State of Arizona v. Johnathan Ian Burns

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

THE STATE OF ARIZONA,

Appellee,

v.

JOHNATHAN IAN BURNS,

Appellant.

No. CR-11-0060-AP

Filed March 10, 2015

Appeal from the Superior Court in Maricopa County

The Honorable Karen L. O’Connor, Judge

No. CR2007-106833

AFFIRMED

COUNSEL:

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

General, Jeffrey A. Zick, Chief Counsel, Jeffrey L. Sparks (argued), Assistant

Attorney General, Capital Litigation Section, Phoenix, for State of Arizona

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

Ian Burns

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

JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES

BERCH and TIMMER joined.

JUSTICE BRUTINEL, opinion of the Court:

STATE V. BURNS

Opinion of the Court

¶1 This automatic appeal arises from Johnathan Ian Burns’

conviction and death sentence for the murder of Jackie H. We have

jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and

A.R.S. § 13-4031.

I. FACTUAL BACKGROUND1

¶2 On January 27, 2007, Jackie and Burns met at a gas station and

went out on a date. Later that evening, Jackie called her sister Randi. Jackie

sounded “a little off” and “nervous” and asked Randi to meet her at the gas

station as quickly as possible. Randi promptly went to the gas station and

waited for Jackie. Two hours later, Jackie called Randi and said she was

lost. Jackie sounded confused and could not describe where she was. Burns

eventually took the phone and told Randi he was lost, but said he and Jackie

would arrive within fifteen minutes. Randi waited for several hours, but

Jackie never arrived. Later that day, Randi told her parents that Jackie was

missing.

¶3 The next day, a maintenance worker found, in an apartment

complex dumpster, Jackie’s purse and the blouse, bra, panties, and sandals

she was wearing the previous evening. The blouse and bra were torn, and

the blouse was stained with Jackie’s blood and had two bullet holes from a

close-range firearm discharge. Semen on the panties matched Burns’ DNA.

¶4 Police arrested Burns and searched his home and vehicles. In

the trunk of Burns’ Honda Civic, police found a pair of men’s jeans stained

with Jackie’s blood. In Burns’ truck, which he was driving the night Jackie

disappeared, officers discovered Jackie’s blood and an earring she had

worn. Inside Burns’ home, police found a case for a Springfield 9mm

handgun, but no gun. Mandi Smith, Burns’ fiancée at the time, had

purchased the gun for Burns, who was a prohibited possessor (Smith later

pleaded guilty to misconduct involving a weapon based on her purchase of

the gun).

¶5 Almost three weeks later, Jackie’s body was discovered in the

Sycamore Creek area. Jackie had suffered two fatal gunshot wounds to her

head and several skull fractures from blunt force impacts on her left temple,

1 The facts are presented in the light most favorable to sustaining the

verdict. State v. Garza, 216 Ariz. 56, 61 n.1, 163 P.3d 1006, 1011 n.1 (2007).

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Opinion of the Court

on top of her head, and under her right eye. She also had vaginal bruising

likely caused by blunt force. Sperm on an anal swab taken from Jackie’s

body matched Burns’ DNA. The medical examiner determined that wild

animals had severed Jackie’s head postmortem. Burns’ cellphone records

indicated that he drove to the Sycamore Creek area the night Jackie

disappeared and stayed there for several hours.

¶6 Shortly before his arrest, Burns had disposed of the

Springfield 9mm handgun Mandi had purchased for him. Police later

located the handgun. A ballistics expert determined that it had fired a

bullet found in the sand beneath where Jackie’s head had been.

¶7 The State charged Burns with sexual assault, kidnapping,

first-degree murder, and misconduct involving weapons; a jury found

Burns guilty on all counts.

¶8 During the aggravation phase of the trial, the jury found two

aggravating circumstances: (1) Burns had a prior or contemporaneous

felony conviction under A.R.S. § 13-751(F)(2); and (2) the murder was

especially cruel, heinous, or depraved under A.R.S. § 13-751(F)(6). After the

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

death. In addition to imposing the death sentence for the murder, the trial

court sentenced Burns to consecutive prison terms totaling sixty-eight years

for the other three convictions.

II. ISSUES ON APPEAL

¶9 Burns raises twenty-six issues on appeal. For the reasons

stated below, we affirm his convictions and sentences.

Continuance

¶10 Burns contends the trial court abused its discretion by

denying his motions to continue the guilt and penalty phases of his trial.

We will not find that a trial court abused its discretion in denying a

continuance unless the defendant shows prejudice. State v. Barreras, 181

Ariz. 516, 520, 892 P.2d 852, 856 (1995); see also State v. Lamar, 205 Ariz. 431,

437 ¶ 32, 72 P.3d 831, 837 (2003). Burns argues he was prejudiced because

(1) he could not produce the results of a functional MRI exam; (2) Dr. Wu,

Burns’ neuropsychiatrist, could not analyze Burns’ PET scan; (3) Dr.

Cunningham, Burns’ expert on developmental psychology and prison

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violence, could not present Burns’ risk assessment for violence in prison;

and (4) Burns could not rebut the testimony of Dr. Kirkley, the State’s

psychological expert.

¶11 At Burns’ request, the superior court continued the guilt

phase of the trial three times, adding more than a year to counsel’s

preparation time. One of these continuances was due to Burns’ refusal to

cooperate with counsel’s efforts to prepare mitigation evidence, while the

other two were granted because Burns’ counsel needed additional time to

prepare. Burns moved to continue the guilt phase three more times, but the

trial court denied those motions. After the jury found Burns guilty, Burns

asked for a month-long recess, which the court also denied.

¶12 Continuances “shall be granted only upon a showing that

extraordinary circumstances exist and that delay is indispensable to the

interests of justice.” Ariz. R. Crim. P. 8.5(b). In considering such a request,

a trial court must “consider the rights of the defendant and any victim to a

speedy disposition of the case.” Id.

¶13 Although denying counsel adequate time to prepare a case for

trial may deny the defendant a substantial right, State v. Narten, 99 Ariz.

116, 120, 407 P.2d 81, 83 (1965), time constraints by themselves do not create

prejudice. See State v. Salinas, 129 Ariz. 364, 367, 631 P.2d 519, 522 (1981). In

determining whether a defendant’s rights were violated, this Court looks

to the totality of the circumstances. See Barreras, 181 Ariz. at 520, 892 P.2d

at 856.

¶14 Because Burns has failed to show prejudice, we cannot

conclude that the trial court abused its discretion. The court gave defense

counsel more than another year to prepare, and Burns’ trial did not begin

for three-and-a-half years after indictment. Further, all of the evidence

Burns claims he was unable to present pertains to the mitigation stage of

the trial, which did not commence until four years after indictment. Despite

the trial court’s refusal to grant additional continuances, Burns was able to

present twelve days’ worth of mitigation that included much of the

information he alleges he could not offer because of time constraints.

¶15 For example, Dr. Wu testified at length about Burns’ low

frontal-lobe activity and showed Burns’ PET scans to the jury. The court

precluded only a few portions of Dr. Wu’s testimony relating to the analysis

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Dr. Wu failed to disclose during a pre-trial interview that took place after

his report was complete and that was disclosed mere days before he

testified. Similarly, Dr. Cunningham’s rebuttal testimony was not timely

disclosed and was therefore precluded, but was also irrelevant for the

purpose offered.2

¶16 Additionally, Burns fails to explain how a functional MRI

scan would have aided his mitigation.3 Because Burns has not provided

any basis for this argument, he has failed to demonstrate prejudice.4 State

v. VanWinkle, 230 Ariz. 387, 391 ¶¶ 10–13, 285 P.3d 308, 312 (2012).

Similarly, Burns was able to meaningfully rebut Dr. Kirkley’s testimony

through his own experts, and thus was not prejudiced.

¶17 Notably, Jackie’s family repeatedly voiced frustration at the

delays in the trial. Under Rule 8.5(b), the trial court must consider the

victims’ right to a timely resolution of the charges and did not err by

proceeding with the trial after three-and-a-half years. Ariz. R. Crim. P.

8.5(b); State v. Dixon, 226 Ariz. 545, 555 ¶ 56, 250 P.3d 1174, 1184 (2011).

¶18 The trial court did not abuse its discretion in denying the

continuance motions.

Limitation of Defense Counsel’s Voir Dire

¶19 Burns contends the trial court erred in preventing defense

counsel from asking prospective jurors if they would consider a life

sentence for a defendant convicted of sexual assault and kidnapping in

addition to murder. “We review a trial court’s ruling on voir dire for an

2 The preclusion of Dr. Wu’s and Dr. Cunningham’s testimony is fully

discussed in our analysis of a different issue in Section P, infra.

3 We found only one reference to the functional MRI in the more than

10,000-page record. Defense counsel indicated only that, due to time

constraints, a functional MRI could not be completed.

4 Burns argues that, because it is unknown what the functional MRI

would have shown, he was prejudiced because he lost his chance to show

the jury whatever the MRI might have shown. But to demonstrate

prejudice, a defendant must do more than merely speculate that relevant

mitigation may have been uncovered with more time. See State v.

VanWinkle, 230 Ariz. 387, 392 ¶ 12, 285 P.3d 308, 312 (2012).

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Opinion of the Court

abuse of discretion.” State v. Patterson, 230 Ariz. 270, 273 ¶ 5, 283 P.3d 1, 4

(2012).

¶20 In capital cases, a trial court must permit a defendant to ask

potential jurors whether they would automatically vote for the death

penalty. Morgan v. Illinois, 504 U.S. 719, 729–33 (1992). But we have rejected

the argument that Morgan entitles a defendant to ask prospective jurors

whether they will vote for death based on specific aggravating factors. State

v. (Joe C.) Smith, 215 Ariz. 221, 231 ¶ 42, 159 P.3d 531, 541 (2007).

¶21 The trial court’s rulings complied with Morgan. Burns was

permitted to ask prospective jurors in both the juror questionnaires and

during voir dire whether they would automatically vote for the death

penalty. But he was not entitled to ask whether they would impose the

death penalty based on the specific facts of his case. Under Smith, the trial

court properly stopped this line of questioning and did not abuse its

discretion. 215 Ariz. at 231 ¶ 42, 159 P.3d at 541.

Jurors Struck for Cause

¶22 Burns argues the trial court unconstitutionally struck three

jurors―68, 186, and 198―for cause because of their views on the death

penalty. We review a trial court’s rulings on strikes for cause for an abuse

of discretion, giving deference to the judge who was able to observe the

potential jurors. State v. Glassel, 211 Ariz. 33, 47 ¶ 46, 116 P.3d 1193, 1207

(2005).

¶23 A court may not strike a juror merely because he or she

“voiced general objections to the death penalty or expressed conscientious

or religious scruples against its infliction.” State v. Prince (Prince II), 226

Ariz. 516, 528 ¶ 27, 250 P.3d 1145, 1157 (2011) (internal quotation marks

omitted). But a judge “may strike a juror whose views about capital

punishment would prevent or substantially impair the performance of his

duties as a juror in accordance with his instructions and his oath.” Id.

(internal quotation marks omitted). A trial judge must consider the entirety

of a prospective juror’s demeanor and behavior; if a juror’s promise to

uphold the law is coupled with ambiguous statements and uncertainty, the

trial judge may strike the juror for cause. State v. Lynch, 225 Ariz. 27, 35 ¶

28, 234 P.3d 595, 603 (2010); State v. Roque, 213 Ariz. 193, 204–05 ¶¶ 18–20,

141 P.3d 368, 379–80 (2006). A potential juror need not object to the death

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Opinion of the Court

penalty in every possible case to warrant a dismissal for cause. Prince II,

226 Ariz. at 528 ¶ 29, 250 P.3d at 1157.

1. Juror 68

¶24 During voir dire, Juror 68 said she had “mixed feelings” about

the death penalty because she felt “that life sentencing is bad enough.” She

also indicated that her religious beliefs would interfere with her ability to

impose the death penalty. Nonetheless, during defense counsel’s

questioning, Juror 68 said she could vote to impose the death penalty in the

proper case. The trial judge struck Juror 68 for cause.

¶25 The trial court did not abuse its discretion by striking Juror

68. There was an adequate basis for the trial judge to determine that Juror

68’s performance could be substantially impaired by her feelings about

capital punishment.

2. Juror 186

¶26 During voir dire, Juror 186 said that the death penalty should

be reserved for people with a violent criminal history “like serial killers”

and that he could not impose the death penalty unless a defendant had a

violent criminal past.

¶27 The trial court did not abuse its discretion by striking Juror

186. A juror does not have to object to the death penalty in every

conceivable case to be excluded for cause. Id. The trial court had an

adequate basis for determining that Juror 186’s feelings about capital

punishment would have substantially impaired his ability to serve fairly

and impartially.

3. Juror 198

¶28 Juror 198’s juror questionnaire revealed that she feared dying,

could not vote for a death sentence, and could not look at “photos of death.”

When the State asked if her fear of dying might interfere with her ability to

impose the death penalty, Juror 198 replied, “I don’t know. It depends how

I felt after I’ve seen all of the evidence.” The court struck Juror 198 for cause.

Based on Juror 198’s inability to say whether she could follow the law

notwithstanding her fear of death, the trial court did not abuse its discretion

in striking her.

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STATE V. BURNS

Opinion of the Court

Failure to Sever Charges

¶29 Burns argues the trial court erred in denying his motion to

sever the charges. We review for an abuse of discretion, and reverse only

if the defendant can show “compelling prejudice against which the trial

court was unable to protect.” State v. Murray, 184 Ariz. 9, 25, 906 P.2d 542,

558 (1995) (quoting State v. Cruz, 137 Ariz. 541, 544, 672 P.2d 470, 473 (1983)).

¶30 The State charged Burns with sexual assault, kidnapping,

misconduct involving weapons, and first-degree murder under both

premeditated- and felony-murder theories. Before trial, Burns moved to

sever all charges and proceed to trial only on the premeditated-murder

charge. After an evidentiary hearing, the trial court denied the motion,

finding the charges sufficiently intertwined and related to consolidate them

for trial.

¶31 The state may join charges that are of the same or similar

character, are based on the same conduct, or are alleged as part of a

common scheme or plan. Ariz. R. Crim. P. 13.3(a). But a trial court must

grant a motion to sever charges if “necessary to promote a fair

determination of the guilt or innocence of any defendant of any

offense . . . .” Ariz. R. Crim. P. 13.4(a).

¶32 Joinder is permitted if separate crimes arise from a series of

connected acts and are provable by overlapping evidence. State v. Prince

(Prince I), 204 Ariz. 156, 160 ¶ 17, 61 P.3d 450, 454 (2003); see also State v.

Prion, 203 Ariz. 157, 162 ¶ 32, 52 P.3d 189, 194 (2002). A common scheme or

plan, under Rule 13.3(a)(3), is a “particular plan of which the charged crime

is a part.” State v. Hausner, 230 Ariz. 60, 74 ¶ 45, 280 P.3d 604, 618 (2012)

(quoting State v. Ives, 187 Ariz. 102, 109, 927 P.2d 762, 769 (1996)).

¶33 The sexual assault, kidnapping, and murder were properly

joined as part of a “common scheme or plan” under Rule 13.3(a). The State

alleged that Burns kidnapped Jackie intending to sexually assault her,

sexually assaulted her, and then murdered her to prevent discovery of the

kidnapping and sexual assault. Much of the same evidence that proved the

murder also proved the sexual assault and kidnapping. The court did not

abuse its discretion in consolidating these charges.

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STATE V. BURNS

Opinion of the Court

¶34 We are troubled, however, by the failure to sever the

misconduct-involving-weapons charge. The State prosecuted Burns for

that charge under A.R.S. § 13-3102(A)(4), alleging that he possessed a

firearm the night of the murder and was a prohibited possessor because he

had two prior felony convictions for burglary. See A.R.S. § 13-3101(A)(7)(b).

To prove the misconduct-involving-weapons charge, the State had to

introduce evidence of Burns’ prior felony convictions. The State notified

Burns that, unless he was willing to stipulate to his prohibited-possessor

status, it would introduce evidence of these prior felonies. Burns declined

to stipulate, and the State introduced this evidence through a sanitized

affidavit from the superior court clerk and testimony from Mandi Smith.

¶35 But for joinder of the misconduct-involving-weapons charge,

the evidence of Burns’ prior felony convictions would not have been

admissible during the guilt phase. Burns did not testify at trial, and any

attempt to introduce the convictions would have been impermissible

character evidence. See Ariz. R. Evid. 404(b). Simply put, trying the

misconduct charge with the other charges permitted the jury to hear, during

the guilt phase of the trial, that Burns was a convicted felon.

¶36 We conclude that denial of the motion to sever was an abuse

of discretion. Although Burns’ possession of the murder weapon was cross-

admissible for the murder and the weapons charge, his prior conviction was

not and its admission created a serious risk of prejudice. See United States

v. Nguyen, 88 F.3d 812, 815 (9th Cir. 1996) (noting uniform agreement

among the federal circuit courts that introduction of prior convictions

creates a dangerous potential for misuse of that information by the jury).

There was no connection between Burns’ illegal possession of the murder

weapon and the murder, kidnapping, or sexual assault. That he had a gun

was relevant: that it was illegal was not.

¶37 Although the trial court instructed the jury that it must

consider each offense separately, we are not persuaded that the instruction

alone is sufficient in this context. Such an instruction requires the jury to

ignore prior felony convictions in a capital criminal prosecution. We agree

with the D.C. Circuit that this asks jurors “to act with a measure of

dispassion and exactitude well beyond moral capacities.” United States v.

Daniels, 770 F.2d 1111, 1118 (D.C. Cir. 1985). Because Burns’ prior felony

conviction was prejudicial and irrelevant to the other charges, severance

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STATE V. BURNS

Opinion of the Court

“was necessary to promote a fair determination” of Burns’ guilt or

innocence under Arizona Rule of Criminal Procedure 13.4(a).

¶38 Nevertheless, on this record we find that the trial court’s error

was harmless. See State v. Henderson, 210 Ariz. 561, 567 ¶ 18, 115 P.3d 601,

607 (2005) (“Harmless error review places the burden on the state to prove

beyond a reasonable doubt that the error did not contribute to or affect the

verdict or sentence.”). Evidence of Burns’ guilt was overwhelming: He was

the last person seen with Jackie, her blood was found in his truck and on a

pair of jeans in the trunk of his Honda, his cellphone records indicated he

was in the area where Jackie’s body was found, his DNA matched sperm

found in Jackie’s body, and he possessed and disposed of the murder

weapon. Moreover, the State did not emphasize Burns’ conviction during

closing argument, mentioning it only in the context of the weapons charge.

There is nothing to indicate that the jury considered his prior convictions in

contravention of the guilt-phase jury instructions, and this evidence was

properly introduced in the penalty phase. Thus, we are satisfied that the

failure to sever the misconduct charge did not affect the jury’s verdicts or

sentences.

¶39 We take this opportunity, however, to emphasize that trial

courts should prevent this situation. Evidence of prior felony convictions

has a potential to create prejudice, which is precisely the reason previous

criminal convictions are generally inadmissible under Rule 404(b). Absent

an appropriate factual nexus, trial courts generally should not join a

misconduct-involving-weapons charge, or any charge that requires

evidence of a prior felony conviction, unless the parties have stipulated to

a defendant’s status as a prohibited possessor. Alternatively, the court

could conduct a bifurcated trial to adjudicate any charge that requires

evidence of a prior felony conviction. Likewise, the State should avoid the

risk of reversal by refraining from joining charges that require proof of a

defendant’s prior convictions. But, for the reasons stated above, we do not

find prejudice on this record.

Duplicitous Charges

¶40 Burns next contends that, because the felony-murder

indictment alleged both kidnapping and sexual assault as predicate

felonies, it was duplicitous. Burns argues that this deprived him of a

unanimous verdict regarding the felony-murder charge. We disagree.

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Opinion of the Court

¶41 “An indictment is duplicitous if it charges more than one

crime in the same count.” State v. Anderson, 210 Ariz. 327, 335 ¶ 13, 111 P.3d

369, 377 (2005). Duplicitous indictments are prohibited in part because they

present the chance for non-unanimous jury verdicts. Id. But, we have held

that if substantial evidence supports each alleged predicate offense, a

felony-murder conviction should be upheld since a defendant is not

entitled to a unanimous verdict on precisely how the murder was

committed. State v. Hardy, 230 Ariz. 281, 288 ¶¶ 29–30, 283 P.3d 12, 19

(2012).

¶42 Burns was convicted of sexual assault and kidnapping, both

of which are predicates for felony murder. See A.R.S. § 13-1105(A)(2).

Substantial evidence supported his convictions on both charges. Burns was

not entitled to a unanimous jury finding that the murder furthered a

particular felony, only a unanimous agreement that the murder furthered a

predicate felony. See Hardy, 230 Ariz. at 288 ¶¶ 29–30, 283 P.3d at 19.

Moreover, this point is moot because the jury unanimously found Burns

guilty of premeditated murder in addition to felony murder. See Anderson,

210 Ariz. at 343 ¶ 59, 111 P.3d at 385 (reasoning that when a jury returns

guilty verdicts for both felony and premeditated murder, a first-degree

murder conviction would stand even absent a felony-murder predicate).

First-Date Testimony

¶43 Burns contends the trial court erred by allowing the State to

elicit, and use in its opening statement and closing argument, testimony

that Jackie had never dated anyone before and was on her “first date.”

Burns argues this testimony violated Arizona’s Rape Shield Law, A.R.S. §

13-1421, by impermissibly commenting on Jackie’s chastity. This type of

evidence, however, is not prohibited by § 13-1421, which states:

A. Evidence relating to a victim’s reputation for chastity

and opinion evidence relating to a victim’s chastity are

not admissible in any prosecution for any offense in this

chapter. Evidence of specific instances of the victim’s

prior sexual conduct may be admitted only if a judge

finds the evidence is relevant and is material to a fact in

issue in the case and that the inflammatory or prejudicial

nature of the evidence does not outweigh the probative

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value of the evidence, and if the evidence is one of the

following:

1. Evidence of the victim’s past sexual conduct with

the defendant.

2. Evidence of specific instances of sexual activity

showing the source or origin of semen, pregnancy,

disease or trauma.

3. Evidence that supports a claim that the victim has

a motive in accusing the defendant of the crime.

4. Evidence offered for the purpose of impeachment

when the prosecutor puts the victim’s prior sexual

conduct in issue.

5. Evidence of false allegations of sexual misconduct

made by the victim against others.

¶44 We recognize the potential for misuse of a victim’s reputation

for chastity in a murder trial. See Michelle J. Anderson, From Chastity

Requirement to Sexuality License: Sexual Consent and a New Rape Shield Law, 70

Geo. Wash. L. Rev. 51, 104–07 (2002) (detailing studies of juror bias based

on perceived promiscuity or virginity of rape victims). But evidence of how

many “dates” someone has had does not necessarily reflect on that person’s

chastity. See Richardson v. State, 581 S.E.2d 528, 640–41 (Ga. 2003) (“Evidence

merely that the victim has or had a romantic relationship with another man

does not reflect on her character for sexual behavior.”); Banks v. State, 366

S.E.2d 228, 230 (Ga. Ct. App. 1988) (holding evidence that victim was “going

steady” did not open the door to evidence of sexual experience); State v.

Miller, 870 S.W.2d 242, 245 (Mo. Ct. App. 1994) (refusing to endorse the

“cynical notion” that dating is synonymous with sexual activity). While

one could infer that a victim who has never gone on a date before is more

likely to be a virgin than someone who has, we do not believe that the

relationship between the use of the term “first date” in this case and sexual

conduct is so close that it falls into the ambit of § 13-1421.

¶45 Burns also argues that this testimony warranted a mistrial

under Arizona Rule of Evidence 403. Because Burns failed to object on this

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Opinion of the Court

ground at trial, we review only for fundamental error. Henderson, 210 Ariz.

at 567 ¶ 19, 115 P.3d at 607. “Fundamental error is error going to the

foundation of the case . . . of such magnitude that defendant could not

possibly have received a fair trial.” State v. Rutledge, 205 Ariz. 7, 13 ¶ 32, 66

P.3d 50, 56 (2003) (quoting State v. Hughes, 193 Ariz. 72, 86 ¶ 62, 969 P.2d

1184, 1198 (1998)). We find no error here. Evidence that Jackie’s date with

Burns was her first date helped to place her actions in context and thus was

probative. And because Burns has not shown that the evidence posed a

danger of unfair prejudice under Rule 403, he cannot show error, much less

fundamental error.

Presence of GHB in the Victim’s Organs

¶46 Before trial, Burns moved to preclude any evidence regarding

the presence of gamma-hydroxybutyric acid (“GHB”) in Jackie’s liver

tissue. At a pretrial hearing, an expert for the State testified that GHB is

often used as a date-rape drug that causes confusion and unconsciousness,

but is also produced by the body in small amounts. The expert further

testified that the small amount of GHB found in Jackie’s liver tissue could

have been from natural causes, but it could also have shown that Jackie was

drugged with GHB before her death. The trial court found the evidence

relevant and that its probative value outweighed any prejudice. The court

permitted the State to present essentially the same evidence at trial,

although it disallowed use of the term “date-rape drug.” Burns contends

that the trial court erred in allowing evidence of the GHB in Jackie’s liver

because its origin was unknown. We review the trial court’s ruling for an

abuse of discretion. State v. Dann, 220 Ariz. 351, 365 ¶ 66, 207 P.3d 604, 618

(2009).

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

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

401(a). The State’s theory was that Burns killed Jackie to keep her from

telling the police that she was raped. On the night she was murdered, Jackie

sounded confused and disoriented when she spoke on the telephone to

Randi. Confusion and disorientation are side effects of ingested GHB.

Thus, the testimony that the GHB in Jackie’s liver tissue could have

naturally occurred or resulted from someone giving Jackie a dose of the

drug to subdue her was relevant to whether the sexual intercourse between

Burns and Jackie was consensual. That the GHB might have been naturally

present went to the weight of the evidence rather than its admissibility. See

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State v. Lacy, 187 Ariz. 340, 349, 929 P.2d 1288, 1297 (1996) (holding that a

lack of certainty regarding the source of admitted evidence goes to the

weight of the evidence, not to its admissibility). Thus, the trial court did

not abuse its discretion in admitting the GHB evidence.

¶48 Burns also argues the trial court abused its discretion by

instructing the jury that “without consent” means that “the victim is

incapable of consent by reason of mental disorder, mental defect, drugs,

alcohol, sleep, or any other similar impairment.” A party is entitled to any

jury instruction reasonably supported by the evidence. State v. Trostle, 191

Ariz. 4, 15, 951 P.2d 869, 880 (1997). That GHB was found in Jackie’s liver

tissue and she sounded confused the night of the murder indicate Jackie

might have been drugged with GHB. Because the jury instruction was

supported by the evidence, we find no error.

Mandi’s Testimony that She Feared Burns

¶49 During an interview with the State, Mandi said she feared

Burns, and he had previously threatened to kill her. The trial court initially

precluded evidence of any specific threats made by Burns. It did, however,

allow Mandi to testify on direct examination to her general feelings toward

Burns. Burns’ counsel spent much of his cross-examination attempting to

establish that Mandi, not Burns, had killed Jackie. Burns’ counsel also

attempted to impeach Mandi’s testimony that she feared Burns by eliciting

testimony that Mandi never told the police that she was afraid of Burns.

After cross-examination, the State asked the court to reconsider its previous

ruling that Mandi could not testify as to specific acts by Burns that caused

her to fear him, arguing that Burns had opened the door by implying that

Mandi’s testimony was recently fabricated. Over Burns’ objection, the court

allowed the State on redirect to question Mandi about specific threats Burns

allegedly made on her life and Mandi’s assertions that she planned to

remove all the guns from her house because she feared Burns.

¶50 Burns contends the trial court erred in permitting Mandi’s

testimony because it was irrelevant, unduly prejudicial, and was other-act

evidence prohibited under Rule 404(b).5 Burns also argues he should have

5 Burns also argues that Mandi’s testimony was not timely disclosed

and should have been precluded, but does not support this claim with any

argument or citation to the record. He has, therefore, waived this claim.

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been permitted to re-cross-examine Mandi on certain subjects. We review

for an abuse of discretion. Dann, 220 Ariz. at 365 ¶ 66, 207 P.3d at 618.

¶51 Mandi’s testimony that she feared Burns, that she planned to

remove all the guns from their shared home, and that Burns threatened to

kill her one week before Jackie’s murder are all relevant to rebut Burns’

contention that her testimony was a recent fabrication. See Ariz. R. Evid.

401(a)–(b). The probative value of this evidence was not substantially

outweighed by any prejudicial effect. See State v. Martinez, 230 Ariz. 208,

213 ¶ 21, 282 P.3d 409, 414 (2012) (noting that not all harmful evidence is

unfairly prejudicial, only that evidence which suggests a decision based on

an improper basis such as emotion, sympathy, or horror).

¶52 Burns’ Rule 404 argument also lacks merit. Under Arizona

Rule of Evidence 404(b), other wrongs or acts are not admissible to show

that a person acted in conformity with his or her character. They may,

however, be admissible for other purposes, such as rebutting an attempt to

impeach a witness. See State v. Williams, 183 Ariz. 368, 376, 904 P.2d 437,

445 (1995) (“Evidence which tests, sustains, or impeaches the credibility or

character of a witness is generally admissible, even if it refers to a

defendant’s prior bad acts.”) (internal quotation marks omitted). Rule

404(b) does not apply to Mandi’s testimony that she feared Burns or

planned to remove guns from their home, because that testimony involves

no other act by Burns. Mandi’s testimony that Burns threatened to kill her

before Jackie’s murder was inadmissible to show that Burns was more

likely to have killed Jackie, because it involved a specific threat made by

Burns. That evidence, however, was properly admitted to rebut Burns’

attempt to show that Mandi was not credible when she testified that she

feared Burns. Thus, Burns’ 404(b) argument fails.

¶53 Burns’ argument that he should have been permitted to re-

cross-examine Mandi is also without merit. Burns asserts that he should

have been allowed to question Mandi about a recorded phone conversation

in which Mandi told Burns’ co-worker that she was not afraid of Burns and

that Burns was never violent with women. A trial court may, in its

See State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989) (“[O]pening

briefs must present significant arguments, supported by authority, setting

forth an appellant’s position on the issues raised. Failure to argue a claim

usually constitutes abandonment and waiver of that claim.”).

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discretion, permit re-cross-examination on any new issue raised on re-

direct. State v. (Robert D.) Smith, 138 Ariz. 79, 81, 673 P.2d 17, 19 (1983).

Defense counsel, however, asked about this conversation on cross-

examination, and no new issue arose during re-direct examination that

would have warranted re-cross-examination. Thus, the trial court did not

abuse its discretion.

Jail Calls

¶54 Burns contends the trial court erred in admitting recordings

of sixteen “irrelevant and prejudicial” phone calls that he made while in jail.

We review the trial court’s admission of this evidence for an abuse of

discretion. Dann, 220 Ariz. at 372 ¶ 117, 207 P.3d at 625. In these calls, Burns

spoke with Mandi and asked about the search for Jackie’s body, whether

his brother had cleaned out Burns’ Honda, and whether Mandi would stay

with him “no matter what.” Over Burns’ objection, the trial court allowed

the recordings to be played to the jury and permitted testimony about the

content of the calls.

¶55 The phone calls are clearly relevant. The conversations all

tend to show that Burns was involved in Jackie’s disappearance. The

probative value of the statements is not substantially outweighed by any

danger of unfair prejudice. Martinez, 230 Ariz. at 213 ¶ 21, 282 P.3d at 414.

We find no abuse of discretion.

Testimony Regarding Knives in Burns’ Home

¶56 Burns contends the trial court erred in denying a mistrial after

it inappropriately admitted evidence that the police found numerous

“folding knives” inside Burns’ home. We review the admission of evidence

and the denial of a mistrial for an abuse of discretion. See State v. Villalobos,

225 Ariz. 74, 80 ¶ 18, 235 P.3d 227, 233 (2010); State v. Kuhs, 223 Ariz. 376,

380 ¶ 18, 224 P.3d 192, 196 (2010).

¶57 Before trial, Burns moved to exclude evidence of any weapons

found in his home besides the murder weapon, a 9mm handgun. The trial

court did not rule on the motion, but noted that the State had stipulated not

to introduce evidence of any other weapons. But at trial, when asked by

the State what was found in Burns’ home, a detective testified that several

folding knives were found. Burns moved for a mistrial. The prosecutor

avowed on the record that the State had intended that the detective testify

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about the 9mm handgun case and not the knives. The court denied the

mistrial motion.

¶58 “When unsolicited prejudicial testimony has been admitted,

the trial court must decide whether the remarks call attention to

information that the jurors would not be justified in considering for their

verdict, and whether the jurors in a particular case were influenced by the

remarks.” State v. Jones, 197 Ariz. 290, 304 ¶ 32, 4 P.3d 345, 359 (2000). In

this case, the detective briefly remarked that he had found knives, common

household items, in Burns’ home. These remarks would not have

influenced the jury’s verdict when viewed in context with the evidence that

was properly before the jury. The court, therefore, did not err by denying

Burns’ request for a mistrial.

Photographs of Jackie’s Body

¶59 Burns contends that the trial court erred when it admitted

photographs of Jackie’s body as it was discovered in the desert, as well as

images of Jackie’s skull. Before trial, Burns moved to preclude

photographic evidence of Jackie’s body. He contended that the photos and

descriptions of Jackie’s remains were not relevant, were unduly prejudicial,

and only served to inflame the jury because Jackie’s remains were in an

advanced state of decomposition and wild animals had severed her head.

The trial court denied Burns’ motion, as well as several objections to specific

photographs. The court found that the photographs had probative value,

including the photographs of Jackie’s skull, which helped explain the

testimony of a forensic anthropologist, Dr. Fulginiti, who based her

conclusions on an examination of the skull.

¶60 Trial courts have broad discretion in admitting photographs.

State v. Spreitz, 190 Ariz. 129, 141, 945 P.2d 1260, 1272 (1997).

¶61 In State v. Murray, we set forth a three-part test for

determining whether photographs of a murder victim are admissible:

whether the photograph is relevant, whether it has “the tendency to incite

passion or inflame the jury,” and its probative value versus its potential to

create unfair prejudice. 184 Ariz. 9, 28, 906 P.2d 542, 561 (1995). The trial

court here properly applied this test.

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¶62 First, the photographs are relevant. A photograph of the

deceased in any murder case is relevant to assist a jury in understanding an

issue because the fact and cause of death are always relevant in a murder

prosecution. Spreitz, 190 Ariz. at 142, 945 P.2d at 1273. The photographs

show where the body was found and how it was hidden, and they helped

the jury understand the expert testimony in the case. Although the

photographs are gruesome, and thus had some potential to inflame the jury,

their probative value outweighs any danger of unfair prejudice.

Ballistic Expert Testimony

¶63 Burns contends the trial court erred in admitting the

testimony of the State’s ballistics expert, Christian Gunsolley, who

identified Burns’ 9mm handgun as the murder weapon. Because Burns did

not object at trial, we review for fundamental error. State v. Valverde, 220

Ariz. 582, 585 ¶ 12, 208 P.3d 233, 236 (2009).

¶64 Burns contends that Daubert v. Merrell Dow Pharm., Inc., 509

U.S. 579 (1993), and amended Rule of Evidence 702 applied to his case and

that the trial court erred by not holding a Daubert hearing. But, because the

current version of Rule 702 is not a new constitutional rule, it does not apply

to trials that ended before the new rule became effective on January 1, 2012.

State v. Miller, 234 Ariz. 31, 41 ¶¶ 28–31, 316 P.3d 1219, 1228 (2013). Because

the guilt phase of Burns’ trial concluded on December 16, 2010, Daubert and

new Rule 702 did not apply to his case.

¶65 Burns argues that, even if Daubert does not apply, Gunsolley’s

testimony should still have been precluded under Frye. See Frye v. United

States, 293 F. 1013 (D.C. Cir. 1923). But, because Gunsolley’s testimony did

not rely on any novel theory or process, it was also not subject to Frye. See

Logerquist v. McVey, 196 Ariz. 470, 480 ¶ 31, 1 P.3d 113, 123 (2000) (holding

that Frye applies only to expert testimony based on “novel scientific

principles”). Thus, Burns has not established that the trial court erred in

admitting Gunsolley’s testimony, much less that it constituted fundamental

error.

Burns’ Hearsay Statement about Consensual Sex

¶66 Burns argues the trial court deprived him of his right to

present a complete defense by refusing to allow testimony about his

statements to police that he had consensual sex with Jackie. We disagree.

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¶67 After Jackie’s disappearance, Burns told police during an

interview that he and Jackie had consensual sex in his truck. At trial,

defense counsel asked the court to permit him to elicit testimony about this

statement. The trial court refused because Burns’ statements were hearsay.

¶68 Burns admits that his statements were hearsay but contends

that they should have been admitted under the residual hearsay exception,

which is now contained in Arizona Rule of Evidence 807. Rule 807 provides

that hearsay that does not fall into any other exception may be admitted if

(1) the statement has equivalent guarantees of trustworthiness, (2) it is

offered as evidence of a material fact, (3) it is more probative than any other

evidence that the proponent can obtain through reasonable efforts, and (4)

admitting it will best serve the purposes of the rules and the interests of

justice.

¶69 The residual hearsay exception “require[s] the out of court

statement to have equivalent circumstantial guarantees of

trustworthiness,” and absent such guarantees, self-serving hearsay is

inadmissible. (Robert D.) Smith, 138 Ariz. at 84, 673 P.2d at 22 (internal

quotation marks omitted). When deciding if a statement is trustworthy, we

consider “the spontaneity, consistency, knowledge, and motives of the

declarant . . . to speak truthfully,” among other things. State v. Allen, 157

Ariz. 165, 174, 755 P.2d 1153, 1162 (1988).

¶70 Burns’ statements did not have circumstantial guarantees of

trustworthiness. The statements were not spontaneous but were made in

response to police questioning two days after Jackie’s disappearance.

Further, Burns was not motivated to speak truthfully. He was at a police

station, speaking to police officers in an interview room about a murder

investigation, a condition that does not necessarily elicit trustworthy

answers. Cf. United States v. Morgan, 385 F.3d 196, 209 (2d Cir. 2004) (noting

statements in response to police questioning and addressed to law

enforcement officers lack equivalent guarantees of trustworthiness).

¶71 Burns also contends that his testimony was alternatively

admissible under Arizona Rule of Evidence 106, which states that “[i]f a

party introduces all or part of a writing or recorded statement, an adverse

party may require the introduction, at that time, of any other part—or any

other writing or recorded statement—that in fairness ought to be

considered at the same time.” But the State did not introduce any writings

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Opinion of the Court

or recorded statements about Burns and Jackie having non-consensual sex.

Burns’ statements were therefore not “necessary to qualify, explain or place

into context the portion already introduced . . . .” State v. Cruz, 218 Ariz.

149, 162 ¶ 58, 181 P.3d 196, 209 (2008) (citation and internal quotation marks

omitted). Thus, the trial court did not abuse its discretion by excluding the

statements.

Evidence Supporting Burns’ Convictions

¶72 Burns claims (1) there was insufficient evidence to support the

finding that he sexually assaulted Jackie; (2) there was insufficient evidence

to find that he kidnapped Jackie; (3) sexual assault and kidnapping cannot

serve as predicate offenses for felony murder; and (4) there was no evidence

of premeditation to support the first-degree murder conviction. We review

the facts in the light most favorable to sustaining the verdicts and resolve

inferences against the defendant. State v. Davolt, 207 Ariz. 191, 212 ¶ 87, 84

P.3d 456, 477 (2004). We determine de novo whether the evidence

introduced at trial is sufficient to support a conviction. State v. West, 226

Ariz. 559, 562 ¶ 15, 250 P.3d 1188, 1191 (2011). “Substantial evidence” to

support a conviction exists when “reasonable persons could accept [it] as

adequate and sufficient to support a conclusion of defendant’s guilt beyond

a reasonable doubt.” Id. at 562 ¶ 16, 250 P.3d at 1191.

1. Evidence that Burns used immediate force to coerce sexual

intercourse

¶73 The State presented sufficient evidence to support the jury’s

finding that Burns coerced sexual intercourse with Jackie: Jackie’s bra and

blouse were ripped, and her blood was found in Burns’ truck. Jackie

suffered facial and skull fractures, and her vagina was bruised. She had

GHB in her system and was confused and disoriented when she spoke to

Randi on the phone. This evidence was sufficient for a reasonable person

to conclude that Burns sexually assaulted Jackie.

2. Evidence of kidnapping

¶74 Sufficient evidence also existed to support the jury’s finding

that Burns kidnapped Jackie. Kidnapping occurs when a person knowingly

restrains another with the intent to inflict death, physical injury, or a sexual

offense on the victim. A.R.S. § 13-1304(A)(3). “Restrain” means “to restrict

a person’s movements without consent, without legal authority, and in a

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Opinion of the Court

manner which interferes substantially with such person’s liberty, by either

moving such person from one place to another or by confining such

person.” A.R.S. § 13-1301(2). A person may restrain another by “[p]hysical

force, intimidation or deception.” Id.

¶75 Having found sufficient evidence to support the jury’s

finding that Jackie was sexually assaulted, we look to see if she was

restrained against her will for the sexual assault to be accomplished. As

noted above, there was evidence that Jackie’s clothes were torn and that she

was drugged with GHB. Additionally, Burns was carrying a gun that could

have been used to confine Jackie in his truck. And Jackie never made it to

the gas station where she told Randi to meet her. Accordingly, the State

presented sufficient evidence to support Burns’ conviction for kidnapping.

3. Evidence of kidnapping or sexual assault as a predicate

offense for felony murder

¶76 Burns argues that Jackie’s murder could not have occurred in

furtherance of the sexual assault because the assault, if it occurred, was

completed at a time and place remote from Jackie’s murder.

¶77 For felony murder, the state must prove that the defendant

caused the victim’s death “in the course of and in furtherance of . . . or

immediate flight from” the underlying offense. A.R.S. § 13-1105(A)(2). “A

death is in furtherance of an underlying felony if the death resulted from

an action taken to facilitate accomplishment of the felony.” State v. Jones,

188 Ariz. 388, 397, 937 P.2d 310, 319 (1997).

¶78 There is sufficient evidence that Burns killed Jackie in

furtherance of or during immediate flight from the kidnapping or sexual

assault. The evidence that proves the kidnapping and sexual assault also

proves the predicate felonies. Even if several hours passed between the

attack and the murder, the evidence supports a finding that Burns never let

Jackie out of his presence before driving Jackie to the desert and shooting

her. The jury could have reasonably found that the murder was perpetrated

in order to prevent Jackie from reporting the sexual assault or kidnapping.

¶79 Burns’ argument that the kidnapping merged into the murder

is also without merit. He asserts there is no evidence that Jackie was ever

restrained until just before her death; thus, the intent to kill “merged” with

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the intent to restrain. But Jackie’s facial fractures, the GHB in her liver, and

her failure to arrive at the gas station where she told Randi to meet her all

suggest that Burns restrained Jackie in some manner in the hours

proceeding her death. Jackie’s body was found face down clutching a tree

branch and a bullet was found where her head would have been,

suggesting that she was ordered to lie down on her stomach and then shot.

We have held that even mere moments between restraint and murder

permits a finding that two offenses occurred. See State v. Herrera, 176 Ariz.

9, 16, 859 P.2d 119, 126 (1993) (holding kidnapping and murder were two

distinct acts and did not merge where victim was ordered to lie on the

grounds and then shot moments later).

¶80 Moreover, Burns was convicted of premeditated murder,

which cannot merge with kidnapping. Two crimes do not merge when

“[e]ach of the offenses . . . requires proof of a different element.” Blockburger

v. United States, 284 U.S. 299, 304 (1932); see also Parker v. United States, 692

A.2d 913, 916 (D.C. 1997). Premeditated murder obviously requires proof

that the defendant killed with premeditation, whereas kidnapping requires

restraining the victim. See A.R.S. §§ 13-1105(A)(1), -1304(A). Thus, even if

we accept Burns’ view of the evidence as true, the kidnapping did not

merge with the murder.

4. Evidence of premeditation

¶81 Finally, there was sufficient evidence to allow the jury to find

Burns guilty of premeditated murder. To establish premeditation, the state

must be able to “convince a jury beyond a reasonable doubt that the

defendant actually reflected” before the murder. State v. Thompson, 204

Ariz. 471, 479 ¶ 31, 65 P.3d 420, 428 (2003).

¶82 The State presented evidence that Burns brought a gun on a

“date.” He picked up Jackie, left Chandler, stopped for gas, and then drove

to a remote location in the desert where he shot and killed Jackie. Sometime

during the night, he sexually assaulted her. This provides sufficient

circumstantial evidence to demonstrate premeditation. See id. (noting that

the defendant’s acquiring of a weapon before the killing is evidence of

premeditation); State v. Grell, 205 Ariz. 57, 60 ¶ 21, 66 P.3d 1234, 1237 (2003)

(holding that “driving to a remote area,” among other facts, supported

finding of premeditation). Additionally, the fact that Burns positioned

Jackie on the ground before shooting her twice in the back of the head and

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then hid her body shows that Burns actually reflected on whether to kill

her.

Multiplicity and Double Jeopardy

¶83 Burns argues that using his sexual assault and kidnapping

convictions both as predicate felonies and to satisfy the (F)(2) aggravator

violates the Double Jeopardy Clause. Further, Burns argues the trial court

erred by not instructing the jury that his multiple felony convictions only

counted as one aggravator. Whether charges are multiplicitous is a matter

of law, which we review de novo. See State v. Boggs, 218 Ariz. 325, 334 ¶ 38,

185 P.3d 111, 120 (2008) (noting that we review legal issues de novo). We

also review de novo whether the trial court properly instructed the jury. See

Glassel, 211 Ariz. at 53 ¶ 74, 116 P.3d at 1213.

1. Multiplicitous charges

¶84 Burns argues that, because the State submitted both his sexual

assault and kidnapping convictions as (F)(2) aggravators, the (F)(2)

aggravator was multiplicitous and was improperly given additional

weight. He did not raise this argument below, so we review for

fundamental error. See Henderson, 210 Ariz. at 568 ¶ 22, 115 P.3d at 608.

¶85 The (F)(2) aggravating factor requires the trier of fact to

consider whether a defendant has been previously convicted of a serious

offense. A.R.S. § 13-751(F)(2). Convictions for serious offenses committed

at the same time as the homicide, or those consolidated for trial with the

homicide, are considered prior convictions. The state may use multiple

contemporaneous convictions to prove an (F)(2) aggravator. Martinez, 230

Ariz. at 213–214 ¶¶ 16–23, 282 P.3d at 414–15. Burns has not established

fundamental error on this point.

2. Double jeopardy

¶86 Burns also argues that it was improper for him to be convicted

of kidnapping and sexual assault, and then for those offenses to be used to

satisfy the serious offense requirement of A.R.S. § 13-751(J)(5) and (10), and

to establish the (F)(2) aggravator. He claims that using the convictions in

this manner resulted in multiple punishments, since he was sentenced to

prison for the same felonies that were used as felony murder predicates and

as capital aggravators.

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¶87 We need not address this claim. Burns’ double-jeopardy

claims relate only to his conviction for felony murder. But because the jury

also unanimously found Burns’ first-degree murder conviction supported

by a premeditated-murder theory, Burns’ first-degree murder charge

would stand regardless of whether the felony-murder conviction exists,

and the kidnapping and sexual assault charges were independent of the

premeditated murder. Anderson, 210 Ariz. at 343 ¶ 59, 111 P.3d at 385.

¶88 Burns’ claim also fails on its merits. We have held, as Burns

acknowledges, that an element of a crime may also be used as a capital

aggravator. Cruz, 218 Ariz. at 169 ¶ 130, 181 P.3d at 216 (citing State v. Lara,

171 Ariz. 282, 284–85, 830 P.2d 803, 805–06 (1992)). We decline to overrule

these cases.

3. Jury instruction on the (F)(2) aggravator

¶89 Burns argues the trial court failed to cure the errors

enumerated above by not informing the jury that his prior convictions

counted toward only one aggravating factor, the (F)(2) factor requiring

proof of conviction of a prior serious offense. It does not appear that Burns

requested this instruction below, and so we review for fundamental error.

Henderson, 210 Ariz. at 568 ¶ 22, 115 P.3d at 608.

¶90 A prior conviction may be used to establish more than one

aggravating factor, so long as the jury does not consider the conviction

more than once in assessing the aggravating and mitigating circumstances.

State v. Chappell, 225 Ariz. 229, 241 ¶ 48, 236 P.3d 1176, 1188 (2010). The trial

court did not instruct the jury during the penalty phase that it could only

consider the convictions once, although it did give this instruction in the

aggravation phase. However, the instruction was unnecessary. Burns’

prior convictions were only used to prove the (F)(2) aggravator. The state

may present more than one prior conviction to satisfy the (F)(2) factor.

Martinez, 230 Ariz. at 213–214 ¶¶ 16–23, 282 P.3d at 414–15. Moreover, the

jury was instructed that it could only consider the aggravating factors that

it found during the aggravation phase. Thus, Burns has not established

fundamental error on this point.

Preclusion of Burns’ Expert Testimony

¶91 Burns asserts that the trial court erred in precluding

testimony from some of his expert witnesses. “We review the trial court’s

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decision to exclude evidence for abuse of discretion.” Villalobos, 225 Ariz.

at 82 ¶ 33, 235 P.3d at 235; State v. Jackson, 186 Ariz. 20, 24, 918 P.2d 1038,

1042 (1996) (reviewing a court’s “imposition and choice of sanction” for an

abuse of discretion). While trial courts may preclude or limit a witness’

testimony as a sanction for disclosure violations, doing so should be a

remedy of last resort. Ariz. R. Crim. P. 15.7(a); State v. Moody, 208 Ariz. 424,

454 ¶ 114, 94 P.3d 1119, 1149 (2004).

¶92 To determine whether witnesses should be precluded from

testifying, courts should assess four criteria: “(1) how vital the witness is to

the case, (2) whether the opposing party will be surprised, (3) whether the

discovery violation was motivated by bad faith, and (4) any other relevant

circumstances.” State v. (Joe U.) Smith, 140 Ariz. 355, 359, 681 P.2d 1374, 1378

(1984).

1. Dr. Wu

¶93 Under Arizona Rule of Criminal Procedure 15.2(d), a

defendant must disclose witnesses forty days after arraignment or ten days

after the state’s disclosure. Parties have an ongoing duty to disclose new

information as it is discovered. Ariz. R. Crim. P. 15.6(a). Yet less than one

week before the penalty phase began, Burns provided notice that Dr. Joseph

Wu, a mitigation witness, would testify regarding results of a PET scan of

Burns’ brain. In response, the State moved to preclude Dr. Wu’s testimony

and the results of the PET scan. The trial court ultimately allowed Dr. Wu

to testify after Burns disclosed the reports.

¶94 The State objected on lack-of-disclosure grounds when Burns’

counsel questioned Dr. Wu about a quantitative measurement of Burns’

PET scans. One week before he testified, Dr. Wu told the State he had not

performed a quantitative analysis. The court ruled that the State should

have the opportunity to have its expert review the PET scan findings and

would not allow the line of questioning until it could be determined

whether there was adequate time for the results to be examined.

Ultimately, Dr. Wu was not allowed to testify about the quantitative

analysis. Dr. Wu did testify at length that, in his opinion, Burns had

diminished frontal-lobe activity, rendering him less culpable for his actions.

¶95 Based on the Smith factors, the trial court did not abuse its

discretion by precluding Dr. Wu’s quantitative analysis. Dr. Wu’s

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Opinion of the Court

testimony was not critical to Burns’ defense. Dr. Wu testified at length that

Burns had diminished frontal-lobe activity and explained that this could

affect Burns’ impulse control, judgment, and emotional regulation. Burns

has not identified what the quantitative analysis would have additionally

shown. Second, the prosecution was unfairly surprised by the evidence, as

Dr. Wu had stated just one week earlier that he had not performed a

quantitative analysis. There is no indication of bad faith, so the third Smith

factor is inapplicable. Finally, the trial court did not preclude the testimony

entirely, but instead imposed a less-burdensome alternative: it required

Burns to wait to delve into the quantitative analysis until the State’s expert

had a chance to review it. By the conclusion of Dr. Wu’s testimony, the

State’s expert, Dr. Waxman, had not received the data in a useable format.

And Burns never attempted to recall Dr. Wu after Dr. Waxman had

accessed the files. Under the Smith test, the trial court did not abuse its

discretion by precluding the quantitative analysis evidence.

2. Dr. Cunningham

¶96 The court sustained an objection on non-disclosure grounds

to Dr. Cunningham’s direct examination testimony regarding “the rates of

violence in prison, factors that are predictive of violence in prison, and how

capital offenders behave in prison.” At the conclusion of Dr. Cunningham’s

testimony, Burns’ counsel said he intended to recall Dr. Cunningham as a

rebuttal witness. The State objected, arguing that Burns did not disclose to

the State that it intended to call Dr. Cunningham as a rebuttal witness and

that Dr. Cunningham’s purported testimony on the likelihood of violence

in prison among capital offenders was not relevant to the State’s rebuttal

evidence. The trial court ruled that if the State presented evidence on the

likelihood of violence in prison, “then Dr. Cunningham will be allowed to

testify” as a rebuttal witness.

¶97 A few days later, a State expert, Dr. Kirkley, discussed Burns’

past misconduct to support her conclusion that Burns exhibited antisocial

personality disorder. Burns then moved to recall Dr. Cunningham to

address antisocial personality disorder and to explain the statistical analysis

on the risk of inmate prison violence based upon his own research and other

research presented in Burns’ case-in-chief. The trial court precluded this

testimony because it “was not timely disclosed.” Further, the court found

that the State did not inject the issue by its questioning of Dr. Kirkley and

that the offered testimony was not relevant as rebuttal evidence.

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¶98 Burns’ offer of proof disclosed that Dr. Cunningham would

have offered a statistical analysis showing that violent offenders do not

necessarily commit acts of violence while incarcerated. Burns argues that

this testimony would have rebutted the “[S]tate’s position that [Burns]

could not be safely housed for life in ADOC” as well as Dr. Kirkley’s

opinion that Burns’ antisocial personality disorder and history meant he

had a high probability of future dangerousness in prison. We find no abuse

of discretion.

¶99 Under the Smith factors, Dr. Cunningham’s testimony that

Burns could safely be incarcerated for life was cumulative and therefore not

vital to his mitigation evidence. Another defense expert, James Aiken, had

already testified that an inmate like Burns could be safely housed in prison.

Second, the fact that Dr. Cunningham had testified in other trials does not

mean that the State was prepared to effectively deal with his late-disclosed

testimony in Burns’ case. The fact that the State had virtually no notice that

Burns intended to call Dr. Cunningham as a rebuttal witness weighs in

favor of preclusion. As with Dr. Wu’s testimony, there is no evidence of

bad faith in the defense’s late disclosure, and so the third Smith factor is

inapplicable here.

¶100 Ultimately, Burns cannot establish that he was prejudiced by

the preclusion of Dr. Cunningham’s testimony because the proffered

testimony was largely cumulative. We find no abuse of discretion in the

trial court’s refusal to allow Dr. Cunningham’s rebuttal testimony.

Impeachment of Burns’ Experts

¶101 Burns next argues the trial court erred by not limiting the

State’s cross-examination of Dr. Wu and Burns’ prison expert, James Aiken.

We review a trial court’s ruling regarding the scope of cross-examination

for an abuse of discretion. State v. Ellison, 213 Ariz. 116, 132 ¶ 52, 140 P.3d

899, 915 (2006).

¶102 On direct examination during the penalty phase, Mr. Aiken

testified that Burns could be safely managed in the Arizona prison system.

The State then cross-examined Mr. Aiken regarding recent inmate crimes

and escape attempts in a private prison facility in Kingman, the murder of

a detention officer inside the prison, a hostage crisis at an Arizona prison,

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and other matters. The trial judge allowed the cross-examination over

Burns’ objection.

¶103 Burns also objected to the State’s cross-examination of Dr. Wu

regarding his evaluation of the PET scans. Burns again objected when the

State asked Dr. Wu about several other cases, listed in his PowerPoint

presentation, from other jurisdictions where courts precluded PET scan

evidence. The trial court overruled the objection, and Dr. Wu responded

that he was unsure what the courts had concluded.

¶104 We find nothing improper with the State’s cross-

examinations of Burns’ experts. The cross-examinations were relevant to

impeach each expert. See Ariz. R. Evid. 401(a) (“Evidence is relevant if [] it

has any tendency to make a fact more or less probable than it would be

without the evidence . . . .”); Ariz. R. Evid. 611(b) (“A witness may be cross-

examined on any relevant matter.”).

Jurors’ Concern for Courtroom Safety

¶105 Burns contends the trial court violated his right to a fair trial

when it denied his motions for a mistrial after the jurors expressed concern

about their safety. Trial court rulings on motions for mistrial are reviewed

for an abuse of discretion. State v. Lehr (Lehr III), 227 Ariz. 140, 150 ¶ 43, 254

P.3d 379, 389 (2011).

¶106 During the guilt-phase deliberations, the jury sent the

following question to the judge:

We are concerned about the juror’s [sic] safety. In other

words, are people going to be able to access our personal

information—name, employer, address, etc.? Since [the]

foreperson had to sign their actual name[,] will [the]

foreperson be safe? Is there a way that we can keep our

personal information private/safe from the public?

Defendant’s family etc.? We are concerned about our

safety . . . also media etc.

The judge responded that the juror information would be sealed by the

court and unavailable to the general public. Burns moved for a mistrial,

arguing that the jurors’ concern for their safety could have “played a role

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in [their] deliberative process.” The trial court denied Burns’ motion for a

mistrial.

¶107 The next day, defense counsel asked the court to question the

jurors individually to ensure that their concerns would not affect their

impartiality. Instead of asking each juror individually, the judge asked the

jury as a group whether any juror would be unable to keep an open mind

during the next phase of the trial. No juror responded.

¶108 During the penalty phase, the jurors submitted a written

request asking the trial judge to ensure that a guard be posted by Burns at

all times because some jurors were feeling “uncomfortable.” Burns moved

for a mistrial, and the judge asked defense counsel if there was a question

he would like the court to ask the jury. Defense counsel responded that the

court needed to follow up on the jury’s question and ask each juror whether

he or she was afraid of Burns and whether the courtroom security was

insufficient.

¶109 The trial judge denied the mistrial motion. The court noted

that one of the deputies who usually sat by Burns had to leave for a personal

emergency, leaving only one deputy in the courtroom instead of two. The

trial court addressed the jury and asked whether anyone could not keep an

open mind based on of anything that occurred in the guilt phase. No juror

responded. The trial judge planned to ask any juror who raised a hand

additional questions outside the presence of the other jurors. In the penalty-

phase jury instructions, the trial judge reminded the jurors that “any belief

or feeling you have about courtroom security or other security matters shall

not be part of your decision making process.”

¶110 A trial court must ensure that the jury is capable of rendering

a fair and impartial verdict. See State v. Detrich, 188 Ariz. 57, 67, 932 P.2d

1328, 1338 (1997). A trial court has broad discretion in selecting methods to

detect and protect against potential juror bias. See Trostle, 191 Ariz. at 12,

951 P.2d at 877 (finding no abuse of discretion where trial court elected not

to conduct individual or small-group voir dire to screen for bias).

¶111 Here, the trial court did not abuse its discretion when it

denied Burns’ motions for a mistrial. When the jurors raised a concern

about their personal information becoming public, the court appropriately

reassured them that their information would remain sealed. The court then

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verified that the jurors’ concern had not affected their ability to decide the

case fairly and impartially. It did so again when the jurors expressed their

discomfort during the penalty phase. The trial court did not abuse its

discretion in addressing the issue as it did.

Juror Misconduct

¶112 Burns argues that the trial court erred when it failed to declare

a mistrial after Juror 11 investigated a fellow juror’s anti-death-penalty

political activity and shared this information with other jurors. “A trial

court’s decision to grant or deny a new trial based on alleged jury

misconduct generally will not be reversed absent an abuse of discretion.”

State v. Hall, 204 Ariz. 442, 447 ¶ 16, 65 P.3d 90, 95 (2003). Juror misconduct

warrants a new trial only if a defendant shows actual prejudice or if

prejudice may be fairly presumed from the facts. State v. Miller, 178 Ariz.

555, 558, 875 P.2d 788, 791 (1994). Because Burns failed to raise this issue at

trial, however, we review for fundamental error. Rutledge, 205 Ariz. at 13 ¶

29–30, 66 P.3d at 56.

¶113 On the second day of jury deliberations in the penalty phase,

Juror 11 sent a note to the judge that stated, “I believe we have a stealth

juror in the jury.” Juror 11 expressed concerns about Juror 2’s

unwillingness to deliberate and personal feelings about sexual assault.

Juror 11 explained how he had taken it upon himself to research Juror 2 on

the Internet and had uncovered contributions to political parties and

candidates that oppose the death penalty. Juror 11 attached the results of

his various Internet searches to the note he sent to the judge.

¶114 Defense counsel asked that the court talk to Juror 11 to see if

he had shared the research he had conducted on Juror 2 with the other jury

members. The parties and court agreed to release Juror 11 for violating the

admonition after he admitted that he told a “couple of the jurors” about the

information he had discovered. After dismissing Juror 11, the court called

in the remaining jurors and advised them that she had dismissed Juror 11,

but not to “question why that happened.” The court also asked the jurors

if Juror 11 had shared information about any of the other jurors with any of

them. No juror responded to the question. The court then replaced Juror

11 with the last remaining alternate, Juror 17.

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¶115 The next trial day, Juror 8 sent a note to the judge indicating

that she had spoken with Juror 11 about the contents of his letter. The court

then questioned Juror 8, who confirmed that Juror 11 had told her and other

jurors what he discovered on the Internet about the “stealth juror’s” views

on the death penalty and political contributions. The court asked Juror 8 if

she believed that she would be able to put aside that information to

deliberate and decide the case solely on the evidence and jury instructions

provided. Juror 8 responded, “Absolutely.”

¶116 The court also questioned Juror 15, who explained that he saw

Juror 11 writing his note to the judge. Juror 15 explained that Juror 11

identified the juror who was the subject of his note, but did not indicate

what information he possessed. Juror 15 assured the court that he could

remain fair and impartial.

¶117 The court next questioned Juror 6, who explained that

throughout the trial, Jurors 2 and 11 had politically opposite views and

argued a lot. Juror 6 thought that Juror 11 “wanted to remove himself from

the jury” once the penalty phase began. Juror 6 explained that she did not

want to know what Juror 11 told the court and that she could put the

incident aside, follow the jury instructions, and decide the issues based on

the evidence presented.

¶118 The court then questioned Juror 4, who heard Juror 11

explaining that he had “Googled” a member of the jury, discovering

political affiliations. Juror 4 explained that he was not paying that much

attention to Juror 11, that he was not concerned with what Juror 11 had

found, and that he would be able to follow the jury instructions as given.

¶119 Finally, the court brought in the entire jury, explained that

Juror 11 had been replaced with Juror 17, and told jurors not to worry about

the reasons for Juror 11’s replacement. The court explained that the jurors

were still under the admonitions and that they were not permitted to do

any outside research on the Internet or otherwise. The court further

explained that the jury must begin the penalty-phase deliberations anew.

¶120 Burns asserts the trial court failed to adequately investigate

this issue by refusing to question all twelve jurors individually and, because

of the limited nature of the court’s questioning, it cannot be concluded

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beyond a reasonable doubt that the prior guilt- and aggravation-phase

verdicts in the case were not coerced and were truly unanimous.

¶121 Burns, however, failed to object or otherwise raise any

concerns to the trial court about its handling of this matter. After receiving

Juror 11’s note, the trial judge met with Burns’ counsel and the prosecutor,

and Burns’ counsel stated that he agreed with the court’s planned response.

Burns’ counsel only asked that Juror 11 identify which jurors he had shared

the information with (Juror 11 was unable to accurately do so without using

their names on the record). Counsel did not ask the court to question all

jurors individually, object to the court’s plan to discuss the situation with

the jury as a whole, or move for a mistrial.

¶122 Burns has not established error, much less fundamental error.

In State v. Garcia, a juror told other jurors about alleged improper contact

initiated by the defendant’s family during the aggravation phase of the trial.

224 Ariz. 1, 11 ¶ 29, 226 P.3d 370, 380 (2010). The trial court interviewed all

the jurors, and no juror expressed a concern that the incident would affect

his or her deliberations. Id. at 11 ¶ 30, 226 P.3d at 380. After the interviews

concluded, defense counsel moved for a mistrial of the aggravation phase,

which the trial court granted. Id. We held that the trial court did not err by

failing to grant a mistrial on the already completed guilt phase because “the

trial court’s decision to grant a mistrial as to the aggravation phase alone

was sufficient in light of the limited nature of the potential prejudice.” Id.

at 11 ¶ 31, 226 P.3d at 380. We have explained that when confronting issues

of juror misconduct, “the court’s response should be commensurate with

the severity of the threat posed.” Id. (quoting Miller, 178 Ariz. at 557, 875

P.2d at 790).

¶123 Burns cannot show error because the jurors who spoke to

Juror 11 about his letter indicated to the judge that they received no specifics

from Juror 11 regarding his concerns about Juror 2, and all assured the court

that they had no difficulty setting aside what happened and following the

jury instructions. Here, unlike the jurors in Garcia, the jurors remaining on

the jury panel had no information regarding the content of Juror 11’s letter

to the court. Burns’ contention that “it is now unknown” what impact Juror

11’s conduct had on the remaining jurors is insufficient to demonstrate

fundamental error.

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Sentencing on the Non-Capital Counts

¶124 Burns contends the trial court erred by refusing to sentence

him on the non-capital counts within thirty days of his conviction in

violation of Arizona Rule of Criminal Procedure 26.3. Burns asserts that,

because he was not sentenced on his non-capital convictions, he was

deprived of the right to have the jury consider his terms of imprisonment

on those charges during the penalty phase. We review a trial court’s

interpretation of the Arizona Rules of Criminal Procedure de novo. State v.

Manuel, 229 Ariz. 1, 3 ¶ 5, 270 P.3d 828, 830 (2011).

¶125 Under Rule 26.3, a court is obligated to sentence a defendant

between fifteen and thirty days after conviction. Ariz. R. Crim. P. 26.3. But

“[u]nder both Arizona’s superseded and current capital sentencing

schemes, a defendant’s [capital] trial consists of two phases: a guilt phase

and a penalty phase.” State v. Ring, 204 Ariz. 534, 554 ¶ 50, 65 P.3d 915, 935

(2003). Thus, waiting until the end of the proceeding to determine Burns’

sentences for both non-capital and capital convictions is both logical and

within the plain language of Rule 26.3. We hold that, in a capital

proceeding, the thirty-day sentencing period does not begin to run until

after the conclusion of the penalty phase.

¶126 Burns next argues that he should have been permitted to

argue to the jury that his consecutive sentences on his non-capital

convictions would require him to spend the rest of his life in prison. But

Burns had no right to present evidence of his effective life sentence to the

jury because it would have been irrelevant as a mitigating factor. See State

v. Benson, 232 Ariz. 452, 465 ¶¶ 52–57, 307 P.3d 19, 32 (2013) (refusing to

allow defendant to present evidence that he was unlikely to be paroled or

would stipulate to ineligibility for parole not an abuse of discretion); Dann,

220 Ariz. at 372–73 ¶¶ 122–24, 207 P.3d at 625–26 (refusing to instruct jury

that defendant would waive parole eligibility if not sentenced to death not

an abuse of discretion). The trial court did not err in so ruling.

Evidence of Burns’ Gang Affiliation, Attitude, and Other

Misconduct

¶127 Burns argues that evidence of his jail calls, religious beliefs,

tattoos, and gang membership were improperly admitted in violation of his

First, Eighth, and Fourteenth Amendment rights. This Court reviews the

admission of evidence in the penalty phase for an abuse of discretion. State

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v. Nordstrom, 230 Ariz. 110, 114 ¶ 8, 280 P.3d 1244, 1248 (2012). So long as

rebuttal evidence is relevant to the thrust of a defendant’s mitigation and is

not unduly prejudicial, we defer to the trial court’s finding of admissibility.

VanWinkle, 230 Ariz. at 394 ¶ 28, 285 P.3d at 315.

¶128 During the penalty phase, the court admitted evidence of

Burns’ other acts. This included testimony regarding alleged uncharged

sexual assaults committed by Burns and testimony about Burns’ fifteen

prior police reports, beginning when he was thirteen years old and ending

with his possession of a homemade handcuff key while awaiting trial in this

case. The State also offered testimony about Burns’ white-supremacist

views, the significance of Burns’ tattoos (many of which were connected

with white-supremacist gangs or ideology), and Burns’ Asatru religion.

The court also permitted testimony about letters and jail calls in which

Burns described committing acts of racially motivated violence in prison,

made derogatory comments about individuals involved in the case, and

discussed his former cellmate killing someone to join Burns in prison.

¶129 Burns argues this rebuttal evidence was irrelevant to specific

mitigation evidence and the trial court erred by failing to analyze this

evidence under Rules of Evidence 401–403 or 404(b). We disagree.

¶130 The Rules of Evidence do not apply to the admission of

evidence during the penalty phase of a capital trial. Chappell, 225 Ariz. at

239 ¶ 35, 236 P.3d at 1186; A.R.S. §§ 13–751(C), –752(G). Thus, evidence that

is inadmissible during the guilt phase may be admissible during the penalty

phase if it rebuts the defendant’s mitigation and is not unfairly prejudicial.

See Chappell, 225 Ariz. at 239 ¶¶ 35–36, 236 P.3d at 1186. Trial courts,

however, should exclude evidence that is irrelevant in order to prevent the

penalty phase from devolving into a “limitless and standardless assault on

the defendant’s character and history.” State v. Hampton, 213 Ariz. 167, 180

¶ 51, 140 P.3d 950, 963 (2006).

¶131 Burns first contends that evidence of his prior arrests, other

criminal acts, and alleged sexual assaults should not have been admitted.

This evidence, however, was directly relevant to rebut Mr. Aiken’s

testimony that Burns would not pose a danger in the prison system and

could be effectively and safely housed there. The court did not abuse its

discretion in allowing this evidence.

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¶132 Burns next challenges the admissibility of evidence regarding

his white-supremacist beliefs. Mr. Aiken testified that, after reviewing the

police reports from the department of corrections, he did not see anything

to validate Burns as a gang member. Evidence of Burns’ Skinhead

affiliation, including his tattoos, statements of his beliefs, interest in the

Asatru religion, and documentation by police as a Skinhead member, was

directly relevant to rebut Mr. Aiken’s testimony suggesting that Burns was

not a gang member and that he could safely be controlled in prison.

¶133 Burns also contends that his derogatory comments toward the

prosecutor and the State’s witnesses should not have been admitted into

evidence because their only purpose was “to inflame the jury.” Burns

described the individual who brought Mandi to court to testify as “a big fat

Mexican dude,” and referred to Mandi as a “race [traitor] bitch.” This

provides evidence of his Skinhead beliefs and rebuts Mr. Aiken’s testimony

that Burns could be controlled in prison because he was not a member of a

gang. Burns also commented that the assistant prosecutor looked like she

had “Down’s Syndrome.” This was evidence of Burns’ anti-social behavior,

supporting the findings of Dr. Kirkley.

¶134 Burns finally contends that his calls with his former cellmate

were improperly admitted as evidence because the calls injected the

cellmate’s “behavior and attitudes” into the trial. Again, the calls were

relevant because they demonstrated that Burns was involved in misconduct

while incarcerated, directly rebutting Mr. Aiken’s testimony that Burns

could safely be managed in prison.

¶135 Because all the proffered evidence was relevant to rebut

Burns’ mitigation evidence, the trial court did not abuse its discretion by

admitting it during the penalty phase.

Victim Impact Evidence

¶136 Burns contends “[t]he trial court violated Arizona Rule of

Criminal Procedure 19.1(d)” and his constitutional rights by admitting

more than two hours of victim impact evidence. Burns also argues that the

victim impact evidence was not admissible because some of the testimony

speculated about what Jackie’s final moments were like rather than

describing how her murder affected her family. We review the trial court’s

decision whether to grant a mistrial based on the admission of victim

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impact testimony for an abuse of discretion. State v. Gallardo, 225 Ariz. 560,

567 ¶ 26, 242 P.3d 159, 166 (2010).

¶137 During the penalty phase, thirteen family members either

presented their own statements or had the victim’s advocate read prepared

statements. The State also showed an eight-minute video from Jackie’s

memorial services, which contained approximately 110 pictures of Jackie.

The State also showed the jury Jackie’s “senior project,” a nine-page

PowerPoint presentation containing thirteen photographs of Jackie and her

written reflections on growing up. At the end of the presentation, Burns

moved for a mistrial, which the trial court denied.

¶138 Victim impact evidence is admissible during the penalty

phase of a capital trial to rebut a defendant’s mitigation evidence. A.R.S. §

13-752(R); Ariz. R. Crim. P. 19.1(d)(3); Dann, 220 Ariz. at 369 ¶ 100, 207 P.3d

at 622. “Even if victim impact statements are not offered to rebut any

specific mitigating fact, they are ‘generally relevant to rebut mitigation’ and

thus admissible in the penalty phase.” Gallardo, 225 Ariz. at 567 ¶ 28, 242

P.3d at 166 (quoting Garza, 216 Ariz. at 69 ¶ 60 n.12, 163 P.3d at 1019 n.12).

Although victim impact testimony may not request imposition of a

particular sentence, it may properly describe the victim and the impact of

the murder on family members. Id. at 567 ¶ 27, 242 P.3d at 167.

¶139 That is not to say, however, that a trial judge must permit all

victim impact testimony. A trial court must exclude victim impact evidence

if it is so “unduly prejudicial that it renders the trial fundamentally unfair.”

Id. at 567 ¶ 25, 242 P.3d at 166. We have repeatedly recognized the potential

“danger that photos of the victims may ‘be used to generate sympathy for

the victim and his or her family.’” State v. Rose, 231 Ariz. 500, 511 ¶ 50, 297

P.3d 906, 917 (2013) (quoting Ellison, 213 Ariz. at 141 ¶ 115, 140 P.3d at 924).

Nonetheless, we have declined to impose a per se bar on the use of

photographs in victim impact presentations, instead relying on trial judges

to exercise their discretion to weigh a photograph’s potential for unfair

prejudice against its probative value. See id.; Ellison, 213 Ariz. at 141 ¶ 115,

140 P.3d at 924. Thus, a trial judge must take an active role in reviewing

victim impact evidence to screen for potential unfair prejudice. See Rose,

231 Ariz. at 511 ¶ 47, 297 P.3d at 917.

¶140 On the record before us, we cannot say that the trial court

abused its discretion. The statements from Jackie’s family focused on the

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type of person Jackie was and the family’s sense of loss. This is acceptable

victim impact evidence. Gallardo, 225 Ariz. at 567 ¶ 27, 242 P.3d at 166.

Similarly, the photos here were relatively benign, including depictions of

graduations, birthdays, and vacations. The photos fell within bounds and

did not render the trial “fundamentally unfair.” See id. at 567 ¶ 28, 242 P.3d

at 166. The trial court gave the jury a limiting instruction, cautioning jurors

that they could consider the victim impact statements only to the extent that

they rebutted mitigation and could not consider the victim impact evidence

as an aggravating circumstance. Because the statements and photographs

in this case were not unfairly prejudicial, and the trial court gave an

appropriate limiting instruction, the court did not abuse its discretion in

permitting the victim impact evidence.

¶141 Burns’ contention that victim impact statements may not

speculate about how the victim may have felt during the crime is similarly

without merit. We have previously held a family member’s brief remarks

about the impact of remembering or visualizing a victim’s final moments

were not unduly prejudicial. See, e.g., Glassel, 211 Ariz. at 53 ¶ 79, 116 P.3d

at 1193 (holding that victim impact statement that described how husband

felt while victim begged for help was not unduly prejudicial); Prince II, 226

Ariz. at 535 ¶¶ 71–73, 250 P.3d at 1164 (mother’s victim impact statement

that described how she still hears victim crying as she was thrown across

the floor not unduly prejudicial). We again caution victims and prosecutors

to exercise restraint when presenting this type of victim impact evidence.

But, on the record before us, we find no error. The trial court did not abuse

its discretion in denying Burns’ motion for a mistrial.

¶142 Nevertheless, we are troubled with the volume and type of

materials presented as victim impact evidence in this case. The jury heard

more than a dozen victim impact statements, some of which came from

people who had never met Jackie. Jackie’s school work was displayed to

the jury. While we understand the strong emotions that senseless murders

generate in surviving family members and communities, we again caution

victims and prosecutors about piling on impact evidence “lest they risk a

mistrial.” Rose, 231 Ariz. at 511 ¶ 47, 297 P.3d at 917. The trial court should

take an active role in pre-screening the nature and scope of victim impact

evidence to ensure it does not “cross the line.” Cf. id.

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Penalty-Phase Jury Instructions

¶143 Burns contends that the trial court’s penalty-phase jury

instructions were erroneous in two respects. First, Burns argues the court

instructed the jury to consider in mitigation only evidence presented during

the mitigation phase, and not evidence presented during other phases of

the trial. This argument is without merit. The thrust of the challenged jury

instruction was to prevent sympathy unrelated to the defendant’s

character, not to limit the factors that the jury could consider. The jury was

instructed that it could consider any facts that it found relevant.

¶144 Second, Burns argues that the jury instructions restricted the

type of evidence that the jury could consider as mitigating in violation of

Lockett v. Ohio, 438 U.S. 586 (1978), and Tennard v. Dretke, 542 U.S. 274 (2004).

We disagree. The trial court instructed the jury that it could consider any

factors that “relate to any sympathetic or other aspect of the defendant’s

character, propensity or record, or circumstances of the offense.” We have

approved similar jury instructions as complying with Lockett. See State v.

Velazquez, 216 Ariz. 300, 311 ¶ 44, 166 P.3d 91, 102 (2007). The jury

instructions in this case allowed the jury to consider any relevant mitigation

evidence. We find no error.

Prosecutorial Misconduct

¶145 Burns contends that the prosecutor engaged in misconduct

throughout the trial, which deprived Burns of his right to due process

under the Fourteenth Amendment.

¶146 We review a trial court’s denial of a motion for mistrial for

prosecutorial misconduct for an abuse of discretion. State v. Lehr (Lehr I),

201 Ariz. 509, 522 ¶ 56, 38 P.3d 1172, 1185 (2002). When a defendant fails to

object at trial, however, “we review only for fundamental error.” Roque, 213

Ariz. at 228 ¶ 154, 141 P.3d at 403. “To prevail on a claim of prosecutorial

misconduct, a defendant must demonstrate that the prosecutor’s

misconduct so infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Hughes, 193 Ariz. at 79 ¶ 26, 969 P.2d

at 1191 (internal quotation marks and citation omitted). We look to the

“cumulative effect of the misconduct” on the trial. Id.

¶147 The prosecutorial misconduct that Burns complains of falls

into two categories: those actions that he objected to at trial, which we

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Opinion of the Court

review for an abuse of discretion, and those to which he did not object,

which we review only for fundamental error.

1. Conduct objected to during trial

¶148 Burns objected to eight actions by the prosecutor at trial that

he claims constituted prosecutorial misconduct. He argues that the

prosecutor committed misconduct by (1) repeatedly eliciting testimony that

this was Jackie’s first date after promising to not comment on her chastity;

(2) arguing without any evidence that Burns gave Jackie GHB; (3) infecting

the entire penalty phase with irrelevant testimony regarding Burns’

religion, white supremacist beliefs, Skinhead affiliations, and prior acts of

violence and sexual misconduct; (4) showing the jury gruesome

photographs of the victim’s body for no substantive reason; (5) eliciting

testimony that various knives were found at Burns’ home despite having

promised to not inquire into them; (6) commenting on Burns’ refusal to

answer police questions; (7) arguing in closing of both trial phases that

Burns’ motive for killing the victim was to prevent her from reporting him

for committing sexual assault and to avoid going back to prison; and (8)

arguing several times that to “do justice” required that the jury think about

what Burns’ conduct did to Jackie’s family.

¶149 We have already rejected most of Burns’ arguments

underlying his assertion of prosecutorial misconduct. The trial court did

not err in admitting, and the prosecutor therefore did not commit

misconduct by commenting upon, evidence concerning Jackie’s being on

her first date, the presence of GHB in her liver, Burns’ religious and white-

supremacist beliefs, photographs of Jackie’s body, the knives found in

Burns’ house, and the impact of Jackie’s death on her family.6

¶150 Burns is also unpersuasive in contending that the prosecutor

committed misconduct when (1) he elicited testimony that Burns was silent

when asked after his arrest about Jackie’s body, and (2) argued during

closing argument that Burns killed Jackie so she would not report the sexual

assault. A prosecutor may not make any comments calculated to point out

a defendant’s invocation of his Fifth Amendment right. Id. at 87 ¶ 64, 969

P.2d at 1199. This Court examines a comment on a defendant’s silence in

the context of the proceedings as a whole to determine whether the jury

6 See supra Sections F, G, U, K, J, and V.

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Opinion of the Court

would perceive them to be a comment on a defendant’s failure to testify.

Id. But comments and evasive answers made before invoking the right to

remain silent are admissible. See State v. Parker, 231 Ariz. 391, 406 ¶ 65, 296

P.3d 54, 69 (2013).

¶151 Burns objects to a detective’s testimony about Burns’ conduct

during police questioning. The detective stated that, when the police asked

for the location of Jackie’s body, Burns did not say where Jackie’s body was

located, but just got “real quiet, clos[ed] his eyes, and just sh[ook] his head.”

This exchange occurred before Burns invoked his right to remain silent,

making the testimony admissible. See id.

¶152 The prosecutor did not commit misconduct by arguing that

Burns murdered Jackie to prevent her from disclosing the sexual assault. A

prosecutor may make arguments and may draw inferences that are

reasonably supported by the evidence. Hughes, 193 Ariz. at 85 ¶ 59, 969

P.2d at 1197. Here, the evidence reasonably supported the prosecutor’s

arguments.

2. Conduct not objected to during trial

¶153 Burns also now claims that the prosecutor committed

misconduct by (1) arguing that Jackie did not consent to sexual intercourse,

(2) arguing that Burns’ allocution should be given little weight because it

was not under oath or subject to cross-examination, and (3) “belittl[ing] the

integrity of” Dr. Cunningham.

¶154 The prosecutor’s reference to Jackie’s lack of consent during

the guilt-phase closing argument was not misconduct because evidence

supports this inference. See supra Section N.1. Nor did the prosecutor

improperly inflame the jury by commenting in his closing that Burns

treated Jackie “like trash” and has a low regard for women. Although the

brief comments were unnecessary, they were supported by the evidence

and, when viewed in context, were not improperly inflammatory.

¶155 Nor did the prosecutor commit misconduct by noting that

Burns’ allocution was not under oath or subject to cross-examination. A

sentencing judge or jury may properly consider the fact that an allocution

was not under oath or subject to cross-examination when weighing a

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defendant’s credibility. State v. McCall, 160 Ariz. 119, 124, 770 P.2d 1165,

1170 (1989).

¶156 Finally, Burns has not shown that the prosecutor committed

misconduct by “belittl[ing]” Dr. Cunningham. It is improper for a

prosecutor to argue, without evidentiary support, that an expert acted

unethically. State v. Bailey, 132 Ariz. 472, 479, 647 P.2d 170, 177 (1982); see

also Hughes, 193 Ariz. at 86 ¶ 61, 969 P.2d at 1198 (holding that “arguing that

all mental health experts are fools or frauds who say whatever they are paid

to say” was prosecutorial misconduct). However, a prosecutor may

properly inquire into an expert’s credentials and employment for

impeachment purposes. Bailey, 132 Ariz. at 478, 647 P.2d at 176. Here, the

State argued that the jury should give little weight to Dr. Cunningham’s

testimony because he (1) did not interview the defendant, yet was willing

to opine as to a causal link between mitigating factors and the murder; and

(2) is exclusively employed as an expert witness and does not have a clinical

practice. The prosecutor did not impugn Dr. Cunningham’s integrity, but

merely questioned his credentials and familiarity with this case.

¶157 Because we have found no prosecutorial misconduct, we need

not analyze whether any errors deprived Burns of a fair trial or whether he

suffered any prejudice.

Jury Coercion

¶158 Burns contends that the trial court coerced a death verdict

when it granted a break over the weekend and required further

deliberations after the jury advised the court that it was deadlocked. “In

determining whether a trial court has coerced the jury’s verdict, this court

views the actions of the judge and the comments made to the jury based on

the totality of the circumstances and attempts to determine if the

independent judgment of the jury was displaced.” State v. Huerstel, 206

Ariz. 93, 97 ¶ 5, 75 P.3d 698, 702 (2003). Improperly coercing a verdict from

the jury constitutes reversible error. State v. McCrimmon, 187 Ariz. 169, 172,

927 P.2d 1298, 1301 (1996).

¶159 On February 15, 2011, at 3:51 p.m., the jury began penalty-

phase deliberations. Deliberations continued for approximately a day and

a half before the jury had to restart deliberations when the trial judge

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Opinion of the Court

dismissed Juror 11 and substituted an alternate juror.7 On February 22, the

newly composed jury began deliberations. On the afternoon of February

23, the jury notified the court that it could not reach a unanimous verdict,

and the trial court gave an impasse instruction. One juror responded to that

instruction by saying that more information would be helpful. Burns

moved for a mistrial, and the trial court denied that motion. The jury

resumed deliberations. Later in the afternoon, the trial court asked if any

of the jurors would object to recessing for the day and returning to

deliberate on Monday. Some jurors indicated that they felt it would be

pointless, but two responded that taking the weekend to “cool off” would

be helpful. The trial court again denied Burns’ motion for a mistrial. The

following Monday afternoon, the jury returned a death verdict.

¶160 We have held that “[j]ury coercion exists when the trial

court’s actions or remarks, viewed in the totality of the circumstances,

displaced the independent judgment of the jurors or when the trial judge

encourages a deadlocked jury to reach a verdict.” Davolt, 207 Ariz. at 213 ¶

94, 84 P.3d at 478 (internal quotation marks and citations omitted). Whether

jury coercion occurs is fact intensive and requires a case-by-case analysis.

State v. Roberts, 131 Ariz. 513, 515, 642 P.2d 858, 860 (1982) (citations

omitted). A trial judge may coerce a verdict by focusing jury instructions

on a holdout juror in a way that suggests that the juror should reconsider

his or her views. Huerstel, 206 Ariz. at 100–01 ¶ 23, 75 P.3d at 705–06.

¶161 With these principles in mind, we conclude that the trial court

did not coerce a verdict. After it began deliberations anew, the

reconstituted jury had deliberated for only one and one half days when it

advised the court it was deadlocked. The court gave the impasse

instruction after which the jury continued to deliberate. When the jury had

not reached a decision by the weekend break, the judge asked if continuing

deliberations after the weekend might help. Some jurors thought that

taking a break and having the jury reconvene would be helpful.

¶162 The court never forced the jury to come to a consensus. The

judge never knew how near the jury was to reaching a unanimous verdict

or whether they were leaning toward a life or death verdict. The trial judge

also did not know who the holdout juror or jurors were and did nothing to

get the holdouts to change their votes. We find no coercion.

7 See supra Section S.

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Death Verdict

¶163 The jury found two aggravating circumstances in Burns’ case:

the murder was especially cruel under A.R.S. § 13-751(F)(6), and Burns had

previously been convicted of a serious offense under A.R.S. § 13-751(F)(2).

Regarding the aggravating circumstances, Burns contends that (1)

“substantial evidence did not support the jury’s verdicts on the (F)(6)

aggravating circumstances”; (2) “[t]he (F)(2) aggravator was entitled to

minimal weight”; and (3) the jury abused its discretion by imposing a death

sentence.

¶164 We “review all death sentences to determine whether the trier

of fact abused its discretion in finding aggravating circumstances and

imposing a sentence of death.” A.R.S. § 13-756(A). A jury does not abuse

its discretion in reaching a death verdict “if there is ‘any reasonable

evidence in the record to sustain’ those conclusions.” Villalobos, 225 Ariz.

at 83 ¶ 41, 235 P.3d at 236 (quoting State v. Morris, 215 Ariz. 324, 341 ¶ 77,

160 P.3d 203, 220 (2007)).

1. The (F)(6) aggravator

¶165 Under A.R.S. § 13-751(F)(6), a jury must consider whether the

defendant committed the murder in an especially cruel, heinous, or

depraved manner. A.R.S. § 13-751(F)(6). We have explained that “[a]

murder is especially cruel under A.R.S. § 13–751(F)(6) when the victim

consciously ‘suffered physical pain or mental anguish during at least some

portion of the crime and [] the defendant knew or should have known that

the victim would suffer.’” Dixon, 226 Ariz. at 556 ¶ 61, 250 P.3d at 1185

(quoting Morris, 215 Ariz. at 338 ¶ 61, 160 P.3d at 217).

¶166 There was substantial evidence supporting a finding that

Jackie was conscious and that she suffered mental and physical pain. The

skull fractures, blood and earring in Burns’ truck, as well as Jackie’s ripped

bra and top all suggest a struggle and sexual assault. See State v. Amaya-

Ruiz, 166 Ariz. 152, 177, 800 P.2d 1260, 1285 (1990); State v. Schackart, 190

Ariz. 238, 249, 947 P.2d 315, 326 (1997). The blood spatter and the bullet

found in the sand established that Jackie was shot after being taken out of

the truck. When her body was found, she appeared to be clutching a

branch, which further suggests that she was still conscious when she was

shot and would have been aware of what was happening to her. See Prince

II, 226 Ariz. at 540 ¶ 98 n.7, 250 P.3d at 1169 n.7; State v. Hargrave, 225 Ariz.

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1, 17 ¶ 72, 234 P.3d 569, 585 (2010). Burns knew or should have known that

his actions would cause Jackie to suffer. Therefore, reasonable evidence in

the record supports the jury’s conclusions that the murder was especially

cruel. The jury did not abuse its discretion when it found the (F)(6)

aggravator.

2. The jury’s application of the (F)(2) aggravator

¶167 Under A.R.S. § 13-751(F)(2), an aggravating circumstance

exists if:

[T]he defendant has been or was previously convicted of a

serious offense, whether preparatory or completed.

Convictions for serious offenses committed on the same

occasion as the homicide, or not committed on the same

occasion but consolidated for trial with the homicide, shall be

treated as a serious offense under this paragraph.

Thus, convictions for crimes that occurred contemporaneously with the

capital offense may be considered for (F)(2) purposes. State v. Carreon, 210

Ariz. 54, 66 ¶ 59, 107 P.3d 900, 912 (2005).

¶168 Burns argues that, because his two prior burglary convictions

were non-violent offenses, the jurors should have given the (F)(2)

aggravator little consideration. Burns does not contend, however, that the

State failed to prove that he had two prior convictions for burglary or that

he was contemporaneously convicted of sexual assault and kidnapping.

The jury found the (F)(2) aggravator. Having made this finding, it was up

to each juror to individually consider the aggravator in light of the

mitigation presented. State ex rel. Thomas v. Granville (Baldwin), 211 Ariz.

468, 472–73 ¶ 17–18, 123 P.3d 662, 666–67 (2005). We do not find an abuse

of discretion in applying the aggravator.

3. The death verdict

¶169 The jurors did not abuse their discretion in determining that

the mitigating evidence was insufficient to warrant leniency. During the

penalty phase, Burns presented mitigation evidence regarding his difficult

childhood, his dysfunctional family, his diagnosed learning disabilities, his

impulsivity, the personality disorders from which he suffered, and whether

he would be able to be safely housed in prison while serving a life sentence.

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¶170 “We must uphold a jury’s determination that death is the

appropriate sentence if any ‘reasonable juror could conclude that the

mitigation presented was not sufficiently substantial to call for leniency.’”

State v. Naranjo, 234 Ariz. 233, 250 ¶ 89, 321 P.3d 398, 415 (2014) (quoting

Gallardo, 225 Ariz. at 570 ¶ 52, 242 P.3d at 169). Even if we assume that

Burns proved all his proffered mitigating factors, we cannot say the jurors

abused their discretion in concluding that the mitigation did not warrant

leniency.

III. CONCLUSION

¶171 For the reasons stated we affirm Burns’ convictions and

sentences, including his death sentence.8

8 Burns raises thirty-two additional constitutional claims that he

acknowledges this Court has previously rejected but that he wishes to

preserve for federal review. We decline to revisit these claims.

45