State of Arizona v. Christopher Mathew Payne

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

THE STATE OF ARIZONA,

Appellee,

v.

CHRISTOPHER MATHEW PAYNE,

Appellant.

No. CR-09-0081-AP

Filed November 21, 2013

Appeal from the Superior Court in Pima County

The Honorable Richard S. Fields, Judge

No. CR20070973

AFFIRMED

COUNSEL:

Thomas C. Horne, Arizona Attorney General, Kent E. Cattani (argued),

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

Zick, Chief Counsel, Criminal Appeals/Capital Litigation, Amy Pignatella

Cain, Assistant Attorney General, Tucson, for State of Arizona

Lori J. Lefferts, Pima County Public Defender, Robert J. Hirsh, former

Pima County Public Defender, Frank P. Leto (argued), Deputy Public

Defender, Kristine Maish, Deputy Public Defender, Tucson, for

Christopher Mathew Payne

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

which JUSTICE PELANDER, JUSTICE BRUTINEL, and JUSTICE TIMMER

joined, and VICE CHIEF JUSTICE BALES concurred in part and dissented

in part.

STATE V. PAYNE

Amended Opinion of the Court

CHIEF JUSTICE BERCH, amended opinion of the Court:

¶1 Christopher Mathew Payne was convicted of two counts of

first degree murder, three counts of child abuse, and two counts of

concealing a dead body, and was sentenced to death for each murder. We

have jurisdiction of this automatic appeal pursuant to Article 6, Section

5(3) of the Arizona Constitution and A.R.S. § 13-4031.

I. FACTUAL AND PROCEDURAL BACKGROUND1

¶2 Christopher Mathew Payne and his girlfriend, Reina

Gonzales, starved and abused Payne’s children, Ariana, age 3, and Tyler,

age 4, until they died.

¶3 Payne left Ariana and Tyler with Gonzales while he worked,

first driving for a medical transportation company and later selling

heroin. Gonzales called Payne at work several times a day to complain

about the children, even purportedly threatening to kill them if Payne did

not make them behave.

¶4 Payne began punishing Ariana and Tyler by locking them in

a closet while he was away. By late June 2006, the children were kept in

the closet permanently. Payne initially fed them sandwiches once a day,

but after about a month, he stopped feeding them at all. Payne checked

on the children perhaps once a day, but he did not bathe them or let them

out to use the bathroom or get fresh air.

¶5 Sometime in August 2006, Payne discovered that Ariana had

died. He nonetheless left her in the closet with Tyler, who was still alive.

The next day, Payne stuffed Ariana’s body into a duffel bag, which he

eventually put back in the closet with Tyler. Payne found Tyler dead

approximately one week later.

1 “We view the facts in the light most favorable to sustaining the

verdict.” State v. Dann (Dann I), 205 Ariz. 557, 562 ¶ 2, 74 P.3d 231, 236

(2003).

2

STATE V. PAYNE

Amended Opinion of the Court

¶6 In mid-September, Payne put the children’s bodies in a blue

tote box, which he placed in a rented storage unit. After Payne failed to

pay the rental fee, staff opened the unit. They found only the tote inside,

which they said smelled “really bad,” so they threw it in a dumpster. A

staff member became concerned about the smell and called the police two

days later.

¶7 The police found Ariana’s partially decomposed body inside

the tote. She had twelve broken ribs, a broken spine, and a broken

shoulder. After finding Ariana’s body, the police did not search the

dumpster further. The investigation led police to Payne and Gonzales,

whom they located at a motel. The officers asked Payne to accompany

them to the station to answer questions, but he refused to go without his

attorney. They then arrested him on an unrelated warrant.

¶8 At the station, Payne confessed to not obtaining help for the

children and allowing them to die in his care. Police never found Tyler’s

body. In searching Payne’s former apartment, police found blood on the

walls inside the closet, an opening in the closet wall stuffed with feces and

human hair, and several patches of body fluids on the carpet.

¶9 The State charged Payne and Gonzales with first degree

murder and other crimes. In exchange for testifying, the State allowed

Gonzales to plead guilty to two counts of second degree murder, for

which she was given concurrent 22-year prison sentences. The jury found

Payne guilty of three counts of child abuse, two counts of concealing a

dead body, and two counts of first degree murder. The jury also found

three aggravating factors: especial cruelty, heinousness, or depravity,

A.R.S. § 13-751(F)(6); multiple homicides, id. § 13-751(F)(8); and young age

of the victims, id. § 13-751(F)(9). This automatic appeal followed the

imposition of death sentences for the two murders.

3

STATE V. PAYNE

Amended Opinion of the Court

II. DISCUSSION2

A. Jury Selection

¶10 The Sixth Amendment to the United States Constitution

entitles a defendant to an impartial jury. State v. Velazquez, 216 Ariz. 300,

306 ¶ 14, 166 P.3d 91, 97 (2007). Payne argues that the trial court erred by

dismissing some jurors improperly and failing to dismiss others.

1. Juror 49

¶11 Based on Juror 49’s responses to the juror questionnaire, the

trial court excused that juror because serving on the jury would interfere

with her school schedule. Prospective jurors “shall” be excused if serving

on a jury would cause “undue or extreme physical or financial hardship,”

A.R.S. § 21-202(B)(4), or “undue or extreme hardship under the

circumstances,” id. § 21-202(B)(6). Payne initially expressed concern about

dismissing Juror 49 “without more questioning,” but did not object to her

dismissal after the court explained the reasons for dismissing her. We

thus review the decision to strike Juror 49 for fundamental error. See State

v. Moody, 208 Ariz. 424, 449-50 ¶ 85, 94 P.3d 1119, 1144-45 (2004); State v.

Cañez (Cañez I), 202 Ariz. 133, 147 ¶ 30, 42 P.3d 564, 578 (2002).

¶12 In her questionnaire, Juror 49 said that service would pose a

substantial hardship because she was a student and had classes on trial

days. Payne claims there was discriminatory intent in her dismissal, but

points to no evidence of such intent. Given the student’s school-related

conflict and lack of evidence of discriminatory intent, the judge did not

commit fundamental error by excusing her.

2 Payne cites state and federal constitutional provisions and raises

several claims in passing without developing arguments. We consider

issues not argued to be waived and therefore do not address them. See

Ariz. R. Crim. P. 31.13(c)(1)(vi) (requiring appellate briefs to “contain the

contentions . . . with respect to the issues presented, and the reasons

therefor”).

4

STATE V. PAYNE

Amended Opinion of the Court

2. Juror 74

¶13 The trial court dismissed Juror 74 for cause based on

hardship and her opposition to the death penalty. Juror 74’s

questionnaire stated that she belonged to a group advocating the abolition

of the death penalty, would never vote to impose it under any

circumstances, and was personally, morally, or religiously opposed to

capital punishment. She also indicated that serving would cause undue

hardship because she planned to accompany her elderly parents to the

east coast twice during the scheduled trial period. Over Payne’s objection,

the trial court dismissed the juror without affording Payne an opportunity

to rehabilitate her. We review this ruling for an abuse of discretion. See

State v. Dann (Dann III), 220 Ariz. 351, 362 ¶ 35, 207 P.3d 604, 615 (2009).

¶14 A week after dismissing Juror 74, the court informed counsel

that it wanted to bring her in for questioning in light of State v. Anderson

(Anderson I), 197 Ariz. 314, 324 ¶ 23, 4 P.3d 369, 379 (2000). The court

arranged a conference call with Juror 74. She was not under oath for the

call, which occurred while she was in an Alabama airport between flights.

When asked if she could set aside her feelings about the death penalty, she

responded, “I cannot, I cannot participate in a process that allows the State

to initiate death.” She reiterated this view several times in response to

questions from the court and counsel. She also affirmed that she planned

to be out of town twice during trial to accompany her parents while they

traveled. She had also accepted a job in Florida after being dismissed

from the jury panel. Over Payne’s objection, the court again dismissed

Juror 74.

¶15 A prospective juror who will automatically vote for or

against the death penalty or will suffer a hardship may be removed for

cause. A.R.S. § 21-202(B)(4)(c); State v. Speer, 221 Ariz. 449, 454-55 ¶ 23,

212 P.3d 787, 792-93 (2009). We find no error in the court’s dismissal.

¶16 Despite Juror 74’s seemingly settled position on the death

penalty and her travel plans, the trial court erred by failing to afford

Payne an opportunity to rehabilitate her under oath. See Ariz. R. Crim. P.

18.5(d) (providing that upon request, the court “shall permit that party a

reasonable time to conduct a further oral examination of the prospective

5

STATE V. PAYNE

Amended Opinion of the Court

jurors”). Although defense counsel was able to ask rehabilitating

questions during the telephonic conference, Juror 74 was not then under

oath. Citing Anderson I, Payne argues that this constituted fundamental or

structural error.

¶17 But while Anderson I found the dismissal of jurors without

adequate questioning to be structural error, the jurors there had expressed

only equivocal objections to the death penalty and the defendant was not

afforded any opportunity to rehabilitate them. 197 Ariz. at 319 ¶ 10, 324

¶ 23, 4 P.3d at 374, 379. Here, in contrast, defense counsel was permitted

to telephonically question the single juror who stated her unequivocal

opposition to the death penalty.

¶18 Juror 74’s objections to the death penalty remained definite

and unshakable, and her telephonic responses remained consistent with

those on her questionnaire. That questionnaire states that the responses

“have the effect of a statement given to the Court under oath.” Given

these circumstances, the error was not fundamental or structural, nor did

it prejudice Payne.

3. Juror 146

¶19 Payne argues that the trial court erred by dismissing Juror

146 for cause based on her objections to the death penalty because, in

response to another question, she indicated that she could follow the law.

Juror 146’s questionnaire indicated that she was personally, morally, or

religiously opposed to the death penalty and would never vote for it

under any circumstances. She also stated that she could not vote for a

death sentence even if she felt it appropriate after hearing the evidence,

instructions, and deliberating. Yet in response to other questions, she

indicated that she would follow instructions and keep an open mind

regarding aggravating and mitigating circumstances.

¶20 After the process was explained, she said, “I cannot be

responsible for putting a person to death even if they met [the]

qualifications.” When asked if she could vote to impose death if the law

required, she said that she would follow instructions, but would not like it

and would not “be okay with it emotionally.” The judge noted that while

6

STATE V. PAYNE

Amended Opinion of the Court

Juror 146 said she would follow the law, he was concerned about her

ability to be fair. The court granted the State’s motion to strike her for

cause.

¶21 Although a “general objection to the death penalty is not

sufficient to create a presumption that a prospective juror is unfit because

of bias to sit on the panel,” Anderson I, 197 Ariz. at 318 ¶ 6, 4 P.3d at 373

(discussing Witherspoon v. Illinois, 391 U.S. 510 (1968)), if a prospective

juror’s views would “prevent or substantially impair the performance of

[her] duties,” the court should strike the juror for cause, Wainwright v.

Witt, 469 U.S. 412, 424 (1985).

¶22 Juror 146’s responses were sufficient to permit the judge to

conclude that she could not be fair and impartial. See State v. Glassel, 211

Ariz. 33, 49-50 ¶¶ 53-55, 116 P.3d 1193, 1209-10 (2005) (affirming decision

to strike a juror for cause who stated she could not make the decision to

put someone to death despite her attestation that she would be “fair and

impartial”). Therefore, the decision to dismiss Juror 146 was not an abuse

of discretion.

4. Refusing to strike jurors

¶23 Payne claims that the trial court abused its discretion by

refusing to strike Jurors 18, 28, 100, and 103, who were impaneled and

deliberated, and Juror 94, who was designated an alternate. Although

these jurors’ questionnaires expressed pro-death penalty views or

acknowledged media exposure or special feelings about child victims, the

State rehabilitated them, with each stating that he or she would disregard

personal feelings and follow the law and would not impose the death

penalty if not appropriate. Thus, the trial judge did not abuse his

discretion in refusing to strike these jurors.

5. Peremptory challenges

¶24 Payne claims that the trial court abused its discretion by

refusing to strike Jurors 66, 71, 138, 152, and 153 for cause, requiring Payne

to use peremptory challenges to remove them. Payne has failed to show

that any of these jurors was so biased that it was an abuse of discretion to

7

STATE V. PAYNE

Amended Opinion of the Court

deny his motions to strike. See State v. Dickens, 187 Ariz. 1, 11, 926 P.2d

468, 478 (1996) (defendant must show juror “was biased and could not

reasonably render a fair or impartial verdict”), abrogated on other grounds

by State v. Ferrero, 229 Ariz. 239, 242-43 ¶¶ 15, 20, 274 P.3d 509, 512-13

(2012). The responses given by each juror provided the trial court a

reasonable basis for concluding that each could remain impartial.

Moreover, none of these jurors actually sat on the jury panel, making any

error harmless. See State v. Hickman, 205 Ariz. 192, 198 ¶ 28, 68 P.3d 418,

424 (2003) (finding curative use of peremptory challenge subject to

harmless error review).

B. Venue

¶25 Payne asserts that the trial court erred by denying his

request for a change of venue based on presumed and actual prejudice.

1. Presumed prejudice

¶26 Payne first claims that the trial court erred by denying his

request for a change of venue based on pre-trial publicity. We review a

trial court’s ruling on a motion for change of venue for an abuse of

discretion. State v. Cruz, 218 Ariz. 149, 156 ¶ 12, 181 P.3d 196, 203 (2008).

¶27 Approximately two months before the trial, Payne requested

a change of venue based on adverse and excessive media coverage. He

filed more than 200 newspaper and broadcast reports that mentioned his

case. The trial court denied the motion, noting that much of the publicity

criticized CPS and most articles about the facts had appeared long before

trial. Payne did not renew his motion during trial.

¶28 A defendant is entitled to change the venue for his trial “if a

fair and impartial trial cannot be had.” Ariz. R. Crim. P. 10.3(a). To show

presumed prejudice, a defendant must show that the publicity “was so

extensive or outrageous that it permeated the proceedings or created a

carnival-like atmosphere.” State v. Blakley, 204 Ariz. 429, 434 ¶ 14, 65 P.3d

77, 82 (2003) (internal quotation marks omitted) (quoting State v. Atwood,

171 Ariz. 576, 631, 832 P.2d 593, 648 (1992)). The publicity must be so

prejudicial that the jurors could not decide the case fairly. State v.

8

STATE V. PAYNE

Amended Opinion of the Court

Nordstrom, 200 Ariz. 229, 239 ¶ 15, 25 P.3d 717, 727 (2001), abrogated on

other grounds by Ferrero, 229 Ariz. at 243 ¶ 20, 274 Ariz. at 513. We examine

whether the publicity was chiefly factual and non-inflammatory and the

amount of time between the coverage and trial. See State v. Davolt, 207

Ariz. 191, 206 ¶ 46, 84 P.3d 456, 471 (2004).

¶29 Media coverage of Payne’s case was substantial. Several

reports included prejudicial information, including Payne’s criminal

history, allegations that Payne victimized Gonzales, and graphic

descriptions of Ariana’s remains. Furthermore, several comments in

internet news articles proclaimed Payne’s guilt and advocated extra-

judicial punishment. But most of the coverage appeared more than a year

before trial, contained facts later substantiated by evidence at trial, and

repeated a basic description of the crime that mirrored indictment

allegations. See Nordstrom, 200 Ariz. at 240 ¶ 17, 25 P.3d at 728 (no

presumed prejudice despite “troubling publicity” that appeared “many

months before trial” where “much of the information” was “presented . . .

as evidence” at trial). And the court exercised discretion and gave

instructions to prevent potentially harmful coverage from infecting the

venire.

¶30 Payne has failed to meet the “’very heavy’ burden” of proof

necessary to show presumed prejudice. Cruz, 218 Ariz. at 157 ¶¶ 17, 20,

181 P.3d at 204.

2. Actual prejudice

¶31 Payne alternatively claims that even if prejudice is not

presumed, he has shown actual prejudice. Actual prejudice is established

by showing that sitting jurors “formed preconceived notions concerning

the defendant’s guilt.” State v. Chaney, 141 Ariz. 295, 302, 686 P.2d 1265,

1272 (1984). Mere knowledge of or opinions about the case do not

disqualify a juror who can set them aside and decide based on the

evidence presented at trial. Cruz, 218 Ariz. at 156-57 ¶ 14, 181 P.3d at 203-

04. Payne has not shown actual prejudice among the sitting jurors.

¶32 Of the twelve jurors who deliberated, seven reported

exposure to media reports. Five of the seven reported “very little”

9

STATE V. PAYNE

Amended Opinion of the Court

exposure, and all seven assured the court they could disregard it. See

Atwood, 171 Ariz. at 632, 832 P.2d at 649 (no prejudice where half of jurors

had “minimal” media exposure, but indicated it would not interfere),

disapproved of on other grounds by Nordstrom, 200 Ariz. at 241 ¶ 25, 25 P.3d

at 729. Throughout voir dire and after the jury was sworn, the trial court

admonished the jury to avoid coverage and report any exposure.

¶33 Payne attempts to show that events at trial tainted the

objectivity of the jurors. He highlights several allegedly prejudicial

events: a spectator’s statement, which occurred in a hallway with no

jurors present, that Payne was a “monster” who should “fry”; a

cameraman’s utterance of “what the f***” in response to a camera

problem, an utterance heard only by Payne’s counsel and a deputy; and

blogging by two witnesses during the trial, mostly discussing the victims’

mother. Payne fails to connect these isolated events to actual prejudice or

bias of any jury member.

¶34 Finally, Payne argues that actual prejudice was shown by

the court’s directive to jurors that they remain on one floor to avoid the

media and witnesses. Such admonitions, however, are precisely the type

of prophylactic measures courts should take to avoid tainting the jury. See

Nordstrom, 200 Ariz. at 240 ¶¶ 18-19, 25 P.3d at 728 (finding insufficient

evidence of actual prejudice to justify a change of venue and noting

admonition to jurors to avoid media exposure). Thus, Payne has failed to

show actual prejudice.

C. Post-Arrest Statements

¶35 Payne argues that the trial court erred by refusing to

suppress his post-arrest statements, which he claims violated Miranda and

were involuntary. We review rulings admitting a defendant’s statements

for an abuse of discretion. State v. Newell, 212 Ariz. 389, 396 ¶ 22 & n.6,

132 P.3d 833, 840 & n.6 (2006).

¶36 When the police officers first encountered Payne at a motel,

they told him they were investigating a crime and asked if he would

accompany them to the station to answer questions. Payne refused to go

without his lawyer. The police then arrested him on an unrelated

10

STATE V. PAYNE

Amended Opinion of the Court

misdemeanor warrant. Once at the station, they put Payne in an

interrogation room. He waited approximately thirty minutes, during

which time he yelled, banged his handcuffs on the table, kicked the wall,

and asked to use the restroom, which he was allowed to do. In response

to the noise, Detective Walker opened the door to check on Payne. He did

not intend to interrogate Payne then, but Payne insisted that questioning

begin immediately. So Detective Walker read Payne his Miranda rights,

which Payne waived. Eventually, Payne admitted that the victims died in

his care and that he concealed their bodies in the storage facility.

1. Right to counsel

¶37 Payne claims that he clearly and unambiguously invoked his

right to counsel when police first encountered him outside of the motel.

Citing Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), he asserts that once a

suspect in custody invokes his Miranda right to counsel, police may not

interrogate him until he has counsel or he reinitiates the contact.

¶38 Assuming that Payne did request counsel outside the motel,

the question arises whether his invocation was effective. Miranda rights

generally cannot be invoked unless the suspect is in police custody. See

McNeil v. Wisconsin, 501 U.S. 171, 182 n.3 (1991). In McNeil, the Court

noted that it had “in fact never held that a person can invoke his Miranda

rights anticipatorily, in a context other than ‘custodial interrogation.’” Id.

Although Arizona courts have never had occasion to address the issue,

other jurisdictions have relied on this language from McNeil to conclude

that a non-custodial, anticipatory invocation of rights is not effective. See,

e.g., United States v. LaGrone, 43 F.3d 332, 339 (7th Cir. 1994); Alston v.

Redman, 34 F.3d 1237, 1249 (3d Cir. 1994); United States v. Wright, 962 F.2d

953, 955 (9th Cir. 1992) (“The [Supreme] Court has never held that Miranda

rights may be invoked anticipatorily outside the context of custodial

interrogation; we see no reason, apart from those already rejected in

McNeil, to do so here.”). We reach a similar conclusion.

¶39 Payne was not in custody when he attempted to invoke his

right to counsel because, other than the presence of police, he had no

reason to “feel deprived of his freedom of action.” See State v. Stanley, 167

Ariz. 519, 523, 809 P.2d 944, 948 (1991); see also State v. Carter, 145 Ariz. 101,

11

STATE V. PAYNE

Amended Opinion of the Court

105-06, 700 P.2d 488, 492-93 (1985) (inherently coercive nature of speaking

to police is insufficient). The police had not indicated that he was

suspected of committing a crime, had not told him he was under arrest,

and had not drawn their guns. Moreover, Payne felt free to refuse to

accompany them. Thus, Payne’s initial invocation was ineffective.

2. Right to silence

¶40 Payne also claims that he invoked his right to silence during

the interrogation. An invocation of the right to silence must be

unequivocal and unambiguous, as judged from the perspective of a

reasonable officer under the totality of the circumstances. State v. Cota, 229

Ariz. 136, 144-45 ¶ 26, 272 P.3d 1027, 1035-36 (2012). If an invocation is

ambiguous or equivocal, “the police are not required to end the

interrogation . . . or ask questions to clarify whether the accused wants to

invoke his or her Miranda rights.” Berghuis v. Thompkins, 130 S. Ct. 2250,

2259-60 (2010). During the interrogation, the following exchange

occurred:

PAYNE: . . . you know what man, I don’t wanna talk

anymore[.] [C]an I call my father[;] can I get my one phone

call?

WALKER: Your father is still in [a] plane.

PAYNE: Well let me call my sister, and then my step-

sister, just to let them know that, what the f*** is goin’ on,

and then I’ll talk, man. I don’t know what the f*** you

wanna get outta me, but I’ll talk.

¶41 A reasonable officer in these circumstances could find

Payne’s request ambiguous or equivocal because he indicated that he

would talk after he spoke with a family member. Therefore, the trial court

did not abuse its discretion in finding no violation of Miranda and

admitting Payne’s statements.

12

STATE V. PAYNE

Amended Opinion of the Court

3. Voluntariness

¶42 Payne argues that his statements were involuntary because

he relied on promises made by the police and was suffering from heroin

withdrawal when he confessed. Trial courts presume confessions to be

involuntary, State v. Ross, 180 Ariz. 598, 603, 886 P.2d 1354, 1359 (1994),

but we review a trial court’s ruling on a motion to suppress for an abuse

of discretion, State v. Hausner, 230 Ariz. 60, 70 ¶ 23, 280 P.3d 604, 614

(2012).

¶43 The effect of withdrawal from drugs does not render a

confession involuntary unless the suspect “is unable to understand the

meaning of his statements” or cannot reason or comprehend what is

happening. State v. Laffoon, 125 Ariz. 484, 487, 610 P.2d 1045, 1048 (1980)

(citing State v. Arredondo, 111 Ariz. 141, 145, 526 P.2d 163, 167 (1974)).

Payne reported being cold and sick, asked for methadone, and vomited at

the end of the interrogation. EMTs evaluated Payne, however, and

concluded that his vital signs were normal. He clearly understood and

followed the questioning, consistently denied police assertions, and

presented facts in a light favorable to himself.

¶44 Payne also argues that he confessed because police said they

would let him speak with Gonzales. See State v. Ellison, 213 Ariz. 116, 127

¶ 30, 140 P.3d 899, 910 (2006) (noting that promises and coercion may

render statements involuntary). Courts examine the totality of the

circumstances to determine whether the suspect’s will was overborne by

police conduct. Stanley, 167 Ariz. at 523-24, 809 P.2d at 948-49. Although

police did tell Payne he could talk with Gonzales, he did not show that

this was a promise or quid pro quo for talking, that he relied upon the

statement, or that the police overbore his will. The circumstances indicate

otherwise: Payne made his admissions at times far removed from any

promises regarding Gonzales, and after Payne’s initial incriminatory

statements, Payne denied disposing of Tyler’s body in a different location,

denied abusing the children, and denied murdering the children to avoid

paying child support. See Newell, 212 Ariz. at 400 ¶ 50, 132 P.3d at 844

(noting that continued denials were evidence that defendant’s will was

not overborne).

13

STATE V. PAYNE

Amended Opinion of the Court

¶45 For these reasons, we conclude that the trial court did not

abuse its discretion by finding that Payne’s statements were voluntary.

D. Exclusion of Hearsay

¶46 Payne contends that the trial court erroneously prevented

him from presenting evidence regarding Gonzales’s threats to “kill” the

children if he did not do something about their behavior. The statements

he wished to introduce were: “You got to do something about these

f***ing kids. You got to shut these f***ing kids up or I’m going to f***ing

kill them.” Payne sought to introduce these statements through the

testimony of Debra Reyes, who sold heroin with Payne and overheard

phone calls in which Gonzales screamed at Payne and threatened to kill

the children.

¶47 The State moved to preclude these statements on hearsay

grounds and because they would open the door to testimony that

Gonzales wanted to help the children but feared reprisals from Payne. At

Payne’s request, the court had previously precluded evidence about

threats and domestic abuse between Payne and Gonzales.

¶48 Payne argues that Gonzales’s statements qualify as present

sense impressions under Arizona Rule of Evidence 803(1) and excited

utterances under Rule 803(2). Payne asserts for the first time that they also

qualify as party admissions under Rule 801(d)(2), statements of existing

mental, emotional, or physical condition under Rule 803(3), and

statements against interest under Rule 804(b)(3). The court precluded the

statements “on the basis of the record,” ruling that Payne could call

Gonzales and Reyes, but could not ask Reyes about Gonzales’s threats to

kill the children.

¶49 Out of court statements offered to prove the truth of the

matter asserted are hearsay and are inadmissible unless they fall within an

exception to the hearsay rule. Ariz. R. Evid. 801(c)-(d), 802. We review

the rulings on those grounds that Payne raised at trial for an abuse of

discretion, State v. Chappell, 225 Ariz. 229, 238 ¶ 28, 236 P.3d 1176, 1185

(2010), and review de novo constitutional issues and the meaning of the

rules of evidence, State v. Hansen, 215 Ariz. 287, 289 ¶ 6, 160 P.3d 166, 168

14

STATE V. PAYNE

Amended Opinion of the Court

(2007). We review those issues that Payne did not raise at trial for

fundamental error. See State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d

601, 607 (2005).

¶50 To qualify as a present sense impression under Rule 803(1), a

statement must “describ[e] or explain[] an event or condition” while the

viewer is perceiving it or immediately thereafter. Payne argues that Reyes

was perceiving Gonzales’s frustration with the children. But the

statement at issue — Gonzales’s threat to kill the children — was not the

sense impression. Nor did the statement qualify as an excited utterance

under Rule 803(2). That rule requires that the statement “relate[] to a

startling event or condition.” The trial court did not abuse its discretion

by finding that the statement did not qualify as an excited utterance

because no startling event or condition had occurred.

¶51 Under Rule 801(d)(1)(A), a statement is not hearsay if the

“declarant testifies and is subject to cross-examination about a prior

statement, and the statement . . . is inconsistent with the declarant’s

testimony.” Gonzales testified at trial, and Payne made an offer of proof

in which Gonzales denied making the statements. Reyes’s testimony

about Gonzales’s prior statement qualified under this rule.

¶52 But trial courts have discretion to exclude otherwise

admissible evidence “if its probative value is substantially outweighed by

a danger of . . . unfair prejudice, confusing the issues, misleading the jury,

undue delay, wasting time, or needlessly presenting cumulative

evidence.” Ariz. R. Evid. 403. Introducing Gonzales’s statements through

Reyes would have raised collateral issues, such as whether the threats

actually evidenced any intent to harm the children, and implicated even

more peripheral issues such as Gonzales’s fear of Payne and evidence of

past abusive incidents between Payne and Gonzales. The trial court had

previously granted Payne’s motion to preclude evidence of any abuse of

Gonzales. The trial court acted within its discretion in precluding the

admission of Gonzales’s statements through Reyes because they might

have caused confusion and wasted time. Moreover, other evidence

presented at trial amply showed Gonzales’s exasperation with the

children, including Gonzales’s testimony that she often called Payne to

yell about the children and Reyes’s testimony about witnessing similar

15

STATE V. PAYNE

Amended Opinion of the Court

frustrations. Furthermore, the jury knew that Gonzales was incarcerated

for her involvement in the murders. Therefore, the precluded testimony

was cumulative, and for this additional reason, the trial court did not

abuse its discretion by excluding it.

¶53 Furthermore, the record contained substantial evidence that

the children were malnourished, abused, kept in a closet, and ultimately

died in Payne’s care. Even if the jury had heard and believed that

Gonzales threatened to kill the children, there was ample evidence that

Payne abused and premeditatedly murdered them by failing to help them.

¶54 Because we find no abuse of discretion in excluding Reyes’s

testimony regarding Gonzales’s statements, we do not address the

hearsay exceptions not raised at trial, which would be subject to

fundamental error review.

¶55 Payne also contends that excluding this testimony violated

his constitutional rights to due process and compulsory process. But the

analysis for these claims parallels our Rule 403 analysis, focusing on the

probative value and prejudicial effect of the evidence. See United States v.

Cruz-Escoto, 476 F.3d 1081, 1088 (9th Cir. 2007). As such, the exclusion of

this evidence did not violate due process or compulsory process rights.

E. Admission of Evidence of Heroin Sales

¶56 Payne asserts that the trial court inappropriately admitted

evidence that he sold heroin. He claims that this was unduly prejudicial

because it encouraged the jury to convict him for uncharged bad acts. We

review the admission of evidence for abuse of discretion. State v. Robinson,

165 Ariz. 51, 56, 796 P.2d 853, 858 (1990).

¶57 The court found the nature of Payne’s job required that he

remain away from home for long hours. This motivated him to lock his

children in the closet to appease Gonzales. Thus the court found the

evidence probative of motive. To attempt to minimize prejudice, the court

admonished the State “to limit the number of times . . . the issue [was]

brought up, and not use racy words.” The State mentioned in its opening

statement and closing argument that Payne “started dealing drugs” and

16

STATE V. PAYNE

Amended Opinion of the Court

was “working with” a heroin dealer. Payne himself also mentioned

several times in his opening statement and closing argument that he sold

heroin. In its final instructions, the court instructed the jury not to

consider evidence of drug use or sales for character purposes or as a basis

for determining that the defendant committed the charged offenses.

¶58 Evidence of uncharged acts may not be admitted to prove

bad character or that, because a defendant did one bad act, he likely

engaged in other bad acts. Ariz. R. Evid. 404(b). But such evidence may

be admitted to prove other issues, such as motive, opportunity, or lack of

mistake or accident. Id.; see Ferrero, 229 Ariz. at 241 ¶ 5, 274 P.3d at 511.

When other act evidence is admissible but prejudicial, the trial court must

“limit the evidence to its probative essence (motive) by excluding

irrelevant or inflammatory detail.” State v. Hughes, 189 Ariz. 62, 70, 938

P.2d 457, 465 (1997).

¶59 The trial court did attempt to limit the prejudice here and

did not abuse its discretion. Each time the State mentioned the heroin

sales, it did so to explain why Payne was away from home for long

periods.3 The evidence was relevant to the State’s theory that Payne

locked the children in the closet so he could stay away from home without

interruption from Gonzales’s calls.

¶60 Finally, the trial court did find that the probative value of the

evidence was not substantially outweighed by its prejudicial effect. The

jury heard evidence that Gonzales and Payne used heroin, marginalizing

any prejudicial effect from evidence that Payne was absent because he was

out selling it.

3 Prosecutors and courts should tread carefully in areas that may

affect the fairness of a criminal trial. A defendant might also spend long

hours away from home while working as a lawyer or stockbroker. For

that reason, trial judges should carefully scrutinize requests to admit

prejudicial evidence. In this case, we cannot say that the judge’s ruling

was an abuse of discretion, but the issue is close. The judge’s limiting

instructions helped prevent an abuse.

17

STATE V. PAYNE

Amended Opinion of the Court

F. Jurors Seeing Payne in Restraints

¶61 Relying on Deck v. Missouri’s holding that routine use of

visible shackles on a defendant is “inherently prejudicial,” see 544 U.S. 622,

628 (2005), Payne contends that the trial court erred by denying his motion

for a mistrial or to designate jurors as alternates after they saw Payne in

restraints outside the courtroom. Mistrial is an extraordinary remedy for

trial error “and should be granted only when it appears that justice will be

thwarted unless the jury is discharged and a new trial granted.” Speer, 221

Ariz. at 462 ¶ 72, 212 P.3d at 800 (quoting Dann I, 205 Ariz. at 570 ¶ 43, 74

P.3d at 244). We review the trial court’s rulings for abuse of discretion.

State v. Adamson, 136 Ariz. 250, 260, 665 P.2d 972, 982 (1983) (mistrial);

State v. Bible, 175 Ariz. 549, 574, 858 P.2d 1152, 1177 (1993) (designation of

jurors).

¶62 During trial, Juror E told the court that, while in a restricted-

access hallway, he saw Payne in an elevator with three officers and a

“cage.” The jurors had been wondering what the elevator was used for, so

Juror E told Juror F that the elevator was used to transport “prisoners.”

Upon questioning, Juror E assured the court that the incident would not

affect his ability to remain fair and impartial. Juror F gave similar

assurances. The court denied Payne’s motion for a mistrial or to designate

Jurors E and F as alternate jurors, noting that jurors would not be

“surprise[d]” to know that Payne was in custody, in part because they

were to see a video of him wearing restraints the next trial day.

¶63 Several days later, another juror, Juror W, passed the same

elevator when Payne and deputies were inside and the doors were open.

When the trial court asked Juror W whether he saw anything he was not

supposed to see, Juror W said he did not think so. The court did not

question him further because it did not want to suggest an answer. Payne

renewed his motions, which the court again denied. The court

nonetheless admonished the deputies to exercise more caution when

transporting Payne. Before the court selected alternates, Payne renewed

his motion to designate Jurors E, F, and W as alternates, but the court

again denied the motion.

¶64 A third incident occurred when the deputies opened the

18

STATE V. PAYNE

Amended Opinion of the Court

door of the elevator as two jurors walked by. Juror N1 was dismissed

randomly as an alternate. The deputies believed that the other juror, Juror

N2, was not looking in their direction, but even if so, would not have seen

Payne’s shackles because Payne was standing behind the officers. Payne

pointed out that he was taller than the deputies and so could easily have

been seen. The trial court declined to designate Juror N2 an alternate,

noting that Payne was not “wear[ing] shackles on his head.”

¶65 Payne relies on cases holding that routine use of visible

shackles is “inherently prejudicial” and obviates the need for a showing of

prejudice. See Deck, 544 U.S. at 635. But brief, inadvertent juror exposure

to the defendant in shackles outside the courtroom does not rise to the

same level. See Speer, 221 Ariz. at 462-63 ¶ 74, 212 P.3d at 800-01. Payne

must therefore show actual prejudice, see id. ¶ 72, which the record does

not reflect.

¶66 During voir dire by Payne, Jurors E and F, who deliberated

after seeing Payne in restraints, assured the court that the incident would

not affect their ability to be fair and impartial. Their “brief and

inadvertent exposure” outside the courtroom was not inherently

prejudicial. See State v. Apelt, 176 Ariz. 349, 361, 861 P.2d 634, 646 (1993)

(affirming denial of new trial where four jurors saw defendant in shackles

and handcuffs being escorted from courthouse). Payne has not pointed to

any evidence that jurors were prejudiced. And, as the trial court

observed, it is highly unlikely that any juror would have been surprised

that Payne was in custody. Thus, Payne has not established actual

prejudice.

G. Child Abuse Charges

¶67 Payne makes four claims related to his child abuse

convictions, which are addressed in turn below.

1. Mens rea of “circumstances”

¶68 Payne asserts that the trial court erroneously prohibited him

from arguing to the jury that the State must prove that he abused the

children “under circumstances [that he intended or knew were] likely to

19

STATE V. PAYNE

Amended Opinion of the Court

cause death or serious physical injury.” This, he claims, turned child

abuse into a strict liability offense and, as a result, the court erred in

instructing the jury on the elements of child abuse. We review de novo

statutory interpretation issues, State v. Armstrong (Armstrong III), 218 Ariz.

451, 463 ¶ 54, 189 P.3d 378, 390 (2008), and whether jury instructions

properly state the law, State v. Johnson, 212 Ariz. 425, 431 ¶ 15, 133 P.3d

735, 741 (2006).

¶69 Section 13-3623(A) makes it crime, “[u]nder circumstances

likely to produce death or serious injury,” for a person to cause physical

injury to a child or to permit the injury of a child in the person’s care or

custody. This offense is a class 2 felony “[i]f done intentionally or

knowingly.” Id. § 13-3623(A)(1). Payne contends that, in order to convict

him of child abuse as a class 2 felony, in addition to showing that he

intended to cause or knew that he would cause (or permit) injury, the

State had to show that he intended or knew that the “circumstances were

likely to produce death or serious injury.” Payne thus contends that the

intentional or knowing mens rea requirement applicable to the other

elements of child abuse also applies to the circumstances component. The

trial court rejected Payne’s construction and instructed the jury that the

State must prove “that the defendant committed child abuse in at least one

of the three possible manners . . . , and that [his actions occurred] under

circumstances likely to cause death or serious physical injury” to the

children.

¶70 If a statute requires a mental state, it applies to each element

of the offense unless it “plainly appears” that the legislature intended

otherwise. A.R.S. § 13-202(A). The questioned portion of § 13-3623(A)

(the “circumstances clause”) provides that abuse must occur “[u]nder

circumstances likely to produce death or serious physical injury.” We

have not addressed whether any mens rea requirement applies to this

phrase, but our court of appeals has upheld convictions based solely on

objective evidence of the existence of such circumstances, without

requiring the state to prove the defendant’s intent that the circumstances

be such that death or serious injury might occur. See State v. Johnson, 181

Ariz. 346, 350, 890 P.2d 641, 645 (App. 1995); State v. Greene, 168 Ariz. 104,

105-06, 811 P.2d 356, 357-58 (App. 1991). Other jurisdictions have

similarly interpreted such clauses. See People v. Sargent, 970 P.2d 409, 418

20

STATE V. PAYNE

Amended Opinion of the Court

(Cal. 1999) (California’s circumstances clause “does not provide that a

defendant must ‘know or reasonably should know that his or her actions

occur under circumstances or conditions likely to produce great bodily

harm or death.’” (quoting Cal. Penal Code § 273a)); cf. Williams v. State, 641

A.2d 990, 992-93 (Md. Ct. Spec. App. 1994) (whether circumstances in

reckless endangerment are likely to result in serious physical injury or

death is an objective inquiry). “[C]ircumstances likely to produce death or

serious physical injury,” unlike the abuse itself, either exist or do not exist.

This Court has similarly found the “care and custody” element of § 13-

3623(A) to be an objective factual inquiry rather than an element for which

mens rea must be proven. See State v. Jones, 188 Ariz. 388, 393-94, 937 P.2d

310, 315-16 (1997).

¶71 Moreover, the statute increases the offense level based on the

actor’s intent: If the offense is “done intentionally or knowingly,” it

becomes a class 2 felony. A.R.S. § 13-3623(A)(1). It is a lesser offense if

done negligently or recklessly. See id. § (A)(2). The structure of the statute

thus suggests that the mens rea refers to the act that the defendant “does,”

and not to the background circumstances. Because we find that the

circumstances clause is more like the “care and custody” provision, we

decline to apply the means rea to the circumstances clause.

¶72 Payne argues that such an interpretation turns child abuse

into a strict liability crime. But a statute creates a strict liability crime only

if it does not require any mental state. Williams, 144 Ariz. at 488, 698 P.2d

at 733. That is not the case here, as § 13-3623(A) requires at least criminal

negligence for the act itself, and the section under which Payne was

charged, § 13-3623(A)(1), requires knowledge or intent.

¶73 Finally, Payne claims that because the circumstances clause

is an element of the crime that enhances punishment and appears in the

text defining the offense, the legislature must have intended for it to have

a mens rea requirement. We disagree. It is the level of intent that

enhances the offense level, not the existence of “circumstances.” See

A.R.S. § 13-3623(A). As such, the court’s instructions were correct.

21

STATE V. PAYNE

Amended Opinion of the Court

2. Count 2: insufficiency of evidence of Ariana’s broken

bones

¶74 Payne argues that the State presented insufficient evidence

to prove that he “knowingly or intentionally . . . caus[ed] or permitt[ed]

[Ariana’s] bones to be broken under circumstances likely to cause serious

injury or death.” He argues that broken bones are not themselves serious

physical injuries, but rather, quoting State v. George, 206 Ariz. 436, 441 ¶ 9,

79 P.3d 1055, 1062 (App. 2003), asserts that the injuries must be “more

than the usual temporary impairment caused by the fracture of a body

part.” Therefore, he claims that the State failed to show that Ariana’s

broken bones occurred in circumstances likely to result in serious injury or

death.

¶75 Payne’s argument rests on the assumption that, to prove a

violation of § 13-3623(A)(1), the State had to prove that broken bones are

serious injuries or that breaking bones or permitting bones to be broken

caused serious physical injury or death to Ariana. That is not the case.

Instead, the State had to prove only that Payne caused or permitted abuse

or injuries — here, broken bones — to occur in circumstances likely to

cause serious injury or death. In § 13-3623(A), “serious physical injury” is

used only to describe circumstances that must exist when the abuse

occurs. See Johnson, 181 Ariz. at 350, 890 P.2d at 645 (interpreting “likely”

as “probable,” upholding conviction under § 13-3623(A)(1) based on

circumstances that may cause serious injury, rather than actual serious

injury); State v. Styers, 177 Ariz. 104, 110, 865 P.2d 765, 771 (1993) (noting

that a “person commits child abuse if ‘under circumstances likely to

produce death or serious physical injury,’ he causes a child to suffer

physical injury or abuse”).

¶76 Payne secondarily asserts that the State presented

insufficient evidence to show that he intentionally or knowingly broke

Ariana’s bones or permitted them to be broken while she was in his care

because the breakages could have occurred before he started caring for

her or after her death. We review the sufficiency of evidence to determine

whether “substantial evidence exists to support the jury verdict.” State v.

Stroud, 209 Ariz. 410, 411 ¶ 6, 103 P.3d 912, 913 (2005). Substantial

evidence is proof, viewed in the light most favorable to sustaining the

22

STATE V. PAYNE

Amended Opinion of the Court

verdict, that would allow reasonable persons to find a defendant guilty

beyond a reasonable doubt. State v. Bearup, 221 Ariz. 163, 167 ¶ 16, 211

P.3d 684, 688 (2009); see State v. Roque, 213 Ariz. 193, 218 ¶ 93, 141 P.3d 368,

393 (2006) (viewing facts favorably).

¶77 Substantial evidence shows that Payne broke or permitted

bones to be broken. Evidence was presented that the children were seen

outside, playing and seemingly well, when they first came to stay with

Payne. At trial, three experts testified that Ariana’s bones, given their

differing states of healing, had likely been broken when Ariana was in

Payne’s care, although the experts could not establish the precise time of

any injury. Moreover, Gonzales testified that Payne stated that he did not

seek help for the children because he feared being arrested for abuse. This

Court has found knowledge or intent where the defendant knew that the

victim needed medical attention, but chose not to act. See State v. Mott, 187

Ariz. 536, 543, 931 P.2d 1046, 1053 (1997); see also State v. Poehnelt, 150 Ariz.

136, 141, 722 P.2d 304, 309 (App. 1985) (upholding child abuse conviction,

relying partly on victim’s malnourishment).4

¶78 Sufficient evidence was also presented that the

circumstances existing when the abuse occurred were likely to cause

serious injury or death. Ariana’s multiple and serious injuries occurred

while she was being punished by being locked in the closet and not being

fed or cared for. This evidence is sufficient to support the jury’s finding

that the injuries occurred under circumstances likely to cause serious

injury or death.

4 Because sufficient evidence supports the conviction for Count 2, we

do not address Payne’s argument that his conviction for felony murder

must be overturned because it would be unclear whether the jury was

unanimous on felony murder if the evidence did not support Count 2.

Moreover, the jury unanimously found felony murder as to Tyler based

upon its finding of guilt on Count 6, suggesting that it would have

similarly unanimously found felony murder as to Ariana based solely

upon Payne’s conviction on Count 3, discussed below.

23

STATE V. PAYNE

Amended Opinion of the Court

3. Potential for non-unanimous verdicts

¶79 Payne next argues that he was deprived of a unanimous

verdict regarding the child abuse charges because the jury was not

required to agree on which act caused each type of abuse.

¶80 The State charged Payne with three counts of child abuse.

Count 2 charged Payne with knowingly or intentionally causing or

permitting Ariana’s bones to be broken under circumstances likely to

cause death or serious physical injury. Count 3 alleged that Payne

knowingly or intentionally caused or permitted Ariana’s health to be

endangered under circumstances likely to cause death or serious physical

injury by failing to seek medical attention for Ariana or allowing her to

starve to death. Count 6 alleged the same as Count 3 with respect to

Tyler. Payne did not seek clarification of the indictment or object to any

count in the indictment on grounds that the indictment itself was

duplicitous, but did argue, after the close of the evidence, that the State

should have been required to specify which act it relied upon to prove

each count because permitting evidence of multiple acts to satisfy a single

charge presented duplicity issues. Because the objection came too late to

permit correction of the alleged defects, we review for fundamental error.

See Dann III, 220 Ariz. at 367 ¶ 76, 207 P.3d at 620.

¶81 A criminal defendant is entitled to a unanimous verdict. Id.

at 367 ¶ 79, 207 P.3d at 620 (quoting Ariz. Const. art. 2, § 23). If an

indictment is facially valid, but the state introduces evidence of several

acts, each of which might satisfy the charge, the risk of a non-unanimous

verdict is presented. See State v. Davis, 206 Ariz. 377, 390 ¶ 61, 79 P.3d 64,

77 (2003). As we observed in Dann III, however, as long as only one

charge is alleged in a count of an indictment, jurors may “reach a verdict

based on a combination of alternative findings.” 220 Ariz. at 367 ¶ 79, 207

P.3d at 620; cf. State v. Gomez, 211 Ariz. 494, 498 ¶ 16 n.3, 123 P.3d 1131,

1135 n.3 (2005) (noting that a “jury need not be unanimous as to the theory

of first degree murder as long as all agree that the murder was

committed”); State v. Tucker, 205 Ariz. 157, 166-67 ¶¶ 48-51, 68 P.3d 110,

119-20 (2003) (to same effect).

24

STATE V. PAYNE

Amended Opinion of the Court

a. Count 2

¶82 Count 2 charged Payne with knowingly or intentionally

causing or permitting Ariana’s bones to be broken in circumstances likely

to cause death or physical injury. Payne argues that Count 2 was

duplicitous as presented at trial because it permitted the jury to find him

guilty if he either broke Ariana’s bones or permitted someone else to

break them.

¶83 We disagree that this rendered the charge duplicitous.

Count 2 did not charge multiple crimes in a single count; rather it charged

a single crime — abusing Ariana by breaking her bones or permitting

them to be broken — that could be committed in multiple ways.

¶84 Payne argues that Count 2 nonetheless subjected him to the

danger of a non-unanimous verdict by allowing jurors to find him guilty

despite potential disagreement regarding his responsibility for individual

acts. But Payne was aware of the existence of multiple fractures and yet

did not request that the State be required to elect one to rely upon until

after evidence had closed.

¶85 Indictments need not specify the precise act constituting the

crime if “there is no reasonable basis” for distinguishing multiple acts.

State v. Klokic, 219 Ariz. 241, 246 ¶ 25, 196 P.3d 844, 849 (2008). In such a

case, “the defendant is not entitled to a unanimous verdict on the precise

manner” in which an act is committed. State v. Encinas, 132 Ariz. 493, 496,

647 P.2d 624, 627 (1982); see also State v. Counterman, 8 Ariz. App. 526, 531-

32, 448 P.2d 96, 101-02 (1968) (upholding assault conviction where two

assaults occurring as part of a continuous course of conduct were charged

in one count). Thus, the jury here was not required to unanimously agree

on the manner of committing child abuse.

¶86 Payne was charged with a count of child abuse by causing or

permitting bones to be broken. This is a discrete method of committing

child abuse under § 13-3623(A). Payne had notice of the charge and

defended against all acts by claiming that he did not break or permit

breakage of any bones. The charge and acts constituting it were

sufficiently specific that he could later assert double jeopardy. See State v.

25

STATE V. PAYNE

Amended Opinion of the Court

Ramsey, 211 Ariz. 529, 533-34 ¶ 9, 124 P.3d 756, 760-61 (App. 2005).

¶87 Count 2 was thus not duplicitous.

b. Counts 3 and 6

¶88 Counts 3 and 6 alleged that Payne caused or permitted

Ariana and Tyler’s health to be endangered by failing to seek medical

attention for them or allowing them to starve to death. Payne argues that

those counts were duplicitous because he could be found guilty based on

two separate acts: failing to seek medical attention “and/or” starving the

children to death.

¶89 Payne argues that failing to feed and failing to seek medical

attention are separate acts that should have been charged separately

because one is active and one is passive, citing State v. Leal, 723 P.2d 977

(N.M. App. 1986). We find this unpersuasive because both involve the

failure to do something and are thus passive.

¶90 Moreover, each count of the indictment charges only one

crime of child abuse, essentially by neglect. Thus, even if the jury believed

Payne’s argument that he tried to feed the children but they did not wish

to eat or were not able to eat, his failure to seek medical attention also

constituted abuse under the statute. Payne admitted to police that he did

not seek medical care for the children because he was afraid he would be

charged with child abuse, and he presented no evidence or argument at

trial that he attempted to seek such help. Because he was not entitled to a

unanimous verdict on the manner in which the act was performed,

Encinas, 132 Ariz. at 496, 647 P.2d at 627, Counts 3 and 6 were not

duplicitous. Even if an error did occur, Payne was not prejudiced — the

failure to seek medical care itself satisfied the charge, and no reasonable

jury could have found that Payne was not guilty of child abuse under this

theory.

4. Jury instructions and verdict forms

¶91 Payne argues that the trial court erred by instructing on the

child abuse theory of causing physical injury because the State did not

26

STATE V. PAYNE

Amended Opinion of the Court

allege that type of abuse. At the close of evidence in the guilt phase, over

Payne’s objection, the trial court combined the instructions for all three

counts of child abuse:

The crime of intentional or knowing child abuse requires

proof that, under circumstance[s] likely to produce death or

serious physical injury, the defendant did one of the

following:

One, intentionally or knowingly causing the child to suffer

physical injury; or

Two, having the care or custody of a child[,] intentionally or

knowingly causes or permits the person or health of the

child to be injured; or

Three, having the care or custody of a child[,] intentionally

or knowingly causes or permits the child to be placed in a

situation where the person or health of the child is in danger.

In order to determine that the defendant committed the

crime of intentional or knowing child abuse[,] it is not

necessary that all 12 of you agree on the particular manner in

which the crime was committed. However, it is necessary

that each of you determine that the defendant committed

child abuse in at least one of the three possible manners set

forth above, and that it was under circumstances likely to

cause death or serious physical injury.

When explaining the verdict forms, the court also combined all three

methods of child abuse in each count. For example, the verdict form for

the child abuse counts for breaking Ariana’s bones included all three

methods of committing child abuse under the statute, even though the

indictment only alleged the “cause or permit the person or health of the

child to be injured” variation. The jury found Payne guilty of all three

counts.

¶92 But the instructions here were followed by verdict forms

27

STATE V. PAYNE

Amended Opinion of the Court

specifying the allegations satisfying each count. Because these forms

properly instructed the jury on the required findings, the jurors were not

misled and there was no reversible error.

H. Sufficiency of Evidence for First Degree Murder

¶93 Payne argues that the evidence was insufficient to prove that

he murdered his children with premeditation. We review the sufficiency

of evidence to determine whether “substantial evidence exists to support

the jury verdict,” viewing the facts in the light most favorable to

sustaining the verdict. Stroud, 209 Ariz. at 411 ¶ 6, 103 P.3d at 913.

¶94 A person commits first degree premeditated murder if,

“[i]ntending or knowing that the person’s conduct will cause death, the

person causes the death of another person . . . with premeditation.” A.R.S.

§ 13-1105(A)(1). “‘Premeditation’ means that the defendant acts with

either the intention or knowledge that he will kill another human being,

when such intention or knowledge precedes the killing by any length of

time to permit reflection.” State v. Thompson, 204 Ariz. 471, 475 ¶ 12, 65

P.3d 420, 424 (2003) (quoting A.R.S. § 13-1101(1)).

¶95 Sufficient evidence in this case supports the jury’s finding

that Payne intentionally abused his children and later decided to take

their lives. Gonzales testified that while Ariana and Tyler were initially

placed in the closet only while Payne was away from home and for

disciplinary purposes, after about a month, Payne left them in the closet

permanently, feeding them irregularly, then not at all. They died soon

after. Thus, it was reasonable for jurors to infer that Payne’s intentions

changed. Therefore, there was sufficient evidence to support the jury’s

finding of premeditated murder.

I. Juror Question During Deliberations

¶96 During deliberations in the guilt phase, the jury sent the

judge a note asking whether there was an “advantage to having a

unanimous decision on guilt” on both felony murder and premeditated

murder theories. Payne argues that the trial court committed reversible

error by not granting his mistrial motion following this question, asserting

28

STATE V. PAYNE

Amended Opinion of the Court

that it suggested that the jurors had viewed extraneous information. We

review a trial court’s rulings on motions for mistrial based on juror

misconduct for abuse of discretion. Cruz, 218 Ariz. at 163 ¶ 67-68, 181

P.3d at 210.

¶97 After the question was relayed to the judge, Payne was

consulted and asked the court to instruct the jurors to resolve that

question themselves. The court adopted part of Payne’s requested

instruction, telling the jurors to resolve the question themselves, “based

upon the instructions, evidence, and arguments you have heard and

received.” Before so instructing the jury, the court asked whether the

defense objected. The defense responded “no.” The next day, Payne

moved for a mistrial, arguing that the question showed that the jury

considered extra-judicial information because it suggested that the jurors

were split on the theory and traded votes to ensure a “solid” conviction.

The trial court denied the motion.

¶98 Payne does not point to any indication, apart from the

question itself, that the jurors received extraneous information or that any

other misconduct occurred. Our cases ordering a new trial have focused

on stronger reasons to believe that jurors received extrinsic evidence. See,

e.g., State v. Glover, 159 Ariz. 291, 293, 295, 767 P.2d 12, 14, 16 (1988) (jury

foreman submitted affidavit and testified that two jurors consulted

outside sources and shared information); State v. McLoughlin, 133 Ariz.

458, 460-61, 652 P.2d 531, 533-34 (1982) (during deliberations “one juror

was told by an unidentified third party that if appellant was found not

guilty by reason of insanity, he would go free”).

¶99 Nor did the trial court err in responding to the jury’s

question. The court consulted both parties and both agreed to the

proposed response. Payne further argues that the instruction to consider

evidence “received” did not explicitly limit the jurors to considering only

evidence admitted. We do not believe a reasonable juror would have

inferred any distinction between “received” and “admitted” in this

context. The trial court did not abuse its discretion.

29

STATE V. PAYNE

Amended Opinion of the Court

J. Juror Bias

¶100 Payne argues that the trial court abused its discretion by

denying his motion to strike Juror 28 for bias or, in the alternative, to

designate her as an alternate. “The trial court, which has the opportunity

to observe the prospective juror’s demeanor and the tenor of his answers,

is in a position to determine first hand whether a juror can render a fair

and impartial verdict.” Chaney, 141 Ariz. at 303, 686 P.2d at 1273 (internal

quotation marks and citations omitted). Thus, we review a trial court’s

ruling on juror misconduct and the decision on whether to strike for an

abuse of discretion. State v. Moore, 222 Ariz. 1, 10 ¶ 37, 213 P.3d 150, 159

(2009); Dann III, 220 Ariz. at 370 ¶ 106, 207 P.3d at 623. We presume that

jurors are impartial absent evidence to the contrary. See Lockhard v.

McCree, 476 U.S. 162, 184 (1986).

¶101 Payne alleges that Juror 28 made several statements during

trial that raised questions about her impartiality. In a conference in

chambers, another juror said that Juror 28 mocked witnesses and

complained about defense witnesses. The juror was concerned because,

while Juror 28 made the comments “[u]nder her breath,” the reporting

juror thought they were “loud enough to where there’s the possibility of

the prosecution” or a detective at counsel table hearing her. Counsel for

the State denied hearing more than “exasperated sighs, from both sides,”

and stated the detective had not heard anything either.

¶102 Although he did not ask to question Juror 28, Payne asked

the court to designate her as an alternate and excuse her, citing concerns

that she was disruptive and inappropriately sharing opinions. The court

denied these requests and instead reread the admonition to the jury.

¶103 Judges must respond to a claim of juror misconduct in a

manner “commensurate with [its] severity.” State v. Miller, 178 Ariz. 555,

557, 875 P.2d 788, 790 (1994). Here, the complaining juror said that Juror

28’s comments were annoying, but they did not reveal that she was biased

or had made up her mind before hearing all the evidence. Neither the

State nor the defense heard the comments, and no evidence shows that

other members of the jury heard them. In these circumstances, the

rereading of the admonition was a response commensurate with the

30

STATE V. PAYNE

Amended Opinion of the Court

severity of the alleged misconduct. Therefore, the trial judge did not

abuse his discretion by refusing to strike Juror 28 or designate her as an

alternate.

¶104 Payne now argues that a mistrial should have been granted.

We review this decision for fundamental error. See Henderson, 210 Ariz. at

567 ¶ 19, 115 P.3d at 607. As it was not an abuse of discretion to refuse to

strike Juror 28, it was not fundamental error to not order a mistrial based

on her conduct.

K. Prosecutorial Misconduct

¶105 Payne contends that the prosecutor committed misconduct

by vouching for a witness, suggesting through facts not in evidence that

Payne was a “bad man,” improperly leading witnesses, improperly

extracting a diagnosis from a defense expert, and commenting on Payne’s

invocation of his right to remain silent. Payne claims these acts

constituted individual and cumulative prosecutorial misconduct.

¶106 In reviewing prosecutorial misconduct claims, we first

review each allegation individually for error. See Roque, 213 Ariz. at 228 ¶

154, 141 P.3d at 403. We will find an error harmless if we can say beyond

a reasonable doubt that it did not affect the verdict. See, e.g., State v.

Nelson, 229 Ariz. 180, 189 ¶ 36, 273 P.3d 632, 641, cert. denied, 133 S. Ct. 131

(2012). We then consider whether the cumulative effect of individual

allegations “so infected the trial with unfairness as to make the resulting

conviction a denial of due process.” State v. Hughes, 193 Ariz. 72, 79 ¶ 26,

969 P.2d 1184, 1191 (1998) (quoting Donnelly v. DeChristoforo, 416 U.S. 637,

643 (1974)).

1. Vouching

¶107 In closing argument, Payne’s counsel argued that Gonzales

was more culpable than Payne, yet she was allowed to plead guilty to

second degree murder. Payne argued this showed that he was guilty of,

at most, second degree murder. In rebuttal, the State argued that it was

inappropriate to use Gonzales’s plea agreement as a basis for comparing

culpability:

31

STATE V. PAYNE

Amended Opinion of the Court

Reina Gonzales was given a plea agreement in this case so

the State could provide you with testimony about what

happened to those children, what really happened to those

children.

The Judge is not going to give you an instruction saying if

you find Reina Gonzales was given a second degree plea,

therefore you can assign the defendant the same culpability

that Reina Gonzales was given through the plea.

The only thing that you get to consider that plea agreement

for is whether or not it impacts Reina Gonzales’[s] credibility

or bias in this case. Not to compare guilt, not [to] compare

culpability, and not to somehow use it as a measure of this

man’s responsibility in the deaths of his children.

¶108 Payne claims that the State’s argument improperly vouched

for Gonzales’s testimony by referring to “what really happened.” Because

Payne objected at trial, we review to determine whether the prosecutor’s

conduct was improper and for harmless error.

¶109 Prosecutorial vouching occurs if, among other things, “the

prosecutor suggests that information not presented to the jury supports”

the evidence, testimony, or witness. State v. Vincent, 159 Ariz. 418, 423,

768 P.2d 150, 155 (1989). When improper vouching occurs, the trial court

can cure the error by instructing the jury not to consider attorneys’

arguments as evidence. See Newell, 212 Ariz. at 403 ¶¶ 67-68, 132 P.3d at

847; State v. Lamar, 205 Ariz. 431, 441 ¶ 54, 72 P.3d 831, 841 (2003).

¶110 The prosecutor’s comment that Gonzales would testify about

“what really happened,” considered alone, could be interpreted to suggest

the prosecutor’s knowledge that Gonzales was telling the truth, thereby

improperly bolstering Gonzales’s testimony by lending the “prestige” of

the government. See Vincent, 159 Ariz. at 423, 768 P.2d at 155. But the

prosecutor immediately followed these three words by discussing the

jurors’ duty to evaluate Gonzales’s truthfulness.

32

STATE V. PAYNE

Amended Opinion of the Court

¶111 A prosecutor may elicit testimony that a witness agreed to

testify truthfully as part of a plea. See Lamar, 205 Ariz. at 441 ¶ 52, 72 P.3d

at 841; State v. McCall, 139 Ariz. 147, 159, 677 P.2d 920, 932 (1983).

Moreover, in a fact situation much like this one, we found no error in a

prosecutor’s passing statement that the witness told police “exactly what

happened.” State v. King, 180 Ariz. 268, 276-77, 883 P.2d 1024, 1032-33

(1994).

¶112 Here, Payne referenced Gonzales’s plea agreement to

encourage the jurors to compare her culpability to Payne’s. The

prosecutor’s response attempted to clarify that the jurors should not

compare culpability based on Gonzales’s plea agreement, but could

consider the plea in determining Gonzales’s credibility and assessing her

veracity. This was a reasonable response to Payne’s argument.

¶113 Additionally, the trial court instructed the jurors that the

lawyers’ arguments were not evidence and that they should consider each

witness’s motive or prejudice. These instructions were sufficient to dispel

any taint if vouching occurred. See Newell, 212 Ariz. at 403 ¶ 68, 132 P.3d

at 847. We find any vouching error harmless.

2. Innuendo

¶114 Payne claims that the trial court erred by denying his motion

for a mistrial after the prosecutor improperly implied that he filed a CPS

report that triggered an investigation of the children’s mother, Jamie

Hallam. We review the trial court’s ruling for abuse of discretion. Id. at

402 ¶ 61, 132 P.3d at 846.

¶115 In 2005, CPS investigated Hallam for substance abuse.

During re-direct, the prosecutor asked Hallam if she knew who had

reported her drug use to CPS. When she replied that she did not, the

prosecutor asked: “For all you know, that could have been Chris Payne?”

She replied that she did not know. Payne objected and moved for a

mistrial because he claimed that “not a shred of evidence” suggested that

he made the report. The State responded that Payne’s statement to police

that he got involved with the children because of Hallam’s drug use

provided a good faith basis for the question. The trial court denied the

33

STATE V. PAYNE

Amended Opinion of the Court

motion.

¶116 Counsel’s “[s]uggestion by question or innuendo of

unfavorable matter which is not in evidence and which would be

irrelevant, or for which no proof exists[,] is improper and can constitute

misconduct.” Pool v. Superior Court (Fahringer), 139 Ariz. 98, 103, 677 P.2d

261, 266 (1984).

¶117 The prosecutor did not commit misconduct by asking if

Payne filed the report with CPS because in his post-arrest statement,

Payne said several times that the children were malnourished when they

arrived at his home and that he suspected Hallam of leaving them with

strangers while she was high on methamphetamine. Based on these

statements, and absent other information to the contrary, the State had a

good-faith basis for the question. Moreover, we fail to see how possibly

reporting Hallam constitutes evidence “unfavorable” to Payne. Thus, the

trial court did not abuse its discretion by denying Payne’s mistrial motion.

3. Improper questioning

¶118 During the prosecutor’s direct examination of witnesses,

Payne objected to several questions as leading or assuming facts not in

evidence. He asserts, with little analysis, that the prosecution’s

questioning violated his due process rights, deprived him of a fair trial,

and constituted prosecutorial misconduct. We ordinarily begin by

reviewing the trial court’s ruling on the objections for abuse of discretion.

See State v. (Joseph W.) King, 66 Ariz. 42, 49, 182 P.2d 915, 919 (1947). But

Payne does not analyze the questions individually, instead suggesting a

pattern of prosecutorial misconduct that denied him due process. Thus,

we analyze this line of questioning as a whole.

¶119 Leading questions suggest an answer. State v. Simoneau, 98

Ariz. 2, 5, 401 P.2d 404, 407 (1965). Ordinarily, courts should not permit

leading questions on direct examination, Ariz. R. Evid. 611(c), although

such questions may be permitted when doing so will serve “the ends of

justice,” Joseph W. King, 66 Ariz. at 49, 182 P.2d at 919. No error occurs,

however, when the answer suggested “had already been received as the

result of proper questioning.” State v. Garcia, 141 Ariz. 97, 101, 685 P.2d

34

STATE V. PAYNE

Amended Opinion of the Court

734, 738 (1984).

¶120 The questions that Payne complains of here took various

forms. Some were leading; others, although not leading, suggested facts

not in evidence. But the facts assumed in these questions could have been,

and many were, elicited through proper questioning or were otherwise

inconsequential. Other questions were not improper for any reason Payne

raises on appeal. Payne presented no evidence that the prosecutor

deliberately misframed questions, and many of Payne’s objections were

sustained, after which the prosecutor rephrased the question.

Furthermore, the trial court instructed the jurors not to consider responses

to any question for which it had sustained an objection. The trial court

sustained several objections and issued curative instructions. We assume

the jurors followed those instructions, see State v. Prince, 204 Ariz. 156, 158

¶ 9, 61 P.3d 450, 452 (2003), and did not consider the questions to which

objections were sustained. In light of these circumstances, and in the

absence of any showing of intentional misconduct, no reversible error

occurred.

4. ASPD “diagnosis” in penalty phase

¶121 In the mitigation portion of the trial, Payne called Dr.

Thomas Reidy to testify that Payne had risk factors for irregular

psychological development, which might have made him more apt to

abuse children. Payne claims that, on cross-examination, the State

improperly elicited a diagnosis of Anti-Social Personality Disorder

(“ASPD”) from Dr. Reidy.

¶122 To prepare to testify, Dr. Reidy reviewed records and

transcripts of interviews, but he did not evaluate Payne or interview

anyone familiar with him. After Payne’s direct examination of Dr. Reidy,

the trial court denied Payne’s objection to the State questioning Dr. Reidy

about the criteria for ASPD or whether Payne met these criteria. The

court, however, warned the State not to reference a “diagnosis” of ASPD.

On cross-examination, the State asked Dr. Reidy whether Payne satisfied

the criteria for ASPD to prove an alternative explanation for Payne’s

behavior.

35

STATE V. PAYNE

Amended Opinion of the Court

¶123 The prosecution may introduce any evidence in the penalty

phase “that is relevant to any of the mitigating circumstances . . . ,

regardless of its admissibility under the rules governing admission of

evidence at criminal trials.” A.R.S. § 13-751(C); see also State v. VanWinkle,

230 Ariz. 387, 394 ¶ 28, 285 P.3d 308, 315 (2012). The prosecutor’s

questioning here rebutted Payne’s claims that he had a number of risk

factors for being an abusive parent, which might have caused him to be

abusive, by showing alternative explanations for Payne’s conduct.

¶124 Payne relies on State v. Lundstrom, 161 Ariz. 141, 146, 776

P.2d 1067, 1072 (1989), and State v. Moody, 208 Ariz. 424, 461-62 ¶¶ 157-64,

94 P.3d 1119, 1156-57 (2004), for the proposition that the prosecution may

not elicit a diagnosis that is not in evidence. Payne’s reliance is misplaced.

In Lundstrom, we held it improper for experts to testify to “facts or data” if

merely acting “as a conduit for another non-testifying expert’s opinion.”

161 Ariz. at 148, 776 P.2d at 1074; see also Moody, 208 Ariz. at 462 ¶ 165, 94

P.3d at 1157 (to same effect). But the prosecutor did not use Dr. Reidy as a

conduit through which to present another expert’s opinion. Instead, she

sought to elicit Dr. Reidy’s opinion that Payne showed factors consistent

with the criteria for ASPD. Moreover, Dr. Reidy did not give a

“diagnosis” of ASPD. Thus, the questioning did not constitute

misconduct. Because we find no error in the prosecutor’s cross-

examination, Payne’s Eighth Amendment arguments also fail.

5. Comment on Payne’s right to silence in opening

statement

¶125 Payne claims that the prosecutor improperly commented on

his right to silence by referring, in her opening statement, to what Payne

“is going to tell you.” At the conclusion of the opening statement, Payne

moved for a mistrial, which the court denied.

¶126 We review a trial court’s ruling on a motion for mistrial for

abuse of discretion because the trial court is in the best position to

determine the effect of any inappropriate statements. Newell, 212 Ariz. at

402 ¶ 61, 132 P.3d at 846. But because “the protection against self-

incrimination includes freedom from adverse consequences flowing from

defendant’s exercise of his right,” it is reversible error to refer to a

36

STATE V. PAYNE

Amended Opinion of the Court

defendant’s “protected silence,” State v. Carrillo, 156 Ariz. 125, 128, 750

P.2d 883, 886 (1988), if jurors would “naturally and necessarily perceive it

to be a comment on the defendant’s failure to testify,” State v. Rutledge, 205

Ariz. 7, 13 ¶ 33, 66 P.3d 50, 56 (2003).

¶127 In her opening statement during the guilt phase, the

prosecutor told the jury, “you are going to hear from the defendant

himself. The interview that he gave to the police officers on March 1, 2007.

And you are going to hear that he lied, too, in the beginning.” In the next

several sentences, the prosecutor referred to things the defendant said

“throughout the interview.” But then she started discussing what Payne

is “going to tell you.” Payne argues that each of these comments

improperly directed the jury’s attention to his exercise of his right not to

testify.

¶128 The State did not err in its opening statement by referring to

comments Payne made in the taped interview. See Rutledge, 205 Ariz. at

14 ¶ 38, 66 P.3d at 57. The prosecutor’s comments about what Payne “is

going to tell you” are a closer call. Taken in context, however, they were

not “calculated to direct the jurors’ attention to [Payne’s] exercise of his

fifth amendment privilege” because they too referred to evidence from the

taped interview. See State v. McCutcheon, 159 Ariz. 44, 45, 764 P.2d 1103,

1104 (1988). As such, the prosecutor’s comments did not constitute

reversible error and the trial court did not abuse its discretion in denying

Payne’s mistrial motion.

6. Comment on Payne’s lack of emotion during trial

¶129 Payne argues that, in closing arguments, the prosecutor

improperly referred to Payne’s lack of emotion during trial. Because he

did not object, we review for fundamental error.5

¶130 In its guilt-phase closing arguments, the State compared

5 Payne claims that he preserved this issue by objecting to comments

the State made in its opening statement about his taped interview. But

this objection was unrelated to the as yet unmade references to his

demeanor at trial. Payne’s objection thus did not preserve this issue.

37

STATE V. PAYNE

Amended Opinion of the Court

Payne’s lack of emotion at trial to the excessive emotion he displayed

during his interrogation. We have not confronted directly whether a

prosecutor may ask jurors to consider a defendant’s affect at trial, but

most courts that have addressed this issue have found such comments

improper. See, e.g., United States v. Mendoza, 522 F.3d 482, 491 (5th Cir.

2008) (stating that “courtroom demeanor of a non-testifying criminal

defendant is an improper subject for comment”); United States v. Schuler,

813 F.2d 978, 981 (9th Cir. 1987) (holding that, “in the absence of a curative

instruction,” a comment on “off-the-stand behavior” violates the due

process clause); United States v. Pearson, 746 F.2d 787, 796 (11th Cir. 1984)

(to same effect); United States v. Carroll, 678 F.2d 1208, 1209-10 (4th Cir.

1982) (to same effect). But see Cunningham v. Perini, 655 F.2d 98 (6th Cir.

1981) (per curiam) (upholding comments because they referred to conduct

and demeanor rather than failure to testify).

¶131 The differing results in these cases turn on the courts’ views

of the legitimate arguments on each side. We urge courts and prosecutors

to proceed cautiously in this area, given its dubious relevance and

potential to implicate a defendant’s right not to testify. We decline to set

forth an absolute rule that such statements are always improper, however,

preferring to let trial courts assess the totality of the circumstances in each

case. We caution that while the jury may observe a defendant’s

demeanor, a prosecutor’s reference to the demeanor of a non-testifying

defendant may draw attention to the defendant’s failure to testify and is

based on evidence not presented at trial and not covered by any jury

instruction. See Mendoza, 522 F.3d at 491. Although we conclude that the

State’s comment here was improper, we do not find fundamental error.

7. Question re lack of remorse in penalty phase

¶132 Payne claims that it was improper for the prosecutor to ask

Dr. Reidy whether lack of remorse is a characteristic of ASPD. Payne

objected and moved for a mistrial. The court overruled the objection and

denied the motion. We review the trial court’s ruling for abuse of

discretion. Newell, 212 Ariz. at 402 ¶ 61, 132 P.3d at 846.

¶133 The prosecutor’s question here did not ask about Payne’s

remorse, but rather asked whether lack of remorse was a factor in

38

STATE V. PAYNE

Amended Opinion of the Court

determining ASPD. It was one of several questions rebutting Payne’s

suggestion that risk factors in his background led Payne to abuse his

children. Thus, although Payne did not raise remorse as a mitigating

factor, the questioning was relevant and not unduly prejudicial. It

therefore was not improper.

8. Cumulative error

¶134 Payne claims that the prosecutor’s comments gave rise to

reversible cumulative error. In analyzing such issues, we examine

whether the cumulative effect of individual allegations “so infected the

trial with unfairness as to make the resulting conviction a denial of due

process.” Hughes, 193 Ariz. at 79 ¶ 26, 969 P.2d at 1191 (quoting Donnelly,

416 U.S. at 637). Cumulative error warrants reversal only if misconduct

was “so pronounced and persistent that it permeate[d] the entire

atmosphere of the trial,” id. (quoting State v. Atwood, 171 Ariz. 576, 611,

832 P.2d 593, 628 (1992)), indicating that “the prosecutor intentionally

engaged in improper conduct and did so with indifference, if not a

specific intent, to prejudice the defendant,” Roque, 213 Ariz. at 228 ¶ 155,

141 P.3d at 403 (internal quotation marks omitted).

¶135 Payne has not shown misconduct that permeated the trial

and infected it with unfairness, and so we reject his claim of cumulative

error.

L. Aggravation Phase Jury Instructions

¶136 Payne challenges several sentencing instructions. We review

the trial court’s decision to refuse a requested instruction for an abuse of

discretion, Johnson, 212 Ariz. at 431 ¶ 15, 133 P.3d at 741, and review de

novo whether the trial instructions as a whole correctly state the law, State

v. Bocharski, 218 Ariz. 476, 487 ¶ 47, 189 P.3d 403, 414 (2008).

1. § 13-751(F)(8): “one or more other homicides”

¶137 Payne argues that the trial court erred by failing to detail the

elements required for the jury to find the (F)(8) aggravating circumstance.

The instruction given stated: “the defendant has been convicted of one or

39

STATE V. PAYNE

Amended Opinion of the Court

more other homicides, and those homicides were committed during the

commission of the offense.” Payne correctly notes that this instruction

was insufficient because it fails to inform the jurors that they must find a

temporal, spatial, and motivational relationship between the homicides.

See Dann III, 220 Ariz. at 364 ¶ 57, 207 P.3d at 617. Because Payne neither

requested further instructions nor objected at trial, however, we review

for fundamental error. See State v. Hargrave, 225 Ariz. 1, 14 ¶47, 234 P.3d

569, 582 (2010). We have previously found harmless error when the

temporal, spatial, and motivational relationship requirements were not

submitted to a jury if no jury could have found them unsatisfied. See State

v. Dann (Dann II), 206 Ariz. 371, 374 ¶ 11, 79 P.3d 58, 61 (2003).

¶138 A conviction for multiple homicides, by itself, does not

satisfy the (F)(8) aggravator. Ellison, 213 Ariz. at 143 ¶ 128, 140 P.3d at

926. “[T]he State must establish beyond a reasonable doubt that the

murders took place during a ‘continuous course of criminal conduct’ and

were ‘temporally, spatially, and motivationally related.’” Moore, 222 Ariz.

at 16 ¶ 86, 213 P.3d at 165 (quoting Armstrong III, 218 Ariz. at 464 ¶ 67, 189

P.3d at 391).

¶139 Payne does not dispute that the murders were spatially

related, but argues that the State failed to prove temporal proximity and

motivational relationship.

¶140 Payne asserts that as much as a week might have passed

between the deaths of Ariana and Tyler, and thus the temporal proximity

requirement is not met. We begin by clarifying that the focus is on the

temporal relationship of the conduct causing the deaths rather than the

deaths themselves. For example, if a defendant shoots two victims during

a robbery, but one survives for a week, the temporal proximity

requirement is satisfied. Substantial evidence showed that Payne locked

his children in a closet and starved them to death over several months.

No reasonable jury could fail to find the temporal requirement satisfied.

¶141 Payne also argues that the motivational element is not

satisfied because “a motive was never established.” But the State

presented evidence that the children were locked in a closet and starved

— the acts that eventually killed them — because they bothered Gonzales,

40

STATE V. PAYNE

Amended Opinion of the Court

hindered Payne’s work, and were otherwise “inconvenient.” No evidence

suggested that Payne killed each child for a different reason. See Ellison,

213 Ariz. at 144 ¶ 130, 140 P.3d 927 (motivational element satisfied when

defendant did not claim killing victims for different reasons); see also

Armstrong III, 218 Ariz. at 464 ¶¶ 68-70, 189 P.3d at 391 (“[t]he motives for

killing each victim need not be identical”; motivationally related when

defendant “hated” second victim and hate arose from motive in killing

first victim). Although the (F)(8) instruction given was deficient, Payne

has failed to show fundamental error because no rational jury would have

failed to find a temporal, spatial, and motivational relationship between

the murders of Ariana and Tyler.

2. § 13-751(F)(6): “especially heinous, cruel or depraved

manner”

¶142 Payne claims that the instruction given for the (F)(6)

aggravator was overbroad and insufficient because it led the jury to

believe a negligent state of mind was sufficient to establish the (F)(6)

factor. The court instructed that, to find the especially cruel aggravating

factor, the jury must find that “the defendant intended, knew, or should

have foreseen” that the victims would suffer mental anguish or physical

pain. Payne did not object at trial, so we review for fundamental error.

See Hargrave, 225 Ariz. at 14 ¶ 47, 234 P.3d at 582.

¶143 We note initially that the expression “should have foreseen”

seems simply to have been used in lieu of the proper phrase “should have

known.” Nonetheless, Payne correctly observes that we held in State v.

Carlson, 202 Ariz. 570, 582 ¶ 44, 48 P.3d 1180, 1192 (2002), that the tort

concept of “foreseeability” is insufficient to support the finding of the

aggravating circumstance. But Carlson was analyzing the mental state for

the unobserved acts of an accomplice and is therefore inapposite. Id. at

581-82 ¶ 43, 48 P.3d at 1191-92.

¶144 In this case, the State presented substantial evidence that

Payne locked his children in a closet to live in darkness and filth, suffering

from injuries while they slowly starved to death, which he either knew or

should have known would cause them to suffer mental anguish and

physical pain. This type of involvement differs from the accomplice in

41

STATE V. PAYNE

Amended Opinion of the Court

Carlson who had no reason to believe her victim would suffer. No

reasonable jury could find that Payne would not have known that the

children would suffer as they starved to death in the dark closet. Thus,

although the instruction was erroneous, no fundamental error occurred.

3. Enmund and Tison findings

¶145 Payne argues that the trial court deprived him of his

constitutional rights by failing to require the jurors to make an explicit

finding that he “kill[ed], attempt[ed] to kill, or intend[ed] that a killing

[would] take place or that lethal force [would] be employed” under

Enmund v. Florida, 458 U.S. 782, 797 (1982), or that he was a major

participant in a crime and acted with reckless indifference to human life

under Tison v. Arizona, 481 U.S. 137, 158 (1987). The trial court did not

instruct the jury to make this determination in the aggravation phase, and

Payne did not object or ask for the findings to be made. But he now

claims this omission constituted fundamental error.

¶146 By statute, the jury must make all factual determinations

necessary to impose a death sentence. See A.R.S. § 13-752(P). Payne

argues that this includes explicit Enmund/Tison findings.

¶147 The jurors unanimously convicted Payne of premeditated

murder, meaning that they found that he personally intended to cause or

knew his conduct would cause the deaths of the children. Thus, there was

no need for a separate finding that he was a major participant in the

crimes. There was no fundamental error. Cf. State v. Joseph, 230 Ariz. 296,

300 ¶ 18, 283 P.3d 27, 31 (2012) (failure to instruct on Enmund/Tison was

not an abuse of discretion where defendant was sole participant in

murder).6

4. Voluntary intoxication consideration

¶148 Payne argues that the jury was unconstitutionally prevented

from considering his drug use as a defense to the culpable mental state

6 In cases involving felony murder where an accomplice is involved,

trial courts should give the Enmond/Tison instruction.

42

STATE V. PAYNE

Amended Opinion of the Court

necessary for the (F)(6) aggravating circumstance. In his closing argument

in the aggravation phase, Payne argued that his drug use prevented him

from having sufficient mental ability to intend to cause physical pain or

mental anguish. The State responded that voluntary intoxication is not a

defense to a culpable mental state. The final instructions submitted to the

jury noted that instructions from previous phases still applied, which

included an instruction that voluntary intoxication is not a defense to a

crime involving a culpable mental state such as knowledge or intent, but

did not specifically address voluntary intoxication from drug use in

connection with the (F)(6) “heinous, cruel or depraved” aggravator.

Payne did not object to the instruction or the State’s argument. We thus

review for fundamental error. See Hargrave, 225 Ariz. at 14 ¶ 47, 234 P.3d

at 582.

¶149 Section 13-503 provides that “[t]emporary intoxication . . . is

not a defense for any criminal act or requisite state of mind.” The focus of

the heinous and depraved aggravator is the defendant’s state of mind. See

State v. Womble, 225 Ariz. 91, 100 ¶ 34, 235 P.3d 244, 253 (2010). The statute

therefore prohibits the jury from using voluntary intoxication to negate

intent — that is, the jury could not consider voluntary intoxication as a

basis for concluding that the defendant lacked the state of mind for the

(F)(6) aggravating circumstance. Cf. State v. Boyston, 231 Ariz. 539, 550

¶¶ 52, 54, 298 P.3d 887, 898 (2013) (concluding court did not err by

excluding evidence of voluntary intoxication on the issue of

premeditation).

¶150 Payne claims, however, that he has a constitutional right to

rebut the (F)(6) aggravator with evidence of intoxication. The Supreme

Court has held that in the guilt phase there is no due process violation

when a state prohibits juries from considering voluntary intoxication.

Montana v. Egelhoff, 518 U.S. 37, 56 (1996). Furthermore, the Eighth

Amendment ensures that defendants have the opportunity to argue that

the intoxication warranted leniency, which Payne was permitted to do in

the penalty phase. The trial court’s instructions correctly stated the law;

thus, there was no fundamental error.

43

STATE V. PAYNE

Amended Opinion of the Court

M. Consideration of Age of Victims

¶151 Payne argues that the jury twice considered the victims’

ages, once when finding the “heinous, cruel or depraved” factor and again

when considering the “age of the victim” aggravator. But we have held

that “[a] jury, like a sentencing judge, may use one fact to find multiple

aggravators, so long as the fact is not weighed twice when the jury

assesses aggravation and mitigation.” State v. Velazquez, 216 Ariz. 300, 307

¶ 22, 166 P.3d 91, 98 (2007). In its final instructions, the court admonished

the jury that “you may only consider the age of the children once” in

assessing aggravation and mitigation. Absent evidence to the contrary,

we presume the jury followed the instructions. Id. ¶ 24.

¶152 Payne argues that there was insufficient evidence to

establish the factors that can make a murder cruel, heinous, or depraved,

leaving the age as the sole basis for proving the aggravator. We have

concluded, however, that substantial evidence supported the jury’s

finding that the murders were especially cruel. See supra ¶¶ 142-44. Thus

age was not the sole factor supporting the jury’s finding of that factor.

N. Mitigating Evidence

¶153 Payne argues that the trial court deprived him of a fair trial

by precluding some of his mitigation evidence during the penalty phase.

We review evidentiary rulings and discovery sanctions for abuse of

discretion. Armstrong III, 218 Ariz. at 458 ¶ 20, 189 P.3d at 385; State v.

Towery, 186 Ariz. 168, 186, 920 P.2d 290, 308 (1996).

1. Dr. Biggan

¶154 Payne argues that the trial court erred by precluding Dr.

Biggan from testifying after Payne failed to timely disclose her. Dr.

Biggan is a psychologist who evaluated Payne in November 2008. The

defense did not disclose her report, but the State discovered it after trial

had begun. About two weeks later, less than two days before the penalty

phase began, the defense disclosed Dr. Biggan as a mitigation witness. On

the State’s motion, the trial court precluded Dr. Biggan’s testimony.

44

STATE V. PAYNE

Amended Opinion of the Court

¶155 Rule 15.7 of the Arizona Rules of Criminal Procedure

permits the court to sanction a party who fails to timely disclose evidence.

But any sanction must be proportional to the violation and must have “a

minimal effect on the evidence and merits.” Towery, 186 Ariz. at 186, 920

P.2d at 308. Factors to consider include importance of the witness or

evidence, the degree of surprise, and bad faith. See id.

¶156 Given these factors, the court did not abuse its discretion by

precluding Dr. Biggan from testifying. Payne sought to call her to show

that he could not conform his conduct to the law because of executive

functioning deficiencies. Although such evidence would be relevant to a

statutory mitigating circumstance, because he did not make an offer of

proof, Payne has not established the importance of Dr. Biggan’s evidence.

Indeed, most of Dr. Biggan’s report showed that Payne had relatively

normal functioning. And the surprise was substantial as the disclosure

two days before the penalty phase deprived the State of the opportunity to

interview Dr. Biggan or obtain a rebuttal witness.

2. “Good inmate” evidence

¶157 Payne sought to present evidence that he was a “good

inmate” as a mitigating factor. Finding good behavior in jail irrelevant,

the trial court precluded the evidence. We have recognized that good

inmate evidence can be mitigating, but it is generally afforded little

weight. See, e.g., State v. Pandeli, 215 Ariz. 514, 533 ¶ 82, 161 P.3d 557, 576

(2007). Thus the trial court erred. Because Payne objected to this error

below, we must determine whether preclusion of the good inmate

evidence was harmless. See Bible, 175 Ariz. at 588, 858 P.2d at 1191. To

determine harmlessness, we assess the effect of “the error in light of all of

the evidence” presented in the case. Id. We must be able to “say, beyond

a reasonable doubt, that the error did not contribute to or affect the

verdict.” Id.

¶158 After reviewing the record, we find the erroneous preclusion

of “good inmate” evidence harmless beyond a reasonable doubt. We

conclude, as we did in Bible, that “[i]f the evidence against Defendant had

been closely balanced, strong, or even very strong, . . . it would be

impossible to say beyond a reasonable doubt that the [precluded]

45

STATE V. PAYNE

Amended Opinion of the Court

evidence did not affect the verdict. . . . Factually, however, this is a very

unusual case.” Id. Virtually undisputed evidence established that Payne

locked his children in a closet and starved them to death. We conclude

beyond a reasonable doubt that any evidence that Payne was a good

inmate or that he incurred no disciplinary infractions while incarcerated

would not have moved any juror to recommend leniency or otherwise

have affected any juror’s decision regarding the appropriate sentence. If

improperly excluded mitigation evidence may ever be considered

harmless, surely this is the case.

¶159 We thus conclude beyond a reasonable doubt that in light of

the horrific nature of Payne’s crimes, the strength of the aggravators

proved, see State v. Hampton, 213 Ariz. 167, 185 ¶ 90, 140 P.3d 950, 968

(2006) (stating that the “multiple homicides aggravator is of extraordinary

weight”), and the weakness of the “good inmate” mitigator along with the

other mitigation evidence Payne presented, see Pandeli, 215 Ariz. at 533

¶ 82, 161 P.3d at 576 (affording good inmate evidence little weight

“because prisoners are expected to behave”), the result would not have

changed had this error not occurred. If, as the dissent suggests, preclusion

of the “good inmate” mitigator requires reversal in this case, then

preclusion of a mitigator would require reversal in every case. Such a

result would effectively eviscerate harmless error review and mean that

exclusion of any piece of mitigation evidence, no matter how minor, is

structural error, which is contrary to our case law. See Anderson I, 197

Ariz. at 323 ¶ 22, 4 P.3d at 378 (explaining that erroneous evidentiary

rulings are subject to harmless error analysis); see also State v. Tucker, 215

Ariz. 298, 316 ¶ 66, 160 P.3d 177, 195 (2007) (noting that “[w]e have

recognized structural error in only a few instances”).

O. Penalty Phase Rebuttal Evidence

¶160 Payne contends that the trial court committed reversible

error in the penalty phase by permitting the State to elicit information

about his criminal history and admitting a DVD of Payne’s jail visit with

his father. This Court reviews evidentiary rulings for abuse of discretion.

Armstrong III, 218 Ariz. at 458 ¶ 20, 189 P.3d at 385. Evidence is admissible

in the penalty phase if it is relevant to rebut the primary thrust of

mitigating evidence and it is not unduly prejudicial. See Hampton, 213

46

STATE V. PAYNE

Amended Opinion of the Court

Ariz. at 180 ¶ 51, 140 P.3d at 963.

1. Payne’s criminal history

¶161 Payne’s criminal history was relevant to rebut Payne’s

assertion that “risk factors” made him a poor parent. Recognizing the

potential prejudice that may arise from criminal history, the trial court

directed the State not to elicit details that would cause undue prejudice.

The State elicited reports of domestic violence, threats of violence, and

deceit to police. A summary was admitted into evidence. In light of the

limits it imposed, the trial court did not abuse its discretion.

2. Jailhouse DVD

¶162 The State introduced a DVD of Payne’s father’s visit with

Payne at the jail to rebut Payne’s claim that he was a caring person when

not on drugs. Payne objected on grounds of prejudice and irrelevance.

The video focuses on a discussion regarding Payne’s son, Christopher Jr.

It shows Payne berating his father and demeaning family members for not

doing enough to ensure that Christopher is properly cared for. Although

the DVD was only marginally probative, playing it did not unfairly

prejudice Payne because, while it showed Payne yelling at his father, it

also showed that he cared about his son. See Ariz. R. Evid. 403 (balancing

probative value and danger of unfair prejudice). Therefore, the court did

not abuse its discretion in allowing it to be played.

III. ABUSE OF DISCRETION REVIEW

¶163 Because the murders occurred after August 1, 2002, we

review the jury’s finding of aggravating factors and the imposition of a

death sentence for abuse of discretion. A.R.S. § 13-756(A). Evidence is

sufficient to support the finding of an aggravating circumstance if

reasonable persons could conclude it establishes the circumstance beyond

a reasonable doubt. See State v. Gallardo, 225 Ariz. 560, 565 ¶ 15, 242 P.3d

159, 164 (2010). We must uphold a jury’s decision that death is

appropriate if any “reasonable jury could have concluded that the

mitigation established by the defendant was not sufficiently substantial to

call for leniency.” Id. at 570 ¶ 51, 242 P.3d at 169 (quoting State v. Morris,

47

STATE V. PAYNE

Amended Opinion of the Court

215 Ariz. 324, 341 ¶ 81, 160 P.3d 203, 220 (2007)).

A. Aggravating Circumstances

¶164 The jury found three aggravating factors: (1) the murders

were committed in an especially cruel, heinous, or depraved manner,

A.R.S. § 13-751(F)(6); (2) one other homicide was committed during the

commission of the offense, id. § 13-751(F)(8); and (3) the victims were

under the age of fifteen and the defendant was over the age of eighteen, id.

§ 13-751(F)(9). Payne does not dispute the third aggravator, but does

dispute the first two. Because we have earlier set forth our reasoning

supporting the jury’s finding of the (F)(6) factor based on cruelty, see supra

¶¶ 142-44, we do not address heinousness or depravity. State v. Gretzler

(Gretzler II), 135 Ariz. 42, 51, 659 P.2d 1, 10 (1983) (noting that the (F)(6)

aggravator is established if the jury finds that the State proved cruelty,

heinousness, or depravity). Regarding the (F)(8) factor, because we found

that the jury instructions did not constitute fundamental error and that no

reasonable jury could have found the additional elements not satisfied, see

supra ¶¶ 137-41, we reject these arguments. The jury did not abuse its

discretion in finding all three aggravating circumstances.

B. Death Sentences

¶165 We will overturn a jury’s imposition of a death sentence only

if “no reasonable jury could have concluded that the mitigation

established by the defendant was not sufficiently substantial to call for

leniency.” Cota, 229 Ariz. at 153 ¶ 95, 272 P.3d at 1044 (citation and

internal quotation marks omitted). Payne alleged a variety of mitigating

factors, including a substantial number of “risk factors” for becoming an

abusive and neglectful parent, “insufficient protective factors” to guide

him in the right direction, a difficult childhood, lack of family support,

substance abuse, lack of a felony criminal history, and the inability to

appreciate the wrongfulness of his conduct. The State presented some

rebuttal evidence and argued that the jury should give many of Payne’s

mitigating factors little weight.

¶166 Even if we assume Payne proved each mitigating factor he

alleged, the jury did not abuse its discretion by finding them insufficient

48

STATE V. PAYNE

Amended Opinion of the Court

to warrant leniency.

IV. CONCLUSION

¶167 For the foregoing reasons, we affirm Payne’s convictions and

sentences.7

7 Payne listed fourteen claims “to avoid preclusion” and the previous

opinions rejecting those claims, which we decline to revisit.

49

STATE v. PAYNE

JUSTICE BALES, Concurring in Part and Dissenting in Part

VICE CHIEF JUSTICE BALES, concurring in part and dissenting in part:

¶168 I concur with the affirmance of the convictions and with the

majority’s conclusions regarding the penalty phase rebuttal evidence and

the preclusion of Dr. Biggan’s testimony. However, I respectfully dissent

from the majority’s conclusion that the erroneous exclusion of Payne’s

“good inmate” evidence was harmless.

¶169 Payne sought to offer this evidence as mitigation and

objected to its exclusion at the penalty phase. The Eighth and Fourteenth

Amendments require that the sentencer in a capital case be allowed to

consider any relevant mitigating evidence, Lockett v. Ohio, 438 U.S. 586,

604 (1978), and it is well established that the defendant’s good behavior

while incarcerated is relevant to mitigation. Skipper v. South Carolina, 476

U.S. 1, 4-9 (1986) (finding Lockett error where exclusion of evidence of

good behavior in prison “impeded the sentencing jury’s ability to carry

out its task of considering all relevant facets of the character and record of

the individual offender”).

¶170 The State argues that the improper exclusion of this evidence

was harmless and therefore should not affect Payne’s death sentences.

The United States Supreme Court has never held that the exclusion of

relevant mitigation evidence from the penalty phase of a capital trial was

harmless error, although it has used language suggesting this possibility.

See, e.g., Hitchcock v. Dugger, 481 U.S. 393, 399 (1987) (noting that improper

exclusion of mitigating evidence renders death sentence invalid absent

showing that error was harmless or had no effect); Skipper, 476 U.S. at 8

(observing that state’s characterization of “exclusion as harmless is

implausible on the facts before us”). Following that suggestion, many

lower courts have reviewed the exclusion of mitigating evidence for

harmless error. See, e.g., Campbell v. Bradshaw, 674 F.3d 578, 596-98 (6th

Cir. 2012) (applying harmless error review); Ferguson v. Sec’y for Dep’t of

Corr., 580 F.3d 1183, 1201-02 (11th Cir. 2009) (same); Bryson v. Ward, 187

F.3d 1193, 1205 (10th Cir. 1999) (same).

¶171 Even assuming that harmless error analysis may apply in

some circumstances involving the exclusion of mitigating evidence, I

cannot agree with my colleagues that the State has met its burden of

50

STATE v. PAYNE

JUSTICE BALES, Concurring in Part and Dissenting in Part

establishing that the error was harmless here. My conclusion reflects the

nature of both the State’s burden and the jury’s sentencing determination.

¶172 For an error to be harmless, the State must establish beyond

a reasonable doubt that the error did not contribute to or affect the verdict.

State v. Gunches, 225 Ariz. 22, 26 ¶ 24, 234 P.3d 590, 594 (2010). “The

inquiry . . . is not whether, in a trial that occurred 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.” State v. Anthony, 218 Ariz. 439, 446 ¶ 39, 189 P.3d 366, 373 (2008)

(internal quotation marks omitted). Thus, in the context of a jury’s

determination to impose a death sentence, the State must establish beyond

a reasonable doubt that the error did not influence the verdict rendered by

the jurors who actually considered the evidence. See Gunches, 225 Ariz. at

26 ¶¶ 24-25, 234 P.3d at 594.

¶173 Especially when, as occurred here, the trial court

erroneously excludes an entire category of mitigating evidence, the State

faces an almost insurmountable burden in establishing that the error was

harmless. Cf. People v. Davis, 706 N.E.2d 473, 488 (Ill. 1998) (holding that

the State did not meet its burden of showing that the sentencing judge’s

refusal to consider all mitigating evidence regarding good jail behavior

was harmless); Irving v. State, 498 So.2d 305, 316 (Miss. 1986)

(distinguishing Skipper in case involving exclusion of evidence of good

behavior in prison in part because “no particular type of evidence was

excluded, as in Skipper —the exclusion was more that of degree”).

¶174 The State’s high burden reflects the nature of jury sentencing

in capital cases.

[T]he determination whether mitigation is sufficiently

substantial to warrant leniency is not a fact question to be

decided based on the weight of the evidence, but rather is a

sentencing decision to be made by each juror based upon the

juror’s assessment of the quality and significance of the

mitigating evidence that the juror has found to exist.

State ex rel. Thomas v. Granville (Baldwin), 211 Ariz. 468, 473 ¶ 21, 123 P.3d

51

STATE v. PAYNE

JUSTICE BALES, Concurring in Part and Dissenting in Part

662, 667 (2005). “A mitigating factor that motivates one juror to vote for a

sentence of life in prison may be evaluated by another juror as not having

been proved or, if proved, as not significant to the assessment of the

appropriate penalty.” Id. at 473 ¶ 18, 123 P.3d at 667.

¶175 Because our law never presumes that death is the

appropriate penalty, and each juror must, as a matter of constitutional

law, be allowed to assign such weight to mitigating evidence as he or she

believes appropriate, see id., I do not believe that we can uphold Payne’s

death sentence by asserting that the exclusion of evidence about his

behavior while incarcerated could not have influenced the verdict of any

“reasonable” juror. Nor does the fact that we, in cases involving our

independent review, have characterized “good inmate” evidence as a

relatively weak mitigating factor suggest that each juror here would have

viewed such evidence in the same way.

¶176 A jury that considers the excluded evidence along with other

mitigating evidence and the aggravating factors may likely conclude that

Payne should be sentenced to death. But under our case law and the

Eighth and Fourteenth Amendments as interpreted by the Supreme Court,

that observation does not establish that the trial court’s precluding the

sentencing jury from considering an entire category of mitigating evidence

was harmless. Accordingly, I would vacate the death sentences and

remand the case to superior court for a new penalty phase in which

Payne’s proffered good-inmate evidence should be admitted.

52