Appeal
from the Superior Court in Pima County The Honorable John S.
Leonardo, Judge No. CR-2009-2300-003
Mark
Brnovich, Arizona Attorney General, Dominic E. Draye,
Solicitor General, Lacey Stover Gard (argued), Chief Counsel,
Capital Litigation Section, Tucson, Attorneys for State of
Arizona
John
L. Saccoman (argued), Law Office of John L. Saccoman,
Phoenix; and Brent E. Graham, Law Office of Brent E. Graham,
PLLC, Glendale, Attorneys for Jason Eugene Bush
JUSTICE PELANDER authored the opinion of the Court, in which
VICE CHIEF JUSTICE BRUTINEL, and JUSTICES TIMMER, BOLICK, and
GOULD joined.
OPINION
PELANDER, JUSTICE
¶1
This automatic appeal arises from Jason Eugene Bush's
convictions and death sentences for murdering nine-year-old
Brisenia Flores and her father, Raul "Junior"
Flores, in their Arivaca home. We have jurisdiction under
article 6, section 5(3) of the Arizona Constitution and
A.R.S. §§ 13-4031 and 13-4033(A)(1).
BACKGROUND
¶2
The facts largely mirror those in State v. Forde, in
which this Court affirmed the first degree murder convictions
and death sentences of Shawna Forde, Bush's accomplice
and the "self-proclaimed leader of a private
'minuteman' border monitoring group" in which
Bush participated. 233 Ariz. 543, 552 ¶ 2 (2014). On the
evening of May 29, 2009, Junior Flores, his wife, Gina
Gonzales, and their daughter, Brisenia, were at their home
while the couple's other daughter spent the night with a
relative. After Junior and Gina went to bed, and as Brisenia
slept on the living room couch, Junior woke Gina to tell her
law enforcement officers were at their door. Gina rose from
bed and joined Brisenia, who was still asleep on the couch,
while Junior went to the door.
¶3
Gina heard two voices, a male and female, order Junior to
open the door so they could enter to "take a look."
Junior complied, and a man and woman entered the Flores's
home. The man was tall, wore camouflage and black face paint,
and carried a handgun and a longer gun covered with duct
tape. Junior pressed the intruders for identification and
asked the man why one gun was covered in duct tape. The man
responded, "Don't take this personally but this
bullet has your name on it," and shot Junior in the
chest. The man then turned the handgun on Gina and shot her
in the shoulder and thigh. After Gina fell to the floor, the
man focused again on Junior, who was yelling, "Stop
shooting my wife," and killed him with additional shots.
¶4
Lying on the floor feigning death, Gina heard two more men,
both Spanish-speaking, enter the home. Brisenia awoke, began
crying, and asked the armed man why he shot her father. He
told Brisenia everything would be okay, that nobody would
hurt her, and asked about her sister's whereabouts.
Brisenia said her sister was spending the night with a
relative. Gina then heard the man load his gun while Brisenia
repeatedly begged, "Please don't shoot me."
Despite her pleas, the man fatally shot Brisenia twice in the
face at point-blank range.
¶5
After hearing the female intruder tell the group to leave,
Gina called 911 and attempted to aid Brisenia, who was
shaking and struggling to breathe. The female intruder then
returned, saw that Gina was still alive, and ordered someone
to "go back and finish her off." Gina immediately
rushed to the kitchen, grabbed a gun Junior kept there, and
collapsed on the kitchen floor. Meanwhile, the tall man with
black face paint reentered the home and began shooting at
Gina, who returned fire. Gina heard the man cry out in pain
before leaving the home. When another man entered, Gina
yelled, "Get the hell out," and "That is
enough," which prompted the man to leave. Gina returned
to the phone, which was still connected to the 911
dispatcher, and waited for police.
¶6
Law enforcement officers identified Albert Gaxiola as a
suspect in the murders and, after obtaining a search warrant,
discovered Bush's DNA, fingerprints, and other
incriminating items at Gaxiola's home. Officers located
Bush ten days later at the residence he shared with his
girlfriend. Bush, who had been wounded by Gina's gunfire,
told his girlfriend that he had been shot in the leg while
working for the military as an undercover immigration
operative.
¶7
After arresting Bush on June 11, 2009, officers questioned
him at the Mohave County Sheriff's Department for
approximately four hours. Though initially denying any
involvement in the murders, Bush eventually confessed to
shooting and killing Junior and Brisenia, claiming that his
accomplices threatened to kill him and his family if he did
not do so. In addition to making numerous incriminating
statements, Bush drew a diagram of the Flores's home and
marked where each victim was when he shot them. The State
charged Bush with two counts of first degree murder, A.R.S.
§ 13-1105, attempted first degree murder, A.R.S. §
13-1001, two counts of aggravated assault, A.R.S. §
13-1204, first degree burglary, A.R.S. § 13-1508, armed
robbery, A.R.S. § 13-1904, and aggravated robbery,
A.R.S. § 13-1903.
¶8
A jury found Bush guilty on all counts. For the murder
convictions, the jury found three aggravating circumstances:
Bush was convicted of a serious offense, committed multiple
homicides on the same occasion, and murdered a person under
the age of fifteen. See A.R.S. § 13-751(F)(2),
(8), (9). Considering those factors and the mitigation
evidence, the jury sentenced Bush to death for each murder.
For the non-capital convictions, the trial court sentenced
Bush to prison terms totaling seventy-eight years.
DISCUSSION
A.
Pretrial Motions for a Change of Venue and
Continuance
¶9
Bush contends the trial court abused its discretion in
denying his motion for a change of venue or, alternatively, a
continuance, which he argues was necessary because of
outrageous and extensive pretrial publicity about the case.
We review for abuse of discretion a trial court's denial
of a motion for a change of venue or continuance.
Forde, 233 Ariz. at 553 ¶ 11; State v.
Dixon, 226 Ariz. 545, 555 ¶ 53 (2011).
¶10
Bush's motion, filed a week before his trial, cited
numerous internet articles allegedly containing "an
overwhelming amount of prejudicial and inflammatory
statements" about him. In denying the motion, the trial
court reasoned that Bush had not shown he was entitled to a
presumption of prejudice and could not show actual prejudice
because the jury had not yet been selected. The court
indicated it would explore Bush's concerns if the voir
dire process failed to "yield an impartial jury."
Bush unsuccessfully moved for a mistrial after jury selection
but did not renew his motions for a change of venue or
continuance.
¶11
Our review of pretrial publicity issues "entails a
two-step inquiry to decide 'whether, under the totality
of the circumstances, the publicity attendant to [the]
defendant's trial was so pervasive that it caused the
proceedings to be fundamentally unfair.'"
Forde, 233 Ariz. at 553 ¶ 12 (quoting State
v. Cruz, 218 Ariz. 149, 156 ¶ 13 (2008)). The first
inquiry is whether "the publicity so pervaded the
proceedings that the trial court erred by not presuming
prejudice." Id. at 554 ¶ 12; accord
Cruz, 218 Ariz. at 156 ¶ 14. If the trial court
properly declined to presume prejudice, the next inquiry is
"whether the defendant showed actual prejudice."
Forde, 233 Ariz. at 554 ¶ 12; accord
Cruz, 218 Ariz. at 156 ¶ 14. We find no error under
either inquiry.
¶12
Courts "rarely presume prejudice due to outrageous
pretrial publicity," State v. Bible, 175 Ariz.
549, 564 (1993), because of the defendant's extremely
heavy burden to show "the publicity [is] 'so unfair,
so prejudicial, and so pervasive that [the trial court]
cannot give any credibility to the jurors' answers during
voir dire, '" Cruz, 218 Ariz. at 157 ¶
15 (quoting State v. Bolton, 182 Ariz. 290, 300
(1995)); accord Bible, 175 Ariz. at 564-65. "In
other words, . . . the 'media coverage [must be] so
extensive or outrageous that it permeate[s] the proceedings
or create[s] a 'carnival-like' atmosphere,
'" Cruz, 218 Ariz. at 157 ¶ 15
(quoting State v. Atwood, 171 Ariz. 576, 631
(1992)), devoid of the "fundamental and essential
element[s] of . . . 'dignity, order, and decorum,
'" Bible, 175 Ariz. at 567 (quoting
Illinois v. Allen, 397 U.S. 337, 343 (1970)).
¶13
Bush argues that pretrial publicity created the prohibited
carnival-like atmosphere in his proceedings. But in
Forde, which involved the same murders underlying
this case, we noted that "[m]ost of the publicity
occurred in the immediate aftermath of the crimes -
approximately eighteen months before [Forde's]
trial," and "most news accounts were essentially
factual." 233 Ariz. at 554 ¶ 14; see also State
v. Kiles, 222 Ariz. 25, 35-36 ¶¶ 46-50 (2009)
(change of venue denied despite ten years of media coverage).
¶14
Questionable or allegedly inaccurate publicity alone is not
enough to presume prejudice, particularly when, as here, the
"information in the great bulk of the news reports"
was "largely factual." Bible, 175 Ariz. at
564. Nor does a presumption of prejudice arise merely because
the media published an interview to which Bush agreed, or
other articles stating that he confessed to the murders or
discussing facts adduced during Forde's trial that
implicated Bush in the murders. In short, Bush has not shown
that "the media successfully influenc[ed] law
enforcement officers [, ] . . . court personnel[, ] [or] the
court itself." Id. at 565.
¶15
"Absent presumed prejudice, the focus is whether the
potential jurors 'could not judge impartially the guilt
of the defendant.'" Id. at 566 (quoting
Patton v. Yount, 467 U.S. 1025, 1035 (1984)). To
prevail, the defendant must show that "the dissemination
of the prejudicial material will probably result in the party
being deprived of a fair trial." Ariz. R. Crim. P.
10.3(b) (2011); see also Bible, 175 Ariz. at 566-67
(applying Rule 10.3(b)). Bush fails to make that required
showing.
¶16
Bush's actual prejudice argument primarily rests on the
allegedly "inconsistent answers" Jurors 1, 5, 11,
and 13 gave about their exposure to pretrial publicity. But
all empaneled jurors disclosed their preliminary opinions
regarding Bush's guilt and provided adequate assurances
they would set their opinions aside and consider only the
evidence presented at trial. These assurances plainly
"undercut [his] prejudice claim." Bible,
175 Ariz. at 566. Additionally, nothing in the record
supports departing from the well-established presumption that
the jurors followed the trial court's instructions to
consider only the evidence presented at trial. Cruz,
218 Ariz. at 158 ¶ 25. The court did not abuse its
discretion in denying Bush's motion for a change of
venue.
¶17
Because Bush failed to show that the pretrial publicity
prejudiced him, we likewise reject his claim of error
relating to his motion for a continuance. State v.
Burns, 237 Ariz. 1, 11 ¶ 10 (2015) ("We will
not find that a trial court abused its discretion in denying
a continuance unless the defendant shows prejudice.").
B.
Jury Selection and Voir Dire Issues
1.
Non-statutory Aggravators in Juror Questionnaire
¶18
Jury selection in this case lasted five days and involved 225
potential jurors. Before trial, each juror received and
completed an eighteen-page juror questionnaire containing
many questions probing the juror's ability to deliver a
fair and impartial verdict. In various ways, the
questionnaire delved into the prospective jurors' views
on capital punishment, and some questions sought to identify
jurors who might harbor death-favorable views. The State and
Bush's defense team received copies of the prospective
jurors' completed questionnaires. In addition, the trial
court conducted three voir dire sessions in which subgroups
of prospective jurors were sworn in, instructed on the phases
of a capital murder trial, and made available to the parties
for questioning.
¶19
Bush contends the trial court erred by allowing the State,
through the juror questionnaire, to "improperly inject
non-statutory aggravating factors . . . for consideration by
prospective jurors." Bush's argument is based on
question 27, which stated:
27. If you agree the death penalty may be appropriate in some
cases, please rank the following reasons from 1 to 4, 1 being
most important, that would cause you to favor the death
penalty.
___To deter others from committing murder.
___For economic reasons. It is expensive to house prisoners
for the remainder of their lives.
___Because an eye for an eye, is fair.
___To protect the public against defendants who might get out
of jail in the future.
___Other (please specify): ___.
¶20
"We review a trial court's decisions regarding the
use and content of jury questionnaires for abuse of
discretion," State v. Naranjo, 234 Ariz. 233,
241 ¶ 24 (2014), and "will not disturb the trial
court's selection of the jury in the absence of a showing
that a jury of fair and impartial jurors was not
chosen," State v. Moody, 208 Ariz. 424, 451
¶ 93 (2004) (internal quotation marks omitted) (quoting
State v. Walden, 183 Ariz. 595, 607 (1995)).
¶21
Despite having been furnished in advance with the trial
court's proposed questionnaire, Bush did not object to
question 27 or any other part. Instead, after the prospective
jurors received, completed, and submitted their
questionnaires, but before voir dire began, Bush moved for a
mistrial on the ground that question 27 "engrained in
[the jurors] that it is appropriate at some level for them to
consider" the "improper and impermissible"
non-statutory aggravating factors it lists. The trial court
denied the motion but instructed the potential jurors that
they were not to consider the factors listed in question 27.
The court also asked the potential jurors whether they would
disregard that instruction, but no juror indicated any such
intent.
¶22
The trial court's instruction and follow-up query
notwithstanding, defense counsel still "ask[ed] each
[potential juror] individually" about whether they could
"put those [reasons listed in question 27] aside"
as non-factors and be fair and impartial. But in his further
probing of the prospective jurors, counsel confusingly stated
he was not "saying [they] can't think about these
[factors]." The trial court later clarified that defense
counsel's follow-up questioning was meant to determine
whether the factors listed in question 27 are "still
going to be something that you consider even if the Court
instructs you [otherwise]."
¶23
In response to Bush's questioning, and contrary to their
prior statements that they would follow the trial court's
instructions on this point, petit Jurors 9, 11, and 13
indicated by raising their hands that they would consider a
factor listed in question 27. Even so, and despite insisting
he would move to strike any jurors who indicated they would
consider question 27's factors, Bush did not move to
strike any of these jurors.
¶24
Arizona law provides fourteen "aggravating
circumstances" that, if alleged by the state, a capital
case jury shall consider "in determining whether to
impose a sentence of death." A.R.S. § 13-751(F).
Bush contends that "question 27 called jurors'
attention to non-statutory aggravating factors" and that
he is entitled to a new trial because the final response of
Jurors 9, 11, and 13 during voir dire indicates that "at
least [their] verdicts were influenced by improper
considerations."
¶25
We disagree. On its face, question 27 does not instruct
jurors that the reasons it lists are aggravating factors, but
rather expressly states that its purpose is to determine what
reasons would lead a particular juror to "favor the
death penalty" if given that sentencing option.
Moreover, the trial court and the parties explained several
times that each juror must follow the court's
instructions generally and that jurors were not to consider
the factors question 27 mentions. We presume the jurors
heeded those instructions, Cruz, 218 Ariz. at 158
¶ 25, and Bush's assertion that the reasons listed
in question 27 influenced any juror's deliberation or
decision is purely speculative.
¶26
Bush nevertheless contends that the post-instruction,
show-of-hand responses made by Jurors 9, 11, and 13 indicate
inadequate rehabilitation. But those conflicting responses at
most suggest the jurors did not understand the purpose or
substance of defense counsel's questioning. And to the
extent there was confusion, it was at least partially
attributable to counsel's misguided statement to the
prospective jurors that "we're not saying you
can't think about these [factors]."
¶27
In any case, later in the jury selection process the trial
court asked if any prospective jurors "would be unable
to follow the law" as given in the court's
instructions, "disregarding [their] own notions of what
the law is" or "ought to be." No juror
responded or expressed any concern. In addition, during voir
dire and later in the aggravation phase the prosecutor and
the trial court clearly explained the separate phases of a
capital case trial, the distinct issues the jurors would have
to decide in each phase, and the three aggravators the State
alleged. The court's aggravation-phase instructions
expressly stated that "the State has the burden of
proving beyond a reasonable doubt the aggravating
circumstances it has alleged," all of which are listed
in § 13-751(F). Bush fails to rebut the presumption that
the jurors followed the court's instructions. See
State v. Prince, 226 Ariz. 516, 537 ¶ 80 (2011).
¶28
In sum, the trial court did not abuse its discretion in
allowing the prospective jurors to answer question 27 of the
juror questionnaire. Nonetheless, we see little purpose for,
and a potential risk of confusion and possible prejudice
created by, a question such as question 27. We therefore
disapprove of its future use in capital case pretrial juror
questionnaires.
2.
Denial of Individual Voir Dire
¶29
Bush contends the trial court violated his constitutional
rights to a fair trial and due process by denying his request
for individual voir dire. "We review a trial court's
rulings on voir dire of prospective jurors for abuse
of discretion," State v. Glassel, 211 Ariz. 33,
45 ¶ 36 (2005), and necessarily defer largely to a trial
court's "sound discretion" in such matters,
Ristaino v. Ross, 424 U.S. 589, 594 (1976) (internal
quotation marks omitted) (quoting Connors v. United
States, 158 U.S. 408, 413 (1895)).
¶30
Bush moved before trial for individual, sequestered, and
in-chambers voir dire, asserting it was necessary to
"put the prospective juror at ease and encourage honest
responses." The trial court denied the motion, noting
that Bush's request was impracticable because of the
large number of potential jurors. But the court said it would
privately question a prospective juror "if that need
became apparent" either from the juror's request or
to avoid tainting the other prospective jurors. Based on the
same reasoning, the trial court denied Bush's two
subsequent filings seeking individual voir dire.
¶31
Notwithstanding the trial court's rulings, during the
first day of voir dire defense counsel asked individualized
questions to make sure the jurors were being "honest
with [him]." The court took issue with the inefficient
and ineffective manner of his questioning, but counsel
insisted that he "ha[d] the right to ask [jurors]
individually" because the juror questionnaire
"implanted in their mind" that the factors listed
in question 27 were appropriate. The trial court ultimately
gave counsel considerable "leeway," such that his
extensive and uninterrupted voir dire questions were a
mixture of individual and group inquiries.
¶32
Relying in part on Morgan v. Illinois, 504 U.S. 719
(1992), Bush contends that individualized voir dire was
constitutionally required in his "complex, highly
publicized capital trial." But Morgan merely
requires trial courts to allow "more detailed
questioning of prospective jurors beyond . . . simple
questions" to "evaluat[e] a prospective juror's
ability to be impartial." State v. Garza, 216
Ariz. 56, 64 ¶ 25 (2007); see also State v.
Parker, 231 Ariz. 391, 400 ¶ 21 (2013) ("We
have repeatedly rejected invitations to expand
Morgan's holding."). And unlike in
Morgan, the trial court here did not "refuse
inquiry into whether a potential juror would automatically
impose the death penalty upon conviction of the
defendant." 504 U.S. at 721. Nor does Bush identify any
occasion on which he unsuccessfully asked for voir dire of a
specific juror individually. Cf. State v. Moore, 222
Ariz. 1, 10 ¶ 36 (2009) (finding no Morgan
error when defendant "was allowed to question the
jurors" and "[t]he trial court did not prevent
defense counsel from asking life-qualifying questions").
Instead, the record shows that Bush had ample time and
opportunity to probe the prospective jurors on their juror
questionnaire responses, pretrial publicity, and other
matters. See Garza, 216 Ariz. at 64 ¶ 25
(concluding that voir dire consisting of "extensive oral
questioning and . . . a twenty-four page questionnaire
completed by all prospective jurors" "complied with
Morgan").
¶33
To the extent Bush suggests individual voir dire was
necessary to prevent prospective jurors' answers from
tainting the panel, we disagree. As in Bible,
"the written questionnaire addressed many of the
questions that might normally militate in favor of
individualized . . . or in camera voir dire," and Bush
"cites no 'contaminating' comment made during
oral voir dire." 175 Ariz. at 570; accord
Forde, 233 Ariz. at 560 ¶¶ 55-56. Accordingly,
the trial court did not abuse its discretion in denying
individualized voir dire. See Bible, 175 Ariz. at
570 ("Whatever the risk of the procedure used, the
danger did not materialize.").
3.
Exclusion of Evidence from Voir Dire
¶34
During the second day of voir dire, Bush moved to present to
prospective jurors some graphic photographs of the murder
victims and a tape recording of Gina's 911 call that the
State intended to introduce as evidence at trial. Though
acknowledging that this was a "novel idea that's
generally not permitted during voir dire," Bush
contended it was necessary to identify jurors who, after
seeing the photographs and hearing the recording, would be
"substantially impaired" from being fair and
impartial during the mitigation phase. Bush argues that the
trial court abused its discretion and violated his
constitutional rights to a fair trial and due process by
denying his request.
¶35
Although we generally review a trial court's voir dire
rulings for abuse of discretion, State v. Patterson,
230 Ariz. 270, 273 ¶ 5 (2012), fundamental error review
applies to Bush's constitutional claims because he did
not raise them at trial, State v. Henderson, 210
Ariz. 561, 567 ¶ 19 (2005) (noting that "[a]
defendant who fails to object at trial forfeits the right to
obtain appellate relief except in those rare cases"
involving fundamental error). Bush must therefore show error
that is both fundamental and prejudicial. Id. ¶
20.
¶36
Voir dire is "not meant to allow a defendant to 'ask
a juror to speculate or precommit on how that juror might
vote based on any particular facts.'" State v.
Smith, 215 Ariz. 221, 231 ¶ 42 (2007) (quoting
United States v. McVeigh, 153 F.3d 1166, 1207 (10th
Cir. 1998)). Nor must a trial court allow a defendant to ask
questions "designed to condition the jurors to damaging
evidence expected to be presented at trial and to commit them
to certain positions prior to receiving the evidence."
State v. Melendez, 121 Ariz. 1, 3 (1978). Rather,
"part of the guarantee of a defendant's right to an
impartial jury is an adequate voir dire to identify
unqualified jurors." Morgan, 504 U.S. at 729
(emphasis added); see also Burns, 237 Ariz. at 13
¶ 21 (rejecting argument that Morgan entitles
defendant "to ask whether [potential jurors] would
impose the death penalty based on the specific facts of his
case"). Here, Bush was allowed to question potential
jurors on whether the anticipated evidence would prevent them
from being fair and impartial.
¶37
In his voir dire questioning, Bush repeatedly referred to
this case as involving "first degree, premeditated,
cold-blooded, inexcusable murder" and vividly described
the "gruesome photographs" and other
"gut-wrenching" evidence that would be presented.
Because Bush's statements sufficiently informed the
potential jurors about the graphic nature of the evidence in
the case, exposing them to the 911 tape and photographs would
have unnecessarily risked conditioning the jurors to the
State's damaging evidence. See Melendez, 121
Ariz. at 3. As such, the trial court did not err in
precluding Bush from presenting that evidence during voir
dire.
4.
Failure to Strike Jurors Sua Sponte
¶38
Bush argues that the trial court committed structural error
and violated his rights "to due process and a fair trial
by an impartial jury, and . . . to be free from cruel and
unusual punishment" under the federal and Arizona
constitutions by failing to strike sua sponte four allegedly
"death-presumptive jurors" who served on the petit
jury. Specifically, he contends the court erred by not
striking Jurors 2, 3, 8, and 9 because they allegedly
"made death-presumptive statements in their
questionnaires for which they were never rehabilitated."
We find no structural or other error.
¶39
During the jury selection process the trial court dismissed
forty-five potential jurors for cause, including several whom
Bush moved to strike because he believed they would
automatically vote to impose a death sentence. Bush did not
move to strike empaneled Jurors 2, 3, 8, or 9. But after voir
dire he moved for a mistrial based "on the entire way
[the jury selection] process has been conducted" and
argued that some prospective, stealth jurors, without
specifically identifying the four now in question, had
"not been forthcoming with information" to shed
light on some of their responses in the juror questionnaire.
Bush made clear that his motion for mistrial was distinct
from his request to strike certain specified prospective
jurors he viewed as death-biased. The trial court denied
Bush's motion, stating that jury selection "has been
an effective process" that resulted in "a panel at
this point that is fair and can be impartial and will follow
the law."
¶40
We first reject Bush's assertion that the trial
court's failure to sua sponte strike Jurors 2, 3, 8, and
9 resulted in structural error. State v. Anderson
(Anderson I), 197 Ariz. 314 (2000), on which Bush
relies, is inapposite. There, contrary to our rules and case
law, the trial court refused the defendant's request for
oral voir dire to rehabilitate prospective jurors who
generally opposed the death penalty. Id. at 319
¶ 10, 320-21 ¶¶ 13-14; cf. Moore, 222
Ariz. at 10-11 ¶¶ 41-42 (finding Anderson
I "not analogous" to situation where trial
court failed "to specifically ask jurors if they could
set aside their beliefs"). Here, in contrast, the trial
court did not deny Bush his right to voir dire, let alone his
right to strike jurors based on their allegedly
death-presumptive statements. Nor did any of the jurors in
question express a belief that "death should be imposed
ipso facto upon conviction of a capital
offense," Morgan, 504 U.S. at 735, or otherwise
state that he or she would "automatically vote for the
death penalty without regard to the mitigating
evidence," id. at 738.
¶41
Bush alternatively argues that "[f]undamental error
analysis does not apply here as [he] specifically objected to
the court's voir dire as inadequate and moved for a
mistrial." We disagree. Bush does not argue that the
trial court erred in denying his motion for a mistrial. And
that motion was, at best, a "general objection to death
qualification," which is insufficient to preserve issues
relating to the qualification of particular jurors. E.g.,
Moody, 208 Ariz. at 449-50 ¶ 85. Furthermore, even
assuming Bush's oral motion for a mistrial constituted a
challenge to the panel, it failed to comply with Arizona Rule
of Criminal Procedure 18.4(a), which at all relevant times
required such challenges to be "in writing." We
therefore review his claim for fundamental error, which
requires Bush to show that the trial court's failure to
sua sponte strike Jurors 2, 3, 8, and 9 constituted error
that was fundamental and prejudicial. Henderson, 210
Ariz. at 567 ¶¶ 19-20; see also Garza, 216
Ariz. at 64 ¶¶ 28-29 (reviewing death-biased jury
claims for fundamental error); Bible, 175 Ariz. at
573-74 (same).
¶42
"When there is reasonable ground to believe that a juror
cannot render a fair and impartial verdict, the court, on its
own initiative, . . . shall excuse the juror from service in
the case." Ariz. R. Crim. P. 18.4(b) (2011); see
also Morgan, 504 U.S. at 729 ("The Constitution . .
. [requires] that the defendant be afforded an impartial
jury."). But a potential juror is not precluded from
jury service "[s]imply because [the] juror favors the
death penalty" so long as the juror is "willing to
put aside his opinions and base his decisions solely upon the
evidence." State v. Velazquez,216 Ariz. 300,
307 ¶ 19 (2007) (internal quotation marks omitted)
(quoting State v. Martinez,196 Ariz. 451, 459
ΒΆ 28 (2000)). Thus, ...