from the Superior Court in Maricopa County The Honorable
Michael W. Kemp, Judge No. CR2010-007882
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.
Sharmila Roy (argued), Laveen, Attorney for Jasper Phillip
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)
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. 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.
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 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.
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.
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."
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.
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.
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.
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 mitigation evidence, the
jury determined that Rushing should be sentenced to death.
The Trujillo statement
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").
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
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:
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.
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
Standard of review
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.
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 answer."
Rushing contends he preserved his objection through the
motion to suppress, and harmless error review is therefore
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.
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
"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.
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
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 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 quarrel 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).
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
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.
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
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, ...