Petition for Writ of Certiorari — Arizona, Petitioner v. Jasper Phillip Rushing

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Opinion in the Supreme Court of the

State of Arizona

(November 6, 2017) . . . . . . . . . . . App. 1

Appendix B Order Denying the Motion for

Reconsideration in the Supreme Court

of the State of Arizona

(December 15, 2017) . . . . . . . . . App. 32

App. 1

APPENDIX A

IN THE

SUPREME COURT OF THE

STATE OF ARIZONA

No. CR-15-0268-AP

[Filed November 6, 2017]

________________________________

STATE OF ARIZONA

)

Appellee,

)

)

v.

)

)

JASPER PHILLIP RUSHING, )

Appellant.

)

________________________________ )

Appeal from the Superior Court in Maricopa County

The Honorable Michael W. Kemp, Judge

No. CR2010-007882

AFFIRMED IN PART, VACATED IN PART,

REMANDED

COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic E.

Draye, Solicitor General, Lacey Stover Gard, Chief

Counsel, Capital Litigation Section, Tucson, Ginger

Jarvis (argued), Assistant Attorney General, Phoenix,

Attorneys for State of Arizona

App. 2

Sharmila Roy (argued), Laveen, Attorney for Jasper

Phillip Rushing

JUSTICE TIMMER authored the opinion of the Court,

in which CHIEF JUSTICE BALES, VICE CHIEF

JUSTICE PELANDER, and JUSTICES BRUTINEL,

BOLICK, GOULD, and BERCH (RETIRED)* joined.

JUSTICE TIMMER, opinion of the Court:

¶1

Jasper Phillip Rushing was sentenced to death

after a jury found him guilty of first degree murder. We

have jurisdiction over this automatic appeal under

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

A.R.S. § 13–4031.1 We affirm Rushing’s conviction. To

comply with the United States Supreme Court’s

decision in Lynch v. Arizona, 136 S. Ct. 1818 (2016)

(“Lynch II”), we vacate the death sentence and remand

for a new penalty phase proceeding.

BACKGROUND2

¶2

In August 2010, Rushing and victim Shannon P.

were imprisoned in the Lewis Prison Complex. They

were temporarily housed together in an isolation cell

after each expressed safety concerns with his prior

*

Justice John R. Lopez, IV, has recused himself from this case.

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

Honorable Rebecca White Berch, Justice of the Arizona Supreme

Court (retired), was designated to sit in this matter.

1

We cite the current versions of statutes unless they have

materially changed since Rushing committed the offense.

2

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

jury’s verdict. State v. Gallegos, 178 Ariz. 1, 9 (1994).

App. 3

assigned housing. The cell was designed for one person.

It had one bed, but prison staff provided a floor

mattress so each man had a place to sleep.

¶3

On September 10, Rushing killed Shannon while

in their cell. There were no witnesses. Corrections

officer Joel Valdovinos said nothing seemed unusual

when he conducted hourly welfare checks of the

inmates that morning. And when Rushing was

temporarily removed from the cell around 10:30 a.m.

for a prisoner count, he was calm and pleasant.

¶4

Just before 1:00 p.m., Valdovinos opened the

“food trap” in the cell door to serve lunch. He could not

see inside the cell because it was dark, as it had been

all morning. An investigator later determined that the

cell light was broken. Rushing “put his face to the trap”

and said, “you have to call IMS [the “inmate

management system”]. I think I just killed my cellie.”

Valdovinos asked if Rushing was being serious or lying,

and Rushing replied, “No . . . I beat him up and I think

I killed him.” Using a flashlight, Valdovinos

illuminated the cell and saw Shannon lying on the bed

with a “large gash in his throat.” Valdovinos asked

Rushing what weapon he had used to inflict the

injuries, and Rushing said he used “a razor blade he

had on the sink.”

¶5

Valdovinos immediately called for help, and then

told Rushing to turn around so he could cuff him

through the trap door. Rushing responded, “can I have

a sip of coffee real quick?” After Valdovinos replied,

“[n]o dude . . . . Look at what you just did, man,”

Rushing nevertheless “took a sip . . . turned around,

put his hand[s] through the trap,” and Valdovinos

handcuffed him.

App. 4

¶6

After more officers arrived, Rushing was

removed from the cell. According to an officer, Shannon

was found unconscious but alive, lying face up on the

bunk with his throat “clearly” cut and “his head and his

left arm kind of draped over on the ground.” His “face

had been smashed in . . . like he had been bludgeoned.

His no[se] was flattened out against his head.” His

severed penis was found on the floor. Shannon could

not be resuscitated, and he died en route to the

hospital. A medical examination later determined

Shannon died from “blunt force and sharp force injury,”

but could not identify the order of injuries to his head,

face, neck, and penis.

¶7

Two weapons were found in the cell: (1) a bloody

disposable razor, wrapped on one end with cellophane

to form a handle, and (2) a thick, rolled-up, soft-cover

book contained within a sock, which, in turn, had been

wrapped in a sheet.

¶8 The State indicted Rushing on one count of

premeditated first degree murder pursuant to A.R.S.

§ 13-1105 and sought the death penalty. That Rushing

killed Shannon was not contested at trial; the only

issue was whether he did so with premeditation. The

jury found Rushing guilty as charged. In the

aggravation phase, the jury found three aggravating

factors: (1) Rushing had been previously convicted of

another offense for which life imprisonment or death

could be or had been imposed, see A.R.S. § 13-751

(F)(1); (2) Rushing committed the offense in an

especially heinous or depraved manner, see id.

§ 13-751(F)(6); and (3) Rushing committed the offense

while in the custody of the state department of

corrections, see id. § 13- 751(F)(7)(a). After considering

App. 5

mitigation evidence, the jury determined that Rushing

should be sentenced to death.

DISCUSSION

A. Guilt Phase

1. The Trujillo statement

¶9

After officers responded to Valdovinos’s request

for help, they removed the handcuffed Rushing from

the cell. Without first advising Rushing of his Miranda

rights, corrections officer Trujillo asked him “what he

had used to assault [Shannon].” Rushing answered that

he had used “rolled up magazines to beat [Shannon]

unconscious and then used a razor blade with a small

handle to cut his neck and to cut off the penis”

(hereafter, the “Trujillo statement”).

¶10 Before trial, Rushing moved to suppress the

Trujillo statement, arguing it was made involuntarily

and obtained in violation of Miranda v. Arizona, 384

U.S. 436 (1966). The prosecutor responded that she did

not intend to call Trujillo as a witness. Relying on this

avowal, the trial court considered the matter moot and

did not decide the statement’s admissibility.

¶11 During the trial’s guilt phase, corrections

Sergeant Damian Ryan testified he heard Rushing

“talking about the assault” with an unnamed officer

soon after Rushing was pulled from the cell. Neither

the prosecutor nor defense counsel asked Ryan to relate

what he had overheard. But, without objection, the

trial court posed a juror’s question, which elicited the

Trujillo statement:

App. 6

The Court: Did you hear anything that Mr.

Rushing said while he was in your presence and,

if so, what was said?

[Ryan]: I’d have to refer to my report. I heard

Mr. Rushing say, I hit him with a roll of

magazines until I knocked him out and then I

cut his throat and cut his dick off. He then said

the razor blade was on the sink.

The prosecutor and defense counsel each asked

follow-up questions confirming what Ryan overheard.

Also, without objection, the prosecutor later elicited an

opinion from Dr. John Hu, the medical examiner who

conducted the autopsy, that the order of injuries

described in the Trujillo statement was consistent with

Shannon’s wounds. Finally, the prosecutor referred to

the Trujillo statement repeatedly during closing

argument to argue that the murder was

premeditated—the only issue at trial.

a. Standard of review

¶12 Rushing argues that the trial court violated his

Fifth Amendment rights by admitting the Trujillo

statement. The State does not dispute that introducing

the statement was error. The parties disagree,

however, on whether the error should be evaluated

under the fundamental error or harmless error

standard of review.

¶13 The State argues that Rushing waived the issue

by failing to object to the juror’s question, and

fundamental error review is therefore appropriate. The

State alternatively argues that Rushing “invited any

possible error by agreeing to permit the trial court to

ask the juror’s question that led to Sergeant Ryan’s

App. 7

answer.” Rushing contends he preserved his objection

through the motion to suppress, and harmless error

review is therefore warranted.

¶14 Rushing did not invite the error. The invited

error doctrine prevents a party from injecting error into

the record and then profiting from it on appeal. State v.

Logan, 200 Ariz. 564, 566 ¶ 11 (2001). Defense counsel

did not inject the error here by asking Ryan to relate

what he had overheard. A juror posed that question to

the trial judge, who asked it of Ryan. Defense counsel’s

failure to object to the question constitutes waiver, not

invited error.

¶15 Although Rushing moved pre-trial to prevent the

State from introducing the Trujillo statement, the court

did not rule on the merits, as the State disclaimed any

intent of offering the statement. But even if the trial

court had ruled on the motion to suppress, Rushing

needed to object to the juror’s question to preserve the

issue for appeal. The earlier motion preserved

Rushing’s objection to the prosecution introducing the

contested statement. But the prosecutor did not elicit

the statement from Sergeant Ryan; a juror did through

the judge. When the judge read the proposed juror

question to counsel for both sides outside the jury’s

hearing, defense counsel was required to raise any

objection then, but he did not. Cf. Matchett v. State, 364

S.E.2d 565, 567 (Ga. 1988) (concluding that while

questions directly from a juror to a witness are

generally not permitted in Georgia, appellant’s failure

to object waived the issue); Handy v. State, 30 A.3d

197, 211(Md. Ct. Spec. App. 2011) (concluding that the

failure to object to a juror question waives the issue on

appeal).

App. 8

b. Merits

¶16 “A fundamental error is error that goes to the

foundation of the case, takes from the defendant a right

that is essential to his defense, and is of such

magnitude that the defendant could not possibly have

received a fair trial.” State v. Escalante-Orozco, 241

Ariz. 254, 272 ¶ 40 (2017) (citing State v. Henderson,

210 Ariz. 561, 567 ¶ 19 (2005)). The defendant must

prove that the error was fundamental and that it

prejudiced him. Id.

¶17 Focusing on the latter requirement, Rushing

argues he was prejudiced by admission of the Trujillo

statement because it tended to show premeditation.

The medical examiner could not determine the order in

which Rushing inflicted Shannon’s wounds. Without

the Trujillo statement, Rushing asserts, “there was no

other evidence before the jury of the order of the blows

or more significantly [Rushing’s] apparent thought

process prior to the assault.” According to Rushing,

“[w]ithout that statement, the jury could have found

[him] guilty of second-degree murder.”

¶18 Rushing murdered Shannon with premeditation

if he acted “with either the intention or the knowledge

that he [would] kill another human being, when such

intention or knowledge precede[d] the killing by any

length of time to permit reflection.” A.R.S. § 13 -1101(1)

(defining premeditation). The murder was not

premeditated if it was “ the instant effect of a sudden

quarrel or heat of passion.”Id. The State was required

to prove actual reflection but could do so through

circumstantial evidence. See State v. Ovante, 231 Ariz.

180, 184 ¶ 14 (2013) (“There is no prescribed period of

time which must elapse between the formation of the

App. 9

intent to kill and the act of killing, but the record must

at least circumstantially support that a defendant

considered his act and did not merely react to an

instant quarerl or in the heat of passion.”); State v.

Thompson, 204 Ariz. 471, 479 ¶ 31 (2003) (noting that

the passage of time is one factor among others that can

show actual reflection).

¶19 Admission of the Trujillo statement was neither

fundamental error nor prejudicial. Apart from the

statement, the circumstances of the murder sufficiently

proved premeditation. Shannon was not killed by a

quick strike. Rushing used two weapons—a bludgeon

and a razor. He delivered at least four hard blows to

Shannon’s head and face, made deep cuts on both sides

of his neck, and likely spent time completely severing

his penis with just a razor (the medical examiner

testified it would not have been easy to cut through the

penis). The jury could have reasonably concluded that

switching weapons, moving to different areas of

Shannon’s body, and taking the time to remove the

penis afforded Rushing sufficient time to reflect on his

actions.

¶20 There was no evidence of shouting, fighting, or

other indications of a sudden quarrel between Rushing

and Shannon that might suggest Rushing acted

without reflection. Shannon had no defensive wounds,

which might have suggested a brawl, and he was found

lying on the bed with most of the blood pooled at its

head and the adjacent floor. Rushing did not appear

distressed immediately after the murder and, indeed,

appeared calm and even asked to sip coffee before being

handcuffed while Shannon lay gasping for air nearby.

App. 10

¶21 The Trujillo statement did not add much to the

premeditation issue. Although Rushing related the

order in which he wounded Shannon, this was an

after-the-fact recitation of events, not a statement

about any pre-attack plan. We fail to see how the

statement reflects Rushing’s thought process, as he

now argues. Indeed, defense counsel argued in closing

that the Trujillo statement was only “an

acknowledgment of what he did” and “doesn’t show any

premeditation at the time of the offense at all.” And

even if the order of wounds is somehow significant to

showing premeditation, the jury would have likely

concluded that Shannon was initially knocked

unconscious before the razor attack, even without the

Trujillo statement. There was no blood on the tops or

bottoms of Shannon’s feet, the blood was confined to

the area on and immediately around the bed, and he

did not have any defensive wounds. This evidence

indicates that Rushing attacked Shannon while he was

on the bed. As it is unlikely that Shannon would have

remained still while being cut, the most plausible

explanation is that he was initially knocked

unconscious.

¶22 The Trujillo statement also did not unfairly

prejudice Rushing’s defense theory. Defense counsel

claimed that Rushing lacked a motive to kill Shannon

but “something set [Rushing] off,” and that this may

have been “a case of heat of passion or sudden quarrel.”

He pointed out that Rushing “went over and beyond

what was necessary to kill,” indicating Rushing was

“completely out of control.” The Trujillo statement,

which corroborated the physical evidence, was not

inconsistent with the defense theory that Rushing was

“out of control.”

App. 11

¶23 In sum, the trial court did not commit

fundamental error by eliciting testimony about the

Trujillo statement through the juror’s question.

2. Gruesome Photographs

¶24 Over Rushing’s objection, the trial court

admitted one murder scene photo and four autopsy

photos during the guilt phase: Trial exhibits 21 (cell),

41 (peeled-back scalp and skull surface), 42 (brain), 43

(groin), and 47 (severed penis and a knocked-out tooth).

We review the court’s ruling for an abuse of discretion.

See State v. Jones, 203 Ariz. 1, 9 ¶28 (2002).

¶25 Generally, “[w]hether the trial court abused its

discretion in admitting a photograph turns on (1) the

photograph’s relevance, (2) its tendency to inflame the

jury, and (3) its probative value compared to its

potential to cause unfair prejudice.” State v. Goudeau,

239 Ariz. 421, 459 ¶ 153 (2016) (citation and internal

quotation marks omitted); Ariz. R. Evid. 403. Rushing

argues that the court violated his due process rights

because the photos were not relevant to deciding

whether the murder was premeditated, and they were

unfairly prejudicial due to their gruesome depictions.

¶26 The photographs were relevant. The photo of the

cell (exhibit 21) showed that Shannon’s blood was

largely confined to the head of the bed, which

suggested he was attacked while lying down and not as

the result of a heat-of-passion fight as Rushing argued.

¶27 Dr. Hu used the autopsy photos to explain

Shannon’s injuries and to testify about the cause of

death. Cause of death is always relevant. Cf. State v.

Morris, 215 Ariz. 324, 339 ¶ 70 (2007) (“Photographs of

a victim’s body are always relevant because the fact

App. 12

and cause of death are always relevant in a murder

prosecution.” (citations and internal quotation marks

omitted)); State v. Hampton, 213 Ariz. 167, 173 ¶ 18

(2006) (stating the same and adding that photos may

be relevant “to show the fatal injury, to determine the

atrociousness of the crime, to corroborate State

witnesses, to illustrate testimony, or to corroborate the

State’s theory of the crime.” (citations and internal

quotation marks omitted)). This is so even though

Rushing did not dispute how Shannon was injured or

his cause of death . Cf. Hampton, 213 Ariz. at 173 ¶ 19

(“Even if a defendant does not contest certain issues,

photographs are still admissible if relevant because the

burden to prove every element of the crime is not

relieved by a defendant’s tactical decision not to contest

an essential element of the offense.” (quoting State v.

Dickens, 187 Ariz. 1, 18 (1996)).

¶28 The autopsy photos were also relevant to show

premeditation. Exhibits 41 and 42 depict red areas on

the scalp and brain that supported Dr. Hu’s conclusion

that Shannon suffered multiple contusions and

hemorrhaging, which are generally caused by “a

significant amount of blunt force trauma to the head.”

This evidence shows that Rushing hit Shannon several

times with blows that would necessitate a sufficient

passage of time between strikes to build force, which

could permit reflection.

¶29 Exhibit 43 shows Shannon’s external genitalia

where the penis had been removed, and Exhibit 47

shows that the severed penis has jagged edges. Both

photos showed the denseness of the penis. The jury was

shown these photos while Dr. Hu explained that the

penis had been severed at “the root” along with some of

App. 13

the scrotum; many slashes were required to sever the

penis, as reflected by the jagged cutting edge; and it

would have been difficult to cut through the appendage

with a razor blade. This evidence supports a conclusion

that Rushing had to spend some time severing the

penis, which gave him time to reflect. The knocked-out

tooth, shown in a corner of exhibit 47, shows the

severity of the head blows and is relevant in the same

manner as exhibits 41 and 42.

¶30 Although the photos are graphic, the trial court

acted within its discretion by finding that their

probative value was not outweighed by any prejudicial

effect. See Ariz. R. Evid. 403. The photo of the cell

(exhibit 21) shows a great deal of blood confined to one

area of the bed, a bloody mess on the floor immediately

beside the bed, and clean space elsewhere in the cell.

Shannon’s severed penis is depicted, but it is not the

focus of the photo. Also, although a corrections officer

described the scene, the photo better evidences that

Rushing’s attack was confined to the bed area.

¶31 While the autopsy photos are more disturbing,

we reach the same conclusion. This was a shockingly

violent murder, which had been vividly described to

jurors by witnesses. It is unlikely that viewing the

autopsy pictures so inflamed jurors that a danger of

unfair prejudice existed. See State v. Lopez, 174 Ariz.

131, 139 (1992) (“Such photographs cannot be deemed

sufficiently gruesome to inflame the jurors because ‘the

crime committed was so atrocious that photographs

could add little to the repugnance felt by anyone who

heard the testimony.’” (citation omitted)); see also State

v. Cota, 229 Ariz. 136, 147 ¶ 46 (2012) (“[T]here is

nothing sanitary about murder and sometimes

App. 14

gruesome photographs properly will be introduced.”

(citation and internal quotation marks omitted)).

B. Aggravation Phase

¶32 The jury found that Rushing murdered Shannon

in an especially heinous or depraved manner, thereby

establishing the aggravating circumstance under

§ 13-751(F)(6) (“The defendant committed the offense

in an especially heinous, cruel or depraved manner.”).

Rushing argues that the State failed to prove the (F)(6)

aggravator beyond a reasonable doubt. To resolve this

argument, we must “determine whether substantial

evidence support[ed] the jury’s finding, viewing the

facts in the light most favorable to sustaining the jury

verdict.” State v. Gunches, 225 Ariz. 22, 25 ¶ 14 (2010).

¶33 The State proved that Rushing murdered

Shannon in an especially heinous or depraved manner

by inflicting gratuitous violence. Cf. id. at 25 ¶ 15

(listing “infliction of gratuitous violence” as among the

factors generally relevant in determining heinousness

and depravity). Gratuitous violence can be found if the

defendant “(1) inflicted more violence than that

necessary to kill, and (2) continued to inflict violence

after he knew or should have known that a fatal action

had occurred.” Id. at 25–26 ¶ 16 (quoting State v.

Bocharski, 218 Ariz. 476, 494 ¶¶ 86– 87 (2008))

(internal quotation marks omitted).

¶34 Rushing does not contest that sufficient evidence

exists that he inflicted more violence than necessary to

kill Shannon. Instead, he argues that insufficient

evidence exists that he knew or should have known

that he continued to inflict injury on Shannon after “a

fatal action had occurred.” He points out that no

App. 15

evidence showed the time it took to inflict the wounds,

and Shannon lived for about an hour after the attack

occurred. Thus, Rushing asserts that this case is closer

to ones in which we have found insufficient evidence

that defendants knew or should have known that

additional injury was inflicted after “a fatal action”

than cases in which we reached the opposite

conclusion. Compare Gunches, 225 Ariz. at 26 ¶ 20

(finding insufficient evidence where the defendant fired

three shots in quick succession on a dark night before

the final shot), and State v. Wallace, 229 Ariz. 155, 161

¶ 26 (2012) (finding insufficient evidence where the

defendant hit the victim multiple times with a baseball

bat before putting the bat through her neck as she

moaned), with State v. Benson, 232 Ariz. 452, 464–65

¶ 50 (2013) (finding sufficient evidence where the

defendant admitted that the victim’s body was getting

cold when he dragged her into his car, drove

somewhere, pushed her out of the car and then ran

over her), and State v. Bearup, 221 Ariz. 163, 173

¶ 52(2009) (finding sufficient evidence where the

defendant had beaten the victim “nearly to death” with

an aluminum baseball bat and then about an hour later

cut off his finger).

¶35 The record contains sufficient evidence that

Rushing inflicted gratuitous violence by severing

Shannon’s penis after Rushing knew or should have

known he had inflicted a fatal injury. The Trujillo

statement placed the order of wounds as head, neck,

and penis. As previously discussed, the circumstantial

evidence supported this order as Shannon did not have

any defensive wounds, the blood was all in or beside

the bed, none of the blood spilled onto Shannon’s lower

legs and feet, and it’s unlikely Shannon would have

App. 16

stayed put as his penis was severed had he been

conscious. Considering the damage inflicted and the

time it must have taken to switch weapons, sufficient

evidence exists that Rushing knew or should have

known he had delivered the fatal action before he

severed the penis. And even if he did not know he had

struck a fatal blow when he started cutting away the

penis, considering the time it must have taken to

complete the attack, the jury could have reasonably

concluded that he must have become aware that he had

done so.

C. Penalty Phase

1. “Future Dangerousness”

¶36 Before trial, Rushing unsuccessfully moved the

trial court to instruct the jury pursuant to Simmons v.

South Carolina, 512 U.S. 154 (1994) (plurality) that he

is ineligible for release. Instead, the court instructed

the jury at the start of the aggravation phase that if it

decided to impose a life sentence, “the judge will

sentence the defendant to either life imprisonment

without the possibility of release from prison or life

imprisonment with the possibility of release from

prison after 25 years.” The court did not again instruct

the jury in the penalty phase about the available types

of life sentences. Rushing argues that the court violated

his rights under the Sixth, Eighth, and Fourteenth

Amendments, as set forth in Simmons and Lynch II,

136 S. Ct. 1818, by refusing to instruct the jury that he

was in eligible for parole. We review de novo whether

the court properly instructed the jury. See State v.

Glassel, 211 Ariz. 33, 53 ¶ 74 (2005).

App. 17

¶37 In Simmons, the United States Supreme Court

held that “where the defendant’s future dangerousness

is at issue, and state law prohibits the defendant’s

release on parole, due process requires that the

sentencing jury be informed that the defendant is

parole ineligible.” 512 U.S. at 156. Only juveniles and

individuals who committed a felony before January 1,

1994, are eligible for parole in Arizona. A.R.S.

§ 41-1604.09(I). Rushing does not fall into either

category. In the past, this Court has held that even

when a defendant’s future dangerousness is at issue,

the type of instruction given by the trial court here

does not violate Simmons because future release is

possible. See, e.g., State v. Lynch, 238 Ariz. 84, 103 ¶ 65

(2015) (“Lynch I”), rev’d by Lynch II, 136 S. Ct. 1818.

But in Lynch II the Supreme Court rejected our

holding. 136 S. Ct. at 1819. The Court determined that

the possibilities of clemency or a future statute

authorizing parole “[do not] diminish[] a capital

defendant’s right to inform a jury of his parole

ineligibility.” Id. And use of the word “release,” while

correct under Arizona law, still gives the defendant a

right to inform the jury of his parole ineligibility. See

id.

¶38 The State first argues that Simmons and

Lynch II apply only when the prosecution puts the

defendant’s future dangerousness at issue. And

because Rushing opened the door to the issue by

eliciting expert testimony that he could be imprisoned

without risk to others, he — not the prosecutor — put

future dangerousness at issue, and thus a Simmons

instruction was unwarranted.

App. 18

¶39 Simmons, however, does not require that the

prosecution initially raise the issue; it requires an

instruction “where a capital defendant’s future

dangerousness is at issue” and the sentencing choices

are death or life imprisonment without the possibility

of parole. See Lynch II, 136 S.Ct. at 1818 (citations and

internal quotation marks omitted); see also

Escalante-Orozco, 241 Ariz. at 285 ¶ 119 (“The

prosecutor did not have to explicitly argue future

dangerousness for it to be at issue; instead, it is

sufficient if future dangerousness is ‘a logical inference

from the evidence’ or is ‘injected into the case through

the State’s closing argument.’”(quoting Kelly v. South

Carolina, 534 U.S. 246, 252 (2002)).

¶40 Regardless, the State placed Rushing’s future

dangerousness at issue during the penalty phase. For

example, the prosecutor pointed out in her opening

statement that Rushing shot his stepfather in the back

of the head, killing him while he slept, threatened

officers and got into fights in prison, and, a few months

before the murder here, was found with two shanks

hidden inside his rectum. The prosecutor elicited

information from a prison expert that Rushing was

affiliated with the Aryan Brotherhood, once planned to

form a Skinhead group “to bring things back in order”

in Prescott upon release from prison, and accumulated

disciplinary violations, including threats to kill

corrections officers. In closing argument, the prosecutor

again highlighted Rushing’s past acts of violence and

emphasized the brutality of Shannon’s murder.

¶41 By introducing evidence of Rushing’s past violent

acts, his associations with violent groups, and his plans

upon release from prison, the prosecutor placed

App. 19

Rushing’s future dangerousness at issue. Cf. Kelly, 534

U.S. at 252–53 (requiring a Simmons instruction where

the prosecutor introduced evidence of the defendant’s

violent tendencies and referred to him using

violence-invoking nicknames); Escalante-Orozco, 241

Ariz. at 285–86 ¶¶ 121–22 (concluding that

introduction of past acts of violence and prosecutor’s

arguments placed the defendant’s future

dangerousness at issue). Because the trial court

presented a “false choice” of death, natural life, or life

with the possibility of release when it instructed the

jury at the start of the aggravation phase, once it

proceeded to the penalty phase, the court was required

to either instruct that Rushing would not be eligible for

parole or permit Rushing to introduce evidence to that

effect. See Simmons, 512 U.S. at 161.

¶42 The State alternatively argues that any error

was harmless. Even if we assume a Simmons error can

be harmless, the State has not met its burden to “prove

beyond a reasonable doubt that the error did not

contribute to or affect the verdict or sentence.”

Henderson, 210 Ariz. at 567 ¶ 18.

¶43 The State asserts that jurors did not need a

Simmons instruction to know that Rushing would not

be released because he was already serving a life

sentence for murdering his stepfather. Although it is

unlikely any juror thought Rushing could be paroled,

we are not persuaded beyond a reasonable doubt. The

prosecutor implied that Rushing could be released by

telling jurors in the penalty phase opening statement

that the court had rejected the State’s request for a

natural life sentence for the step-father’s murder and

instead imposed a sentence of life with the possibility

App. 20

of release after twenty-five years. Rushing had served

fourteen years of his life sentence at the time of trial,

and he was then thirty-five years old. Some jurors

might have believed that if the court again refused to

impose a natural life sentence, Rushing could be

released after serving twenty- five years of a second life

sentence, whether that sentence was concurrent with

or consecutive to the first sentence. The jury

deliberated for most of a day, and it is not possible to

know whether even the remote prospect of release

affected any juror’s decision to impose the death

penalty. See Escalante-Orozco, 241 Ariz. at 286 ¶ 126

(“We cannot know what role the possibility of release

played in the jurors’ minds as they decided the

propriety of the death penalty.”); cf. Andres v. United

States, 333 U.S. 740, 752 (1948) (“In death cases doubts

such as those presented here should be resolved in

favor of the accused”).

¶44 In sum, the prosecution placed Rushing’s future

dangerousness at issue. Lynch II compels us to

conclude that the trial court erred by failing to tell the

jury that Rushing was ineligible for parole. The error

was not harmless beyond a reasonable doubt . Unless

our abuse-of-discretion review reveals that the death

penalty is unwarranted, the trial court must conduct

new penalty phase proceedings.

2. Abuse of discretion review

¶45 Rushing argues the jury abused its discretion in

imposing the death penalty. See A.R.S. § 13-756(A). We

must uphold a death sentence “if any reasonable juror

could conclude that the mitigation presented was not

sufficiently substantial to call for leniency.” State v.

Naranjo, 234 Ariz. 233, 250 ¶ 89 (2014) (citation and

App. 21

internal quotation marks omitted). The jury did not

abuse its discretion here.

¶46 Rushing presented mitigation evidence that he

suffered from “bipolar mood disorder,” “unspecified

trauma and stressor-related disorder,” “attention

deficit hyperactivity disorder,” drug-related disorders,

and “unspecified personality disorder with antisocial

traits.” He also offered evidence that his childhood was

“extremely chaotic and filled with turmoil, “ and that

he suffered from posttraumatic stress disorder (PTSD)

resulting from being sexually abused during childhood.

¶47 Rushing also presented evidence connecting his

mitigation evidence to the murder. See State v. Pandeli,

215 Ariz. 514, 532 ¶ 72 (2007) (recognizing that

establishing a nexus between mitigating factors and

the crime, though not required, may affect the quality

and strength of the mitigation). Dr. Stuart Grassian, a

psychiatrist, interviewed Rushing and related

Rushing’s version of events. According to Rushing,

Shannon became delusional during their joint

confinement and “started talking a lot about sex with

children,” which made “everyone out to get him.” At

one point, Rushing showed Shannon a picture of his

young niece, and Shannon made sexually inappropriate

comments about her. The day before his death,

Shannon was “absolutely wired” on coffee and talked

incessantly about sex with children, which drove

Rushing to threaten him with the bludgeon device to

quiet him. When Shannon started talking about sex

with children again, Rushing “just went crazy” and

killed him. Dr. Grassian concluded that Rushing

“snapped” as “happens to people with bipolar mood

App. 22

disorder, people in solitary confinement, [and] people

with PTSD.”

¶48 Dr. Jon Conte, an expert on child abuse, related

similar testimony. He opined that Rushing was an

“untreated victim” of child abuse who lacked the skills

to refrain from “acting out” when confronted with

distressing circumstances.

¶49 On the other hand, the State cross-examined the

expert witnesses and discredited some of their

assertions. And the jury may have concluded that

Rushing had lied to his experts about being driven to

kill Shannon by the latter’s talk about sex with

children. The murder was committed in a disturbing

manner and, at the time of the offense, Rushing was

imprisoned for a different murder. Even if we assume

that Rushing proved all his mitigating circumstances,

we cannot find that the jury abused its discretion

because a reasonable juror could have concluded that

the mitigation presented was not sufficiently

substantial to call for leniency.

3. Matters likely to arise on remand

a. Scope of State’s mental health expert

examination

¶50 Rushing argues that the trial court violated his

Fifth, Eighth, and Fourteenth Amendment rights by

requiring him to either answer questions posed by the

State’s mental health expert during a pretrial

examination regarding the murder or forego

presentation of his mental health expert testimony

during the penalty phase. We address this argument

because it is likely to arise on remand, and we review

App. 23

the court’s ruling for an abuse of discretion. See

Phillips v. Araneta, 208 Ariz. 280, 281 ¶ 1 (2004).

¶51 Before trial, Rushing notified the State that he

intended to introduce expert testimony to establish two

statutory mitigating circumstances during the penalty

phase (if one occurred): § 13-751(G)(1) (“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 .”),

and § 13-751(G)(2) (“The defendant was under

substantial duress, although not such as to constitute

a defense to prosecution.”). The State scheduled an

examination of Rushing with Dr. James Seward, its

mental health expert. Cf. Phillips, 208 Ariz. at 283 ¶ 9

(“[O]nce a defendant notifies the state that he intends

to place his mental condition at issue during the

penalty phase of a capital trial, a trial judge has

discretion to order the defendant to submit to a mental

examination by an expert chosen by the state or the

court.”). The prosecutor reportedly instructed Dr.

Seward that “whatever [Rushing] told him about the

offense could not be relayed to the State until

[Rushing] had been convicted of the murder and that

any statements regarding the murder would have to be

redacted from this report and his notes prior to

disclosing either to the State.”

¶52 Rushing moved to preclude Dr. Seward from

asking about the murder or statements Rushing had

made about the murder. The trial court initially

granted the motion, but later reconsidered, reasoning

that the circumstances of the offense were related to

App. 24

the alleged statutory mitigators. Following the

requirements in Phillips, the court ruled:

Dr. Seward is not restricted in the questions he

may ask the defendant. However, no statement

made by the defendant during the examination,

no testimony of an expert based on any such

statement, and no other fruits of any statements

made during the course of any examination may

be used by the State or admitted into evidence

except on those issues on which the defendant

introduces expert testimony during the penalty

phase of the trial. Specifically, the defendant’s

statements regarding the offense may not be

used against him in the guilt or aggravation

phases of trial.

See Phillips, 208 Ariz. at 284 ¶ 14 ( setting forth the

required elements for a trial court order authorizing

the state’s expert to conduct a mental health exam).

¶53 Rushing concedes that, under Phillips and its

progeny, a trial court can condition admission of a

defendant’s mental health-related mitigation evidence

on his cooperation with the state’s mental health

evaluation. See Phillips, 208 Ariz. at 286 ¶ 20; see also

State v. Newell, 212 Ariz. 389, 405 ¶¶ 79–80 (2006);

State v. Carreon, 210 Ariz. 54, 68–69 ¶ 74 (2005). He

argues, however, that no case permits the trial court to

compel a defendant to waive his Fifth Amendment

privilege during an examination and reveal the

circumstances of the murder for which he faces the

death penalty.

¶54 We reject this argument for two reasons. First,

although the Fifth Amendment applies in penalty

App. 25

phase proceedings, see Estelle v. Smith, 451 U.S. 454,

462–63 (1981), a defendant waives the privilege against

compelled self-incrimination by placing his mental

health at issue as a mitigating factor, State v.

Fitzgerald, 232 Ariz. 208, 217 ¶ 44 (2013). Second,

imposing the blanket prohibition Rushing seeks would

thwart the reason for permitting the examination. In

Phillips, we reasoned that a state’s expert can be

permitted to examine a defendant who places his

mental health at issue in the penalty phase to

“maintain a fair state-individual balance,” and to

“ensure the state a meaningful opportunity to rebut the

defendant’s expert testimony.” 208 Ariz. at 283 ¶ 9.

Here, as the trial court found, Rushing’s statutory

mitigators related to the circumstances of the offense.

It would therefore be unfair to have prohibited Dr.

Seward from asking questions concerning the offense.

¶55 The potential unfairness to the State is

illustrated by considering the defense expert testimony

during the penalty phase. Had the trial court granted

Rushing’s motion, the State’s expert would have had no

opportunity to explore whether Rushing’s mental state

at the time of the offense had been affected by the

conditions of the cell or Shannon’s constant references

to sex with children. In short, the State could not have

meaningfully determined whether Rushing had, in fact,

“snapped” as Dr. Grassian claimed. The court did not

abuse its discretion by allowing Dr. Seward to ask

about the murder.

App. 26

b. Rebuttal evidence

(i) The September 10 interview

¶56 Rushing argues that videotaped statements he

made to prison investigators Dallas Ragan and Tom

Bleichroth on the afternoon of the murder were

inadmissible in the penalty phase because (1) he

invoked his right to remain silent under Miranda after

initially agreeing to the interrogation, and (2) the

investigators made promises to induce his statements.

We review the court’s denial of Rushing’s motion to

suppress for an abuse of discretion, “considering only

evidence admitted at the suppression hearing and

viewing it in the light most favorable to sustaining the

ruling.” Escalante -Orozco, 241 Ariz. at 269 ¶ 21. But

we review constitutional issues de novo. Id.

Miranda

¶57 If an in-custody individual unambiguously

indicates a desire to cut off questioning after initially

waiving Miranda rights, officers must end the

interrogation. Berghuis v. Thompkins, 560 U.S. 370,

381 (2010). Whether an invocation is ambiguous is

“judged from the perspective of a reasonable officer

under the totality of the circumstances.” State v. Payne,

233 Ariz. 484, 501 ¶ 40 (2013).

¶58 After being advised of his Miranda rights,

Rushing agreed to answer questions. When Ragan

asked Rushing about Shannon, the following exchange

occurred (the statements at the heart of Rushing’s

challenge are bolded):

Ragan: What was your relationship like as you

guys were housed there together over the past

couple of weeks?

App. 27

Rushing: Very interesting to say the least. Very

interesting.

Ragan: How so?

Rushing: Uh, I’m not sure I should say

anything. I don’t know.

Ragan: You don’t know? Did you guys get along?

At first?

Rushing: Yeah, at first, yeah. Absolutely.

Rushing then described how Shannon had upset him by

incessantly talking about sex with young children.

When Ragan asked what occurred that morning, the

following exchange occurred:

Ragan: I kind of would like to hear what went on

today out of your mouth. I’m pretty intrigued

about it and I’m going to leave that up to you to

discuss with us. And basically I, you know, if you

do, you know, go into some dialogue with us

about it[,] kind of start from how your morning

started and kind of work your way, you know,

through the events up until they pulled you out

of the cell.

Rushing: I realize that you guys are probably

intrigued but I think the actual details of what

happened I probably should not talk about.

Ragan: Is there anything at all that you can tell

us about?

(Rushing shakes head)

Rushing: I don’t know. Not really. I mean . . .

(tapers off)

App. 28

Ragan: Again, it’s. I mean it’s up to you, I mean

frankly I don’t I know that—I know that you’re

serving a life sentence already, you know, it’s —

I don’t think in the long run it’s really going to

make too much of a difference in — in your

custody time, you’re not going to get out and . . .

Rushing: No.

Ragen: So it’s, I mean not that I’m trying to

pressure you into anything but[.]

Rushing eventually confessed to the crime and gave full

details about the murder.

¶59 Rushing’s statements were not unambiguous

invocations of his right to remain silent. Considering

Rushing’s words, demeanor, and body language on the

video, a reasonable law enforcement officer could have

concluded that Rushing’s statements communicated

only that he had doubts about whether to disclose

details of the crime. Cf. Davis v. United States, 512

U.S. 452, 462 (1994) ( “Maybe I should talk to a lawyer”

was not an unambiguous request for counsel); Payne,

233 Ariz. at 501 ¶¶ 40–41 (“I don’t wanna talk

anymore” followed shortly by a request to call family

“and then I’ll talk” was equivocal and insufficient to

invoke right to silence.). Requiring officers to cease an

interrogation after an accused states only that he

should “probably” not discuss any details of an alleged

crime, that he is “not sure” about whether he should

say anything, or that there was “not really” anything

he could say would force police officers to “make

difficult decisions about an accused’s unclear intent

and face the consequences of suppression ‘if they guess

wrong,’” resulting in a “significant burden on society’s

App. 29

interest in prosecuting criminal activity.” Berghuis, 560

U.S. at 382.

Voluntariness

¶60 To be admissible, a statement must be made

voluntarily and not obtained by coercion or improper

inducement. See State v. Ellison, 213 Ariz. 116, 127

¶ 30 (2006). “Promises of benefits or leniency, whether

direct or implied, even if only slight in value, are

impermissibly coercive.” Lopez, 174 Ariz. at 138.

“Before a statement will be considered involuntary

because of a ‘promise,’ evidence must be established

that (1) a promise of benefit or leniency was in fact

made, and (2) the suspect relied on that promise in

making the statement.” Id.

¶61 Rushing contends that Ragan’s statement, “I

don’t think in the long run it’s really going to make too

much of a difference in — in your custody time, you’re

not going to get out” was a promise of leniency that

made Rushing’s subsequent statements involuntary.

We disagree. Ragan’s observation was clearly his own

opinion and did not suggest that he had the ability to

affect Rushing’s sentence. Cf. Burr, 126 Ariz. at 340

(finding that a conversation should have been

suppressed after a detective, who had the authority to

make an arrest, said “I’m not going to arrest you or put

you in jail or anything, but before I ask you anymore

I’ve got to tell you what your rights are”).

¶62 The trial court did not err by refusing to

suppress evidence of the September 10 interview.

App. 30

(ii)

The September 24 interviews

¶63 On September 24, Department of Corrections

Investigator Ernest Barragan interviewed Rushing

twice as part of an internal investigation. Both

interviews were conducted without giving Rushing any

Miranda warnings, and he answered questions about

the crime.

¶64 Rushing argues the trial court erred by

permitting the prosecution to play an audiotape of the

interview as rebuttal evidence during the penalty

phase because the statements were involuntary and

obtained in violation of Miranda. The State counters

with multiple arguments, including that Rushing was

not in custody for purposes of Miranda, and that

statements obtained in violation of Miranda can

nevertheless be admitted in the penalty phase if they

were made voluntarily and are reliable, as are the

statements here. Cf. Howes v. Fields, 565 U.S. 499,

508–09 (2012) (establishing a two-part inquiry to

assess whether an inmate is in custody for Miranda

purposes); United States v. Nichols, 438 F.3d 437, 442

(4th Cir. 2006) (“[S]tatements obtained in violation of

Miranda, if they are otherwise voluntary, may

generally be considered at sentencing.”).

¶65 We decline to resolve these issues because they

have not been fully developed before the trial court or

ruled on. If the State seeks to introduce the audiotape

on remand, the court should resolve the parties’

arguments in the first instance, including making any

necessary factual findings.

App. 31

(iii)

White supremacist evidence

¶66 Rushing argues that the trial court violated his

rights under the First, Eighth, and Fourteenth

Amendments by allowing the prosecutor to introduce

rebuttal evidence regarding his white supremacist

views, memberships, and affiliations.

¶67 We likewise decline to resolve this issue because

it has not been fully developed before the trial court or

ruled on. Before trial, the court deferred its ruling on

the admissibility of this evidence in the penalty phase

“until mitigation is disclosed and we can have an

argument about what’s coming in and what’s not.” This

never occurred. On remand, the court may admit all or

some of the contested evidence if it is relevant to

determining whether the mitigation is sufficiently

substantial to warrant leniency and is not unduly

prejudicial. See State v. Leteve, 237 Ariz. 516, 528–29

¶ 47 (2015); A.R.S. §§ 13-751(C) and (G), -752(G).

D. Other constitutional claims

¶68 Rushing lists twenty-five other constitutional

claims that he acknowledges this Court has previously

rejected but that he seeks to preserve for federal

review. We decline to revisit these claims.

CONCLUSION

¶69 We affirm Rushing’s conviction, vacate the death

sentence, and remand for a new penalty phase

proceeding.

App. 32

APPENDIX B

SUPREME COURT OF ARIZONA

Arizona Supreme Court

No. CR-15-0268-AP

Maricopa County Superior Court

No. CR2010-007882-001

[Filed December 15, 2017]

_____________________________

STATE OF ARIZONA,

)

)

Appellee,

)

)

v.

)

)

JASPER PHILLIP RUSHING, )

)

Appellant.

)

_____________________________ )

ORDER

The court has received the Motion for

Reconsideration filed by Appellant. After consideration

by the full court,

IT IS ORDERED denying the motion for

reconsideration.

DATED this 15TH day of December, 2017.

/s/

ANN A. SCOTT TIMMER

Justice