State of Arizona v. James Clayton Johnson

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,

Appellee,

v.

JAMES CLAYTON JOHNSON,

Appellant.

No. CR-16-0261-AP

Filed August 23, 2019

Appeal from the Superior Court in Maricopa County

The Honorable M. Scott McCoy, Judge

No. CR2010-048824-001

AFFIRMED

COUNSEL:

Mark Brnovich, Arizona Attorney General, O.H. Skinner, Solicitor General,

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

Jeffrey L. Sparks (argued), Ginger Jarvis, Assistant Attorneys General,

Phoenix, Attorneys for State of Arizona

James J. Haas, Maricopa County Public Defender, Mikel Steinfeld (argued),

Rena P. Glitsos, Kevin Heade, Deputy Public Defenders, Law Office of the

Public Defender, Phoenix, Attorneys for James Clayton Johnson

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

VICE CHIEF JUSTICE TIMMER and JUSTICES BOLICK, GOULD, LOPEZ,

BALES (RETIRED), and JUDGE MCMURDIE ∗ joined.

∗Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable

Paul J. McMurdie, Judge of the Arizona Court of Appeals, Division One,

was designated to sit in this matter.

STATE V. JOHNSON

Opinion of the Court

CHIEF JUSTICE BRUTINEL, opinion of the Court:

¶1 This automatic appeal arises from James Clayton Johnson’s

convictions and death sentence for the murder of Xiaohung Fu. We have

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

A.R.S. §§ 13-4031 and 13-4033(A)(1).

¶2 In December 2010, Johnson entered Taiwan Massage. Inside,

he encountered its owner, Fu. A struggle ensued, in which Johnson bound

and repeatedly stabbed Fu, killing her.

¶3 Next door, Marvin Pearce and Terry Weathers heard the

commotion. Weathers rushed to check on Fu. When he entered Taiwan

Massage, he found the front entrance in disarray. Weathers shouted “hello”

but got no response. After a moment, Johnson exited the bathroom at the

end of the hall, drying his hands. Weathers asked where Fu was, and

Johnson replied she had cut herself and left in an ambulance. Weathers

then rushed next door to tell Pearce what he witnessed and called for help.

Weathers and Pearce then watched as Johnson got into his truck and sped

away. When officers arrived on the scene, they found Fu dead. Fu had

been stabbed several times, including one laceration down her back that

penetrated through her lung and a near four-inch cut into her neck. She

also suffered superficial cuts across her stomach.

¶4 Johnson fled to his girlfriend’s apartment where he washed

his clothes and truck. Three days later, Johnson robbed a Christmas tree lot

and was arrested. (Johnson pleaded guilty to armed robbery on December

21, 2010.) Based on similarities between the two crimes, police linked

Johnson to the Taiwan Massage killing. Cell phone tower data and DNA

evidence substantiated Johnson’s involvement. The State charged Johnson

with one count each of first degree murder, kidnapping, and burglary in

the first degree.

¶5 The State noticed its intent to seek the death penalty, alleging

the following aggravating circumstances: (1) Johnson was previously

convicted of a serious offense, A.R.S. § 13-751(F)(2); (2) Johnson committed

the offense for pecuniary gain, § 13-751(F)(5); (3) Johnson committed the

offense in an especially heinous, cruel, or depraved manner, § 13-751(F)(6);

and (4) Johnson committed the offense while on release, § 13-751(F)(7)(a),

and while on probation for a felony, § 13-751(F)(7)(b).

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STATE V. JOHNSON

Opinion of the Court

¶6 After trial, the jury found Johnson guilty on all counts and

found that the State had proved the (F)(2), (F)(6), and (F)(7)(a) and (b)

aggravating factors beyond a reasonable doubt. After considering

mitigation evidence, the jury found that Johnson’s proffered mitigation was

not sufficiently substantial to call for leniency and sentenced Johnson to

death.

DISCUSSION

A. The A.R.S. § 13-751 Sentencing Scheme

¶7 Johnson argues that Arizona has not complied with its

constitutional obligation to legislatively narrow the class of first degree

murders that are eligible for the death penalty. We review Johnson’s

constitutional challenge de novo. See State v. Smith, 215 Ariz. 221, 228 ¶ 20

(2007).

¶8 In 2013, Johnson joined in litigation challenging Arizona’s

death penalty for failing to sufficiently narrow the class of first degree

murders eligible for a capital sentence. As part of the challenge, the

defendants requested but were denied an evidentiary hearing. The trial

court denied the defendants’ consolidated challenge to the constitutionality

of Arizona’s death penalty statutes. That litigation eventually led to our

decision in State v. Hidalgo (Hidalgo I), 241 Ariz. 543, 549–52 ¶¶ 14–29 (2017).

There, we observed that United States Supreme Court case law undermined

the defendants’ position, id. at 550 ¶ 19, and affirmed the constitutionality

of Arizona’s sentencing scheme, id. at 550–52 ¶¶ 19–29. For the same

reasons we expressed in Hidalgo I, we reject Johnson’s argument here.

¶9 Johnson next argues the court erred when it failed to hold the

requested evidentiary hearing to allow defendants to support their

challenge. Johnson further contends that the failure to hold an evidentiary

hearing resulted in an incomplete record likely to preclude Supreme Court

review. See Hidalgo v. Arizona (Hidalgo II), 138 S. Ct. 1054, 1057 (2018) (mem.)

(Breyer, J., respecting the denial of certiorari). We review the denial of an

evidentiary hearing for an abuse of discretion. See Hidalgo I, 241 Ariz. at 548

¶ 7.

¶10 As we noted in Hidalgo I, neither Hamdi v. Rumsfeld, 542 U.S.

507 (2004), nor Mathews v. Eldridge, 424 U.S. 319 (1976) requires an

evidentiary hearing. 241 Ariz. at 548–49 ¶¶ 10–13. And though Johnson

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STATE V. JOHNSON

Opinion of the Court

points to Justice Breyer’s statement respecting the denial of certiorari in

Hidalgo II, Justice Breyer neither implied that the Constitution requires an

evidentiary hearing in that case nor explained why an expanded record

would provide a more compelling basis for granting review than the

explicit finding that the defendant’s factual claims were true. See Hidalgo II,

138 S. Ct. at 1057 (stating that the “opportunity to develop the record

through an evidentiary hearing was denied” and, “[a]s a result,” the record

was undeveloped).

¶11 Further, though Johnson argues that denying remand and an

evidentiary hearing will condemn a future petition for writ of certiorari to

the United States Supreme Court to the same fate as Hidalgo’s, he can

include the deprivation of the hearing as a basis for review where Hidalgo

chose not to. And to the extent Johnson argues that Hidalgo was unable to

adequately present the issue to the Supreme Court, his argument ignores

that Hidalgo was allowed to supplement the record on appeal with an

expanded study of first degree murder cases in Arizona, which found that

one or more aggravating circumstances were present in 856 of 866 murders.

See Hidalgo I, 241 Ariz. at 549 ¶ 17. The trial court’s denial of the evidentiary

hearing was not an abuse of discretion. See id. ¶ 13.

¶12 Separately, Johnson claims the trial court’s rulings violated

his right to effective assistance of counsel because his counsel’s ability to

challenge the death penalty was impeded by the denial of the hearing. See

Strickland v. Washington, 466 U.S. 668, 686 (1984) (providing that the right to

counsel includes the right to effective assistance of counsel). But counsel is

not ineffective where he requested, and the court denied, the exact hearing

Johnson complains was required.

¶13 Lastly, Johnson argues that Hidalgo I did not address whether

Arizona’s constitution provides broader protections or requires an

evidentiary hearing. But Johnson fails to develop the argument or offer any

legal support as to why the Arizona Constitution would mandate a

different result than that required by the Constitution of the United States.

We thus decline to consider it. See State v. Bolton, 182 Ariz. 290, 298 (1995)

(stating that an argument not sufficiently developed on appeal is waived).

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Opinion of the Court

B. The A.R.S. § 13-751(F)(6) Aggravator

i. Unconstitutionality of the (F)(6) aggravator

¶14 Johnson argues that the (F)(6) especially cruel, heinous, or

depraved aggravator is unconstitutionally vague and that the narrowing

instructions were inaccurate and insufficient. We review de novo both the

constitutional challenge, see Hidalgo I, 241 Ariz. at 548 ¶ 7, and whether the

jury instructions correctly stated the law, see State v. Burbey, 243 Ariz. 145,

146 ¶ 5 (2017).

¶15 During the trial, the court instructed the jury as follows:

Definition of especially heinous, cruel, or depraved.

Concerning this aggravating circumstance, all first degree

murders are to some extent heinous, cruel, or depraved.

However, this aggravating circumstance cannot be found to

exist unless the State has proved beyond a reasonable doubt

that the murder was especially cruel, especially heinous, or

especially depraved.

“Especially” means unusually great or significant. The terms

“especially cruel,” or “especially heinous or depraved” are

considered separately. Therefore the presence of any one

circumstance is sufficient to establish this aggravating

circumstance. However, to find that this aggravating

circumstance is proven, you must find that the [sic] especially

cruel has been proven unanimously beyond a reasonable

doubt or that . . . especially heinous or depraved has been

proven unanimously beyond a reasonable doubt.

“Especially cruel.” The term “cruel” focuses on the victim’s

pain and suffering. If you find the murder was committed in

an especially cruel manner, you must find that the victim

consciously suffered physical or mental pain, distress, or

anguish prior to death. The defendant must know or should

have known that the victim would suffer.

“Especially heinous or depraved.” The term “especially

heinous or depraved” focuses . . . upon the defendant’s state

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STATE V. JOHNSON

Opinion of the Court

of mind at the time of the offense as reflected by the

defendant’s words and acts. A murder is especially heinous

if it is hatefully or shockingly evil. In other words, grossly

bad. A murder is especially depraved if it is marked by

de[b]a[s]ement, corruption, perversion, or deterioration.

¶16 The court then instructed on the State v. Gretzler factors of

gratuitous violence, helplessness, and senselessness, stating:

To determine whether a murder was especially heinous or

depraved, you must find that the State proved beyond a

reasonable doubt that the defendant exhibited such a mental

state at the time of killing by inflicting gratuitous violence on

the victim beyond that necessary to kill. To find that the

defendant inflicted gratuitous violence you must find the

defendant intentionally inflicted violence clearly beyond

what was necessary to kill the victim and that the defendant

continued to inflict this violence after the defendant knew or

should have known that the defendant had inflicted a fatal

injury.

To assist you in determining whether the murder is heinous

or depraved, you may consider the helplessness of the victim

and the senselessness of the murder. Helplessness means that

the victim is unable to resist. All murders are senseless

because of their brutality and finality, yet not all are senseless

as the term is used to distinguish those first degree murders

that warrant a death sentence from those that do not. Rather

a senseless murder is one that is unnecessary to achieve the

defendant’s objective.

A finding of helplessness and/or senseless[ness] alone or

together is not sufficient to prove that a first degree murder

was heinous or depraved. A first degree murder is not

heinous or depraved unless you also unanimously find that

the defendant inflicted gratuitous violence on the victim

beyond that necessary to kill.

See 135 Ariz. 42, 51–53 (1983).

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STATE V. JOHNSON

Opinion of the Court

¶17 First, Johnson argues that the (F)(6) “especially cruel”

aggravator violates the Eighth and Fourteenth Amendments to the United

States Constitution because it does not adequately limit the jury’s discretion

when deciding whether to impose the death penalty. See Walton v. Arizona,

497 U.S. 639, 652–53 (1990), overruled on other grounds by Ring v. Arizona, 536

U.S. 584 (2002). We have repeatedly rejected this argument in light of

further narrowing instructions, as were provided here. See, e.g., State v.

Champagne, No. CR-17-0425-AP, 2019 WL 3676317, at *15 ¶¶ 75–76 (Ariz.

Aug. 7, 2019).

¶18 Johnson next argues the trial court’s narrowing instructions

failed to provide sufficient guidance on whether Johnson’s murder

exceeded the norm of first degree murders. But again, we have repeatedly

upheld jury instructions like those given here. See, e.g., State v. Chappell, 225

Ariz. 229, 237 ¶ 27 & n.6 (2010).

¶19 Nevertheless, Johnson argues that while the Walton Court

affirmed Arizona’s capital sentencing scheme on the basis that the court—

familiar with comparable first degree murder cases—determined whether

the crime was “especially heinous, cruel or depraved,” 497 U.S. at 652–56,

the jury has no such contextual knowledge, and thus Walton’s justification

no longer applies. Johnson further argues, citing State v. Mata (Mata II), 185

Ariz. 319, 324 (1996), that it is impossible to craft a formulaic set of

narrowing instructions that can sufficiently guide the jury without

comparative review. But we have previously rejected such challenges

when the court provides further narrowing instructions based on Gretzler

and State v. Knapp, 114 Ariz. 531, 543 (1977) (providing narrowing

definitions for “heinous,” “cruel,” and “depraved”), see State v. (Ruben M.)

Johnson, 212 Ariz. 425, 431–32 ¶¶ 19–22 (2006) (approving narrowing

instructions and disavowing comparative review), and Johnson provides

no persuasive reason for us to revisit those decisions here. See also Smith v.

Ryan, 823 F.3d 1270, 1293–95 (9th Cir. 2016) (approving the narrowing

construction employed in Gretzler).

¶20 Lastly, Johnson argues the “gratuitous violence” instruction

incorrectly focused the jury’s attention on the physical violence rather than

Johnson’s mental state. But the instruction specifically required the jury to

find that Johnson “exhibited such a mental state” and “intentionally”

inflicted gratuitous violence, thereby focusing the jury on Johnson’s mental

state and intentions at the time he committed the crime. See State v.

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Bocharski, 218 Ariz. 476, 494 ¶ 87 (2008) (requiring the state to “show that

the defendant continued to inflict violence after he knew or should have known

that a fatal action had occurred,” because “[a] showing that a defendant

continued to inflict violence after he knew or should have known that a

fatal action had occurred provides essential evidence of the defendant’s

intent to inflict gratuitous violence”).

¶21 The instructions, when viewed as a whole, required that to

find the aggravator, the crime must be “unusually great or significant,”

“especially cruel,” or “hatefully or shockingly evil,” and therefore correctly

informed the jury that the crime must be above and beyond the normal first

degree murder. These instructions sufficiently narrowed the (F)(6)

aggravator. See State v. Prince, 226 Ariz. 516, 532 ¶ 51 (2011) (upholding jury

instructions from vagueness challenge).

ii. Arguing the (F)(6) aggravator during closing

¶22 Johnson next argues the trial court improperly prevented him

from arguing during closing that the State failed to meet its burden in

showing the murder was committed in an especially cruel, heinous, or

depraved manner. We review the trial court’s ruling on the scope of closing

argument for an abuse of discretion. State v. Pandeli, 215 Ariz. 514, 525 ¶ 30

(2007).

¶23 During closing, Johnson reiterated the burden of proof

required to prove the murder was “especially” cruel, heinous, or depraved,

and rhetorically asked whether his crime was “unusually great or

significant” where the jury had “nothing . . . to compare it to.” The State

immediately objected.

¶24 Counsel is given wide latitude in closing argument to

“comment on the evidence and argue all reasonable inferences therefrom.”

State v. Zaragoza, 135 Ariz. 63, 68 (1983). “Counsel may not, however,

comment on matters which were not introduced in evidence” or “call

matters to the attention of the jury that the jury could not properly

consider.” Id. Just as we have denied the consideration of proportional

review in jury instructions, supra ¶¶ 20–21, we decline to allow closing

arguments suggesting comparative review. See State v. Bible, 175 Ariz. 549,

602 (1993) (limiting closing argument to the evidence presented at trial);

State v. Greenway, 170 Ariz. 155, 171 (1991) (“The trial court’s consideration

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STATE V. JOHNSON

Opinion of the Court

of other similarly situated defendants is inapposite to this defendant’s

‘character or record’, and does not show any of the circumstances

surrounding this defendant’s ‘offense’ that would call for a sentence less

than death.”).

¶25 Thus, Johnson could not argue that his crime was not cruel,

heinous, or depraved by comparing it to other murders, nor could he argue

that the State did not meet its burden by failing to introduce evidence of

similarly situated defendants. He was allowed, however, to argue from the

evidence that his crime was not especially cruel, heinous, or depraved; and

he was free to point to jury instructions and elaborate upon them, based on

the evidence in the record, which he did here. See Prince, 226 Ariz. at 532

¶ 51 (allowing defendants to rely on “norm of first-degree murder”

instruction and argue it during closing).

iii. Sufficiency of (F)(6) evidence

¶26 Last, Johnson argues that there was insufficient evidence to

support the (F)(6) aggravator. Although the (F)(6) aggravator is a single

aggravating circumstance, it is written in the disjunctive, and thus we will

uphold the (F)(6) finding so long as the murder was either especially cruel

or especially heinous or depraved. See State v. Gunches, 225 Ariz. 22, 25 ¶ 15

(2010). In reviewing Johnson’s claim, we “review[] the record to determine

whether substantial evidence supports the jury’s finding, viewing the facts

in the light most favorable to sustaining the jury verdict.” State v. Roque,

213 Ariz. 193, 218 ¶ 93 (2006). “Substantial evidence is such proof that

reasonable persons could accept as adequate and sufficient to support [the

finding of the aggravator] beyond a reasonable doubt.” Id. (internal

quotation marks omitted) (citation omitted).

¶27 After deliberation, the jury unanimously found that the

murder was especially cruel, inflicted gratuitous violence beyond that

necessary to kill, was senseless, and that the victim was helpless.

¶28 The finding that the murder was especially cruel is supported

by the record. “A murder is especially cruel if the victim consciously

experiences physical abuse or mental anguish before death.” Bolton, 182

Ariz. at 311. In addition to the fatal neck wound, which involved at least

two cuts to Fu’s neck, Johnson inflicted a deep wound to her jaw, a gash to

her ribs, and a long gash down her back that collapsed her lung. See State

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Opinion of the Court

v. Boyston, 231 Ariz. 539, 555 ¶¶ 82–84 (2013) (stating the jury could

conclude, based on the number of stab wounds, which included a 3.5-inch

deep cut to the pericardium and heart, that the victim suffered physical

pain and mental anguish while being stabbed to death and that the

defendant knew or should have known that). Though Johnson argues the

evidence did not establish that Fu was alive and conscious, Dr. Keen

testified that Fu was likely alive during the attack: The angle of the back

wound indicated Fu was standing, the evidence established that there was

a struggle, and Fu suffered defensive hand wounds. See State v. McCray,

218 Ariz. 252, 259 ¶¶ 31–33 (2008) (finding consciousness where the expert

concluded, based on the nature of the victim’s injuries and condition of the

apartment, that a struggle probably occurred).

¶29 Johnson next argues the murder was not especially cruel

because there was no evidence that he inflicted pain and suffering in a

wanton, insensitive, or vindictive manner. Johnson argues the infliction of

pain “in a wanton, insensitive, or vindictive manner” focuses on the

defendant’s state of mind and that there was no evidence that he committed

the crime as revenge or to inflict harm, pain, or with no regard for the

victim’s pain. Our caselaw defeats this argument. In State v. Stokley, we

stated that “[c]ruelty focuses on the victim.” 182 Ariz. 505, 517 (1995)

(contrasting that “[h]einousness and depravity” go to the “mental state and

attitude” of the defendant “as reflected by his words or actions” (quoting

State v. Brewer, 170 Ariz. 486, 502 (1992))). The evidence sufficiently

supports the jury’s finding of cruelty.

¶30 The evidence also supports a finding that the murder was

committed in an especially heinous or depraved manner. The state may

prove the murder was especially heinous or depraved by establishing that

the defendant inflicted gratuitous violence. Gunches, 225 Ariz. at 25 ¶ 15.

A murder involves gratuitous violence when the defendant uses violence

beyond that necessary to kill. See Gretzler, 135 Ariz. at 52. To prove

gratuitous violence, the state must first show that the defendant did “use

violence beyond that necessary to kill.” Bocharski, 218 Ariz. at 494 ¶ 85.

Second, the state must show “the defendant continued to inflict violence

after he knew or should have known that a fatal action had occurred.” Id.

¶ 87 (emphasis removed). In addition to the multiple stab wounds, Johnson

carved on the victim’s stomach. Based on the blood loss, Dr. Keen

confirmed that the stomach carving likely occurred after the victim suffered

the fatal neck wound, which itself likely required multiple cuts and

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Opinion of the Court

penetrated four inches into Fu’s neck. Even if Johnson did not know that

the neck wound was fatal, he should have.

¶31 Johnson argues that the instructions blurred the line between

mutilation and gratuitous violence. Even if true, the manner of the murder

and the stomach carving reflected mutilation. See State v. Vickers, 129 Ariz.

506, 515 (1981) (upholding the finding of depravity where the defendant

carved “Bonzai” on the victim’s back after killing him). Either Fu was alive

when Johnson carved into her stomach, establishing gratuitous violence, or

she was already dead, resulting in mutilation. See State v. Bearup, 221 Ariz.

163, 173 ¶¶ 50–53 (2009) (upholding the finding of heinous or depraved

where the defendant cut off the victim’s finger after beating the victim with

an aluminum bat, reasoning that the removal of the finger constituted either

gratuitous violence or mutilation).

¶32 Johnson does not challenge the jury’s finding that the murder

was senseless and the victim helpless, but the evidence nonetheless

supports those conclusions. 1 The evidence established that Fu was bound,

and therefore helpless, and that her restraints prevented her from

interfering with Johnson’s attempt to rob her or flee, indicating the murder

was senseless. See State v. Ross, 180 Ariz. 598, 605 (1994) (“A murder is

senseless when it is unnecessary to allow the defendant to complete his

objective.”).

C. The Lynch v. Arizona “Ineligible for Parole” Instruction

¶33 Johnson argues the court erred by initially failing to instruct

the jury that he was ineligible for parole. Johnson further argues that,

following the United States Supreme Court’s decision in Lynch v. Arizona

(Lynch II), 136 S. Ct. 1818 (2016), the trial court erred by failing to declare a

mistrial. We review jury instructions de novo “as a whole to ensure that

the jury receives the information it needs to arrive at a legally correct

decision.” Prince, 226 Ariz. at 536 ¶ 77 (quoting State ex rel. Thomas v.

Granville, 211 Ariz. 468, 471 ¶ 8 (2005)). We review a trial court’s decision

whether to grant a mistrial for an abuse of discretion. State v. Leteve, 237

Ariz. 516, 526 ¶ 33 (2015).

1 Arizona law requires that we review the sentencing portion, including

finding the aggravating factors, for reasonable evidence. See infra ¶¶ 192–

93.

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Opinion of the Court

¶34 Before trial, Johnson requested a jury instruction that he was

ineligible for parole, in accordance with Simmons v. South Carolina, 512 U.S.

154 (1994). Under Simmons, when future dangerousness is placed at issue,

the defendant has the right to a jury instruction that he is ineligible for

parole if the only alternative to a death sentence is natural life. Id. at 162,

168–69. Relying on our decision in State v. Lynch (Lynch I), 238 Ariz. 84, 103

¶ 65 (2015), the trial court granted Johnson’s request to instruct the jury that

parole was not currently available but declined his request to inform the

jury that he was never eligible for parole since § 13-751(A) authorized

release in the form of executive clemency. The court then instructed the

jury that, among the sentences imposable if it found Johnson guilty, was “a

life sentence with the possibility of parole after serving 25 years

imprisonment.”

¶35 On the second day of the penalty phase, the United States

Supreme Court issued Lynch II, reversed our decision in Lynch I, and held

that the possibility of executive clemency did not justify refusing the parole-

ineligible instruction. 136 S. Ct. at 1819–20. Johnson moved for a mistrial.

The State responded that future dangerousness was never placed at issue

and that a curative instruction could be given regardless. The court denied

Johnson’s motion.

¶36 After the penalty phase trial, the court instructed the jury as

follows:

Defendant ineligible for parole. A defendant sentenced to life

without the possibility of release after [sic] 25 years must

serve the entire 25 years before the defendant can apply for

release. There is no automatic release after 25 years. Arizona

law does not provide for parole. The only form of release for

which defendant is eligible is executive clemency.

¶37 The trial court complied with Lynch II. It informed the jury

that Johnson was ineligible for parole and that the only possibility for

release was by executive clemency after he served at least twenty-five years.

The jury thus “receive[d] the information it need[ed] to arrive at a legally

correct decision.” Prince, 226 Ariz. at 536 ¶ 77.

¶38 Nevertheless, Johnson argues the post-Lynch II instruction

could not cure the court’s original deficient instruction because the jury

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Opinion of the Court

repeatedly heard during voir dire that Johnson was eligible for parole and

the only way to ensure his right to a fair trial was to declare a mistrial.

¶39 But “[d]eclaring a mistrial is an unusual remedy for trial error

and should not be resorted to unless justice requires such a result.” State v.

White, 160 Ariz. 24, 33 (1989). The State neither raised nor argued future

dangerousness. Johnson does not point to any evidence showing the jury

was confused regarding the law, either before or after the curative

instruction. And during closing, Johnson argued that the only alternative

to a death sentence was life in prison; the State did not argue otherwise.

¶40 After the issuance of Lynch II, the trial court instructed the jury

that Johnson was ineligible for parole and that “release” meant only

executive clemency; we presume the jury followed those instructions. See

State v. Dann, 205 Ariz. 557, 570 ¶ 46 (2003). The court did not abuse its

discretion in denying Johnson’s motion for mistrial.

D. The Significant Impairment Instruction

¶41 Johnson argues the court’s significant impairment instruction

reflected the standard established by the guilty except insane (“GEI”)

instruction and that it, therefore, imposed a higher burden than that

required by the § 13-751(G)(1) mitigator. Because Johnson did not object at

trial, we review his claim for fundamental error only. See State v. Velazquez,

216 Ariz. 300, 309 ¶ 37 (2007). An error is fundamental if it goes to the

foundation of the case, takes away from the defendant a right essential to

his defense, or is of such magnitude that the defendant could not have

possibly received a fair trial. State v. Escalante, 245 Ariz. 135, 142 ¶ 21 (2018).

To prevail, a defendant must establish both that fundamental error

occurred and that it caused him prejudice (though showing the former may

establish the latter). Id. at 140–41 ¶¶ 13, 16 (stating that “an error of such a

magnitude that a defendant could not possibly have received a fair trial is

always prejudicial” (internal quotation marks omitted)).

¶42 Section 13-751(G)(1) provides mitigation when “[t]he

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

conform his conduct to the requirements of law was significantly impaired,

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

trial, Johnson attempted to show that he was under the influence of Xanax

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Opinion of the Court

and possibly cocaine at the time of the murder. The court instructed the

jury as follows:

Significant impairment. It is a mitigating circumstance that

the defendant’s capacity to appreciate the wrongfulness of his

conduct or to conform his conduct to the requirements of law

was significantly impaired but not so impaired as to

constitute a defense to prosecution. The defendant has the

burden of proving this mitigating circumstance by a

preponderance of the evidence.

“Significantly impaired” means that the defendant suffered

from mental illness, personality disorder or substance abuse

at or near the time of the offense that prevented the defendant

from appreciating the wrongfulness of the conduct or

conforming his conduct to the requirements of law.[2]

¶43 The State concedes that limiting the definition of

“significantly impaired” to the defendant being prevented from appreciating

the wrongfulness of the conduct was error, but argues the error is not

prejudicial. The jury instructions specifically noted that the burden was not

so high “as to constitute a defense to prosecution.” And the State did not

argue that Johnson was required to prove the impairment fully prevented

him from knowing the criminal act was wrong, but instead that he was not

so high on Xanax that he was unable to appreciate the wrongfulness of his

conduct. Indeed, the State argued that impairment only referred to an

“impact [on] his ability to know right from wrong,” and it argued that the

jury had heard how Johnson acted when he was actually impaired—

slurring his speech, being unable to stay awake—but that on the day of the

murder nobody described any such impairment. Instead, the evidence

showed that Johnson took affirmative steps to conceal his role in the

murder—Johnson falsely claimed that Fu had cut herself, reversed his truck

when driving away to prevent his license plate from being seen, and went

2 The Revised Arizona Jury Instructions (Criminal) now provide that

significant impairment “substantially reduce[s] the defendant’s ability to

appreciate the wrongfulness of the conduct . . . .” Rev. Ariz. Jury Instr.

(Crim.) Capital Case 3.2, at 620 (4th ed. 2018),

https://www.azbar.org/media/1904900/rajicriminal-4thed2018.pdf.

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to his girlfriend’s apartment to clean his truck and clothes—indicating that

he knew his conduct was wrong.

¶44 Further, the court instructed the jury that it was “not limited

to the mitigating circumstances offered by the defendant,” but must “also

consider any other information that you find is relevant in determining

whether to impose a life sentence so long as it relates to an aspect of the

defendant’s background, character, propensities, history or record or

circumstances of the offense.” Johnson presented a large mitigation case.

He called several mitigation witnesses who testified that he was a student

at Columbine during the infamous school shooting, about his history of

substance abuse and a personality disorder, his family love and support,

his adoption, and other struggles. Similarly, Johnson presented evidence

of his behavior while on drugs. Yet, the jury heard and considered

Johnson’s mitigation and found it lacking when compared to the three

aggravating factors and the nature of the murder. Johnson was not

prejudiced by the instruction.

E. Prison Housing Conditions and Johnson’s Right to Trial

¶45 Johnson argues the court erred by allowing the State to

introduce evidence of prison housing conditions and to comment on his

exercise of the right to trial. We review the court’s rulings regarding the

admissibility of evidence for an abuse of discretion. State v. Gill, 242 Ariz.

1, 3 ¶ 7 (2017). “An error of law committed in reaching a discretionary

conclusion may, however, constitute an abuse of discretion.” State v. Wall,

212 Ariz. 1, 3 ¶ 12 (2006).

i. Prison housing conditions

¶46 Before trial, Johnson moved to admit his offers to plead guilty

as mitigating evidence, per Busso-Estopellan v. Mroz, 238 Ariz. 553, 554–55

¶¶ 5–7 (2015). The State responded that it intended to rebut Johnson’s plea

offers with evidence that the offers were conditioned on receiving a life

sentence and that prisoners serving such sentences have better prison

housing conditions than those on death row. While Johnson agreed that

the State could rebut his plea offers by showing they were conditioned, he

argued that the prison housing evidence was irrelevant because he was

unaware of preferable prison housing conditions and the State had no

evidence showing he offered to plead guilty to obtain them. The court

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STATE V. JOHNSON

Opinion of the Court

granted Johnson’s motion to admit his plea offers, but deferred ruling on

the scope of the State’s rebuttal until trial.

¶47 During trial, Johnson repeated his objection, filing a motion

to preclude the evidence. The State countered that it did not “have to prove

that this was the defendant’s sole motivation,” but that “this is a man who’s

been to [the Department of Corrections] twice” and thus was “aware of

classifications and movement systems and numbering.” The court denied

Johnson’s motion.

¶48 At trial, Johnson introduced his conditioned plea offers. In

rebuttal, the State presented the testimony of a Department of Corrections

administrator, who explained the potential housing differences, based on

custody levels, between an inmate serving a life sentence and one serving a

death sentence. In her testimony, she described the “privileges” and

“incentives” a life sentence inmate can receive as a result of potential lower

custody levels.

¶49 At the close of mitigation, Johnson allocuted. He apologized

for the murder, stated that he “would have pled guilty to this first-degree

murder as early as March of 2012,” and asked for leniency.

¶50 In closing, the State argued:

And you never heard once, in the mitigation claim or the

defendant standing in front of you, that he only made a

conditional offer to plead guilty to the crimes. That condition

being you give me the sentence I want and I’ll plead guilty.

Nothing stops a defendant from pleading guilty if that’s what

they choose. But in this case, the defendant would only plead

guilty if he could get the least sentence available. Is that truly

admitting guilt and accepting responsibility, to demand he

get the least sentence available if convicted of this crime?

How worthy is that evidence when the defendant slaps a

condition on it?

And you heard from [the Department of Correction’s

administrator] the possible benefits he can get with a natural

life sentence, that being within the first five years and on a

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STATE V. JOHNSON

Opinion of the Court

review period thereafter, being reduced all the way down

from maximum custody, to closed custody, to medium

custody, enjoying all of those privileges, freedoms and

benefits. In light of that evidence introduced to solely rebut

the defendant’s claim of an offer of responsibility, of an

acceptance of responsibility, how mitigating are those facts

when compared to that defendant would only plead guilty if

the State gave him what he wanted?

¶51 In Busso-Estopellan, we held that the “[a]cceptance of

responsibility is a non-statutory mitigating circumstance” and that

defendant’s plea offer “is relevant because it tends to make his acceptance

of responsibility . . . more probable.” 238 Ariz. at 554–55 ¶ 67. We further

stated that “the court may exercise its discretion to determine how best to

admit the evidence,” “may avert . . . confusion . . . by instructing the jury

that the State was not required to extend a plea offer,” and “may permit

introduction of part of the offer letter.” Id. at 555 ¶¶ 10–11.

¶52 Johnson argues that evidence of prison housing conditions is

irrelevant. See, e.g., People v. Quartermain, 941 P.2d 788, 807 (Cal. 1997)

(“[E]vidence of the conditions of confinement that a defendant will

experience if sentenced to life imprisonment without parole is irrelevant to

the jury’s penalty determination because it does not relate to the

defendant’s character, culpability, or the circumstances of the offense.”).

The State argues that it was permitted to include evidence of prison housing

conditions to rebut Johnson’s plea offers by establishing a motivation for

pleading guilty other than remorse or acceptance of responsibility. See

People v. Ledesma, 140 P.3d 657, 724 (Cal. 2006) (finding nothing improper

about the prosecutor questioning defense witnesses about the defendant’s

motive to plead guilty to rebut defendant’s claim that he pled guilty to

accept responsibility).

¶53 But the State presented no evidence that Johnson was aware

of the housing differences or that a difference in housing conditions

motivated his plea offer. The State thus failed to prove the antecedent fact

necessary to make the evidence relevant and thus admissible.

¶54 And even if the State introduced evidence that Johnson knew

of the differences and made his plea offer based on those differences,

evidence of prison housing conditions would still likely be inadmissible.

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STATE V. JOHNSON

Opinion of the Court

The State may rebut the motivation of the plea offers by showing that some

motivating factor compelled the plea offer other than remorse or an

acceptance of responsibility. Busso-Estopellan, 238 Ariz. at 554–55 ¶¶ 5–7,

10–11. But evidence of prison housing conditions is only marginally

probative of an alternative motive for the plea offer and is likely

outweighed by the potential prejudice from the inference that a defendant

would receive enhanced living conditions if not sentenced to death. See id.

at 554 ¶ 6 (stating that though “the Arizona Rules of Evidence do not apply

in the penalty phase, we are ‘guided by fundamentally the same

considerations’” (quoting State v. Guarino, 238 Ariz. 437, 439 ¶ 6 (2015)); see

also Guarino, 238 Ariz. at 441 ¶ 15 (noting that unduly prejudicial evidence

in the penalty phase may be precluded, even where it would otherwise be

relevant). The trial court erred in denying Johnson’s motion.

¶55 The State argues the error is nevertheless harmless. See

Escalante, 245 Ariz. at 144 ¶ 30 (stating that under this standard the state

must show “beyond a reasonable doubt that the error did not contribute to

or affect the verdict or sentence” (internal quotation marks omitted)). We

agree.

¶56 Johnson did not object to the evidence’s prejudicial impact

nor does he now argue that the evidence deprived him of due process

because it was unduly prejudicial. Cf. Prince, 226 Ariz. at 534 ¶ 65 (“[T]he

Fourteenth Amendment’s Due Process Clause prohibits . . . evidence that

‘is so unduly prejudicial that it renders the trial fundamentally unfair.’”

(quoting Payne v. Tennessee, 501 U.S. 808, 825–26 (1991))). Even so, in cross-

examination of the Department of Corrections administrator and closing,

Johnson showed the differences in housing conditions were minimal.

Further, the State offered evidence of the prison housing conditions for a

limited purpose—“to solely rebut the defendant’s claim of an offer of

responsibility” (which was also motivated by Johnson’s desire to escape the

death penalty). It did not rely on the evidence of prison housing conditions

to argue that death was required because a life sentence would otherwise

reward Johnson and the evidence was cumulative to the State’s evidence

that his plea offer was contingent on his receiving a natural life sentence.

Last, the jury found significant aggravation in this case—the (F)(2), (F)(6),

and (F)(7)(a) and (b) aggravators. Based on the foregoing, we conclude that

even if the erroneously admitted evidence had been excluded, no

reasonable jury would have reached a different result. Cf. State v. Dann, 206

Ariz. 371, 374 ¶ 14 (2003) (asking whether, after reviewing the evidence, a

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Opinion of the Court

reasonable jury would weigh the mitigation evidence differently and thus

reach a different result).

ii. Comment on plea offers and Johnson’s allocution

¶57 Johnson next argues the court erred by allowing the State to

comment during the penalty phase closing that “[n]othing stops a

defendant from pleading guilty if that’s what they choose. . . . Is [it] truly

admitting guilt and accepting responsibility, to demand he get the least

sentence available if convicted of this crime?” But the State’s comment

related to evidence in the record and was proper rebuttal to Johnson’s

allocution and plea offers. See Chappell, 225 Ariz. at 238 ¶ 32 (stating the

right to allocution is not absolute and that the state may present appropriate

rebuttal); United States v. Fell (Fell II), 531 F.3d 197, 220–21 (2d Cir. 2008)

(finding the prosecutor’s comment—“if [the defendant] wanted to plead

guilty he could have”—to be a reasonable response to defendant’s use of

his plea offer and that no Fifth or Sixth Amendment right was violated).

And the State’s closing did not otherwise comment on or reference

Johnson’s allocution in a way that penalized him for exercising his right to

go to trial. Cf. United States v. Whitten, 610 F.3d 168, 195 (2d Cir. 2010)

(stating that the defendant’s “constitutionally protected decision to go to

trial was cited as a reason to sentence him to death, and thus to ‘enhance’

what would otherwise be a life sentence”).

F. Inconsistent Mercy, Sympathy, and Presumption of Death

Instructions

¶58 Johnson argues the trial court gave internally inconsistent

jury instructions regarding mercy, sympathy, and the presumption of death

and that the instructions likely caused juror confusion resulting in an

unconstitutional sentence. Because Johnson failed to object at trial, we

review for fundamental error only. Velazquez, 216 Ariz. at 309 ¶ 37.

¶59 During the trial, the jury was instructed as follows:

Each one of you must decide individually whether any

mitigating circumstance exists.

You are not limited to the mitigating circumstances offered by

the defendant. You must also consider any other information

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STATE V. JOHNSON

Opinion of the Court

that you find is relevant in determining whether to impose a

life sentence so long as it relates to an aspect of the

defendant’s background, character, propensities, history or

record or circumstances of the offense.

The defendant bears the burden of proving the existence of

any mitigating circumstance that the defendant offers by a

preponderance of the evidence . . . .

....

Even if a juror believes that the aggravating and mitigating

circumstances are of the same quality or value, that juror is

not required to vote for a sentence of death and may instead

vote for a sentence of life in prison. A juror may find

mitigation and impose a life sentence even if the defendant

does not present any mitigation evidence.

....

[E]ach of you must determine whether, in your individual

assessment, the mitigation is of such quality or value that it

warrants leniency in this case.

The law does not presume what is the appropriate sentence.

The defendant does not have the burden of proving that life

is the appropriate sentence. The State does not have the

burden of proving that death is the appropriate sentence. It

is for you as jurors to decide what you individually believe is

the appropriate sentence.

In reaching a reasoned, moral judgment about which sentence

is justified and appropriate, you must decide how compelling

or persuasive the totality of the mitigating factors is when

evaluated in connection with the totality of the aggravating

factors and the facts and circumstances of the case. This

assessment is not a mathematical one, but instead must be

made in light of each juror’s individual qualitative evaluation

of the facts of the case, the severity of the aggravating factors,

and the quality of the mitigating factors found by each juror.

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STATE V. JOHNSON

Opinion of the Court

If you unanimously agree there is mitigation sufficiently

substantial to call for leniency, then you shall return a verdict

of life. If you unanimously agree there is no mitigation, or the

mitigation is not sufficiently substantial to call for leniency,

then you shall return a verdict of death.

Your decision is not a recommendation. Your decision is

binding. . . .

¶60 Johnson argues the stated instructions were confusing

because at separate times they suggested there was a presumption for life,

then death. But the above instructions correctly conveyed that Arizona

“law does not presume [there] is [an] appropriate sentence.” See State v.

Glassel, 211 Ariz. 33, 52 ¶ 72 (2005) (discussing scheme’s constitutionality

where it does not create a “presumption of death”). Further, the

instructions accurately describe that it is the duty of each juror to decide

whether a life or death sentence is appropriate “in light of each juror’s

individual qualitative evaluation of the facts of the case, the severity of the

aggravating factors, and the quality of the mitigating factors found by each

juror.”

¶61 Johnson additionally argues the instructions allowed the jury

to believe that the responsibility for determining whether a death sentence

should be imposed rested elsewhere, i.e., with the state or defense upon

meeting their burdens of proof. See Caldwell v. Mississippi, 472 U.S. 320, 328–

32 (1985) (noting concern that jurors could “delegate” their responsibility to

a higher court in review). The instructions, however, reinforced that each

juror’s decision was his or her own, that the jury’s “decision [was] not a

recommendation” but was “binding,” and that neither Johnson nor the

State had a burden to prove that a life or death sentence was appropriate.

¶62 Johnson next argues the court gave conflicting “mercy” and

“sympathy” instructions and that this error prevented the jury from giving

a “reasoned moral response” to Johnson’s mitigation. We rejected a similar

argument in State v. Carreon, 210 Ariz. 54, 70–71 ¶¶ 81–87 (2005), and State

v. Kuhs, 223 Ariz. 376, 386–87 ¶¶ 51–56 (2010), and Johnson provides no

reason to revisit those decisions. The instructions did not obfuscate the

concepts of mercy or sympathy, nor did they prevent the jury from giving

Johnson’s mitigation a reasoned moral response. The instructions limited

the jury’s consideration to the evidence presented as it related to Johnson’s

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STATE V. JOHNSON

Opinion of the Court

character, record, and the circumstances of the offense. See California v.

Brown, 479 U.S. 538, 545 (1987) (O’Connor, J., concurring) (stating that “the

sentence imposed at the penalty stage should reflect a reasoned moral

response to the defendant’s background, character, and crime rather than

mere sympathy or emotion”). No error occurred.

G. Execution Impact Evidence

¶63 Johnson argues the trial court erred by excluding execution

impact evidence because it was relevant to his character and showed his

family’s love and support, citing Woodson v. North Carolina, 428 U.S. 280,

288, 304 (1976), State v. Carriger, 143 Ariz. 142, 162 (1984), and People v.

Ochoa, 966 P.2d 442, 505–06 (Cal. 1998). But we have previously held

execution impact evidence inadmissible. See State v. Rose, 231 Ariz. 500,

513–14 ¶¶ 63–65 (2013); Chappell, 225 Ariz. at 238 ¶¶ 28–30; Roque, 213 Ariz.

at 222 ¶¶ 117–20. We decline to revisit those decisions.

¶64 To the extent Johnson argues that the court prevented him

from presenting evidence touching on his character and family support, we

note that the court’s ruling “[did] not preclude the defendant’s family,

friends, associates or representatives from expressing support and/or

mitigation.” The “ruling simply restrict[ed] anyone on behalf of the family

from expressing views regarding the impact upon the family should the

defendant be executed.” See Rose, 231 Ariz. at 514 ¶ 65 n.3 (“To the extent

Rose argues that his family ties and the love of a defendant’s family has

been held by this Court to be mitigation, we agree that the existence of

family ties is a mitigating factor.” (alterations omitted) (citation and internal

quotation marks omitted)).

¶65 To the extent Johnson urges this Court to allow execution

impact evidence to counter victim impact evidence, we are not persuaded.

Allowing victim impact evidence reflects the view that for a “jury to assess

meaningfully the defendant’s moral culpability and blameworthiness, it

should have before it at the sentencing phase evidence of the specific harm

caused by the defendant.” See Payne, 501 U.S. at 825. Victim impact

evidence bears on the “harm imposed[] upon the victims” of the crime, and

thus relates to the circumstance of the offense, id. at 826–27, whereas

execution impact evidence relates only to the impact on the defendant’s

family, cf. Chappell, 225 Ariz. at 238 ¶ 29 (stating that the requirements of

the Eighth and Fourteenth Amendments do not limit the trial court’s

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Opinion of the Court

authority “to exclude, as irrelevant, evidence not bearing on the defendant’s

character, prior record, or the circumstances of his offense” (quoting Lockett

v. Ohio, 438 U.S. 586, 604 n.12 (1978)). No error occurred.

H. Limitation of Mitigation Evidence

¶66 Johnson argues the court erred by limiting his presentation of

mitigation evidence. We review the trial court’s rulings on the admissibility

of evidence for an abuse of discretion. Gill, 242 Ariz. at 3 ¶ 7.

¶67 Under the Eighth and Fourteenth Amendments, a defendant

may present mitigation evidence based on any aspect of his character,

record, or the circumstances of the offense. Chappell, 225 Ariz. at 238 ¶ 29

(citing Lockett, 438 U.S. at 604). Consequently, § 13-751(G) provides that the

jury shall consider any factors proffered by the defendant that are relevant

in determining whether to impose a sentence less than death. And § 13-

751(C) provides that “the defendant may present any information that is

relevant to any of the mitigating circumstances included in subsection G . .

. regardless of its admissibility under the rules governing admission of

evidence at criminal trials.” Though the Arizona Rules of Evidence do not

apply in the penalty phase of a first degree murder trial, we are nevertheless

“guided by fundamentally the same considerations.” Busso-Estopellan, 238

Ariz. at 554 ¶ 6.

i. Columbine

¶68 Johnson was a student at Columbine High School at the time

of the school shooting. Before trial, the State filed a motion to narrow the

scope of Columbine mitigation to evidence “relevant as it relates to

defendant’s character, prior record or the circumstances of his offense.”

The State sought to limit, at the time, roughly 23,000 pages of evidence

touching on the effect Columbine had not only on Johnson, but on other

students and the community generally. As such, the State sought to

preclude irrelevant information and limit unduly cumulative evidence.

The court agreed. While it allowed Johnson to “tell the story” of the

Columbine shooting with approximately three to five witnesses, introduce

evidence of Johnson’s reactions during and after the shooting, its effects on

him, and its effects on the school and town generally, the court precluded

testimony from fellow students of Columbine’s impact on their lives and

on the lives of other individuals, finding it irrelevant.

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STATE V. JOHNSON

Opinion of the Court

¶69 The court did not abuse its discretion. Johnson introduced

evidence about the Columbine shooting, that he was a freshman at

Columbine High School at the time of the shooting, its effects generally on

the community, its effects personally on him, and that he was thereafter

diagnosed as suffering from post-traumatic stress disorder (“PTSD”).

Testimony by other Columbine survivors as to its effects on their lives does

not bear specifically on Johnson’s character. The trial court correctly noted

that such testimony risks confusing the jury, unfair prejudice, and wasting

time, and is cumulative to the other, admissible, Columbine-related

evidence. The court did not abuse its discretion by excluding this

testimony.

ii. Adopted-child syndrome

¶70 Johnson argues the court incorrectly limited his presentation

of adopted-child syndrome evidence. During the trial, Johnson introduced

evidence that he was adopted from Korea as an infant and that Dr.

Kirschner had diagnosed him with a dissociative disorder called “adopted-

child syndrome.” But adopted-child syndrome is not officially recognized

in any edition of the Diagnostic and Statistical Manual of Mental Disorders

(“DSM”). Johnson claims the court prevented him from asking Dr.

Kirschner why adopted-child syndrome was not yet recognized.

¶71 Reviewing the record, the court simply prevented Dr.

Kirschner from speculating why the diagnosis was not officially recognized

in the DSM, a matter outside of the scope of his testimony and the trial. The

court did not prevent Johnson from asking whether the DSM was the “be-

all-end-all” as it pertains to diagnoses to establish that it was not. Nor did

it prevent Johnson from asking Dr. Kirschner to identify the basis for his

diagnosis. No abuse of discretion occurred.

iii. Drug-seeking behavior

¶72 Johnson argues the court erred by preventing him from

eliciting testimony during redirect examination that he sought counseling

for psychological benefits and not to obtain prescription drugs.

¶73 During cross-examination of Dr. Abrams, the State elicited

testimony that in 2008, Johnson “wanted something to help him relax,”

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Opinion of the Court

“that he was out of Xanax,” and that “[h]e was at the hospital asking for

more Xanax.” On redirect, Johnson sought to ask whether “there [was] any

indication at that point in time [that] Johnson [was] going to the hospital in

order to obtain drugs?” The State objected, arguing that it elicited only

testimony showing that Johnson minimized his substance abuse issues. See

State v. Hicks, 133 Ariz. 64, 69 (1982) (limiting redirect examination to the

scope of cross-examination). Though the State claimed during its objection

that it did not elicit testimony of drug-seeking behavior during its cross-

examination of Dr. Abrams, the question implied that the reason for

Johnson’s hospital visit was to obtain drugs. The court’s ruling sustaining

the State’s objection was therefore arguably error. But because Johnson

admitted that the inference was only implied, not directly stated, and

because his question was unclear, any error was harmless.

¶74 Further, the record reveals that some of Johnson’s redirect

questions on this issue were answered before the State’s objection and

Johnson addressed the alleged drug-seeking behavior by asking the same

questions to Dr. DeMarte, who testified later during the trial. To the extent

Johnson generally argues that the court improperly limited mitigation

evidence regarding drug-seeking behavior, Johnson introduced evidence

that he had a genetic predisposition to substance abuse, was an adolescent

when he started abusing drugs, and that he had a history of substance

abuse, which he tied back to Columbine and his PTSD diagnosis.

iv. PTSD

¶75 Johnson argues that the court prevented him from fully

detailing the effects of his PTSD. However, as discussed above, Johnson

presented evidence of his PTSD diagnosis to the jury. To the extent Johnson

argues the court improperly limited redirect on PTSD criteria, Johnson’s

objected-to question related to substance abuse, whereas, as Johnson

acknowledged at trial, the portion of the State’s cross-examination at issue

related only to nightmares. After sustaining the State’s objection, the trial

court nevertheless allowed Johnson to ask, “Why [are] nightmares

important?” to which Dr. Abrams answered that nightmares were “one of

the criteria for [PTSD].” The court did not abuse its discretion.

v. Counseling

¶76 Johnson argues the court limited his ability to discuss

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STATE V. JOHNSON

Opinion of the Court

counseling as mitigation evidence. Johnson has waived this argument by

not developing it. See Bolton, 182 Ariz. at 298. Nevertheless, we note that

Johnson introduced evidence that he attended counseling and therapy post-

Columbine and sought out counseling when he was having issues with his

marriage; he was not prevented from arguing that he fared better and

improved with counseling. No error occurred.

vi. Antisocial personality disorder

¶77 Last, Johnson inconsistently argues (1) that the State

impermissibly implied that he had an antisocial personality disorder

diagnosis the State knew did not exist, and (2) that he should have been

allowed to introduce evidence that he had an antisocial personality

disorder as mitigating evidence.

¶78 In mitigation, Johnson introduced evidence that he displayed

paranoid, avoidant, and alexithymic features and that Dr. Abrams

diagnosed him with personality disorder “NOS” (“not otherwise

specified”). However, neither Dr. Abrams nor Dr. Kirschner diagnosed him

with a specified personality disorder, such as antisocial personality

disorder. Nevertheless, Dr. Abrams and Dr. Kirschner discussed Johnson’s

antisocial tendencies, as well as antisocial and conduct disorders generally,

effects of which dated back to Columbine.

¶79 In rebuttal, the State called Dr. DeMarte, who defined

antisocial personality disorder as “a personality disorder where an

individual has a pervasive pattern of disregarding societal standards and

following rules and engaging in society in a productive manner.” She

further testified that adolescent conduct disorder was indicative of later

antisocial personality disorder, and thus a diagnosis of a conduct disorder

in youth usually preceded a diagnosis of an antisocial personality disorder

in adulthood. Because she found evidence of a conduct disorder lacking,

Dr. DeMarte determined there was no antisocial personality disorder,

though Johnson displayed antisocial traits. The State then elicited

testimony indicating that Johnson withheld instances of antisocial conduct

from her which occurred when he was younger, and Dr. DeMarte answered

that such adolescent behavior “would support evidence for antisocial

personality disorder.” Johnson objected, arguing the State was attempting

to back-door an antisocial personality disorder diagnosis, and moved for a

mistrial. The State responded that it was only seeking to show that Johnson

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STATE V. JOHNSON

Opinion of the Court

underreported his adolescent activities. The court denied Johnson’s

motion, and ordered the State to confirm with Dr. DeMarte that there was

no diagnosis, which she did.

¶80 The court did not abuse its discretion. The court sustained

Johnson’s objection and remedied the improper inference by requiring the

State to ask whether there was a diagnosis, to which Dr. DeMarte

responded there was not. Nor was there any harm. Johnson introduced

evidence of antisocial traits and his personality disorder. And he presented

evidence generally describing antisocial personality disorders and conduct

disorders. Lastly, he introduced evidence that doctors did not diagnose

him with an antisocial personality disorder. The State’s cross-examination,

challenging Johnson’s underreporting to Dr. Abrams, Dr. Kirschner, and

Dr. DeMarte, was permissible rebuttal. To the extent Johnson argues

evidence of an antisocial personality disorder should have been allowed, he

was not prevented from arguing that his personality disorder and antisocial

traits were mitigating circumstances, which he did.

¶81 Contrary to Johnson’s claims, he presented evidence

regarding the Columbine shooting, his PTSD, his history of substance abuse

and his biological predisposition, and how his adoption affected him. Each

of the court’s rulings correctly excluded irrelevant, cumulative evidence, or

testimony outside the scope of cross or redirect examination.

I. Defense Counsel’s Attorneys’ Notes

¶82 Johnson argues the court erred by ordering the disclosure of

his attorneys’ notes. We review the legal scope of disclosure under Arizona

Rule of Criminal Procedure 15 de novo, while we review the judge’s rulings

for an abuse of discretion. Roque, 213 Ariz. at 205 ¶ 21.

¶83 In his July 2015 notice of mitigation witnesses, Johnson

included summaries of witness statements. The State argued the

summaries did not comply with Rule 15.2(h) and asked the court to order

that Johnson turn over all written witness statements, not just summaries.

Johnson responded that the notes were not subject to disclosure because

they were investigatory notes of the defense team and reflected counsel’s

opinions, conclusions, and impressions. Johnson further asserted that

counsel’s notes of meetings were inaccurate because they did not reflect

verbatim statements and instead were “only quick notes of their own

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Opinion of the Court

impressions of the statements made by the witnesses,” and that a conflict

might arise should counsel be called to verify the veracity of any

statements. See Dean v. Superior Court, 84 Ariz. 104, 110–13 (1958). The court

entered an order for Johnson to “disclose as soon as possible . . . any and all

witness statements not previously disclosed, with defense team opinions,

theories and conclusions redacted.” The court further informed Johnson

that he could seek in camera review if he believed disclosure of a specific

witness statement would violate an ethical obligation.

¶84 Johnson sought special action relief, which was denied. The

court of appeals concluded that the order allowed Johnson to redact

opinions, theories, and conclusions from the handwritten notes, and stated

that “[p]ending the result of an in camera review,” it was “in no position to

rule in the abstract on whether disclosure of any specific witness statement

may raise ethical concerns.”

¶85 Arizona Rule of Criminal Procedure 15.2(h)(1)(A)(ii) requires

disclosure of any written or recorded statement. Rule 15.4 defines a

statement to include “a written record or summary of a person’s oral

communications,” but protects “[s]uperseded [n]otes” which are not

“statement[s] if they were substantially incorporated into a document or

report . . . .” Ariz. R. Crim. P. 15.4(a)(1)(C), (a)(3). Further, Rule 15.4 protects

an attorney’s work product, providing that a “party is not required to

disclose . . . records, . . . reports, or memoranda to the extent they contain

the opinions, theories, or conclusions of the prosecutor or defense counsel.”

Id. 15.4(b)(1).

¶86 Rule 15.2(h) statements, however, “do not meet the ‘work

product’ exception to disclosure under Rule 15.4(b)(1), . . . as they are not

‘theories, opinions and conclusions’ of the parties or their agents.” See State

v. Nunez, 23 Ariz. App. 462, 463 (1975) (citation omitted). “To rule otherwise

would make a premium out of [n]ot taking verbatim statements in order to

avoid the disclosure required by the rules.” Id.; see also Austin v. Alfred, 163

Ariz. 397, 403 (App. 1990) (stating that it “would be incongruous to allow a

party” to use the attorney-client privilege as a strategic tool to “deny access

of the opposing party to relevant information”).

¶87 Johnson cites Hickman v. Taylor, 329 U.S. 495, 508–14 (1947),

and Upjohn Co. v. United States, 449 U.S. 383, 399–401 (1981), to support his

argument, but neither compels a different result. In Hickman, the petitioner

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Opinion of the Court

sought the disclosure of witness statements, private memoranda, and

personal recollections. 329 U.S. at 510. The Court found the petitioner’s

request to be a simple attempt, “without purported necessity or

justification,” id., to gather evidence “revealed to him already through the

interrogatories or . . . readily available to him direct from the witnesses for

the asking,” id. at 509, “only to help prepare himself to examine witnesses

and to make sure that he ha[d] overlooked nothing,” id. at 513. The Court

stated that “[u]nder ordinary conditions, forcing an attorney to repeat or

write out all that witnesses have told him and to deliver the account to his

adversary gives rise to grave dangers of inaccuracy and untrustworthiness”

and that “[n]o legitimate purpose” would be served. Id. at 512–13.

¶88 But the Court did not preclude the production of statements

in all cases. Instead, it stated that “[w]here relevant and non-privileged

facts remain hidden in an attorney’s file and where production of those facts

is essential to the preparation of one’s case, discovery may properly be

had.” Id. at 511. Indeed, “[w]ere production of written statements and

documents to be precluded under such circumstances, the liberal ideals of

[discovery] would be stripped of much of their meaning.” Id. at 511–12.

¶89 In Upjohn, the Court reiterated that “[f]orcing an attorney to

disclose notes and memoranda of witnesses’ oral statements is particularly

disfavored because it tends to reveal the attorney’s mental processes.” 449

U.S. at 399; see also Baker v. Gen. Motors Corp., 209 F.3d 1051, 1054 (8th Cir.

2000) (reasoning that attorney notes reveal the attorney’s legal conclusions

because, when taking notes, attorneys focus on those facts they deem

legally relevant). But as in Hickman, the Upjohn Court explicitly stated that

it was not adopting a bright-line rule. 449 U.S. at 401 (“We do not decide

the issue at this time.”).

¶90 Here, the statements being sought were not protected by any

privilege, see Nunez, 23 Ariz. App. at 463, nor did the court allow

“unfettered scrutiny” of the notes, cf. State ex rel. Corbin v. Ybarra, 161 Ariz.

188, 192 (1989). Rather, it properly ordered production by in camera review

to allow Johnson to redact any “opinions, theories, or conclusions” that

defense notes included, and Johnson does not raise any dispute arising

from that process.

¶91 No abuse of discretion occurred. And although Johnson

challenges the court’s ruling on Fifth, Sixth, Eighth, and Fourteenth

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Amendment grounds, as well as on article 2, sections 4, 15, and 24 of the

Arizona Constitution, he provides no basis to conclude the trial was unfair

or that a due process or right to counsel violation occurred, fails to develop

this portion of his argument, and thus waives it. Bolton, 182 Ariz. at 298.

J. Motion to Withdraw from the 2010 Armed Robbery Plea

¶92 Johnson argues the court denied him the presumption of

innocence when it refused to allow him to withdraw from his guilty plea in

his unrelated armed robbery case. As the State correctly notes, however,

this Court is limited to the issues raised in this appeal. See Ariz. R. Crim. P.

31.2(b) (stating that the automatic appeal of a death penalty verdict operates

“with respect to all judgments entered and sentences imposed in that case”

(emphasis added)). This Court has no jurisdiction over the armed robbery

plea or the court’s denial of Johnson’s motion to withdraw his plea

agreement in that case.

K. Compelled Releases

¶93 Johnson argues the court erred by ordering him to sign

releases for certain records. We review the trial court’s discovery rulings

for an abuse of discretion, but note that when the court commits an error of

law in the process of reaching a discretionary conclusion, it may be

regarded as having abused its discretion. Twin City Fire Ins. Co. v. Burke,

204 Ariz. 251, 253–54 ¶ 10 (2003).

¶94 Both before and during the trial, the State requested records

from BYU-Idaho, Mesa Community College, and Johnson’s Colorado

presentence report. See A.R.S. § 13-752(G) (providing that “the state may

present any evidence that is relevant to the determination of whether there

is mitigation that is sufficiently substantial to call for leniency” and may

present “any evidence regarding the defendant’s character, propensities,

criminal record or other acts”). After the State encountered difficulty

obtaining the records, the court ordered Johnson to sign releases so the State

could obtain them. Johnson does not challenge the disclosure of the

records, but instead only being compelled to sign the releases.

¶95 Johnson argues the compelled release order was improper,

citing Sherlock v. Fontainebleau, 229 F.Supp.3d 1277, 1282–83 (S.D. Fla. 2017)

(holding that, under the Health Insurance Portability and Accountability

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Act of 1996 (“HIPAA”), a party must comply with the disclosure

procedures of HIPAA and the court may not compel a party to sign release

authorizations). Johnson further argues that a compelled release is not

voluntary and that the court’s orders cast doubt upon the fairness of the

proceedings.

¶96 But in Sherlock, the court recognized the “absence of

controlling authority” and that courts were split regarding whether the

compelled signing of releases was permissible. See id. at 1281–82. And its

holding was dependent upon, and limited to, Federal Rule of Civil

Procedure 34 and the disclosure procedures of HIPAA. See id. at 1282–83

(stating that “[u]nder the HIPAA regulations, a health care provider is

authorized to produce records in response to a subpoena,” which “should

be more than sufficient to cause a provider to turn over the responsive

medical records”).

¶97 Here, the court had the authority to order Johnson to make

records available to the State. See Ariz. R. Crim. P. 15.2(g)(1) (granting the

court the authority to order, upon the state’s motion, the disclosure of

material or information not already included if the state has substantial

need for it, the “State cannot obtain the substantial equivalent by other

means without undue hardship,” and the disclosure would not violate the

defendant’s constitutional rights). The State sought relevant records, to

which it was entitled, but as it related to BYU-Idaho, claimed its only access

to such records was by an Idaho court order or signed authorization; BYU-

Idaho would not recognize an Arizona court order. As for Mesa

Community College, the State argued that Mesa Community College waits

ten days for an opposing side to respond to a court order and that the

college failed to respond to the last court order because it did not believe

the order was served properly. Similarly, the State informed the court that

Colorado required a court order or signed release.

¶98 Given the State’s right to the records and the difficulty in

otherwise obtaining the records, we find no error.

L. Voir Dire

¶99 Johnson argues the court prevented him from choosing a

constitutionally adequate jury by limiting his ability to question jurors on

whether they would be willing to consider mitigation evidence. We review

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rulings on voir dire and motions to strike for an abuse of discretion. Glassel,

211 Ariz. at 45 ¶ 36.

¶100 Before trial, the State filed a motion to prohibit Johnson from

asking potential jurors their views on specific types of mitigating

circumstances. In opposition, Johnson argued the court should allow “case

specific” questions regarding whether jurors could impartially vote for life

or death in light of certain mitigating circumstances. The court forbade

questions “that groom or condition prospective jurors regarding evidence

that may be presented at trial,” but stated that it might allow appropriate

case-specific questions.

¶101 After voir dire, Johnson filed a motion declining to pass the

jury panel, arguing that he had inadequate “time and opportunity” to “vet”

the jury panel pursuant to Morgan v. Illinois, 504 U.S. 719 (1992). Johnson

further argued that he should have been allowed to ask the jurors whether,

given the facts of the case as set out in the defendant’s proposed juror

questionnaire, they would render a verdict of death. The court denied

Johnson’s motion, finding “its rulings have all been within the [sic] its

discretion and consistent with Arizona Supreme Court precedent.” We

agree.

¶102 A defendant is entitled to a fair and impartial jury. Velazquez,

216 Ariz. at 306 ¶ 18. As such, due process requires that trial courts permit

a defendant to inquire whether prospective jurors would always impose

the death penalty. Morgan, 504 U.S. at 729–33. However, this principle does

not permit the defendant to “ask a juror to speculate or precommit on how

that juror might vote based on any particular facts,” Smith, 215 Ariz. at 231

¶ 42 (internal quotation marks omitted), nor does it allow the defendant to

ask questions regarding specific aggravating circumstances or “what types

of evidence the [jury] will consider to be mitigating,” State v. Patterson, 230

Ariz. 270, 273 ¶ 8 (2012) (quoting Glassel, 211 Ariz. at 47 ¶ 44).

¶103 Here, Johnson sought to ask whether, based on the facts of the

case, potential jurors would render a death verdict. He further sought to

ask, “[w]hat would ‘mitigation’ mean to you?” He thus tried to ask the

case-specific questions our case law generally prohibits.

¶104 Insofar as Johnson argues he should have been allowed to ask

permissible case-specific questions, he ignores that the court granted him

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the opportunity to ask such questions when appropriate. See State v. Garcia,

224 Ariz. 1, 8–9 ¶¶ 14–16 (2010) (allowing case-specific questions in order

to “properly probe[] beyond abstract juror views on capital punishment”

so long as they “merely asked [whether] jurors . . . could consider the death

penalty in circumstances in which it is permitted under Arizona law”). In

addition to multiple juror questionnaire questions about predispositions on

capital punishment, see Glassel, 211 Ariz. at 46 ¶ 38, Johnson asked jurors

“whether [they] could imagine a situation where the totality of a

defendant’s character, including things he’s endured or accomplished,

could warrant mercy, despite his crimes.”

¶105 Separately, Johnson argues that voir dire was inadequate

because the court limited the parties to roughly four-and-a-half minutes per

juror. Johnson’s claim is meritless. First, the jurors completed a 100-

question juror questionnaire to help the parties narrow their follow-up

questions. Second, the court stated that it was “willing to work with [the

parties] if somebody says something that needs more follow-up than

anticipated,” and would allow “reasonable continuances where

appropriate.” The court showed overall flexibility by granting additional

time when needed. See State v. Acuna Valenzuela, 245 Ariz. 197, 208 ¶ 19

(2018). No abuse of discretion occurred. See State v. Escalante-Orozco, 241

Ariz. 254, 271 ¶¶ 33–34 (2017) (affirming five-minute-per-juror time limit),

abrogated on other grounds by Escalante, 245 Ariz. 135.

M. Motions to Strike Jurors for Cause

¶106 Johnson argues he was precluded from using peremptory

strikes on prospective jurors 56, 154, and 294 because he was forced to use

them on prospective jurors 9, 31, and 59, whom the court refused to strike

for cause. We review the trial court’s denial of a motion to strike a juror for

an abuse of discretion, giving deference to the trial court, which was in the

best position to observe the potential jurors. Patterson, 230 Ariz. at 274 ¶ 14.

i. Non-strike of prospective jurors 9, 31, and 59

¶107 During voir dire, Johnson posed the following question to

prospective juror 9:

[L]et’s say you’re sitting as a juror on a case, and that it’s a

first-degree murder case, intentional premeditated murder;

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that you and 11 other members of that jury found the

defendant, beyond a reasonable doubt, guilty of intentional

premeditated killing of an innocent victim; that you and the

11 other jurors considered any defenses that might have been

offered, whether it was self-defense, defense of others, heat of

passion. For you, in that case, would the death penalty be the

only reasonable penalty that you would consider?

Johnson asked similar questions to prospective jurors 31 and 59.

¶108 The State objected, arguing that “[w]hile [Johnson] can

ascertain whether going into a penalty phase . . . a juror may be leaning one

way or the other, that hypothetical is improper because it does not fully tell

the juror—and they can’t bait the juror into yes or no, without telling them

they have to consider mitigation.” The court agreed, finding the question

misleading. Nevertheless, the court allowed Johnson to ask the question as

a three-part question, with follow-up questions whether the juror could

apply the law as it pertained to finding an aggravating circumstance and

considering mitigation. Prospective jurors 9 and 31 answered “no,” that

they could not imagine a situation where the totality of someone’s character

could warrant mercy in such a scenario, while prospective juror 59

answered that she would lean towards the death penalty. Johnson then

moved to strike the three prospective jurors for cause. The court denied

Johnson’s motion, finding that the hypothetical posed was confusing and

misleading, and stated that the core question was whether the jurors could

be impartial at the beginning of the penalty phase, which the court believed

they could be.

¶109 “A juror who will automatically vote for the death penalty

without considering the presence of mitigating circumstances does not

meet th[e] threshold requirement of impartiality.” Velazquez, 216 Ariz. at

306–07 ¶ 18 (internal quotation marks omitted). But a prospective juror is

not precluded from serving on the jury simply because he favors the death

penalty. Id. at 307 ¶ 19. “[I]f the juror is willing to put aside his opinions

and base his decisions solely upon the evidence, he may serve.” Id. (citation

and internal quotation marks omitted).

¶110 Here, prospective jurors 9, 31, and 59 all stated they would

keep an open mind during the trial, could consider mitigation evidence,

and would not automatically vote for the death penalty. See Wainwright v.

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Witt, 469 U.S. 412, 423 (1985) (requiring jurors to “conscientiously apply the

law and find the facts”). Further, prospective juror 31 answered that she

could responsibly and respectfully make a decision based on the facts of the

case, but only after she heard the case details and was provided evidence.

And prospective juror 59 added that even in the face of absolute guilt, she

would find sentencing the defendant to death to be difficult.

¶111 Though prospective jurors 9 and 31 answered that they could

not imagine a situation where the totality of the defendant’s character could

warrant mercy, they did so only after a misleading hypothetical that

presupposed guilt and an aggravating circumstance, omitted mitigation,

and risked implying that a death sentence was required. Indeed,

prospective juror 59 answered that she would lean towards the death

penalty but qualified that her answer was based on Johnson’s hypothetical.

The court was in the best position to observe the prospective jurors and

determine whether they were impaired. See Patterson, 230 Ariz. at 274 ¶ 14.

And the record does not indicate that prospective jurors 9, 31, or 59 were

substantially impaired or unable to perform their duties as jurors in

accordance with the instructions and oath such that denying Johnson’s

motion to strike was an abuse of discretion.

ii. Failure to strike prospective jurors 56, 154, and 294

¶112 Johnson next claims the court erred by refusing to strike

prospective jurors 56, 154, and 294 for cause. Johnson did not move to strike

prospective jurors 56 or 154, however, so we review Johnson’s challenge as

to them for fundamental error. See Velazquez, 216 Ariz. at 309 ¶ 37.

¶113 Section 21-211(2) and (4), A.R.S., provides that any person

who is “interested directly or indirectly in [a] matter” is disqualified from

sitting on a jury in that case, as are those who are “biased or prejudiced in

favor of or against either of the parties.” Further, Arizona Rule of Criminal

Procedure 18.4(b) provides that “[o]n motion or on its own, the court must

excuse a prospective juror or jurors from service in the case if there is a

reasonable ground to believe that the juror or jurors cannot render a fair

and impartial verdict.” See also State v. Moore, 222 Ariz. 1, 10 ¶ 38 (2009)

(stating a judge must remove a potential juror if that person’s “views may

‘prevent or substantially impair the performance of [the juror’s] duties’”

(alteration in original) (quoting Witt, 469 U.S. at 424)). However, a

“prospective juror need not be disqualified unless his opinion is

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unqualified” or “fixed.” State v. Narten, 99 Ariz. 116, 122 (1965). And “a

juror’s assurances of impartiality need not be couched in absolute terms.”

State v. Hoskins, 199 Ariz. 127, 139 ¶ 37 (2000). “If a juror is willing to put

aside his opinions and base his decision solely upon the evidence, he may

serve.” State v. Martinez, 196 Ariz. 451, 459 ¶ 28 (2000) (citation omitted).

a. Prospective juror 56 (impaneled juror 1)

¶114 Johnson claims prospective juror 56 (hereinafter impaneled

juror 1) was predisposed in favor of the State and believed the State had

“godly authority.” But a review of juror 1’s responses does not indicate

bias. In his questionnaire, juror 1 stated he believed Arizona’s criminal laws

were generally appropriate and that he “believe[d] that the government has

the authority from God to uphold the law and to keep citizens safe.” When

asked whether he would accept the responsibility of serving on a death

sentence jury, juror 1 answered that God gave the authority to the State and

it was juror 1’s faith in God that allowed him to accept the responsibility.

¶115 None of his answers indicated that he believed God favored

the State or imposition of the death penalty. Rather, each of his answers

provided why he felt the death penalty could be imposed, as he wrote, “if

necessary.” Indeed, juror 1 stated that he neither opposed nor favored the

death penalty, was willing to follow the law as instructed, that “it would be

hard to have someone’s life in [his] hands, but [he] could be impartial,” he

would keep an open mind, and that he would not automatically vote for

the death penalty without considering the evidence.

b. Prospective juror 154 (impaneled juror 8)

¶116 Johnson claims prospective juror 154 (hereinafter impaneled

juror 8) had a strong, pro-law enforcement bias and was more likely to

believe police officers. In his questionnaire, juror 8 disclosed that he had a

friend in the Phoenix Police Department and answered that he had

favorable experiences with law enforcement because he “work[ed] with law

enforcement at [his] church.” However, juror 8 answered that he would

follow Arizona law requiring him to give no greater or lesser weight to a

law enforcement officer’s testimony, stated he would keep an open mind,

and would follow the law as instructed.

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¶117 During follow-up questioning, Johnson asked whether juror

8 would lean towards believing law enforcement based on his relationships.

Juror 8 responded, “You know, I’ll be honest. I want to say no that I

wouldn’t, but I would do my best not to.” When asked again whether his

close relationship with law enforcement would prevent him from

impartially judging the credibility of law enforcement officers, juror 8

answered “no.” Only when Johnson pushed further, asking “in [juror 8’s]

heart of hearts” whether it was not a “no” but a “maybe,” did juror 8 state

that though he would do his best to check his prejudices, he would be lying

if he said it was a definite no, and that his close friendship with a “good”

officer might cause him to give other officers the benefit of the doubt.

¶118 But juror 8 also stated that he would do his best to check any

prejudice or bias, and repeatedly answered that he would follow the

instructions and law. Subsequently, juror 8 stated that he would not believe

every word an officer said just because of his or her title but instead would

look at what was being said and determine on his own whether it made

sense to him. Taken as a whole, juror 8’s answers do not evidence a pro-

law enforcement bias or inability on his part to be impartial. See State v.

Clabourne, 142 Ariz. 335, 344 (1984) (finding no bias, and thus no error,

where, though a juror had acquaintances with members of law

enforcement, all jurors stated they would view the evidence fairly).

c. Prospective juror 294 (impaneled juror 12)

¶119 Johnson argues that prospective juror 294 (hereinafter

impaneled juror 12) was biased because she voiced strong feelings

regarding victims’ rights and had a friend who suffered domestic violence.

On her questionnaire, juror 12 revealed that a good friend had been the

victim of domestic violence and that her view of the criminal justice system

was negatively affected because restraining orders did not seem to work.

However, in the very next question, she answered that those views would

not impact her ability to be fair and impartial in the case. And as with jurors

1 and 8, juror 12 responded that she would keep an open mind during each

phase of the trial.

¶120 During follow-up, Johnson asked juror 12 to clarify her

questionnaire statement that she was “a strong believer in victim’s rights.”

Juror 12 said that while she regularly heard about the rights of the accused,

she rarely hears about the possible horror the victim might have gone

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through and would be interested in hearing that. When asked whether

hearing victim impact testimony would sway her, juror 12 answered that

she did not know how it would affect her but stated she “would try very

hard to be open minded, and strong and impartial.” Upon further

questioning by the court, juror 12 answered that she could set aside any

feelings and be fair and impartial.

¶121 Jurors 1, 8, and 12 all answered that they could be fair and

impartial, and none of their colloquies indicate otherwise. The court did

not abuse its discretion in failing to strike them for cause. See State v. Tison,

129 Ariz. 526, 533 (1981) (“Without a showing of unqualified partiality of

the juror, we will not upset a determination so clearly within the province

of the [trial] court.”).

N. Motion to Strike Juror 6

¶122 Johnson argues the court erred by denying his motion to

strike impaneled juror 6 for cause. Again, we review the court’s denial for

an abuse of discretion. See Lynch I, 238 Ariz. at 105 ¶ 71.

¶123 During the trial, Johnson moved to disqualify juror 6 because

the juror’s daughter had been the victim in an unrelated case arising in

February 2016, and Johnson argued this would bias juror 6 in favor of the

prosecution. Juror 6 said she had only learned of the incident involving her

daughter months after completing the juror questionnaire.

¶124 Rule 18.4(b) requires dismissal of “jurors who cannot render

a fair and impartial verdict,” Eddington, 228 Ariz. at 363 ¶ 7, while § 21-

211(2), (3), and (4) bar jurors who are interested in the matter or “biased or

prejudiced in favor of or against either of the parties.” Johnson argues that

juror 6’s daughter becoming a victim in another case biased juror 6 in favor

of the State. We disagree.

¶125 In Eddington, we held that “a peace officer currently employed

by the law enforcement agency that investigated the case [was] an

‘interested person’ who [was] disqualified from sitting as a juror,”

regardless whether he believed he could be impartial. 228 Ariz. at 365 ¶ 18.

There, the officer was an “interested person” due to his working

relationship with his law enforcement employer, and by extension, the

prosecution. Here, no such relationship exists.

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¶126 Even though a juror may have an experience with law

enforcement or a victim of a crime, such experience alone is not

disqualifying. See, e.g., Hoskins, 199 Ariz. at 139 ¶ 40, 141 ¶ 48 (affirming

refusal to disqualify juror who had once been the victim of an armed

robbery). Upon further questioning, juror 6 answered that she would be

fair and impartial, that her daughter’s incident had nothing to do with

Johnson’s case, and that she was “100 percent here.” The court found her

answers appropriate, candid, and credible, leaving the court confident that

she could serve. The law requires nothing more. See id. at 141 ¶ 48. No

abuse of discretion occurred.

O. Arizona Rule of Evidence 106

¶127 Johnson argues the court erred during trial by limiting

questioning and giving Arizona Rule of Evidence 106 preclusive effect. We

review the trial court’s evidentiary rulings for an abuse of discretion but

review de novo the court’s interpretation of the Arizona Rules of Evidence.

State v. Steinle, 239 Ariz. 415, 417 ¶ 6 (2016).

¶128 Rule 106, the rule of completeness, provides that “[i]f a party

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

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

writing or recorded statement—that in fairness ought to be considered at

the same time.” It is thus “a rule of inclusion rather than exclusion.” Steinle,

239 Ariz. at 418 ¶ 10. Johnson argues that the court incorrectly relied on

Rule 106 to limit Johnson’s cross-examination of Ms. Legg—the DNA

technician—as well as his examination of mitigation witness Jonathan W.

¶129 First, the State objected to Johnson’s cross-examination of Ms.

Legg. Johnson sought to impeach Ms. Legg by introducing evidence of lab

errors. Although the court at one point stated the objection was on Rule 106

grounds, the State’s objections focused on lack of foundation and relevance:

Johnson failed to cite which records he was relying on and attempted to

impeach Ms. Legg by introducing evidence of lab errors in unrelated cases.

Regardless, the court allowed Johnson to cross-examine Ms. Legg on each

of his proffered grounds, so no exclusion of evidence occurred. There was

no error.

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¶130 Second, the State objected, citing Rule 106, to Johnson’s

introduction of an incomplete statement that Johnson’s DNA could neither

be included nor excluded from the zip ties found binding the victim.

During cross-examination of Ms. Legg, Johnson asked whether she had

emailed Detective Denning telling him that Johnson was not a match. The

State objected and argued that Ms. Legg’s full statement was that “[i]t [was]

not possible to include or exclude . . . Johnson.” The trial court correctly

sustained the State’s objection. And though Johnson claims error, he

received the answer he wanted: that the test was inconclusive, and that

Johnson could not definitively be considered a “match.”

¶131 Third, the State objected during Johnson’s examination of

family friend Jonathan W. Johnson asked Jonathan whether he thought

Johnson “was the type of person that is open to growth and change,” based

on a letter Jonathan had written on Johnson’s behalf. The State objected,

citing Rule 106, argued that Johnson was picking and choosing words from

the letter, and asked that it be allowed to re-cross Jonathan if the court

allowed Johnson to continue. The court sustained the State’s objection.

Rule 106 arguably applied, but the court allowed Johnson to continue

asking Jonathan about his opinion, so even if its decision was wrong, no

harm resulted.

¶132 Johnson argues the court improperly gave Rule 106

exclusionary effect, in that he believes the court precluded him from

introducing evidence on Rule 106 grounds. Johnson’s argument borders on

the frivolous: in each instance, the court allowed Johnson to introduce the

evidence he sought. No error occurred.

P. Prosecutorial Misconduct

¶133 Johnson argues his conviction was tainted by prosecutorial

misconduct. We review claims of prosecutorial misconduct by assessing

each claim independently. Acuna Valenzuela, 245 Ariz. at 216 ¶ 66. If

Johnson objected, we review the purported misconduct for harmless error;

if he failed to object, we review for fundamental error only. Id. “After

determining which claims constitute error,” we consider whether their

cumulative effect resulted in an unfair trial. Id. (quoting State v. Hulsey, 243

Ariz. 367, 388 ¶ 88 (2018)). “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

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conviction a denial of due process.” Id. (quoting State v. Martinez, 230 Ariz.

208, 214 ¶ 24 (2012)).

i. DNA evidence

¶134 During the trial, the State produced evidence that officers

found fourteen zip ties left behind at Taiwan Massage in addition to the

pair of zip ties found binding the victim. Ms. Legg testified that Johnson’s

DNA matched DNA left on the fourteen zip ties in at least ten of sixteen

allele locations and that his DNA was found at the other allele locations but

at insufficient levels to contribute to a result. Ms. Legg testified that the

random match probability of the result was one in 600 trillion Caucasians,

one in 3.40 quadrillion Southwestern Hispanics, and one in 145 quadrillion

African-Americans. While Korean statistics were not used, Ms. Legg

testified that the random match probability was generated based on the

expected population in a given area—here, Mesa, Arizona—so the

inclusion of any Asian statistics would have likely only increased the rarity

of a match. As to the zip ties found binding the victim, Ms. Legg testified

that Johnson’s DNA profile was present at between four and five allele

locations, so his DNA could be included, but that there was not enough

DNA present at enough allele locations to establish Johnson as a “match.”

¶135 During closing, the State argued that Johnson’s DNA was on

the zip ties found binding the victim, stating this his “DNA remains [at] up

to five locations” and that his “DNA is there.” During rebuttal closing, the

State further argued, in response to Johnson’s defense that his DNA was

not on the zip ties, that “[h]is DNA is on those zip ties . . . . He’s there

between four and five loci. He’s just not there enough to call and he’s there

on the zip ties, not just at 10 locations.” Johnson objected that the

prosecutor’s closing misstated the evidence but was overruled.

¶136 Johnson argues the State’s closing argument was improper

because it misstated the strength of the DNA evidence, citing Duncan v.

Commonwealth, 322 S.W.3d 81, 91–92 (Ky. 2010). But in Duncan, the court

only concluded the state’s argument—that “not excluded” meant

“included” and that the defendant’s DNA was a “match”—was improper

because there was no scientifically valid estimate of the probability that

alleles would match. Id. Thus, by asking the jury to infer on the basis of the

expert’s testimony that the defendant was the source of the DNA, “the

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prosecutor sought to wring from that testimony a conclusion it could not

reasonably yield.” Id. at 92.

¶137 Here, Johnson’s argument borders on frivolous. The evidence

showed that Johnson “matched” the DNA found on the fourteen zip ties

left at Taiwan Massage and that Johnson’s DNA profile was consistent with

the zip ties found on the victim at between four and five allele locations.

The State did not use the word “match” to link Johnson’s DNA to the ties

found binding Fu, and its comment that Johnson’s DNA “is there” was

nothing more than a reasonable argument based on the evidence. Further,

because the State itself emphasized during closing that Ms. Legg wrote in

an email to Detective Denning that Johnson could neither be included nor

excluded, the jury knew the State was arguing a reasonable inference and

not mispresenting a determined fact. Contrast id. at 91–92. There was no

misconduct.

ii. Withholding evidence

¶138 Johnson argues the State violated its Rule 15 disclosure

obligations, in violation of Brady v. Maryland, 373 U.S. 83 (1963), based on

the State’s 2012 failure to timely disclose supplemental police reports and a

letter purportedly written by Johnson.

¶139 Under Brady, the State must disclose all material, exculpatory

evidence. 373 U.S. at 87. But though the State’s failure to timely disclose

the police reports and letter constituted a late disclosure violation, the late

disclosure did not result in the suppression of favorable evidence, and thus

no Brady violation occurred. See United States v. Walters, 351 F.3d 159, 169

(5th Cir. 2003) (finding no Brady violation where the defendant received

evidence four weeks before trial and “had almost a month after the

government disclosed” it to investigate the material and “put it to effective

use at trial” (internal quotation marks omitted)). The disclosure dispute

occurred nearly four years before trial and Johnson admitted that no

prejudice resulted.

iii. Comment on Columbine evidence and Johnson’s allocution

¶140 Johnson argues the State misled the jury into believing that

the lack of evidence regarding Columbine and Johnson’s allocution proved

Johnson was neither affected by Columbine nor sorry for his actions, where

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STATE V. JOHNSON

Opinion of the Court

the State had successfully precluded such evidence before trial. Johnson

further argues the State improperly commented on the invocation of his

right to remain silent. Johnson did not object at trial.

¶141 At the close of mitigation, Johnson presented his allocution,

stating:

I’m very sorry for killing Ms. Fu. It was senseless and

horrible. You have heard the mitigating factors of my life that

my attorneys feel is relevant in bringing me to this point in

my life. I would have pled guilty to this first-degree murder

as early as March of 2012.

¶142 The State responded, relying on evidence adduced at trial,

and argued that “[Johnson] didn’t touch on the tremendous harm and

suffering and pain. . . . He didn’t care at the time he murdered [the victim]

after dragging her into the back room, whether she was a mother or that he

would absolutely destroy a family. He certainly never told you

that. . . . Instead, when he talks about this crime, he asks about a book

deal. . . . [H]e laughed when he was talking to Dr. DeMarte, both about the

murder and the armed robbery. . . . How much sympathy did the

defendant show any of his victims at any time[?]” The State further argued

that Johnson “didn’t address a single factor in his life” but “told [the jury]

that the mitigation [it was] presented . . . [is] what his attorneys believe [is]

what brought the defendant to that point in his life,” and that, as it related

to Columbine, “[n]ever once, ever, other than the mention of [his friend]

Steven, did [the jury] ever hear any statement made by the defendant . . .

about feeling bad for the murdered classmates, or teachers or the

wounded.”

¶143 Johnson argues that it is improper for the State to take unfair

advantage of the court’s evidentiary rulings, citing People v. Daggett, 225

Cal. App. 3d 751, 758 (1990). Daggett is inapposite. There the trial court

erroneously precluded relevant information—that the child molestation

victim, who was himself accused in an unrelated case of molesting other

children, had been molested by other children in the past—and this error

was compounded by the prosecutor’s argument during closing that the

victim had learned the inappropriate behavior from being molested by the

defendant. Id. at 754–57.

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Opinion of the Court

¶144 Here, the prerequisite error is missing. The court correctly

precluded irrelevant Columbine evidence. See supra ¶¶ 68–69, 81. And as

to his allocution, neither the court nor the State prevented Johnson from

allocuting; the State argued that it had the right to rebut Johnson’s

allocution should he claim remorse. See State v. Goudeau, 239 Ariz. 421, 468

¶¶ 207–09 (2016).

¶145 As to his claim that the State improperly commented on the

invocation of his right to remain silent, the State’s comments came in

response to his allocution, see id. (finding no improper comment on the

defendant’s Fifth Amendment right where the prosecutor’s comments

came in response to the defendant’s allocution), and were based on

evidence in the record, see State v. Anderson, 210 Ariz. 327, 350 ¶ 97 (2005)

(allowing the prosecutor to comment that evidence was “not particularly

relevant” or “entitled to little weight”). The State’s Columbine comments

followed its argument that although Johnson presented a large portion of

evidence regarding the Columbine shooting, no mitigation witness could

testify that Johnson expressed remorse for the Columbine victims. Instead,

the State argued, the evidence showed that Johnson felt sympathy for the

shooters because they were bullied. No misconduct occurred.

iv. Misstating the law

¶146 Johnson argues the State misstated the law by arguing that

the jurors had to find one mitigating circumstance was alone sufficient to

warrant leniency, where mitigation is correctly considered in the aggregate.

Johnson bases his argument on a statement in the State’s closing:

What value, what import, what importance, what weight, if

any, do you give to a fact you believe was proven? Does it

reduce the defendant’s moral culpability, his

blameworthiness for the murder? And, finally, is it

sufficiently substantial—is it proven and sufficiently

substantial to call for leniency?

¶147 But the entirety of the State’s closing argument shows no

misconduct occurred. The State correctly reiterated that the jurors “must

decide how compelling or persuasive the totality of the mitigating factors

are against the totality of the aggravating factors.” The State’s comment

was only an argument that, as to each of Johnson’s ten proffered mitigating

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Opinion of the Court

circumstances, the jurors should evaluate each one to determine whether it

was proven by a preponderance of the evidence and whether it truly related

to an aspect of Johnson’s background, character, propensities, record or

circumstance of the offense. The State never argued that the jurors were

limited to considering one mitigating factor to the exclusion of others or

that Johnson had to prove that any single mitigating factor was sufficiently

substantial on its own to warrant leniency.

v. Shifting the burden of proof

¶148 Johnson argues the State shifted the burden of proof to

Johnson to submit evidence and prove his innocence. During the guilt

phase closing argument, the State argued in rebuttal:

The physical evidence in this case does not have a motive or

a reason to lie. And the plain and simple matter is that if what

the defense is arguing to you is true there would be evidence

to support those claims and there’s an overwhelming lack of

any evidence that anyone, other than the defendant,

committed these crimes. This was a thorough and complete

investigation regardless of the attacks you just heard.

Johnson did not object.

¶149 Due process requires the State to prove every element of a

charged crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364

(1970). The State improperly shifts the burden when it implies a duty upon

the defendant to prove his innocence or the negation of an element, see State

v. Corona, 188 Ariz. 85, 91 (App. 1997), and otherwise errs when it comments

upon the failure of a defendant to testify or present a defense, see State v.

Still, 119 Ariz. 549, 551 (1978). However, “[a] comment that certain facts

brought out by the prosecution are uncontradicted is not objectionable.”

Still, 119 Ariz. at 551.

¶150 The entirety of the State’s rebuttal closing argument was that,

while Johnson argued in closing that the State did not prove that he

committed the crime, “[Johnson] just did not count on the phone evidence,

the DNA evidence, and those cell phone towers we know now he drove by

going to the scene, while waiting at the scene, and running away, driving

away from the scene.” Further, the State did not argue unprompted that

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Opinion of the Court

Johnson failed to show someone else committed the murder. During his

closing, Johnson argued the investigation was inadequate and inferred that

someone else committed the crime even though he never noticed a third-

party defense. The State objected. Cf. State v. Acosta, 101 Ariz. 127, 129

(1966) (“The general context of the argument surrounding the statements

complained of was not to allude to defendant’s failure to testify, but rather

to bring home the point that the evidence was, at least in the view of counsel

for the state, uncontroverted, and justified a verdict of guilt.”). No

misconduct occurred.

vi. Impugning the integrity of defense counsel

¶151 Johnson argues the State repeatedly impugned the integrity

of defense counsel. Johnson fails to develop his argument, however, and so

we find it waived. Bolton, 182 Ariz. at 298. Regardless, we note that the

comments Johnson cites were either made in response to defense theories,

mischaracterized in Johnson’s briefing, or occurred outside the presence of

the jury. See Acuna Valenzuela, 245 Ariz. at 220 ¶ 93 (“[R]eferring to defense

evidence as ‘myth’ or ‘fanciful’ and attacking defense theories [is]

permissible, so long as it is directed at defense theories rather than defense

counsel.”) (internal quotation marks omitted)).

vii. Arguing inferences and conclusions during openings

¶152 Johnson argues the State improperly argued inferences and

conclusions during opening. “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 (citation omitted).

¶153 During the guilt phase opening, Johnson claims the State

improperly focused on the victim’s family’s use of an interpreter by stating

“their home language . . . is what is comfortable and safe . . . [a]s they listen

to these horrific details of the murder.” Johnson argues this opening

comment was paired with the State’s request during closing that the jury

remember “how [the family] appeared in front of [them] heartbroken and

the difficulties they encountered . . . trying to put into words in a language

with letters and symbols we don’t understand, with the use of an

interpreter[, t]he enormity of this loss, their grief, funneled through the

interpreter.”

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¶154 Johnson also argues the State impermissibly implied that the

crime included deliberation, a conclusion, during its opening by arguing

that Johnson took “the time effort and deliberation” to commit the murder.

Again, Johnson timely objected.

¶155 As to the first statements, the prosecutor’s comments were not

improper, but even if they were, any error was harmless. The jury was

repeatedly instructed that the lawyer’s arguments were not evidence and

the jurors were able to judge for themselves the manner in which the family

spoke and the murder’s effect on them. See State v. Newell, 212 Ariz. 389, 403

¶ 68 (2006) (stating “[w]e presume that . . . jurors follow[] the court’s

instructions”).

¶156 As to the second statement, the prosecutor’s comment was a

conclusion drawn from the facts and thus improper argument in opening

remarks. But again, the error was harmless. The jury was instructed that

the lawyer’s arguments were not evidence. Id. And “[w]hile[] the comment

during opening statement was improper at that point, it was a reasonable

inference from evidence later introduced and would have been proper

during closing argument.” Bible, 175 Ariz. at 602.

viii. Vouching

¶157 Johnson argues the State engaged in vouching. “Two general

forms of prosecutorial vouching exist: (1) when ‘the prosecutor places the

prestige of the government behind its witness’; or (2) when ‘the prosecutor

suggests that information not presented to the jury supports the witness’s

testimony.’” Acuna Valenzuela, 245 Ariz. at 217 ¶ 75 (quoting State v.

Vincent, 159 Ariz. 418, 423 (1989)). “Placing the prestige of the state behind

its witness ‘involves personal assurances of a witness’s veracity,’ while

‘[t]he second type of vouching involves prosecutorial remarks that bolster

a witness’s credibility by reference to matters outside the record.’” Acuna

Valenzuela, 245 Ariz. at 217 ¶ 75 (alteration in original) (quoting State v. King,

180 Ariz. 268, 277 (1994)).

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a. The prestige of the government

¶158 Johnson first argues that the State placed the weight of the

government behind the witnesses by arguing that the victim’s daughter

testified with “wisdom beyond her years” and that her husband “stood

before you and told you how his family suffered a profound loss” which

was “the measure of a man.” Johnson did not object.

¶159 But these statements, taken in the context of closing

argument, do not establish vouching. Neither statement placed the weight

of the government behind a witness by providing personal assurances of a

witness’s veracity, cf. Vincent, 159 Ariz. at 423 (where the prosecutor argued

that “the State wouldn’t have put Mr. Calaway on the witness stand if [it]

didn’t believe every word out of his mouth”), nor did the statements imply

that the jury should find them more credible because they were State

witnesses, see Acuna Valenzuela, 245 Ariz. at 217 ¶ 75 (stating that vouching

of this kind “involves personal assurances of a witness’s veracity” (quoting

King, 180 Ariz. at 277)).

¶160 Johnson also claims the prosecutor improperly vouched by

placing the weight of the government behind herself during arguments to

the court, by avowing that she “probably touched those pages more times

than the defense,” by arguing that she was “so detailed” and “so prepared”

for her interviews, and by stating her “office’s position” on certain issues—

“Judge, our office’s position is that the . . . State shouldn’t be in a position

to come up with it just because the State disagrees.” But reviewing the

record, we do not find that the State’s arguments to the court regarding its

position on a disputed matter constitute vouching. And further, we note

that each cited argument was made outside the presence of the jury. 3

b. Facts not in evidence

¶161 Johnson next argues the State vouched by implying that facts

not in evidence supported the State’s desired verdict. First, Johnson argues

3 Johnson argues, for the first time in his reply brief, that the State

improperly vouched by using “we know” statements. See Acuna Valenzuela,

245 Ariz. at 218 ¶ 85. Because Johnson did not raise the issue in his opening

brief, we do not consider it. State v. Cannon, 148 Ariz. 72, 79 (1985).

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Opinion of the Court

the State improperly vouched by implying that the judicial system already

dismissed Johnson’s claim of innocence:

You would have to believe this man is the unluckiest man on

the face of the planet if you’re to buy he was just merely

present. You would also have to think the last four weeks of

your life were an absolute waste because he just happened to

be there. It’s not a coincidence. It’s not dumb, bad luck.

Everything you’ve heard, everything the state has shown you

is evidence of the defendant’s guilt.

Johnson did not object.

¶162 The State’s comment was based on evidence in the record and

did not imply that facts not in evidence supported the State’s desired

verdict. Cf. State v. Leon, 190 Ariz. 159, 161–62 (1997) (where the prosecutor

argued that the jury was “not going to have the inside information as to

what occurred”). Neither was the State’s comment isolated nor

unprompted. Rather, the State’s comment came in response to Johnson’s

cross-examination that attempted to portray Johnson as an unlucky,

innocent bystander. To the extent the comment that “[y]ou would also have

to think the last four weeks of your life were an absolute waste because he

just happened to be there” was improper, any error was harmless, as the

jury was properly instructed that the law presumed Johnson to be innocent

and the jury “must not think that the defendant is guilty just because of a

charge.”

¶163 Johnson next claims the State improperly vouched by

referencing the victim’s family’s use of an interpreter, as discussed above.

See supra ¶¶ 153, 155. But just as the comments did not suggest the family

was more credible because the State believed them, neither did they bolster

the family’s credibility by reference to something other than the facts in the

record. No misconduct occurred.

ix. Appealing to fears and sympathy

¶164 Johnson claims the State improperly played to the jury’s fears

and sympathies. During its guilt phase closing argument, the State argued

the following:

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STATE V. JOHNSON

Opinion of the Court

These were the last injuries inflicted, completely, totally

without a doubt unnecessary. Completely. Completely.

Completely unnecessary. As she was dying, as her heart no

longer could beat, as her lungs could no longer fill with air,

he’s carving into her stomach.

....

If the defendant did nothing wrong or was just simply at the

wrong place at the wrong time, why the lies and why the

nature that little cutting mocking humor, but then again this

is the same man who within an hour of leaving [Fu] tucked

away in that back room could eat dinner with [his girlfriend]

and spend part of the evening with his parents.

....

The killer is the defendant and he killed with premeditation.

He killed with deliberation. He killed after thinking about it

and he killed after he could have stopped and he killed

because he wanted to and then he carved into her body

because he wanted to.

Johnson did not object.

¶165 “Attorneys, including prosecutors in criminal cases, are given

wide latitude in their closing arguments to the jury.” State v. Comer, 165

Ariz. 413, 426 (1990). Within that wide latitude, the State “may comment

on the vicious and inhuman nature of the defendant’s acts.” Id. The State

may not, however, make arguments which appeal to the passions, fears, or

prejudices of the jury. Id. at 426–27.

¶166 The arguments here were not an appeal to fear, as the State

made no argument that, in the absence of a guilty verdict, Johnson would

pose a future danger. Instead, the arguments were directed at how terrible

the murder was. To the extent the argument should have been reserved for

the aggravation phase of the trial and went to the (F)(6) aggravator, any

impropriety in the guilt phase closing was harmless. The comments did

not have the effect of encouraging the jury to convict on a basis other than

the evidence and the elements of the offense. Further, as in Escalante-

Orozco, the comments were fleeting and unconnected, and the jury was

instructed that the lawyer’s comments were not evidence and that they

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STATE V. JOHNSON

Opinion of the Court

were “not [to] be influenced by sympathy.” 241 Ariz. at 282 ¶ 102

(alteration in original). The comments were “not of such magnitude to

deprive [Johnson] of a fair trial” during either the guilt phase or the

aggravation phase. Id. (citation omitted).

x. Encouraging the jury to use the verdict to send a message

¶167 Johnson argues the State improperly encouraged the jury to

use its verdict to send a message. During her penalty phase closing

argument, the prosecutor argued:

Someone much smarter than I am gave a quote that a society

declares its attitude toward crime by the punishment it exacts.

We express how we feel about crime by the punishment we

impose.

Another simple, less artful way to say this is that the

punishment should fit the crime. And should reflect the

horror, the disgust, that all of you must have felt as these days

in trial unfolded and you saw the full extent of what this man

has been capable—capable of in his life.

¶168 The prosecutor further argued later in closing that:

The death penalty is such an expression of moral outrage for

crimes that some people choose to commit. Our society has a

death penalty because we have a right to express our moral

outrage for such behavior, and because you have a right to

demand where does personal responsibility fit in? Because

the exaggerations, the blame, and the excuses, and the lies are

all going to stop now.

Johnson did not object to either comment.

¶169 But the State did not ask the jury to send a message to the

community. Cf. United States v. Runyon, 707 F.3d 475, 514–15 (4th Cir. 2013)

(“Whereas reminding the jury that it ‘express[es] the conscience of the

community’ nevertheless maintains a proper focus on the defendant (since

any ‘expression’ is directed at the defendant alone), urging it to ‘send a

message to the community’ invites it to play to an audience beyond the

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STATE V. JOHNSON

Opinion of the Court

defendant” and “to use its decision . . . to serve some larger social objective,”

which “is at least in tension with the individualized assessment of the

defendant’s culpability that the Constitution requires.”) (alteration in

original; Sinisterra v. United States, 600 F.3d 900, 910–11 (8th Cir. 2010)

(finding error where the prosecutor linked the defendant’s charges to the

broader drug problem, told the jury to act as the “conscience of the

community,” and asked the jury to send a message with its verdict)). The

State focused its argument on Johnson and argued that “the punishment

should . . . fit the defendant, the criminal, in addition to fitting the crime.”

xi. Improperly seeking to inflame the jury

¶170 Johnson argues the State committed misconduct by

attempting to inflame the jury, by arguing the murder was “grotesque,”

“brutal,” “bizarre,” “horrific,” and “violent,” and by using the following

adjectives to describe Johnson’s actions: “severely,” “terribly,” “vicious,”

and “ceremoniously.”

¶171 Johnson claims that during its mitigation phase opening

statements, the State further attempted to inflame and taint the jury by

arguing that Johnson’s mitigation witnesses had “bias,” “motive,” and

maybe even “an agenda.”

¶172 Finally, Johnson claims the State, during its closing argument,

improperly tarnished the defense and its witnesses by telling the jury:

The problem with all of the evidence [Johnson] wants and

needs you to believe is that a lot of it is simply just not true,

was just not proven, or is exaggerated, or is presented in such

a way to make you feel responsible that the defendant is now

found guilty of first-degree murder with circumstances, those

three [aggravators] that you found, that made the defendant

eligible for the death penalty.

The bottom line is that the mitigation presented is not

sufficiently substantial to justify leniency in this case.

Johnson never objected.

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Opinion of the Court

¶173 The State certainly used strong language during opening

statements to describe the murder, but the evidence would later indicate

that the murder was violent and brutal. See State v. Phillips, 202 Ariz. 427,

437 ¶ 47 (2002) (finding no impropriety in the prosecutor’s opening

statement that defendant’s actions were “terrorizing,” that he appeared

“outraged, beyond control, and absolutely terrifying,” and that the victims

were “cowering, hiding, and praying to God Almighty” because those

remarks were based on the evidence), superseded by statute on other grounds

as recognized in State v. Carlson, 237 Ariz. 381 (2015).

¶174 The State’s warning of “bias” and “motive” addressed the

credibility of Johnson’s witnesses and responded to Johnson’s attempt to

bolster his mitigation witnesses’ credibility. During Johnson’s opening, he

stated:

Ladies and gentlemen, you’re going to hear from [Johnson’s]

friends, family, former classmates. We all know they’re going

to be put in an uncomfortable seat as witnesses . . . . They’re

not professional witnesses . . . .

....

They’re certainly not going to be as polished as some of those

other witnesses that you heard . . . .

....

They’re going to be subject to cross-examination, too. And

like all witnesses, you have to consider their credibility; but

again, consider their situation. They’re here because they love

[Johnson]. . . . Decide their credibility, but these folks are

coming from a good place to come and testify for [Johnson],

and they didn’t do anything wrong.

The State’s comments were not improper.

¶175 Nor were the State’s final comments, supra ¶ 172, an attempt

to appeal to the jurors’ emotions by telling them the defense was trying to

make them feel guilty about their decisions. Even if the comments could be

read to represent an attack on the defense, see Hulsey, 243 Ariz. at 390 ¶¶ 98–

99, they were minor and couched in the State’s argument that the jury was

to impose the death penalty if it did not find mitigation sufficiently

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Opinion of the Court

substantial to call for leniency. On this record, we cannot say that any of

these statements affected the jury’s verdict or deprived Johnson of a fair

trial, especially in light of the jury instructions that counsel’s arguments

were not evidence.

xii. Cumulative effect

¶176 Johnson argues the State repeatedly used improper

arguments to obtain a conviction and death sentence and that the

cumulative impact of its misconduct deprived him of due process. See

Acuna Valenzuela, 245 Ariz. at 223 ¶ 118. But “[c]umulative error requires

reversal only when misconduct is ‘so pronounced and persistent that it

permeate[s] the entire atmosphere of the trial, indicating that the prosecutor

intentionally engaged in improper conduct and did so with indifference, if

not a specific intent, to prejudice the defendant.’” Id. at 224 ¶ 119 (quoting

State v. Payne, 233 Ariz. 484, 515 ¶ 134 (2013)).

¶177 Here, the record does not support Johnson’s claim. Johnson

rarely objected and ignores that several of the purported improper

comments occurred outside the presence of the jury during argument to the

court. Indeed, the record reveals only a few minor instances of misconduct

relating to improper inferences during opening statements. Accordingly,

Johnson has failed to show the allegations so infected his trial as to deprive

him due process.

Q. Motion to Change Counsel

¶178 Johnson argues the court improperly denied his two motions

to change counsel. We review the court’s denial of a request for new

counsel for an abuse of discretion. State v. Cromwell, 211 Ariz. 181, 186 ¶ 27

(2005).

¶179 “A criminal defendant has a Sixth Amendment right to

representation by competent counsel.” Id. ¶ 28; see also U.S. Const. amend.

VI. “The presence of an irreconcilable conflict or a completely fractured

relationship between counsel and the accused ordinarily requires the

appointment of new counsel.” Id. ¶ 29. However, “single allegation[s] of

lost confidence,” “disagreements over defense strategies,” or other conflicts

“less than irreconcilable” do not necessarily require the appointment of

new counsel. Id. Rather, “[t]o constitute a colorable claim, a defendant’s

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Opinion of the Court

allegations must go beyond personality conflicts or disagreements”; the

defendant instead bears the burden to demonstrate “facts sufficient to

support a belief that an irreconcilable conflict exists warranting the

appointment of new counsel in order to avoid the clear prospect of an unfair

trial.” Id. at 187 ¶ 30.

i. Johnson’s 2015 motion to change counsel

¶180 In September 2015, Johnson filed a motion to change counsel

and asked that “any competent lawyer” be substituted for all future

proceedings. Johnson complained that (1) he wanted to see every motion

defense counsel had filed on his behalf, but his lawyers had not sent them;

(2) he had not seen the most recent “plea proposal” and that his lawyers

included information in the proposals over his objection; (3) his lawyers

had not filed motions that other capital defendants had filed in their cases;

and (4) his lawyers had not given him copies of his mental health reports.

¶181 Johnson’s lawyers explained that they had not sent the mental

health records to the prison for confidentiality reasons and that they had

not sent a copy of every motion filed because the agency did not have the

staff to send him five years’ worth of information at the time. His lawyers

assured the court that they had filed all appropriate motions on Johnson’s

behalf and spoke with Johnson “on a regular basis.” His lawyers denied

that there was an irreconcilable conflict but acknowledged that if Johnson

refused to cooperate in the future or insisted on inappropriate trial

strategies, then one could develop.

¶182 The court informed Johnson that it found his lawyers were

thorough, prepared, and diligent. The court further praised how

consistently prepared Johnson’s lawyers were, despite complex issues, and

how well they had worked with opposing counsel. The court denied

Johnson’s motion, advised Johnson that he would be disadvantaged by a

change of counsel because his current counsel had firsthand knowledge of

all aspects of his case, and recommended that Johnson cooperate with his

counsel.

¶183 Johnson has not met his burden to show that an irreconcilable

conflict existed. Johnson’s disagreements in his 2015 motion were minor,

and his attorneys regularly contacted him. Cf. State v. Gomez, 231 Ariz. 219,

224 ¶ 20, 225–26 ¶ 29 (2012) (concluding trial court did not err in denying

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Opinion of the Court

motion for change of counsel where defendant alleged that defense counsel

had not visited him in more than a year and had not devoted enough time

to prepare for the case). And though defense counsel noted there were

some frustrations, counsel advised the court that they could continue to

work together. The court was in the best position to consider the evidence

of a conflict, found it insufficient, and so do we. See Cromwell, 211 Ariz. at

187 ¶ 35 (stating that the denial of the motion for change of counsel is

discretionary and finding no abuse of discretion).

¶184 Nevertheless, Johnson argues the court erred by failing to

consider the State v. LaGrand factors. See 152 Ariz. 483, 486–87 (1987)

(stating that the court should consider “whether new counsel would be

confronted with the same conflict; the timing of the motion; inconvenience

to witnesses; the time period already elapsed between the alleged offense

and trial; the proclivity of the defendant to change counsel; and quality of

counsel”).

¶185 But “[t]he nature of the inquiry will depend upon the nature

of the defendant’s request.” State v. Torres, 208 Ariz. 340, 343 ¶ 8 (2004).

And in the grand scheme, the “request for new counsel should be examined

with the rights and interest of the defendant in mind tempered by

exigencies of judicial economy.” LaGrand, 152 Ariz. at 486.

¶186 Johnson argues the court erred by focusing on his counsel’s

competence, citing Torres, 208 Ariz. at 344 ¶ 15 (stating that “in most cases,

. . .‘quality of counsel’” will not be a factor to consider when defendant

requests substitution of counsel), but Johnson’s complaints regarding the

motions his lawyers were filing on his behalf necessarily concern the

adequacy of counsel and whether they were properly representing his

interests. As the court recognized, nothing in the record indicated they

were not.

¶187 As to the other LaGrand factors, “although the trial court could

have engaged in a more searching exploration” of Johnson’s claims and

counsel’s responses, “the court did not abuse its discretion because it

sufficiently inquired into the purported [breakdown.]” State v. Champagne,

No. CR 17-0425, 2019 WL 3676317, at *3 ¶ 13 (Ariz. Aug. 7, 2019) (alteration

omitted) (citation and internal quotation marks omitted). The court sought

out counsel’s responses to Johnson’s claim of a breakdown and found them

sufficient to dispel any concern. Further, the court considered that

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Opinion of the Court

Johnson’s motion came four years into his case after many complex issues

were resolved and found that he would be disadvantaged because not all

firsthand knowledge his counsel possessed could be communicated to new

counsel. The court did not abuse its discretion in denying Johnson’s 2015

motion to change counsel.

ii. Johnson’s 2016 motion to change counsel

¶188 During the penalty phase, Johnson made an oral motion for

change of counsel. Johnson complained that (1) his lawyers were not asking

the questions he wanted; (2) his attorneys did not impeach Detective

Denning with a statement he believed was impeachment worthy; (3) his

lawyers were not objecting to statements Dr. DeMarte assigned to him as

Johnson expected they would; and (4) when Johnson requested to waive his

presence because his friend was in attendance, his lawyers were overly

concerned when told the friend’s identity.

¶189 The court responded that Johnson’s case was complicated and

informed him that his lawyers had to make “difficult decisions on the fly,”

so “there’s always a possibility of miscommunication [and] changes in

strategy, depending on how the evidence comes in.” However, nothing

Johnson told the court persuaded it that the level of communication was

diminished enough that the attorney-client relationship was affected.

Rather, the court advised Johnson that his counsel was doing a “pretty darn

good job, and they’re doing their best for you,” and denied his motion.

¶190 The court did not abuse its discretion in denying Johnson’s

2016 motion to change counsel. Again, the disagreements were minor and

related to trial strategy. See Cromwell, 211 Ariz. at 186 ¶ 29 (stating that

differences in strategy are not an irreconcilable conflict). Though Johnson

guessed that he and his counsel had “this communication breakdown

between us” and that the relationship was “strained,” the record does not

suggest the relationship was fractured. After his 2015 motion to change

counsel request, but before trial, Johnson filed a request to represent himself

in the armed robbery matter, but specifically stated, when asked if he was

getting along with his current counsel, “Yeah, yes, I am.” Johnson further

stated that nothing about his current counsel was bothering him and

accepted that his current counsel would remain his advisory counsel for the

armed robbery matter, without complaint.

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¶191 Based on Johnson’s general complaints, the timing of his

motion to change counsel, and the lack of evidence indicating the

relationship was fractured or that communication was impaired, we hold

the court did not abuse its discretion in denying his 2016 motion to change

counsel.

R. Abuse of Discretion Review

¶192 Arizona law requires that we “review the sentencing portion

of the trial even when a defendant fails . . . to challenge the jury’s decision

with regard to either the aggravating factors or the imposition of the death

sentence.” State v. Morris, 215 Ariz. 324, 340 ¶¶ 75–76 (2007); see also A.R.S.

§ 13-756(A).

i. Aggravating circumstances

¶193 We will uphold the jury’s findings of aggravating

circumstances “if there is ‘any reasonable evidence in the record to sustain

it.’” Morris, 215 Ariz. at 341 ¶ 77 (quoting State v. Veatch, 132 Ariz. 394, 396

(1982)). As to the (F)(6) aggravator, we have already confirmed that

substantial evidence supports it. See supra ¶¶ 26–32. Evidence also

supports the jury’s findings of the (F)(2) and (F)(7) aggravators: for the

(F)(2) aggravator, that Johnson was previously convicted of a serious

offense—the armed robbery—and for the (F)(7) aggravator, that Johnson

committed the murder while on probation and release.

ii. Imposition of the death sentence

¶194 We will uphold the jury’s death verdict “if any reasonable

juror could conclude that the mitigation presented was not sufficiently

substantial to call for leniency.” State v. Naranjo, 234 Ariz. 233, 250 ¶ 89

(2014) (internal quotation marks omitted).

¶195 Johnson presented the following mitigating factors to the

jury: (1) Johnson’s capacity to appreciate the wrongfulness of his conduct

or to conform his conduct to the requirements of the law was significantly

impaired but not so impaired as to constitute a defense to prosecution;

(2) Johnson has a genetic predisposition to substance abuse; (3) Johnson has

a genetic predisposition to mental health issues; (4) Johnson was adopted

as an infant and has been diagnosed as suffering from dissociative disorder

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as a result of his adoption, i.e., “adopted-child syndrome”; (5) Johnson was

a freshman at Columbine High School at the time of the infamous school

shooting and has been diagnosed with PTSD as a result; (6) Johnson was an

adolescent when he started abusing substances and has a history of

substance abuse; (7) Johnson has a history of mental illness; (8) Johnson’s

willingness to accept full responsibility for his actions and his willingness

to plead guilty to all charges and agree to be sentenced to life in prison

without the possibility of parole; (9) Johnson’s life has value to his family

and friends; and (10) Johnson has the love and support of his family.

¶196 Johnson’s mitigation focused mainly on his substance abuse,

the Columbine shooting, and his PTSD, but was countered by the State

during rebuttal. Though Johnson argued that Columbine changed and

affected him, the State produced evidence showing that Johnson abused

drugs and acted recklessly before the Columbine shooting. The State also

presented rebuttal showing the Columbine shooting’s impact on Johnson

was not as severe as he claimed. Johnson presented evidence that he was

bullied because of his adoption and race, but the evidence also indicated

that his family loved and supported him and that his cousins protected him

from bullying. Further, although Johnson presented the testimony of Dr.

Kirschner to establish adopted-child syndrome, family members testified

that Johnson did not display anger about his adoption or otherwise show

that it negatively affected him. And despite his family’s love and support,

Johnson’s family recognized he was untruthful and dangerous at times.

¶197 Johnson argued that he had a genetic predisposition to

substance abuse, but the State showed Johnson’s erratic behavior was not

limited to drugs: he street-raced cars, passed counterfeit money, and

engaged in fights. To the extent medical experts diagnosed Johnson with

PTSD and personality disorder NOS, the State produced evidence

indicating that Johnson underreported or misrepresented his behavior.

Last, to the extent Johnson claimed remorse, his sincerity was undercut by

testimony from Dr. DeMarte that he laughed and was dismissive about the

murder.

¶198 Even if Johnson’s mitigation evidence were given its full

weight, the jurors could reasonably have concluded that it did not call for

leniency in light of the brutality and senselessness of the murder along with

the other aggravating factors. The jury did not abuse its discretion when it

sentenced Johnson to death.

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S. Excessive Page Limits

¶199 Though not raised by either party, we must address the

excessive lengths of Johnson’s briefs. Some cases are more complex than

others, and in those cases, flexibility is required. But Johnson’s filings

stretch that flexibility too far.

¶200 Johnson submitted an original opening brief totaling 105,621

words and covering more than 400 pages, nearly four times our limit, which

itself is greatly expanded beyond page limits in civil and non-capital

criminal cases. See Ariz. R. Crim. P. 31.14(a) (limiting opening briefs to

28,000 words). We struck it but nevertheless granted him 42,000 words to

file a revised opening brief. In doing so, we stated:

In all capital cases, the Court independently reviews the

record in its entirety, including all evidence, transcripts, and

briefs. For that reason counsel’s arguments regarding the

need to file a brief far exceeding the extended page limits

provided for capital cases are not well-taken, and in any event

they should have been raised in advance of the due date to

prevent further delay in this case.

¶201 Johnson complied, submitting 41,958 words, but did so by

shortening some of his arguments and relegating record citations and legal

citations to footnotes without legal analysis. See Ariz. R. Crim. P.

31.10(a)(7)(A) (requiring arguments to contain (1) “appellant’s contentions

with supporting reasons for each contention,” along with (2) “citations of

legal authorities and appropriate references” to the record). Johnson

essentially “evade[d] our page limit by manipulating the format of his

brief,” of which we disapprove. Bolton, 182 Ariz. at 298.

¶202 In response, the State argued that Johnson had waived issues

that were not sufficiently developed, specifically issues H, M, O, and P.

Johnson then claimed this Court’s previous order and imposition of a

42,000-word limit prevented him from fully developing his arguments. In

Bolton, we rejected that exact argument. Id. (noting the “[d]efendant could

very well have complied with our rules in the first instance”). There, we

“strongly disapprove[d] of defendant’s attempt to create legal issues out of

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his own failure to cooperate with this [C]ourt in reviewing his case.” Id.

We do so again here. 4

¶203 Nevertheless, we granted Johnson 21,000 words in his reply

brief, 7,000 more than our traditional limit, see Ariz. R. Crim. P. 31.14(a)

(limiting reply briefs to 14,000 words), to further develop the arguments

that the State claimed were waived. Johnson submitted a 41,853 word reply

brief. By Johnson’s own recording, 9,072 words were spent supplementing

the challenged issues, while 32,781 words were for its regular reply. Its

32,781-word reply alone exceeds our order by over 10,000 words.

¶204 Johnson argues he could not comply with our word limits

because winnowing issues is unethical, citing ABA Guidelines 6.8(a)(5) and

comment to Guideline 10.15.1.C, along with Lockett, 438 U.S. at 604 (noting

the importance of procedural protections to ensure the reliability of

sentencing). We reject Johnson’s argument. As we stated in State v. Atwood:

Each member of this court is acutely aware of the gravity of

the decisions we are called upon to make in capital cases.

Therefore, to argue that such deviations from professional

appellate practice as occurred in this case are justifiable

because the death penalty is at issue is unpersuasive. Rather

than aiding our review of defendant’s case by judiciously

selecting, fully researching, and concisely arguing the

colorable issues raised by the trial record, appellate counsel

has bombarded this court with a salvo of dubious claims

serving little purpose other than to detract from those issues

having arguable legal merit.

171 Ariz. 576, 659 (1992).

¶205 Good advocacy requires winnowing.

Legal contentions, like the currency, depreciate through over-

issue. The mind of an appellate judge is habitually receptive

4 To dispel any concern that Johnson did not have time to edit his briefs to

comply with our limits, he requested, and we granted, five extensions. And

when we struck his original opening brief in April 2018, we granted him an

additional month to edit his brief to comply.

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to the suggestion that a lower court committed an error. But

receptiveness declines as the number of assigned errors

increases. Multiplicity hints at lack of confidence in any

one. . . . [E]xperience on the bench convinces [us] that

multiplying assignments of error will dilute and weaken a

good case and will not save a bad one.

Robert H. Jackson, Advocacy Before the United States Supreme Court, 25

Temple L.Q. 115, 119 (1951).

¶206 Similarly, good advocacy requires editing. It may be that it is

“harder to write shorter and crisper,” Bryan A. Garner, Interview with Chief

Justice John G. Roberts, Jr., 13 Scribes J. Legal Writing 5, 33 (2010) (quoting

Chief Justice Roberts), and that writing with “[s]implicity and clarity”

requires more “rounds of editing,” Bryan A. Garner, Interview with Justice

Clarence Thomas, 13 Scribes J. Legal Writing 99, 99 (2010) (quoting Justice

Thomas), but such is the price of good advocacy. We do not read the ABA

Guidelines to provide otherwise.

¶207 Indeed, in State v. Amaya-Ruiz, we were “able to address the

21 arguments submitted by defendant under 11 issues, reflecting our belief

that the brief could have withstood further editing without compromising

the quality of its arguments.” 166 Ariz. 152, 183 (1990) (stating that the

court’s page limits do not infringe due process rights). Here, we

consolidated twenty-one arguments into seventeen issues, some of which

were foreclosed by previous decisions. And without stating which

arguments were overdeveloped (or without merit), we conclude that

Johnson could have effectively edited his arguments to fit within the

provided word count. Our conclusion is bolstered by our independent

review of the record, finding no reversible error.

¶208 Johnson is entitled to a meaningful opportunity to be heard,

but that does not mean that he may decline to comply with this Court’s

requirements and orders or that he is excused from the obligation to edit

his work.

T. Issues Preserved for Federal Review

¶209 Johnson identifies thirty-two issues he seeks to preserve for

federal review. As he concedes, we have previously rejected each of his

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claims. We decline to revisit them.

CONCLUSION

¶210 For the reasons above, we affirm Johnson’s convictions and

sentences.

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