State of Arizona v. Shawna Forde

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

THE STATE OF ARIZONA,

Appellee,

v.

SHAWNA FORDE,

Appellant.

No. CR-11-0043-AP

Filed January 17, 2014

Appeal from the Superior Court in Pima County

The Honorable John S. Leonardo, Presiding Judge

No. CR20092300-001

AFFIRMED AS MODIFIED

COUNSEL:

Thomas C. Horne, Arizona Attorney General, Robert L. Ellman, Solicitor

General, Jeffrey A. Zick, Chief Counsel, Capital Litigation Section,

Susanne Bartlett Blomo, Assistant Attorney General (argued), Phoenix, for

State of Arizona

Amy Armstrong, Director, Natman Schaye, Julie Hall (argued), Arizona

Capital Representation Project, Tucson, for Shawna Forde

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

JUSTICE BERCH, VICE CHIEF JUSTICE BALES, JUSTICE PELANDER,

and JUSTICE BRUTINEL joined.

JUSTICE TIMMER, opinion of the Court:

¶1 Shawna Forde was sentenced to death after a jury found her

guilty of two counts of first degree felony murder and six other felonies

committed during a home invasion. We have jurisdiction over her

STATE V. FORDE

Opinion of the Court

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

and A.R.S. § 13-4031. 1

BACKGROUND 2

¶2 Forde was the self-proclaimed leader of a private

“minuteman” border monitoring group. To fund her operation, she

planned to steal from a house in Arivaca owned by victim Raul Flores, a

reputed drug dealer. In May 2009, Forde met with minuteman members

in Colorado, discussed her plan, and sought their help. She also sought

assistance from Arivaca drug dealers Albert Gaxiola and Oin Oakstar,

who had been plotting to kill Flores as a perceived rival in the drug trade.

A few days before the murders, Forde and Jason Bush, her “number two

guy” in the minuteman group, met with Gaxiola and Oakstar and

discussed killing Flores and stealing drugs and money.

¶3 On the morning of May 29, as Oakstar, Forde, and Bush

slowly drove by Flores’s home, Flores’s wife Gina and their nine-year-old

daughter Brisenia were in the front yard. Gaxiola later asked Oakstar to

go with him to “take care” of Flores, but Oakstar declined, saying he was

too drunk.

¶4 That night, Forde and Bush returned to Flores’s home with

Gaxiola and at least one other person. Forde awakened the family by

banging on the front door and shouting. When Flores opened the door,

Forde demanded entry or else, she said, “we’re going to shoot you.”

Flores stepped aside, and Forde and Bush, dressed in camouflage and

Bush with a blackened face, rushed in. While Bush, who was armed,

stood by, Forde ordered Flores to sit near Gina, who was seated on a

couch where Brisenia lay sleeping.

1 We cite the current versions of statutes unless material changes

have been made since Forde committed the offenses.

2 We view the facts in the light most favorable to sustaining the

jury’s verdicts. State v. Garcia, 224 Ariz. 1, 7 ¶ 2 n.1, 226 P.3d 370, 376 n.1

(2010).

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Opinion of the Court

¶5 Flores asked what was occurring, and Bush replied, “don’t

take this personal[ly] but this bullet has your name on it.” Flores jumped

up and wrestled with Bush, and Bush shot him. Bush then shot Gina

twice, and she fell to the floor and pretended to be dead. Flores shouted

for Bush to stop, prompting Bush to shoot Flores several more times,

killing him. During these shootings, Forde did not react or ask Bush to

stop.

¶6 Forde then announced that everything was clear, and two

other intruders entered the house. Forde left the room and began

rummaging through drawers in the master bedroom. Meanwhile, Bush

questioned Brisenia and then shot her twice, killing her. Forde returned to

the living room saying they needed to hurry because someone was

coming. The intruders then broke the lights in the house and ran out.

¶7 Gina called 911. While she was on the telephone, Forde,

who had shed her camouflage jacket and pulled her hair into a ponytail,

came back into the house to retrieve a dropped gun. Forde spotted Gina

and ran outside, shouting for someone to “finish [her] off.” Bush re-

entered the house and began firing at Gina, who returned fire, injuring

Bush and prompting him to flee. Gaxiola then entered the house but

quickly departed after realizing Gina had recognized him. Shortly

thereafter, the intruders left.

¶8 Forde, Bush, and Gaxiola went to Gaxiola’s home. Gaxiola

returned to observe the murder scene and texted Forde saying, “cops on

scene, lay low.” Forde responded, “no worries, all good, just relax,

competition gone.” She then took care of Bush’s wound. A few hours

later, she texted her daughter saying, “whatever goes down, I’m in deep

now. I love you, make me proud, and do something good with your life.”

¶9 After learning of the murders, R.W. and R.C., who had

attended the Colorado minuteman meeting, called the FBI and told them

about Forde’s plans. Police stopped Forde as she was driving on June 12

and arrested her. A belt buckle marked “G” and jewelry taken from

Gina’s bedroom during the home invasion were found in Forde’s purse,

which was in her car.

¶10 The State indicted Forde on two counts of first degree

murder as well as first degree burglary, attempted first degree murder,

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Opinion of the Court

aggravated assault causing serious physical injury, aggravated assault

with a deadly weapon, armed robbery, and aggravated robbery. A jury

found her guilty on all counts. During the aggravation phase, the jury

found three aggravating circumstances for Flores’s murder and four

aggravating circumstances for Brisenia’s. After receiving evidence in the

penalty phase, the jury determined that Forde should be sentenced to

death for each murder. The trial court then imposed death sentences for

the murders and prison sentences totaling seventy-five years for the non-

capital counts.

DISCUSSION

I. PRETRIAL

A. Pretrial Publicity

¶11 Forde unsuccessfully moved to change venue from Tucson

based on extensive media coverage of the crimes, some of which was

inaccurate or inflammatory. We review the trial court’s ruling for an

abuse of discretion. State v. Cruz, 218 Ariz. 149, 156 ¶ 12, 181 P.3d 196, 203

(2008).

¶12 Our review entails a two-step inquiry to decide “whether,

under the totality of the circumstances, the publicity attendant to

defendant’s trial was so pervasive that it caused the proceedings to be

fundamentally unfair.” Id. ¶ 13 (internal quotation marks omitted). We

first consider whether the publicity so pervaded the proceedings that the

trial court erred by not presuming prejudice. Id. ¶ 14. If not, we ask

whether the defendant showed actual prejudice. Id. Forde does not assert

the existence of actual prejudice but argues that the trial court erred by

failing to presume prejudice.

¶13 A court presumes prejudice “only if the ‘media coverage

was so extensive or outrageous that it permeated the proceedings or

created a carnival-like atmosphere.’” Id. at 157 ¶ 15, 181 P.3d at 204

(quoting State v. Atwood, 171 Ariz. 576, 631, 832 P.2d 593, 648 (1992))

(internal quotation marks omitted). The publicity must be so unfair,

prejudicial, and pervasive that jurors could not decide the case fairly, even

if they avow otherwise. State v. Bible, 175 Ariz. 549, 565, 858 P.2d 1152,

1168 (1993). The burden to show presumed prejudice is “extremely

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Opinion of the Court

heavy.” Id. at 564, 858 P.2d at 1167 (quoting Coleman v. Kemp, 778 F.2d

1487, 1537 (11th Cir. 1985)).

¶14 The publicity surrounding this case was not so pervasive

and prejudicial that the court should have presumed prejudice. Most of

the publicity occurred in the immediate aftermath of the crimes —

approximately eighteen months before trial. Moreover, most news

accounts were essentially factual. We have held that the trial court

properly refused to presume prejudice under similar circumstances. See,

e.g., Cruz, 218 Ariz. at 157 ¶ 18, 181 P.3d at 204 (finding no presumed

prejudice when publicity occurred more than a year before trial and was

almost entirely accurate); State v. Blakley, 204 Ariz. 429, 434 ¶ 15, 65 P.3d

77, 82 (2003) (refusing to presume prejudice when local inflammatory

news stories appeared primarily at the time of the crime or in pretrial

stages); Bible, 175 Ariz. at 563–64, 858 P.2d at 1166–67 (finding news

containing inadmissible or inaccurate evidence did not create presumed

prejudice when the stories of rape and murder of nine-year-old child were

published “months before trial began” and nearly all coverage was based

on factual evidence admitted at trial).

¶15 Forde asserts that the trial court erroneously discounted the

significance of internet news stories because, although they were

published well before her trial began, they remained accessible online.

Forde has not shown, however, that the continuing availability of internet

news equates to continuing coverage and, more importantly, continuing

readership by prospective jurors.

¶16 Forde also argues that a change of venue was warranted by

the extensive publicity surrounding the January 8, 2011 shootings of

Congresswoman Gabrielle Giffords and others in Tucson (the “Giffords

shootings”), which occurred just three days before the originally

scheduled start of trial. Because Forde never asked for a change of venue

on this basis, we review only for fundamental error. State v. Henderson,

210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005). Under this standard of

review, Forde bears the burden of proving that fundamental error

occurred and that it prejudiced her. Id. ¶ 20. “Fundamental error” is

“error going to the foundation of the case, error that takes from the

defendant a right essential to his defense, [or] error of such magnitude

that the defendant could not possibly have received a fair trial.” Id. ¶ 19.

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Opinion of the Court

¶17 We do not find any error, much less fundamental error.

Forde made no showing that publicity about the Giffords shootings had a

spill-over effect on Forde’s trial or created a carnival-like atmosphere in

this case. Although this case and the Giffords shootings each involved the

shooting death of a nine-year-old girl, this common element is insufficient

to justify a presumption that the publicity surrounding the Giffords

shootings deprived Forde of a fair trial. See State v. Lane, 431 S.E.2d 7, 9

(N.C. 1993) (holding that a change of venue was not warranted due to

publicity surrounding an unrelated murder with common features

because the defendant failed to establish any specific prejudice against

him as a result of the publicity).

B. Motions to Continue

¶18 Forde argues that the trial court violated her rights to due

process, a fair trial, effective assistance of counsel, and to be free from

cruel and unusual punishment by denying motions to continue the trial

because (1) the State belatedly disclosed evidence that necessitated

investigation, and (2) the Giffords shootings on the eve of trial tainted

potential jurors. A trial court must grant a continuance “only upon a

showing that extraordinary circumstances exist and that delay is

indispensible to the interests of justice.” Ariz. R. Crim. P. 8.5(b). We

review a trial court’s denial of a motion to continue for an abuse of

discretion, State v. Dixon, 226 Ariz. 545, 555 ¶ 53, 250 P.3d 1174, 1184

(2011), which we will find only if the defendant demonstrates prejudice,

State v. VanWinkle, 230 Ariz. 387, 390 ¶ 7, 285 P.3d 308, 311 (2012).

1. Late Disclosure

¶19 In the hours after the shootings, a text message was sent

from Forde’s cell phone stating that “Red” had been injured; Bush was

nicknamed “Red.” Less than a week before the January 11, 2011 start of

trial, the State disclosed FBI reports containing a witness’s statement that

Leland “Red” Sprout had been involved in the shootings. Forde moved to

continue the trial so she could investigate, claiming that evidence of

Sprout’s involvement was exculpatory because Forde had no connection

to him and it impeached the witness, who had not mentioned Sprout

during defense interviews. The trial court denied the motion, finding that

the information had only speculative evidentiary value and would not be

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STATE V. FORDE

Opinion of the Court

materially exculpatory. But the court permitted Forde to re-interview the

witness, who later testified at trial.

¶20 Forde primarily argues that the trial court erred by

considering whether the evidence was exculpatory rather than

determining whether the late disclosure was harmless beyond a

reasonable doubt, the standard applied in State v. Krone, 182 Ariz. 319, 897

P.2d 621 (1995). Krone did not alter the standard for considering trial

continuances, as Forde suggests. The issue in Krone was whether a new

trial was warranted in light of the introduction of evidence in violation of

disclosure rules. Id. at 321, 897 P.2d at 623. Resolving that issue turned on

whether the state could demonstrate harmless error. In this case, because

the FBI reports were not introduced in evidence, Krone is inapplicable.

The trial court correctly placed the burden on Forde to demonstrate

“extraordinary circumstances” necessitating a continuance. See Ariz. R.

Crim. P. 8.5(b).

¶21 Forde also argues that the belated disclosure constituted

“extraordinary circumstances” justifying a continuance because an

investigation could have revealed evidence of Sprout’s involvement,

which would have created a reasonable doubt about Forde’s guilt or the

appropriateness of death sentences. We disagree. Although Sprout’s

involvement could have cast doubt on Bush’s presence at the shootings, it

would not have shown Forde’s absence or otherwise tended to exculpate

her.

¶22 Forde further fails to show that the denial of her motion

prejudiced her rights. She does not allege that her second interview of the

witness was inadequate, and she does not show that the court’s ruling

hampered her investigation of Sprout’s alleged involvement. Moreover,

because the trial was ultimately continued for eight days for other reasons,

Forde had additional time to investigate.

2. Giffords Shootings

¶23 Two days after the Giffords shootings, Forde moved to

continue her trial, which had been scheduled to start the next day, arguing

that trying the case in the immediate aftermath of the Giffords shootings

would be unfair because jurors might transfer their emotional distress to

Forde in light of similarities between the crimes. Although the court

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Opinion of the Court

denied the motion, it nonetheless continued the trial for eight days, in part

because “the events of the past several days along with continuing

developments within the community have created an atmosphere that’s

not conducive to going forward with the trial today.” On the new trial

date, Forde renewed her motion, contending that the publicity and

emotions stemming from the Giffords shootings had not subsided. The

trial court denied the motion.

¶24 Forde argues that the shock and grief experienced by Tucson

residents after the Giffords shootings presented the type of “extraordinary

circumstances” that warranted a trial continuance. She points out that her

lead attorney, Eric Larsen, initially argued he was emotionally incapable

of providing Forde with an adequate defense, which was later evidenced

by inadequate voir dire. But Larsen later told the court that the eight-day

trial continuance alleviated his personal issues. And any inadequacy in

the voir dire should be considered in the context of an ineffective-

assistance-of-counsel claim, which is not before us. See State v. Spreitz, 202

Ariz. 1, 3 ¶ 9, 39 P.3d 525, 527 (2002) (requiring “ineffective assistance of

counsel claims . . . to be brought in Rule 32 proceedings”).

¶25 Forde additionally contends that “extraordinary

circumstances” existed because it was impossible to seat a jury not deeply

affected by the Giffords shootings. As previously explained, however,

Forde fails to demonstrate that the emotional distress caused by the

Giffords shootings affected the jurors’ ability to fairly reach a verdict.

¶26 The appropriate way to determine the impact of a significant

unrelated event in the community is to question potential jurors during

the voir dire process. Forde’s attorney took that opportunity and

questioned potential jurors about the impact of the Giffords shootings.

Only one person indicated he might not be able to be fair, and the court

excused him.

¶27 Accordingly, the trial court did not err by denying Forde’s

motions to continue.

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Opinion of the Court

C. Dessureault Hearing

¶28 Gina was unable to identify Forde in a photo line-up, but

when Gina and Forde both attended a pretrial hearing on September 27,

2010, Gina recognized Forde as the female intruder. Forde moved to

preclude any in-court identification of her based on this pretrial

identification. Following a hearing held pursuant to State v. Dessureault,

104 Ariz. 380, 453 P.2d 951 (1969), the trial court concluded that the

identification was made in suggestive circumstances, but denied the

motion because Gina’s identification was nevertheless reliable. We defer

to the court’s factual findings unless they are clearly erroneous, but we

review the court’s ruling on the constitutionality of a pretrial identification

de novo as a mixed question of law and fact. State v. Moore, 222 Ariz. 1, 7

¶ 17, 213 P.3d 150, 156 (2009).

¶29 Forde contends that the trial court violated her due process

rights by refusing to continue the Dessureault hearing to permit additional

witness interviews, precluding evidence at the hearing, and then ruling

that Gina’s identification was reliable and therefore admissible. We reject

these arguments because the court was not required to conduct a

Dessureault hearing, and therefore any error was harmless.

¶30 In Perry v. New Hampshire, the Supreme Court clarified — as

this Court had previously held — that only state action requires a

Dessureault-type hearing. 132 S. Ct. 716, 730 (2012) (“[T]he Due Process

Clause does not require a preliminary judicial inquiry into the reliability

of an eyewitness identification when the identification was not procured

under unnecessarily suggestive circumstances arranged by law

enforcement.”); see also State v. Williams, 166 Ariz. 132, 137, 800 P.2d 1240,

1245 (1987). The Court reasoned that decisions requiring pretrial judicial

scrutiny “turn on the presence of state action and aim to deter police from

rigging identification procedures, for example, at a lineup, showup, or

photograph array.” 132 S. Ct. at 721. Significantly, the Court concluded

that “[t]he fallibility of eyewitness evidence does not, without the taint of

improper state conduct, warrant a due process rule requiring a trial court

to screen such evidence for reliability before allowing the jury to assess its

creditworthiness.” Id. at 728.

¶31 Forde concedes that the confrontation between Forde and

Gina at the pretrial hearing did not result from state action, and the record

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Opinion of the Court

supports the concession. Gina routinely attended pretrial hearings, but

Forde generally waived her appearance. Nothing suggests that the State

asked Gina to attend the September 27 hearing to see Forde. Indeed, Gina

waited about six weeks to tell the State she had recognized Forde.

Because there was no state action involved in Gina’s pretrial identification

of Forde, there was no due process concern, and the trial court was not

required to hold a Dessureault hearing.

¶32 Forde attempts to avoid Perry and Williams by arguing that

because the Dessureault hearing was held, the court was required to

comply with due process. She cites cases concerning “state-created”

rights, which require due process once invoked. See Conn. Bd. of Pardons v.

Dumschat, 452 U.S. 458, 463 (1981) (“A state-created right can, in some

circumstances, beget yet other rights to procedures essential to the

realization of the parent right.”); Wolff v. McDonnell, 418 U.S. 539, 556–58

(1974) (holding that depriving inmates of state-created right to good-time

credits in prison disciplinary proceedings requires due process). But the

Dessureault hearing was not a state-created right. The fact that the court

granted Forde’s request for the hearing did not resurrect due process

rights deemed inapplicable by Perry and Williams.

¶33 Forde also relies on State v. Nordstrom, 200 Ariz. 229, 241

¶ 26, 25 P.3d 717, 729 (2001), overruled in part on other grounds by State v.

Ferrero, 229 Ariz. 239, 274 P.3d 509 (2012), to argue that due process

concerns can sometimes be implicated “in the absence of state action”

when “evidence lacking in foundation reaches the jury under

circumstances that do not afford a defendant an opportunity to point out

its weaknesses.” The concerns set forth in Nordstrom are not implicated

here, however, because Forde thoroughly cross-examined Gina about the

inconsistencies between her initial description of the female perpetrator

and Forde’s appearance, as well as Gina’s inability to identify Forde in the

photo line-up. Further, Forde presented expert testimony challenging the

identification.

¶34 In a related argument, Forde asserts that the trial court erred

by failing to give a cautionary instruction to the jury regarding eyewitness

identification, as suggested by Perry. Forde waived this issue by not

raising it until her reply brief.

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Opinion of the Court

D. Preclusion of Victim Advocate’s Testimony

¶35 When Gina saw Forde at the pretrial hearing, she

commented to her mother and her victim advocate that Forde looked like

the female intruder. Forde subpoenaed the advocate to testify at trial, but

the court granted the State’s motion to quash and prohibited Forde from

interviewing the advocate, reasoning that the advocate was prohibited

from divulging the conversation pursuant to the crime victim advocate

privilege in A.R.S. § 13-4430. Forde contends that Gina waived the

privilege by testifying about the conversation at the Dessureault hearing,

and the court therefore violated her right to confront witnesses and to due

process by allowing Gina to testify about the conversation “yet block[ing]

the defense from disputing that testimony with the testimony of the

advocate herself.” Because Forde raises these arguments for the first time

on appeal, we review for fundamental error. Henderson, 210 Ariz. at 567 ¶

19, 115 P.3d at 607.

¶36 At the time of Forde’s trial, A.R.S. § 13-4430(A) and (C)

(2011) prohibited a crime victim advocate from disclosing “as a witness or

otherwise any communication . . . between himself and the victim” unless

the advocate “knows that the victim will give or has given perjured

testimony or if the communication contains exculpatory evidence.” 3 The

victim waives the privilege only by consenting in writing. A.R.S. § 13-

4430(A) (2011). Because Gina did not provide written consent, she did not

waive the privilege. Also, nothing in the record suggests that the

information the victim advocate might have given was exculpatory.

Indeed, Forde did not move for disclosure of the information, which

would have permitted the court to hold an in camera hearing and order

disclosure if it found “reasonable cause to believe the material [was]

exculpatory.” A.R.S. § 13-4430(D) (2011). The privilege required the

exclusion of the conversation.

¶37 Application of the privilege did not violate Forde’s

confrontation and due process rights by allowing the State to introduce

evidence of the conversation between Gina and the advocate and then

blocking Forde from disputing its content. Forde ― not the State ― asked

3 In 2012, the legislature amended § 13-4430(A) to prohibit the

advocate from disclosing “as a witness or otherwise any communication

made by or with the victim . . . .”

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Opinion of the Court

Gina about the pretrial hearing and her conversation with the advocate to

cast doubt on the identification. Moreover, precluding the advocate’s

testimony did not impede Forde from cross-examining Gina or arguing

that Gina’s identification was unreliable. Cf. Pennsylvania v. Richie, 480

U.S. 39, 52–53 (1987) (holding that the right to confrontation is a trial right

and is normally satisfied “if defense counsel receives wide latitude at trial

to question witnesses”).

E. Defense Counsel’s Motion to Withdraw

¶38 Attorneys Eric Larsen and Jill Thorpe represented Forde at

trial. An acquaintance of Forde, purporting to act on her behalf, filed

identical bar complaints against both attorneys before trial. Citing advice

imparted by the State Bar’s advisory ethics counsel, Larsen moved to

withdraw to enable the court to decide whether new counsel was

required. Both Larsen and Thorpe stated, however, that the bar

complaints would not substantially interfere with their representation.

Additionally, Forde told the court that she had read one complaint, did

not authorize its filing, and that she was “100 percent” satisfied with her

attorneys. As a result, the court moved on to other pretrial matters,

effectively denying the motion. See State v. Hill, 174 Ariz. 313, 323, 848

P.2d 1375, 1385 (1993) (“A motion that is not ruled on is deemed denied by

operation of law.”). We review the ruling for an abuse of discretion. See

State v. Jones, 185 Ariz. 471, 480, 917 P.2d 200, 209 (1996).

¶39 Forde argues that the bar complaints placed the attorneys

and Forde in adversarial roles that created a conflict of interest in violation

of Ethical Rule (“ER”) 1.7(a)(2), which prohibits representation when

“there is a significant risk that the representation . . . will be materially

limited by the lawyer’s . . . personal interest.” Because Forde did not file

or authorize the bar complaints, however, she did not have an adversarial

relationship with her attorneys. And even if Forde had filed the

complaints, the court was not required to remove her attorneys. See State

v. Henry, 189 Ariz. 542, 549, 944 P.2d 57, 64 (1997) (holding that, for public

policy reasons, the mere filing of a bar complaint by a defendant against

his attorney does not mandate removal of the attorney). Notably, nothing

indicated a significant risk that the attorneys’ representation of Forde

would be materially limited by the bar complaints. Consequently, the

court did not err by denying the motion to withdraw.

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F. Disclosure of FBI “Source Files”

¶40 Months before trial, Forde moved for disclosure of all FBI

“source files” regarding R.W. and R.C., attendees at the Colorado

minuteman meeting, including files unrelated to this case. The trial court

denied Forde’s motion, finding that the information was not within the

State’s control and directing Forde to make her request to the FBI. When

the trial began, the State received previously requested FBI source files

regarding this case and promptly disclosed them to the defense.

¶41 Forde argues that the trial court violated her rights to due

process, to present a defense, and to confront witnesses by denying her

motion. She contends that disclosure was required by Arizona Rule of

Criminal Procedure 15.1 and Brady v. Maryland, 373 U.S. 83 (1963). But

neither Rule 15.1 nor Brady requires the state to disclose evidence outside

its possession or control. See Ariz. R. Crim. P. 15.1(b) (requiring the state

to disclose material “within the prosecutor’s possession or control”); State

v. Briggs, 112 Ariz. 379, 383, 542 P.2d 804, 808 (1975) (“The prosecutor

cannot be deemed to have concealed information relating to the guilt or

innocence of the accused, or punishment if he does not procure materials

in the custody of the FBI, an agency which is not under the control of the

prosecutor.”).

G. Admission of Informants’ Testimony

¶42 Forde argues that the trial court violated Arizona Rules of

Evidence 403 and 404(b) and deprived her of due process by denying her

motion in limine to preclude R.W. and R.C. from testifying about the

Colorado meeting. According to Forde, evidence of the meeting was

improper “other act” evidence and any probative value was substantially

outweighed by a danger of unfair prejudice. We review the court’s ruling

for an abuse of discretion. State v. McGill, 213 Ariz. 147, 156 ¶ 40, 140 P.3d

930, 939 (2006).

¶43 During the Colorado meeting, Forde related her plan to raid

a house in Arivaca in September to steal weapons, drugs, and money. She

said she had the house under surveillance and asked those present to join

the raid. Forde later called R.C. and asked if he could be ready to assist

immediately.

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Opinion of the Court

¶44 The meeting demonstrated Forde’s preparation and plan for

the crimes and was therefore admissible under Rule 404(b), Ariz. R. Evid.

And the court properly rejected Forde’s Rule 403 argument because

evidence of the meeting did not “suggest decision on an improper basis,

such as emotion, sympathy, or horror” and did not give rise to any undue

prejudice. State v. Schurz, 176 Ariz. 46, 52, 859 P.2d 156, 162 (1993).

H. Destruction of Evidence

¶45 During the Colorado meeting, Forde drew a rudimentary

map of Arivaca to illustrate the locations of houses, roads, and the United

States-Mexico border. R.C. gave the drawing to the FBI, which later

destroyed it. Forde argues that the trial court violated her state and

federal constitutional rights by failing to preclude evidence of the

Colorado meeting because the FBI destroyed the drawing. Because Forde

raises this issue for the first time on appeal, we review for fundamental

error.4 Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.

¶46 Law enforcement deprives a defendant of due process by

destroying evidence only if (1) the exculpatory nature of the evidence was

apparent before destruction, and the defendant cannot obtain comparable

evidence through reasonably available means, or (2) the potential

usefulness of the evidence is unknown but the state acted in bad faith by

destroying it. State v. Lehr, 227 Ariz. 140, 150 ¶¶ 40–41, 254 P.3d 379, 389

(2011). Forde has not established either of these bases for relief.

¶47 Forde contends that the map was exculpatory because “it

would have demonstrated her intended target was not a family home, but

rather a stash house.” Because R.C. testified that Forde was not targeting

a house occupied by a family, Forde was able to present that information

to the jury. And both R.W. and FBI Agent Chris Anderson, who later saw

the drawing, testified that it was meaningless standing alone. Thus, at

most, the drawing was only potentially useful and not clearly exculpatory.

¶48 Forde argues that the FBI acted in bad faith because the

destruction occurred after the murders “when it was obvious the map had

evidentiary value.” The record, however, demonstrates only that the FBI

4 Forde incorrectly argues that she preserved this issue in her motion

in limine to preclude evidence of the Colorado meeting.

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Opinion of the Court

acted negligently. Upon receiving the drawing from R.C., Agent

Anderson put it “into a chain of custody” in the FBI’s Denver division.

After the Pima County Sheriff’s Department assumed responsibility for

the investigation, the FBI transferred the drawing and other evidence to its

Phoenix division. The FBI later mistakenly closed the case and destroyed

the evidence. Nothing indicates that the FBI sought to deprive Forde of

the drawing, and the trial court therefore did not err by refusing to

preclude all evidence of the Colorado meeting. Cf. State v. Vickers, 180

Ariz. 521, 528, 885 P.2d 1086, 1093 (1994) (holding that state’s inadvertent

or negligent destruction of evidence did not violate defendant’s due

process rights).

¶49 Forde also argues that the trial court erred in failing to give a

Willits 5 instruction concerning the FBI’s destruction of the map. Because

Forde did not request this instruction, we review for fundamental error.

¶50 A court must give a Willits instruction if the defendant

shows “(1) that the state failed to preserve material and reasonably

accessible evidence having a tendency to exonerate him, and (2) that this

failure resulted in prejudice.” State v. Speer, 221 Ariz. 449, 457 ¶ 40, 212

P.3d 787, 795 (2009) (citation and internal quotation marks omitted).

Because Forde has not established that the drawing had a tendency to

exonerate her, a Willits instruction was unnecessary.

I. Waiver of Presence at Pretrial Proceedings

¶51 Forde argues that the trial court violated her federal and

state constitutional rights to be present at trial by accepting her counsel’s

waiver of her presence at almost every pretrial hearing without evidence

that these waivers were knowing, voluntary, and intelligent. Because

Forde did not raise this issue to the trial court, we review for fundamental

error.

¶52 A defendant has a Sixth Amendment right to attend pretrial

proceedings critical to the outcome of the criminal proceeding whenever

the defendant’s presence “would contribute to the fairness of the

procedure.” Kentucky v. Stincer, 482 U.S. 730, 745 (1987). But defense

counsel can waive this right on the defendant’s behalf and, absent

5 State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964).

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Opinion of the Court

exceptional circumstances, the waiver is binding. State v. Rose, 231 Ariz.

500, 504 ¶¶ 9–10, 297 P.3d 906, 910 (2013). Forde has not alleged any

exceptional circumstances that call into question the validity of her

waivers. The trial court did not err by conducting the pretrial proceedings

outside Forde’s presence after her attorney waived her presence.

II. GUILT PHASE

A. Jury Selection

1. Large-Group Voir Dire

¶53 After prospective jurors answered written questions, the

trial court conducted voir dire in four sequestered groups of twenty-five.

Forde argues that the court violated her rights to due process, a fair trial,

an impartial jury, and to be free from cruel and unusual punishment by

refusing to question prospective jurors individually or in sequestered

groups of five. We review for an abuse of discretion. State v. Lynch, 225

Ariz. 27, 34 ¶ 22, 234 P.3d 595, 602 (2010).

¶54 The trial court has discretion to conduct voir dire

individually “when the prospective juror might be embarrassed to confess

his true opinion before an audience or when one juror’s statements

concerning the case might color the entire jury’s outlook.” Ariz. R. Crim.

P. 18.5(d), cmt. Such questioning is “most useful in cases involving

massive publicity or unusually sensitive subjects,” Bible, 175 Ariz. at 570,

858 P.2d at 1173 (citation and internal quotation marks omitted), but is not

required in every capital case, Lynch, 225 Ariz. at 34 ¶ 23, 234 P.3d at 602.

¶55 Forde argues that large-group voir dire impeded selection of

an impartial jury because jurors could have been uncomfortable

answering sensitive questions such as whether they had been crime

victims. But such general questions are not so unusually sensitive that

private questioning is required. Additionally, the court took steps to

ensure that jurors would not be asked to reveal sensitive personal

information publically. The written questionnaire addressed topics that

could have embarrassed a juror if raised in a group setting, and it asked

whether the juror wished to discuss anything privately. During voir dire,

the court called five jurors to the bench to discuss personal information

outside the hearing of other prospective jurors.

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Opinion of the Court

¶56 Forde also asserts that the pretrial publicity in her case,

together with the Giffords shootings, required individual or small-group

voir dire so jurors would answer questions candidly. We disagree. The

written questionnaires extensively addressed news coverage of both cases,

allowing jurors to privately answer questions about the effect of pretrial

publicity. Forde does not point to any answers that triggered a need for

individual or small-group voir dire. Indeed, thirteen of the sixteen

members of the jury panel wrote they either had no exposure or very little

exposure to news coverage of this case.

¶57 Although the court could have exercised its discretion to

conduct individual or small-group voir dire, it did not abuse its discretion

by not doing so.

2. Scope of Questioning

¶58 The trial court prohibited Forde from asking prospective

jurors both to identify mitigation they would consider sufficient to call for

leniency and to opine on whether specific circumstances would constitute

such mitigation. The court reasoned it would be improper to effectively

ask jurors to pre-commit to whether specific facts constitute mitigation.

Forde argues that the court violated her rights to due process, to effective

assistance of counsel, to an impartial jury, and to be free from cruel and

unusual punishment by limiting her inquiry. Consistent with our past

decisions, we reject Forde’s arguments. Moore, 222 Ariz. at 19 ¶ 105, 213

P.3d at 168.

¶59 Forde further asserts that the trial court erred by disallowing

two questions posed to Juror 163 seeking to probe his opinion that the

death penalty should be imposed in “egregious” cases. Even if the trial

court committed error, however, it was harmless because Juror 163 was

not seated. See id. at 19 ¶ 100, 213 P.3d at 168 (finding any error in voir

dire of prospective jurors harmless because they either were not

empanelled or served as alternates and did not deliberate). We also reject

Forde’s contention that harmless-error review does not apply because the

court’s ruling impeded her ability to ask similar questions of other

prospective jurors. Forde neither made a continuing objection to the

court’s disallowance of such questions nor offered a list of questions she

was precluded from asking.

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Opinion of the Court

3. Failure to Strike Jurors 2 and 3

¶60 Forde asserts that Jurors 2 and 3 stated they would not hold

the State to its burden of proof, and the trial court therefore committed

fundamental error by failing to excuse them from the panel. We disagree.

The jurors’ statements during voir dire did not reflect an unwillingness to

hold the State to its burden of proof. And the entire prospective jury

panel, including Jurors 2 and 3, later indicated they would require the

State to prove the charges beyond a reasonable doubt.

B. DNA Evidence

¶61 A silver ring belonging to Gina that was stolen during the

home invasion was found in Forde’s purse at the time of her arrest. Scott

Walton, a DNA analyst from a private lab, testified that a partial DNA

profile generated from the ring matched Forde’s DNA profile. He also

related statistical weights reflecting the prevalence of the profile in various

racial populations.

¶62 Forde argues that the trial court erred by permitting

Walton’s testimony because it was irrelevant and violated her

Confrontation Clause rights. Because Forde raises these issues for the first

time on appeal, we review for fundamental error.

1. Relevance

¶63 Walton testified he would expect to find the same partial

DNA profile generated from the ring in 1 in 2000 Caucasians, 1 in 1290

African-Americans, and 1 in 791 Hispanics. Walton explained he would

be confident of the accuracy of a match if the profile would be expected in

only 1 in 280 billion people. Forde argues that because Walton assigned a

relatively low statistical weight to the DNA profile, the evidence was

unreliable and therefore irrelevant, and the trial court erred by admitting

it.

¶64 The DNA evidence was relevant because it tended to make a

fact of consequence in the case “more or less probable than it would be

without the evidence.” Ariz. R. Evid. 401. Although Walton could not say

that the DNA generated from the ring came from Forde, the evidence

increased the probability that Forde had handled the ring and was

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Opinion of the Court

involved in the home invasion. It was the jury’s prerogative to assess the

weight of this evidence.

2. Confrontation Clause Rights

¶65 The Sixth Amendment prohibits a court from admitting

testimonial hearsay statements made by a non-testifying witness unless

that person is unavailable and the defendant had a prior opportunity for

cross-examination. Crawford v. Washington, 541 U.S. 36, 68 (2004). In State

v. Gomez, 226 Ariz. 165, 244 P.3d 1163 (2010), we addressed Crawford and

its progeny in the context of DNA testing. There, a DNA analyst testified

that several profiles generated by non-testifying technicians matched the

defendant’s profile. Id. at 166 ¶¶ 3–5, 244 P.3d at 1164. We held that the

Sixth Amendment is not violated so long as the testifying expert refrains

from serving as a conduit for another’s opinion. Id. at 169–70 ¶ 22, 244

P.3d at 1167–68. Because the analyst in Gomez did not act as a conduit for

the opinions of the technicians, relied on the type of information

reasonably relied upon by expert analysts, formed her own opinions, and

was subject to cross-examination, the Court held that the defendant’s

confrontation rights were not violated. Id. at 170 ¶¶ 23–24, 244 P.3d at

1168; see also State v. Snelling, 225 Ariz. 182, 187 ¶ 20, 236 P.3d 409, 414

(2010) (finding no Sixth Amendment violation when a testifying medical

examiner offered opinions about cause of death based on review of

photographs of the victim and autopsy report prepared by another

pathologist).

¶66 Unlike the situation in Gomez, it is unclear whether Walton

testified about his own opinions or simply relayed those of a fellow

analyst, Emily Jeskie. Jeskie performed “the DNA work” on the ring and

other evidence, and Walton said he was familiar with her results and

would testify about them. Later, however, he referred to himself as the

person who matched the ring’s partial profile to Forde’s profile and

assigned the statistical weights. But even assuming Walton merely

relayed Jeskie’s expert opinions, thereby depriving Forde of her

confrontation rights, Forde has not demonstrated fundamental error or

prejudice. Even without the DNA evidence, Forde was linked to the ring

as it was found in her purse, which she possessed at the time of her arrest.

Thus, it is unlikely the jury would have reached a different conclusion

absent the DNA evidence.

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Opinion of the Court

C. Eyewitness Identification Expert/Prosecutorial

Misconduct

¶67 The trial court precluded Dr. Geoffrey Loftus, an expert on

memory and perception, from offering a specific opinion about the

reliability of Gina’s identification of Forde, although it permitted him to

testify about factors affecting the accuracy of eyewitness identification.

The court later sustained the State’s objection to Forde’s hypothetical

question that matched the circumstances surrounding Gina’s

identification of Forde. Forde argues that the court violated her rights to

due process, to present a defense, and to confront witnesses by restricting

Dr. Loftus’s testimony. We review the court’s ruling for an abuse of

discretion. State v. Chapple, 135 Ariz. 281, 297, 660 P.2d 1208, 1224 (1983).

¶68 The court appropriately restricted Dr. Loftus’s testimony.

We have repeatedly held that while an expert may educate a jury by

testifying about behavioral characteristics affecting the accuracy of

eyewitness identification, the expert may not usurp the jury’s role by

offering opinions concerning the accuracy, reliability, or credibility of a

particular witness. See State v. Lindsey, 149 Ariz. 472, 475, 720 P.2d 73, 76

(1986); Chapple, 135 Ariz. at 297, 660 P.2d at 1224. This principle holds

even if an expert offers an opinion about a particular witness under the

guise of a hypothetical situation. See Lindsey, 149 Ariz. at 475, 720 P.2d at

76 (precluding expert from giving “opinions with respect to the accuracy,

reliability or truthfulness of witnesses of the type under consideration”).

¶69 Forde additionally asserts that the prosecutor took unfair

advantage of the court’s ruling and committed misconduct by asking Dr.

Loftus whether he could relate how the principles of eyewitness

identification applied in this case and by later vouching for Gina’s

credibility. Because Forde did not object at trial, we review for

fundamental error.

¶70 Dr. Loftus testified on direct examination that a victim of an

attack involving one armed and two unarmed assailants would focus on

the assailant brandishing the gun. On cross-examination, the prosecutor

asked a series of questions designed to elicit Dr. Loftus’s admission that

he could not be positive how a victim in this circumstance would react.

Because these questions did not insinuate that Dr. Loftus held no opinion

about Gina’s identification of Forde, the prosecutor did not take unfair

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Opinion of the Court

advantage of the court’s ruling and did not commit misconduct. See State

v. Payne, 674 Ariz. Adv. Rep. 5 ¶ 116 (Nov. 21, 2013) (alterations in

original) (“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’”); State v. Hughes, 193 Ariz. 72, 85 ¶ 59, 969 P.2d 1184, 1197

(1998) (“Counsel’s questioning and argument, however, cannot make

insinuations that are not supported by the evidence.”). The prosecutor

fairly tested the limits of Dr. Loftus’s opinion, and the trial court did not

err by permitting these questions.

¶71 During closing argument, the prosecutor addressed the

credibility of Gina’s identification of Forde as follows:

What mother would not want to sit up on the stand after

you have heard the police had arrested a woman accused of

murdering your daughter and say, absolutely that is the

woman.

But she didn’t do that. What she told you was, and I submit

to you honestly, was, no, I just can’t tell you, I don’t know

her. I think those were Gina’s words. I don’t know her. I

can’t tell you that’s the same person, but she looks just like

that person.

Forde argues that by using the phrase, “I submit to you honestly,” the

prosecutor improperly vouched for Gina by placing the prestige of the

State behind her. See State v. Vincent, 159 Ariz. 418, 423, 768 P.2d 150, 155

(1989) (holding that a prosecutor commits improper vouching by placing

the prestige of the government behind a witness).

¶72 We agree with Forde that the prosecutor improperly

vouched for Gina by conveying his personal belief that she had testified

honestly. See State v. Lamar, 205 Ariz. 431, 441 ¶ 54, 72 P.3d 831, 841

(2003). But the misconduct did not result in fundamental error. Gina’s

honesty was not disputed by Forde. Rather, Forde sought to discredit

Gina’s identification testimony by challenging her memory and

perception of events. Indeed, Forde sought to bolster Gina’s credibility

during closing argument:

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Opinion of the Court

Gina [] says no, it is not her. She is our best witness for the

defense. She doesn’t like hearing that, I wouldn’t like it if I

were in her position; but she is our best witness. Close in

time, her perceptions, her memories have yet to be changed.

Yet to be interfered with. Close in time, it was a brown-

haired woman that was in that home. And at that time [it

was] uncontradicted [that] Shawna Forde was a bright

blond[e].

Thus, the prosecutor’s vouching did not strike at the foundation of the

case or adversely impact Forde’s defense. Finally, any taint from the

vouching was minimized by the court’s instruction that nothing said by

the lawyers during closing arguments could be considered evidence. See

Payne, 674 Ariz. Adv. Rep. 5 ¶ 109.

D. Admissibility of Text Message

¶73 Forde argues that the trial court erred by admitting into

evidence a text message, sent less than one hour after the murders from

Gaxiola’s phone to Forde’s phone, which stated: “cops on scene, lay low.”

1. Authentication

¶74 Forde first asserts that the State failed to authenticate the text

message because insufficient evidence showed it was intended for her. To

authenticate an item of evidence, the “proponent must produce evidence

sufficient to support a finding that the item is what the proponent claims

it is.” Ariz. R. Evid. 901(a). We review the court’s ruling on

authentication for an abuse of discretion. State v. Lavers, 168 Ariz. 376, 386,

814 P.2d 333, 343 (1991).

¶75 The State introduced sufficient evidence authenticating the

message as one intended for Forde. A detective testified that the cell

phone from which the message was sent was registered to Gaxiola and

seized from him by the sheriff’s office. The detective examined the

phone’s contents and noted several communications near the time of the

murders to a cell phone number attributed to “White” in the phone’s

address book; the detective then learned from the cell phone provider that

Forde was the registered subscriber for the phone number listed for

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STATE V. FORDE

Opinion of the Court

“White.” When arrested, Forde had a cell phone with that same phone

number.

¶76 The evidence permitted the jury to reasonably conclude that

the text message from Gaxiola’s phone was intended for Forde.

Consequently, the trial court did not abuse its discretion in finding that

the State had authenticated the message.

2. Hearsay

¶77 Forde next contends that the text message constituted

inadmissible hearsay because it was admitted for the truth of the matter

asserted and was not otherwise admissible as a statement of a co-

conspirator. We review the trial court’s application of the hearsay rule for

an abuse of discretion. State v. Tucker, 205 Ariz. 157, 165 ¶ 41, 68 P.3d 110,

118 (2003).

¶78 The text message was not hearsay because the State did not

introduce it to prove the truth of the matter asserted — that the cops were

on the scene. See Ariz. R. Evid. 801(c) (defining hearsay). Rather, the State

introduced the message to show that Gaxiola was communicating

concerns about police activity at the victims’ home to someone he thought

would share his concerns, thereby constituting circumstantial evidence of

the other person’s involvement. Because the text message was not

hearsay, we need not decide whether the message was admissible as a

statement of a co-conspirator.

3. Confrontation Clause

¶79 Forde also argues that admission of the text message

violated her Sixth Amendment Confrontation Clause rights because the

message was used as evidence of her guilt. We review Confrontation

Clause challenges de novo. Snelling, 225 Ariz. at 187 ¶ 18, 236 P.3d at 414.

¶80 The Confrontation Clause prohibits the admission of

testimonial hearsay unless the declarant is unavailable and the defendant

had a prior opportunity for cross-examination. Crawford, 541 U.S. at 68.

As Forde concedes, the message was not testimonial. “Testimony” means

“[a] solemn declaration or affirmation made for the purpose of

establishing or proving some fact.” Id. at 51. The text message reflected

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Opinion of the Court

Gaxiola’s intent to warn Forde of police activity; it did not seek to

establish or prove a fact. Cf. State v. Damper, 223 Ariz. 572, 575–76 ¶ 12,

225 P.3d 1148, 1151–52 (App. 2010) (holding that text message from victim

before murder asking friend to come over and advising that she and

defendant had been fighting was not testimonial because “[nothing]

suggests [victim] intended or believed it might later be used in a

prosecution or at a trial”). The court did not violate Forde’s Confrontation

Clause rights by admitting the text message.

E. Jury Instructions

1. Felony Murder

¶81 The trial court instructed the jury that first degree murder

requires proof that the defendant, acting either alone or with

one or more other persons, committed or attempted to

commit burglary or robbery or both and, in the course of

and in furtherance of the offense or immediate flight from

the offense, the defendant or another person caused the

death of another person.

The court then instructed the jury on the elements of burglary, armed

robbery, and aggravated robbery. Notably, the court instructed that Forde

committed first degree burglary if, among other things, she “[e]ntered or

remained unlawfully in or on a residential structure” with the intent “to

commit any theft or felony therein.” Forde contends that the court

violated her due process rights because it did not define “theft” or

“felony.” Because Forde did not raise this issue to the trial court, we

review for fundamental error.

¶82 The trial court did not err by failing to define “theft” for the

jury. A trial court need not “define every phrase or word used in the

[jury] instructions, especially when they are used in their ordinary sense

and are commonly understood.” State v. Eastlack, 180 Ariz. 243, 259, 883

P.2d 999, 1015 (1994). In State v. Belyeu, the court of appeals held it was

not fundamental error for the trial court to fail to define “theft” as used in

a burglary instruction. 164 Ariz. 586, 589–90, 795 P.2d 229, 232–33 (App.

1990). Other courts have reached the same conclusion. See, e.g., Ex parte

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Opinion of the Court

Hagood, 777 So. 2d 214, 220 (Ala. 1999); State v. Ng, 750 P.2d 632, 639

(Wash. 1988). We agree.

¶83 This Court’s decision in State v. Schad, 142 Ariz. 619, 691 P.2d

710 (1984), is inapposite. In Schad, we held that the trial court had erred

by giving a felony murder instruction that listed several felonies without

defining their elements. Id. at 620, 691 P.2d at 711. We noted that

“[k]nowledge of the elements of the underlying felonies was vital for the

jurors to properly consider a felony murder theory.” Id. at 620–21, 691

P.2d at 711–12. The court here defined the elements of every charged

felony, including burglary.

¶84 We also reject Forde’s contention that the trial court erred by

failing to define “felony” for the jury. Forde relies on People v. Failla, 414

P.2d 39, 41 (Cal. 1966), in which a trial court instructed the jury that a

person commits burglary by entering an apartment with intent to commit

theft “or any felony” therein. The California Supreme Court reversed,

pointing out that evidence also suggested that the defendant intended to

commit one or more misdemeanors when he entered apartments, and the

court could not assume that the jury understood the “refined statutory

distinctions” between felonies and misdemeanors. Id. at 42. In contrast,

no evidence permitted an inference that Forde or an accomplice

unlawfully entered or remained at the victims’ home with the intent to

commit a misdemeanor. And the trial court here instructed the jury on

the elements of all felonies charged against Forde. See id. at 41 (agreeing

with decision of another court that no error occurred in failing to define

“felony” when court defined rape and murder, the only felonies with

which defendant was charged).

¶85 Forde finally argues that the failure to define “felony”

violated the merger doctrine by erroneously permitting the jury to convict

her of first degree murder if she or Bush entered the home with the intent

to assault or kill the victims. We have repeatedly rejected this argument,

see State v. Kuhs, 223 Ariz. 376, 382 ¶ 23 n.4, 224 P.3d 192, 198 n.4 (2010),

and Forde offers no reasons to reconsider these decisions.

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Opinion of the Court

2. Portillo Instruction

¶86 The trial court instructed the jury that the State bore the

burden of proving Forde’s guilt beyond a reasonable doubt, but it also

explained the burden in simpler terms:

If, based on your consideration of the evidence, you are

firmly convinced that the defendant is guilty of the crime

charged, you must find the defendant guilty. If, on the other

hand, you think there is a real possibility that the defendant

is not guilty, you must give her the benefit of the doubt and

find her not guilty.

Forde contends that the phrases “firmly convinced” and “real possibility”

in the instructions unconstitutionally permitted the jury to apply a lower

standard of proof than “beyond a reasonable doubt.” We approved these

instructions in State v. Portillo, 182 Ariz. 592, 596, 898 P.2d 970, 974 (1995),

and have repeatedly rejected challenges to them, see, e.g., State v. Dann

(Dann III), 220 Ariz. 351, 366 ¶ 65, 207 P.3d 604, 618 (2009).

III. AGGRAVATION PHASE

A. Enmund/Tison Findings

¶87 A defendant convicted of felony murder is eligible for the

death penalty only if the state proves he “himself kill[s], attempt[s] to kill,

or intend[s] that a killing take place or that lethal force will be employed,”

Enmund v. Florida, 458 U.S. 782, 797 (1982), or is a major participant in a

felony and acts “with reckless indifference to human life,” Tison v. Arizona,

481 U.S. 137, 158 (1987). In separate verdict forms concerning each

murder, the jury found that Forde “intended that the killing take place,”

and that she “was a major participant in the robbery or burglary and was

recklessly indifferent regarding a person’s life.” Forde raises several

challenges to the jury’s verdicts, which we address in turn.

1. Consideration with Aggravating Circumstances

¶88 Consistent with A.R.S. § 13-752(P), the jury made its

Enmund/Tison findings in the aggravation phase. Forde argues that Eighth

Amendment narrowing and proportionality principles required the jury

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Opinion of the Court

to make the Enmund/Tison findings before it considered aggravating

circumstances. She asserts that bifurcation or a guiding instruction was

required here because nothing prevented the jury from either (1) deciding

that the crimes were aggravated and then using that decision to find

Forde death-eligible under Enmund/Tison, or (2) using the Enmund/Tison

finding or evidence supporting it as a non-statutory aggravator. Because

Forde did not raise this issue at trial, we review for fundamental error.

¶89 No statute or case requires a jury to make the Enmund/Tison

findings before deciding the existence of aggravating circumstances. See

A.R.S. § 13-752(C), (P) (requiring jury to address both issues in

aggravation phase); Cabana v. Bullock, 474 U.S. 376, 386 (1986), abrogated on

other grounds by Pope v. Illinois, 481 U.S. 497 (1987) (“At what precise point

in its criminal process a State chooses to make the Enmund determination

is of little concern from the standpoint of the Constitution.”). Moreover,

simultaneous consideration of the Enmund/Tison and aggravating

circumstances issues did not invite impermissible findings. The

aggravation phase consisted solely of argument by counsel and

instruction by the court; no evidence was presented. Thus, no risk existed

that the jury would hear new evidence applicable only to one issue to

decide the other. And nothing reflects that the jury was confused about

having to make independent Enmund/Tison and aggravation inquiries.

The court instructed the jury that Forde would be eligible for the death

penalty only if the State proved both that Forde met the Enmund/Tison

threshold and that at least one aggravating circumstance existed. The

court also provided separate verdict forms for the Enmund/Tison findings

and the existence of aggravating circumstances.

2. Jury Instruction

a. Requested Narrowing Instruction

¶90 Forde argues that the trial court violated Eighth Amendment

proportionality and narrowing principles by refusing to instruct the jury

as follows: “Every felony that occurs as part of a felony murder brings

with it danger and risk of serious injury or death to potential victims of

the listed felony. To find ‘reckless indifference’ to human life, something

more is required.” We review for an abuse of discretion. State v. Bolton,

182 Ariz. 290, 309, 896 P.2d 830, 849 (1995).

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Opinion of the Court

¶91 Although a party is entitled to an instruction on all theories

reasonably supported by the evidence, “when a jury is properly instructed

on the applicable law, the trial court is not required to provide additional

instructions that do nothing more than reiterate or enlarge the instructions

in defendant’s language.” Id. Here, the court instructed that “something

more” than commission of a felony is required to constitute “reckless

indifference” by telling the jury that “a finding of reckless indifference

cannot be based solely upon a finding that the defendant . . . merely

participated in a crime resulting in a homicide.” Because Forde’s

proposed instruction did nothing more than reiterate the given

instruction, the trial court did not abuse its discretion by not giving the

instruction.

b. Confusion About Threshold

¶92 Forde next argues that because the Enmund/Tison instruction

began with the phrase, “[b]efore determining whether the defendant

should be sentenced to life imprisonment or death, you must determine

whether the State has proved, beyond a reasonable doubt, [the

Enmund/Tison threshold],” the court improperly told the jury it could

impose a death sentence even if that threshold was unmet. Because Forde

did not object at trial, we review for fundamental error, which Forde has

not shown here. In another instruction, the court explicitly told the jury

that if the State did not prove that Forde met the Enmund/Tison threshold,

the court would impose a life sentence. Thus, any confusion stemming

from the introductory language in the Enmund/Tison instruction was

eliminated. See Dann III, 220 Ariz. at 363 ¶ 51, 207 P.3d at 617.

c. Use of the Finding

¶93 Forde also contends that the trial court committed

fundamental error by failing to instruct the jury that an Enmund/Tison

finding cannot serve as an aggravating circumstance. The court instructed

the jury that the State had alleged four statutory aggravators, none of

which duplicated or overlapped with an Enmund/Tison finding. The

verdict form likewise listed only the statutory aggravators. The trial court

did not err by failing to explicitly instruct the jury that an Enmund/Tison

finding cannot constitute an aggravating circumstance. See Dann III, 220

Ariz. at 363 ¶ 51, 207 P.3d at 617.

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Opinion of the Court

d. Culpable Mental State

¶94 Forde argues that the trial court’s instruction on “reckless

indifference” erroneously communicated objective standards that

eliminated the State’s burden to prove she acted with a subjective mental

state. Because Forde did not object to the instruction, we review for

fundamental error.

¶95 The court instructed the jury as follows:

A defendant acts with reckless indifference to human life

when that defendant knowingly engages in criminal

activities known to carry a grave risk of death to another

human being. The risk must be of such nature and degree

that the conscious disregard of such risk constitutes a gross

deviation from the standard of conduct that a reasonable

person would observe in the situation.

¶96 This instruction required proof of a subjective mental state in

its direction to the jurors to find that this defendant knowingly engaged in

criminal activities carrying a grave risk of death to another person. The

court’s use of objective language to describe the type of “criminal

activities” and “risk” underlying reckless indifference did not eliminate

the State’s burden to prove Forde’s subjective mental state. Indeed, the

instruction is based on language from Tison and the statutory definition of

“recklessly.” 481 U.S. at 157–58 (“[T]he reckless disregard for human life

implicit in knowingly engaging in criminal activities known to carry a

grave risk of death represents a highly culpable mental state, a mental

state that may be taken into account in making a capital sentencing

judgment . . . .”); A.R.S. § 13-105(10)(c) (using objective language to

describe a disregarded “risk”). The trial court did not commit error.

3. Sufficiency of the Evidence

¶97 Forde argues that the evidence was insufficient to support

the jury’s Enmund/Tison findings. “Substantial evidence exists when there

is such proof that reasonable persons could accept as adequate and

sufficient to support a conclusion of defendant’s guilt beyond a reasonable

doubt.” Garcia, 224 Ariz. at 15 ¶ 54, 226 P.3d at 384 (citation and internal

quotation marks omitted).

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¶98 The evidence amply supports the jury’s findings that Forde

was a major participant in the burglary or robbery. She planned to rob the

Arivaca house, scouted the house the day of the shootings, took the lead

in entering the house, directed other participants, and took jewelry from

Gina’s bedroom. Forde notes that no physical evidence links her to the

scene, and she challenges the reliability of Gina’s identification and

Oakstar’s testimony about her participation in events. But the jury was

free to credit that testimony and weigh all the other evidence. See State v.

Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996). Because Forde

actively planned and executed the burglary and robbery, which

culminated in the murders, she was a major participant in these predicate

crimes. See State v. Bearup, 221 Ariz. 163, 170–71 ¶¶ 34–35, 211 P.3d 684,

691–92 (2009) (concluding that a defendant who held a knife and encircled

victim with others was a major participant in kidnapping that ended with

victim’s murder).

¶99 The record also reveals substantial evidence that Forde acted

with reckless indifference to human life. Tison, 481 U.S. at 157–58. She

planned the home invasion with Gaxiola and Oakstar knowing they

wanted to kill Flores because they believed that he competed with their

drug operation. She led a late-night home invasion with armed men,

including Gaxiola, and barged into the victims’ home, threatening

violence. Even if Forde intended only to rob the victims, doing so by

invading their home at night with armed men — at least one of whom was

motivated to kill Flores — demonstrated Forde’s awareness that her

criminal activities carried a grave risk of death to others. See id.; cf. State v.

Robinson, 165 Ariz. 51, 62, 796 P.2d 853, 864 (1990) (holding that

defendant’s presence when victims were tied during home robbery,

terrorized with firearms, and then shot was sufficient to demonstrate

reckless indifference even though defendant did not actually kill).

¶100 Additionally, after Bush killed Flores and shot Gina, Forde

did nothing to stop Bush from shooting Brisenia. Instead, Forde left the

child with armed men and went to search the bedroom. And after re-

entering the house and discovering that Gina was still alive, Forde

shouted for someone to “finish [her] off.” These circumstances further

support the jury’s finding that Forde acted with reckless indifference to

human life.

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Opinion of the Court

¶101 In sum, substantial evidence supports the jury’s finding that

Forde was a major participant in the burglary or robbery and acted with

reckless indifference for the murder victims’ lives. Because this finding

meets the Enmund/Tison threshold, we need not address whether

substantial evidence supports the jury’s additional finding that Forde

intended that the killings take place.

B. Denial of Motion for Mistrial

¶102 Forde asserts that, in closing argument, the prosecutor

committed misconduct by suggesting that she was “armed to the teeth”

during the invasion. The prosecutor made the following statements:

And then as she gets closer in time and recruits these folks

and gets Mr. Bush down there and they go to the house

armed with AK-47’s and a .45 caliber handgun, you go into

somebody’s house under this false pretense at 1:00 in the

morning, armed to the teeth, I would submit to you that that

shows a reckless indifference to human life[;] not only is she

a major participant in the organization of this but she is

demonstrating by her actions, how she’s armed, telling

people what to do, barking orders, in the middle of the night

in someone else’s home armed with these weapons, she has

demonstrated a reckless indifference to human life.

At the conclusion of the prosecutor’s argument, Forde moved for a

mistrial. The trial court denied the motion, stating Forde would “have an

opportunity to address those things to the jury.”

¶103 We review a trial court’s decision to deny a motion for

mistrial based on prosecutorial misconduct for an abuse of discretion.

State v. Newell, 212 Ariz. 389, 402 ¶ 61, 132 P.3d 833, 846 (2006). We will

reverse if (1) the prosecutor’s statements constituted misconduct, and (2) a

reasonable likelihood exists that those statements could have affected the

jury’s verdict. See State v. Gallardo, 225 Ariz. 560, 568 ¶ 34, 242 P.3d 159,

167 (2010).

¶104 The prosecutor improperly stated that Forde was armed

during the home invasion; no evidence supported this assertion. See State

v. Woods, 141 Ariz. 446, 455, 687 P.2d 1201, 1210 (1984). But these

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Opinion of the Court

statements did not so infect the proceedings with unfairness as to deny

Forde due process. Forde addressed the prosecutor’s “armed to the teeth”

argument during her closing argument and reminded the jury that no

evidence showed she had been armed; the prosecutor did not dispute this

characterization during his rebuttal closing argument. Finally, the trial

court lessened the impact of the prosecutor’s misstatement by instructing

the jury that the lawyers’ arguments were not evidence. See Payne, 674

Ariz. Adv. Rep. 5 ¶ 109. The trial court did not abuse its discretion in

denying Forde’s motion for mistrial based on prosecutorial misconduct.

C. Constitutionality of the (F)(2) Aggravator

¶105 A defendant’s prior conviction for a “serious offense”

constitutes an aggravating circumstance under A.R.S. § 13-751(F)(2). In

2003, the legislature amended a prior version of § 13-751(F)(2) to explicitly

provide that a serious offense committed contemporaneously with the

murder satisfies this statutory aggravating circumstance. See State v.

Rutledge, 206 Ariz. 172, 176 ¶ 17 n.3, 76 P.3d 443, 447 n.3 (2003). Forde

argues that the (F)(2) aggravator violates the Eighth Amendment by

failing to genuinely narrow the class of death-eligible defendants because

several offenses fall within the definition of “serious offenses” and the

aggravator applies to convictions for offenses committed

contemporaneously with the murder. See A.R.S. § 13-751(J) (enumerating

“serious offenses”). We review the constitutionality of statutory

aggravating circumstances de novo. State v. Hargrave, 225 Ariz. 1, 13 ¶ 42,

234 P.3d 569, 581 (2010).

¶106 The Eighth Amendment requires a death penalty sentencing

scheme to “genuinely narrow the class of persons eligible for the death

penalty and must reasonably justify the imposition of a more severe

sentence on the defendant compared to others found guilty of murder.”

Zant v. Stephens, 462 U.S. 862, 877 (1983). Aggravating circumstances

serve this narrowing function by channeling and limiting the sentencer’s

discretion, thereby minimizing “the risk of wholly arbitrary and

capricious action.” State v. Nelson, 229 Ariz. 180, 186 ¶ 26, 273 P.3d 632,

638 (2012) (citation and internal quotation marks omitted). To be valid, an

aggravator must neither apply to every convicted murderer nor be

unconstitutionally vague. Id.

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¶107 The (F)(2) aggravator does not violate the Eighth

Amendment. Section 13-751(J) lists twelve offenses that constitute

“serious offenses” along with “[a]ny dangerous crime against children,”

which applies to twenty-one additional offenses. A.R.S. § 13-705(P)(1).

Consequently, the aggravator appropriately channels and limits the

sentencer’s discretion by explicitly identifying which offenses qualify as

“serious offenses.” See Lewis v. Jeffers, 497 U.S. 764, 774 (1990) (approving

“clear and objective standards that provide specific and detailed

guidance”) (citation and internal quotation marks omitted).

¶108 Forde’s reliance on Rutledge is misplaced. There, we

approved a trial court’s ruling that the pre-2003 version of the (F)(2)

aggravator did not apply to offenses committed contemporaneously with

the murder for a number of reasons, including that a contrary

interpretation “would broaden the class of death eligible defendants,

contrary to the legislative intent to narrow that class of persons.” Rutledge,

206 Ariz. at 176 ¶ 17, 76 P.3d at 447. Contrary to Forde’s implicit

assertion, however, neither the trial court nor this Court in Rutledge

decided that permitting use of convictions for contemporaneously

committed offenses would be unconstitutionally overbroad.

D. Constitutionality of the (F)(9) Aggravator

¶109 The (F)(9) aggravator applies when “[t]he defendant was an

adult at the time the offense was committed or was tried as an adult and

the murdered person was under fifteen years of age . . . .” A.R.S. § 13-

751(F)(9). Forde argues that the aggravator as applied here violates Eighth

Amendment narrowing principles by focusing only on Brisenia’s age

rather than whether Forde targeted Brisenia due to her age.

¶110 We have previously held that the (F)(9) aggravator

sufficiently narrows the class of offenders eligible for the death penalty,

and nothing here compels us to reach a different result. See Nelson, 229

Ariz. at 186–87 ¶¶ 26–27, 273 P.3d at 638–39. Regardless whether Forde

targeted Brisenia because of her age, by acting as a major participant in

the home invasion and manifesting reckless indifference to a young

child’s life, Forde demonstrated she falls within a narrow class of

offenders who pose a heightened danger to society. See State v. Smith, 193

Ariz. 452, 462 ¶ 48, 974 P.2d 431, 441 (1999) (“[T]he age of the victim is

relevant to an inquiry into the defendant’s characteristics and

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propensities. Those who prey on the very young or the very old are more

dangerous to society.”).

E. Oral Jury Instruction

¶111 When instructing the jury, the trial court mistakenly said

that if the jury finds that an aggravating circumstance exists but decides

life imprisonment is appropriate, the court would “sentence the defendant

to either life imprisonment with the possibility of release or life

imprisonment with the possibility of release after 35 years.” (Emphasis

added.) Forde argues that the trial court’s mistake violated her due

process and Eighth Amendment rights. Because Forde did not object at

trial, we review for fundamental error.

¶112 The court did not commit fundamental error by saying

“with” instead of “without” when reading the instructions. As the judge

recited the instructions, the jury read a written copy, which correctly

stated that a life sentence would be either without the possibility of release

or with the possibility of release after thirty-five years. Also, the court

correctly told the jury twice during the same recitation of instructions that

Forde’s possible sentences were death or life imprisonment either without

the possibility of release or with the possibility of release after thirty-five

years. Consequently, and because the contested oral instruction was

redundant, the court’s mistake was apparent. Moreover, if the jurors were

confused by the oral instruction, they could have referred to the written

instructions, which they possessed during deliberations. Finally, the

verdict form used in the penalty phase stated that a life sentence would be

“with or without the possibility of release.” The trial court’s misreading

of the jury instructions did not cause fundamental, prejudicial error. Cf.

People v. Mills, 48 Cal. 4th 158, 200 (2010) (“The risk of a discrepancy

between the orally delivered and the written instructions exists in every

trial, and verdicts are not undermined by the mere fact that the trial court

misspoke.”).

IV. PENALTY PHASE

A. Victim Impact Statement

¶113 At the outset of the penalty phase, Gina gave a victim impact

statement in which she noted, “It’s hard for me to understand how this all

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happened. I have so many questions that will remain unanswered. I just

want to know why the defendant chose to exchange my husband and my

daughter’s life and almost my life for some such metal and inexpensive

jewelry.” Forde contends that this statement was an impermissible

comment on the exercise of her Fifth Amendment privilege not to testify.

Because she did not object at trial or move for a mistrial, we review for

fundamental error.

¶114 There was no error, fundamental or otherwise. The

statements expressed Gina’s inability to comprehend the senselessness of

the murders rather than a comment on Forde’s exercise of her Fifth

Amendment privilege.

B. Rebuttal Mitigation Evidence

¶115 In the months immediately preceding the trial, Forde filed a

notice of twenty mitigating factors, including “[h]istory of non-violence”

and “[n]o felony record,” and disclosed expert reports. Two expert

reports reflected that Forde had been sexually assaulted and shot in

separate incidents months before the murders. The State disclosed its

intention to rebut this mitigation with evidence suggesting she had

engaged in other violent criminal activities and had fabricated claims that

she had been sexually assaulted and shot.

¶116 The week before the originally scheduled trial date, Forde

moved to preclude the State’s rebuttal evidence as irrelevant and unduly

prejudicial or, alternatively, to continue the trial to permit investigation.

The trial court refused to preclude any evidence at that time, reasoning

that it must await the presentation of mitigation to determine the

admissibility of the rebuttal mitigation evidence. The court denied the

motion to continue without further comment. Forde later withdrew the

“[h]istory of non-violence” and “[n]o felony record” mitigating factors,

and the State did not present any evidence that Forde had sought to

preclude. We review the court’s rulings for an abuse of discretion. Dixon,

226 Ariz. at 555 ¶ 53, 250 P.3d at 1184 (motion to continue); McGill, 213

Ariz. at 156 ¶ 40, 140 P.3d at 939 (evidentiary rulings).

¶117 Forde argues that the trial court violated her rights to due

process and individualized consideration in sentencing by failing to

preclude the State’s rebuttal evidence as irrelevant, unreliable, and highly

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Opinion of the Court

prejudicial. As a result, Forde asserts, she suffered prejudice by

withdrawing the two mitigating factors rather than risking admission of

the State’s rebuttal evidence.

¶118 The trial court did not abuse its discretion. Admissibility of

the rebuttal evidence turned on whether it was relevant to the existence of

mitigation sufficiently substantial to call for leniency, A.R.S. § 13-752(G),

and, if so, whether the evidence was unfairly prejudicial. State v. Hampton,

213 Ariz. 167, 180 ¶ 51, 140 P.3d 950, 963 (2006). The court acknowledged

these limitations, stating that admissible rebuttal evidence must be reliable

and relevant to the specific thrust of Forde’s mitigation evidence. Because

the record in the motion proceedings was not sufficient for the court to

make these assessments, the court acted within its discretion by denying

the motion as premature.

¶119 Similarly, the court did not err by refusing to continue the

trial because extraordinary circumstances did not exist to justify a

continuance at that late date, and Forde has not demonstrated prejudice.

See Ariz. R. Crim. P. 8.5(b); VanWinkle, 230 Ariz. at 390 ¶ 7, 285 P.3d at 311.

Forde created the tight time frame she complains about by obtaining

extensions of time to disclose her mitigation evidence, knowing the State

would be forced to disclose its rebuttal evidence shortly before trial. See

State v. Maxwell, 103 Ariz. 478, 480–81, 445 P.2d 837, 839–40 (1968) (citing

lack of diligence of a party as one justification for denying motion to

continue trial). Additionally, Forde fails to explain why she lacked time to

adequately investigate. She possessed police reports concerning two of

the criminal incidents for almost two years, and her investigator had

already contacted out-of-state authorities and reviewed police reports

about the remaining incidents. The State had disclosed all rebuttal

mitigation evidence and listed six rebuttal witnesses. Forde had an

additional five weeks to interview these witnesses and otherwise

investigate before commencement of the penalty phase. The trial court

did not commit error.

C. Jury Instructions

¶120 Forde challenges the jury instructions on several bases,

asserting that many instructions were constitutionally flawed and that the

court erred by failing to give other instructions. Because Forde neither

objected to the given instructions nor asked the court to give the

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Opinion of the Court

additional instructions, we review for fundamental error. See Bearup, 221

Ariz. at 168 ¶¶ 20–21, 211 P.3d at 689.

1. Causal Nexus

¶121 The court instructed the jury that it was “not required to find

that there is a connection between a mitigating circumstance and the

crime committed in order to consider the mitigation evidence.” Forde

argues that by instructing the jury it was “not required” to find a

connection, the court incorrectly implied it was permissible to require a

connection before considering the evidence.

¶122 The trial court did not err. The court correctly told the jury

that “mitigating circumstances may be found from any evidence,” it

“should consider all of the evidence,” and it could consider in mitigation

“anything related to the defendant’s character, propensity, history or

record, or circumstances of the offense.” See Eddings v. Oklahoma, 455 U.S.

104, 110, 114 (1982) (holding that a trial court must not preclude the jury

from considering any aspect of the defendant’s character or circumstances

as a mitigating factor). The court also said that each juror “must decide

individually whether any mitigating circumstance exists.” Nothing in the

contested instruction suggested that the jury should refuse to consider

mitigation evidence if it was unrelated to the crimes.

2. Discretionary Consideration of Mitigating Evidence

¶123 The trial court instructed the jury that “[t]he circumstances

proposed as mitigation by the defendant for your consideration in this

case are: [seventeen listed factors].” Forde argues that using the words

“proposed as” erroneously made consideration of her evidence

discretionary, particularly as other instructions told the jury that it “shall

consider” certain statutory mitigating factors. We disagree. The

instruction appropriately described Forde’s proposed mitigation and did

not purport to make consideration of that evidence discretionary.

Regardless, any confusion was remedied by the court’s explicit instruction

that the jury should “consider all the evidence.”

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3. Weighing Mitigation

¶124 Forde contends that the trial court erroneously told the jury

that in determining the appropriate sentence, it “must decide how

compelling or persuasive the totality of the mitigating factors is when

compared against the totality of the aggravating factors and the facts and

circumstances of the case.” She argues that asking the jury to make this

comparison inappropriately dissuaded it from considering any

circumstances of the offense as mitigation, such as the fact that she did not

fire a gun. Because Forde raises this issue for the first time on appeal, we

review for fundamental error, which does not exist. The court also

instructed the jury that it was permitted to “consider anything related to

the . . . circumstances of the offense.” Nothing prevented the jury from

considering any circumstances of the offense as mitigation.

4. Victim Impact Statement

¶125 The trial court instructed the jury it could consider Gina’s

victim impact statement “to the extent that it rebuts mitigation.” Forde

asserts that the instruction was erroneous because Gina’s statement did

not rebut any mitigation evidence, and the instruction therefore permitted

the jury to consider the statement as an improper non-statutory

aggravator. Because Forde did not object to this instruction, we review for

fundamental error.

¶126 Victim impact evidence “rebuts” mitigation by informing

the sentencer about the specific harm caused by the defendant. Cf. Payne

v. Tennessee, 501 U.S. 808, 825 (1991) (holding that victim impact evidence

properly “remind[s] the sentencer that just as the murderer should be

considered as an individual, so too the victim is an individual whose

death represents a unique loss to society and in particular to his family”)

(citation and internal quotation marks omitted). The victim is not limited

to addressing mitigation topics presented by the defendant, as Forde

suggests. See State v. Prince, 226 Ariz. 516, 535 ¶ 68, 250 P.3d 1145, 1164

(2011) (rejecting argument that victim impact evidence is irrelevant in the

penalty phase because it focuses on the victim rather than the defendant).

Additionally, no risk existed here that the jury would consider Gina’s

statement as a non-statutory aggravator because the court explicitly

instructed the jury that it could not consider the statement as a new

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Opinion of the Court

aggravating circumstance. The trial court did not commit error by giving

the instruction.

5. Sympathy

¶127 The trial court instructed the jury that it was “not to be

swayed by mere sympathy not related to the evidence presented during

the penalty phase.” This Court previously approved use of this

instruction. See Kuhs, 223 Ariz. at 387 ¶ 55, 224 P.3d at 203. But Forde

raises a new challenge, arguing that the instruction incorrectly limited the

jury’s consideration of mitigation to evidence presented during the

penalty phase. The instruction appropriately directed the jury “‘to ignore

only the sort of sympathy that would be totally divorced from the

evidence.’” State v. Carreon, 210 Ariz. 54, 70 ¶ 84, 107 P.3d 900, 916 (2005)

(quoting California v. Brown, 479 U.S. 538, 542 (1987)). Elsewhere, the court

explicitly and repeatedly instructed that the jury should consider all

mitigating evidence, regardless of the phase of trial during which it was

presented.

¶128 Forde also contends that the instruction improperly told the

jury it could be swayed by sympathy for Gina and her family, thereby

inviting the jury to rely on an improper, non-statutory aggravator. But the

instruction did not mention any victim, and the court told the jury it could

not consider Gina’s statement to be an aggravating circumstance. For

these reasons, we reject Forde’s arguments.

6. Life Sentence

¶129 Forde argues that the trial court shifted the burden to her to

prove she was entitled to a life sentence, thereby creating a presumption

of death, by failing to tell the jury it could return a life sentence even if it

found that the aggravators were “of greater quality or value than the

mitigation” but that the mitigation was “sufficiently substantial” to justify

a life sentence. Section 13-751(E), A.R.S., requires the jury to impose a

death sentence if it finds the existence of at least one statutory aggravator

“and then determines that there are no mitigating circumstances

sufficiently substantial to call for leniency.” The court’s instruction

tracked this language. Additionally, the court said that even if Forde

presented no mitigation evidence or jurors individually concluded that

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Opinion of the Court

the aggravating and mitigating circumstances had equal strength, they

could vote for a life sentence. The court properly instructed the jury.

7. Ability to Distinguish Right from Wrong

¶130 Forde’s two mental health experts testified about her

intelligence, brain functioning, and mental health. Without objection,

jurors asked whether Forde, or someone similarly situated, could tell the

difference between right and wrong or know that killing another human

being is wrong. Both experts answered that someone like Forde could

distinguish right from wrong, and one added that Forde knows that some

behaviors are wrong.

¶131 Forde asserts that the jurors’ questions demonstrated a risk

that at least some jurors would refuse to consider the mental health

mitigation evidence unless it established an inability to distinguish right

from wrong. Therefore, Forde argues, the trial court erred by failing to

sua sponte instruct the jury that her ability to distinguish right from

wrong was irrelevant.

¶132 The court did not commit error. In assessing the strength of

Forde’s mental health evidence, the jurors were entitled to consider

whether her condition impaired her ability to perceive the wrongfulness

of her behavior. See State v. Smith, 215 Ariz. 221, 235 ¶ 67, 159 P.3d 531,

545 (2007) (deciding that weight of defendant’s mental health evidence

was diminished by evidence the defendant “likely knew what he was

doing and that it was wrong”). Moreover, Forde had the opportunity to

make closing arguments to the jury on this point and did so.

D. Verdict Forms

¶133 The verdict forms for each murder recited that the jury

unanimously found that Forde should be sentenced to either life or death

and provided a line on which to indicate the chosen option. Forde argues

that the trial court erred by not providing a “not-unanimous” option on

the verdict forms to guide jurors in making individual sentencing

decisions. Because Forde did not object to the verdict forms, we review

for fundamental error, and find none. The jury instructions stated that

each juror must make an “individual assessment” about the appropriate

sentence and cautioned jurors “not [to] surrender [their] honest

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Opinion of the Court

convictions as to the weight or effect of the evidence solely because of the

opinion of the other jurors, or for the mere purpose of returning a

verdict.” Because the court appropriately instructed the jury that each

juror must individually agree on a sentence to return a verdict, it was not

necessary to provide a “not-unanimous” option on the verdict forms.

¶134 Forde also argues that the trial court erred by failing to sua

sponte provide a special verdict form asking jurors to indicate which

mitigating circumstances they found proven by a preponderance of the

evidence. But because jurors “do not have to agree unanimously that a

mitigating circumstance has been proven to exist,” and “[e]ach juror may

consider any mitigating circumstance found by that juror in determining

the appropriate penalty,” A.R.S. § 13-751(C), provision of a special verdict

form would have been inappropriate. See State v. Roseberry, 210 Ariz. 360,

373 ¶ 74 n.12, 111 P.3d 402, 415 n.12 (2005) (“There cannot be a special

verdict on mitigation because the jurors need not agree that a mitigating

factor has been proven to exist.”).

V. SENTENCING

A. Disproportionate Sentence

¶135 Forde argues that her death sentences violate the Eighth

Amendment because they are disproportionate to the life sentences later

imposed on Gaxiola after his separate trial. Although sentencing disparity

evidence was not before the jury because Gaxiola had not yet been

sentenced when Forde’s penalty phase occurred, Forde contends that we

should either consider the disparity a mitigating circumstance and reduce

her sentences to life imprisonment or remand for a new sentencing

proceeding. We decline to do so.

¶136 This Court is required to determine whether the trier-of-fact

abused its discretion in imposing a death sentence. A.R.S. § 13-756(A).

Although an unexplained sentencing disparity between a defendant and

an accomplice may be a mitigating circumstance, State v. Carlson, 202 Ariz.

570, 586 ¶ 65, 48 P.3d 1180, 1196 (2002), we cannot say the jury abused its

discretion by failing to give weight to the disparity here because one did

not yet exist.

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B. Sentencing on Non-Capital Counts

1. Propriety of Consecutive Sentences

¶137 Forde’s prison sentence for attempted first degree murder of

Gina (count four) runs consecutively to concurrent prison terms imposed

for two counts of aggravated assault of Gina (counts five and six). Her

sentences for armed robbery (count seven) and aggravated robbery (count

eight) also run consecutively to each other. Forde argues that these

sentences violate A.R.S. § 13-116, which prohibits consecutive sentences

for offenses arising from a single act. Because Forde did not object to the

trial court, we review for fundamental error. An illegal sentence

constitutes fundamental error. See State v. Smith, 219 Ariz. 132, 135–36 ¶¶

18–20, 194 P.3d 399, 402–03 (2008).

¶138 To determine whether Forde’s conduct underlying counts

four through six constitutes a single act under § 13-116, we apply the test

set out in State v. Gordon, 161 Ariz. 308, 315, 778 P.2d 1204, 1211 (1989).

Preliminarily, we isolate the elements of attempted murder, which we

treat as the “ultimate crime,” meaning “the [crime] that is at the essence of

the factual nexus and that will often be the most serious of the charges.”

See id. After doing so, we conclude that the remaining evidence supports

her aggravated assault convictions, making her eligible for consecutive

sentences notwithstanding § 13-116. See id. The attempted murder

conviction was established by evidence that at the conclusion of the home

invasion, Forde discovered Gina on the phone and shouted for someone

to “finish [her] off,” prompting Bush to re-enter the home and shoot at

Gina. See A.R.S. §§ 13-303, -1001(A)(1), -1105(A)(1). The aggravated

assault convictions were established by evidence that Bush shot Gina

twice and seriously injured her soon after he initially entered the home.

See A.R.S. §§ 13-303, -1203(A), -1204(A)(1) and (2).

¶139 Other considerations set forth in Gordon support imposition

of consecutive sentences. Because the attempted murder and aggravated

assaults occurred at different times during the home invasion and

involved separate acts, it was possible for Forde to commit the former

crime without committing the latter ones. Also, the aggravated assaults

caused Gina to suffer physical injuries that were not inherent in the

attempted murder. See Gordon, 161 Ariz. at 315, 778 P.2d at 1211 (holding

that a defendant more likely committed multiple acts if “the defendant’s

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Opinion of the Court

conduct in committing the lesser crime caused the victim to suffer an

additional risk of harm beyond that inherent in the ultimate crime”). For

all these reasons, Forde’s conduct underlying the attempted murder count

and the aggravated assault counts did not constitute a single act within

the meaning of § 13-116, and consequently, the trial court did not err by

imposing consecutive sentences.

¶140 We reach a different conclusion regarding the propriety of

consecutive sentences for robbery and aggravated robbery. The State

concedes that the trial court erred because these crimes were based on a

single act by Forde — taking Gina’s personal belongings. We agree and

therefore modify the sentences on counts seven and eight to run

concurrently. See Ariz. R. Crim. P. 31.17(b) (authorizing appellate court to

modify trial court action as necessary and appropriate).

2. Consideration of Mitigation Evidence

¶141 Although Forde argued for the existence of seventeen

mitigating circumstances, the trial court found that only her lack of prior

felony convictions and her parental responsibilities served as mitigation.

Forde argues that by failing to find the existence of other mitigating

circumstances, the court necessarily violated A.R.S. § 13-701(E), which

required it to consider mitigation evidence concerning Forde’s character

and background and the circumstances of the crime. But the court’s

failure to find other mitigating circumstances does not signal non-

compliance with § 13-701(E); it simply indicates that the court did not find

other evidence to be proved, or, if proved, the court did not find it

sufficient to call for reduced sentences. See State v. Gonzales, 181 Ariz. 502,

515, 892 P.2d 838, 851 (1995) (“Although the court must consider relevant

evidence offered in mitigation, it is not required to find that evidence to be

mitigating.”). Additionally, the court stated at the time of sentencing that

it had “read and considered the pre-sentence report, its recommendation

and all the evidence presented at trial.” The court did not commit error.

VI. ABUSE OF DISCRETION REVIEW

¶142 Because the murders occurred after August 1, 2002, we

review the propriety of Forde’s death sentences for an abuse of discretion.

A.R.S. § 13-756(A). The jury did not abuse its discretion if reasonable

evidence supports the aggravating circumstances found and the

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Opinion of the Court

appropriateness of the sentences. State v. Benson, 232 Ariz. 452, 467 ¶ 65,

307 P.3d 19, 34 (2013). The evidence sufficiently supports an aggravating

circumstance if reasonable persons could find its existence beyond a

reasonable doubt. Id. “We must uphold a jury’s decision that death is

appropriate if any ‘reasonable juror could conclude that the mitigation

presented was not sufficiently substantial to call for leniency.’” Id.

(citation omitted).

A. Constitutionality of A.R.S. § 13-756(A)

¶143 Forde argues that the abuse-of-discretion review required by

A.R.S § 13-756(A) violates her rights to due process and to be free from

cruel and unusual punishment by failing to provide for meaningful

independent review. We have repeatedly rejected this argument. See, e.g.,

Benson, 232 Ariz. at 467 ¶ 67, 307 P.3d at 34.

¶144 Forde also asserts that the legislature improperly encroached

on this Court’s rulemaking authority by prescribing a standard for

reviewing death penalty sentences. She urges us to independently review

her sentence as we did with death sentences imposed for murders

committed before the effective date of § 13-756(A).

¶145 The Arizona Constitution vests this Court with the power to

make procedural court rules. Ariz. Const. art. 6, § 5(5) (“The Supreme

Court shall have: . . . [p]ower to make rules relative to all procedural

matters in any court.”). Additionally, the constitution prohibits one

branch from exercising another branch’s powers. Id. art. 3. But statutes

that supplement our rules are valid. Seisinger v. Siebel, 220 Ariz. 85, 89 ¶ 8,

203 P.3d 483, 487 (2009). “[I]t is more accurate to say that the legislature

and this Court both have rulemaking power, but that in the event of

irreconcilable conflict between a procedural statute and a rule, the rule

prevails.” Id.

¶146 A standard of appellate review is a matter of procedural,

rather than substantive, law as it provides a method for obtaining redress

for the invasion of rights and does not create, define, or regulate rights.

See id. at 92–93 ¶ 29, 203 P.3d at 490–91; see also Pima Cnty. v. Pima Cnty.

Law Enforcement Merit Sys. Council, 211 Ariz. 224, 228 ¶ 16, 119 P.3d 1027,

1031 (2005) (characterizing the standard of review as a procedural matter).

But because neither our rules of criminal appellate procedure nor our

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Opinion of the Court

cases independently fixes a standard of review, § 13-756(A) supplements

rather than conflicts with our procedures.

B. Aggravating Circumstances

¶147 The jury unanimously found the following aggravating

circumstances for both murders beyond a reasonable doubt: (1) Forde

was previously convicted of another serious offense, A.R.S. § 13-751(F)(2);

(2) she committed the murders in expectation of pecuniary gain, § 13-

751(F)(5); and (3) she committed multiple homicides, § 13-751(F)(8). The

jury also found the § 13-751(F)(9) age-of-the-victim aggravator proven

beyond a reasonable doubt as to Brisenia’s murder.

1. A.R.S. § 13-751(F)(2)

¶148 Although Forde challenges the constitutionality of the (F)(2)

aggravator, see supra ¶¶ 105–08, she does not contest that sufficient

evidence supports its application. Forde’s convictions for first degree

burglary, aggravated assault, and robbery established this aggravating

circumstance. See A.R.S. §§ 13-751(J)(4), (8), (9). The jury did not abuse its

discretion by finding the (F)(2) aggravator proven beyond a reasonable

doubt.

2. A.R.S. § 13-751(F)(5)

¶149 Forde argues that insufficient evidence shows that she

“committed the offense as consideration for the receipt, or in expectation

of the receipt, of anything of pecuniary value.” A.R.S. § 13-751(F)(5). We

will uphold the jury’s finding if it is supported by substantial evidence.

State v. Roque, 213 Ariz. 193, 218 ¶ 93, 141 P.3d 368, 393 (2006).

¶150 The (F)(5) aggravator does not automatically apply to felony

murder convictions predicated on robbery or burglary. Lynch, 225 Ariz. at

40 ¶ 70, 234 P.3d at 608. Rather, the state must prove that pecuniary gain

was a “motive, cause, or impetus for the murder and not merely the

result.” State v. Canez, 202 Ariz. 133, 159 ¶ 91, 42 P.3d 564, 590 (2002)

(citation and internal quotation marks omitted); see also Lynch, 225 Ariz. at

40 ¶ 70, 234 P.3d at 608.

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Opinion of the Court

¶151 Substantial evidence shows that Forde’s desire for pecuniary

gain was a motive for the murders. She planned and participated in the

robbery to fund her minuteman operation. She involved people she knew

wanted to kill Flores to facilitate the robbery and burglary. Forde’s lack of

surprise that Bush shot Flores and Gina, Forde’s later call to “finish off”

Gina, and her text message to Gaxiola after the murders emphasizing

“competition gone” demonstrate, at a minimum, she was willing to

facilitate the murders to accomplish the robbery. The jury did not abuse

its discretion by finding the (F)(5) aggravator.

3. A.R.S. § 13-751(F)(8)

¶152 The (F)(8) aggravator exists if “[t]he defendant has been

convicted of one or more other homicides . . . that were committed during

the commission of the offense.” To prove this aggravator, the state must

show that the homicides were “temporally, spatially, and motivationally

related, taking place during one continuous course of criminal conduct.”

State v. Prasertphong, 206 Ariz. 167, 170 ¶ 15, 76 P.3d 438, 441 (2003)

(citation and internal quotation marks omitted). Forde does not contest

that the murders were temporally and spatially related. She argues,

however, that insufficient evidence shows she shared Bush’s motivation to

kill Brisenia, and the jury therefore necessarily and incorrectly imputed

Bush’s motives to her.

¶153 As explained in paragraph 151, Forde was motivated by

pecuniary gain to facilitate the murders to fund her minuteman group.

Substantial evidence showed that Bush shared this motive. Bush served

as Forde’s subordinate, participated in the home invasion, and hid with

Forde at Gaxiola’s house. In contrast, nothing suggests Bush had any

involvement with the drug trade or Arivaca, desired to remove Flores

from competing in the drug trade, or even knew Flores or his family

before the murders. Forde’s relationship with Bush supports a conclusion

that they shared the same motive. The jury did not abuse its discretion by

finding the (F)(8) aggravator.

4. A.R.S. § 13-751(F)(9)

¶154 Although Forde challenges the constitutionality of the (F)(9)

aggravator as applied to her, see supra ¶¶ 109–10, she does not contest, and

sufficient evidence shows, that Forde was an adult at the time of the

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Opinion of the Court

murders, and Brisenia was under the age of fifteen. See A.R.S. § 13-

751(F)(9). Consequently, the jury did not abuse its discretion by finding

the existence of this aggravator.

C. Propriety of Death Sentences

¶155 A death sentence is appropriate if the jury does not find

“mitigating circumstances sufficiently substantial to call for leniency.”

A.R.S. § 13-751(E). Forde argues that the following mitigation evidence

called for leniency: (1) she was a relatively minor participant in the

murders, see A.R.S. § 13-751(G)(3); (2) Gaxiola and Oakstar manipulated

her involvement in the murders, which she did not foresee; (3) she

suffered a very troubled childhood marked by sexual and physical abuse,

abandonment, and teenage prostitution; and (4) she suffers from

neuropsychological impairments, which stemmed from her traumatic

childhood and a stroke suffered in 1996. 6 In effect, she disagrees with the

jury’s factual findings and assessment of the mitigation.

¶156 The jury’s Enmund/Tison findings show that Forde did not

prove the initial two categories of mitigation. See A.R.S. § 13-751(C)

(providing that the defendant bears the burden of proving mitigators by a

preponderance of the evidence). Forde presented evidence that she had a

very troubled childhood and suffers neuropsychological impairments.

But even if jurors found those matters proven, they did not abuse their

discretion in finding this mitigation insufficient to call for leniency.

¶157 A reasonable juror could have concluded that the mitigation

evidence was not sufficiently substantial to call for leniency. Because the

jury properly found the existence of more than one aggravating

circumstance for each murder, the jury did not abuse its discretion in

finding that death sentences were appropriate.

6 Forde proposed the following additional mitigating circumstances

to the jury: (1) polysubstance abuse; (2) family support; (3) public service

promoting women’s issues; (4) volunteer work; (5) compassion for

victims; (6) disparity of treatment; (7) mercy; and (8) “morally reasoned

response.”

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D. Other Constitutional Claims

¶158 Forde lists seventeen other constitutional claims that she

acknowledges this Court has previously rejected but that she seeks to

preserve for federal review. We decline to revisit these claims.

CONCLUSION

¶159 We affirm Forde’s convictions and sentences, but order that

her sentences for armed robbery (count seven) and aggravated robbery

(count eight) run concurrently.

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