State of Arizona v. Mark Goudeau

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,

Appellee,

v.

MARK GOUDEAU,

Appellant.

No. CR-11-0406-AP

Filed June 17, 2016

Appeal from the Superior Court in Maricopa County

The Honorable Warren J. Granville, Judge

No. CR2007-005449

AFFIRMED

COUNSEL:

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

General, Lacey Stover Gard, Chief Counsel, Capital Litigation Section,

Jeffrey L. Sparks (argued), Assistant Attorney General, Phoenix, Attorneys

for State of Arizona

David Goldberg (argued), David Goldberg Attorney at Law, Fort Collins,

CO, Attorney for Mark Goudeau

VICE CHIEF JUSTICE PELANDER authored the opinion of the Court, in

which CHIEF JUSTICE BALES, and JUSTICES BRUTINEL, TIMMER, and

BERCH (RETIRED) joined.

VICE CHIEF JUSTICE PELANDER, opinion of the Court:

STATE V. GOUDEAU

Opinion of the Court

¶1 Mark Goudeau was convicted of nine counts of first degree

murder, among other crimes. This automatic appeal follows the imposition

of nine death sentences and other sentences. Ariz. R. Crim. P. 31.2(b). We

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

and A.R.S. §§ 13-755, -4031, and -4033(A)(1).

I. FACTUAL OVERVIEW AND PROCEDURAL BACKGROUND1

¶2 Based on DNA evidence, the police arrested Goudeau in

September 2006 for sexual assaults committed in 2005 and 2006. Further

investigation led police to suspect Goudeau’s involvement in a series of

murders and other crimes against thirty-three different victims in the

Phoenix area between August 2005 and June 2006.

¶3 The State charged Goudeau with seventy-four felonies,

including nine first degree murders for which the State sought the death

penalty. The trial court denied Goudeau’s pretrial motion to sever various

counts for trial. The court later granted the State’s request to divide the

presentation of its guilt-phase evidence into thirteen chronological

“chapters” corresponding to the dates of the offenses.

¶4 The primary issue at trial was the identity of the perpetrator.

The State presented evidence that DNA from two of the murder victims

was found on items seized from Goudeau’s home pursuant to a search

warrant; a ring belonging to another murder victim was found hidden in a

shoe in Goudeau’s closet; and Goudeau’s DNA was found on one murder

victim and several of the sexual assault victims. At trial, seven victims

identified Goudeau as their assailant. One testified that he had seen

Goudeau pointing a gun downward at a murder victim’s body. An eighth

victim identified Goudeau’s voice from a voice lineup.

¶5 Based on toolmark analysis of bullets and shell casings, the

State’s ballistics expert testified that the same .380 caliber handgun was

1 We view the facts in the light most favorable to sustaining the jury’s

verdicts, State v. Cota, 229 Ariz. 136, 141 n.2, 272 P.3d 1027, 1032 n.2 (2012).

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used for all nine murders and the other charged crimes in which shell

casings were found. The gun, however, was never found.

¶6 Evidence at trial also revealed that many of the crimes

reflected a similar modus operandi, including the perpetrator telling

victims that he had just committed a robbery and needed to reunite with

his friend; wearing the same disguise; and wiping off evidence from sexual

assault victims and areas he had touched before leaving the crime scenes.

Additionally, the perpetrator forced all sexual assault victims to walk or

drive to a secluded area, gave many of them directions, threatened to shoot

them unless they complied with his demands, and told them not to look at

him.

¶7 After approximately seventy days of trial that spanned seven-

and-a-half-months, the jury returned guilty verdicts on sixty-seven counts,

including all nine first degree murder charges. For each murder conviction,

the jury found in the aggravation phase that Goudeau had been previously

convicted of a life imprisonment or death-eligible offense, A.R.S.

§ 13-751(F)(1), of a serious offense, A.R.S. § 13-751(F)(2), and that he was on

release from prison when he committed the murders, A.R.S.

§ 13-751(F)(7)(a). The jury further found that Goudeau committed eight of

the nine murders in an especially cruel manner, A.R.S. § 13-751(F)(6), and

committed four of them while committing another murder, A.R.S.

§ 13-751(F)(8).

¶8 During the testimony of his first mitigation witness in the

penalty phase, Goudeau waived any further mitigation and presented no

further evidence. He did, however, make an allocution statement. The jury

returned death verdicts on all nine murder charges. This automatic appeal

followed.

II. SUMMARY OF THE THIRTEEN CHAPTERS

¶9 As noted above, the State divided the presentation of its guilt-

phase evidence into thirteen chronological “chapters.” The facts of each

chapter are briefly summarized below, with additional facts addressed

where relevant to the issues raised on appeal.

Chapter 1: August 6, 2005

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¶10 In the evening of August 6, 2005, armed with a silver

handgun, Goudeau approached Jenny S., Sarah U., and Jesus F., all minors

at the time, and told them he had just robbed a bank, needed directions, and

was waiting for a “buddy” to give him a ride. At gunpoint, Goudeau

ordered them to go to a dark, secluded area behind a church where he

sexually assaulted Jenny and Sarah and then wiped them off with a towel

before leaving the scene.

Chapter 2: September 8, 2005

¶11 On September 8, 2005, Georgia Thompson was found dead

with a gunshot wound to her head in her apartment parking lot. A

neighbor testified that she heard a woman scream, “leave me alone”

followed by a gunshot, and another neighbor testified that he had also

heard a woman scream that night.

Chapter 3: September 20, 2005

¶12 This chapter did not directly involve the charges in this case

but addressed other crimes Goudeau committed that were relevant to show

his identity as the perpetrator of the crimes here. The State introduced

evidence of Goudeau’s previous convictions of kidnapping, sexual assault,

sexual abuse, and aggravated assault against sisters Lorena L. and

Alejandra L., committed on September 20, 2005. We describe the facts

underlying those convictions when addressing Goudeau’s contention that

the trial court erred by admitting that other-act evidence, infra ¶¶ 96–102.

Chapter 4: September 28, 2005

¶13 On September 28, 2005, Melissa C., Iselda H., and Martha H.

were working at the take-out window of a restaurant when Goudeau

pointed a gun at them and demanded money. The three women fled to an

adjoining room while Goudeau reached into the window and grabbed

Melissa’s purse.

¶14 Moments later, Goudeau approached Margie M. and her

twelve-year-old daughter, Bianca M., who were sitting in a car parked near

the take-out window. Goudeau pointed a gun at Margie, got into the

passenger seat behind her, ordered her and her daughter not to look at him,

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and demanded that Margie start driving. During the drive, Goudeau talked

frequently, instructing them not to look at him and telling them that his

“buddy” had left him behind. At some point during the drive, he

demanded $20 from Margie and sexually assaulted Bianca. Eventually,

Goudeau directed Margie to pull over behind a store where he ordered her

and Bianca to get undressed. He ordered Margie outside the car where he

sexually assaulted her. He then told her to drive back to an area near where

he had first entered the car, and once there he demanded more money.

Margie gave him her coin purse. Before leaving, Goudeau used the victims’

clothing to wipe down areas in the car he had touched. He left Melissa C.’s

purse in the car.

Chapter 5: November 3, 2005

¶15 On November 3, 2005, Goudeau entered a store where Teresa

G. worked as a clerk, pointed a silver handgun at her head, and demanded

money. Goudeau left the store after Teresa gave him money from the cash

register.

¶16 Shortly thereafter, Goudeau approached Any P. in a parking

lot across from the store where Teresa G. worked, pointed a silver handgun

at her, and demanded that she give him a ride. Goudeau sat in the front

passenger seat and ordered Any to drive up and down various streets.

During the drive, Goudeau told her that he had just robbed a store and that

his “buddy” had left him. He then ordered her to pull over in a quiet

neighborhood where he demanded that she undress, and then he sexually

assaulted her. Afterward, Goudeau ordered Any to spit on her hand and

rub it on the areas of her body that he had touched. Goudeau then told her

to drive back to an area near the store where he had first encountered her;

he took her purse and cash before leaving.

Chapter 6: November 7, 2005

¶17 On November 7, 2005, Alfredo L. was standing in his

restaurant with two employees, Marisol L. and Iris H., when Goudeau

entered, brandished a silver handgun, and demanded money. Marisol and

Iris fled to the back of the restaurant while Alfredo gave Goudeau money

from the cash register. Goudeau then demanded and took a wallet from

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Mauricio O., a customer standing by the cash register. After Goudeau left,

Alfredo went outside and saw Goudeau enter an adjacent restaurant.

¶18 At the second restaurant, Goudeau pointed a silver gun at

Maria L. and Jesus L., who were working the cash register, and demanded

money. Jesus complied. After leaving the second restaurant, Goudeau

approached Cheryl M., her mother, and her two young children, who were

just getting out of a nearby car. Goudeau pointed his handgun at Cheryl

and her mother and attempted to grab the mother’s purse. After Cheryl

told him they did not have any money, Goudeau fired a round in the air

and ran off without the purse. As he did so, Mauricio O. and Pedro M.,

customers from the first restaurant, chased Goudeau but stopped when he

shot at them.

Chapter 7: December 12, 2005

¶19 On December 12, 2005, Peter O. was preparing to leave work

when he heard “a couple of bangs” coming from an alley behind his

building. When he stepped into the alley, he saw Goudeau holding a silver

gun pointed at a body on the ground. Goudeau then pointed the gun at

Peter, who heard a click. Peter rushed back into the building and locked

the door. The body was later identified as that of Tina Washington, who

had been fatally shot in the head. Jewelry that Washington had been

wearing earlier was absent from the scene.

Chapter 8: February 20, 2006

¶20 On February 20, 2006, Romelia Vargas and Mirna Roman

were found dead, side-by-side on the floor of Vargas’s food truck, each with

a gunshot wound to the head. Police did not find Vargas’s purse or driver’s

license at the scene.

Chapter 9: March 14, 2006

¶21 On March 14, 2006, Chao Chou and Liliana Sanchez left work

together in Chou’s car. Sanchez’s body was later found in the front

passenger seat, partially unclothed, with a fatal gunshot wound to her head.

Chou’s body was found in an alley a few blocks away, also with a gunshot

wound to his head. Ballistics evidence indicated that both victims had been

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shot inside the car, with the shooter seated in the rear passenger seat.

Chou’s car keys were missing and neither victim had any cash in their

wallets.

Chapter 10: March 29, 2006

¶22 On March 29, 2006, a business owner arriving at work noticed

a parallel track of drag marks and several blood spots running from a

parking lot at the front of his shop to storage sheds in the back. Police took

samples of the blood but did not locate a body. Five days later,

overwhelmed by a stench emanating from the storage shed area, the

business owner moved some debris and uncovered what appeared to be

human body parts. Police moved additional debris and discovered Kristin

Gibbons’s mostly nude and severely decomposed body with a gunshot

wound to her head. She had bruising and scratches to her arms and legs,

and her purse and cellphone were missing.

Chapter 11: April 10, 2006

¶23 On April 10, 2006, Sophia Nunez’s eight-year-old son came

home from school and found his mother lying submerged in a bathtub,

which was overflowing with water and her blood. Nunez had been shot in

the face at close range while in the bathtub. Her shirt had been pulled up

and her bra was undone.

Chapter 12: May 1, 2006

¶24 On May 1, 2006, Goudeau pressed a silver handgun against

Adrienne M.’s head as she sat in her car and ordered her to open the front

passenger door. After entering the car, Goudeau said he had just robbed a

store and needed to meet his friend, and repeatedly told Adrienne where

to drive and not to look at him. Goudeau eventually ordered her to pull

over in a secluded neighborhood and get undressed. Goudeau then

ordered her to perform oral sex on him. When she refused, he raised his

gun to her head and threatened to shoot her. She replied, “Go ahead.”

Adrienne heard the gun click, grabbed her car keys, and fled from the car.

Chapter 13: June 29, 2006

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¶25 On June 29, 2006, Carmen Miranda was at a carwash speaking

with her boyfriend on her cellphone when he overheard a male’s voice

demand that Miranda give him something. Surveillance video from the

carwash showed her vacuuming her car seats when Goudeau approached,

pushed her into the rear seat, and then drove away in her car. Miranda’s

car was found in a secluded parking lot two hours later. Miranda was lying

dead in the back seat with a gunshot wound to her face. Her pants had

been unzipped and pulled down.

III. ISSUES RAISED ON APPEAL

A. Denial of Motion to Suppress Evidence

¶26 Goudeau contends that the trial court erroneously denied his

motion to suppress evidence seized during a search of his home, arguing

that no probable cause supported the search warrant. We review a trial

court’s ruling on a motion to suppress for abuse of discretion, State v. Butler,

232 Ariz. 84, 87 ¶ 8, 302 P.3d 609, 612 (2013), but review de novo its

determination as to the existence of probable cause, State v. Buccini, 167

Ariz. 550, 556, 810 P.2d 178, 184 (1991). We consider only the evidence

presented at the suppression hearing and view the facts in the light most

favorable to sustaining the court’s ruling. State v. Manuel, 229 Ariz. 1, 4 ¶ 11,

270 P.3d 828, 831 (2011) (citation omitted).

¶27 Following Goudeau’s arrest on September 6, 2006, police

sought and obtained three separate search warrants for his home. The first

was issued on the day of Goudeau’s arrest and authorized police to seize,

among other items, “any and all shoes to include but not limited to black

shoes, white tennis shoes.” The supporting affidavit recounted facts related

to the sexual assaults described in Chapters 1, 3–5, and 12, including

victims’ descriptions of the perpetrator’s shoes, and explained that, based

on DNA evidence, police suspected Goudeau of committing all those

offenses.

¶28 The second search warrant was issued on September 15, 2006,

and pertained only to computers and related electronic equipment in

Goudeau’s home not covered by the first warrant. The second warrant was

based on Goudeau’s suspected involvement in sexual assaults.

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¶29 A few weeks later, police completed forensic analysis of blood

discovered on a pair of tennis shoes and a ski mask seized from Goudeau’s

home during the September 6 search. The blood on the tennis shoes

matched blood from murder victim Chao Chou (Chapter 9), and the blood

on the ski mask matched blood from murder victim Kristin Gibbons

(Chapter 10). In addition, ballistics testing revealed that the same gun had

been used in the shootings described in Chapters 2, 6–11, and 13, including

the murder of Tina Washington.

¶30 Police obtained a third search warrant on October 6, 2006. In

addition to describing the test results, the supporting affidavit noted that

Washington’s ten-carat yellow gold ring with her personal inscription was

missing. The third search warrant authorized police to seize from

Goudeau’s home “any and all clothing and shoes/footwear belonging to

Mark Goudeau” and a “ten carat yellow gold ring” with Washington’s

personalized engraving. Police found Washington’s ring in a small bag

tucked inside a shoe.

¶31 Goudeau moved to suppress the shoe and the ring. In

denying that motion, the trial court reasoned that the affidavit supporting

the third warrant neither focused on sexual assaults nor merely repeated

the first affidavit, but rather included information that led police to suspect

Goudeau had committed several murders.

¶32 The Fourth Amendment to the United States Constitution

guarantees the right of all persons to be free from unreasonable searches

and seizures and requires all warrants to be based on probable cause. “An

officer has probable cause to conduct a search if a reasonably prudent

person, based upon the facts known by the officer, would be justified in

concluding that the items sought are connected with criminal activity and

that they would be found at the place to be searched.” State v. Carter, 145

Ariz. 101, 110, 700 P.2d 488, 497 (1985).

¶33 Goudeau contends that police lacked probable cause to search

his home a third time because the affidavit supporting the October 6 search

warrant “failed to add anything specific regarding the Washington murder,

her jewelry[,] or anything else that was not in the first two search warrant

affidavits,” and contained “no facts linking [Washington’s murder] to

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[Goudeau] or contraband to his home.” But contrary to Goudeau’s

contentions, the third affidavit supported a reasonable inference that

Washington’s ring would be found in Goudeau’s home. The affidavit

included new information that Chou’s and Gibbons’s blood was discovered

on items seized during the first search; that the same .380 caliber handgun

had been used to kill Washington, Chou, and Gibbons; and that

Washington’s ring was missing. Even if ballistics evidence linking the

separate murders was available before the first search, the evidence linking

some of the murders to Goudeau—namely, the blood on the shoes and ski

mask—was not available until after the first search. Goudeau’s assertion

that no gun was ever linked to him is incorrect; the blood found on the shoes

and ski mask matched two murder victims who were killed by the same

gun as seven other victims, including Washington.

¶34 The new information presented in the third affidavit gave rise

to a fair probability that Washington’s ring would be found in Goudeau’s

home along with shoes related to her murder and other murders described

in the affidavit. See Buccini, 167 Ariz. at 556, 810 P.2d at 184 (“[P]robable

cause exists if ‘given all the circumstances set forth in the affidavit . . . there

is a fair probability that contraband or evidence of a crime will be found in

a particular place.’”) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). That

police had previously searched Goudeau’s home for shoes related to his

suspected commission of sexual assaults did not diminish probable cause

to subsequently search his home for Washington’s jewelry or other

evidence relating to her murder. Cf. State v. Prasertphong, 206 Ariz. 70, 80

¶ 29, 75 P.3d 675, 685 (2003) (holding probable cause supported second

search of same vehicle when new information revealed specific location of

weapon not found during first search), rev’d on other grounds, 541 U.S. 1039

(2004). The trial court did not abuse its discretion by denying Goudeau’s

motion to suppress.

B. Consumptive DNA Testing

¶35 Goudeau argues that the trial court unconstitutionally denied

him the opportunity to observe or participate in the State’s DNA testing

procedures that consumed certain DNA samples. We review constitutional

issues de novo, State v. Nordstrom (Nordstrom III), 230 Ariz. 110, 117 ¶ 27,

280 P.3d 1244, 1251 (2012), including evidentiary rulings that implicate the

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Confrontation Clause, State v. Ellison, 213 Ariz. 116, 129 ¶ 42, 140 P.3d 899,

912 (2006). But because Goudeau did not challenge the pre-indictment

consumption on constitutional grounds, we review those claims for

fundamental error. See State v. Rutledge, 205 Ariz. 7, 12–13 ¶¶ 28–30, 66 P.3d

50, 55–56 (2003); see also State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d

601, 607 (2005).

¶36 A fundamental error goes to the foundation of the case and

takes from the defendant a right essential to his defense, such that the

defendant could not possibly have received a fair trial. Henderson, 210 Ariz.

at 567 ¶ 19, 115 P.3d at 607. The defendant bears the burden of persuasion

in fundamental error review. Id. “To prevail under this standard of review,

a defendant must establish both that fundamental error exists and that the

error . . . caused him prejudice.” Id. at ¶ 20.

¶37 Between September 2005 and September 2006, the Phoenix

Police Department (“PPD”) Crime Lab performed Short Tandem Repeat

(“STR”) DNA testing on biological samples obtained from some victims as

well as items the perpetrator was believed to have touched. Goudeau’s

DNA was not found.

¶38 In August 2006, PPD detectives requested the Department of

Public Safety (“DPS”) Crime Lab to perform Y-STR testing on remaining

possible DNA samples and permitted DPS analysts to consume the samples

as needed.2 DPS analysts consumed the swabs and discovered Goudeau’s

full Y-STR profile on swabs taken from Alejandra L. (Chapter 3), and a

mixture containing his STR profile on swabs also taken from her.

¶39 Based on these results, police arrested Goudeau on September

6, 2006, and, as noted above, executed a search warrant on his house.

Further testing by DPS revealed Goudeau’s Y-STR profile on swabs taken

2 STR DNA analysis looks at both the X and Y chromosomes for total

human DNA. Y-STR DNA analysis looks only at the locations on the Y

chromosome, making it a better test for samples that include a limited

amount of male DNA when, as here, most of the sample contains female

DNA.

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from Sarah U., Jenny S., Any P., and Sophia Nunez, as well as Goudeau’s

partial STR profile on swabs taken from Nunez. Most of those swabs were

consumed in the testing process.

¶40 As noted above, PPD Crime Lab analysts also tested items

seized from Goudeau’s home during the September 6 search and

discovered Chao Chou’s STR profile on a pair of tennis shoes and Kristin

Gibbons’s STR profile on a ski mask. The cuttings and swabs from the ski

mask and shoes were not consumed.

¶41 After Goudeau was indicted, the State filed a motion seeking

court approval to consume additional items of evidence consisting of bodily

fluids collected from items of clothing connected to Goudeau or a victim.

Goudeau objected on due process grounds and alternatively requested to

observe or participate in the testing. The trial court granted the State’s

motion, overruled Goudeau’s objection, and denied his request. The State

later moved twice more to consume other items, and the court granted both

motions over Goudeau’s objections.

¶42 In total, the State requested consumptive DNA testing for

twenty-nine items after Goudeau was indicted. The State tested additional

portions of the shoes and ski mask seized from Goudeau’s home and found

Chou’s and Gibbons’s DNA on four items. On samples obtained from the

victims, Goudeau’s DNA was found on one swab from Sarah U. and one

swab from Jenny S. All the tested items were consumed, but the State

retained the DNA extracts for future testing.3

1. Due Process

¶43 “The Due Process Clause of the Fourteenth Amendment

requires that ‘criminal defendants be afforded a meaningful opportunity to

present a complete defense.’” State v. Lehr (Lehr III), 227 Ariz. 140, 150 ¶ 39,

254 P.3d 379, 389 (2011) (quoting California v. Trombetta, 467 U.S. 479, 485

(1984)). To safeguard this right, the Supreme Court “has developed what

3 DNA extract is the purified DNA that is removed from the sample

without the other parts of the cell. Any remaining DNA extract is testable.

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might loosely be called the area of constitutionally guaranteed access to

evidence.” Trombetta, 467 U.S. at 485 (internal quotation marks and citation

omitted).

¶44 A defendant is denied due process when the state “destroys

evidence that ‘both possess[ed] an exculpatory value that was apparent

before the evidence was destroyed, and [was] of such a nature that the

defendant would be unable to obtain comparable evidence by other

reasonably available means.’” Lehr III, 227 Ariz. at 150 ¶ 40, 254 P.3d at 389

(quoting Trombetta, 467 U.S. at 488–89). “When evidence is merely

potentially exculpatory, however, the ‘failure to preserve potentially useful

evidence does not constitute a denial of due process of law’ unless the

defendant ‘can show bad faith on the part of the police.’” Id. at 150 ¶ 41,

254 P.3d at 389 (quoting Arizona v. Youngblood, 488 U.S. 51, 58 (1988)).

¶45 Because no evidence showed that the consumed items were

potentially exculpatory, the question is whether the State acted in bad faith.

See id. at 150 ¶ 42, 254 P.3d at 389. With respect to the pre-indictment

consumption, Goudeau argues that because the State knew he was in jail

charged with the offenses against Lorena L. and Alejandra L. and was

represented by appointed counsel, due process required the State to notify

him of the pending consumption. We rejected a similar argument in Lehr

III, in which the defendant argued that the State acted in bad faith by

authorizing consumptive testing without first contacting the defendant or

his counsel. Id.

¶46 Here, as in Lehr III, the State retained the DNA extract for

independent testing. The State’s analysts also documented their

procedures, and this documentation was available to the defense. Goudeau

has not established fundamental error with respect to the pre-indictment

consumption.

¶47 Regarding the post-indictment consumptive testing,

Goudeau timely objected to the State’s procedures and suggested various

alternatives, including observing or videotaping the extraction process.

Although Lehr III did not consider this precise issue (the defendant there

did not object before testing and did not suggest alternatives), absent bad

faith, consumptive testing does not violate due process principles. See id.

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Here, there is no evidence of bad faith as the State sought and obtained prior

court approval for all post-indictment consumption.

¶48 Goudeau nevertheless argues that the trial court abused its

discretion and violated his due process rights by admitting into evidence

the results of the State’s consumptive testing. In support, Goudeau cites the

American Bar Association (“ABA”) Standards for Criminal Justice, DNA

Evidence § 16-3.4(e) (3d ed. 2007), which provides as follows:

If a motion objecting to consumptive testing is filed, the court

should consider ordering procedures that would permit an

independent evaluation of the analysis, including but not

limited to the presence of an expert representing the moving

party during evidence preparation and testing, and

videotaping or photographing the preparation and testing.

The trial court complied with § 16-3.4(e) when it considered and ultimately

denied Goudeau’s suggested procedures, finding them unnecessary and

unfeasible. Section 16-3.4(e), even were we to adopt and apply it in

Arizona, requires nothing more.

¶49 Moreover, Goudeau has not identified any information he

could not have obtained by reviewing the forensic analysts’ notes. We

agree with other courts’ views that, absent bad faith, due process does not

mandate observation of DNA testing or independent testing. See Kansas v.

Nguyen, 833 P.2d 937, 946–47 (Kan. 1992) (“In the absence of fraud or bad

faith on the part of the State and its investigative agents, due process does

not require the State to invite the accused to participate in or to supervise

testing procedures performed in the investigation of a crime, even where

the amount of evidence to be tested is so small sufficient material will not

remain to allow the defendant to conduct an independent analysis of the

evidence.”) (internal quotation marks and citation omitted); California v.

Griffin, 761 P.2d 103, 107 (Cal. 1988) (“When a piece of evidence in the

possession of the prosecution is destroyed because the prosecution finds it

necessary to consume the evidence in order to test it, there is no due process

violation. The prosecution must be allowed to investigate and prosecute

crime, and due process does not require that it forego investigation in order

to avoid destroying potentially exculpatory evidence.”).

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¶50 Generally, a defendant’s due process rights are sufficiently

protected by the opportunity to cross-examine the state’s expert regarding

the validity of the testing procedures. See Nguyen, 833 P.2d at 947. This is

especially so when, as here, the defendant fails to show that the opportunity

to observe the extraction process would have revealed or produced

exculpatory evidence. Cf. Massachusetts v. Williams, 919 N.E.2d 685, 695–96

(Mass. 2010) (holding that defendant was not entitled to suppression of

results of DNA testing because defendant failed to make threshold showing

that the inability to observe the DNA testing deprived him of exculpatory

evidence).

¶51 In any event, the post-indictment testing did not identify

Goudeau’s DNA on any additional items recovered from his home or on

the victims. Rather, the testing only confirmed what the pre-indictment

testing showed: Goudeau’s DNA was on Sarah U. and Jenny S., and Chou’s

and Gibbons’s DNA were found on items seized from Goudeau’s home.

Accordingly, because the jurors would have still received essentially the

same DNA evidence even if the trial court had precluded the results of the

post-indictment testing, any error was harmless beyond a reasonable

doubt.

2. Sixth Amendment

¶52 The Sixth Amendment guarantees criminal defendants the

right to confront and cross-examine adverse witnesses. See State v. Riggs,

189 Ariz. 327, 331, 942 P.2d 1159, 1163 (1997). In this context, the test to

determine whether a Sixth Amendment violation has occurred is whether

the defendant has been prevented from presenting “information [that]

bears either on the issues in the case or on the credibility of the witness.”

Id. at 331, 942 P.2d at 1163 (internal quotation marks and citation omitted).

¶53 Goudeau argues for the first time that the trial court’s “rigid

ruling prohibiting any observation of the state’s extraction process . . .

precluded [him] from conducting a meaningful cross examination and

presenting a complete defense” in violation of the Sixth Amendment. But

Goudeau’s counsel cross-examined the State’s forensic experts at length on

their consumption processes and the details of their analysis, and he had

access to all their case files. Goudeau also hired DNA experts whom he

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Opinion of the Court

could have called as witnesses during trial. In sum, Goudeau was not

prevented from cross-examining witnesses or presenting a complete

defense. The trial court did not commit fundamental error.

C. Denial of Motion to Sever

¶54 Goudeau contends that the trial court erred by denying his

motion to sever and by permitting joinder of all the counts in the

indictment. Because Goudeau failed to renew the motion at or before the

close of evidence, we review the severance issue for fundamental error

only. See State v. Laird, 186 Ariz. 203, 206, 920 P.2d 769, 772 (1996); Ariz. R.

Crim. P. 13.4(c).

¶55 Before trial, Goudeau moved to sever the seventy-four

offenses charged in the indictment, seeking separate trials for either the

thirteen different incidents or, alternatively, for the capital and noncapital

charges. The trial court denied the motion, finding that “the evidence

proffered for ‘other acts’ is for the purpose of proving identity, plan,

preparation, and opportunity to commit each of the charged offenses,” and

that “the similarities and overlapping connections that the State has

proffered . . . make it more likely than not that defendant committed the

charged offenses.” The court further found that the other-act evidence

“ha[s] a probative value that is not substantially outweighed by danger of

unfair prejudice and not cumulative.”

¶56 The trial court also found that “[t]he commission of sexual

assaults including oral and vaginal sex against strangers provides a

reasonable basis to infer that defendant has a character trait giving rise to

an aberrant sexual propensity to commit the crimes charged,” and that “the

evidentiary value of proof of the ‘other acts’ is not substantially outweighed

by dangers of Rule 403.”

¶57 Two or more offenses may be joined in an indictment if they

“[a]re of the same or similar character,” “[a]re based on the same conduct

or are otherwise connected together in their commission,” or “[a]re alleged

to have been a part of a common scheme or plan.” Ariz. R. Crim. P.

13.3(a)(1)–(3). On a party’s motion, the court must sever joined offenses if

“necessary to promote a fair determination of the guilt or innocence of any

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defendant of any offense.” Ariz. R. Crim. P. 13.4(a). A defendant is also

entitled to severance if, as here, the offenses are joined only because they

are of the same or similar character, “unless evidence of the other

offense[s] . . . would be admissible under applicable rules of evidence if the

offenses were tried separately.” Ariz. R. Crim. P. 13.4(b); see also State v.

Aguilar, 209 Ariz. 40, 51 ¶ 38, 97 P.3d 865, 876 (2004) (“A denial of a motion

to sever under Rule 13.4(b) is reversible error only if the evidence of other

crimes would not have been admitted at trial for an evidentiary purpose

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

¶58 Arizona Rule of Evidence 404(b) generally precludes the

admission of “evidence of other crimes, wrongs, or acts . . . to prove the

character of a person in order to show action in conformity therewith.” But

other-act evidence may be admitted for other purposes, such as proving the

identity of the perpetrator of the charged offense, Arizona Rule of Evidence

404(b), provided that “the evidence is relevant and the potential for

prejudice does not substantially outweigh its probative value,” State v. (Pete

J.) VanWinkle, 230 Ariz. 387, 393 ¶ 21, 285 P.3d 308, 314 (2012) (citing Ariz.

R. Evid. 403). “The identity exception to [Rule] 404(b) applies if identity is

in issue, and if the behavior of the accused both on the occasion charged

and on some other occasion is sufficiently distinctive, then proof that the

accused was involved on the other occasion tends to prove his involvement

in the crime charged.” State v. Stuard, 176 Ariz. 589, 597, 863 P.2d 881, 889

(1993) (internal quotation marks and citations omitted). “[T]he pattern and

characteristics of the crimes must be so unusual and distinctive as to be like

a signature.” Id. (internal quotation marks and citation omitted); see also

State v. Roscoe (Roscoe II), 184 Ariz. 484, 491 n.2, 910 P.2d 635, 642 n.2 (1996)

(“Identity and modus operandi are obviously closely related, if not

identical, since an unrelated act with a significantly similar modus operandi

may identify the defendant as the person who committed the crime

charged.”). “While identity in every particular is not required, there must

be similarities between the offenses in those important aspects when

normally there could be expected to be found differences.” State v. Roscoe

(Roscoe I), 145 Ariz. 212, 216, 700 P.2d 1312, 1317 (1984) (internal quotation

marks and citation omitted).

¶59 In addition to Rule 404(b), in criminal trials for sexual

offenses, Rule 404(c) allows the admission of other-act evidence “if relevant

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to show that the defendant had a character trait giving rise to an aberrant

sexual propensity to commit the offense charged.” Ariz. R. Evid. 404(c).

Before admitting evidence under Rule 404(c), the trial court must make

specific findings with respect to three aspects of the proffered evidence.

Aguilar, 209 Ariz. at 49 ¶ 30, 97 P.3d at 874. First, the court must find by

clear and convincing evidence that the defendant committed the other act.

Id. Second, it “must find that the commission of the other act provides a

reasonable basis to infer that the defendant had a character trait giving rise

to an aberrant sexual propensity to commit the charged sexual offense.” Id.

Third, it “must find that the evidentiary value of proof of the other act is

not substantially outweighed by the danger of unfair prejudice, confusion

of the issues, or other factors mentioned in Rule 403.” Id. In making the

final determination, the court must consider the factors listed in Rule

404(c)(1)(C)(i)–(viii). Id.

¶60 Here, in reviewing the trial court’s finding that the other-act

evidence would have been cross-admissible under Rules 404(b) or (c) in a

trial on any chapter had they been severed, we consider only the evidence

before the court when it ruled on the motion to sever. See State v. (Melinda)

VanWinkle, 186 Ariz. 336, 339, 922 P.2d 301, 304 (1996) (“In considering

whether the trial court erred in denying a motion to sever, we are mindful

that the trial court exercises considerable discretion in determining

whether, in light of the evidence then before the court, the defendant has made

the requisite showing of prejudice.” (emphasis added)). Goudeau

overlooks this important limitation, instead citing only evidence admitted

after the court had denied his motion.4 Indeed, the parties agreed that the

trial court would rule on Goudeau’s pretrial motion to sever based on the

pleadings, and the court’s ruling repeatedly notes, “[f]or purposes of this

motion only, defendant has not objected to the State’s proffer.” Based on

the State’s proffer (the only evidence available at the time of the court’s

ruling), we find no fundamental error in the court’s denial of the motion to

4 In a post-trial motion for a new trial, Goudeau again objected to

joinder of the counts, but at that point the argument was untimely and the

trial court did not err by denying it. See Ariz. R. Crim. P. 13.4(c) (defendant

must renew denied motion to sever “at or before the close of the evidence,”

because otherwise “[s]everance is waived”).

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sever.

¶61 Identity was the only disputed issue in this case, and the State

could properly introduce other-act evidence to prove that Goudeau

committed the crimes. The similarity of attributes and actions of the

perpetrator in the different chapters tended to show that the offenses were

also of the same or similar character for purposes of joinder under Rule

13.3(a)(1); and the State proffered many similarities among the chapters

supporting the trial court’s finding that Goudeau was more likely than not

the perpetrator.

¶62 First, the State proffered evidence that the same gun was

involved in Chapters 2, 6, 7, 8, 9, 10, 11, and 13, although the gun itself was

never found. Cf. New Jersey v. Sterling, 71 A.3d 786, 802 (N.J. 2013)

(permitting other-crimes evidence “on the issue of identity when a

particular weapon . . . used in one crime connects a defendant to another

offense”). The State further proffered that several victims described that

gun as silver- or chrome-colored.

¶63 Second, DNA evidence linking Goudeau to murder victims

Chao Chou (Chapter 9) and Kristin Gibbons (Chapter 10) was discovered

in Goudeau’s home, Goudeau’s DNA was found on murder victim Sophia

Nunez’s body (Chapter 11), and DNA evidence implicating Goudeau was

found on sexual assault victims Jenny S. (Chapter 1), Sarah U. (Chapter 1),

and Any P. (Chapter 5). Cf. United States v. Wright, 215 F.3d 1020, 1028 (9th

Cir. 2000) (“DNA evidence alone overwhelmingly establishes that [the

defendant] was one of the individuals [who committed the crime].”). Police

also found murder victim Tina Washington’s missing jewelry in Goudeau’s

home (Chapter 7).

¶64 Third, Goudeau’s modus operandi was similar in several

ways across the various crimes, including telling victims that he had just

committed a robbery and needed to reunite with his “buddy”; wearing the

same disguise for the crimes described in Chapters 4, 5, and 6; and wiping

off victims and areas he had touched before leaving the crime scene.

Additionally, Goudeau made all the surviving sexual assault victims walk

or drive to a secluded area, gave many of them directions, threatened to

shoot them unless they complied with his demands, and told them not to

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Opinion of the Court

look at him. Cf. Missouri v. McKinney, 314 S.W.3d 339, 341 (Mo. 2010)

(discussing that offenses might be connected for joinder purposes by

similarities in the manner in which they were committed).

¶65 The State’s proffered other-act evidence from the individual

chapters supported the trial court’s finding that such evidence would have

been cross-admissible under Rule 404(b) on the issue of identity in the other

chapters had they been severed for trial. See State v. Fierro, 107 Ariz. 479,

482–83, 489 P.2d 713, 716–17 (1971) (holding other-act evidence of wearing

similar disguise and using similar modus operandi admissible and

sufficient to prove identity). All chapters bore a sufficient evidentiary

connection to one another to implicate Goudeau as the perpetrator, whether

through use of the same gun, DNA evidence, or similar modus operandi,

even though in some chapters the ultimate crimes were different. See

Stuard, 176 Ariz. at 597–99, 863 P.2d at 889–91. Viewed together, the other-

act evidence from each chapter was admissible to prove identity for all

offenses.

¶66 Contrary to Goudeau’s argument, the trial court considered

the factual differences among the crimes, including that the victims’

descriptions of the perpetrator varied and that his modus operandi was not

identical. But in light of the significant similarities proffered by the State,

the court did not err in implicitly finding that the charged crimes were of

the “same or similar character” and thus properly joined. Ariz. R. Crim. P.

13.3(a)(1). And because identity was the only disputed issue at trial, the

court did not err by finding the other-act evidence relevant. Nor has

Goudeau established that the trial court abused its discretion in finding the

probative value of that evidence is not substantially outweighed by the

potential for unfair prejudice. In sum, based on the evidence before the trial

court when it denied Goudeau’s pretrial motion to sever, the court did not

fundamentally err.

¶67 Finally, Goudeau’s argument also fails because he cannot

establish prejudice. “When a defendant challenges a denial of severance on

appeal, he ‘must demonstrate 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. (Robert C.) Cruz, 137 Ariz. 541, 544, 672 P.2d 470,

473 (1983)); see also Henderson, 210 Ariz. at 567 ¶¶ 19–20, 115 P.3d at 607

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Opinion of the Court

(defendant must establish prejudice to prevail on fundamental error

review). Goudeau “cannot show such prejudice because the trial court

instructed the jurors to consider each charged offense separately and

advised them that the State had to prove each beyond a reasonable doubt.”

State v. Hausner, 230 Ariz. 60, 75 ¶ 48, 280 P.3d 604, 619 (2012). We presume

jurors follow the court’s instructions. State v. (Gilbert) Martinez, 230 Ariz.

208, 216 ¶ 40, 282 P.3d 409, 417 (2012). The record in this case bears out that

presumption as the jury acquitted Goudeau of four of the charges and hung

on the charge of sexual assault committed against murder victim Sophia

Nunez (Chapter 11). On this record, we reject Goudeau’s contentions that

joining the offenses for trial constituted fundamental error or otherwise

violated his rights under the Eighth or Fourteenth Amendments.

D. Right to Counsel

¶68 Goudeau contends that he was constructively denied his right

to counsel because the trial court failed to sufficiently address an

irreconcilable conflict and the lack of communication between him and his

attorneys. We review a trial court’s denial of a request for new counsel for

abuse of discretion. State v. Hernandez, 232 Ariz. 313, 318 ¶ 11, 305 P.3d 378,

383 (2013). A trial court abuses its discretion by summarily denying a

motion for change of counsel without inquiring into the “specific factual

allegations that raised a colorable claim that [the defendant] had an

irreconcilable conflict with his appointed counsel.” State v. Torres, 208 Ariz.

340, 343 ¶ 9, 93 P.3d 1056, 1059 (2004).

¶69 Four times during the trial court proceedings, Goudeau

requested an ex parte hearing to discuss the alleged lack of communication

with counsel and their allegedly inadequate investigation. The first

hearing, held on July 21, 2009, was attended by Goudeau and his two

attorneys, Randall Craig and Rodrick Carter. During the hearing, Goudeau

complained that his counsel failed to obtain cellphone tower records,

allowed the State to consume DNA swabs, and had given him only half of

the police reports. Goudeau indicated that he liked both attorneys, but he

worried they were ignoring his investigation requests and would not be

ready for trial.

¶70 In response, the trial court explained that the cellphone

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Opinion of the Court

company had destroyed the records and that defense counsel had objected

to DNA consumption. The court further explained that defense attorneys

frequently withhold their clients’ files because of concerns that other

inmates might obtain them and become state witnesses. The court also

addressed the communication issue.

¶71 Despite his complaints, Goudeau stated that he thought he

and counsel could “work it out,” and only requested that the court “ask

them to step it up a little bit.” Based on Goudeau’s presentation, the court

concluded that he could “continue to communicate” with counsel and

ordered counsel to take note of Goudeau’s concerns.

¶72 On April 6, 2010, Goudeau, his attorneys, and his investigator,

Art Hanratty, attended a second ex parte hearing. Goudeau again voiced

frustration at his attorneys’ purported lack of communication and

investigation. When directly asked if he wanted the court to do anything,

however, Goudeau responded by stating: “I want to keep my counsel, but

I want them to fight.” After hearing Goudeau’s concerns, the trial court

concluded that Goudeau wanted to continue with current counsel.

¶73 Six months later, on October 14, 2010, a third ex parte hearing

was held after Goudeau filed a motion to determine counsel. This time,

Goudeau was more adamant that there were “serious issues” between him

and his attorneys. He complained that there was still no communication,

no disclosure, and no investigation of his alibi witnesses and defenses. He

stated that he had “absolutely no faith” in his attorneys, the animosity and

tension between them made it “impossible to communicate,” he did not

believe reconciliation was possible, and he was “actually asking for new

counsel.” Goudeau then discussed a number of items he wanted defense

counsel to complete.

¶74 The trial court questioned the defense team members about

their ability to effectively represent Goudeau and, “recognizing the very

specific concerns Mr. Goudeau has expressed,” whether they could

continue to communicate with him. Both defense attorneys, as well as the

mitigation specialist, Steve Johnson (also a lawyer), assured the court that

they could and would effectively represent Goudeau but expressed

concerns about being ready for the January 2011 scheduled trial. Craig,

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Opinion of the Court

Johnson, and Hanratty also stated that they could continue to communicate

with Goudeau. Ultimately, Goudeau relented, telling the court he did not

want to start over, and he was willing to work with counsel if they agreed

to provide him with everything he requested.

¶75 Following Goudeau’s response, the trial court denied the

motion to determine counsel, finding that Goudeau’s complaints did not

give rise to a Sixth Amendment violation. The trial date, however, was

continued for several months, allowing more time for the defense to

prepare and work with Goudeau.

¶76 The trial began on April 19, 2011. On May 18, toward the end

of jury selection, the court held its final ex parte hearing on counsel-related

issues. Again, Goudeau raised concerns about his attorneys, mainly

focusing on a purported lack of preparation. Goudeau nonetheless stated

that he believed that his attorneys were “good trial attorneys,” and that he

was not asking the court to displace them. Addressing Goudeau’s

concerns, the trial court explained the role of counsel in criminal

proceedings, discussed various motions and trial procedures, and noted

that Goudeau and counsel seemed to be communicating well throughout

the jury selection process. Goudeau again affirmed that he would continue

to work with his attorneys and did not expressly complain further about

his counsel during the trial’s long guilt phase.

¶77 The federal and Arizona Constitutions guarantee criminal

defendants the right to representation by counsel. U.S. Const. amend. VI;

Ariz. Const. art. 2, § 24; see A.R.S. § 13-114(2). Although this right includes

the right to competent counsel, State v. LaGrand, 152 Ariz. 483, 486, 733 P.2d

1066, 1069 (1987), a defendant is not entitled to “counsel of choice, or to a

meaningful relationship with his or her attorney,” Torres, 208 Ariz. at 342

¶ 6, 93 P.3d at 1058 (internal quotation marks and citation omitted).

¶78 Nonetheless, “when there is a complete breakdown in

communication or an irreconcilable conflict between a defendant and his

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

been violated.” Id. An erroneous denial of a request to change counsel

deprives a defendant of his Sixth Amendment right to counsel and requires

automatic reversal. State v. Moody (Moody I), 192 Ariz. 505, 509 ¶ 23, 968

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P.2d 578, 582 (1998).

¶79 To preserve a defendant’s right to counsel, trial courts are

required to inquire on the record about the basis of a defendant’s request

for new counsel “[w]hen a defendant raises a seemingly substantial

complaint about counsel.” Torres, 208 Ariz. at 343 ¶ 7, 93 P.3d at 1059

(alteration in original) (quoting Smith v. Lockhart, 923 F.2d 1314, 1320 (8th

Cir. 1991)). The nature and scope of the inquiry required depends on the

nature of the defendant’s request. Id. at ¶ 8. Although “generalized

complaints about differences in strategy may not require a formal hearing

or an evidentiary proceeding,” id., if a defendant sets forth “sufficiently

specific, factually based allegations in support of his request for new

counsel,” the court “must conduct a hearing into his complaint,” id.

(quoting United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002)).

“Likewise, if the defendant makes specific allegations when requesting new

counsel, the trial court should elicit specific on-the-record responses to the

allegations from defense counsel.” Hernandez, 232 Ariz. at 320 ¶ 31, 305

P.3d at 385.

¶80 If the trial court probes a defendant’s request for substitute

counsel, the defendant bears the burden of demonstrating either a “total

breakdown in communication” or an “irreconcilable conflict with his

attorney.” Torres, 208 Ariz. at 343 ¶ 8, 93 P.3d at 1059. “To satisfy this

burden, the defendant must present evidence of a ‘severe and pervasive

conflict with his attorney or evidence that he had such minimal contact with

the attorney that meaningful communication was not possible.’”

Hernandez, 232 Ariz. at 318 ¶ 15, 305 P.3d at 383 (quoting Lott, 310 F.3d at

1249).

¶81 Goudeau contends that the trial court’s inquiry into his

request for new counsel (a request made at only the October 2010 hearing)

was “constitutionally insufficient” in light of the record in this case. He

argues that this Court should reverse, or alternatively, remand the case for

a more extensive evidentiary hearing on his claims.

¶82 We addressed a similar argument in Hernandez, 232 Ariz. at

318 ¶ 16, 305 P.3d at 383. There, the defendant alleged that his counsel had

visited him in jail only four times in over two years and had never spoken

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Opinion of the Court

with him about his case. Id. Although we found that the defendant “raised

sufficiently specific factual allegations to warrant an inquiry,” we

concluded that the trial court’s inquiry was sufficient. Id. at 320 ¶ 29, 305

P.3d at 385.

¶83 The trial court’s inquiry in this case was likewise sufficient.

As discussed above, supra ¶¶ 69–76, the court adequately addressed

Goudeau’s complaints in each of the three pre-trial ex parte hearings.

Goudeau asked for new counsel only at the third hearing in October 2010,

but after further discussion with the court and his defense team, he

essentially withdrew his request and agreed to continue working with his

counsel.

¶84 Finally, because Goudeau’s complaints during the May 18,

2011 hearing were, at bottom, related to counsel’s strategic decisions, the

trial court was not required to elicit on-the-record responses from defense

counsel. See Torres, 208 Ariz. at 343 ¶ 8, 93 P.3d at 1059 (“[G]eneralized

complaints about differences in strategy may not require a formal hearing

or an evidentiary proceeding.”); see also State v. Cromwell, 211 Ariz. 181, 187

¶ 30, 119 P.3d 448, 454 (2005) (“To constitute a colorable claim, a

defendant’s allegations must go beyond personality conflicts or

disagreements with counsel over trial strategy.”).

¶85 The trial court regularly observed the interaction between

Goudeau and his attorneys during the nearly four years of pretrial

proceedings, including hearings and multiple conferences devoted to

examination of Goudeau’s relationship with his lawyers. Additionally,

Goudeau and his counsel met privately several times to discuss his case. In

sum, Goudeau has not established a complete breakdown in

communication or irreconcilable conflict with his counsel. Contrary to

Goudeau’s assertions, neither “the scope of the hearings” nor the nature or

extent of the trial court’s “inquiry” were “constitutionally insufficient,” and

the court did not effectively deprive Goudeau of his constitutional right to

counsel.

E. Multiple Opening Statements

¶86 Goudeau asserts that he was deprived of a fundamentally fair

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Opinion of the Court

trial when the trial court permitted the State to make a separate opening

statement for each of the thirteen chapters. We review a trial court’s

decision on the mode and order of trial for abuse of discretion, see Gamboa

v. Metzler, 223 Ariz. 399, 402 ¶ 13, 224 P.3d 215, 218 (App. 2010), but review

de novo the interpretation of court rules, State v. Fitzgerald, 232 Ariz. 208,

210 ¶ 10, 303 P.3d 519, 521 (2013).

¶87 During a pretrial case management conference, the State

noted its intent to present evidence of the charged crimes in chronological

order and suggested the possibility of “mini opening statements” before

each segment, “as opposed to one three-hour long statement.” Goudeau

objected, but the trial court observed that mini-opening statements could

make the trial less complicated and the evidence more understandable for

the jurors. After Goudeau objected again and the parties briefed the issue,

the court granted the State’s request.

¶88 Before any evidence was presented, the trial court instructed

the jury that statements and arguments of counsel are not evidence. The

State made thirteen opening statements corresponding with the chapters.

Goudeau made opening statements on some chapters, but reserved

opening statements on others. Before the State’s second opening statement,

the court reiterated that “each [opening] will be separate and there would

be no use of one opening to use as a close for another.” At the close of

evidence, the court again instructed the jury that what counsel said during

opening statements and closing arguments was not evidence.

¶89 Goudeau asserts that Arizona Rule of Evidence 611(a) does

not authorize the trial court to allow multiple opening statements and that

doing so violates due process and Arizona Rule of Criminal Procedure

19.1(a). We conclude that although Evidence Rule 611(a) does not address

the issue, Criminal Procedure Rule 19.1(a) and the court’s inherent

authority authorized the court to permit the procedure, which comported

with due process principles.

¶90 Rule 611(a) provides:

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The court should exercise reasonable control over the mode

and order of examining witnesses and presenting evidence so

as to:

(1) make those procedures effective for determining

the truth;

(2) avoid wasting time; and

(3) protect witnesses from harassment or undue

embarrassment.

Ariz. R. Evid. 611(a).5 That rule applies to the presentation of witnesses and

evidence and does not plainly authorize a court to permit sequential “mini”

opening statements, as occurred here. But Rule 611(a) does not preclude

this procedure.

¶91 Arizona Rule of Criminal Procedure 19.1(a) prescribes the

order of trial proceedings “unless otherwise directed by the court,” thereby

authorizing the court to vary the order. Cf. State v. Guerrero, 159 Ariz. 568,

571, 769 P.2d 1014, 1017 (1989) (observing that Rule 19.1(a) “contemplates

the possibility of a different order of proceedings”). Thus, contrary to

Goudeau’s argument, Rule 19.1(a) implicitly authorized the trial court to

“otherwise direct” the order of proceedings by allowing sequential, mini-

opening statements.

¶92 Additionally, “[t]rial judges have inherent power and

discretion to adopt special, individualized procedures designed to promote

the ends of justice in each case that comes before them.” Hedlund v. Sheldon,

173 Ariz. 143, 146, 840 P.2d 1008, 1011 (1992) (quoting State v. Lambright, 138

Ariz. 63, 78, 673 P.2d 1, 16 (1983) (Feldman, J., specially concurring)); accord

Pool v. Superior Court, 139 Ariz. 98, 103–04, 677 P.2d 261, 266–67 (1984) (“The

trial judge is armed with both discretionary power and rules which he may

use to control proceedings.”); Fed. R. Evid. 611 advisory committee’s note

5 Rule 611(a) was amended after Goudeau’s trial. See Ariz. R. Evid.

611 cmt. to 2012 amend. We cite the current version because the changes

did not materially alter the rule. See id. (noting the changes “are intended

to be stylistic only”).

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Opinion of the Court

to 1972 amend. (“The ultimate responsibility for the effective working of

the adversary system rests with the judge.”). Given the length and

complexity of this trial—which involved seventy-four counts involving

thirty-two victims and lasted seven-and-a-half-months—the trial court did

not abuse its discretion in permitting brief opening statements before each

chapter.

¶93 Goudeau’s due process argument is also unavailing. “A trial

judge must control the courtroom to help ensure a fair trial” and “must

refrain from taking any action calculated to influence the jury or likely to

prejudice the defendant,” but “[w]ithin reason, a judge does not display

bias or cause prejudice when acting sua sponte to control the courtroom

and the trial.” State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993).

¶94 Here, the trial court reasonably permitted the parties to make

brief opening statements before each chapter to orient jurors to the

pertinent facts that would be presented and to assist in their understanding

of the evidence. See State v. King, 180 Ariz. 268, 278, 883 P.2d 1024, 1034

(1994) (“Opening statements are intended to inform the jury of what the

party expects to prove and prepare the jury for the evidence that is to be

presented.”). Goudeau had that opportunity and exercised it several times.

¶95 Moreover, there is no indication that the court’s ruling was

either designed or likely to cause prejudice. On the contrary, the court

emphasized in its ruling that it “would not allow either party to try to

remind the jurors of what they think they should have heard last week. It

would always be an opening statement of anticipated evidence for the next

chapter.” Toward the end of the trial, the court admonished the State to

“stay with one chapter at a time” in its opening statements. Finally, the

court twice instructed the jury that counsels’ opening statements and

arguments were not evidence, and we presume that the jurors followed

those instructions. State v. Newell, 212 Ariz. 389, 403 ¶ 68, 132 P.3d 833, 847

(2006). The trial court’s order did not violate due process.

F. Admission of Other-Act Evidence

¶96 Goudeau argues that the trial court erred in admitting other-

act evidence that he kidnapped and assaulted sisters Lorena L. and

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Opinion of the Court

Alejandra L. (Chapter 3). We review a trial court’s admission of other-act

evidence for abuse of discretion. Hausner, 230 Ariz. at 78 ¶ 68, 280 P.3d at

622. “When the State seeks to admit evidence of other acts of the defendant,

it must prove by clear and convincing evidence that the defendant

committed the other acts; they must be offered for a proper purpose; they

must be relevant; and, consistent with Rule 403, their probative value must

not be substantially outweighed by the danger of unfair prejudice.” Id. at

78 ¶ 69, 280 P.3d at 622.

¶97 In another case, a jury found Goudeau guilty of the September

2005 kidnapping, sexual assault, sexual abuse, and aggravated assault of

the two sisters.6 The evidence at that trial showed that Goudeau, wearing

a baseball hat pulled low, tan pants, boots, and a long sleeved orange shirt,

had approached the sisters on the street while armed with a silver handgun.

He told the sisters he had just robbed a store, instructed them not to look at

his face, and ordered them to walk behind a bush, where he sexually

assaulted both. Goudeau tried to destroy trace biological evidence, but he

left DNA evidence on Alejandra’s breast. The State relied on the sisters’ in-

court identifications as well as DNA evidence to convict Goudeau.

¶98 Before trial in the instant case, the State filed a notice of intent

to introduce evidence of Goudeau’s crimes against the sisters, pursuant to

Evidence Rules 404(b) and (c), to show identity and modus operandi, as

well as sexual propensity to commit the charged offenses. Goudeau

conceded that his convictions established the prior acts and that the

proffered evidence was relevant, but argued that the acts were not

sufficiently similar to the crimes charged in this case. He noted the

discrepancy in victims’ descriptions of the suspect and the varying

disguises worn in committing the offenses. In a detailed minute entry, the

trial court granted the State’s request under both Rules 404(b) and (c),

finding substantial similarities between the crimes and that the probative

value of the evidence was not substantially outweighed by the danger of

6 The court of appeals affirmed Goudeau’s convictions and related

sentences. State v. Goudeau, 1 CA-CR 07-1069, at *1 ¶ 1 (App. Dec. 17, 2009)

(mem. decision).

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unfair prejudice.

¶99 The trial court did not abuse its discretion in admitting

evidence of the prior crimes against the sisters under Rule 404(b) to prove

identity of the perpetrator, based on the similarities described in the court’s

minute entry: the perpetrator (1) told the victims he had just committed a

robbery and was waiting for a friend; (2) was armed with a silver handgun;

(3) moved the victims from one point to another secluded area, where he

had them disrobe; (4) wore something to make identifying him difficult; (5)

told the victims not to look at his face; (6) committed a sexual act; and (7)

attempted to destroy physical evidence. At trial, the State introduced much

of the same evidence that was presented in the prior trial, including both

sisters’ in-court identifications of Goudeau as their assailant, as well as the

DNA evidence.

¶100 Focusing on certain dissimilarities among the offenses and

variations in victims’ descriptions of the assailant, Goudeau asserts that

many of the “similarities” identified by the trial court occur in most

kidnappings and sexual assaults, and that the similarities did not exist in

every charged sexual assault where the victims survived. But sufficient

similarities existed to warrant admission of the evidence under Rule 404(b).

Cf. State v. Valles, 162 Ariz. 1, 5, 780 P.2d 1049, 1053 (1989) (finding evidence

of prior robbery admissible under Rule 404(b) when both robberies

occurred around the same time and bore sufficient similarities in the way

the defendant distorted his appearance, carried a gun, and demanded

money from a back room safe); Fierro, 107 Ariz. at 482–83, 489 P.2d at 716–

17 (evidence of subsequent rape admissible because two crimes bore

sufficient similarities in the way the defendant wore a mask and gloves,

carried a gun, and tied both victims up and raped them). As we stated in

Bible:

Absolute identity in every detail cannot be expected. Where

an overwhelming number of significant similarities exist[s],

the evidence of the prior act may be admitted. The term

“overwhelming” does not require a mechanical count of the

similarities but, rather, a qualitative evaluation. Are the two

crimes so similar, unusual, and distinctive that the trial judge

could reasonably find that they bear the same signature? If

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Opinion of the Court

so, the evidence may be admissible and any dissimilarities go

to its weight.

175 Ariz. at 576, 858 P.2d at 1179 (internal quotation marks and citation

omitted).

¶101 For the purpose of proving identity, the trial court noted

several meaningful similarities between Goudeau’s crimes against the

sisters and the charged incidents in this case involving a surviving victim.

The court did not abuse its discretion in finding that the probative value of

evidence of those prior crimes and of the DNA match was not substantially

outweighed by a danger of unfair prejudice, the evidence was not

cumulative, and any prejudicial effect could be ameliorated with

appropriate jury instructions. Finally, the court instructed the jury on how

to evaluate the other-act evidence before it was presented and again before

closing arguments.

¶102 The trial court did not abuse its discretion in admitting the

other-act evidence under Rule 404(b). In light of our conclusion, we need

not address whether the other-act evidence was also admissible under Rule

404(c).

G. Admission of Pretrial and In-Court Identifications

¶103 Goudeau argues that the trial court deprived him of due

process and abused its discretion in permitting in-court identifications of

him by seven victims and one in-court voice identification by another

victim. We review the reliability and fairness of a challenged identification

for abuse of discretion. State v. Lehr (Lehr I), 201 Ariz. 509, 520 ¶ 46, 38 P.3d

1172, 1183 (2002). We consider only the evidence presented at the

suppression hearing and defer to the trial court’s factual findings unless

clearly erroneous, but we review de novo the “ultimate question” of the

constitutionality of a pretrial identification. See State v. Garcia, 224 Ariz. 1,

7–8 ¶ 6, 226 P.3d 370, 376–77 (2010).

1. Identification Testimony at Trial

a. Jenny S. (Chapter 1)

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¶104 On August 6, 2005, the day she was assaulted, Jenny S.

described her assailant as a “black male, 5’7”, heavyset,” wearing a baseball

hat, t-shirt, and jeans. She reported that “it was dark,” and “she never

looked at his face.” In the days that followed, she twice told police that she

could not identify her assailant, and in October 2005, she failed to identify

anyone from a photo array that did not contain Goudeau’s photo.

¶105 When police arrested Goudeau on September 6, 2006, his

photograph was given “wide release” by the media. Jenny admitted to

seeing his photo and a composite sketch on television multiple times. On

July 26, 2008, police again interviewed Jenny, who reiterated that she did

not see her assailant’s full face during the assault because he was wearing

a hat. Jenny stated that she recognized Goudeau from television “a little

bit,” but thought she came to recognize him as her assailant when she saw

him sitting in court at a preliminary hearing. She reported that Goudeau

was wearing a white long sleeve button-up shirt and tie at that hearing. At

one point during the interview, Detective Femenia asked Jenny what she

thought when she saw Goudeau’s photo on television. Jenny replied that

she was “happy [be]cause they got him,” and Detective Femenia said

“Good.”

¶106 Before trial, Goudeau moved to preclude Jenny’s in-court

identification and asked the court to make its determination “based on the

pleadings and attachments only.” He conceded that the State was not

responsible for the media presentation of his photo but argued that

Detective Femenia bolstered Jenny’s identification at the July 26 interview.

¶107 The trial court denied Goudeau’s motion, agreeing with the

State that no state action affected Jenny S.’s pretrial identification that

would require precluding her identification testimony at trial. The court

reasoned that Detective Femenia’s response was in “support of the victim’s

relief rather than any affirmation of her identification,” and that the State

was not responsible for the media exposure or Jenny’s attendance at the

preliminary hearing. The court ruled that Goudeau could attempt to

impeach her with prior statements and present the circumstances of the

media exposure at trial and would be entitled to an identification jury

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instruction.7

¶108 Jenny identified Goudeau as her assailant at trial. She was

subsequently cross-examined on her identification, including that she could

not recall the details of her description immediately after the offense, was

told by her mother that the police had caught a suspect, and had seen

Goudeau on television.

b. The Sisters, Lorena L. and Alejandra L. (Chapter 3)

¶109 Before the prior trial in the sisters’ case, Goudeau moved to

prohibit the State from asking either of them to identify Goudeau in court.

Thereafter, a Dessureault hearing was held to determine the admissibility of

their in-court identifications in that case. See State v. Dessureault, 104 Ariz.

380, 453 P.2d 951 (1969). Here, the trial court resolved the same issue based

on its review of the transcripts from the prior hearing.

¶110 At the prior hearing, Lorena L. identified Goudeau as her

assailant, noting that she recognized his complexion and “[t]he eyes.” She

testified that she saw her assailant’s face a few times during the assault and

described him a few days later as a muscular black male with a thin

mustache, approximately six feet tall, and around thirty years old.

¶111 Lorena acknowledged her inability to identify anyone in three

photographic lineups, one of which contained Goudeau’s photo. She

further stated that she did not identify Goudeau until she saw his arrest on

television and recognized his expressions and the way he walked. She

testified that seeing him on television made it “easier for [her] to see him

today.” She also said that Detective Vasquez told her before the hearing

that police arrested Goudeau because he was linked to her case.

7 The trial court ultimately gave not only a standard jury instruction

regarding testimony of witnesses generally, but also a separate instruction

specifically on eyewitness identifications. See State v. Nottingham, 231 Ariz.

21, 27 ¶ 16, 289 P.3d 949, 955 (App. 2012) (noting that when requested a trial

court must separately and specifically instruct the jury on eyewitness

identification when it is at issue in the case).

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¶112 Based on her testimony, the trial court in the prior case noted

three possible scenarios. Lorena identified Goudeau (1) based strictly on

her memory of the assault; (2) based on her memory of the assault, but also

influenced by what she saw on television; or (3) based solely on what she

saw on TV. When asked which of the three scenarios most closely matched

her belief, Lorena responded “[t]he first.”

¶113 Alejandra L. also identified Goudeau during the earlier

Dessureault hearing. She testified that she was very close to her assailant for

about an hour and got a good look because of the lighting. Alejandra

described him as a light-skinned African-American with a medium build,

approximately six feet tall, and twenty-five to thirty years old. On March

27, 2006, she selected a different individual from a photo array that included

Goudeau, rating her confidence level as a seven out of ten. Although she

admitted to seeing Goudeau’s composite sketch and photo on television

and recognizing his face, she maintained that she identified Goudeau

“[b]ecause of what happened to me.”

¶114 By admitting the sisters’ other-act testimony over Goudeau’s

objection, supra ¶ 98, the trial court implicitly allowed the sisters to identify

him at trial in this case, and both of them did so. They were cross-examined

on details of their identifications, including their prior statements.

c. Margie M. (Chapter 4)

¶115 On September 28, 2005, Margie M. told police that her

assailant was in her car “for well over a half an hour,” and “talked

continually.” Because she did not see his face, she requested a voice lineup.

¶116 On July 17, 2008, Margie heard a voice lineup consisting of the

separately recorded voices of five male police officers and Goudeau. Each

exemplar was recorded on a separate CD and consisted of the same few

sentences looped. Detective Femenia testified at trial that all the voices,

including Goudeau’s, were recorded in the same room with the same

equipment. The entire voice lineup was audio and video recorded.

¶117 Margie answered “No” when asked before the lineup

whether she had heard Goudeau speak in court or on television. Detective

Femenia told her that “the suspect’s voice may or may not be in this group

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of recordings.” After listening to each recording once, Margie replayed

exemplars 2, 3, and 4 again before identifying exemplar 4, which was

Goudeau, as the voice of her assailant. Detective Femenia asked whether

she identified the voice based on her recall from the day of the incident, and

she responded “Yes.” Throughout the playing of the tapes, Detective

Femenia did not comment or display any reaction.

¶118 Before trial, Goudeau moved to preclude evidence of

Margie’s voice identification. The trial court denied the motion. Although

the court noted that Goudeau’s exemplar “sounds like it was done in a

cave” and is “perceptively distinct from the other exemplars,” it concluded

that the procedure was not unduly suggestive and that Margie’s

identification was the product of her recall of the incident and not the

differences in the recording.

¶119 The video of the voice identification was played at trial.

Margie also testified that Goudeau’s voice was “my nightmare for years”

and that, although she could not remember what number she had originally

selected in the voice lineup three years earlier, she “knew that was his

voice” when she heard it played again at trial. Margie was subsequently

cross-examined on details of her identification.

d. Any P. (Chapter 5)

¶120 Any P. testified at trial that she spent approximately thirty to

forty-five minutes with her assailant, whom she described as 5’11” tall, 170–

180 pounds, and wearing a khaki fisherman hat with a long-haired wig and

glasses without any lenses. She recalled having helped develop a

composite sketch, which she rated as a nine out of ten in terms of accuracy

of depiction, and acknowledged having previously identified a different

individual from a photo array that did not include Goudeau. The parties

stipulated that on September 7, 2006, Any failed to identify anyone in a

photo array that included Goudeau and told police that she did not

remember her assailant’s appearance.

¶121 Any acknowledged having seen Goudeau’s arrest on

television and thinking “[t]hat was him,” but at trial she was uncertain

whether seeing Goudeau on television would affect her ability to identify

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him in court that day. Outside the jury’s presence, the court held a

Dessureault hearing during which Any maintained that her identification

was based on her memory of the assault. After considering the reliability

factors set forth in Neil v. Biggers, 409 U.S. 188 (1972), the trial court

concluded that Any’s identification was sufficiently reliable and denied

Goudeau’s motion to preclude. Any was extensively cross-examined on

the details of her identification.

e. Jesus L.

¶122 Before Jesus L.’s testimony, the State requested and the court

granted a brief Dessureault hearing to determine the admissibility of

identification testimony by him. At the hearing, Jesus identified Goudeau

as the man who robbed him on November 7, 2005. Jesus acknowledged

that before coming into court he was unsure whether he could identify the

robber because he had not seen him since that date. But he testified that he

identified Goudeau in court based on his memory of the robbery. He

further testified that the restaurant where he worked was well lit and that

he observed Goudeau from a foot away for a “[m]aximum of two minutes.”

¶123 Considering Jesus’s testimony in light of the Biggers factors,

the trial court admitted his identification testimony. Jesus subsequently

identified Goudeau at trial and was cross-examined on his identification.

f. Cheryl M. (Chapter 6)

¶124 The trial court also conducted a Dessureault hearing during

trial before Cheryl M.’s testimony. Cheryl identified Goudeau at the

hearing as the man who attempted to rob her and her mother at gunpoint

outside the restaurant where Jesus L. worked. She testified that the location

of the encounter was “well lit,” and that he was three feet away from her at

one point, allowing her to clearly see his face. She described him as an

African-American male, with a light goatee and dark eyes, wearing blue

jeans and a fishing cap with a wig, and carrying a “metallic or gray colored”

handgun.

¶125 Cheryl acknowledged having seen Goudeau’s arrest and

composite sketch on television, but maintained that she identified him

based on her memory of the incident alone, rating her confidence level as a

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Opinion of the Court

nine out of ten, although she had earlier failed to identify anyone in a photo

array that included Goudeau’s photo.

¶126 The trial court allowed Cheryl’s in-court identification. The

court reasoned that any weakness in the identification “goes to weight and

not admissibility.” She identified Goudeau at trial and was subsequently

cross-examined on her identification.

g. Peter O. (Chapter 7)

¶127 On August 10, 2011, a Dessureault hearing was held during

trial to determine the admissibility of identification testimony by Peter O.

At the hearing, he testified that on the evening of December 12, 2005, he

was getting ready to leave work when he heard noises coming from the

alley behind his office building. When he went outside and looked, he saw

Goudeau about ten feet away holding a chrome handgun pointed at a body

on the ground. When Goudeau noticed Peter, he aimed his gun at him.

¶128 Peter reported looking at Goudeau for five to ten seconds

before he turned and went back into his building. He described Goudeau

as having “[a] very cold stare,” noticeable eyebrows, a “protrud[ing]”

forehead, and wearing a hooded sweatshirt and white sneakers. He

testified that he saw Goudeau’s composite sketch in the news and

“immediately said that looks like him.” He also admitted to having seen

Goudeau’s photograph on the internet. He was never shown a

photographic lineup.

¶129 Peter testified that he identified Goudeau based on his

memory of the night in question, stating that he could “never forget those

eyes.” The trial court concluded that “there was no police action vis-à-vis

identification” and that, considering the Biggers factors, Peter’s

identification was sufficiently reliable and admissible. He identified

Goudeau at trial and was subsequently cross-examined on his

identification.

2. Discussion

¶130 The Fourteenth Amendment’s Due Process Clause requires

that pretrial identification procedures be conducted in a fundamentally fair

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manner to ensure the suspect’s right to a fair trial. Lehr I, 201 Ariz. at 520

¶ 46, 38 P.3d at 1183. But “the due process clause does not preclude every

identification that is arguably unreliable; it precludes identification

testimony procured by the state through unduly suggestive pretrial

procedures.” State v. Williams, 166 Ariz. 132, 137, 800 P.2d 1240, 1245 (1987);

accord Perry v. New Hampshire, 132 S. Ct. 716, 726 (2012) (“The due process

check for reliability . . . comes into play only after the defendant establishes

improper police conduct.”).

¶131 To establish that admission of identification testimony

violated due process, a defendant must first show that the state was

responsible for the suggestive pretrial identification. See Garcia, 224 Ariz.

at 8 ¶ 9, 226 P.3d at 377. Absent state action, the trial court need not analyze

the reliability of an identification. See id. at ¶ 12; State v. Prion, 203 Ariz. 157,

160 ¶ 15, 52 P.3d 189, 192 (2002) (“There is no need to perform a Biggers

analysis when the identification is not the result of state action.”). In such

circumstances, reliability is sufficiently tested “through the rights and

opportunities generally designed for that purpose, notably, the presence of

counsel at post indictment lineups, vigorous cross-examination, protective

rules of evidence, and jury instructions on both the fallibility of eyewitness

identification and the requirement that guilt be proved beyond a reasonable

doubt.” Perry, 132 S. Ct. at 721.

¶132 When sufficient state action is established, a two-part test is

used for determining the admissibility of identification testimony: “(1)

whether the method or procedure used was unduly suggestive, and (2)

even if unduly suggestive, whether it led to a substantial likelihood of

misidentification, i.e., whether it was reliable.” Lehr I, 201 Ariz. at 520 ¶ 46,

38 P.3d at 1183. We consider the totality of the circumstances in

determining whether an identification is reliable, including (1) the witness’s

opportunity to view or hear the perpetrator at the time of the offense; (2)

the witness’s degree of attention; (3) the accuracy of the witness’s prior

description; (4) the level of certainty; and (5) the length of time between the

crime and the confrontation. See Biggers, 409 U.S. at 199–200; Lehr I, 201

Ariz. at 521 ¶ 48, 38 P.3d at 1184; see also State v. Rojo-Valenzuela, 237 Ariz.

448, 449 ¶ 1, 451 ¶ 10, 352 P.3d 917, 918, 920 (2015).

¶133 “[A]n in-court identification resulting from inherently

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suggestive initial identification is admissible unless the procedure created

a ‘very substantial likelihood of . . . misidentification.’” Rojo-Valenzuela, 237

Ariz. at 450 ¶ 7, 352 P.3d at 919 (quoting Manson v. Brathwaite, 432 U.S. 98,

116 (1977)). “Short of that point, such [identification] evidence is for the

jury to weigh. . . . Juries are not so susceptible that they cannot measure

intelligently the weight of identification testimony that has some

questionable feature.” Brathwaite, 432 U.S. at 116.

¶134 Here, the State was not responsible for the pretrial

identifications by Jenny S., Lorena L., Alejandra L.,8 Any P., Cheryl M.,

Peter O., or Jesus L. Although each acknowledged having previously seen

Goudeau’s photograph, arrest video, and/or composite sketch in the

media, Goudeau does not claim that the media acted as an agent of the state.

Cf. Garcia, 224 Ariz. at 8 ¶ 11, 226 P.3d at 377 (finding no state action where

an unidentified third party used police-released photos to create and

distribute a flier); Prion, 203 Ariz. at 160 ¶ 15, 52 P.3d at 192 (same, where

article that accompanied defendant’s photograph was written by a

freelance writer who “had some contact with,” but was not employed by,

the police).

¶135 To be sure, Phoenix police released some information about

the suspect to the media. But after Goudeau’s arrest, the defense team also

released information to the media. Moreover, the State took measures to

limit media influence by contacting the victims to show them a photo array

before Goudeau’s arrest and asking the media to delay broadcasting news

of the arrest until the police had an opportunity to do so. In sum, although

police disseminated Goudeau’s composite sketch and photo to the media,

there is no evidence that police attempted to influence any of these

witnesses’ pretrial identifications, for example, by arranging for or

8 The State argues that Goudeau is collaterally estopped from

challenging the sisters’ identifications because the issue was previously

litigated and decided in the prior trial and then affirmed on appeal. See

Goudeau, 1 CA-CR 07-1069, at *4–5 ¶¶ 22–31. But “[c]ollateral estoppel in

criminal cases is not favored and is applied sparingly.” State v. Rodriguez,

198 Ariz. 139, 141 ¶ 6, 7 P.3d 148, 150 (App. 2000). Accordingly, we address

the merits of Goudeau’s challenge regarding the sisters’ identifications.

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encouraging victims to view the media coverage. Cf. State v. Nordstrom

(Nordstrom I), 200 Ariz. 229, 241 ¶ 24, 25 P.3d 717, 729 (2001) (finding no

state action where a witness observed the defendant in a newscast of his

arraignment); O’Connell v. Indiana, 742 N.E.2d 943, 948 (Ind. 2001) (“A

witness’ viewing of a suspect’s photograph through the media does not

ordinarily constitute an impermissibly suggestive identification procedure

because it is not engineered by prosecution or law enforcement agencies.”).

Consequently, even if the media coverage played a role in the victims’

identifications of Goudeau—an issue disputed by the State and the

victims—the State was not sufficiently responsible for the coverage to

require a reliability determination.

¶136 Goudeau argues that the in-court identifications by Jenny S.,

Jesus L., Cheryl M., and Peter O. were in essence one-person showups

because these victims had not previously identified Goudeau in a photo

array or otherwise. With respect to Jenny S., who identified Goudeau as

her assailant after seeing him at a preliminary hearing, our decision in State

v. Forde, 233 Ariz. 543, 315 P.3d 1200 (2014), is controlling. There, we held

that the trial court was not required to conduct a Dessureault hearing

because “[n]othing suggests that the State asked [the victim] to attend the

[pretrial] hearing to see [the defendant].” Forde, 233 Ariz. at 556–57 ¶ 30-31,

315 P.3d at 1213–14 (citing Perry, 132 S. Ct. at 730, and Williams, 166 Ariz. at

137, 800 P.2d at 1245, for the proposition that “only state action requires a

Dessureault-type hearing”). Although Goudeau correctly points out that the

witness in Forde regularly attended hearings on her own before identifying

the defendant, id. at 556 ¶ 31, 315 P.3d at 1213, his contentions that Jenny S.

attended the hearings “at the request of victim witness advocates,” and that

Goudeau “was the only non-lawyer African American male in jail garb and

shackles . . . [who] she was shown that day,” are without support in the

record. Jenny S. reported that Goudeau was wearing a long sleeve button-

up shirt and tie when she identified him at the hearing. Moreover, the trial

court found that Jenny’s presence in court “was as a result of [her] Arizona

Constitutional right to be present and not the voluntary initiation of the

State,” and the record supports that finding. Accordingly, under Forde, the

trial court did not err in admitting Jenny S.’s in-court identification.

¶137 Nor did the court err in allowing Jesus L., Cheryl M., and

Peter O. to identify Goudeau in court. Each identified Goudeau for the first

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time during regular court proceedings in which they were called as

witnesses. Goudeau argues that these identifications were conducted

under unduly suggestive circumstances because he was the only African-

American male in the courtroom and was seated beside his two defense

lawyers.

¶138 The court of appeals has upheld the admission of eyewitness

identification testimony under similar circumstances in State v. Nottingham,

231 Ariz. 21, 289 P.3d 949 (App. 2012). Before the second trial in that case

(the first trial having ended in a mistrial), the defendant unsuccessfully

moved to suppress any in-court identifications by the witnesses who had

identified him for the first time in the previous trial. Id. at 23 ¶¶ 2–3, 289

P.3d at 951. The defendant argued on appeal that “there is no meaningful

analytical distinction between suggestive procedures conducted by police

officers in advance of court proceedings and those conducted by

prosecutors during court proceedings in advance of trial.” Id. at 24 ¶ 7, 289

P.3d at 952.

¶139 Relying on Perry, the court of appeals disagreed. See id. at 25

¶¶ 9–10, 289 P.3d at 953. Perry held that “the Due Process Clause does not

require a preliminary judicial inquiry into the reliability of an eyewitness

identification when the identification was not procured under

unnecessarily suggestive circumstances arranged by law enforcement.”

132 S. Ct. at 730. The Supreme Court observed that “[a] primary aim of

excluding evidence obtained under unnecessarily suggestive

circumstances . . . is to deter law enforcement use of improper lineups,

showups, and photo arrays in the first place,” and that this “deterrence

rationale” does not apply when “the police [have] engaged in no improper

conduct.” Id. at 726. The Court reasoned, “[w]hen no improper law

enforcement activity is involved . . . it suffices to test reliability through the

rights and opportunities generally designed for that purpose,” such as

“vigorous cross-examination” at trial. Id. at 721.

¶140 In Nottingham, the court of appeals acknowledged this Court’s

holding in State v. Strickland, 113 Ariz. 445, 447, 556 P.2d 320, 322 (1976),

“that suggestive identification procedures occurring as part of formal court

proceedings, like those arranged by police, may trigger the procedural

protections set forth in Dessureault.” Nottingham, 231 Ariz. at 25 ¶ 8, 289

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P.3d at 953. But the court concluded, and we agree, that “Strickland has

been overtaken by Perry to the extent [Strickland] found that subsequent in-

court identifications could be precluded based on suggestive in-court

identification procedures that did not involve improper state conduct.” Id.

at 25 ¶ 10, 289 P.3d at 953 (internal quotation marks and citation omitted).

¶141 Perry controls here. Because the identifications by Jesus L.,

Cheryl M., and Peter O. occurred as part of formal court proceedings and

were not influenced by improper law enforcement activity, the trial court

did not abuse its discretion in allowing their in-court identifications.

¶142 Regarding Margie M.’s voice identification, Goudeau asserts

that the trial court abused its discretion by not finding the voice exemplars

unduly suggestive. Having reviewed the recordings, we disagree.

Although Goudeau’s exemplar had an echo and the others did not, the

differences in sound quality between the exemplars was not so great as to

render the procedure impermissibly suggestive. Detective Femenia

advised Margie before playing the tapes that the recordings might vary in

volume, sound quality, and noise, and in fact the audio quality did vary

among all exemplars. Margie listened attentively to the exemplars several

times before making an identification, and Detective Femenia projected no

cue or clues throughout the playing of the tapes.

¶143 Margie had ample opportunity to hear her assailant’s voice

throughout the encounter, which lasted a half hour and during which time

he spoke continuously directly behind her ear. Moreover, she testified that

her assailant’s voice was “all I kept hearing,” and “my nightmare for years.”

The trial court did not abuse its discretion in admitting evidence of Margie’s

voice identification.

H. Admission of Firearms Expert Testimony

¶144 Goudeau contends that the trial court erred by admitting the

expert testimony of Daniel Hamilton, a firearms examiner with the PPD

crime laboratory. At trial, Hamilton opined that every bullet and casing

retrieved in this case was fired from the same firearm. We review the trial

court’s admission of expert testimony for abuse of discretion, State v.

Snelling, 225 Ariz. 182, 187 ¶ 18, 236 P.3d 409, 414 (2010), but review for

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fundamental error any arguments raised for the first time on appeal.

¶145 Before trial, Goudeau moved to preclude Hamilton from

testifying on the ground that his opinions did not satisfy the standard set in

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). The trial court

denied the motion, ruling that the testimony was admissible under the

standard established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

The court did not err because Frye rather than Daubert applied in Goudeau’s

2011 trial. See State v. Miller, 234 Ariz. 31, 41 ¶ 29, 316 P.3d 1219, 1229 (2013)

(holding that the Frye, not Daubert, standard applied to defendant’s trial,

which ended before Arizona’s amended Evidence Rule 702 took effect in

January 2012); Brown v. Watters, 599 F.3d 602, 616 (7th Cir. 2010) (noting the

absence of “authority in which the Daubert standard has been imposed on

states as a requirement of due process in any context, including criminal

trials”).

¶146 Nor did the trial court err by declining to hold a Frye hearing

before ruling on the admissibility of Hamilton’s testimony. See State ex rel.

Romley v. Fields, 201 Ariz. 321, 325 ¶ 11, 35 P.3d 82, 86 (App. 2001) (noting

that a Frye hearing is only required before admitting expert testimony that

relies on new scientific tests or techniques). Because this testimony was not

a “new” form of expert testimony and Arizona courts had previously

upheld its admissibility, a Frye hearing was not required. See Miller, 234

Ariz. at 41 ¶ 31, 316 P.3d at 1229 (holding that firearm expert testimony was

admissible under Frye).

¶147 Goudeau next argues that the trial court violated his due

process rights by admitting Hamilton’s testimony without limitation. But

because Goudeau did not request any limiting instruction or object to the

lack of one, his argument fails. See State v. Taylor, 127 Ariz. 527, 530–31, 622

P.2d 474, 477–78 (1980) (stating that to preserve a claim of error in not

limiting certain evidence, party must request appropriate instructions); see

also Ariz. R. Crim. P. 21.2 (requiring parties to request jury instructions).

Goudeau cites a few federal district court cases in which ballistics experts,

using toolmark evidence, were not allowed to express their opinions

identifying firearms with absolute scientific certainty. Other courts,

however, have required no such limitation, and Goudeau cites no case in

which an appellate court found fundamental error in a trial court’s failing

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to sua sponte limit such testimony. In addition, Hamilton acknowledged

on cross-examination that his firearms-identification opinion in this case

was “subjective” and based on his training and experience, not a “statistical

formula.”

¶148 Goudeau also argues that the trial court fundamentally erred

by admitting Hamilton’s testimony that, as part of a “second chair[]

process,” another unidentified PPD firearms examiner “agree[ed] with

[Hamilton’s] identification” after comparing the bullets Hamilton

inspected. That testimony, Goudeau contends, was hearsay and violated

the Confrontation Clause. Goudeau did not argue this in the trial court so

we review only for fundamental error. Even if we assume, without

deciding, that Hamilton’s brief testimony about a second-chair process

constituted testimonial hearsay, its admission did not rise to the level of

fundamental error.

¶149 Further, Hamilton did not act as a mere “conduit” for the

second chair’s opinion. See Snelling, 225 Ariz. at 187 ¶ 19, 236 P.3d at 414

(“The expert . . . cannot ‘act as a conduit for another non-testifying expert’s

opinion.’” (quoting State v. Smith, 215 Ariz. 221, 228 ¶ 23, 159 P.3d 531, 538

(2007)). Rather, Hamilton presented his expert opinions based on his own

work and analysis of the available ballistics evidence. Moreover, the State’s

line of questioning was not directed at eliciting whether the second chair

agreed with Hamilton’s opinion in this case, but rather what type of

verification processes the PPD crime laboratory generally followed in cases

“such as” this. Goudeau has not established that the unopposed admission

of this portion of Hamilton’s testimony constituted fundamental error.

I. Admission of Autopsy Photograph (Chapter 7)

¶150 Goudeau contends that the trial court violated his right to due

process by admitting a particular autopsy photograph into evidence in

Chapter 7. We review a trial court’s admission of photographs for abuse of

discretion. Cota, 229 Ariz. at 147 ¶ 45, 272 P.3d at 1038.

¶151 After Peter O. concluded his testimony that he saw Goudeau

standing over a body (later identified as Tina Washington) with a gun

pointed at her head, Goudeau objected to the State’s proffer of a photograph

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intended for use in the medical examiner’s ensuing testimony. The color

photograph at issue depicted the front of Washington’s body lying on an

autopsy table, with a metal trajectory rod, depicting a bullet’s path of travel,

inserted through her left hand, through her neck, and finally into the top

part of her right shoulder. A second gunshot wound is visible on her left

cheek. All wounds have been cleaned off, though some blood is still visible

on her face and shoulder. Goudeau objected to introduction of the

photograph on grounds that its graphic nature was prejudicial, that the

State could explain the gunshot trajectory without it, and that the manner

and cause of Washington’s death were undisputed.

¶152 The trial court overruled Goudeau’s objection and allowed

the State to admit the photograph during the medical examiner’s testimony

“for purposes of showing the direction of the shot” and “the possible

position of [the] shooter.” Reasoning that the photograph was relevant to

the extent it corroborated Peter’s testimony about seeing Goudeau standing

over Washington’s body, the trial court found that the risk of unfair

prejudice did not substantially outweigh the photograph’s probative value.

¶153 “Whether the trial court abused its discretion in admitting a

photograph turns on (1) the photograph’s relevance, (2) its tendency to

inflame the jury, and (3) its probative value compared to its potential to

cause unfair prejudice.” Cota, 229 Ariz. at 147 ¶ 46, 272 P.3d at 1038. When

a relevant photograph is inflammatory, however, the court should not

admit it without first determining whether the danger of unfair prejudice

substantially outweighs the photograph’s probative value. State v.

Bocharski, 200 Ariz. 50, 56 ¶ 21, 22 P.3d 43, 49 (2001).

¶154 The autopsy photograph in question was relevant because

“the fact and cause of death are always relevant in a murder prosecution.”

State v. Chapple, 135 Ariz. 281, 288, 660 P.2d 1208, 1215 (1983), superseded on

other grounds by A.R.S. § 13-756. This is so even when those facts are not

contested because “the prosecution’s burden to prove every element of the

crime is not relieved by a defendant’s tactical decision not to contest an

essential element of the offense.” Estelle v. McGuire, 502 U.S. 62, 69 (1991);

cf. State v. Rienhardt, 190 Ariz. 579, 584, 951 P.2d 454, 459 (1997)

(“Notwithstanding an offer to stipulate to the cause of death, photographs

of a murder victim are relevant if they help to illustrate what occurred.”).

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¶155 Moreover, the photograph assisted and corroborated the

medical examiner’s explanation of Washington’s injuries. Though the

medical examiner’s explanations were not disputed, the photograph in

conjunction with his testimony corroborated Peter’s account of the events

and helped establish an approximate distance between him and the shooter.

Because Peter’s identification of Goudeau was contested, the photograph

was probative on the key issue of the perpetrator’s identity.

¶156 Though the color photograph was graphic, it did not rise to

the level of gruesomeness we have found “unduly disturbing” in past cases.

Cf. State v. Spreitz, 190 Ariz. 129, 142, 945 P.2d 1260, 1273 (1997) (finding

abuse of discretion in admission of autopsy photographs showing

decomposition and insect activity on the body). This case is distinguishable

from Bocharski, where we found that the trial court erred by admitting two

photographs depicting “views of the victim’s skull, the top and its contents

having been removed, with a metal rod going through an opening to the

inside.” 200 Ariz. at 55 ¶ 20, 56 ¶¶ 26–27, 22 P.3d at 48–49. There, the trial

court admitted the photographs to show the angles of the wounds, yet “the

prosecutor did not elicit testimony concerning these angles or their

significance,” and “there was no testimony at trial rendering [the

photographs] particularly meaningful.” Id. at 56 ¶ 26, 22 P.3d at 49. In this

case, however, the State elicited significant testimony relating to the

purposes for which the trial court admitted the photographs, namely the

direction of the shot and the possible position of the shooter.

¶157 Goudeau contends that the State could have used other

evidence to explain what the photograph depicted and that this photo was

cumulative because the State also introduced several other photographs.

But whether “the subject-matter of a photograph can be described with

words” “is not the test of admissibility.” State v. Castaneda, 150 Ariz. 382,

391, 724 P.2d 1, 10 (1986). Rather, the test is whether the probative value of

a relevant, yet gruesome photograph is substantially outweighed by its

danger to cause unfair prejudice. Bocharski, 200 Ariz. at 55 ¶ 21, 22 P.3d at

48. Because the perpetrator’s identity was the key issue at trial, the trial

court did not abuse its discretion in finding that the photograph’s probative

value was not substantially outweighed by its potential to inflame the jury.

¶158 Finally, the photograph was not needlessly cumulative

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because it was the only one that illustrated the position of the shooter,

which in turn corroborated Peter’s identification of Goudeau. Therefore,

the trial court acted within its discretion by admitting the photograph.

J. Preclusion of Third-Party Culpability Defense (Chapter 10)

¶159 Goudeau argues that the trial court violated his right to

present a complete defense by precluding reliable third-party culpability

evidence in Chapter 10. We review the court’s ruling for abuse of

discretion. Prion, 203 Ariz. at 161 ¶ 21, 52 P.3d at 193.

¶160 During testimony from Jeremy Robinson, victim Kristin

Gibbons’s boyfriend, defense counsel inquired about Gibbons’s injuries

before her murder. (Gibbons reportedly told her mother that “she was

mugged,” but she had no bruises or injuries.) The State objected that such

evidence was not timely disclosed, was speculative, and was hearsay to the

extent it relied on what Gibbons had told her mother.

¶161 Outside the jury’s presence, Robinson testified that he did not

recall Gibbons telling him or anyone else that she had been mugged just

before the murder, nor did he recall her having any bruising on the night of

the murder. Because Robinson lacked firsthand knowledge of any prior

assault, the court precluded any evidence from him on the issue.

¶162 The next day, the State moved to preclude defense counsel

from cross-examining Detective Rosenthal about conversations Gibbons

allegedly had with her mother and a friend a few days before her

disappearance, indicating that she had been mugged and beaten up by two

Hispanic males and suffered injuries to her face and tooth. The trial court

excluded the evidence “on hearsay, late disclosure, [Rule] 402 and 403”

grounds.

¶163 Rules 401 through 403 of the Arizona Rules of Evidence

govern the admission of third-party culpability evidence. State v. Machado,

226 Ariz. 281, 284 ¶ 16, 246 P.3d 632, 635 (2011). Under those rules, the

proffered evidence must first be relevant; that is, it must “tend to create a

reasonable doubt as to the defendant’s guilt,” State v. Gibson, 202 Ariz. 321,

324 ¶ 16, 44 P.3d 1001, 1004 (2002). If the evidence is relevant, it is

admissible unless it is otherwise precluded by the federal or state

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constitution, or by applicable statutes or rules. Ariz. R. Evid. 402. As with

any relevant evidence, the trial court has discretion to exclude third-party

culpability evidence if its probative value is substantially outweighed by

the danger of “unfair prejudice, confusing the issues, misleading the jury,

undue delay, wasting time, or needlessly presenting cumulative evidence.”

Ariz. R. Evid. 403.

¶164 Here, the trial court could reasonably have found that the

proffered third-party culpability evidence did not create a reasonable doubt

as to Goudeau’s guilt and was inadmissible on several grounds. There were

no suspects and no suggestion that the alleged assault had any connection

to Gibbons’s murder.

¶165 Goudeau suggests that the proffered evidence established

that two other men had motive and opportunity to kill Gibbons. We

disagree. “[A] defendant may not, in the guise of a third-party culpability

defense, simply throw strands of speculation on the wall and see if any of

them will stick.” Machado, 226 Ariz. at 284 ¶ 16 n.2, 246 P.3d at 635 n.2

(internal quotation marks and citation omitted); accord Prion, 203 Ariz. at

161 ¶ 21, 52 P.3d at 193 (noting the trial court’s discretion to exclude such

evidence if it offers “only a possible ground of suspicion against another”).

¶166 Unlike Machado and Prion, where considerable evidence

suggested that a third party committed the crimes for which the defendant

was charged, there is simply no evidence connecting the two Hispanic

males involved in the alleged assault to Gibbons’s murder. Cf. Machado, 226

Ariz. at 285 ¶ 24, 246 P.3d at 636 (holding that the trial court improperly

excluded evidence of anonymous phone call in which the caller admitted

committing the crime and there were “powerful indications” that the third

party, not the defendant, was the caller); Prion, 203 Ariz. at 161–62 ¶ 25, 52

P.3d at 193–94 (finding evidence relevant that showed that the third party

had the opportunity and motive to commit the crime and may have been in

contact with the victim). Any suggestion that an unidentified Hispanic

male murdered Gibbons is pure speculation.

¶167 In addition, as the trial court determined, Goudeau’s third-

party culpability claim rested on inadmissible hearsay, Arizona Rules of

Evidence 801(c) and 802, was untimely disclosed for the first time forty-four

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days into trial (after Gibbons’s mother and the medical examiner had

already testified), Arizona Rule of Criminal Procedure 15.1(b)–(c), and

“failed the [Evidence] Rule 403 balancing test.” State v. Dann, 205 Ariz. 557,

569 ¶ 35, 74 P.3d 231, 243 (2003). The court did not abuse its discretion in

precluding the evidence on each of those grounds.

K. Substantial Evidence of Guilt

¶168 At the close of the State’s case-in-chief, Goudeau moved for

judgment of acquittal under Arizona Rule of Criminal Procedure 20 on all

seventy-four counts on which he was indicted. The trial court issued

detailed findings denying the motion as to all but two of the counts.

Goudeau contends that the trial court abused its discretion by denying his

Rule 20 motion on seventeen of the remaining counts, arguing that the State

failed to present sufficient evidence to support a finding of guilt. We review

de novo the denial of a Rule 20 motion. State v. West, 226 Ariz. 559, 562 ¶ 15,

250 P.3d 1188, 1191 (2011).

¶169 Acquittal is required “if there is no substantial evidence to

warrant a conviction.” Ariz. R. Crim. P. 20(a). Substantial evidence “is such

proof that reasonable persons could accept as adequate and sufficient to

support a conclusion of defendant’s guilt beyond a reasonable doubt.”

West, 226 Ariz. at 562 ¶ 16, 250 P.3d at 1191 (internal quotation marks and

citations omitted). “[T]he relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a

reasonable doubt.” Id. (internal quotation marks and citations omitted). In

determining whether substantial evidence supports a conviction, we

consider both direct and circumstantial evidence, id., and resolve all

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

P.3d 456, 477 (2004).

1. Counts 19–27 (Chapter 4)

¶170 Counts 19–27 charged Goudeau with kidnapping, armed

robbery, sexual assault, sexual abuse, and child molestation against Margie

M. and her daughter, Bianca. See supra ¶¶ 13–14. Although Bianca

identified a different individual from a photo array that did not include

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Goudeau, Margie later identified Goudeau’s voice from a series of voice

exemplars based on her recollection of the incident. In addition, the modus

operandi of the perpetrator of counts 19–27 closely matched Goudeau’s in

other chapters, including threatening Margie and Bianca with a gun while

ordering Margie to drive up and down particular streets, making

statements regarding a recent robbery and being separated from a friend,

wearing a fisherman’s hat and long-haired wig disguise, and wiping off the

victims where he had touched them.

¶171 Further, the offenses against Margie and Bianca took place

only moments after Goudeau, wearing the same disguise, robbed the

restaurant at which Iselda H. worked, and she positively identified

Goudeau during a photo lineup conducted in September 2006. This

evidence was sufficient to allow the jury to determine that Goudeau was

the perpetrator in counts 19–27. See Stuard, 176 Ariz. at 597, 863 P.2d at 899

(evidence of other acts is admissible under Rule 404(b) to prove the identity

of the perpetrator of the instant crimes, provided that identity is at issue

and the “pattern and characteristics of the crimes [are] so unusual and

distinctive as to be like a signature”).

2. Count 28 (Chapter 5)

¶172 Count 28 charged Goudeau with armed robbery of Teresa G.

See supra ¶¶ 15–16. About a month after the robbery, Teresa selected

another individual from a photo array that did not include Goudeau’s

photo, but before then she helped create a sketch of the robber. That sketch

was very similar to the one Any P. (Chapter 5) helped create. Additionally,

moments after the robbery, Goudeau approached Any in the parking lot

across from the store where Teresa worked, wearing the same fisherman’s

hat and long-haired wig as the perpetrator of the robbery involving Teresa

as well as the crimes against Margie M. and Bianca M. Goudeau’s Y-STR

DNA profile was found on Any and the modus operandi of the perpetrator

of the crimes against her closely matched Goudeau’s in other chapters. This

evidence was sufficient to permit a rational trier of fact to find Goudeau

guilty on count 28.

3. Count 40 (Chapter 6)

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¶173 Count 40 charged Goudeau with aggravated assault against

Mauricio O. See supra ¶¶ 17–18. “A person commits aggravated assault if

the person commits assault as prescribed by § 13-1203 . . . [and] uses a

deadly weapon or dangerous instrument.” A.R.S. § 13-1204(A)(2). “A

person commits assault by . . . [i]ntentionally placing another person in

reasonable apprehension of imminent physical injury.” A.R.S.

§ 13-1203(A)(2).

¶174 Although Mauricio did not testify, the State presented

sufficient circumstantial evidence that, by robbing him at gunpoint inside a

restaurant, Goudeau placed him in apprehension of imminent physical

injury. After Goudeau left the restaurant, Mauricio and Pedro M. chased

him. Pedro testified that they heard a gunshot and “got scared” so they

stopped chasing Goudeau. A jury could reasonably find that Mauricio’s

reaction was based on his apprehension of imminent physical harm. Cf.

State v. Wood, 180 Ariz. 53, 66, 881 P.2d 1158, 1171 (1994) (concluding the

jury could have found that police officers, who did not testify, acted with

apprehension or fear when they reacted to defendant’s brandishing of a

revolver by firing at him).

4. Count 46 (Chapter 6)

¶175 Count 46 charged Goudeau with attempted armed robbery

against Cheryl M. See supra ¶¶ 17–18. A person is guilty of armed robbery

if, while taking another’s property from her person or immediate presence

against her will, the person threatens or uses a deadly weapon “against any

person with intent either to coerce surrender of property or to prevent

resistance to such person taking or retaining property.” A.R.S.

§§ 13-1902(A), -1904(A)(2). A person is guilty of attempted armed robbery

if he does “anything which . . . is any step on a course of conduct planned

to culminate in commission of” armed robbery. A.R.S. § 13-1001(A)(2).

¶176 Cheryl testified that Goudeau pulled out a gun and

demanded that her mother turn over her purse to him. Her mother froze

and Goudeau repeatedly said, “’give me your . . . purse . . . or I am going to

shoot you.’” She also testified that “[h]e held out a gun and said, give me

your money,” followed twice by stating, “give me your . . . money.” At

trial, Cheryl identified Goudeau as the perpetrator. This evidence was

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sufficient to allow the jury to decide that Goudeau committed attempted

armed robbery against Cheryl and her mother.

¶177 Goudeau argues, “[s]ince there was no testimony that a gun

was pointed at [Cheryl] or any demand or conduct towards her that sought

to coerce surrender of her property this conviction must be vacated.” We

disagree. See State v. McGuire, 131 Ariz. 93, 96, 638 P.2d 1339, 1342 (1981)

(“A.R.S. § 13-1902 requires only that force be used ‘against any person,’ not

necessarily only against the person dispossessed of the property.”).

5. Counts 67–71 (Chapter 12)

¶178 Counts 67–71 charged Goudeau with kidnapping, attempted

sexual assault, and attempted first-degree murder against Adrienne M. See

supra ¶ 24. Adrienne testified that a man approached her as she got in her

car, pointed a silver handgun at her temple, and demanded that she let him

in. The man told her that

his friend had robbed a grocery store with him and that he

needed to get away to go get the money, that [she] was going

to be the person who was going to drive him to get the

money . . . to get to . . . [his] boy who has [his] money.

He ordered Adrienne to drive on particular streets and eventually to pull

over in a secluded residential neighborhood where he threatened her life

unless she complied with his demands to perform certain sexual acts.

¶179 Adrienne’s description of her perpetrator’s modus operandi

closely matches that of Goudeau’s other victims and was sufficient to allow

the jury to determine that Goudeau committed the offenses charged in

counts 67–71. Although Adrienne never identified Goudeau and no

physical evidence tied him to the offenses, her testimony and reasonable

inferences from it provided sufficient evidence that Goudeau committed

the charged crimes.

L. Evidence of Especially Cruel Murders

¶180 Goudeau contends that the State did not present sufficient

evidence to support the jury’s findings that he committed eight of the nine

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murders in an especially cruel manner.

¶181 Pursuant to A.R.S. § 13-756(A), we review the jury’s finding

that a murder was especially cruel for abuse of discretion, State v. Morris,

215 Ariz. 324, 340 ¶ 72, 160 P.3d 203, 219 (2007), viewing the facts in the light

most favorable to sustaining the verdict, State v. Naranjo, 234 Ariz. 233, 249

¶ 81, 321 P.3d 398, 414 (2014), and resolving all inferences against the

defendant, Davolt, 207 Ariz. at 212 ¶ 87, 84 P.3d at 477. “A finding of

aggravating circumstances is not an abuse of discretion if there is any

reasonable evidence in the record to sustain it.” Naranjo, 234 Ariz. at 249

¶ 81, 321 P.3d at 414 (internal quotation marks and citation omitted).

Conversely, a jury abuses its discretion if it finds an aggravating

circumstance when the record reflects insufficient evidence to support that

finding beyond a reasonable doubt. See State v. Gunches, 225 Ariz. 22, 25

¶ 14, 26 ¶¶ 18–23, 234 P.3d 590, 593, 594 (2010).

¶182 Goudeau argues that we must review de novo whether the

State has proved an aggravating circumstance. We previously rejected this

argument in State v. (Cody J.) Martinez, 218 Ariz. 421, 434 ¶¶ 61–62, 189 P.3d

348, 361 (2008), and declined to reconsider that decision in Cota, 229 Ariz. at

153 ¶ 92, 272 P.3d at 1044 (citing (Cody J.) Martinez in observing “we have

already determined that abuse of discretion review is constitutional”), and

Hausner, 230 Ariz. at 80 ¶¶ 83–84, 280 P.3d at 624 (“We decline to reconsider

[(Cody J.)] Martinez.”). We likewise decline to reconsider the standard of

review issue here.

¶183 To clarify, this Court does not assess de novo whether the

aggravating circumstances existed, as we previously did under

independent review. See Martinez, 218 Ariz. at 434 ¶ 60, 189 P.3d at 361 (“In

2002, the legislature ended our independent review of death penalty

verdicts for murders committed after August 1, 2002.”). But we do assess

de novo whether there was sufficient evidence from which any reasonable

juror could find the aggravator. Absent such evidence, a jury would “abuse

its discretion” by finding the aggravator.

¶184 “[A] murder is especially cruel only if the State proves beyond

a reasonable doubt that ‘the victim consciously experienced physical or

mental pain prior to death, and the defendant knew or should have known

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that suffering would occur.’” Snelling, 225 Ariz. at 188 ¶ 25, 236 P.3d at 415

(quoting State v. Trostle, 191 Ariz. 4, 18, 951 P.2d 869, 883 (1997)). The victim

need not have been conscious for every wound inflicted, State v. Sansing,

206 Ariz. 232, 235 ¶ 7, 77 P.3d 30, 33 (2003), nor must the victim’s suffering

have lasted for any specific length of time, State v. Cropper, 223 Ariz. 522,

526 ¶ 13, 225 P.3d 579, 583 (2010). “Mental anguish includes the victim’s

uncertainty as to her ultimate fate,” State v. Lavers, 168 Ariz. 376, 392, 814

P.2d 333, 349 (1991), and evidence of a victim’s pleas or defensive injuries

may be sufficient to show that she suffered mental pain, Snelling, 225 Ariz.

at 188 ¶ 27, 236 P.3d at 415. We consider the entire murder transaction, not

merely the fatal act, in evaluating whether a murder was committed in an

especially cruel manner. State v. McCray, 218 Ariz. 252, 259 ¶ 31, 183 P.3d

503, 510 (2008).

¶185 The jury found that Goudeau murdered each of the following

victims in an especially cruel manner: Georgia Thompson, Tina

Washington, Romelia Vargas, Mirna Roman, Chao Chou, Liliana Sanchez,

Sophia Nunez, and Carmen Miranda. We conclude that the jury did not

abuse its discretion inasmuch as the record sufficiently supports its

findings.

1. Georgia Thompson (Chapter 2)

¶186 Testimony established that more than fifteen seconds before

Goudeau shot Thompson in the head, she begged to be let go and screamed.

Thompson was found with her pants unzipped and unbuttoned, though

her belt was still buckled. This evidence was sufficient to support a finding

that Thompson experienced mental anguish before her death and that

Goudeau knew or should have known that suffering would occur. Cf. State

v. Gomez (Gomez II), 231 Ariz. 219, 226 ¶ 36, 293 P.3d 495, 502 (2012)

(concluding that victim’s screams, in addition to defensive wounds,

supported a finding that murder was especially cruel).

2. Tina Washington (Chapter 7)

¶187 Washington was found dead in an isolated alley that was not

on the route to her regular bus stop. The evidence showed that she had

been shot twice; the first shot was not fatal and Washington raised her hand

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in front of her face as if to shield against a second shot. The second and

fatal shot was fired from close range. Like Thompson, Washington

screamed before she died. This evidence was sufficient to support a finding

that Washington experienced both physical and mental pain before her

death and that Goudeau knew or should have known that suffering would

occur. Cf. Gomez II, 231 Ariz. at 226 ¶ 36, 293 P.3d at 502; Newell, 212 Ariz.

at 406 ¶ 85, 132 P.3d at 850 (non-fatal injuries occurring as part of murder

transaction supported finding of serious physical anguish); Sansing, 206

Ariz. at 236 ¶ 10, 77 P.3d at 34 (defensive wounds support finding of mental

anguish).

3. Romelia Vargas and Mirna Roman (Chapter 8)

¶188 Vargas and Roman were discovered dead in the back of their

food truck with a gunshot wound to each of their heads. Their pants were

unbuttoned and partially pulled down. It appeared that Roman had been

shot before Vargas because a shell casing was found under Vargas’s body

and Vargas’s leg was resting on top of Roman’s leg. The jury could

reasonably infer that they disrobed under threat of being shot, rather than

being shot by surprise while disrobing, and that Vargas then witnessed

Goudeau shoot Roman before he pointed the gun at her. This evidence was

sufficient to support a finding that both Roman and Vargas experienced

severe mental anguish before their death and that Goudeau knew or should

have known that suffering would occur.

4. Chao Chou and Liliana Sanchez (Chapter 9)

¶189 The evidence showed that Chou and Sanchez left the

restaurant where they worked in Chou’s car. Their coworker always saw

Chou turn his car and drive past the restaurant as he was leaving, but on

the evening in question the coworker did not see Chou’s car make that turn.

Chou was later found dead in an alley with a gunshot wound to his head.

Sanchez was found dead in the front passenger seat of Chou’s car, about

one mile from the alley, with a gunshot wound to her head and her pants

unbuttoned and partially unzipped. The evidence further showed that both

Chou and Sanchez were shot by someone seated in the back seat. From this

evidence, the jury could have reasonably inferred that Goudeau, positioned

in the back seat, held the victims at gunpoint while he forced Chou to drive,

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and that both victims suffered severe mental anguish during the car ride.

Further, the jury could find that Sanchez suffered significant uncertainty as

to her ultimate fate after Goudeau shot Chou and continued the ride for

another mile before also shooting her.

5. Sophia Nunez (Chapter 11)

¶190 Nunez was found dead in her bathtub with a gunshot wound

to her head. She had a few bruises, her bra was undone and shirt pulled up

exposing her breasts, and she was still wearing pants. Her eyes were open

when she was shot from the front at close range. The jury could have

reasonably inferred that she was conscious while Goudeau threatened her

at gunpoint and that she suffered significant mental anguish before he took

her life. The evidence was sufficient to support a finding that Goudeau

murdered her in an especially cruel manner.

6. Carmen Miranda (Chapter 13)

¶191 The evidence showed that Miranda screamed and struggled

as Goudeau ambushed her at a carwash and forced her into the backseat of

her car. She was later found dead in a nearby parking lot with a gunshot

wound to her head. Her eyes were open when Goudeau shot her; her pants

were pulled down; she had recent abrasions on her right shoulder, left

upper arm, and inside lower lip; and she had small bruises on her wrists

and numerous bruises on her legs consistent with a struggle to keep her

pants on. This evidence was sufficient to support a finding that Miranda

was murdered in an especially cruel manner. Cf. Gomez II, 231 Ariz. at 226

¶ 36, 293 P.3d at 502; Newell, 212 Ariz. at 406 ¶ 85, 132 P.3d at 850; Sansing,

206 Ariz. at 236 ¶ 10, 77 P.3d at 34.

M. Prosecutorial Misconduct Claims

¶192 Goudeau asserts that the State repeatedly made inaccurate

statements of law and improper arguments throughout the guilt and

sentencing proceedings, amounting to fundamental error in violation of the

Fourteenth Amendment. We evaluate each instance of alleged

prosecutorial misconduct to determine if error occurred and, if so, its effect.

State v. Roque, 213 Ariz. 193, 228 ¶ 154, 141 P.3d 368, 403 (2006). We also

address the cumulative effect of any misconduct. Morris, 215 Ariz. at 335

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¶ 47, 160 P.3d at 214. Because Goudeau did not object to any of the incidents

at trial, we review for fundamental error. Roque, 213 Ariz. at 228 ¶ 154, 141

P.3d at 403.

¶193 “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.” State v. (Alex V.) Hughes, 193 Ariz. 72, 79 ¶ 26, 969 P.2d 1184, 1191

(1998) (internal quotation marks and citation omitted). A conviction will be

reversed for prosecutorial misconduct only if “(1) the prosecutor committed

misconduct and (2) a reasonable likelihood exists that the prosecutor’s

misconduct could have affected the verdict.” State v. Benson, 232 Ariz. 452,

463 ¶ 40, 307 P.3d 19, 30 (2013). The defendant’s burden is to prove the

misconduct was “so pronounced and persistent that it permeate[d] the

entire atmosphere of the trial.” Morris, 215 Ariz. at 335 ¶ 46, 160 P.3d at 214.

1. Statements likening Goudeau to a “wolf” and his disguises as

“sheep’s clothing”

¶194 Throughout eleven of the State’s thirteen opening statements

and in closing argument, the prosecutor referred, without objection, to

Goudeau as a “predator” or “wolf,” and his various disguises as “sheep’s

clothing.” Additionally, during opening statements for Chapters 1, 3, 7, 8,

and 10, the prosecutor stated that Goudeau had been “hunting” or “on the

prowl.” Goudeau did not object to these comments at trial but argues on

appeal that they “are clearly improper as they are designed to dehumanize

the defendant and appeal to the passions and prejudices of the jury.”

¶195 The prosecutor’s comments during opening statement

likening Goudeau to a “wolf” and a “wolf in sheep’s clothing” were

improper. “Opening statement is counsel’s opportunity to tell the jury

what evidence they intend to introduce. . . . [It] is not a time to argue the

inferences and conclusions that may be drawn from evidence not yet

admitted.” Bible, 175 Ariz. at 602, 858 P.2d at 1205. There was no direct

evidence that Goudeau hunted his victims, and the record does not indicate

that any such evidence was anticipated when opening statements were

made.

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¶196 The references during closing argument, on the other hand,

were not clearly improper. Prosecutors are given “wide latitude” in

presenting closing argument to the jury. State v. Comer, 165 Ariz. 413, 426,

799 P.2d 333, 346 (1990). “Unlike opening statements, during closing

arguments counsel may summarize the evidence, make submittals to the

jury, urge the jury to draw reasonable inferences from the evidence, and

suggest ultimate conclusions.” Bible, 175 Ariz. at 602, 858 P.2d at 1205. In

determining whether an argument is misconduct, “we ‘consider two

factors: (1) whether the prosecutor’s statements called to the jury’s

attention matters it should not have considered in reaching its decision and

(2) the probability that the jurors were in fact influenced by the remarks.’”

State v. Nelson, 229 Ariz. 180, 189 ¶ 39, 273 P.3d 632, 641 (2012) (quoting

Newell, 212 Ariz. at 402 ¶ 60, 132 P.3d at 846). We “look[] at the context in

which the statements were made as well as ‘the entire record and to the

totality of the circumstances.’” Id. (quoting Rutledge, 205 Ariz. at 13 ¶ 33, 66

P.3d at 56).

¶197 Given the evidence presented at trial, we find no impropriety

in the prosecutor referring to Goudeau—during closing argument—as a

“wolf” and “a wolf in sheep’s clothing.” There was substantial evidence

that Goudeau attempted to conceal his identity by wearing disguises and

circumstantial evidence that Goudeau stalked some of his victims.

Comparing Goudeau to a “wolf” and describing his various disguises as

“sheep’s clothing,” therefore, was consistent with the evidence and fell

within the wide latitude permitted prosecutors in arguing to the jury. See

Nelson, 229 Ariz. at 190 ¶ 41, 273 P.3d at 642 (finding no prosecutorial

misconduct where State’s closing argument accurately described the facts

of the case); cf. California v. McDermott, 51 P.3d 874, 911 (Cal. 2002) (referring

to defendant as a “wolf in sheep’s clothing,” and a person who “stalked

people like animals” in closing argument, when considered in the context

of the planning and execution of the murder, did not exceed the permissible

bounds of argument); Browning v. State, 134 P.3d 816, 839 (Okla. Crim. App.

2006) (referring to defendant as a “wolf in sheep’s clothing” during guilt

phase closing argument was a reasonable inference from the evidence);

Ponce v. State, 89 S.W.3d 110, 121 (Tex. Ct. App. 2002) (likening defendant

to a wolf during closing argument was based on defendant’s conduct and

thus permissible).

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¶198 Although the prosecutor’s comments during opening

statements were improper, Goudeau has not shown that they caused

prejudice sufficient to constitute fundamental error. See Benson, 232 Ariz.

at 463 ¶ 40, 307 P.3d at 30; see also Darden v. Wainwright, 477 U.S. 168, 180-81

(1986) (noting that it “is not enough that the prosecutors’ remarks were

undesirable or even universally condemned”; to prevail on a prosecutorial

misconduct claim, it must be shown that the prosecutors’ comments “so

infected the trial with unfairness as to make the resulting conviction a

denial of due process”) (internal quotation marks and citation omitted).

Goudeau had an opportunity to respond to the prosecutor’s comments and

in fact did so in his opening statements and closing arguments as well as in

his allocution.

¶199 Moreover, any prejudice was ameliorated by the trial court’s

limiting instructions and the overwhelming proof of guilt. The trial court

instructed the jury not to be influenced by sympathy or prejudice and

further charged that counsel’s opening statements and arguments were not

evidence. See Manuel, 229 Ariz. at 6 ¶ 24, 270 P.3d at 833 (“[C]autionary

instructions by the court generally cure any possible prejudice from

argumentative comments during opening statements” because we presume

that jurors follow the court’s instructions).

¶200 In addition, the substantial evidence of guilt, including the

DNA evidence, a murder victim’s jewelry found in Goudeau’s home, and

multiple identifications of him as the perpetrator of numerous crimes,

reduced the likelihood that the jury’s decision was influenced by the

prosecutor’s statements. Cf. Comer, 165 Ariz. at 426–27, 799 P.2d at 346–47

(concluding that prosecutor’s characterization of defendant as a “monster”

and “filth” during closing argument, though improper, was harmless in

light of the overwhelming evidence of guilt). Goudeau has not shown

fundamental error.

2. Misstatements of the Law

¶201 Goudeau next argues that “the [S}tate repeatedly misstated

the law (without objection) in its closing arguments[,] misleading the jury

in turn as to what it could consider in rendering its verdicts.” During

closing argument in the guilt phase, the prosecutor told the jury that it

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could consider the “patterns,” and any “evidence that inextricably ties [the

defendant] to one of his victims” in determining “his guilt in other crimes,

establishing not only his intent, his motive, his MO, but also his

identification.” Regarding the crimes against sisters Lorena L. and

Alejandra L. (Chapter 3), the prosecutor stated:

You cannot simply say that because the defendant raped the

[sisters], he must have done all of the other crimes. That’s not

fair, that’s not the way our law works. The way our law

works is in the instructions that Judge Granville just read to

you. They tell you precisely how you are to use and not use

this type of evidence.. . .

In other words, when you determine it is highly probable that

the defendant committed the sexual assaults, for instance, of

the [sisters], the law allows . . . that you may consider that

evidence in determining his intent, motive, identity, MO, of

all the other crimes with which he is charged.

For it is his pattern, his deeds, that reveal him for what he is

and what he has done, and the law allows you to look at the

totality of the evidence in identifying this about this man.

¶202 Rule 404(b) expressly allows other-act evidence to prove

“identity or absence of mistake or accident.” Ariz. R. Evid. 404(b). The

prosecutor’s statements were consistent with this rule and did not mislead

the jury. Additionally, any error did not result in an unfair trial because the

jury was properly instructed. See Newell, 212 Ariz. at 403 ¶¶ 67–68, 132 P.3d

at 847 (holding that jury instructions stating that closing arguments are not

evidence negated improper comments of prosecutor); see also State v.

Patterson, 230 Ariz. 270, 276 ¶ 25, 283 P.3d 1, 7 (2012) (finding prosecutor’s

initial misstatement of the law cured by jury instructions that properly

stated the law).

¶203 Goudeau also contends that the prosecutor incorrectly

defined the standard for mental anguish during closing arguments in the

aggravation phase and encouraged the jury to speculate. During closing

argument in that phase, the prosecutor stated:

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The focus is on the victim’s physical pain and mental anguish

or suffering that he forced them to endure. Not just at the

moment he pulled the trigger, but from the moment he

crossed their path, took possession and control, dominion

over their body and their life. Everything that he forced them

to endure in the minutes prior to the way he ended their life.

All of that applies to this factor. All of this applies, and you

know from what you heard in this trial and from your

verdicts, what he forced them to endure. You know it not

only from their bodies, and what each of the nine tell you, but

also from the living victims.

¶204 “The entire murder transaction, not just the final act, may be

considered” in determining the (F)(6) factor. McCray, 218 Ariz. at 259 ¶ 31,

183 P.3d at 510. The prosecutor did not misstate the law regarding the

mental anguish component of especial cruelty, nor did she ask the jury to

speculate. Cf. Cota, 229 Ariz. at 151 ¶ 80, 272 P.3d at 1042 (“The prosecutor

may argue the facts and reasonable inferences from the evidence at the

penalty phase.”). The prosecutor misspoke, however, by implying that the

jury could consider what other victims experienced or suffered in

determining whether Goudeau’s murder of a different victim was

especially cruel. That misstatement, however, did not result in

fundamental error because it was not so prejudicial as to deprive Goudeau

of a fair trial.

3. Other Arguments

¶205 Goudeau also challenges certain comments made during

closing argument in the penalty phase. First, he asserts that the prosecutor

“improperly asked the jurors to consider the fact that he maintained his

innocence,” in violation of the Fifth Amendment; article 2, section 10 of the

Arizona Constitution; and A.R.S. § 13-117(B).

¶206 After halting his mitigation evidence during the penalty

phase, Goudeau chose to allocute. He repeatedly told the jurors that he was

“no wolf in sheep clothing” and “no monster.” He blamed his counsel for

not presenting a defense for him, expressed hope that the jurors would

someday “learn the truth about this case, or the case that [he was] accused

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of,” and said he was there only because of his past, of which he was not

proud. Goudeau remarked that he totally changed his life for the better

after serving time in prison, and that he “knew both of those people, both

of the victims.”9 Finally, he told the jury that he voluntarily chose to “cancel

mitigation.”

¶207 In closing argument, the prosecutor stated:

Not once did this defendant stand before you and comment

about the horror he has inflicted. Not once did he talk about

what each of these 9 victims endured at his hands.

Rather, he stood before you and denied responsibility. Guilt

is no longer the issue.

¶208 “A prosecutor may not make any comments calculated to

point out a defendant’s invocation of his Fifth Amendment right.” State v.

Burns, 237 Ariz. 1, 32 ¶ 150, 344 P.3d 303, 334 (2015). We examine a

comment on a defendant’s silence “in the context of the proceedings as a

whole” to determine whether the jury would perceive them as a comment

on a defendant’s failure to testify. Id.

¶209 Viewed in context, the prosecutor’s statements reflect an

effort to rebut Goudeau’s allocution, not a comment on the exercise of his

Fifth Amendment right. The prosecutor noted that Goudeau denied

responsibility for the crimes even though guilt was no longer at issue, and

that the only question was whether Goudeau was “deserving of any

leniency at all.” This was permissible argument in rebuttal to Goudeau’s

allocution.

¶210 Goudeau further contends that the prosecutor improperly

argued in closing that “[w]e are seeking a just punishment for what this

defendant has done . . . to this community, what he [has] done to 9 lives.”

Prosecutors are given “wide latitude” in closing arguments. State v. Herrera,

9 Goudeau later clarified that the two victims he was referring to in

his allocution were from the 1989 crimes, for which he was convicted and

served time in prison.

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174 Ariz. 387, 396, 850 P.2d 100, 109 (1993). But “[a] prosecutor exceeds this

authority when he uses his remarks to inflame the minds of jurors with

passion or prejudice or influence the verdict in any degree.” Id. (internal

quotation marks and citation omitted).

¶211 The prosecutor’s statement did not amount to misconduct.

The prosecutor noted that Goudeau presented evidence that he would not

be dangerous in prison. The prosecutor then argued, “[w]e are not asking

you to impose a death sentence for what this defendant may or may not do

in prison.” Rather, the prosecutor said, the State was seeking the death

penalty for what the defendant did to the community and his victims.

¶212 A prosecutor may properly urge the jury to give more weight

to a defendant’s crimes than to the mitigation evidence. Cf. id. at 396–97,

850 P.2d at 109–10 (finding prosecutor’s statements in closing of the guilt

phase about justice and protecting society proper; statements did not

improperly urge jurors to convict defendant for reasons irrelevant to his

guilt or innocence); see also State v. Leteve, 237 Ariz. 516, 528–29 ¶ 47, 354

P.3d 393, 405–06 (2015) (“[T]he state may ‘rebut’ mitigation—that is, a

conclusion that the defendant should be shown leniency—by introducing

evidence of the ‘specific harm caused by the defendant.’” (quoting Forde,

233 Ariz. at 572 ¶ 126, 315 P.3d at 1229)). Although the prosecutor’s

reference to the “community” at large was arguably improper, id. at 529

¶ 51, 354 P.3d at 406, that single comment was neither inflammatory nor

unduly prejudicial, and Goudeau has not established fundamental error.

4. Cumulative Effect of the Conduct

¶213 Even when an instance of prosecutorial misconduct does not

warrant reversal, “an incident may nonetheless contribute to a finding of

persistent and pervasive misconduct if the cumulative effect of the

incidents shows that the prosecutor intentionally engaged in improper

conduct and did so with indifference, if not a specific intent, to prejudice

the defendant.” Roque, 213 Ariz. at 228 ¶ 155, 141 P.3d at 403 (internal

quotation marks and citations omitted).

¶214 Although the prosecutor made some improper remarks

during eleven of the State’s thirteen opening arguments, they did not

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amount to persistent and pervasive misconduct that deprived Goudeau of

a fair trial. The court twice instructed the jury that attorneys’ remarks

during opening and closing were not evidence, and we presume that jurors

follow instructions. Manuel, 229 Ariz. at 6 ¶ 25, 270 P.3d at 833. Any

cumulative prejudice resulting from the prosecutor’s remarks is insufficient

to overcome this presumption. See State v. Gallardo, 225 Ariz. 560, 569 ¶ 40,

242 P.3d 159, 168 (2010) (reasoning that similar instructions cured any

prejudice).

N. Finding Multiple Aggravating Factors

¶215 Goudeau asserts that he was subjected to impermissible

double counting of aggravating circumstances, violating his constitutional

rights against double jeopardy and cruel and unusual punishment. He

further asserts that A.R.S. § 13-751(F)(2)’s contemporaneous prior

conviction provision is unconstitutional and that the aggravation

instructions were improper. We review de novo whether Goudeau’s

convictions violate the Double Jeopardy Clause. State v. McGill, 213 Ariz.

147, 153 ¶ 21, 140 P.3d 930, 936 (2006). Because a double jeopardy violation

would constitute fundamental error, we consider the issue even though

Goudeau raised it for the first time on appeal. See id.

¶216 We also review de novo the constitutionality of statutory

aggravating circumstances. Forde, 233 Ariz. at 569 ¶ 105, 315 P.3d at 1226.

Although we ordinarily review de novo whether the trial court correctly

instructed the jury on the law, Burns, 237 Ariz. at 22 ¶ 83, 344 P.3d at 324,

because Goudeau did not object to the aggravation phase jury instructions,

we review for fundamental error, see State v. Gomez (Gomez I), 211 Ariz. 494,

499 ¶ 20, 123 P.3d 1131, 1136 (2005).

¶217 Each of Goudeau’s nine murder convictions was for felony

murder, variously predicated on kidnapping, sexual assault, burglary, or

armed robbery. Goudeau was convicted of each charged predicate felony

for all but two of the murder convictions (Chapter 8—the Roman and

Vargas murders, in which the jury acquitted Goudeau of the predicate

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felony charges of attempted armed robbery).10 At the close of the

aggravation phase, the trial court instructed the jury that in considering the

(F)(2) aggravator, it had to find that the “[d]efendant has been convicted of

a ‘serious offense’, either in this trial or at another court proceeding.” See

A.R.S. § 13-751(F)(2). The jury found the (F)(2) aggravator satisfied for each

murder conviction.

1. Using the same facts as felony-murder predicates, (F)(2)

aggravators, and separately punished crimes is constitutional.

a. Double Jeopardy

¶218 Goudeau asserts that using the same felonies three times in

the sentencing calculus violates the Double Jeopardy Clause of the Fifth

Amendment. This argument fails, however, because the predicate felonies

to the felony-murder convictions were not the only prior convictions

supporting the (F)(2) aggravator in this case. The State presented evidence

of five serious offense convictions from 1989 and 1990, as well as Goudeau’s

prior convictions for the crimes against sisters Lorena L. and Alejandra L.

¶219 Goudeau’s claim also fails on the merits. We have rejected the

argument that double jeopardy prohibits a court from sentencing a

defendant to prison for the same felonies used as felony murder predicates

and capital sentencing aggravators. See Burns, 237 Ariz. at 22 ¶ 86, 23 ¶ 88,

344 P.3d at 324, 325.

b. Eighth Amendment

¶220 Goudeau next contends that the (F)(2) aggravator violates the

Eighth Amendment by failing to genuinely narrow the class of death-

10 Despite this, sufficient evidence supported an implicit finding that

Goudeau committed burglary and kidnapping against victims Roman and

Vargas, thus authorizing the felony-murder convictions as to them, a point

Goudeau does not contest. See State v. Lacy, 187 Ariz. 340, 345, 349, 929 P.2d

1288, 1293, 1297 (1996) (finding sufficient evidence of predicate crime of

burglary to support felony-murder convictions, although burglary charge

previously was dismissed).

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eligible defendants if the contemporaneously committed predicate crime

supporting a felony-murder conviction may also be used as a prior serious

felony conviction. See U.S. Const. amend. VIII. Goudeau acknowledges that

we rejected a similar challenge to the (F)(2) aggravator in Forde, 233 Ariz. at

569 ¶¶ 105–07, 315 P.3d at 1226; see also State v. Carlson, 237 Ariz. 381, 395

¶¶ 45, 47–48, 351 P.3d 1079, 1093 (2015). The (F)(2) aggravator is

constitutional.

2. The trial court did not commit fundamental error by failing to

instruct the jury that it could not consider the same fact to prove

multiple aggravating factors.

¶221 The State properly presented evidence that Goudeau had

been convicted of multiple serious offenses to prove the (F)(2) aggravator.

See Morris, 215 Ariz. at 341 ¶ 78, 160 P.3d at 220. Goudeau nonetheless

contends that the absence of any jury instruction that jurors could only

consider the multiple serious offenses once in the sentencing decision was

structural error. He relies on State v. Lynch (Lynch I), 225 Ariz. 27, 234 P.3d

595 (2010), in which we held that the trial court’s erroneous instruction that

the (F)(6) aggravator was three separate aggravating factors and the

prosecutor’s highlighting of that instruction during arguments constituted

reversible error. Id. at 42–43 ¶¶ 84–88, 234 P.3d at 610–11.

¶222 Goudeau’s reliance on Lynch I is misplaced. Unlike the jury

in Lynch I, the jury here was not instructed that it could find multiple

aggravating factors for each serious offense, and the State did not argue that

it could. On the contrary, the State correctly argued that the seventy-five

prior serious offenses are “not [seventy-five] separate aggravating factors,”

but rather constitute “one aggravating factor.” Goudeau has not

established fundamental error.

O. Rebuttal Evidence to Mitigation

¶223 Goudeau called one witness during the penalty phase,

mitigation expert Dr. Mark Cunningham. Dr. Cunningham opined that

Goudeau would have a positive adjustment to prison if sentenced to a life

term and would pose a low likelihood of violence. Dr. Cunningham further

opined that Goudeau deserved leniency because several adverse

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developmental factors shaped Goudeau’s decision-making ability and

value system.

¶224 In rebuttal to Dr. Cunningham’s mitigation testimony, the

State sought to introduce into evidence transcripts from interviews it

conducted with two of Goudeau’s sisters, Wilma Jean Belt and Sharon

Goudeau, whom Dr. Cunningham had also interviewed in forming his

opinion. Goudeau objected, but he acknowledged that the sisters’

interviews related to his family background and that defense counsel

attended those interviews. The trial court overruled the objection and

thereafter admitted the sisters’ interview transcripts without further

objection.

¶225 After Dr. Cunningham’s testimony concluded, Goudeau

chose to allocute. In his allocution, Goudeau expressed remorse for the

crimes he committed in 1989 and indicated that he changed after being in

prison. In rebuttal to Goudeau’s allocution, the State sought to introduce

into evidence a transcript from a 2004 parole board hearing during which

Goudeau was granted parole. Over Goudeau’s general objection, the court

admitted the transcript.

¶226 “Admissibility of the rebuttal evidence turned on whether it

was relevant to the existence of mitigation sufficiently substantial to call for

leniency, A.R.S. § 13-752(G), and, if so, whether the evidence was unfairly

prejudicial.” Forde, 233 Ariz. at 571 ¶ 118, 315 P.3d at 1228; see also Leteve,

237 Ariz. at 528–29 ¶ 47, 354 P.3d at 405–06 (noting that under A.R.S.

§§ 13-751(G) and 13–752(G), the state may introduce relevant evidence

whether or not the defendant presents evidence during the penalty phase

and thus “may ‘rebut’ mitigation—that is, a conclusion that the defendant

should be shown leniency”) (internal quotation marks and citation

omitted). Although “[t]he Rules of Evidence do not apply to the admission

of evidence during the penalty phase of a capital trial,” Burns, 237 Ariz. at

28 ¶ 130, 344 P.3d at 330, the trial court’s analysis in determining relevance

under § 13-751(C) “involves fundamentally the same considerations as

does a relevancy determination under Arizona Rule of Evidence 401 or

403,” McGill, 213 Ariz. at 157 ¶ 40, 140 P.3d at 940.

¶227 Goudeau argues that the transcripts of hi

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