

such magnitude that he could not have received a fair trial. See Henderson, 

210 Ariz. at 568 ¶ 24 (citing State v. Hunter, 142 Ariz. 88, 90 (1984)); see also 

Escalante, 245 Ariz. at 140 ¶ 16 (holding that the three prongs for 

determining when an error is fundamental are disjunctive). 
STATE V. RILEY

Opinion of the Court

12 

¶33 Riley contends the error was fundamental as it prevented him 

from receiving a fair trial because (1) the statement implied that the court 

had conducted some narrowing function that identified Riley as “one of 

only ‘a very few’ individuals that could actually be put to death” and (2) the 

subjective nature of the statement left its meaning “open to any 

interpretation each juror wished to assign.” According to Riley, this 

implication—and the jury’s acceptance of it—created an unproven 

eligibility factor or aggravator.

¶34 Riley exaggerates the impact of the statement. Immediately 

before the statement, the questionnaire stated, “The state must first prove 

beyond a reasonable doubt that one or more aggravating circumstances 

exist.” This informed the jurors of the proper order of proceedings and the 

State’s burden to prove at least one aggravating factor, rendering the 

subsequent challenged statement irrelevant. Moreover, during voir dire, 

after the jurors had completed the questionnaire, Riley explained the 

statement “in layman’s terms,” emphasizing that jurors had to rely on the 

aggravating factors, not “other subjectivity,” to impose the death penalty. 

After voir dire, neither the trial court nor the State ever repeated the 

statement at issue; instead the trial court reiterated the State’s burden of 

proof in both the aggravation and penalty phases of the trial. 

¶35 Contrary to Riley’s assertion, the statement did not insert an 

additional eligibility factor or aggravator. At no point did the trial court or 

the State assert—or even imply—that Riley’s eligibility for the death 

penalty had been predetermined before trial based on the number or 

specificity of Arizona’s aggravators. In the unlikely event that a juror 

inferred as much from the jury questionnaire on the first day of trial, the 

trial court’s repeated instructions regarding the State’s burden of proof in 

the subsequent months of trial surely disavowed any such inference by the 

time the jury found more than a month later that the State had proven all 

five alleged aggravating circumstances.

¶36 Accordingly, because the misstatement error did not go to the 

foundation of Riley’s case, did not take away a right that was essential to 

his defense, and was too insignificant to impact the fairness of his trial, Riley 

has failed to meet his burden to prove fundamental error and is not entitled 

to relief on this issue.
STATE V. RILEY

Opinion of the Court

13 

C. Failure to Question Jurors on Questionnaire Answers Sua 

Sponte

¶37 Riley argues the trial court erred by failing to question Jurors 

1 and 16 sua sponte based upon their answers on the juror questionnaires. 

Because Riley did not raise a challenge to either of these jurors for cause, 

we review this claim for fundamental error. See State v. Bible, 175 Ariz. 549, 

573 (1993). 

¶38 On the juror questionnaire, Juror 1 answered “no” to 

Question 40, which asked whether she agreed that a defendant is not 

required to present any evidence. In explaining her disagreement on the 

questionnaire, she asked, “Without being totally familiar with the law—

how can a defendant defend themselves without presenting evidence?” In 

a follow-up question asking whether she could follow this law even if she 

disagreed with it, Juror 1 answered “yes.”

¶39 During voir dire involving Juror 1, the court, the prosecutor, 

and Riley all explained the State’s burden of proving all elements beyond a 

reasonable doubt and that the defendant had no obligation to testify or 

present evidence. The prosecutor asked all jurors whether any of them had 

any questions about the process or any additional information relevant to 

whether he or she should serve as a juror. No juror replied affirmatively.

¶40 On her questionnaire, Juror 16 answered “yes” to Question 

51, which asked whether she believed that a law enforcement officer is 

always more believable in giving testimony than is a lay person. In 

answering Question 52, she stated she could follow the court’s instruction 

that a law enforcement officer is not entitled to any greater believability 

than any other witness by virtue of his or her position as a law enforcement 

officer. She also disclosed that her father is a retired sheriff’s deputy and 

her sister-in-law is an attorney with the San Francisco District Attorney’s 

Office.

¶41 The prosecutor did not question Juror 16 directly during voir 

dire. But he questioned two other jurors who also answered affirmatively 

for Question 51, and he acknowledged there were other jurors who had 

answered similarly. The prosecutor asked the panel whether they could 

follow the court’s instruction that all witnesses were initially entitled to the 

same credibility, and all the jurors agreed.
STATE V. RILEY

Opinion of the Court

14 

¶42 After several jurors mentioned having family members who 

worked in law enforcement, the prosecutor asked “everyone who has law 

enforcement in their family or friends” whether there was “[a]nything 

about those relationships that would affect your ability to be [a] fair and 

impartial juror?” All prospective jurors except one—who was not 

impaneled on the jury—shook their heads in the negative. During the voir 

dire proceedings involving Jurors 1 and 16, Riley failed to question either 

of them about their answers at issue here, and he did not move to strike 

either juror.

i. Failure to Question or Strike Jurors

¶43 Riley argues that the trial court erred by failing to question, 

sua sponte, Jurors 1 and 16 to determine whether those jurors could render 

a fair and impartial verdict. By alleging that both jurors had biases that 

prevented them from rendering such a verdict, Riley necessarily implies 

that the trial court erred by failing to strike these jurors. See State v. 

Velazquez, 216 Ariz. 300, 306–07 ¶ 18 (2007) (“A defendant is entitled to ‘a 

fair trial by a panel of impartial, indifferent jurors.’” (quoting Morgan v. 

Illinois, 504 U.S. 719, 727 (1992))). Riley’s argument is unpersuasive.

¶44 A trial court does not err by failing to question a juror who 

indicates a disagreement with, or a misunderstanding of, the law if that 

juror also indicates that he can be fair and impartial, that he will follow the 

law, and that he has gained understanding of the law he previously 

misunderstood. See Bible, 175 Ariz. at 573. Furthermore, “the trial judge’s 

invitation to counsel to ask follow-up questions mitigates any deficiency in 

the court’s questioning.” State v. Moody (“Moody II”), 208 Ariz. 424, 452 ¶ 98 

(2004). 

¶45 In Bible, one of the seated jurors in a death penalty case 

indicated on the jury questionnaire that “he would not treat the testimony 

of police officers as he would other witnesses, did not understand that the 

State had the burden of proof for each element, and did not agree with the 

presumption of innocence.” 175 Ariz. at 573. Neither the trial court nor the 

parties conducted follow-up oral inquiry with the juror. Id. We held that it 

was not fundamental error to allow the juror to sit because he subsequently 

“indicated that he could fairly and impartially listen to and weigh the 

evidence and render a verdict in accordance with the law,” he “understood 
STATE V. RILEY

Opinion of the Court

15 

that the State had the burden of proof beyond a reasonable doubt,” and he 

“expressed no disagreement with the presumption of innocence, the jury’s 

duty to judge credibility, or the State’s burden to prove guilt beyond a 

reasonable doubt.” Id. We concluded “follow-up oral inquiry of [the] juror 

would have been appropriate,” but it was “[n]either error [n]or 

fundamental error for the judge to have failed to sua sponte strike the 

[juror] for cause.” Id. at 573–74. 

¶46 Here, although Juror 1 initially disagreed that a defendant 

need not present evidence, she clarified that her disagreement was based 

on a lack of understanding of the law. Addressing the very next question, 

the juror indicated affirmatively that she would follow this law even if she 

did not agree with it. During subsequent voir dire, she gave no indication 

that she could not or would not hold the State to its burden of proof. 

¶47 Juror 16 answered in her questionnaire that a law 

enforcement officer is more believable than a lay witness. She also 

indicated that she had family who worked in law enforcement, but unlike 

the juror in Bible, Juror 16 answered affirmatively that she would consider 

the testimony of law enforcement as she would the testimony of any other 

witness. Along with other jurors on the panel, she also agreed to follow the 

court’s instructions to gauge the credibility of witnesses equally. When 

asked whether anything about her relationship with law enforcement 

would affect her ability to be fair and impartial, she responded “no” with 

the rest of the panel.

¶48 Furthermore, Riley had full opportunity to question Jurors 1 

and 16 regarding their answers on the questionnaire, but he failed to do so. 

Both jurors gave sufficient indication that they would be fair and impartial, 

and the trial court did not err by failing to question or strike them from the 

jury.

¶49 Riley relies on Morgan v. Illinois, 504 U.S. 719 (1992) for the 

proposition that a juror’s acknowledgement on a jury form that he could 

follow the law is insufficient to adequately examine a juror’s potential 

biases. Although the United States Supreme Court held that such an 

acknowledgement would be insufficient to ascertain a potential juror’s 

beliefs about the death penalty, Morgan, 504 U.S. at 734–35, neither of the 

juror questions at issue queried the jurors’ death penalty views. 

Accordingly, Morgan has no bearing on this issue.
STATE V. RILEY

Opinion of the Court

16 

¶50 Riley also argues that Arizona Rule of Criminal Procedure

18.5(d) requires trial courts to conduct oral examinations of each juror. 

Although the rule requires a court to “conduct a thorough oral examination 

of the prospective jurors and control the voir dire examination,” it only 

requires a court to probe a prospective juror’s willingness to follow the law 

“where the trial judge is left with the definite impression that a prospective 

juror would be unable to faithfully and impartially apply the law” or in 

cases of “heightened danger of juror prejudice or bias” from media exposure. 

See Wainright v. Witt, 469 U.S. 412, 425–26 (1985) (emphasis added); Bible, 

175 Ariz. at 572 n.12 (emphasis added). These factors are not present here.

ii. Lack of Prejudice 

¶51 Even if the trial court erred, Riley “must demonstrate not only 

that the voir dire examination was inadequate, but also that, as a result of 

the inadequate questioning, the jury selected was not fair, unbiased, and 

impartial.” Moody II, 208 Ariz. at 451 ¶ 95. “Prejudice will not be presumed 

but must appear affirmatively from the record.” State v. Hoskins, 199 Ariz. 

127, 141 ¶ 48 (2000). Riley fails to meet this burden.

¶52 Riley claims that the record supports a finding of prejudice 

resulting from Juror 1’s response because it indicated that even though she 

was willing to follow the law, she did not understand or agree with it. This 

argument is unpersuasive. Juror 1’s initial response indicates that she did 

not understand the law and was, therefore, confused as to how a defendant 

could win his case without presenting evidence. This confusion was 

unquestionably dispelled by the trial court’s and both parties’ repeated 

reference to the burden of proof. After being informed of this burden, Juror 

1—along with the rest of the panel on October 5, 2015—raised no further 

questions for clarification.

¶53 Riley also claims the prosecutor’s rebuttal closing argument 

in the guilt phase contributed to the prejudice. At that time, the prosecutor 

stated: 

I have to say, [the defense attorney]’s right. I’ve 

got news for you. Every party has the power to 

subpoena through the Court any witness. He’s 

right. He has subpoena power. Does that mean 
STATE V. RILEY

Opinion of the Court

17 

he has to do it? No. Of course not. I have the 

burden of proof. I always do. But just as we can 

say no inmates testified to—that Tommy Riley 

did it, no inmates testified that Tommy Riley 

wasn’t there. No inmates from A Pod testified 

that, “Hey, you know what? I saw him. He 

wasn’t in C Pod.”

According to Riley, these statements were “tailored to appeal to Juror 1’s 

belief” because they insinuated that Riley failed to call witnesses to support 

his defense. This argument is equally unpersuasive. A prosecutor may 

properly comment on a defendant’s failure to present exculpatory evidence 

which would substantiate defendant’s theory, provided the remark is not a 

comment on the defendant’s silence. State ex rel. McDougall v. Corcoran, 153 

Ariz. 157, 160 (1987). 

¶54 Here, the prosecutor merely commented on Riley’s failure to 

present witnesses to support the theory of his defense. In his closing 

argument, Riley’s attorney stated, “[N]obody came forward to say Riley 

and [his cellmate Dennis] Levis did this. You heard no eyewitness 

testimony.” Before making the statements at issue, the prosecutor explicitly 

told the jury, “[A]s the judge told you, [the defendants] are not obligated to 

put on anything and that never changes. And nothing I say, suggest, it is 

not a wink and a nod. That never ever changes. We always have the 

burden.” During closing arguments alone, the jury heard numerous 

times—from the judge, Riley’s attorney, and the prosecutor—that the State 

bore the burden of proof. Nothing in the prosecutor’s statements expressly 

or impliedly directed the jury’s attention to Riley’s failure to testify. Rather, 

the prosecutor simply maintained that Riley was free to produce witness 

testimony favorable to his defense.

¶55 Regarding Juror 16, Riley asserts that he was prejudiced by 

the juror’s bias in favor of law enforcement officers because the “trial court 

did not ascertain how deeply held her bias was or if she would feel 

pressured to return a guilty verdict because she was concerned about her 

deputy father’s or her prosecutor sister-in-law’s opinion if she did not.” But 

this is not evidence of bias; it is an expression of potential or presumed bias. 

See Hoskins, 199 Ariz. at 141 ¶ 48 (“Prejudice will not be presumed but must 

appear affirmatively from the record.”).
STATE V. RILEY

Opinion of the Court

18 

¶56 In sum, Riley has failed to show that he was prejudiced, and 

he is not entitled to relief.

D. Admission of Alleged Inadmissible Evidence

¶57 Riley argues the trial court erred by admitting evidence in 

violation of the Arizona Rules of Evidence that, coupled with the 

prosecutor’s arguments, deprived him of a fair trial. 

i. Evidence of Kelly’s Time in Protective Custody

¶58 The State presented evidence that Kelly was placed in 

protective custody in 2002, six years before his murder, because he had 

refused an order to commit violence against another inmate and that his 

prior protective custody status made him a target of the AB. Riley argues 

that the trial court erred in admitting this evidence because (1) Kelly’s prior 

custody status was irrelevant; (2) since Kelly’s prior protective custody 

status was irrelevant, the reason given for it—that Kelly was put in 

protective custody because he “had a target on his back” because he refused 

to commit a violent act during a previous incarceration—was also 

irrelevant; and (3) the State failed to establish a foundation that Riley knew 

that Kelly was previously in protective custody which was a prerequisite to 

proving Riley’s motive. Because Riley did not object to the admission of 

this evidence at trial, we review these claims for fundamental error. See 

Anderson, 210 Ariz. at 341 ¶ 45. 

¶59 Keland Boggs, a special investigator for the ADOC, testified 

for the State that “the only sure way to gain membership into the [AB] is to 

commit a homicide of a target of the [AB].” Boggs further explained that 

inmates who entered an Arizona prison with gang-related “political ink” 

and who refused to commit an act of violence to earn that tattoo “could be 

targeted to be killed” and that they commonly requested protective 

custody. 

¶60 Officer William Dziadura, an ADOC criminal investigations 

manager, testified for the State that Kelly had been in protective custody in 

2002 after refusing a request from “influential white inmates to assault 

another inmate.” When Kelly refused the request, he was told “to cover up 

some lightning bolts tattoo that he had on his person or be injured.” Officer 
STATE V. RILEY

Opinion of the Court

19 

Dziadura also testified that inmates in protective custody were “perceived 

as being weak.” 

¶61 During his opening statement, the prosecutor noted that Kelly 

“had a target on his back” because “he refused to commit an act of violence 

on another inmate.” He declared that “in the world of the [AB], that’s 

weakness. And weak inmates are targets for men who want membership 

in the [AB].” The prosecutor later stated in his penalty phase rebuttal 

closing argument that “[y]ou don’t have two more different people, Sean 

Kelly, who had to go to protective custody because he wouldn’t be a part 

of that world, and the defendant, who executed him.”

¶62 Evidence is relevant if “it has any tendency to make a fact 

more or less probable than it would be without the evidence . . . .” Ariz. R. 

Evid. 401(a). “[M]otive is relevant in a murder prosecution.” State v. 

Hargrave, 225 Ariz. 1, 8 ¶ 14 (2010). 

¶63 The State’s theory was that Riley targeted Kelly because he

had spent time in protective custody, which gangs like the AB viewed as a 

weakness. In fact, Riley described in a letter to another inmate how he was 

looking for a “golden goose” before he was segregated and how he had to 

move fast once he got the “green light.” More importantly, the State’s 

theory was that Kelly had been in protective custody for refusing to carry 

out an order from “influential white inmates” and refusing such an order 

could get an inmate targeted to be killed. This testimony allowed the State 

to establish Riley’s motive for killing Kelly; therefore, Kelly’s prior stay in 

protective custody was relevant.

¶64 Similarly, Riley’s argument that the State failed to lay a proper 

relevance foundation for motive by not proving that he knew that Kelly was 

previously held in protective custody is unpersuasive. Motive may be 

proven by circumstantial evidence. State v. Parker, 231 Ariz. 391, 407 ¶ 71 

(2013). Here, Officer Dziadura testified that Kelly was previously put into 

protective custody for refusing an order to assault another inmate from 

“influential white inmates.” This supports an inference that Kelly was an 

AB target. Further, Riley’s own letter said that he was “hunting big time” 

for his “golden goose” and that he was constantly “sending names” for 

approval but kept being told “no” before he got the “green light.” In this 

context, Riley’s lack of direct knowledge of Kelly’s prior protective custody 

status is irrelevant because Riley killed Kelly not because he had previously 
STATE V. RILEY

Opinion of the Court

20 

targeted him, but because the AB sanctioned the murder and rewarded 

Riley for killing Kelly. In other words, as Riley’s letter makes clear, the AB’s 

motive in killing Kelly may be imputed to Riley. This is strong 

circumstantial evidence of motive that was properly presented for the jury 

to weigh its merits.

ii. Evidence of Kelly’s Character

¶65 Riley also objects to portions of Officer Melissa Vincent’s 

testimony. At one point, Officer Vincent, a Correctional Officer who 

worked in the control room for Kelly’s prison pod, testified regarding 

Kelly’s character, stating “I thought he was one of the better inmates. 

Always very polite to me, never disrespected me, which a lot of them did. 

Very easy to get along with, quiet.” Riley argues that this testimony 

regarding Kelly’s character was irrelevant. Riley claims this implicitly 

invited the jury to compare Kelly’s character with Riley’s.

¶66 Because Riley objected to the relevance of this portion of 

Officer Vincent’s trial testimony, we examine the trial court’s decision 

regarding those statements for abuse of discretion. See State v. Steinle, 239 

Ariz. 415, 417 ¶ 6 (2016). 

¶67 Under Arizona Rule of Evidence 404(a)(2), a victim’s 

character for peacefulness may be presented only to rebut a claim that the 

victim was the first aggressor. If the defendant does not claim self-defense 

and there is no evidence that the victim was the initial aggressor, the 

victim’s aggressive or peaceful character is irrelevant. State v. Hicks, 133 

Ariz. 64, 68–69 (1982). Here, Riley never admitted that he killed Kelly, in 

self-defense or otherwise. Riley’s defense was that he found Kelly dead in 

his cell and tried to revive him. Thus, the trial court erroneously admitted 

evidence of Kelly’s character.

¶68 Because the trial court erred, we must determine if it was 

harmless error. State v. Bass, 198 Ariz. 571, 580 ¶ 39 (2000). As such, the 

State must show “beyond a reasonable doubt that the error did not 

contribute to or affect the verdict or sentence.” Escalante, 245 Ariz. at 144 

¶ 30 (quoting State v. Escalante-Orozco, 241 Ariz. 254, 286 ¶ 126 (2017)). “The 

standard is an objective one, and requires a showing that without the error, 

a reasonable jury could have plausibly and intelligently returned a different 

verdict.” Id. ¶ 31. “The inquiry . . . is not whether, in a trial that occurred 
STATE V. RILEY

Opinion of the Court

21 

without the error, a guilty verdict would surely have been rendered, but 

whether the guilty verdict actually rendered in this trial was surely 

unattributable to the error.” Bible, 175 Ariz. at 588 (quoting Sullivan v. 

Louisiana, 508 U.S. 275, 279 (1993)). 

¶69 Here, a reasonable jury could not have reached a different 

verdict. The improperly admitted evidence is inconsequential compared to 

the properly admitted evidence of Riley’s guilt, including that (1) Riley was 

found with Kelly’s blood on him; (2) Riley was found with blood on his 

clothes; (3) Riley’s clothes and ID badge were found at the murder scene; 

(4) an eyewitness saw Riley in Kelly’s housing pod the night of the murder; 

and (5) Riley hand-wrote a letter graphically detailing Kelly’s murder and 

Riley’s quest to become a “patched” AB member by looking for a “golden 

goose.” For these reasons, improper admission of two sentences of 

testimony concerning Kelly’s character for peacefulness was harmless 

error.

iii. Rule 403 Violations

¶70 Riley argues the trial court erred in admitting evidence of 

Kelly’s time in protective custody in violation of Arizona Rule of Evidence 

403, which prohibits admission of relevant evidence whose probative value 

is substantially outweighed by the risk of unfair prejudice. “Unfair 

prejudice means an undue tendency to suggest decision on an improper 

basis . . . such as emotion, sympathy or horror.” State v. Schurz, 176 Ariz. 

46, 52 (1993) (internal quotation marks omitted) (quoting Fed. R. Evid. 403). 

¶71 Here, Riley’s Rule 403 argument is unavailing because the 

trial court did not abuse its discretion by admitting relevant motive 

evidence. Although such evidence likely undermined Riley’s defense, it 

was not admitted to evoke “emotion, sympathy, or horror.” Id. (“[N]ot all 

harmful evidence is unfairly prejudicial. After all, evidence which is 

relevant and material will generally be adverse to the opponent.”). There 

was no Rule 403 violation. 

iv. Officer Vincent’s Testimony Regarding the “Atta-Boy” 

Gesture

¶72 Officer Vincent also testified that, on the night of the murder, 

as Riley and Levis were exiting C Pod, she saw Riley pat Levis on the 

shoulder “kind of atta-boying him” and that Riley looked “happy.” Riley 
STATE V. RILEY

Opinion of the Court

22 

argues that the trial court violated several Arizona Rules of Evidence in 

admitting this testimony, including Rule 602 because Officer Vincent did 

not know the significance of Riley’s pat on Levis’s shoulder; Rule 701(a) 

because the testimony was not rationally based on Officer Vincent’s 

perception; and Rule 701(b) because the testimony was not helpful to the 

jury. In sum, Riley contends that Officer Vincent’s testimony was not 

necessary because the jury could determine on its own the significance of 

Riley’s gestures and interactions with Levis.

¶73 Because Riley did not object to the admission of this evidence 

at trial, we review these claims for fundamental error. See Anderson, 210 

Ariz. at 341 ¶ 45. 

¶74 Riley’s argument that Officer Vincent’s testimony does not 

pass muster under Rule 602 is unpersuasive. The rule provides that “[a] 

witness may testify to a matter only if evidence is introduced sufficient to 

support a finding that the witness has personal knowledge of the matter.” 

Ariz. R. Evid. 602. In essence, Rule 602 permits a witness’s observation

testimony. Here, Officer Vincent’s testimony was based on her own 

perception and her characterization of a pat on the back and a smile as a 

congratulatory gesture is unremarkable. 

¶75 Officer Vincent’s testimony also did not violate Rule 701, 

which provides:

If a witness is not testifying as an expert, 

testimony in the form of an opinion is limited to 

one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the 

witness’s testimony or to determining a fact in 

issue . . . . 

See State v. King, 180 Ariz. 268, 280 (1994) (reasoning that a witness’s opinion 

as to whether a person depicted on video was the defendant was admissible 

under Rule 701 because it was based on his perception and “assisted the 

jury in determining a fact in issue—the identity of the person on the 

videotape”). Officer Vincent’s testimony did not violate Rule 701(a) 

because her opinion was rationally based on her perception that Riley’s 

smile and pat of Levis’s back was congratulatory.
STATE V. RILEY

Opinion of the Court

23 

¶76 Officer Vincent’s testimony was also admissible under Rule 

701(b) because it was helpful to aid the jury’s understanding of a fact at 

issue. Riley contends that he was in Kelly’s housing pod the night of the 

murder because he intended to warn him of the murder plot. Upon 

discovering that Kelly was dead, Riley claimed that he panicked and “took 

off.” The State contested Riley’s explanation. Officer Vincent’s testimony 

assisted the jury in determining this fact because her description of Riley’s 

behavior is inconsistent with a panicked man—as Riley claimed to be—and 

tended to prove the State’s theory of the case. Further, contrary to Riley’s 

claim, the jury was not in the same position as Officer Vincent to discern 

the significance of Riley’s “atta-boy” or “happy” expression because she 

was the only percipient witness to the interaction. Officer Vincent’s 

testimony provided information to assist the jury in determining Riley’s 

role in Kelly’s murder. For these reasons, the trial court did not err in 

admitting Officer Vincent’s testimony.

v. Comparison of the Worth of Kelly’s Life with Riley’s

¶77 Riley argues that when the prosecutor stated in his penalty 

phase rebuttal closing argument “[y]ou don’t have two more different 

people, Sean Kelly, who had to go to protective custody because he 

wouldn’t be a part of that world, and the defendant, who executed him,” 

he impermissibly compared the value of Riley’s and Kelly’s lives. Riley did 

not object so we review for fundamental error. See Anderson, 210 Ariz. at 

341 ¶ 45. 

¶78 This argument is unpersuasive because the statement did not 

compare the value of Kelly’s and Riley’s lives. Instead, the prosecutor 

merely urged the jury to reject Riley’s suggestion that it should consider the 

violent prison environment as mitigation because Riley and others involved 

in the AB created the “kill-or-be-killed” environment and that, unlike Riley,

Kelly had rejected that culture. Likewise, any error was harmless in light 

of the substantial evidence of Riley’s guilt.

E. Inclusion of Duress Defense in Guilt-Phase Jury 

Instructions

¶79 Riley argues the trial court erred by instructing the jurors that 

duress is not a defense to first degree murder. Because Riley did not object 
STATE V. RILEY

Opinion of the Court

24 

to the jury instructions, we review this claim for fundamental error. See 

Hunter, 142 Ariz. at 90. 

¶80 On November 2, 2015, during a conference to discuss jury 

instructions, the prosecutor requested to add an instruction that duress is 

not a defense to first degree murder. Defense counsel claimed they would 

not be raising the duress defense, but agreed to the instruction’s inclusion. 

Before the trial court read the final instructions to the jury, defense counsel 

again approved the instruction. The court instructed the jurors that “[a] 

person compelled to commit a crime by the threat or use of immediate force 

against that person is not justified in committing the crime if it involved 

homicide or serious physical injury.”

¶81 Throughout the trial, the State produced evidence that AB 

probates, like Riley at the time of the murder, were not at liberty to refuse 

orders and that Kelly had previously been in protective custody after he 

received threats from “influential white inmates” for refusing to carry out 

an assault on another inmate. The State argues that the duress instruction 

“clarified any misconception the jurors may have developed that Riley 

would not be criminally responsible for killing Kelly if he had acted under 

threat from the [AB].” 

¶82 The State concedes that no reasonable juror would have 

believed that Riley acted under duress, and neither the State nor Riley relied 

on a theory of duress. During closing arguments, defense counsel 

specifically addressed the duress instruction and noted that it would not 

“come into play” because “nobody has said that Mr. Riley was compelled 

to commit this crime by threats or use of force. That has never come out 

ever, not even in the slightest.”

¶83 “A party is entitled to any jury instruction reasonably 

supported by the evidence.” State v. Burns, 237 Ariz. 1, 17 ¶ 48 (2015). But 

the giving of an abstract instruction, which “broadens the issues beyond the 

scope of the evidence and thus impliedly submits to the jury issues and 

questions not properly before it,” constitutes error. See State v. Willits, 96 

Ariz. 184, 190–91 (1964); Glenn v. Chenowth, 71 Ariz. 271, 273–74 (1951) 

(holding a self-defense instruction was improper in a civil suit where 

neither party asserted such a claim and “[t]he instruction was susceptible 

of conveying the impression to the jury that the trial judge may possibly 

have thought that [the plaintiff] had been attacked by [the defendant]”). 
STATE V. RILEY

Opinion of the Court

25 

¶84 Here, although neither party relied on a theory of duress, the 

trial court did not err in giving the duress instruction because, without it, 

the jury could have improperly concluded that Riley killed Kelly to avoid 

physical harm by the AB. Courts may instruct a jury under these 

circumstances to minimize the risk that a jury will base its verdict on an 

erroneous legal assumption. See, e.g., State v. Champagne, 247 Ariz. 116, 137 

¶ 60 (2019) (holding the trial court did not commit instructional error when, 

“without the voluntary intoxication instruction the jury could have rejected

[defendant]’s claim of innocence but improperly concluded that his 

voluntary intoxication prevented him from forming the necessary intent for 

criminal liability”).

¶85 Nevertheless, even if the trial court erred in giving the duress 

instruction, such error was not fundamental because it did not amount to a 

comment on the evidence by the trial judge. A judge violates Arizona’s 

constitutional prohibition against commenting on evidence by expressing 

“an opinion as to what the evidence proves,” in a way that interferes “with 

the jury’s independent evaluation of that evidence.” State v. Rodriguez, 192 

Ariz. 58, 63 ¶¶ 28–29 (1998); see also Ariz. Const. art. 6, § 27. An abstract 

instruction may amount to a comment on the evidence if the instruction 

indicates the trial judge’s opinion regarding some evidence of the case. See 

Chenowth, 71 Ariz. at 273–74. 

¶86 Contrary to Riley’s argument, the duress instruction did not 

amount to a comment on the evidence. Unlike the instruction in Chenowth, 

where the self-defense instruction could have indicated to the jury that the 

judge had formed an opinion about who hit whom first, the duress 

instruction here carried no such implication. Riley asserts that the 

instruction implied that the judge believed there was evidence of duress, 

and because Riley’s defense that he intended to warn Kelly of an impending 

attack was the only evidence that came close to the issue of duress, the 

instruction further implied that the jury should not consider Riley’s 

defense.

¶87 But this argument is unpersuasive for several reasons. First, 

the trial court expressly informed the jury, prior to closing arguments, that 

they could disregard inapplicable instructions. Second, the prosecutor did 

not state or imply that Riley may have acted under duress, and defense 

counsel expressly informed the jury that the duress instruction did not 
STATE V. RILEY

Opinion of the Court

26 

apply. Third, Riley’s letter discussing Kelly’s murder provided 

overwhelming evidence that Riley did not act under duress. Finally, no 

reasonable juror would have discounted Riley’s defense based on the 

duress instruction because Riley’s entire defense rested on the premise that 

he did not kill Kelly. The sole purpose of the duress instruction was to 

accurately inform the jury that a defendant cannot rely on duress to justify 

a killing. See A.R.S. § 13-412(C). Because Riley’s defense did not rely on 

any such justification, the instruction did not impact his defense.

¶88 In any event, even if the error were fundamental because it 

went to the foundation of the case or deprived him of an essential right, see

Escalante, 245 Ariz. at 142 ¶ 21, Riley failed to show prejudice. Riley argues 

that the abstract instruction was prejudicial by misleading and confusing 

the jury because it raised a significant possibility that jurors believed they 

could not consider Riley’s defense. For the same reasons stated above, this 

argument is unpersuasive. The trial court informed the jurors that they 

could—and they presumably did—disregard any inapplicable instructions. 

Moreover, Riley has pointed to no evidence in the record indicating he was 

prejudiced by the duress instruction, but rather asks us to speculate that the 

jurors were misled or confused by the instruction. See State v. Broughton, 

156 Ariz. 394, 397–98 (1988) (holding that prejudice requires a showing of 

more than mere speculation); State v. Munninger, 213 Ariz. 393, 397 ¶ 14 

(App. 2006) (holding that defendant could not show prejudice through 

speculation). Accordingly, Riley is not entitled to relief on this issue.

F. Sufficiency of the (F)(13) Aggravator Instruction

¶89 Riley argues that the trial court’s failure to include, in the § 13-

751(F)(13) aggravator jury instruction, a baseline statement that all first 

degree murders are cold and calculating to some extent rendered the 

instruction insufficient to narrow the aggravator because it allowed the jury 

“to begin with the assumption that there are premeditated first degree

murders that are not cold and calculating and that any evidence of the cold 

and calculating component would be sufficient to find the aggravator.”

¶90 Although we generally “review de novo whether jury 

instructions adequately state the law,” State v. Gallardo, 225 Ariz. 560, 567 

¶ 30 (2010) (quoting State v. Tucker, 215 Ariz. 298, 310 ¶ 27 (2007)), “absent 

an objection by the defendant, we review for fundamental error,” Velazquez, 

216 Ariz. at 309–10. Here, because Riley does not challenge the instruction 
STATE V. RILEY

Opinion of the Court

27 

as an inadequate statement of the law but rather as an inadequate 

narrowing of a facially vague aggravator, his failure to object to the 

instruction means “he is not entitled to relief unless he can show 

fundamental error.” See Hausner, 230 Ariz. at 83 ¶ 107. 

¶91 Concerning the (F)(13) aggravator, the trial court instructed 

the jurors as follows:

The State alleges that the murder was 

committed in a cold, calculated manner without 

pretense of moral or legal justification. This 

aggravating circumstance requires more than 

the premeditation necessary to find a defendant 

guilty of first degree murder. This aggravating 

circumstance cannot be found to exist unless the 

State has proved beyond a reasonable doubt 

that the defendant exhibited a cold-blooded 

intent to kill that is more contemplative, more 

methodical, more controlled than that necessary 

to prove premeditated first degree murder. In 

other words, a heightened degree of 

premeditation is required.

“Cold” means the murder was the product of 

calm and cool reflections.

“Calculated” means having a careful plan or 

prearranged design to commit murder.

This aggravating circumstance focuses on the 

defendant’s state of mind at the time of the 

offense, as reflected by the defendant’s words 

and acts. To determine whether a murder was 

committed in a cold, calculated manner without 

pretense of moral or legal justification, you 

must find that the State proved beyond a 

reasonable doubt that the defendant:
STATE V. RILEY

Opinion of the Court

28 

1. Had a careful plan or prearranged 

design to commit murder before the fatal 

incident; and

2. Exhibited a cool and calm reflection 

for a substantial period of time before killing; 

and

3. Had no pretense of moral or legal 

justification or excuse.

A “pretense of moral or legal 

justification” is any claim of justification or 

excuse that, though insufficient to reduce the 

degree of murder, nevertheless rebuts the 

otherwise cold, calculated nature of the murder.

Thus, the (F)(13) aggravator qualifies a first degree murder for the death 

penalty if “[t]he offense was committed in a cold, calculated manner 

without pretense of moral or legal justification.” A.R.S. § 13–751(F)(13) 

(2012). The jury found this aggravator beyond a reasonable doubt.

¶92 We addressed the constitutionality of Arizona’s (F)(13) 

aggravator in Hausner. Relying on the rationale of a Florida case that 

analyzed the constitutionality of a substantially similar aggravator, we held 

that the (F)(13) aggravator was facially vague. Hausner, 230 Ariz. at 82 ¶ 102 

(citing Jackson v. State, 648 So. 2d 85 (Fla. 1994)). But, like the court in Jackson, 

we subsequently held that the instruction provided to the jury there

adequately narrowed the aggravator. Id. at 83 ¶ 105. Noting that the trial 

court provided “narrowing instructions substantially the same as those 

approved in Jackson,” we reasoned that the (F)(13) instruction “clarified to 

the jury that ‘all first degree premeditated murders are, to some extent, 

committed in a cold, calculated manner,’ but distinguished this aggravator 

as one that ‘cannot be found to exist unless . . . the defendant exhibited a 

cold intent to kill and is more contemplative, more methodical, more 

controlled than that necessary to commit premeditated first degree 

murder.’” Id. ¶ 104 (citation omitted). 

¶93 The instruction further defined the terms “cold” and 

“calculated” and “emphasized that the jury must look to the defendant’s 
STATE V. RILEY

Opinion of the Court

29 

state of mind at the time of the offense to determine whether there exists 

any pretense of moral or legal justification that rebuts cold and 

calculated . . . .” Id. The instruction also required the jury to “find beyond 

a reasonable doubt that there is (1) a careful plan or prearranged design 

before the murder, and (2) a cool and calm reflection for a substantial period 

of time before the murder.” Id. We ultimately concluded “[t]his instruction 

adequately narrowed the aggravator, making it clear that it is not the cold 

and calculated nature of every murder that will satisfy it, but that the jury 

must find some degree of reflection and planning that goes beyond the 

premeditation required to find first degree murder.” Id. ¶ 105. 

¶94 Here, the (F)(13) instruction provided to Riley’s jury was 

materially identical to the Hausner instruction with one exception: the 

instruction here did not include the baseline statement that all first degree

murders are cold and calculating to some extent. Riley’s argument that the 

absence of this statement renders the instruction insufficient to 

constitutionally narrow the aggravator is unpersuasive for several reasons.

¶95 First, the instruction from the Florida Supreme Court to 

which we approvingly compared the Hausner instruction did not contain 

any such baseline statement. See Jackson, 648 So. 2d at 89–90, 89 n.8. Second, 

the instruction here expressly stated that the aggravator “require[d] more 

than the premeditation necessary to find a defendant guilty of first degree

murder” and required the jury to find “a heightened degree of 

premeditation” as compared to first degree murder. Finally, like the 

instruction in Hausner, it expressly defined “cold” and “calculated” and 

further distinguished the aggravator from other first degree murders by 

requiring a finding that the murder was “more contemplative, more 

methodical, [and] more controlled than that necessary to prove 

premeditated first degree murder.” These numerous distinctions between 

the aggravator and other first degree murders satisfy Hausner’s

requirement that a proper instruction must inform the jury that it “must 

find some degree of reflection and planning that goes beyond the 

premeditation required to find first degree murder.” See Hausner, 230 Ariz. 

at 83 ¶ 105. 

¶96 If we were to determine that the absence of the baseline 

statement renders the instruction insufficient to narrow the aggravator, 

such an error would unquestionably be fundamental. See, e.g., Maynard v. 

Cartwright, 486 U.S. 356, 362 (1988) (“[C]hanneling and limiting of the 
STATE V. RILEY

Opinion of the Court

30 

sentencer’s discretion in imposing the death penalty is a fundamental 

constitutional requirement for sufficiently minimizing the risk of wholly 

arbitrary and capricious action.”). But because Riley contends that this 

error went to the foundation of his case or deprived him of a right essential 

to his defense, it would not require reversal because Riley failed to show 

prejudice. Escalante, 245 Ariz. at 140 ¶ 16; see also Henderson, 210 Ariz. at 568 

¶ 24. The evidence produced at trial overwhelmingly established that Riley 

acted in a cold and calculated manner that exceeded the norm of first degree

murders. The contents of his letter, corroborated by the evidence from the 

night of the murder, show that Riley actively sought out a potential target, 

requested permission from the AB leadership to kill his target, ignored the 

advice from other inmates who discouraged his plans, and concocted a plan 

to get in and out of Kelly’s pod and cell. He also packed his belongings and 

changed his mailing address in anticipation of repercussions from 

completing the murder. 

¶97 In sum, the (F)(13) instruction provided to the jury sufficiently 

narrowed the facially vague aggravator; therefore, the instruction, as 

provided, did not constitute error. Even if the lack of a baseline statement 

did constitute fundamental error, Riley did not suffer prejudice.

G. Constitutionality of the (F)(6) Aggravating Factor

¶98 The § 13-751(F)(6) aggravator provides: “The defendant 

committed the offense in an especially heinous, cruel or depraved manner.” 

Riley argues that the (F)(6) aggravator is unconstitutional for two reasons: 

(1) this Court’s lack of finite limitations on the (F)(6) aggravator render it 

unconstitutionally vague; and (2) any meaningful guidance, if it does exist, 

cannot be adequately conveyed through jury instructions. We review the 

constitutionality of aggravating factors de novo. State v. Nelson, 229 Ariz. 

180, 186 ¶ 25 (2012). 

¶99 In January 2015, Riley filed a pre-trial motion to strike the 

(F)(6) aggravator, in part, for the same reasons articulated above. The trial 

court subsequently rejected Riley’s motion. At trial, the jury instructions—

approved by Riley—read as follows:

Concerning this aggravating circumstance, all 

first degree murders are, to some extent, 

heinous, cruel or depraved. However, this 
STATE V. RILEY

Opinion of the Court

31 

aggravating circumstance cannot be found to 

exist unless the State has proved beyond a 

reasonable doubt that the murder was 

“especially” cruel, “especially” heinous or 

“especially” depraved. “Especially” means 

“unusually great or significant.”

The term “especially cruel,” or “especially 

heinous or depraved” are considered 

separately; therefore, the presence of any one 

circumstance is sufficient to establish this 

aggravating circumstance. However, to find 

that this aggravating circumstance is proven, 

you must find that “especially cruel” has been 

proven unanimously beyond a reasonable 

doubt or that “especially heinous or depraved” 

has been proven unanimously beyond a 

reasonable doubt.

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

and suffering. To find that the murder was 

committed in an “especially cruel” manner, you 

must find that the victim consciously suffered 

physical or mental pain, distress or anguish 

prior to death. The defendant must know or 

should have known that the victim would 

suffer.

The term “especially heinous or depraved” 

focuses upon the defendant’s state of mind at 

the time of the offense, as reflected by the 

defendant’s words and acts. A murder is 

especially heinous if it is hatefully or shockingly 

evil; in other words, grossly bad. A murder is 

especially depraved if it is marked by 

debasement, corruption, perversion or 

deterioration.

The instructions further defined “relishing,” “gratuitous violence,” and 

“mutilation.” At the end of the aggravation phase, the jury unanimously 
STATE V. RILEY

Opinion of the Court

32 

found that the State had proved that Riley committed the murder in both 

an especially cruel manner and an especially heinous or depraved manner.

¶100 In State v. Gretzler, this Court described circumstances, or 

factors, which narrowed the meaning and constitutional application of the 

“especially heinous, cruel, or depraved” aggravators. 135 Ariz. 42, 50–53 

(1983). In Walton v. Arizona, the Supreme Court found this aggravating 

factor facially vague, but it held that Gretzler’s definition of the provision 

rendered it “constitutionally sufficient because it [gave] meaningful 

guidance to the sentencer.” 497 U.S. 639, 654, 655 (1990), overruled on other 

grounds by Ring v. Arizona, 536 U.S. 584 (2002). Although Riley does not 

argue that Walton was wrongly decided, he contends it no longer protects 

the constitutionality of Arizona’s (F)(6) aggravator because “[t]he Supreme 

Court’s . . . justifications for upholding Arizona’s vague [(F)(6)] aggravator 

no longer exist.”

¶101 First, Riley contends that our interpretation of the Gretzler

factors as non-exclusive guides contradicts the Supreme Court’s reliance on 

Gretzler as a finite list of limiting factors. See Walton, 497 U.S. at 655 (finding 

this Court’s definitions of the (F)(6) aggravators to be constitutionally 

sufficient). Contrary to Riley’s argument, the Supreme Court has noted that 

this Court did not view the Gretzler factors as an exclusive list. Indeed, 

Walton expressly noted the availability of multiple constructions of the 

(F)(6) aggravator that would be “constitutionally acceptable.” Id. (citing 

Maynard, 486 U.S. at 365); id. at 695 (Blackmun, J., dissenting) (“Since its 

decision in Gretzler, the Arizona Supreme Court has continued to identify 

new factors which support a finding that a particular murder was heinous 

or depraved.”). Our expansion of the Gretzler factors, therefore, does not 

render its guidance—embodied in the jury instructions—any less 

meaningful.

¶102 Second, Riley contends “[t]his Court has affirmatively created 

more of a constitutional problem by removing any meaning from the word 

‘especially.’” He argues the dictionary definition of especial and our

historical analysis of the (F)(6) aggravator requires that a “jury must be able 

to compare the factor against the norm” or the “prototypical murder.” 

Although the jury instructions included a definition of “especially,” Riley 

maintains a mere definition of the word “give[s] the jury no way to 

determine whether the [defendant’s] conduct meets this definition.” 

Effectively, Riley is making an argument we rejected in State v. Johnson: 
STATE V. RILEY

Opinion of the Court

33 

“that the term ‘especially’ in [§ 13-751(F)(6)]3 essentially requires some kind 

of comparison between death-eligible murder cases and the ‘norm.’” 212 

Ariz. 425, 431–32 ¶¶ 19–20 (2006) (rejecting that argument based on this 

Court’s prior rejection of proportionality review).

¶103 Riley errs here by patching together a non-existent “above the 

norm test” that effectively revives proportionality review, which we 

abandoned in State v. Salazar, 173 Ariz. 399, 416–17 (1992). Undoubtedly, as

Riley argues, the death penalty “should be reserved for cases in which 

either the manner of the commission of the offense or the background of the 

defendant places the crime ‘above the norm of first-degree murders.’” See 

State v. Carlson, 202 Ariz. 570, 582 ¶ 45 (2002) (quoting Hoskins, 199 Ariz. at 

163 ¶ 169); see also State v. Andriano, 215 Ariz. 497, 506 ¶ 43 (2007) abrogated 

on other grounds by State v. Ferrero, 229 Ariz. 239 (2012) (“[J]urors must assess 

whether the murder was so cruel that it rose above the norm of first degree 

murders.”). But we have never held that a jury must compare one murder 

to another, and we have expressly rejected the argument that juries must be 

informed of any comparison to the “norm.” See State v. Bocharski, 218 Ariz. 

476, 487–88 ¶¶ 47–50 (2008). 

¶104 Indeed, by providing statutory aggravators and 

constitutionally acceptable definitions to the terms “especially heinous, 

cruel, or depraved,” the legislature and this Court have provided juries 

with the means to distinguish a murder that satisfies the (F)(6) aggravator 

from the “norm.” See Carlson, 202 Ariz. at 582 ¶ 45; see also State v. Hidalgo, 

241 Ariz. 543, 551–52 ¶¶ 27–28 (2017) (noting that Arizona’s death penalty 

scheme provides several means of narrowing the class of death-eligible 

persons). In other words, the specific, thorough definitions as to what 

constitutes “especially heinous, cruel, or depraved” murder necessarily 

imply that “normal” murders do not meet these definitions; thus, juries do 

not require any comparison of the facts before them to other murders. 

Although Riley may be correct in stating “[t]he ‘above the norm’ standard 

in the (F)(6) is not and never has been a proportionality review,” the 

standard to which he is referring has never required juries to compare the 

facts of one murder against another. This standard is satisfied by 

constitutionally acceptable jury instructions that provide meaningful 

guidance to the jury.

 

3 Previously A.R.S. § 13-703(F)(6). 
STATE V. RILEY

Opinion of the Court

34 

¶105 Finally, to the extent that Riley challenges the constitutional 

sufficiency of the definitions provided in the jury instructions, we have

repeatedly upheld jury instructions materially identical to those here. See, 

e.g., State v. Medina, 232 Ariz. 391, 408–09 ¶¶ 74–75 (2013); State v. Prince, 

226 Ariz. 516, 531–33 ¶¶ 48–54 (2011); Gallardo, 225 Ariz. at 566 ¶¶ 21–23; 

State v. Chappell, 225 Ariz. 229, 237–38 ¶ 27 (2010); State v. Pandeli (“Pandeli

III”), 215 Ariz. 514, 523–24 ¶¶ 20–21 (2007). 

¶106 Assuming our jurisprudence has provided meaningful 

guidance, Riley argues that guidance cannot be “adequately reduced to a 

jury instruction.” Although Riley attempts to introduce a novel argument 

here—contrasting the descriptive nature of this guidance against the 

prescriptive nature of jury instructions—we have repeatedly held that the 

(F)(6) aggravator may be constitutionally applied if given substance and 

specificity by jury instructions that follow our constructions. See Anderson, 

210 Ariz. at 352–53 ¶¶ 109–14; see also Hargrave, 225 Ariz. at 13 ¶ 44; 

Andriano, 215 Ariz. at 505 ¶ 38; State v. Tucker, 215 Ariz. 298, 310 ¶ 28 (2007);

Cromwell, 211 Ariz. at 188–89 ¶¶ 40–42.

¶107 Riley first posits “[t]he rationale of Walton does not apply to 

jury sentencing” because Walton was decided at a time when the sentencers 

in Arizona were trial judges, who “are presumed to know the law and 

apply it in making their decisions.” He focuses once more on the word 

“especially,” arguing that the descriptive nature of our guidance grants trial 

judges—but not juries—the necessary context to distinguish between 

“normal” murders and “especially heinous, cruel, or depraved” murders. 

But we rejected a similar argument in Cromwell, stating “Supreme Court 

case law . . . dispels that notion because it distinguishes constitutional 

statutes from unconstitutional statutes on the basis of the clarifying 

definition, not on the supposition that judges may apply the statute one 

way and jurors another.” 211 Ariz. at 189 ¶ 44 (citing Maynard, 486 U.S. at 

365). Because the Supreme Court has held constitutional our definitions of 

the (F)(6) aggravator, jury instructions that convey those definitions with 

adequate specificity protect the constitutionality of the (F)(6) aggravator 

when a jury, rather than a judge, conducts the fact-finding.

¶108 Relying on one sentence from Newton v. Main, Riley also 

contends jury instructions must be prescriptive. See 96 Ariz. 319, 321 (1964)

(“The test to be used in determining the correctness of instructions is 

whether upon the whole charge the jury will gather the proper rules to be 
STATE V. RILEY

Opinion of the Court

35 

applied in arriving at a correct decision.”). He argues that jury instructions 

must “establish a formula into which a sentencer might insert facts to 

determine the existence of an . . . aggravating factor.” Therefore, according 

to Riley, our descriptive guidance cannot satisfy this requirement.

¶109 Our discussion on jury instructions in Newton does not 

support this novel proposition. Both Newton and the cases upon which it 

relied examined jury instructions for correctness—that is, for correct 

statements of the law. See Newton, 96 Ariz. at 320; see also Musgrave v. 

Githens, 80 Ariz. 188, 192–93 (1956); Daly v. Williams, 78 Ariz. 382, 387 (1955). 

Nothing in Newton or any other Arizona case suggests that courts must 

provide juries with formulaic plug-and-play instructions.

¶110 In sum, Riley has provided no valid arguments challenging

the constitutional sufficiency of our guidance regarding Arizona’s (F)(6) 

aggravator or the constitutional applicability of the aggravator by a jury, 

rather than a judge. Accordingly, Riley is not entitled to relief on this issue.

H. Inclusion of the Accomplice Liability Instruction During

 Aggravation Phase

¶111 Riley argues that the prosecutor’s recitation of the guilt-phase 

accomplice liability instruction (“accomplice instruction”) in the 

aggravation phase violated the Fifth, Sixth, Eighth, and Fourteenth 

Amendments to the United States Constitution because they contradicted 

the jury instructions for the (F)(6) and (F)(13) aggravators and lessened the 

State’s burden to prove those aggravators beyond a reasonable doubt. 

Although Riley initially objected to the prosecutor’s introduction of the 

accomplice instruction, he withdrew that objection. Because Riley did not 

object to the reference to the accomplice jury instruction, we review for 

fundamental error. See Anderson, 210 Ariz. at 341 ¶ 45. 

¶112 During the trial’s aggravation phase, Riley’s attorney made 

several statements that seemed to contest his guilt. Specifically, Riley’s 

attorney stated:

Let’s look at the evidence. When Dr. Hu 

testified, he can’t say what wounds—or who 

caused the wound exactly. And he can’t say 
STATE V. RILEY

Opinion of the Court

36 

when Sean Kelly was unconscious. It could 

have been the first wound.

. . . . 

No gratuitous violence. You see [sic] and you 

heard testimony there were other people 

involved in this. Other people involved. If 

there is [sic] other people involved, how do we 

know beyond a reasonable doubt—which is the 

law—that Mr. Riley was the one who caused all 

this infliction or violence to Mr. Riley? [sic] 

Who can say that? I wasn’t there. The State 

wasn’t there.

¶113 To counter these statements, the prosecutor read, on rebuttal, 

an excerpt from the guilt-phase accomplice instruction, stating:

The defendant is criminally accountable for the 

conduct of another if the defendant is an 

accomplice of such other person in the 

commission of the offense, including any 

offense that is a natural and probable or 

reasonably foreseeable consequence of the 

offense for which the person was an accomplice.

Riley initially objected to the prosecutor’s statement, but he withdrew his 

objection once he understood that the prosecutor was reading from the 

guilt-phase instruction.

¶114 After reading the accomplice instruction, the prosecutor

remarked: 

In other words, if you’re in for a penny, you’re 

in for a pound. You do not need to know which 

wound was inflicted by Thomas Riley. That’s 

not the law that the judge gave you.

The law in the state of Arizona is that if you and 

your accomplices go out and start stabbing 

somebody, you don’t get to run to the jury and 

say: Oh, I don’t know which one I inflicted.
STATE V. RILEY

Opinion of the Court

37 

In for a penny, in for a pound. That is the law. 

And these guys were working in concert with 

each other. By the defendant’s own admission, 

he stabbed the most. You do not need to focus 

on which one did what. The law doesn’t make 

that distinction.

And that makes sense. You don’t get the benefit 

that: I stabbed him too many times. I couldn’t 

keep track.

You don’t get that benefit. That is not the law.

So go back and look at your instructions. But on 

page 29, you will see: If you and your 

accomplices are—if you’re the lookout and 

they’re in there, you are still accountable. That’s 

the law. And it’s right there in black and white, 

page 29. 

¶115 Riley argues that the prosecutor’s reading of the accomplice 

instruction, combined with his statements on accountability, amounted to 

an instruction to the jury about how it should weigh the evidence presented 

during the aggravation phase. Riley contends this was fundamental error 

because the accomplice instruction and the aggravation-phase instructions 

conflict: The accomplice instruction allows for a conviction based on a coconspirator’s actions, but the aggravation instructions require the jury to 

find that the defendant individually had the requisite mens rea. He further 

argues that this was fundamental error because it relieved the State of its 

burden to prove Riley had the requisite mens rea for the (F)(6) and (F)(13) 

aggravators. Finally, Riley argues that the inclusion of the accomplice 

instruction was prejudicial because the (F)(6) and (F)(13) aggravators were 

the “most powerful aggravators” found, and without them a reasonable 

jury could have sentenced Riley to life, not death.

¶116 The State’s introduction of the guilt-phase accomplice 

instruction in the aggravation phase did not constitute an error, much less 

a fundamental one. Riley’s statements regarding causation could be 

construed to contest his guilt rather than the aggravating factors. It was 
STATE V. RILEY

Opinion of the Court

38 

proper, therefore, for the prosecutor to rebut those statements by drawing 

the jury’s attention to the guilt-phase accomplice instruction. See A.R.S. 

§ 13-751(D) (“The prosecution and the defendant shall be permitted to rebut 

any information received at the aggravation or penalty phase of the 

sentencing proceeding and shall be given fair opportunity to present 

argument as to whether the information is sufficient to establish the 

existence of any of the circumstances included in subsections F and G of 

this section.”). 

¶117 But even assuming that the introduction of the accomplice 

instruction constituted fundamental error that went to the foundation of his 

case or deprived him of a right essential to his defense, Riley failed to show 

that he was prejudiced. To prove prejudice, he has the burden of showing 

that a reasonable jury could have come to a different verdict. See Escalante,

245 Ariz. at 144 ¶ 29. Riley failed to meet that burden.

¶118 After the aggravation phase, the jury had sufficient evidence 

to find the State proved the (F)(6) and (F)(13) aggravators beyond a 

reasonable doubt. No reasonable jury would have found the murder—a 

stabbing death with over 100 stab wounds inflicted with prison shanks—

was not conducted in a cruel, heinous, and depraved manner. Likewise, 

Riley’s letter shows that he planned the murder beforehand and that his 

motive was to become a patched member of the AB, demonstrating along 

with other evidence that the murder was “committed in a cold, calculated 

manner without pretense of moral or legal justification.” A.R.S. § 13-

751(F)(13) (2012). 

¶119 Although Riley asserts that the jury would not have found 

these aggravators absent the accomplice instruction, nothing in the record 

supports that assertion. Taken altogether, the evidence discussed above 

was more than sufficient to allow the jury to find beyond a reasonable 

doubt—before the prosecutor introduced the accomplice instruction—that 

the State proved the (F)(6) and (F)(13) aggravators. Even if this Court 

ignores the fact that the prosecutor read the accomplice instruction to rebut 

Riley’s re-litigation of his guilt during the aggravation phase, Riley’s letter 

served to prove these aggravators regardless of whether the accomplice 

instruction was presented erroneously.

¶120 Accepting Riley’s argument that the jury would not have 

found the (F)(6) and (F)(13) aggravators absent the accomplice instruction, 
STATE V. RILEY

Opinion of the Court

39 

Riley still would be unable to prove that the outcome (i.e., the jury’s death 

sentence verdict) could have been different. The jury found the State 

proved three other aggravators beyond a reasonable doubt, and Riley does 

not challenge them. Rather, he argues that the remaining aggravators—

conviction of a prior serious offense, current offense committed in custody, 

and current offense committed to promote a criminal street gang—were 

weaker aggravators and intrinsic to the offense. And according to Riley, a 

reasonable jury left with only these “weaker” aggravators could have

rendered a life sentence rather than a death sentence.

¶121 To support his argument, Riley cites to State v. Willoughby, 

where we stated that the quality of the aggravating factor should be 

considered when weighing aggravators against mitigation evidence. 181 

Ariz. 530, 549 (1995). But against his counsel’s advice, Riley waived his 

right to present mitigation evidence—there was little for the jury to weigh 

the aggravators against. Under these circumstances, in which Riley 

committed an in-custody murder to promote a violent gang, even absent 

the (F)(6) and (F)(13) aggravators, he failed to carry his burden to show that 

a reasonable jury could have reached a different conclusion. See Escalante, 

245 Ariz. at 144 ¶ 29; see also Hausner, 230 Ariz. at 84 ¶ 114 (finding that even 

if an (F)(13) aggravator was improperly considered by the jury, the three 

remaining, proven aggravators were sufficient for the jury to render a death 

sentence).

¶122 Riley also challenges the prosecutor’s statement 

accompanying his introduction of the guilt-phase accomplice instruction 

wherein he told the jury that Riley was accountable for the actions of his coconspirators. As discussed, supra ¶ 116, the prosecutor’s comments are not 

improper because they properly rebutted Riley’s counsel’s statements 

which addressed Riley’s guilt, not his mindset. See § 13-751(D). But Riley 

is correct that his guilty verdict for first degree murder does not relieve the 

State of its burden of proving, at the aggravation stage, his level of 

involvement in the murder and his mindset in relation to the (F)(6) and 

(F)(13) aggravators. See State v. Garcia, 224 Ariz. 1, 13 ¶ 44 (2010) (noting 

that Arizona law “specifically requires the trier of fact to make 

Enmund/Tison findings in the aggravation phase.”) (quoting State v. Garza, 

216 Ariz. 56, 67 ¶ 46 (2007)). However, we find no error, fundamental or 

otherwise, because Riley does not allege Enmund/Tison error and evidence 

of his involvement in Kelly’s murder is overwhelming. 
STATE V. RILEY

Opinion of the Court

40 

¶123 In sum, the prosecutor’s comments were proper to rebut the 

re-litigation of Riley’s guilt. Even if the comments were an error, Riley has 

failed to carry his burden of proving a reasonable jury could have found a 

death sentence inappropriate. 

I. Prosecutorial Misconduct

¶124 Riley argues that several of the prosecutor’s statements 

constitute misconduct because they deprived him of his due process and 

fair trial rights guaranteed by the Fifth and Fourteenth Amendments to the 

United States Constitution and article 2, sections 4 and 24 of the Arizona 

Constitution.

¶125 “In determining whether an argument is misconduct, we 

consider two factors: (1) whether the prosecutor’s statements called to the 

jury’s attention matters it should not have considered in reaching its 

decision and (2) the probability that the jurors were in fact influenced by 

the remarks.” Goudeau, 239 Ariz. at 466 ¶ 196 (internal quotation marks 

omitted). Because Riley did not object to the statements below, we review 

for fundamental error. See Anderson, 210 Ariz. at 341¶ 45. 

i. Juror Questionnaire’s Description of Aggravating Factors 

and Inclusion of Accomplice Liability Instructions in 

Aggravation Phase

¶126 Riley contends that the jury questionnaire’s description of 

aggravating factors as “very few” and “very specific” constitutes 

prosecutorial misconduct. We note this is barren soil for such a claim since 

the trial court must approve the questionnaire. In any event, as discussed, 

supra ¶¶ 24–36, while there was error in this description of Arizona’s 

aggravating factors, it was not fundamental. Similarly, Riley argues that 

the prosecutor’s inclusion of the accomplice liability instruction during 

aggravation phase constitutes prosecutorial misconduct. As we explain 

above, supra ¶¶ 111–23, there was no error, and even if there were, it was 

not fundamental. Accordingly, Riley’s argument on this point is 

unavailing.

ii. Prosecutor’s Statements Regarding “Crossing the Line”

¶127 During the defense’s penalty-phase closing argument, 

defense counsel argued that the death penalty is meant for truly heinous 
STATE V. RILEY

Opinion of the Court

41 

murderers like Ted Bundy, Jeffrey Dahmer, Charles Manson, Timothy 

McVey, etc., stating:

The worst of the worst. That is what [the death 

penalty] is reserved for. That is who the death 

penalty was founded for, the worst of the worst. 

It was founded for Timothy McVey, the 

Oklahoma Bomber. You see how the death 

sentence is applied to the worst of the worst. 

Mr. Riley is not the worst of the worst for our 

society.

In rebuttal, the prosecutor stated, “[I]t is standard practice to talk about 

Jeffrey Dahmer and Charles Manson and everything else, but the law 

doesn’t care how far you cross the line. The law only matters [sic] that you 

cross it.” Riley argues that this comment misstated the law because simply 

killing another person does not mean that the death penalty is warranted 

and that the misstatement “so infected the trial with unfairness as to make 

the resulting conviction a denial of due process” because the trial court did 

not correct it.

¶128 Riley also argues that these statements constitute 

fundamental error because they lessened the burden on the State to prove 

aggravators. However, as the State points out, the statements were made 

in the penalty phase—after the jury had already found aggravators—so 

they could not have lessened the burden of proving aggravators. 

¶129 “Prosecutors are given ‘wide latitude’ in presenting closing 

argument to the jury.” Goudeau, 239 Ariz. at 466 ¶ 196. “[I]f the prosecutor’s 

remarks were ‘invited,’ and did no more than respond substantially in 

order to ‘right the scale,’ such comments would not warrant reversing a 

conviction.” United States v. Young, 470 U.S. 1, 12–13 (1985); see also State v. 

Alvarez, 145 Ariz. 370, 373 (1985) (“Prosecutorial comments which are a fair 

rebuttal to areas opened by the defense are proper.”).

¶130 Riley’s argument is unpersuasive. Riley’s comments that the 

death penalty is “reserved” for the “worst of the worst” like mass 

murderers and serial killers is clearly contrary to the law, and those 

comments could have led the jury to believe that they could not vote for the 

death penalty because Riley is neither a mass murderer nor a serial killer. 
STATE V. RILEY

Opinion of the Court

42 

Riley’s comments invited the prosecutor to respond to “right the scale.” See 

Young, 470 U.S. at 12–13. Thus, the prosecutor’s comments did not draw 

“the jury’s attention [to] matters it should not have considered in reaching 

its decision.” See Goudeau, 239 Ariz. at 466 ¶ 196 (quoting Nelson, 229 Ariz. 

at 189 ¶ 39). And if the statement influenced the jury, it influenced it to the 

legally correct conclusion: One does not have to be a mass murderer or 

serial killer to receive the death penalty. The prosecutor acted well within 

his “wide latitude” in his response and there is no error here.

iii. Prosecutor’s Statements Allegedly Unsupported by 

Evidence 

¶131 Riley contends that the prosecutor engaged in misconduct by 

making several comments unsupported by the evidence during the guilt 

and penalty trial phases, resulting in fundamental, prejudicial error. 

“Specific evidence may be referenced in the opening statement as long as 

the proponent has a good faith basis for believing the proposed evidence 

exists and will be admissible.” State v. Pedroza-Perez, 240 Ariz. 114, 116 ¶ 12 

(2016). We address in turn each of the prosecutor’s contested statements.

¶132 First, the prosecutor stated in his guilt-phase opening 

statement, “Now, Sean Kelly was just a guy. He was in prison because he’s 

[sic] a drug addict and he was caught in the revolving door of prison, 

addiction, prison, even though he had a loving family that cared for him.” 

That Kelly had a loving family was later corroborated by the victim impact 

statements of his former fiancé and their daughter. Although no evidence 

was presented to show that Kelly was a drug addict or that he was caught 

in a “revolving door of prison,” no misconduct occurred because there was 

a very low probability that the prosecutor’s statement would improperly 

influence the jury by characterizing Kelly as a sympathetic victim. See 

Goudeau, 239 Ariz. at 466 ¶ 196. If anything, the statement made Kelly a 

less-sympathetic victim because it described him as a drug addict and 

recidivist criminal.

¶133 Second, the prosecutor stated in his guilt-phase opening 

statement: 

Sean [Kelly] had to go into protective custody 

because while he was in prison once, he refused 
STATE V. RILEY

Opinion of the Court

43 

to commit an act of violence on another inmate, 

so he was forced to go into PC.

Now in the outside world, that would be 

normal. But to the world that the defendant 

lived in and the world of the [AB], that’s 

weakness. And weak inmates are targets for 

men who want membership in the [AB]. 

This statement was later corroborated by expert witness testimony on gang

culture as well as Riley’s letter. The prosecutor’s good faith is evinced by 

this corroboration. There is no misconduct here. 

¶134 Third, the prosecutor stated in his guilt-phase opening 

statement, “[A shank is] designed for one purpose and one purpose only 

and that is to kill.” This statement is corroborated by expert testimony that 

shanks are weapons. Certainly, the lethal purpose of the shanks in this case 

is evinced by the fact that Kelly was killed with them. No misconduct 

occurred here.

¶135 Fourth, the prosecutor stated in his guilt-phase opening 

statement, “The door to Sean’s cell had been left open probably by Sean’s 

cellmate Kenneth Severns who was not inside the cell.” Riley interprets this 

statement as meaning that “[Sean Kelly’s] cellmate left open the cell door in 

order to facilitate the offense.” Riley misinterprets the prosecutor’s 

statement. The prosecutor said that Severns probably left the cell door 

open—he did not assert that Severns did so to facilitate the murder. That 

Severns probably left the door open was later corroborated by Officer 

Vincent’s testimony that Severns was outside his cell during the time when 

Kelly was murdered. The statement did not imply that Severns left the door 

open to facilitate Kelly’s murder. No misconduct occurred here.

¶136 Fifth, the prosecutor stated in his guilt-phase opening 

statement: 

Now Eric Olsen lived in the C Pod so he was 

able to slither away quickly back to his cell 

unnoticed. But the defendant and his cellmate 

and accomplice, Dennis Levis, had farther to go. 
STATE V. RILEY

Opinion of the Court

44 

They had to cross from Cell 6 back to Cell A—

or back from Cell 6 to A Pod to Cell 9.

Riley interprets this statement to mean that Olsen was an accomplice “and 

was able to get back to his cell without being seen.” That Olsen lived in C 

Pod while Levis and Riley lived in A Pod was later corroborated by Officer 

Todd Springsteen and Officer Dziadura. Further, the State charged Riley 

with first degree murder. An element of first degree murder is 

premeditation. A.R.S. § 13-1105(A)(1). Olsen’s alleged participation shows 

premeditation because it would tend to show that the murder was planned 

beforehand, so the prosecutor’s comments did not “call[] to the jury’s 

attention matters it should not have considered in reaching its decision.” 

See Goudeau, 239 Ariz. at 466 ¶ 196 (quoting Nelson, 229 Ariz. at 189 ¶ 39). 

Rather, the comments appropriately drew the jury’s attention to an element 

of the charged crime. No misconduct occurred here.

¶137 Sixth, the prosecutor stated in his guilt-phase closing 

argument, “Where did they stab? What did Dr. Hu tell you? . . . Where are 

they stabbing with these knives? The neck, the heart, the kidney. There is 

nowhere that you can put this in your neck and not be lethal.” The last 

sentence was not supported by Dr. Hu’s testimony because he did not 

testify that every neck stab wound is lethal; however, it is not clear that the 

prosecutor intended to attribute his comment on the lethality of neck 

wounds to Dr. Hu. More importantly, the statement was not misconduct 

because it did not “call[] to the jury’s attention matters it should not have 

considered in reaching its decision.” See id. Taken in context, this statement 

was meant to impress upon the jury that stabbing someone in the neck is 

generally lethal, evincing Riley’s intent to murder Kelly. Intent is an 

element of first degree murder. See § 13-1105(A)(1). Further, there is no 

reasonable probability that the jury was “influenced by the remarks” to find 

intent where there was none. See Goudeau, 239 Ariz. at 466 ¶ 196. Kelly was 

stabbed 114 times. Even without the prosecutor’s characterization of neck 

wounds as always being fatal, the jury could find intent to murder from the 

number and location of Kelly’s stab wounds. Thus, this statement was well 

within the “wide latitude” given to parties in closing argument and was not 

misconduct. See id.

¶138 Seventh, the prosecutor stated in his guilt-phase closing 

argument, “But what Dr. Hu told you is that it’s impossible, impossible for 

blood spatter to get behind your ear and onto—the small little particles onto 
STATE V. RILEY

Opinion of the Court

45 

your body if the victim is dead.” This is a reasonable inference from Dr. 

Hu’s testimony that bleeding does not occur if the heart is not beating. See 

id. No misconduct occurred here.

¶139 Finally, the prosecutor stated in his guilt-phase closing 

argument: 

So the question is who did it. We constantly 

heard about cell seven and cell one. Cell seven 

we can eliminate right off the bat. But the 

moment CO [correctional officer] Franco—the 

idea cell seven had anything to do with this 

crime was blown out the window. It was 

impossible. CO Franco told you that she stood 

at that cell, she spoke to the inmates—to those 

inmates and she shut the door.

So that only leaves whoever was up on the 

second tier and CO Vincent told you that she 

had an eye on them. And it’s just common 

sense. There was no way they could rush down, 

whoever these mystery little inmate ninjas are, 

completely undetected, stab, stab, stab, rush 

back up and do this without leaving a lick of 

blood.

Riley interprets this statement to mean that “[n]o one could come down 

from the second tier of the cell block without CO Vincent’s knowledge.” 

But the prosecutor’s statements are “reasonable inferences from the 

evidence.” See id. Specifically, Officer Vincent testified that she was 

watching the area, and Exhibit 14 shows that she had a full vantage point 

of both tiers of C Pod. No misconduct occurred here.

iv. Consistency of Prosecutor’s Remarks During Guilt-Phase 

Opening Statements and Aggravation-Phase Closing 

Arguments

¶140 Riley briefly argues that the prosecutor committed 

misconduct when he made inconsistent statements during guilt-phase 

opening statements and aggravation-phase closing arguments concerning 
STATE V. RILEY

Opinion of the Court

46 

whether Riley targeted Kelly or whether Kelly’s murder was at random. 

The guilt-phase opening statements are the following:

Sean had to go into protective custody because 

while he was in prison once, he refused to 

commit an act of violence on another inmate, so 

he was forced to go into PC. 

Now in the outside world, that would be 

normal. But to the world that the defendant 

lived in and the world of the [AB], that’s 

weakness. And weak inmates are targets for 

men who want membership in the [AB]. 

The aggravation-phase closing statements at issue are the following:

He [Riley] says—I believe it’s on page 2 or 3 [of 

his letter]—that he is hunting big time. He is 

hunting. He is not hunting for one person, 

specifically. He is coldly and dispassionately 

laying out any target that he can get. It doesn’t 

matter who. Any golden goose.

¶141 These statements are not inconsistent. The prosecutor’s 

statements reflect the State’s theory that the AB targeted Kelly because of 

his previous actions and that Riley did not care who he killed so long as it 

gained him admission to the AB. Once Riley received AB approval, he 

killed Kelly not because he had previously targeted him, but because the AB

sanctioned the murder and rewarded Riley for killing Kelly. No error 

occurred here.

¶142 Riley asserts there was another inconsistency in the guiltphase opening statement and closing arguments. In the opening statement, 

the prosecutor told the jury Olsen was able to “slither away quickly back to 

his cell unnoticed.” See supra ¶ 136. However, in the closing, the prosecutor 

stated that CO Vincent had a view of the second tier and none of the 

prisoners could have rushed down to commit the murder. See supra ¶ 139. 

Because Olsen lived on the second tier, Riley argues the comments were 

inconsistent.
STATE V. RILEY

Opinion of the Court

47 

¶143 These statements may be inconsistent; however, Riley cites to 

no case law, and we have found none, which holds that inconsistent 

statements per se constitute misconduct. Rather, the standard for 

determining misconduct remains the two-prong Goudeau test. 239 Ariz. at 

466 ¶ 196. Evidence of Olsen’s participation, as discussed in the first 

statement, was proper because it tended to show premeditation, which is 

an element of first degree murder. See § 13-1105(A)(1). As for the second 

statement, suggestion of Olsen’s non-participation did not bring anything 

to the attention of the jury, for or against Riley. If anything, such an 

inconsistency likely inured to Riley’s benefit to the extent it undermined the 

State’s theory. In any event, any inconsistency in the prosecutor’s 

statements regarding Olsen’s participation in Kelly’s murder was unlikely 

to influence the jury as to Riley’s guilt given the weight of the evidence. See

Goudeau, 239 Ariz. at 466 ¶ 196. 

¶144 As a final note on the prosecutor’s opening statement and 

closing argument, any prejudice was ameliorated by the trial court’s 

curative instructions. When a trial court instructs the jury that the 

statements made by the attorneys are not evidence, the instructions 

“generally cure any possible prejudice from argumentative comments 

during opening statements.” State v. Manuel, 229 Ariz. 1, 6 ¶¶ 23–24 (2011). 

Here, the trial court instructed the jury three times that the statements made 

by the attorneys were not evidence. Thus, any prejudice that Riley may 

have suffered due to the prosecutor’s comments during opening statement 

or closing argument is ameliorated by the trial court’s curative instructions.

v. Prosecutor’s Statements Regarding Lack of Witnesses for 

Riley

¶145 Riley argues that the prosecutor committed misconduct by 

asserting that no witnesses had come forward to testify due to AB 

intimidation. In his guilt-phase closing argument, Riley said, “Now, all of 

these guys are neighbors. Look at the photo in that exhibit. You’re telling 

me that nobody heard any screaming. Nobody came forward and said that 

they saw something or heard something. This was an inside-of-C-Pod job, 

and their silence speaks volumes.” On rebuttal, the prosecutor said, “Why 

wouldn’t people testify against Tommy Riley? . . . Maybe because the [AB]

did their job that day. What did Keland Boggs tell you? Fear and 

intimidation is how they run the prisons.” 
STATE V. RILEY

Opinion of the Court

48 

¶146 Here, Riley’s closing argument invited the prosecutor’s 

response. See Young, 470 U.S. at 12–13; see also Alvarez, 145 Ariz. at 373. 

Riley implied that no witnesses had come forward because the murder was 

an “inside job,” thus evincing Riley’s innocence. The prosecutor rebutted 

that the lack of witnesses was likely due to the AB’s intimidation tactics. 

Further, this statement was a fair inference from the evidence. No 

misconduct occurred here.

vi. Prosecutor’s Statements About Kelly’s Time in Protective 

Custody

¶147 During the guilt-phase of the trial, the following colloquy 

occurred between the prosecutor and Officer Dziadura: 

Q. With respect to Sean Kelly, what did you 

learn about the reasons why he had went into 

protective custody?

A. Well, he was at our Douglas facility. He was 

asked by influential white inmates to assault 

another inmate. He refused to do so. They 

came back to him and told him if he wasn’t 

going to do it he needed to cover up some 

lightning bolts tattoo that he had on his person 

or be injured.

In his closing argument in the mitigation phase, the prosecutor said:

They honestly got up there and asked you about 

how about it is [sic] the Department of 

Correction’s fault, how they create a kill-or-killbe killed environment. You want to talk about 

kill-or-be-killed environment; he [Riley] is the 

kill-or-get-killed environment.

You don’t have two more different people, Sean 

Kelly, who had to go to protective custody 

because he wouldn’t be a part of that world, and 

the defendant, who executed him. It is not kill 

or get killed. It is like that because people like 
STATE V. RILEY

Opinion of the Court

49 

Tommy Riley control the prisons. Men like 

Sean Kelly put their head down and do their 

time and they won’t attack another inmate. 

People like the defendant prey on that and they 

show no mercy.

¶148 Riley specifically challenges the statements that Kelly went 

into protective custody to avoid the “kill-or-get-killed environment.” Riley 

interprets the prosecutor’s commentary as asserting that Kelly had 

renounced violence and argues that the prosecutor intended to portray 

Kelly in a more positive light. Riley asserts this was intentional misconduct, 

was fundamental error, and ultimately prejudiced him because Kelly’s 

renunciation of violence was not in evidence, was irrelevant and, thus, 

called the attention of the jury to matters which it should not have 

considered. 

¶149 Riley’s arguments are unpersuasive. First, the evidence of 

why Kelly went into protective custody is relevant. See Ariz. R. Evid. 401.

The State’s theory was that Kelly was targeted because he entered 

protective custody to avoid the AB’s directive to assault another inmate. 

The comment, thus, tends to make Riley’s guilt more probable because it 

shows motive which is relevant when determining guilt.

¶150 Second, the prosecutor’s commentary in his mitigation-phase 

closing argument was a reasonable inference from the trial evidence, 

namely Officer Dziadura’s testimony that Kelly went into protective 

custody because he refused to assault another inmate and Boggs’s 

testimony that refusing to earn a “political tattoo” could result in murder 

of the refusing party. See Goudeau, 239 Ariz. at 466 ¶ 196. Accordingly, no 

misconduct occurred here, much less fundamental error.

vii. Prosecutor’s Statements That Allegedly Inflamed the Jury’s 

Passions

¶151 During the guilt-phase opening statement, the prosecutor 

stated:

Now Sean wasn’t a child molester, he wasn’t a 

rapist and he wasn’t a snitch. Sean had to go 

into protective custody because while he was in 
STATE V. RILEY

Opinion of the Court

50 

prison once, he refused to commit an act of 

violence on another inmate, so he was forced to 

go into PC.

. . . 

The man that the defendant chose to hunt and 

murder was a man by the name of Sean Kelly. 

Now, Sean Kelly was just a guy. He was in 

prison because he’s a drug addict and he was 

caught in the revolving door of prison, 

addiction, prison, even though he had a loving 

family that cared for him.

During the penalty-phase closing argument, the prosecutor illustrated the 

differences between the victim, who went into protective custody to avoid 

prison violence, and the defendant, who embraced it. See supra ¶ 147. Riley 

argues that the prosecutor improperly intended “to promote a verdict 

based on sympathy for the victim.”

¶152 Riley’s argument is unpersuasive. Even if we accept the 

premise that these statements brought to the jury’s attention matters it 

should not have considered—i.e., sympathy for the victim—there is littleto-no probability that the statements—which characterized Kelly as a drug 

addict and a recidivist offender—influenced the jury. See Goudeau, 239 Ariz. 

at 466 ¶ 196. The statements were fleeting and unconnected, and the jury 

was instructed four times to not take sympathy for the victim into account 

when making its decision. See Escalante-Orozco, 241 Ariz. at 282 ¶ 102 

(finding that fleeting comments made by the State did not constitute 

fundamental, reversible error especially because the court instructed the 

jury to not take sympathy for the victim into consideration).

¶153 Riley also objects to the prosecutor’s comments during the 

penalty-phase closing argument. There, the prosecutor said:

But he did not die alone. He did not die alone, 

because the defendant, like a jackal standing 

over a fresh kill, turned over his dying body and 

picked him clean from his clothing so that he 

could get away with this murder. That is how 

Sean Kelly died.
STATE V. RILEY

Opinion of the Court

51 

But unflattering analogies during closing arguments that are supported by 

facts in common knowledge are permissible. State v. Jones, 197 Ariz. 290, 

306 ¶ 41 (2000). In Jones, the prosecutor told the jury that just because the 

defendant was a “nice guy” and “polite” did not mean that he could not 

have committed the charged murders and mentioned that Ted Bundy and 

John Wayne Gacy were also polite. Id. We found these statements to be 

permissible because “jurors may be reminded of facts that are common 

knowledge” and because the statement “drew an analogy between Jones’s 

attitude at trial and that of well-known murderers.” Id.; see also Goudeau, 

239 Ariz. at 465-66 ¶¶ 195–97 (referring to a defendant as a “wolf in sheep’s 

clothing” during closing argument was not improper). Here, it is common 

knowledge that jackals are opportunistic, predatory animals. Comparing 

Riley’s cold act of divesting a dying man of his clothing from his cell to a 

jackal’s actions was within the range of permissible argument.

¶154 Finally, Riley contends the prosecutor’s comment near the 

conclusion of the penalty-phase closing argument invited the jury to convict 

him based on anger rather than on the evidence presented. The prosecutor 

said:

You are here to uphold the law, and that is the 

law that the judge gave you. We can show our 

outrage at this crime through your verdict. We 

can show outrage at this crime through the 

punishment of the defendant.

¶155 First, it is not clear that this statement appealed to the jury’s 

passions at all. The prosecutor urged the jury to express its outrage at the 

crime for which Riley was already convicted by punishing him. Certainly, 

it is proper for the State to urge the jury to punish a defendant for his crimes. 

An invitation to show “outrage” at the crime does not invite the jury to 

punish the defendant on anything other than the evidence presented at 

trial.

¶156 Second, even if the statement were misconduct, it did not 

amount to fundamental error. In Jones, the State asked the jury to convict 

the defendant on behalf of the victim, their families, and the people of 

Arizona. 197 Ariz. at 307 ¶ 43. Even though we acknowledged that such a 

statement may have improperly evoked emotion in the jury, we found that 

any error did not amount to reversible error because it was a single 
STATE V. RILEY

Opinion of the Court

52 

statement, the evidence against the defendant was substantial, and any 

error was cured by the trial judge instructing the jury to ignore statements 

“invoking sympathy.” Id. at 306–07 ¶¶ 42–43. Here, the prosecutor made a 

much less provocative statement, and the trial judge instructed the jury to 

not be influenced by sympathy or passion on four separate occasions. Thus, 

any error was cured by the trial court’s instructions.

viii. Prosecutor’s Elicitation of Testimony in Violation of Rules 

of Evidence 

¶157 Riley asserts that the prosecutor improperly elicited 

testimony regarding Kelly’s time in protective custody and other evidence 

in violation of Arizona’s Rules of Evidence. As discussed, supra ¶¶ 57–78,

any error that may have arisen from the admission of that evidence was not 

fundamental. For this reason, Riley’s argument on this point fails.

ix. Cumulative Effect

¶158 We may reverse a conviction due to prosecutorial misconduct 

if “the cumulative effect of the alleged acts of misconduct shows that the 

prosecutor intentionally engaged in improper conduct and did so with 

indifference, if not a specific intent, to prejudice the defendant.” EscalanteOrozco, 241 Ariz. at 280 ¶ 91 (quoting Bocharski, 218 Ariz. at 492 ¶ 74). Riley 

argues that the cumulative effect of the alleged misconduct proves the 

prosecutor’s intent to prejudice him and his conviction should be reversed. 

For the reasons discussed, we reject Riley’s claim; there was no error in the 

prosecutor’s contested statements. Even if there were error, Riley has failed 

to prove that the prosecutor did so with “indifference” or “specific intent.” 

For these reasons, Riley is not entitled to relief on these grounds.

J. Failure to Instruct Jurors of Ineligibility for Parole

¶159 Riley argues that the trial court committed error by failing to 

issue a Simmons instruction regarding his ineligibility for parole. See 

Simmons v. South Carolina, 512 U.S. 154 (1994). Because Riley failed to object 

on Simmons grounds during his trial, “our review [is limited] to 

fundamental error.” State v. Bush, 244 Ariz. 575, 591 ¶¶ 66–68 (2018) (citing 

State v. Valverde, 220 Ariz. 582, 584–85 ¶¶ 9–12 (2009), abrogated on other 

grounds by Escalante, 245 Ariz. 135); see also Hargrave, 225 Ariz. at 14 ¶¶ 50–

51. 
STATE V. RILEY

Opinion of the Court

53 

¶160 Riley argues that he sufficiently objected by submitting his 

own Proposed Preliminary Instructions (guilt phase) that did not “include 

the objectionable reference to release,” which the trial court rejected. This 

argument is unpersuasive for two reasons. First, neither Riley’s nor the trial 

court’s preliminary instructions read to the jury contained the 

“objectionable reference to release” because the guilt phase instructions did 

not pertain to the prospective penalty following conviction; thus, Riley’s 

proposed guilt phase jury instructions cannot reasonably be construed as 

an objection to the reference to release. Second, as discussed below, at no 

point did Riley object to any reference to the possibility of release nor did 

he affirmatively request an alternative instruction regarding his ineligibility 

for parole.4 

¶161 During jury selection, the trial court provided prospective 

jurors with written questionnaires. Both Riley and the prosecutor reviewed 

and approved the questionnaire at a pre-trial status conference. In 

describing the penalty phase of the trial, the questionnaire stated, in 

relevant part:

If you unanimously find the mitigation is 

sufficiently substantial to call for leniency, the 

Court will sentence the defendant to either life 

imprisonment without the possibility of release 

or life without release until at least twenty-five years 

have passed. 

Question 62 substantially reiterated that statement and asked the jurors if 

they “agree[d] with the law that requires the judge, not the jury, to make 

the decision about which type of life sentence to impose.”

¶162 On September 29, 2015, on the second day of voir dire, the 

trial court discussed with the parties whether they wanted the trial court to 

read an overview of the death penalty process to each juror panel before 

questioning them. Riley stated that he was “comfortable” with the contents 

 

4 Riley raises several other arguments for de novo or fundamental error 

review, most of which are based on the proposition that a court must sua 

sponte issue a Simmons instruction. Riley’s arguments are unavailing 

because he fails to distinguish Bush, which expressly forecloses his claim in 

light of his failure to object to his possibility of release. 244 Ariz. at 593 ¶ 75. 
STATE V. RILEY

Opinion of the Court

54 

of the overview and, along with his counsel, agreed that the trial court 

should read the overview to each panel. Two days later, during a 

conference to settle miscellaneous matters, the trial court reiterated its

intent to read the overview to the jurors, and neither side objected nor 

raised any concerns. 

¶163 On October 5, before the first juror panel entered the 

courtroom, the trial judge again reiterated his intent to read the overview 

to the jurors, and neither side objected. As part of the overview, the trial 

court informed the first juror panel that:

If your sentence is death, he will be sentenced to 

death. If your verdict is that the defendant 

should be sentenced to life, he will not be 

sentenced to death, and the Court will sentence 

him to either life without the possibility of release 

until 35 calendar years are served, or natural life, 

which means the defendant would never be 

released from prison.

Later the same day and over the next few days of voir dire, the trial court 

continued to instruct each juror panel with the same language from the 

overview. 

¶164 On November 4, following Riley’s conviction and during a 

telephonic status conference before the aggravation phase, the trial court 

stated, “[M]y JA [Judicial Assistant] sent out the instructions and she didn’t 

hear back from either lawyer as far as the eligibility phase instructions that 

she sent out.” In response, both the State and Riley’s counsel stated that 

they had received the instructions and had no corrections.

¶165 On November 5, at the start of the aggravation phase, the trial 

court informed counsel for both sides that it would begin by reading the 

instructions. Both parties acknowledged that they had reviewed the 

instructions, and neither party objected to their contents. The approved 

instructions the trial court read to the jury expressly stated that Riley could 

be sentenced to life imprisonment “with the possibility of release after 25 

years.” 
STATE V. RILEY

Opinion of the Court

55 

¶166 On November 12, at the end of the penalty phase, the trial 

court read and explained the verdict form before releasing the jury to 

deliberate. As part of its explanation, the trial court stated that if the jury 

found that Riley should be sentenced to life, then Riley could be “sentenced 

to life in prison with the possibility of release in 25 years.” Riley’s counsel 

reviewed and approved the verdict form.

¶167 Riley argues the trial court violated his right to due process 

by failing to provide the jury with a Simmons instruction—one that 

informed the jury that Riley was ineligible for parole if given a life sentence. 

Riley’s argument, however, is premised on authority that predates our 

decision in Bush, which forecloses his claim. See 244 Ariz. at 593 ¶ 74. 

¶168 In Bush, we adopted a “narrow interpretation of Simmons,” 

reasoning that “the due process right under Simmons merely affords a 

parole-ineligible capital defendant the right to ‘rebut the State’s case’ (if 

future dangerousness is at issue) by informing the jury that ‘he will never 

be released from prison’ if sentenced to life.” 244 Ariz. at 592–93 ¶¶ 73–74 

(quoting Simmons, 512 U.S. at 177 (O’Connor, J., concurring in judgment)). 

We noted that relief under Simmons “is foreclosed by [the defendant’s] 

failure to request a parole ineligibility instruction at trial.” Id. at 593 ¶ 74

(quoting Campbell v. Polk, 447 F.3d 270, 289 (4th Cir. 2006)). Ultimately, we

held that despite the trial court’s repeated instructions to the jury that Bush 

would be eligible for parole, and defense counsel’s brief and “vaguely 

voiced disagreement before jury selection over whether jurors should ‘be 

advised as to the possibility of release,’” no fundamental Simmons error 

occurred because Bush failed to show “that he was deprived of the right to 

inform the jury of his parole ineligibility.” Id. at 590 ¶ 64, 592 ¶ 70, 593 ¶ 75 

(“Unlike in the aforementioned cases [in which courts found reversible 

Simmons error], the trial court neither refused to instruct, nor prevented 

Bush from informing, the jury regarding his parole ineligibility.”). 

¶169 Here, the trial court afforded Riley numerous opportunities 

to object to, or modify, the jury questionnaire, the death penalty overview, 

the eligibility phase jury instructions, and the verdict form, but Riley and 

his counsel declined. More importantly, at no point did Riley or his counsel 

offer parole ineligibility instructions orally or in writing. As in Bush, Riley 

“has not shown that he was deprived of the right to inform the jury of his 

parole ineligibility.” 244 Ariz. at 593 ¶ 75. Despite the trial court’s 

numerous references to Riley’s release eligibility, “the trial court neither 
STATE V. RILEY

Opinion of the Court

56 

refused to instruct, nor prevented [him] from informing, the jury regarding 

his parole ineligibility.” See id. In fact, Riley’s counsel repeatedly informed 

the jury that Riley would never be released from prison if given a life 

sentence and the prosecutor never disputed the point. Thus, Riley failed to 

establish a Simmons error and is not entitled to relief on this issue. 

¶170 Consequently, because Riley failed to establish error even if

he would have been entitled to a requested Simmons instruction because 

future dangerousness was at issue, we need not address that issue. 

Similarly, we need not address whether Riley “carried his burden of 

establishing prejudice resulting from any alleged Simmons error.” Id.

K. Request to Revisit Decisions Made in Hidalgo

¶171 Riley argues Arizona’s capital punishment scheme is 

unconstitutional because it fails to legislatively narrow the class of first

degree murders eligible for the death penalty and the trial court abused its 

discretion by refusing to grant an evidentiary hearing on this issue. We 

recently rejected substantially similar claims in Hidalgo. 241 Ariz. at 549–52 

¶¶ 14–29. 

¶172 We review constitutional questions de novo, State v. Smith, 

215 Ariz. 221, 228 ¶ 20 (2007), and a trial court’s failure to grant an 

evidentiary hearing for an abuse of discretion, State v. Gomez, 231 Ariz. 219, 

226 ¶ 29 (2012). 

¶173 In Hidalgo, we rejected the argument that Arizona’s death 

penalty scheme does not sufficiently narrow the class of defendants eligible 

for the death penalty. 241 Ariz. at 549–52 ¶¶ 14–29. That argument was 

premised, in part, on the same statistical evidence put forth by Riley. Id. at 

551 ¶ 25. We also rejected the argument that the trial court’s refusal to grant 

an evidentiary hearing when the previous issue was raised below was an 

abuse of discretion. Id. at 548–49 ¶¶ 8–13. 

i. Constitutionality of Arizona’s Death Penalty Statutes 

¶174 We have repeatedly rejected the argument “that our 

legislature has not narrowed the class of persons eligible for the death 

penalty.” State v. Greenway, 170 Ariz. 155, 164 (1991); see Hidalgo, 241 Ariz. 

at 551 ¶ 27. But Riley asks us to reconsider that argument based primarily 
STATE V. RILEY

Opinion of the Court

57 

on statements by Justice Breyer in the denial for certiorari for Hidalgo. 

Hidalgo v. Arizona, 138 S. Ct. 1054, 1057 (2018) (mem.) (Breyer, J., statement). 

We are not persuaded. 

¶175 “To pass constitutional muster, a capital sentencing scheme 

must ‘genuinely narrow the class of persons eligible for the death penalty 

and must reasonably justify the imposition of a more severe sentence on the 

defendant compared to others found guilty of murder.’” Lowenfield v. 

Phelps, 484 U.S. 231, 244 (1988) (quoting Zant v. Stephens, 462 U.S. 862, 877 

(1983)). State legislatures can provide this narrowing function by either 

narrowly defining capital offenses “so that the jury finding of guilt 

responds to this concern,” or by “broadly defin[ing] capital offenses and 

provid[ing] for narrowing by jury findings of aggravating circumstances at 

the penalty phase.” Id. at 246. 

¶176 Riley first asks us to “review the holistic aggravation 

scheme.” Although this argument is somewhat unclear, Riley appears to 

be urging us to examine the aggravating factors in their entirety—as 

opposed to individually—when considering whether the legislature has 

sufficiently narrowed the class of persons eligible for the death penalty. If 

that is the case, we rejected a similar argument in Hidalgo, noting that 

Supreme Court precedents undermine such a position. 241 Ariz. at 550–51 

¶¶ 19–20, 26 (“Observing that at least one of several aggravating 

circumstances could apply to nearly every murder is not the same as saying 

that a particular aggravating circumstance is present in every murder.”).

¶177 Riley next argues that Arizona’s broad definition of first

degree murder does not satisfy the legislative duty to narrow the class of 

persons eligible for the death penalty. On this point, Riley is likely correct. 

In Hidalgo, we referenced Arizona’s limitation of the death penalty to first 

degree murder as one of several factors to support our holding. 241 Ariz. 

at 552 ¶ 28 (citing Greenway, 170 Ariz. at 164). But Arizona’s definition of 

first degree murder is overly broad, encompassing all intentional, 

premeditated murders. See § 13-1105(A); cf. Lowenfield, 424 U.S. at 245

(discussing, with approval, the constitutionality of the death penalty 

statutes of Texas and Louisiana which “narrowly defined the categories of 

murders for which a death sentence could be imposed”). Nevertheless, we 

expressly rejected that argument in Greenway, and the lack of a narrow 

definition of first degree murder is not dispositive. See Greenway, 170 Ariz. 

at 164; see also Lowenfield, 484 U.S. at 246. 
STATE V. RILEY

Opinion of the Court

58 

¶178 Next, relying on the statistical analysis presented to the trial 

court, Riley contends those results directly contradict our holding in Hidalgo 

that Arizona’s death penalty scheme sufficiently narrows the class of 

persons eligible for the death penalty. In addressing this argument in 

Hidalgo, we stated: 

The Court has not looked beyond the particular 

case to consider whether, in aggregate, the 

statutory scheme limits death-sentence 

eligibility to a small percentage of first degree

murders. Even if Hidalgo is right in his factual 

assertion that nearly every charged first degree

murder could support at least one aggravating 

circumstance, no defendant will be subject to a 

death sentence merely by virtue of being found 

guilty of first degree murder and, as Hidalgo 

acknowledges, death sentences are in fact not 

sought in most first degree murder 

cases. Observing that at least one of several 

aggravating circumstances could apply to 

nearly every murder is not the same as saying 

that a particular aggravating circumstance is 

present in every murder. 

241 Ariz. at 551 ¶ 26. Justice Breyer interpreted these statements to mean 

we “assum[ed] that the aggravating circumstances fail to materially narrow 

the class of death-eligible first-degree murder defendants.” Hidalgo v. 

Arizona, 138 S. Ct. at 1056. This suggests that our rejection of the “holistic 

view” of aggravating circumstances in favor of the narrowing nature of 

individual aggravating circumstances is contrary to at least four of the 

Justices’ interpretation of Supreme Court precedent. But because we 

decline to overrule our holding in Hidalgo in favor of a minority opinion 

from the Supreme Court, this argument carries little weight. See Teague v. 

Lane, 489 U.S. 288, 296 (1989) (noting that opinions accompanying certiorari

denials have no precedential value).

¶179 Finally, Riley argues we erroneously relied on jury functions 

(i.e., finding the existence of an alleged aggravating circumstance beyond a 

reasonable doubt) and individualized sentencing to support our holding in 
STATE V. RILEY

Opinion of the Court

59 

Hidalgo because the former “do[es] not show the necessary legislative

narrowing that [U.S. Supreme Court] precedents require” and the latter 

“concerns an entirely different capital punishment requirement.” Both 

arguments are supported by Supreme Court precedents, which require the 

legislature to provide the narrowing function within the statutory 

definitions of the capital offenses or the aggravating circumstances. See 

Tuilaepa, 512 U.S. at 979; Lowenfield, 484 U.S. at 246; Zant, 462 U.S. at 878. 

But, as stated previously, we held in Hidalgo that the aggravating 

circumstances set forth by the Arizona Legislature provide the 

constitutionally required narrowing function, and that holding remains 

binding precedent. Thus, the fact that some of the arguments put forth to 

support that holding may be contradicted by some Supreme Court

precedents does not invalidate that holding.

¶180 In sum, the arguments and accompanying conclusions of law 

enunciated by Justice Breyer and embraced by Riley are not mandated by 

any current, binding precedents. Accordingly, because Riley has not 

established that Hidalgo’s holding is incorrect, he is not entitled to relief on 

this issue.

ii. Denial of Evidentiary Hearing

¶181 Riley provides three reasons to support his argument that the 

trial court abused its discretion by failing to grant an evidentiary hearing 

on the facts supporting his claim that Arizona’s death penalty scheme was 

unconstitutional. None of them is persuasive.

¶182 First, Riley argues the trial court’s refusal to conduct an 

evidentiary hearing infringed his right to a meaningful appeal because the 

lack of a hearing resulted in a record that was insufficiently complete to 

allow an adequate appeal of the issue. Riley relies on Justice Breyer’s 

statement respecting denial of certiorari in Hidalgo to show the impact the 

lack of hearing had on his appeal. See Hidalgo, 138 S. Ct. at 1056 (Breyer, J., 

statement) (noting that the trial court’s refusal to grant a hearing denied the 

defendant the opportunity to develop the record). Riley contends that 

Justice Breyer’s statement contradicts our conclusion that Hidalgo was 

afforded an opportunity to be heard. 

¶183 A record that is of “sufficient completeness for adequate 

consideration of the errors assigned” is “satisfactory to afford [a] defendant 
STATE V. RILEY

Opinion of the Court

60 

a meaningful right of appeal.” State v. Schackart, 175 Ariz. 494, 499 (1993)

(quoting in part State v. Moore, 108 Ariz. 532, 534 (1972)). Because the trial 

court assumed as true the evidence Riley and the other defendants 

presented for the constitutional issue, and we addressed the same issue on 

appeal in Hidalgo, there was no error for which the record was lacking.

¶184 Second, Riley argues that the refusal to conduct a hearing 

violated his right to due process because the right fundamentally requires 

an opportunity to be heard at a meaningful time and in a meaningful 

manner. He further contends that capital cases are entitled to a heightened 

due process protection because they are unique in their finality. Riley also 

cites the Arizona Constitution, stating that article 2, section 24 “provides 

broader protections for criminal appeals” than the Federal Constitution, 

which therefore “carries with it a greater demand for process.”

¶185 To support this argument, Riley relies on the same cases relied 

upon by Hidalgo. In Hidalgo, we agreed that “due process entitles parties 

to notice and a meaningful opportunity to be heard” and “capital 

defendants are accorded heightened procedural safeguards,” but we found

the cases upon which Hidalgo relied were inapposite. 241 Ariz. at 548 ¶¶ 9–

10. We also “recognized that evidentiary hearings are not required when 

courts need not resolve factual disputes to decide constitutional issues.” Id.

at 548 ¶ 8. And we rejected the argument “that a capital defendant is 

entitled to an evidentiary hearing on a pretrial motion even if the court’s 

ruling does not turn on disputed facts.” Id. ¶ 9. Although Hidalgo may not 

have relied on the Arizona Constitution to support his arguments, we 

clearly stated that “[p]rocedural due process does not require an 

evidentiary hearing on a motion when the legal claims do not turn on 

disputed facts.” Id. at 549 ¶ 11. Riley has provided no case law to support 

his proposition that the Arizona Constitution would contradict this 

holding. Therefore, the trial court’s refusal to conduct an evidentiary 

hearing did not violate his right to due process.

¶186 Finally, Riley argues under Strickland v. Washington, 466 U.S. 

668 (1984), that the refusal to conduct a hearing violated his right to effective 

counsel because it impeded his counsel’s ability “to make independent 

decisions about how to conduct the defense.” This argument is likewise

unpersuasive. The examples of government interference with a counsel’s 

independent decisions discussed in Strickland reflect a direct interference 

with the rights of a defendant. See, e.g., Geders v. United States, 425 U.S. 80, 
STATE V. RILEY

Opinion of the Court

61 

88–89 (1976) (bar on attorney-client consultation during overnight recess 

denied defendant his right to confer with counsel); Herring v. New York, 422 

U.S. 853, 864–65 (1975) (bar on summation at bench trial denied defendant 

his right to be heard). Here, as discussed previously, Riley did not have a 

right to an evidentiary hearing. Therefore, the trial court’s refusal to 

conduct one did not violate his right to effective counsel.

¶187 Because the trial court did not abuse its discretion by refusing 

to grant an evidentiary hearing on the facts supporting Riley’s claim that 

Arizona’s death penalty scheme was unconstitutional, Riley is not entitled 

to relief on this issue.

L. Constitutionality of A.R.S. § 13-752(G) and Defendant’s 

Right to Waive Presentation of Mitigating Evidence

¶188 Riley argues that A.R.S. § 13-752(G) is unconstitutional 

because it fails to provide a process to allow jurors to consider mitigating 

evidence when a defendant waives his right to present such evidence. He 

also argues that the trial court erred by allowing him to waive his right to 

present mitigating evidence during the penalty phase of the trial. 

¶189 We “review constitutional issues de novo, and, when 

possible, construe statutes to uphold their constitutionality.” Hausner, 230 

Ariz. at 82 ¶ 99. Because Riley failed to raise his second claim below, we 

review that challenge for fundamental error. Henderson, 210 Ariz. at 567 

¶ 19. 

¶190 In the aggravation phase, Riley’s counsel told the trial court 

that Riley wanted to waive mitigation, against his counsel’s advice. Riley’s 

counsel declared that he had intended to call several witnesses to testify 

about various mitigating circumstances. The trial court then engaged Riley 

in a colloquy, and Riley avowed that he understood his right to present 

mitigation, he was aware of the evidence his attorneys intended to present, 

he had discussed his waiver with his attorneys, he understood that the State 

could still argue for the death penalty even if Riley waived his right to 

present mitigating evidence, and he understood that the jurors would still 

make the decision on whether death was the appropriate sentence. Riley 

confirmed his decision to waive mitigation and avowed he was doing so 

voluntarily. 
STATE V. RILEY

Opinion of the Court

62 

¶191 The trial court found that Riley’s waiver was made 

knowingly, intelligently, and voluntarily, but it approved Riley’s counsel’s 

motion to have Riley prescreened for competency. After receiving the 

results confirming Riley’s competency, the court denied Riley’s counsel’s 

request for another competency evaluation, but it reengaged Riley in 

another mitigation waiver colloquy, which substantially mirrored its 

previous discussion with him. The court again found that Riley waived his 

right to present mitigation knowingly, intelligently, and voluntarily. 

¶192 During the penalty phase, the court instructed the jury as 

follows:

During this part of the sentencing hearing, the 

defendant and the State may present any 

evidence that is relevant to the determination of 

whether there is mitigation that is sufficiently 

substantial to call for a sentence less than death. 

. . . 

Mitigating circumstances may be found from 

any evidence presented during the trial, during 

the first part of the sentencing hearing, or 

during the second part of the sentencing 

hearing.

You should consider all of the evidence without 

regard to which party presented it. Each party 

is entitled to consideration of the evidence 

whether produced by that party or by another 

party.

. . . 

Mitigating circumstances may be offered by the 

defendant or State or be apparent from the 

evidence presented in any phase of these 

proceedings. You are not required to find that 

there is a connection between a mitigating 

circumstance and the crime committed in order 

to consider the mitigation evidence. Any 

connection or lack of connection may impact the 
STATE V. RILEY

Opinion of the Court

63 

quality and strength of the mitigation evidence. 

. . . 

The fact that the defendant has been convicted 

of first degree murder is unrelated to the 

existence of mitigating circumstances. You 

must give independent consideration to all of 

the evidence concerning mitigating 

circumstances despite the conviction. You may 

also consider anything related to the 

defendant’s character, propensity, history or 

record, or circumstances of the offense.

 . . . 

You are not limited to mitigating circumstances 

offered by the defendant. You must also 

consider any other information that you find is 

relevant in determining whether to impose a life 

sentence, so long as it relates to an aspect of the 

defendant’s background, character, 

propensities, record, or circumstances of the 

offense.

¶193 Riley argues that § 13-752(G) is unconstitutional because the 

Eighth Amendment requires the sentencer in a capital case to consider all 

available mitigating evidence, regardless of the defendant’s desire to have 

that information presented, and the statute does not provide a process to 

allow jurors to consider mitigating evidence when a defendant waives his 

right to present such evidence. He asserts that a jury cannot perform the 

requisite individualized determination in a consistent manner if 

consideration of mitigating circumstances is subject to “the whim of the 

defendant.” 

¶194 The cases upon which Riley relies do indeed hold that the 

Eighth Amendment requires individualized consideration of mitigating 

factors by the sentencer, but none of them suggests that when a defendant 

waives his right to present mitigation, the court must provide some other 

means by which the sentencer can consider that potentially available but 

unoffered mitigating evidence. See Tuilaepa, 512 U.S. at 972–73 (noting the 

requirement for individualized consideration is satisfied “when the jury can
STATE V. RILEY

Opinion of the Court

64 

consider relevant mitigating evidence” (emphasis added)); Lockett v. Ohio, 

438 U.S. 586, 608 (1978) (holding unconstitutional a statute that limited the 

“range of mitigating circumstances which may be considered by the 

sentencer” (emphasis added)). 

¶195 In fact, the Supreme Court expressly rejected the argument 

that a jury’s failure to consider mitigating circumstances due to the 

defendant’s waiver of his right to present evidence of those circumstances 

violates the Eighth Amendment. See Blystone v. Pennsylvania, 494 U.S. 299, 

306–08, 206 n.4 (1990). The Eighth Amendment requires only that juries in 

capital cases be allowed to consider all relevant mitigating evidence, and that 

requirement is satisfied when the jury “[is] specifically instructed to 

consider, as mitigating evidence, any matter concerning the character or 

record of the defendant, or the circumstances of his offense.” Id. at 307–08

(internal quotations marks omitted). Similarly, relying on Blystone, we have

repeatedly held that a defendant’s knowing, intelligent, and voluntary 

waiver of his right to present mitigation does not violate the Eighth 

Amendment even when it precludes a jury from considering all relevant 

mitigation in determining whether to impose the death penalty. See 

Gunches, 240 Ariz. at 203–04 ¶¶ 15–20; Goudeau, 239 Ariz. at 473–74 ¶¶ 244–

45; Hausner, 230 Ariz. at 85 ¶ 118; State v. Murdaugh, 209 Ariz. 19, 33–34 

¶¶ 70–71 (2004). 

¶196 Riley attempts to incorporate our analysis in State v. Prince, 

226 Ariz. 516 (2011), to support his arguments, asserting that juries have a 

duty to consider, and therefore must consider, all mitigating evidence. But 

that case is inapposite. Although we did discuss the jury’s “duty” to 

consider mitigating evidence, it did not suggest in any way that a 

defendant’s waiver of his right to present mitigating evidence impedes that 

duty. See id. at 526–27 ¶¶ 15–20. In discussing the jury’s duty, we cited to 

State ex rel. Thomas v. Granville. Id. ¶ 16. Granville emphasized that any 

mitigating circumstances to be considered by the jury must be “proved by 

the defendant or present in the record.” 211 Ariz. 468, 472–73 ¶¶ 17–18 

(2005); see also State v. Roscoe, 184 Ariz. 484, 499 (1996) (“That the burden is 

on the defendant reinforces the conclusion that his personal decision not to 

present certain mitigating evidence is within his discretion.”). Indeed, this 

Court impliedly held § 13-752(G) to be constitutionally sound when we

ultimately concluded that the “liberal admission of . . . evidence” under 

§ 13-752(G) “preserves the entire statutory scheme’s constitutionality.”

Prince, 226 Ariz. at 526 ¶ 16, 527 ¶ 20. 
STATE V. RILEY

Opinion of the Court

65 

¶197 Riley argues that we should reconsider our numerous 

holdings on this issue and adopt a procedure from Florida that requires 

prosecutors to compile comprehensive reports of potentially mitigating 

evidence when a defendant refuses to present his own mitigation. See 

Marquardt v. State, 156 So. 3d 464, 491 (Fla. 2015). But we rejected a similar 

argument in Hausner, refusing to follow the decisions of a minority of courts 

that held that mitigation must be presented even over a defendant’s

objection to satisfy the state’s interest in a fair and reliable sentencing 

determination. 230 Ariz. at 85 ¶ 120 (citing State v. Koedatich, 548 A.2d 939, 

992–97 (N.J. 1988), which Florida courts relied on to adopt their mitigation 

procedures).

¶198 In sum, both the Supreme Court and this Court have 

repeatedly held that the Eighth Amendment requires only that a jury be 

allowed to consider mitigating evidence; it does not require a jury to be 

presented with that evidence over a defendant’s objections. More 

importantly, we have already implicitly found § 13-752(G) constitutional. 

Accordingly, the failure of the statute to provide a process for presenting 

mitigating evidence over a defendant’s objections does not render that 

statute unconstitutional, and Riley is not entitled to relief on this issue.

¶199 Riley’s argument that the trial court erred by allowing him to 

preclude the presentation of mitigating evidence relies on his proposed 

solution to resolving the potential conflict between a defendant’s right to 

self-representation under the Sixth Amendment and a trial court’s authority 

to “requir[e] the defense to present mitigating evidence over the 

defendant’s opposition.” See Hausner, 230 Ariz. at 85 ¶ 119. Riley argues 

that Sixth Amendment rights are not absolute and must give way to the 

Eighth Amendment requirement for individualized consideration. In the 

alternative, Riley argues that the trial court should have denied Riley’s 

request to preclude mitigating evidence because he effectively revoked his 

waiver of self-representation. 

¶200 But even accepting Riley’s arguments as true, thereby 

resolving the Sixth Amendment conflict identified in Hausner, Riley has 

failed to provide any persuasive arguments that support his underlying 

premise—that juries are constitutionally required to consider all mitigating 

evidence, even if that means presenting such evidence over the defendant’s 

objections. No such constitutional requirement exists, and we expressly 
STATE V. RILEY

Opinion of the Court

66 

rejected adopting any procedure that would impose such a requirement. 

See id. ¶ 120. In sum, we have repeatedly held that a competent defendant 

may knowingly, intelligently, and voluntarily waive mitigation. See, e.g., 

Gunches, 240 Ariz. at 203 ¶ 17; Goudeau, 239 Ariz. at 473 ¶ 240; Hausner, 230 

Ariz. at 84 ¶ 116. Absent any constitutional prohibition on defendants 

waiving their right to present mitigation, Riley is entitled to relief on this 

issue only if he did not knowingly, intelligently, and voluntarily waive 

mitigation.

¶201 Here, Riley unquestionably waived his right to present 

mitigation. After multiple colloquies with Riley, the trial court determined 

he waived his right knowingly, intelligently, and voluntarily. The court’s 

determination was further supported by the results of a competency 

evaluation requested by Riley’s counsel. Before the jury’s deliberations in 

the penalty phase, the trial court also properly instructed the jury, at length 

and in various ways, to consider all mitigating evidence from the parties 

and from the record, regardless of the source. 

¶202 The trial court did not err by finding that Riley waived his 

right to present mitigating evidence, and Riley has not persuaded us to 

reconsider our numerous precedents supporting a competent defendant’s 

choice to waive mitigation. Accordingly, Riley is not entitled to relief on 

this issue.

M. Abuse of Discretion in Jury’s Imposition of Death Penalty

¶203 Riley argues that the jury abused its discretion in finding he 

should be sentenced to death because there was no reasonable evidence in 

the record to sustain that decision. Because Riley committed the murder 

after August 1, 2002, we must review the jury’s findings of aggravating 

circumstances and the imposition of death sentences for abuse of discretion, 

A.R.S. § 13-756(A), viewing the facts in the light most favorable to 

sustaining the verdicts. State v. Naranjo, 234 Ariz. 233, 249 ¶ 81 (2014). “A 

finding of aggravating circumstances or the imposition of a death sentence 

is not an abuse of discretion if ‘there is any reasonable evidence in the 

record to sustain it.’” State v. Delahanty, 226 Ariz. 502, 508 ¶ 36 (2011) 

(quoting State v. Morris, 215 Ariz. 324, 341 ¶ 77 (2007)).
STATE V. RILEY

Opinion of the Court

67 

i. Aggravating Circumstances 

¶204 As to Kelly’s murder, the prosecution alleged, and the jury 

found beyond a reasonable doubt, five aggravating circumstances: (1) Riley 

was previously convicted of a serious offense, § 13-751(F)(2); (2) Riley 

committed the murder in an especially heinous, cruel, or depraved manner, 

§ 13-751(F)(6); (3) Riley committed the murder while in the custody of the 

ADOC, § 13-751(F)(7)(a); (4) Riley committed the murder to promote, 

further or assist a criminal street gang, § 13-751(F)(11); and (5) Riley 

committed the murder in a cold and calculated manner without pretense of 

moral or legal justification, § 13-751(F)(13). 

¶205 For the (F)(2) aggravator, the prosecution provided 

undisputed evidence that Riley was previously convicted of multiple 

counts of aggravated assault, kidnapping, and armed robbery. For the 

(F)(6) aggravator, the prosecution provided sufficient evidence for the jury 

to determine that Riley murdered Kelly in an especially cruel manner. On 

the cruelty prong, the prosecution provided evidence of Kelly’s defensive 

wounds and his attempt to flee his attackers by wedging himself under the 

toilet in his cell. The prosecution also produced evidence of Riley’s own 

written account of the murder, in which he recounted Kelly’s final words 

as he died. On the heinous or depraved prong, the prosecution provided 

evidence that Riley relished the attack immediately afterwards and 

engaged in gratuitous violence. The prosecution also relied again on Riley’s 

letter, focusing on Riley’s graphic and celebratory account of the murder. 

 

¶206 For the (F)(7)(a) aggravator, the prosecution provided 

undisputed evidence that Riley was in the custody of the ADOC when he 

committed the murder. For the (F)(11) aggravator, the prosecution 

provided evidence of Riley’s affiliation with the AB with pictures of his 

gang tattoos, his own written account of why he committed the murder, 

and testimony from Boggs—the special investigator—who identified the 

AB as a criminal street gang and testified that Riley met certain criteria as a 

member. Finally, for the (F)(13) aggravator, the prosecution relied once 

more on Riley’s written account of the murder, focusing on Riley’s lengthy 

planning and “hunting” for a target.

¶207 In sum, because the record provides substantial, reasonable 

evidence to support these uncontested findings, the jury did not abuse its 

discretion in finding the five aggravating circumstances.
STATE V. RILEY

Opinion of the Court

68 

ii. Imposition of Death Sentence 

¶208 Based on the record, the jury did not abuse its discretion when 

it sentenced Riley to death for murdering Kelly. Because each juror makes 

an individual finding of whether any mitigating circumstances were 

sufficient to warrant leniency, we must uphold a death sentence “if any 

reasonable juror could conclude that the mitigation presented was not 

sufficiently substantial to call for leniency.” Naranjo, 234 Ariz. at 250 ¶ 89

(citation omitted) (internal quotation marks omitted); see also Morris, 215 

Ariz. at 341 ¶ 81. Riley waived his right to present mitigation during the 

penalty phase, but “evidence admitted at the guilt phase is admitted for 

purposes of the sentencing phase, A.R.S. § 13–752(I), and the jury must 

‘consider the mitigating circumstances, whether proved by the defendant 

or present in the record, in determining whether death is the appropriate 

sentence.’” Hausner, 230 Ariz. at 87 ¶ 129 (quoting Granville, 211 Ariz. at 

473 ¶ 18).

¶209 Most of the mitigating evidence upon which Riley relies from 

the guilt phase of the trial is actually a lack of evidence. Riley contends that 

the lack of evidence of his direct participation in Kelly’s murder and general 

prison gang activity “reduced his moral culpability in the offense” 

sufficient to constitute an abuse of discretion on the jury’s imposition of a 

death sentence. The core of Riley’s argument appears to suggest there may 

have been residual doubt about his participation in Kelly’s murder. But 

any such “claim[] of . . . residual doubt do[es] not constitute mitigation for 

sentencing purposes.” State v. Moore, 222 Ariz. 1, 22 ¶ 133 (2009).

¶210 Riley also argues that the evidence that prison gangs could 

intimidate other prisoners into committing violent crimes on their behalf 

“did not support a conclusion that [he] had a ‘choice’ to refrain from 

participating in gang activity.” But Riley’s own written account of the 

murder conclusively counters this argument. In his letter, Riley explained 

in detail how he sought to identify and obtain approval to kill a victim to 

earn full membership with the AB.

¶211 Most importantly, Riley does not challenge the sufficiency of 

the evidence supporting the jury’s finding of any aggravating 

circumstances, except for a vague reference to the accomplice liability issue. 

See State v. Cruz, 218 Ariz. 149, 170 ¶ 136 (2008) (holding that a jury did not 
STATE V. RILEY

Opinion of the Court

69 

abuse its discretion by finding a particular aggravator because the 

defendant did not contest the evidence supporting the existence of that 

aggravator). Accordingly, because we conclude that a reasonable juror 

could find that Riley failed to establish sufficient and credible mitigation 

evidence, the jury did not abuse its discretion in returning a death sentence.

N. Issues Raised to Avoid Preclusion

¶212 Riley identifies thirty-four issues he seeks to preserve for 

federal review. As he concedes, we have previously rejected each of his 

claims. We decline to revisit them. 

CONCLUSION

¶213 We affirm Riley’s convictions and sentences.