State of Arizona v. Efren Medina

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

THE STATE OF ARIZONA,

Petitioner/Appellant,

v.

EFREN MEDINA,

Respondent/Appellee.

No. CR-10-0031-AP

Filed August 22, 2013

Appeal from the Superior Court in Maricopa County

The Honorable Christopher T. Whitten, Judge

No. CR1993-008378

AFFIRMED

COUNSEL:

Thomas C. Horne, Arizona Attorney General, Kent E. Cattani, former

Chief Counsel, Criminal Appeals/Capital Litigation, Jeffrey A. Zick, Chief

Counsel, Criminal Appeals/Capital Litigation, John Pressley Todd,

Assistant Attorney General (argued), Phoenix, for State of Arizona

David Goldberg, Attorney at Law (argued), Fort Collins, CO, for Efren

Medina

JUSTICE ROBERT BRUTINEL authored the opinion of the Court, in which

CHIEF JUSTICE BERCH, VICE CHIEF JUSTICE BALES, JUSTICE

PELANDER, and JUSTICE TIMMER joined.

JUSTICE BRUTINEL, opinion of the Court:

¶1 Efren Medina was convicted in 1995 of first degree murder, third

degree burglary, and aggravated robbery. The trial judge sentenced him

to death for the murder and to prison terms for the other crimes, and we

affirmed on appeal. State v. Medina, 193 Ariz. 504, 975 P.2d 94 (1999). In

2003, the trial court granted Medina’s petition for post-conviction relief

(“PCR”), which had alleged ineffective assistance of counsel at sentencing,

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Opinion of the Court

and vacated Medina’s death sentence.

¶2 At the 2008 resentencing trial, the jury found four aggravating

factors, but could not agree on the sentence. The judge declared a mistrial.

In 2009, a second penalty phase trial concluded with the jury determining

that Medina should be sentenced to death. We have jurisdiction over this

automatic appeal under Article 6, Section 5(3) of the Arizona Constitution

and A.R.S. §§ 13-4031 and 13-4033(A)(1).1

I. FACTUAL BACKGROUND

¶3 Just after midnight on September 30, 1993, Frazier Giles got out of

bed to open a window. In the parking lot across the street, he saw a

person sitting in his neighbor’s car with the door open and the headlights

on. Giles noticed what he thought was a “pile of rags” beside the car. A

few minutes later he heard someone say, “Please don’t hit me. Don’t hit

me. Don’t. Don’t.” Giles returned to the window and saw a second car

drive up and stop next to his neighbor’s vehicle. The driver spoke to the

person in the parked car for a few minutes before leaving.

¶4 The person in the parked car turned off the headlights, got out of

the car, stomped on the “pile of rags,” and then dragged the pile into the

street. At that point, Giles realized that the “pile of rags” was a person.

The second car returned and the person who had dragged the body got

inside. The car sped away, but then came “racing back” and ran over the

body with both the front and back wheels. Giles left the window to call

the police.

¶5 Medina’s girlfriend, Angela Calderon, testified that about two

hours later, she and a friend were sitting in her front yard when three men

arrived in Medina’s car. Medina got out of the driver’s side and Ernest

Aro stepped out from the passenger side. Kevin Martinez remained in the

backseat. Medina and Aro appeared intoxicated and were “laughing and

giggling.” Calderon asked why they were laughing, and Medina told her

to “watch the news” for a “speed bump” or “tire markings.” Medina also

simulated driving over a speed bump and made “varoom, bump, bump”

noises.

1 Unless otherwise noted, we cite the current version of statutes that

have not materially changed since Medina committed his crimes.

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Opinion of the Court

¶6 Medina met Calderon at a friend’s house later that morning, where

he told her that “he was scared, because they had done something

wrong.” Medina said that he and his friends had been riding in the car

when they decided to steal another car. Medina admitted pulling the car’s

occupant out of the vehicle and hitting and kicking him. Martinez and

Medina attempted to hot-wire the car and steal the radio but were

unsuccessful. Medina then pulled the man into the street.

¶7 Medina also told Calderon that Aro had driven off, assuming that

Medina and Martinez would follow in the stolen vehicle, but when they

did not, Aro returned to pick them up. Medina got in the driver’s seat

after telling Aro to scoot over. Medina drove off, then came back and ran

over the victim three times, going forward over him, then reversing over

him and going forward again.

¶8 Other evidence linked Medina to the murder. At the scene,

investigators found a plastic bag wet with gold paint and tire marks in

gold paint showing that Medina’s car had traveled both eastbound and

westbound. Medina’s fingerprints were found in the victim’s car, and it

appeared that someone had tried to remove the radio.

¶9 The police searched Medina’s car and found the victim’s watch,

hair, blood, tissue, and clothing fragments in the undercarriage, as well as

spatters of gold paint. In Medina’s bedroom, the police found another

plastic bag filled with gold paint.

II. ISSUES ON APPEAL

A. Denial of Medina’s PCR and Motion to Suppress

¶10 Medina argues that the trial court abused its discretion by denying

his second PCR without holding an evidentiary hearing and refusing to

suppress the evidence found as a result of a search warrant. After the trial

court vacated Medina’s death sentence and ordered resentencing in 2003,

Medina filed a second PCR in December 2005, claiming to have found

newly discovered evidence about Frazier Giles’s testimony and evidence

that the search warrant authorizing searches of Medina’s home and car

was unsigned, making the searches illegal. The trial court denied relief

without holding an evidentiary hearing. Medina did not seek review of

the denial of this second PCR. At Medina’s retrial in 2008, he moved to

suppress the evidence discovered as a result of the search warrant for the

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Opinion of the Court

same reasons alleged in his second PCR; the trial court denied the motion.

¶11 The State contends that Medina is precluded from raising the issue

whether the trial court abused its discretion by denying his PCR because

he did not seek review of the denial of his PCR, as required by Arizona

Rule of Criminal Procedure 32.9(c). We agree.

¶12 In any event, the trial court did not abuse its discretion in denying

the PCR. The PCR asserted that, in 2004, nine years after the first trial, an

attorney from the Maricopa Public Defender’s Office interviewed Giles,

the eyewitness to the murder. In the 2004 interview, Giles stated (contrary

to his testimony in the first trial) that the person who had dragged the

victim into the street was not in the car when it ran over the body. By

2004, however, Giles had been diagnosed with Alzheimer’s disease, and

when he was deposed in 2006, Giles had no memory whatsoever of the

murder or the 2004 interview.

¶13 To obtain a new trial based on newly discovered evidence, a

petitioner must meet five requirements:

(1) it must appear from the motion that the evidence relied

on is, in fact, newly discovered, i.e., discovered after the trial;

(2) the motion must allege facts from which the court can

infer due diligence; (3) the evidence relied on must not be

merely cumulative or impeaching; (4) the evidence must be

material to the issue involved; and (5) it must be evidence

that would probably change the verdict if a new trial were

ordered.

State v. Fisher, 141 Ariz. 227, 251, 686 P.2d 750, 774 (1984). “Further, if the

motion relies on the existence of a witness willing to testify and present

the new evidence at a new trial, such witness must appear to be credible

to the trial judge hearing the motion.” Id.

¶14 Giles’s proffered testimony does not meet these requirements. The

changes in his testimony could have been discovered before trial.

Furthermore, Giles was not a credible witness in 2006. By that time, he

had been diagnosed with and had suffered from Alzheimer’s disease for

several years, which the trial court found had “tainted significantly”

Giles’s 2004 version of the events. By 2006, when he was deposed for the

PCR, Giles could not remember any of the events. We find no abuse of

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Opinion of the Court

discretion in dismissing the claim as to Giles’s testimony without an

evidentiary hearing.

¶15 As for the lack of a signed warrant, Medina was precluded from

raising this issue in his second PCR under Arizona Rule of Criminal

Procedure 32.2(a)(3), which states that a defendant is precluded from post-

conviction relief if the ground for relief “has been waived at trial, on

appeal, or in any previous collateral proceeding.” See also A.R.S. § 13-

4232(A)(3); Ariz. R. Crim. P. 32.2 cmt.. Medina could have raised the

absence of a signed warrant at his original 1995 trial or his 1999 appeal to

this Court; by not doing so, he waived this issue.

¶16 The trial court did not abuse its discretion in denying Medina’s

PCR and his motion to suppress.

B. Double Jeopardy and Cruel and Unusual Punishment

¶17 Medina argues that A.R.S. § 13-752(K) is unconstitutional because

permitting a retrial after a hung jury in the penalty phase violates double

jeopardy and is cruel and unusual punishment. “We review

constitutional issues de novo, and, when possible, construe statutes to

uphold their constitutionality.” State v. Hausner, 230 Ariz. 60, 82 ¶ 99, 280

P.3d 604, 626 (2012).

¶18 Section 13-752(K) provides that if the penalty phase jury “is unable

to reach a verdict, the court shall dismiss the jury and shall impanel a new

jury,” which shall not retry the defendant’s guilt or aggravating

circumstances unanimously found by the first jury. “If the new jury is

unable to reach a unanimous verdict, the court shall impose a sentence of

life or natural life on the defendant.” Id.

¶19 “Normally, ‘a retrial following a “hung jury” does not violate the

Double Jeopardy Clause.’” Sattazahn v. Pennsylvania, 537 U.S. 101, 109

(2003) (quoting Richardson v. United States, 468 U.S. 317, 324 (1984)); see

State v. Johnson, 155 Ariz. 23, 27, 745 P.2d 81, 85 (1987) (“[A] retrial before a

new jury of an issue on which a former jury could not reach agreement

does not violate double jeopardy principles.”). “[A] jury’s inability to

reach a decision is the kind of ‘manifest necessity’ that permits the

declaration of a mistrial and the continuation of the initial jeopardy that

commenced when the jury was first impaneled.” Yeager v. United States,

557 U.S. 110, 118 (2009).

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Opinion of the Court

¶20 “[T]he touchstone for double-jeopardy protection in capital-

sentencing proceedings is whether there has been an ‘acquittal.’”

Sattazahn, 537 U.S. at 109. There was no acquittal here. The jury, by

failing to reach a sentencing verdict, did not conclude that the State failed

to prove its case beyond a reasonable doubt. Thus, the jury’s inability to

agree on the sentence did not “acquit” Medina of a death sentence. Cf. id.

at 109 (finding there was no acquittal when jury hung as to penalty

because the jury did not make any findings concerning the alleged

aggravating circumstance).

¶21 Medina argues that because the 2008 jury hung on the appropriate

penalty, at least one juror must have found that the mitigating

circumstances outweighed the aggravating factors and we must give this

finding effect under McKoy v. North Carolina, 494 U.S. 433 (1990), and Mills

v. Maryland, 486 U.S. 367 (1988). We disagree; even if some jurors reached

this conclusion, it would not preclude a retrial under either McKoy or

Mills. Like the jury in Sattazahn, the 2008 jury did not make formal

findings regarding mitigating factors.

¶22 Moreover, the Arizona death penalty scheme meets the

requirements of McKoy and Mills that each juror be allowed to give effect

to the mitigating evidence he or she individually finds to be proven.

McKoy, 494 U.S. at 444; Mills, 486 U.S. at 374. Arizona’s scheme does not

require a mitigating factor to be found unanimously by the jury. A.R.S.

§ 13-751(C).

¶23 Medina also characterizes the trial court’s granting of the first PCR

in 2003 as an acquittal that bars further retrials. The court then found “a

reasonable probability that, but for counsel’s unprofessional error, the

result of the proceeding would have been different.” This is not

equivalent to a ruling that life was the appropriate sentence or an acquittal

on the merits. See State v. Ring (Ring III), 204 Ariz. 534, 551 ¶ 40, 65 P.3d

915, 932 (2003) (“A capital defendant whose original sentence is vacated

on appeal can be resentenced to death so long as the defendant has not

been ‘acquitted’ of the death sentence.”). Medina’s retrial did not violate

the Double Jeopardy Clause.

¶24 Medina also argues that Arizona’s procedures for a retrial after a

hung jury in the penalty phase constitute cruel and unusual punishment

because most states do not authorize retrial if a jury cannot agree on a

death sentence. In analyzing this issue, we first “determine whether there

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Opinion of the Court

is a national consensus against the sentencing practice at issue.” Graham v.

Florida, 130 S. Ct. 2011, 2022 (2010). Then, looking to the “‘Eighth

Amendment’s text, history, meaning, and purpose,’ the Court must

determine in the exercise of its own independent judgment whether the

punishment in question violates the Constitution.” Id. (quoting Kennedy v.

Louisiana, 554 U.S. 407, 421 (2008)).

¶25 Most states that have the death penalty require the trial court to

impose a life sentence if the penalty-phase jury cannot reach a unanimous

decision. Assuming without deciding that this represents a “national

consensus” against a penalty phase retrial in these circumstances, this

Court still must exercise independent judgment as to whether that

practice violates the Eighth Amendment. Id.

¶26 In general, allowing retrials does not subject a defendant to cruel

and unusual punishment. People v. Terry, 454 P.2d 36, 41–42 (Cal. 1969);

Harris v. State, 539 A.2d 637, 644 (Md. 1988). No federal or state decision

has held that retrial after a hung jury in the penalty phase constitutes cruel

and unusual punishment or that the United States Constitution requires

the imposition of a life sentence after a hung penalty-phase jury. Medina

characterizes Kansas v. Marsh, 548 U.S. 163 (2006) as holding that

defaulting to a life sentence when a jury hangs in the penalty phase is a

necessary part of a constitutional death penalty scheme. However, Marsh

upheld the entirety of the Kansas capital scheme without stating or

suggesting that such a “default” rule was itself constitutionally required.

Id. at 178.

¶27 The Arizona Legislature has chosen to allow one sentencing retrial

of a capital defendant after a hung penalty-phase jury and to require

imposition of a life sentence if the new jury cannot reach a unanimous

decision. See A.R.S. § 13-752(K). Some other states that allow retrial after

a hung jury permit more than one retrial if the second jury also hangs. See

Cal. Penal Code § 190.4(b); Nev. Rev. Stat. § 175.556(1).

¶28 Imposing death on a defendant who succeeds in having his court-

imposed death sentence reversed in post-conviction proceedings and for

whom the first penalty-phase jury was unable to reach a decision is not

disproportionate punishment. The Supreme Court has found that death is

categorically disproportionate for certain offenders, see Roper v. Simmons,

543 U.S. 551, 578 (2005) (precluding death penalty for defendants younger

than eighteen at time of the crime); Atkins v. Virginia, 536 U.S. 304, 321

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(2002) (prohibiting death penalty for “mentally retarded criminals”), and

non-homicide crimes against a person, see, e.g., Kennedy, 554 U.S. at 437

(disallowing death penalty for crime of rape). But the Court grounded

these holdings in determinations that the punishment, considering the

characteristics of the offender and the crime, was disproportionate to any

recognized penal goals. Cf. Graham, 130 S. Ct. at 2028 (noting that

penological justifications for the sentencing practice are also relevant to

the analysis). No such conclusion can be drawn with regard to defendants

like Medina merely because they have successfully challenged their death

sentences in post-conviction proceedings or a penalty-phase jury is unable

to reach a verdict. We hold that § 13-752(K)’s provision for retrial after a

hung penalty-phase jury does not result in cruel and unusual punishment.

C. Dismissal of Jurors by Stipulation

¶29 Medina argues that the trial court erred when it accepted, over his

objection, a stipulation by counsel to dismiss jurors based solely on their

questionnaire answers. “We review a trial court’s rulings on voir dire of

prospective jurors for abuse of discretion.” State v. Glassel, 211 Ariz. 33, 45

¶ 36, 116 P.3d 1193, 1205 (2005), opinion corrected on denial of reconsideration,

211 Ariz. 370, 121 P.3d 1240 (2005).

¶30 In Medina’s 2008 trial, defense counsel and the State stipulated to

release certain jurors based on their questionnaire answers. The trial court

initially stated that it would require Medina’s agreement on the record,

but later decided trial counsel could stipulate to release jurors as part of

trial strategy. Trial counsel and the State agreed to dismiss sixty jurors.

Medina objected, saying that he had not seen any of the questionnaires

and wished to try to rehabilitate the jurors.

¶31 “[T]he Sixth Amendment is violated if the trial jury in a capital case

is chosen by excluding for cause persons who have general objections to

the death penalty.” State v. Anderson (Anderson I), 197 Ariz. 314, 318 ¶ 6, 4

P.3d 369, 373 (2000). In Anderson I, we held that a defendant has a right to

question potential jurors orally and attempt to rehabilitate them, id. at 320

¶ 13, 4 P.3d at 375, but we emphasized that “our holding today does not

prevent excluding prospective jurors for cause based solely on answers to

a written questionnaire when the adverse party fails to object, or when all

parties consent to exclusion,” id. at 324 ¶ 24, 4 P.3d at 379. Accordingly,

the attorneys in this case could stipulate to the dismissal of jurors. But we

must still decide whether Medina’s objection should override his counsel’s

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Opinion of the Court

stipulation.

¶32 A defendant has exclusive control over the key decisions “whether

to plead guilty, whether to waive a jury trial and whether to testify.

Beyond these matters, most trial decisions are trial strategy resting with

counsel.” State v. Nirschel, 155 Ariz. 206, 208, 745 P.2d 953, 955 (1987)

(citation omitted).

¶33 Because voir dire involves strategic decisions by trial counsel, we

decline to hold that it is within the defendant’s exclusive control. See, e.g.,

Miller v. Francis, 269 F.3d 609, 615 (6th Cir. 2001); People v. Manning, 948

N.E.2d 542, 550 (Ill. 2011) (“[D]ecisions made during jury selection involve

trial strategy to which courts should be highly deferential.”). Counsel’s

trial strategy could be undermined by allowing the defendant to override

counsel’s tactical decisions. If the defendant controlled all voir dire

decisions, defense counsel’s ability to manage the trial would be

compromised, resulting in inevitable delay and confusion. See Taylor v.

Illinois, 484 U.S. 400, 418 (1988) (“The adversary process could not function

effectively if every tactical decision required client approval.”).

¶34 “[C]ounsel acting alone may make decisions of strategy,” even if

those decisions involve constitutional rights. State v. Levato, 186 Ariz. 441,

444, 924 P.2d 445, 448 (1996). A defendant is bound by counsel’s trial

strategy “so long as counsel’s assistance at trial was not reduced to a mere

‘farce or sham.’” State v. (John L.) Jones, 110 Ariz. 546, 550, 521 P.2d 978,

982 (1974), overruled on other grounds by State v. Conn, 137 Ariz. 148, 669

P.2d 581 (1983). Medina has not shown, nor does the record suggest, that

his counsel’s assistance was a sham. Thus, Medina is bound by his

counsel’s decision to stipulate to removal of the jurors.

¶35 Medina contends that the trial court had a duty to protect his rights

to a fair and impartial jury and accordingly should have rejected the

stipulation. A trial court, however, has no general duty or authority to

second-guess the strategic decisions by trial counsel. Absent facts

suggesting that counsel’s assistance was a sham or otherwise patently

deficient, the trial court did not abuse its discretion by accepting counsel’s

stipulation regarding voir dire, even over Medina’s objection.

D. Removal of Jurors 88 and 30

¶36 Medina argues that Juror 88 from the 2008 trial and Juror 30 from

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Opinion of the Court

the 2009 trial were improperly removed for cause. “We review a trial

court’s decision to strike a potential juror for cause for abuse of

discretion.” State v. Velazquez, 216 Ariz. 300, 306 ¶ 13, 166 P.3d 91, 97

(2007). But if the defendant did not object to the dismissal, it is reviewed

for fundamental error. State v. Roseberry, 210 Ariz. 360, 366 ¶ 26, 111 P.3d

402, 408 (2005).

1. Juror 88

¶37 Juror 88 answered equivocally whether she could vote for the death

penalty. She cried and trembled throughout the questioning. The court

granted the State’s motion to dismiss Juror 88 because “her views about

the death penalty and just her whole demeanor just would tell anybody

that watched her that her views would substantially impair her ability to

fairly consider both options.” Medina did not object to her removal.

¶38 A juror is properly excused for cause “if the juror’s views would

‘prevent or substantially impair the performance of his duties as a juror.’”

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

(quoting Wainwright v. Witt, 469 U.S. 412, 424 (1985)); see Ariz. R. Crim. P.

18.4(b). We defer to the trial court’s assessment, even when a juror’s

answer by itself would not “‘compel the conclusion that he could not

under any circumstance recommend the death penalty,’ . . . because so

much may turn on a potential juror’s demeanor.” Uttecht v. Brown, 551

U.S. 1, 8 (2007) (quoting Darden v. Wainwright, 477 U.S. 168, 178 (1986)).

¶39 Juror 88 was shaking and crying throughout the interview, which

convinced the trial court that she could not handle involvement in the

case. In these circumstances, the court did not err, much less commit

fundamental error, in dismissing Juror 88 for cause.

2. Juror 30

¶40 Although Juror 30 initially told the prosecution and the defense

that she could apply the law and consider both a life and death sentence,

she later said she was uncomfortable with the prospect that a person’s life

would be in her hands and did not think she could sign a death verdict.

¶41 The State moved to dismiss Juror 30 for cause. Medina objected,

arguing that she would only be required to sign the form if she were the

foreperson. The court questioned whether Juror 30 could be empanelled

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Opinion of the Court

“with the instruction that she not be allowed to be the foreperson” and

noted that, in any event, she would have to stand and be polled. After

this discussion, the court granted the motion, finding that “her answer

suggested that . . . her ability to decide this case, to decide the law and the

facts would be substantially impaired by her resisting views.”

¶42 Even in the face of Juror 30’s earlier claims that she could apply the

law, the trial court did not abuse its discretion by concluding this juror’s

stated discomfort with voting for a death verdict would impair her ability

to sit as a juror. See Glassel, 211 Ariz. at 48 ¶ 50, 116 P.3d at 1208 (“[E]ven

assuming that juror 16 was sincere about being able to apply the law, the

judge could have reasonably determined that the juror’s views would

substantially impair his ability to deliberate impartially.”).

E. Batson Challenges

¶43 Medina argues that the trial court erred in denying his challenges,

based on Batson v. Kentucky, 476 U.S. 79 (1986), to the State’s peremptory

strikes of Jurors 35, 71, and 73. We will sustain a trial court’s rulings on

Batson challenges unless they are clearly erroneous. State v. Gallardo, 225

Ariz. 560, 565 ¶ 10, 242 P.3d 159, 164 (2010).

¶44 “Racially discriminatory use of a peremptory strike violates the

Equal Protection Clause of the Fourteenth Amendment.” State v. Hardy,

230 Ariz. 281, 285 ¶ 12, 283 P.3d 12, 16 (2012). “A Batson challenge

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

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

each strike, and (3) the trial court must determine whether the challenger

proved purposeful racial discrimination.” Id. “Although not dispositive,

‘the fact that the state accepted other [minority] jurors on the venire is

indicative of a nondiscriminatory motive.’” State v. Roque, 213 Ariz. 193,

204 ¶ 15, 141 P.3d 368, 379 (2006) (alteration in original) (quoting State v.

Eagle, 196 Ariz. 27, 30 ¶ 12, 992 P.2d 1122, 1125 (App. 1998)).

¶45 By asking the prosecutor to give race-neutral reasons for striking

these jurors, the trial court implicitly found that Medina had made a

prima facie showing of discrimination. See Hardy, 230 Ariz. at 286 ¶ 13,

283 P.3d at 17. The prosecutor stated that she moved to strike Juror 35

based on her youth, her high school education, her belief that some of her

friends had been punished too harshly for crimes, her friendship with

gang members and drug users, her initial reluctance to accept the prior

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jury’s verdict, and her opposition to the death penalty. The trial court

found that Medina had not carried his burden and denied the Batson

challenge.

¶46 The prosecutor struck Juror 71 because she was young and lacked

life experience, she held low-level positions, her aunt had been

investigated and cleared by Child Protective Services, her friends used

marijuana, she would be upset by the crime scene photographs, and she

was opposed to the death penalty. The court denied the challenge

because the explanations were race-neutral.

¶47 The prosecutor stated that she struck Juror 73 because her uncle

was a doctor of psychology and “a life coach for most of [her] family,” she

had experience with people who used illegal drugs, and her husband was

diagnosed with deep depression. Because the prosecutor anticipated

testimony about Medina’s diagnosis of depression, the prosecutor was

worried Juror 73 might not be able to “separate her involved life

experiences.” Medina disputed this explanation, pointing out that non-

minority jurors who “voiced similar concerns about drug and alcohol

problems” were not struck. The court noted it was supposed to “evaluate

the credibility of the striking party” and denied the Batson challenge,

“based on [his] assessment of everything.”

¶48 Medina now asks this Court to rule that “comparative juror

analysis is a constitutionally required aspect of Batson review.” However,

the United States Supreme Court has warned that “a retrospective

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

misleading when alleged similarities were not raised at trial.” Snyder v.

Louisiana, 552 U.S. 472, 483 (2008). Moreover, we disagree with Medina’s

contention that our decision in Hardy implicitly requires a comparative

analysis for every Batson challenge. In Hardy, we examined similarities

between dismissed minority jurors and non-minority jurors who

remained on the panel, which were both raised by the defendant and

addressed by the prosecutor at trial. 230 Ariz. at 286 ¶¶ 13–14, 283 P.2d at

17. Hardy, however, did not require every court reviewing a Batson claim

to use a comparative analysis, and we decline to do so when the

similarities between peremptorily stricken jurors and those remaining on

the panel were not raised at trial.

¶49 In this case, although Medina argued that non-minority jurors who

were not stricken had similar problems concerning drugs, he did not

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direct the court to specific similarly situated jurors. Thus, the prosecutor

had no opportunity to offer distinctions between allegedly similarly

situated jurors or to clarify which factors were given more weight in the

choice to strike. Likewise, the trial court did not have an opportunity to

conduct an in-depth comparison of the jurors who were stricken and those

who remained on the panel. We decline to examine more detailed

comparisons than were alleged at trial. The trial court found that Medina

had not carried his burden of showing purposeful discrimination.

Because Medina did not argue that any juror on the panel had some or all

of the factors for disqualification presented for Jurors 35, 71, and 73, we do

not find that the trial court clearly erred.

¶50 Additionally, at the conclusion of the peremptory strikes, defense

counsel noted that four or five minority jurors remained on the panel. The

presence of other minority jurors on the panel is evidence of the State’s

nondiscriminatory motive. See id. ¶ 15 (noting that three minority jurors

remained on the panel). For these reasons, the trial court did not clearly

err in rejecting Medina’s Batson challenges.

F. Admission of the Autopsy Report

¶51 Medina contends that admitting the victim’s autopsy report

without the opportunity to cross-examine the report’s author and

allowing another medical examiner to testify using facts from the report

violated the Sixth Amendment’s Confrontation Clause.

¶52 The autopsy report prepared by Dr. Ann Bucholtz detailed the

victim’s injuries and determined that the death was a homicide caused by

blunt force trauma. Dr. Bucholtz did not testify at trial. Instead, the State

called Dr. Philip Keen, who testified concerning the report’s conclusions

and used the report and photographs of the body to make various

independent conclusions about the death.

¶53 We review interpretations of the Confrontation Clause de novo and

analyze a properly-objected-to violation of the Confrontation Clause for

harmless error. State v. Bocharski, 218 Ariz. 476, 485–86 ¶¶ 33, 38, 189 P.3d

403, 412–13 (2008). Assuming that Medina properly raised his

Confrontation Clause objection to the report (an issue disputed by the

parties), we reject his arguments because we find the report is not

testimonial.

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¶54 “The Confrontation Clause bars admission of out of court

testimonial evidence unless the defense has had an opportunity to cross-

examine the declarant.” State v. Parker, 231 Ariz. 391, 402 ¶ 38, 296 P.3d

54, 65 (2013) (citing Crawford v. Washington, 541 U.S. 36, 68 (2004)).

Testimonial evidence is “ex parte in-court testimony or its functional

equivalent . . . such as affidavits, custodial examinations, prior testimony

that the defendant was unable to cross-examine, or similar pretrial

statements that declarants would reasonably expect to be used

prosecutorially.” Crawford, 541 U.S. at 51. “A document created solely for

an ‘evidentiary purpose,’ . . . made in aid of a police investigation, ranks

as testimonial.” Bullcoming v. New Mexico, 131 S. Ct. 2705, 2717 (2011)

(quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 (2009)).

¶55 Public or business records generally are not testimonial because

they are usually “created for the administration of an entity’s affairs and

not for the purpose of establishing or proving some fact at trial.”

Melendez-Diaz, 557 U.S. at 324; see also Crawford, 541 U.S. at 56 (noting that

“[m]ost of the hearsay exceptions covered statements that by their nature

were not testimonial — for example, business records”). Yet, the

admission of a document “under a hearsay exception does not negate

consideration of the Confrontation Clause.” State v. Huerstel, 206 Ariz. 93,

102 ¶ 29, 75 P.3d 698, 707 (2003). When public records are “prepared

specifically” for use at trial, the records are “subject to confrontation

under the Sixth Amendment.” Melendez-Diaz, 557 U.S. at 324.

¶56 The United States Supreme Court has not determined whether an

autopsy report is testimonial, but its most recent decision on the

Confrontation Clause informs our analysis. In Williams v. Illinois, the

state’s expert “testified that a DNA profile produced by an outside

laboratory . . . matched a profile produced by the state police lab using a

sample of [the defendant’s] blood.” 132 S. Ct. 2221, 2227 (2012). The DNA

report itself was not admitted into evidence. Id. The defendant argued

that the portions of the expert’s testimony referring to the laboratory

report violated his right to confrontation. Id.

¶57 The Court found that the report was nontestimonial; however, no

one rationale was supported by a majority of the Court. If no opinion

garners the support of a majority, the “position taken by those Members

who concurred in the judgments on the narrowest grounds” is regarded

as the holding of the Court. Marks v. United States, 430 U.S. 188, 193 (1977)

(quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)).

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Opinion of the Court

¶58 The plurality opinion authored by Justice Alito concluded that the

expert’s statements did not violate the Confrontation Clause because the

laboratory report was not testimonial. Williams, 132 S. Ct. at 2228. The

plurality declared that the Confrontation Clause prohibits formalized

“out-of-court statements having the primary purpose of accusing a

targeted individual of engaging in criminal conduct.” Id. at 2242. Because

the “primary purpose” of the report “was to catch a dangerous rapist who

was still at large,” not to gather evidence against the defendant, and

because the authors of the report could not know whether it would

incriminate or exonerate the defendant, it was not testimonial. Id. at 2243–

44.

¶59 Justice Thomas concurred solely in the judgment. Id. at 2255

(Thomas, J., concurring). He did not agree with the test used by the

plurality; instead, he concluded the report was nontestimonial because it

“lack[ed] the solemnity of an affidavit” and “was not the product of any

sort of formalized dialogue resembling custodial interrogation.” Id. at

2260.2

¶60 Neither the plurality’s “primary purpose” test nor Justice Thomas’s

solemnity standard can be deemed a subset of the other; therefore, there is

no binding rule for determining when reports are testimonial. See United

States v. Alcan Aluminum Corp., 315 F.3d 179, 189 (2d Cir. 2003) (holding

that when no “single standard . . . legitimately constitutes the narrowest

ground for a decision on that issue, there is then no law of the land”).

¶61 Under the plurality test, the autopsy report here is not testimonial

because its purpose was not primarily to accuse a specified individual.

“We look for the primary purpose that a reasonable person would have

ascribed to the statement, taking into account all of the surrounding

circumstances.” Williams, 132 S. Ct. at 2243.

¶62 Here, the autopsy was conducted the day after the murder, before

Medina became a suspect. Any trace evidence obtained during the

autopsy was gathered to determine the manner and cause of death in

order to help “catch a dangerous [murderer] who was still at large,” not to

gather evidence to accuse Medina. Id.; see also People v. Leach, 980 N.E.2d

2 The dissent concluded that the report was testimonial because it

was “meant to serve as evidence in a potential criminal trial.” Williams,

132 S. Ct. at 2275 (Kagan, J., dissenting).

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Opinion of the Court

570, 590 (Ill. 2012). Compare United States v. James, 712 F.3d 79 (2d Cir.

2013) (discussing Williams and concluding autopsy report was not

testimonial), with United States v. Ignasiak, 667 F.3d 1217 (11th Cir. 2012)

(concluding, given circumstances of preparation, that autopsy report was

testimonial).

¶63 The autopsy report in this case is also nontestimonial using the

solemnity test from Justice Thomas’s concurring opinion. Williams, 132 S.

Ct. at 2260. Justice Thomas found that the DNA report in Williams was

nontestimonial because it was “neither a sworn nor a certified declaration

of fact” and “it was not the product of any sort of formalized dialogue

resembling custodial interrogation.” Id. Like the report in Williams, the

autopsy report in this case does not “certify[] the truth of the analyst’s

representations.” Id. The signed report details the conditions of the body,

states the examiner’s conclusions regarding the cause and manner of

death, and certifies that the report reflects her opinion as to the cause and

manner of death and that she took charge of the body. The autopsy report

does not certify that the report was correct or that she followed the correct

procedures. See People v. Dungo, 286 P.3d 442, 449 (Cal. 2012) (stating that

statements in an autopsy report “are less formal than statements setting

forth a pathologist’s expert conclusions”). Nor did the autopsy report

arise from a formal dialogue akin to custodial interrogation. Therefore,

we hold that the autopsy report is nontestimonial.

¶64 Medina also argues that the admission of Dr. Keen’s testimony

violated Medina’s right to confrontation. Having concluded that the

autopsy report is nontestimonial, we hold that Dr. Keen’s testimony

regarding the report did not violate the Confrontation Clause. The

portions of Dr. Keen’s testimony concerning his independent conclusions

also did not violate the Confrontation Clause under our prior decisions.

See State v. Dixon, 226 Ariz. 545, 553 ¶ 36, 250 P.3d 1174, 1182 (2011), cert.

denied, 132 S. Ct. 456 (2011) (“Our cases teach that a testifying medical

examiner may, consistent with the Confrontation Clause, rely on

information in autopsy reports prepared by others as long as he forms his

own conclusions.”); see also State v. Joseph, 230 Ariz. 296, 299 ¶ 11, 283 P.3d

27, 30 (2012), cert. denied, 133 S. Ct. 936 (2013); State v. Gomez, 226 Ariz. 165,

169–70 ¶ 22, 244 P.3d 1163, 1167–68 (2010).

G. Juror’s Extra-Judicial Contact

¶65 Medina argues that the trial court’s failure to interview a juror who

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had contact with the victim’s daughter constituted structural error that

mandates reversal of his death sentence. When the extra-judicial contact

was brought to the court’s attention, the trial court questioned the victim’s

daughter about her conversation with the juror. She stated that she was in

the elevator with the juror and a lawyer when the lawyer abruptly walked

out of the elevator. She commented about the lawyer’s compliance with

the admonition. She did not realize at the time that the person she spoke

with was a juror in the case and they did not discuss anything about the

case. The trial court told the victim’s daughter to avoid talking to anyone

with a juror badge in the future but did nothing further regarding the

incident. Medina’s trial counsel did not object to the trial court’s decision

concerning the extra-judicial contact but Medina himself objected and

moved for a new trial, which the trial court denied.

¶66 Medina is bound by his counsel’s strategic decision to not object to

a possible error by the trial court. See State v. Corrales, 138 Ariz. 583, 595,

676 P.2d 615, 627 (1983) (stating that “a defendant may be bound by his

counsel’s trial strategy decision to waive even constitutional rights”). By

not requesting any further action, Medina’s trial counsel waived this issue

and did not need Medina’s consent to do so. See Levato, 186 Ariz. at 444,

924 P.2d at 448 (“[C]ounsel acting alone may make decisions of strategy

pertaining to the conduct of the trial.”).

¶67 We reject Medina’s contention that this alleged error constitutes

structural error. Medina does not allege that the juror was actually biased

as a result of the contact, nor does he cite any evidence in the record to

support a finding of bias. Absent any evidence of juror bias, this alleged

error is not one of the “relatively few” recognized structural errors. See

Ring III, 204 Ariz. 552–53 ¶ 46, 65 P.3d at 933–34. Because Medina’s

counsel did not object to the trial court’s handling of the matter, we

review for fundamental error. See State v. Davis, 206 Ariz. 377, 390 ¶ 62, 79

P.3d 64, 77 (2003). Given the brevity of the contact between the juror and

the victim’s daughter and the absence of any discussion concerning the

case or the defendant, it was not error, much less fundamental error, for

the trial court to take no further action than questioning the victim’s

daughter.

H. A.R.S. § 13-752(G) and the Ex Post Facto Prohibition

¶68 Medina argues that applying the 2009 version of A.R.S. § 13-752(G)

in his case violates the ex post facto clause because that version allows the

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sentencer to consider more evidence than the statutory scheme in effect at

the time of the 1993 murder. The trial court denied Medina’s motion to

use the prior statute instead of § 13-752(G).

¶69 “The ex post facto doctrine prohibits a state from ‘retroactively

alter[ing] the definition of crimes or increas[ing] the punishment for

criminal acts.’” Ring III, 204 Ariz. at 545 ¶ 16, 65 P.3d at 926 (alterations in

original) (quoting Collins v. Youngblood, 497 U.S. 37, 43 (1990)). Medina

argues that the 2009 version of § 13-752(G) is an ex post facto law because

it “changes the rules of evidence by which less or different testimony is

sufficient to convict than was then required.” Duncan v. Missouri, 152 U.S.

377, 382 (1894). We are not persuaded.

¶70 When Medina committed the murder in 1993, Arizona law

provided that either side could “rebut any information received at the

[aggravation/mitigation] hearing” and could present “[a]ny information

relevant to any mitigating circumstances . . . regardless of its admissibility

under the rules governing admission of evidence at criminal trials.”

A.R.S. § 13-703(C) (1993). Under A.R.S. § 13-752(G) (2009), “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 leniency” and “the state may present any evidence that

demonstrates that the defendant should not be shown leniency.”

¶71 To the extent that § 13-752(G) changed the evidence admissible at

the penalty phase, it does not provide that “less or different testimony is

sufficient to convict.” Duncan, 152 U.S. at 382. As Medina concedes, the

legal standard for sentencing a defendant to death has remained the same.

Therefore, A.R.S. § 13-752(G) is not an ex post facto law.

¶72 Medina argues that even if the 2009 version of § 13-752(G) did not

substantively change the criminal law, the new statute was a procedural

change that affected his rights. A legislative change to criminal procedure

“generally does not violate the Ex Post Facto Clause,” even if it

disadvantages a defendant, Ring III, 204 Ariz. at 546 ¶ 17, 65 P.3d at 927,

unless “it affects ‘matters of substance, by depriving a defendant of

substantial protections with which the existing law surrounds the person

accused of crime,’” id. at 547 ¶ 24, 65 P.3d at 928 (quoting Collins, 497 U.S.

at 45).

¶73 In Ring III, we held that a change in criminal procedure allowing a

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Opinion of the Court

jury, rather than a judge, to decide the sentence did not affect matters of

substance because the state had the same burden concerning aggravating

factors and defendants were not at risk of any greater punishment. Id.

Here, Medina does not risk the imposition of any greater punishment and

the parties carry the same burdens of proof. Thus, this procedural change

did not affect matters of substance and was not ex post facto legislation.

I. Jury Instructions

¶74 Medina argues that the final jury instructions in the 2009 trial failed

to specify that the (F)(6) aggravator was based on relishing and gratuitous

violence, which prevented the jury from accurately weighing the severity

of the aggravator. Because Medina did not object to the jury instruction at

trial, we review for fundamental error. State v. Moore, 222 Ariz. 1, 16 ¶ 85,

213 P.3d 150, 165 (2009).

¶75 In the 2009 trial, the court gave the following final jury instructions

as to the especially heinous or depraved aggravator:

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.

This instruction correctly defined the terms heinous and depraved, see

State v. Murdaugh, 209 Ariz. 19, 31 ¶ 59, 97 P.3d 844, 856 (2004), and

provided the jury with sufficient information to accurately weigh the

(F)(6) aggravator.

J. Prosecutorial Misconduct

¶76 Medina asserts that the State improperly argued in closing that

Medina’s lack of remorse was an aggravating factor and commented on

Medina’s right to be free from compelled self-incrimination. Because

Medina did not object to the alleged misconduct, we review this claim for

fundamental error. Roque, 213 Ariz. at 228 ¶ 154, 141 P.3d at 403.

¶77 During his allocution, Medina stated that he was “deeply sorry and

remorseful” for his involvement in the death and that he took “full

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Opinion of the Court

responsibility for [his] own participation, actions and role in such act.” In

closing arguments, the State argued that Medina was not truly remorseful

but had said that he felt remorse in his allocution “because he knows it

will help to get him off the death penalty.” The prosecutor referred to

Medina’s conversations with interviewing doctors in which he did not

take responsibility for all of his actions and denied driving the car that

killed the victim. The prosecutor concluded: “If the defendant won’t

admit to what he did and take responsibility for what he did, how can he

truly look at the victim’s family or at you and say he is truly remorseful?”

¶78 To determine if prosecutorial misconduct exists, we examine 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.” State v. Newell, 212 Ariz. 389, 402 ¶ 60, 132 P.3d 833, 846 (2006).

¶79 Medina contends that the prosecutor’s statements concerning

Medina’s lack of remorse and the senselessness of the crime argued for

aggravating factors neither alleged nor proven. However, the State never

argued that lack of remorse should be considered as an aggravator; it used

Medina’s lack of remorse to rebut Medina’s allocution, in which he sought

leniency based in part on his remorse. Because Medina’s allocution

focused on remorse, it was permissible for the State to argue that the

evidence showed otherwise.

¶80 The State, by describing the details of the murders, also did not

encourage the jury to consider helplessness or senselessness as additional

aggravators. See Nelson, 229 Ariz. at 190 ¶ 41, 273 P.3d at 642 (holding that

in using the terms “helpless” and “senseless,” the prosecutor did not

argue that the (F)(6) aggravator be considered). Describing the details of a

murder, even calling it a senseless crime, without more, does not amount

to prosecutorial misconduct.

¶81 Medina also asserts that the prosecutor improperly suggested

Medina should be sentenced to death because he chose not to testify. The

prosecutor’s statements, however, reflect an effort to rebut Medina’s

allocution, not a comment on the exercise of his Fifth Amendment rights.

In closing arguments, the prosecutor first noted that Medina claimed in

his allocution to feel remorse and to have taken responsibility for his

actions. The prosecutor then argued that while Medina took

responsibility for fighting with the victim, he had not taken responsibility

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Opinion of the Court

for pulling him into the road or running him over, but instead had blamed

his co-defendant. The State argued that Medina’s falsely stating that he

took full responsibility for his actions showed that his claimed remorse

was also false.

¶82 This was permissible rebuttal. In State v. Cota, the prosecutor

argued that if the defendant were truly remorseful “wouldn’t he have told

the police how sorry he was?” 229 Ariz. 136, 152 ¶ 83, 272 P.3d 1027, 1043

(2012), cert. denied, 133 S. Ct. 107 (2012). We found the comment

“permissible” because it contrasted the defendant’s “denials of

responsibility in the interrogation with his subsequent claim of remorse.”

Id. We reach the same conclusion here. Because Medina argued that his

remorse should be considered as mitigation, the State could argue in

rebuttal that Medina’s failure to take full responsibility for the murder

showed that his remorse was not genuine.

III. INDEPENDENT REVIEW

¶83 Because the murder was committed before August 1, 2002, this

Court independently reviews the “findings of aggravation and mitigation

and the propriety of the death sentence.” A.R.S. § 13-755(A). “We review

the record de novo and do not defer to the jury’s findings or decisions.”

State v. Prince, 226 Ariz. 516, 539 ¶ 93, 250 P.3d 1145, 1168 (2011). “We

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

and mitigating factors.” Glassel, 211 Ariz. at 55 ¶ 93, 116 P.3d at 1215

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

A. Aggravating Circumstances

¶84 The jury found four aggravating circumstances: Medina was

previously convicted of a serious offense, A.R.S. § 13-751(F)(2); the murder

was committed in an especially heinous or depraved manner, id. § 13-

751(F)(6); the murder was committed while on authorized release from

prison, id. § 13-751(F)(7)(a); and the victim was more than seventy years

old, id. § 13-751(F)(9).

1. (F)(2) Aggravator

¶85 Medina does not dispute the finding of the (F)(2) aggravator but

argues that it should be given less weight because he had been charged

with the underlying offenses (aggravated assault and robbery) and

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Opinion of the Court

released only six months before committing the murder. We decline to

create such a rule.

2. (F)(7) Aggravator

¶86 Medina also admits that sufficient evidence was presented to

support the (F)(7) aggravator, that the murders were committed while he

was on release from prison, but argues that its similarity to the (F)(2)

aggravator implies that these aggravators should be counted only once in

aggravation. Because we find that the aggravators serve different public

policy rationales, we give weight to each aggravator.

3. (F)(9) Aggravator

¶87 Medina admits there was sufficient evidence to establish the (F)(9)

aggravator, but argues that it should be given little weight because he did

not know the victim’s age. We disagree, given that the statute itself does

not require such knowledge. See Medina, 193 Ariz. at 512 ¶ 23, 975 P.2d at

102.

4. (F)(6) Aggravator

¶88 Medina contends that the evidence was insufficient to show that

the murder was especially heinous or depraved. The jurors were

instructed on two factors to support a finding of heinousness and

depravity: the defendant relished the murder and inflicted gratuitous

violence. See State v. Gretzler, 135 Ariz. 42, 52, 659 P.2d 1, 11 (1983).

a. Relishing

¶89 In the 2008 trial, Angela Calderon testified that when Medina came

to her house shortly after the murder, he was intoxicated and laughing.

She stated that he was “laughing and they kept talking about — like they

just kept simulating like driving over a speed bump. I asked him what he

was laughing at. He said, ‘Just watch the news tomorrow and look for tire

markings.’” She confirmed that Medina made “varoom, bump, bump”

noises and driving motions and told her to watch the news for tire

markings or a speed bump.

¶90 Calderon also testified that when Medina called ten minutes later,

he “just continued to laugh and telling me to watch the news.” The next

day, when Medina told her more details about that night he was

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Opinion of the Court

“giggling,” “but he was more nervous about it.” On cross examination,

Calderon stated that Medina “never bragged” about the murder when it

was on television and that he had expressed some remorse to her,

although she felt that “he was scared of being caught.”

¶91 To relish a murder, the defendant “must say or do something that

indicates he savored the murder.” Greene, 192 Ariz. at 440 ¶ 34, 967 P.2d

at 115. Laughing or bragging about the murder may show that the

defendant relished the murder. See Hausner, 230 Ariz. at 81 ¶¶ 91–95, 280

P.3d at 625. In State v. Runningeagle, we found that the defendant relished

the murder when he laughed as he returned to the car after the murder

and bragged that “he had been in a ‘good fight.’” 176 Ariz. 59, 65, 859

P.2d 169, 175 (1993). Likewise, we concluded in State v. Bearup that the

defendant relished the murder by “laughing while talking about cutting

off a person’s finger” and showing amusement when he told another

person about the murder. 221 Ariz. 163, 173 ¶ 54, 211 P.3d 684, 694 (2009).

In State v. West, the Court found the defendant’s statements that he had

beat up an old man and his bragging about cuts and bruises from beating

the man showed relishing. 176 Ariz. 432, 448, 862 P.2d 192, 208 (1993),

overruled on other grounds by State v. Rodriguez, 192 Ariz. 58, 961 P.2d 1006

(1998).

¶92 Here, Medina’s laughter and jokes to Calderon show that he

relished the murder at or near the time of its commission. Also, Medina

repeatedly mimicked speed bumps and told Calderon to watch the news,

which shows that he anticipated the publicity that the murder would

occasion and looked forward to it. Therefore, we find beyond a

reasonable doubt that Medina relished the murder.

b. Gratuitous Violence

¶93 Medina argues that the evidence presented in the 2008 trial did not

show that he “continued to inflict violence after he knew or should have

known that a fatal action had occurred.” Bocharski, 218 Ariz. at 494 ¶ 87, 189

P.3d at 421.

¶94 In 2008, the medical examiner testified that “the distribution of

injuries” suggested that the victim was run over more than once. He did

not confirm that the victim died after the first pass of the car, but he

testified that the victim was alive when he was first hit and that being run

over by two sets of tires in a single pass could have caused the heart and

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Opinion of the Court

lung injuries that led to his death. The examiner testified that the victim

died “fairly rapidly,” “[p]robably less than a minute,” or even “probably

seconds” after being run over.

¶95 Calderon testified that Medina told her that he ran over the victim

“about three times,” “once going forward, once going backwards and then

once again coming forward.” She also stated that Medina said “that every

time he ran over [the victim,] the head would move into a different

direction.”

¶96 Giles’s testimony from the first trial was read to the 2008 and 2009

juries because Giles died before the 2008 trial. He testified that the victim

became “red-headed” after the tires went over him. Giles could not see if

the tires actually ran over the victim’s head, but said the victim seemed to

be either unconscious or dead after the first pass of the car.

¶97 We find that Medina knew or should have known that he had

inflicted a fatal wound and yet continued to inflict injury upon the victim.

The seventy-one year old victim had been beaten up, stomped on, and

dragged into the street, then run over by a car containing three men.

According to the medical examiner, the victim died less than a minute,

perhaps even seconds, after the first pass of the car. After the first pass,

the victim was so bloodied that it was visible to a witness across the street.

Yet Medina ran over the victim twice more.

¶98 This case is unlike Bocharski, in which there was insufficient

evidence that the defendant knew or should have known that he had

inflicted a fatal wound when he inflicted many rapid knife injuries to the

victim. 218 Ariz. at 494 ¶¶ 87–88, 189 P.3d at 421. Nor is it like State v.

Gunches, in which the defendant shot the victim three times in the chest

“in quick succession,” followed by a fourth shot to the head. 225 Ariz. 22,

26 ¶ 20, 234 P.3d 590, 594 (2010). We there concluded that because of the

victim’s body position, the distance between the victim and the defendant,

and the darkness of the night, the defendant was likely unable to

determine whether the victim had died before firing the fourth shot. Id.

¶¶ 18–20. This inference was supported by the defendant’s testimony that

the victim continued to breathe after falling to the ground, evidence of

aspiration around the victim’s mouth, and the medical examiner’s

testimony that the victim’s heart continued to beat “for a while after the

shooting.” Id. ¶ 21 (internal quotation marks omitted). Here, there was

no evidence or reason to believe that one pass of the car, on top of the

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Opinion of the Court

victim’s other injuries, was not a fatal action. Medina should have known

that running over a man in his seventies who had already received

multiple blows was enough to kill him; additional force was unnecessary

and gratuitous.

¶99 Because we find that both relishing and gratuitous violence were

proven beyond a reasonable doubt, we do not reach Medina’s contention

that a special verdict is necessary for each Gretzler factor.

B. Mitigating Circumstances

1. Significant Impairment — A.R.S. § 13-751(G)(1)

¶100 Medina argues that his use of intoxicants and his psychological

disorder significantly impaired his capacity to conform his conduct to the

requirements of the law. To establish the (G)(1) mitigating factor, a

defendant must show by a preponderance of the evidence that the

“defendant’s capacity to appreciate the wrongfulness of his conduct or to

conform his conduct to the requirements of law was significantly

impaired, but not so impaired as to constitute a defense to prosecution.”

A.R.S. § 13-751(G)(1).

¶101 Neither party disputes Medina’s dependency on inhalants, alcohol,

and marijuana at the time of the murder. The trial evidence showed that

Medina’s capacity to control his conduct or appreciate its wrongfulness

was substantially impaired by the various drugs he had taken on that day.

Thus, Medina established the (G)(1) mitigating factor. Because we give

weight to Medina’s drug abuse under § 13-752(G)(1), we give little

additional weight to Medina’s long-term drug addiction as non-statutory

mitigation. Cf. Moore, 222 Ariz. at 21 ¶ 121, 213 P.3d at 170 (giving weight

to defendant’s long-term drug addiction as non-statutory mitigation when

the addiction did not satisfy the statutory requirements).

¶102 Medina also argues that his mental illness significantly impaired

his capacity to conform his conduct to the requirements of the law.

Medina presented evidence concerning two possible psychological

disorders: anti-social personality disorder and delusional disorder.

¶103 Medina offered evidence that he suffered from anti-social

personality disorder. “Personality or character disorders, however,

typically do not satisfy [the (G)(1)] mitigator . . . .” State v. Tucker, 215

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Opinion of the Court

Ariz. 298, 323 ¶ 118, 160 P.3d 177, 202 (2007). Medina did not offer any

evidence that his anti-social personality disorder substantially impaired

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

prevented him from appreciating the wrongfulness of his conduct.

Therefore, Medina has failed to prove that his personality disorder meets

the standard in § 13-751(G)(1). Instead, we give his personality disorder

some weight as non-statutory mitigation.

¶104 Medina also contends that his delusional disorder, persecutory

type, establishes the (G)(1) factor. However, Medina did not offer proof

that the disorder prevented him from knowing right from wrong or

conforming his conduct to the requirements of the law. Thus, Medina has

not proven the (G)(1) mitigating circumstance with respect to his

delusional disorder, and we do not afford this disorder substantial weight

as non-statutory mitigation.

2. Defendant’s Age — A.R.S. § 13-751(G)(5)

¶105 A.R.S. § 13-751(G)(5) establishes the defendant’s age as a mitigating

factor. Because Medina was eighteen years old at the time of the murder,

he has established this statutory mitigator. “To determine how much

weight to assign the defendant’s age, we must also consider his level of

intelligence, maturity, past experience, and level of participation in the

killings.” State v. Poyson, 198 Ariz. 70, 80 ¶ 37, 7 P.3d 79, 89 (2000). “If a

defendant has a substantial criminal history or was a major participant in

the commission of the murder, the weight his or her age will be given may

be discounted.” Id. at 81 ¶ 37, 7 P.3d at 90.

¶106 Medina was of average or low-average intelligence and had never

lived on his own. He had prior convictions for aggravated robbery and

aggravated assault. Medina was a major participant in the murder: he

pulled the victim from the car, stomped on him repeatedly, dragged him

into the street, and then repeatedly drove over him. We give minimal

weight to Medina’s age as a mitigating factor.

3. Non-Statutory Mitigation

¶107 Medina alleges his gang affiliation and the lack of a plea bargain

from the State as mitigation. We do not find these factors to be mitigating.

Moreover, Medina stated on the record that he had rejected a plea offer

from the State that would have resulted in a sentence of life without

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Opinion of the Court

parole.

¶108 Medina also argues that he has rehabilitated himself by becoming

an artist. Rehabilitation through education and art can be considered as a

non-statutory mitigating circumstance. See State v. Roscoe, 184 Ariz. 484,

501, 910 P.2d 635, 652 (1996). We do not find that this circumstance merits

significant weight here.

¶109 Medina argues that he poses no future threat. We give this

mitigating circumstance minimal weight. See State v. Garcia, 224 Ariz. 1, 22

¶ 108, 226 P.3d 370, 391 (2010).

¶110 Medina contends that his co-defendant has received a sentence of

life in prison and that this disparate sentence should be considered in

mitigation. Unexplained disparities in the sentences of accomplices may

be a mitigating circumstance, but such disparities have little significance

when the murder is especially cruel, heinous, or depraved. See State v.

Ellison, 213 Ariz. 116, 140 ¶ 105, 140 P.3d 899, 923 (2006). Here, the

disparity can be explained. Medina, not his co-defendant, pulled the

victim from the car, stomped on him, dragged him into the street, and

drove over him multiple times. We do not find that the disparity here is

significantly mitigating.

¶111 Medina additionally alleges family support as a mitigating

circumstance. We agree that “close family ties may be mitigating.”

(Robert G.) Jones, 197 Ariz. at 313 ¶ 77, 4 P.3d at 368. Medina has

established that he has a close relationship with his family. However, we

find Medina’s family support “only slightly mitigating” because he

committed the murder while in his parent’s custody. See id.

¶112 Next, Medina argues that his remorse should be given weight in

mitigation. Medina expressed remorse to his girlfriend the day after the

murder; however, she characterized Medina’s regret not as an increased

sensitivity to the magnitude of the crime but more as “worr[y] about

getting caught.”

¶113 Medina also expressed remorse in his allocution. Yet, the State’s

expert testified that Medina had not shown regret or remorse during his

interview and opined that Medina was unlikely to feel any true remorse.

Medina’s expert, Dr. Lanyon, also testified that it would “take quite some

time” for Medina to feel remorse. Given this record, we give little

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Opinion of the Court

mitigating weight to Medina’s remorse.

¶114 Medina contends that we can consider mitigation evidence from

the 2008 trial that was not introduced at the 2009 trial although we decline

to consider evidence not presented to the sentencing jury when

conducting an independent review of aggravating circumstances. See

State v. Nordstrom, 230 Ariz. 110, 119 ¶ 46, 280 P.3d 1244, 1253 (2012). Even

if we consider the evidence from the 2008 trial, however, we find it is not

significantly mitigating.

C. Propriety of Death Sentence

¶115 Based on the aggravating and mitigating circumstances present in

this case, we find that “the mitigation is not sufficiently substantial to

warrant leniency.” A.R.S. § 13-755(B).

VI. CONCLUSION

¶116 We affirm Medina’s death sentence.3

3 Medina also lists thirty-seven constitutional claims that he states

this Court has rejected in other cases; we decline to revisit these claims.

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