from the Superior Court in Maricopa County The Honorable Rosa
Mroz, Judge No. CR2009-157459
Brnovich, Arizona Attorney General, Dominic E. Draye,
Solicitor General, Lacy Stover Gard, Chief Counsel, Andrew S.
Reilly (argued), Assistant Attorney General, Capital
Litigation Section, Phoenix, Attorneys for State of Arizona
Michael S. Reeves (argued), Phoenix, Attorney for Dauntorian
JUSTICE GOULD authored the opinion of the Court, in which
CHIEF JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and
JUSTICES PELANDER, TIMMER, and BOLICK, and JUDGE CRUZ joined.
Dauntorian Lydel Sanders was sentenced to death after a jury
found him guilty of first degree murder and two counts of
child abuse. We have jurisdiction of this automatic appeal
pursuant to article 6, section 5(3), of the Arizona
Constitution and A.R.S. § 13-4031. We affirm
Sanders' convictions and sentences.
On August 31, 2009, Sanders called 911 to report that his
girlfriend's child, three-year-old Schala Vera, was not
breathing. A police officer went to the home, and
Sanders directed him to an upstairs bathroom, where he found
Schala lying on the floor. Schala's mother, Susan
Witbracht, was kneeling over her, crying and begging Schala
to breathe. The officer observed that Schala's skin was
"very light blue in color," her mouth was open, and
her eyes were "rolled back in her head." He also
noticed that she was "heavily" bruised,
particularly between her waist and her knees and from her
shoulders to her elbows. The officer performed CPR on Schala
until paramedics arrived and transported her to the hospital.
The doctors could not revive Schala and she was pronounced
dead at the hospital.
Chandler Police Detective Chris Keipert spoke with Sanders at
the hospital. Sanders told Detective Keipert that he went to
Walgreens to buy cigarettes and left Schala at home with
Susan. When he returned to the house to retrieve his wallet,
he checked on Schala, who was in the bathroom using the
toilet, and "she was fine." He went back to
Walgreens and was gone "[f]ive to ten minutes."
When he returned home the second time, he checked on Schala
again and she wasn't breathing. Sanders could not explain
why Schala stopped breathing, claiming there had been no
problems other than "the little girl won't eat her
When Detective Keipert asked Sanders about Schala's
bruises, Sanders admitted they were "from when she got a
spanking." He said the spanking occurred around 9:00
p.m. the night before and that both he and Susan had spanked
Schala with a "cloth-like belt." He claimed that
was the last time she had been spanked.
Later that night, and continuing the following day, Detective
Ivan Kaminsky interviewed Sanders at the Chandler Police
Department. Initially, Sanders essentially repeated the story
he had told Detective Keipert. Sanders added, however, that
he and Susan had been punishing Schala by spanking her with a
belt. He estimated that they would spank Schala "four or
five" times "once or twice a week" with either
a leather belt or a military belt. He said the discipline
began "a couple weeks after" Schala returned to
Arizona in late May or early June 2009 after living in Iowa
with Susan's relatives for several months.
As the interview continued, Sanders' story changed.
Sanders admitted that Schala was hit with a belt on the day
of her death. He claimed that Susan struck Schala with a
leather belt "maybe three or four" times for
"not listening." He also stated that Schala's
bruises on both her legs had been there since the Saturday
before her death because both he and Susan struck her with a
belt that day. Sanders maintained, however, that "[t]he
only thing we use is a belt." He also denied hitting
Schala with the buckle, because that was the part he held
when he was hitting her. Sanders stated that he put tape
around the buckle to protect his hand. During a search of the
residence, police found a black belt with tape around the
buckle on the bathroom counter. Sanders identified the belt
as the one he used to strike Schala.
When Detective Kaminsky asked Sanders whose fault it was that
Schala was beaten to death, Sanders stated that he would
"take full blame" because he's the male and
he's "more physical." Sanders also admitted
that he "accidentally" hit Schala in the head with
the bathroom door when he came home from Walgreens to get his
wallet. He stated that he beat Schala shortly before he left
for Walgreens because "she just didn't listen at
all" and "just kept going." Sanders explained
that Schala was supposed to be putting her underwear back on
after using the toilet, "but she just sat there" on
the bathroom floor. Because she was not listening to him,
Sanders started hitting her legs with the belt. She tried to
stand up but fell, and he continued to hit her. She then
leaned forward with her face between her knees and he struck
her on the back.
An autopsy was performed by Maricopa County Medical Examiner
Kevin Horn, M.D. Dr. Horn found multiple abrasions on
Schala's head and face. The autopsy revealed a subdural
hemorrhage under her scalp that was, according to Dr. Horn,
caused by "more than just an everyday force." Dr.
Horn opined that the injury was similar to injuries caused by
a fall from a significant height, a blow to the head, or a
motor vehicle accident.
There were additional bruises and abrasions on Schala's
torso and above and around her genitalia. Dr. Horn also found
abrasions near Schala's left armpit, arms, back,
buttocks, and thighs that he identified as "pattern
injuries" consistent with a belt.
The most extensive bruising was to Schala's arms and
legs. Dr. Horn noted "diffuse contusion" to those
areas, meaning the bruises overlapped and "cover[ed] the
entire surface." He also noted "very severe
swelling of all four of her extremities." In both
Schala's arms and legs, Dr. Horn diagnosed
rhabdomyolysis, which he explained "is a long way of
saying that the muscle has died and fallen apart." He
also diagnosed compartment syndrome, which occurs when the
muscle swells so much that it cuts off its own blood supply.
Dr. Horn testified that compartment syndrome is typically
seen in "victims of crushing trauma, like motor vehicle
accidents, people that have been pinned in a wreckage"
and in "earthquake areas where people have been crushed
in buildings." Dr. Horn opined that it was not possible
for a belt alone to have caused these injuries; rather,
"[significant crushing force" must have caused the
injuries to Schala's arms and legs. In his opinion, these
injuries showed that Schala must have been squeezed, kicked,
punched, and/or thrown against a surface or object in
addition to being struck with a belt.
Dr. Horn took tissue samples from Schala's arms and legs
and performed an iron stain test to try to determine the age
of her bruises. On one section from her right leg he found
"very rare microphages and very rare staining for
iron" amongst "a sea of red blood cells,"
indicating "fresh injury possibly over an older
injury." Because her legs were so extensively bruised he
noted the newer bruises could be masking older bruises.
Ultimately, Schala's cause of death was determined to be
"multiple blunt force injuries."
Both Sanders and Susan were charged with first degree murder
and four counts of child abuse (Susan's case was later
severed from Sanders' case). The trial court later
granted the State's motion to dismiss two counts of child
At trial, the jury found Sanders guilty of first degree
murder and two counts of child abuse. In the aggravation
phase, the jury found three aggravating factors: (1) Sanders
was previously convicted of a serious offense (child abuse),
see A.R.S. § 13-751(F)(2); (2) the offense was
committed in an especially heinous, cruel or depraved manner,
see id. § 13-751(F)(6); and (3) Sanders
murdered a child under fifteen years of age, see id.
§ 13-751(F)(9). Based on evidence that both Sanders and
Susan beat Schala, the jury also made an
Enmund-Tison finding that Sanders killed Schala.
See Enmund v. Florida, 458 U.S. 782, 788 (1982);
Tison v. Arizona, 431 U.S. 137, 157-58 (1986). In
the penalty phase, after considering the mitigation evidence,
the jury determined that Sanders should be sentenced to
death. The trial court imposed consecutive presumptive
sentences for the child abuse convictions.
Sanders argues the trial court violated his rights under the
Sixth, Eighth, and Fourteenth Amendments by instructing the
jurors, over his objection, that a life sentence includes the
"possibility of release from prison after serving 35
years." See A.R.S. § 13-751(A). Sanders
claims that pursuant to Simmons v. South Carolina,
512 U.S. 154 (1994), the trial court reversibly erred by
failing to instruct the jury that he was ineligible for
release or parole. "We review de novo whether the court
properly instructed the jury." State v.
Rushing, 243 Ariz. 212, 221 ¶ 36 (2017).
In Simmons, the United States Supreme Court held
that if "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 (plurality opinion); see also id. at 178
(O'Connor, J., concurring). In Kelly v. South
Carolina, 534 U.S. 246, 248 (2002), the Court stated
that a defendant's future dangerousness is at issue if it
is "'a logical inference from the evidence,' or
was 'injected into the case through the State's
closing argument.'" Id. at 252 (quoting
State v. Kelly, 540 S.E.2d 851, 857 (S.C. 2001));
see also State v. Escalante-Orozco, 241 Ariz. 254,
285 ¶ 119 (2017) (holding that the "prosecutor
[does] 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'" (citation omitted)).
Sanders is not eligible for parole and cannot be released
from prison unless his sentence is commuted by the Governor.
See A.R.S. § 41-1604.09(I) (2009) (stating
section regarding parole eligibility "applies only to
persons who commit felony offenses before January 1,
1994"); Lynch v. Arizona, 136 S.Ct. 1818,
1819-20 (2016) (holding that the possibility a defendant
could be eligible for executive clemency does not justify
refusing a parole-ineligibility instruction). Accordingly, if
Sanders' future dangerousness was at issue, the trial
court's erroneous instruction violated his due process
right to inform the jury that he was ineligible for parole or
In a capital case, placing future dangerousness at issue
invites the jury to assess whether the defendant's
propensity for violence is so great that imposing death is
the only means to protect society. See California v.
Ramos, 463 U.S. 992, 1003 (1983). Here, because there
are significant factual differences between Sanders' case
and those cases where a defendant's future dangerousness
was at issue, we conclude the trial court's instruction
did not violate Sanders' due process rights.
Significantly, Sanders had no prior arrests or convictions
for violent acts, and there is no evidence that he had a
history of violent or assaultive behavior. In contrast,
future dangerousness is usually placed at issue when evidence
is presented to the jury demonstrating the defendant's
propensity for violence and unlawful behavior. See, e.g.,
Kelly, 542 U.S. at 249, 252-53 (holding the jury was
invited to consider the defendant's future dangerousness
based on testimony that defendant created a shank while in
prison and made an escape attempt that included a plan to
lure a female guard into his cell to be used as a hostage, as
well as testimony by the State's psychologist that the
defendant was a sadist as a child and had developed an
inclination to kill anyone "who rubbed him the wrong
way"); Rushing, 243 Ariz. at 222 ¶¶
40-41 (finding future dangerousness was placed at issue based
on evidence that defendant "shot his stepfather in the
back of the head, killing him while he slept";
"threatened officers and got into fights in
prison"; hid "two shanks  inside his rectum"
while in prison; and that the prosecutor elicited testimony
"from a prison expert that [defendant] 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"); Escalante-Orozco, 241 Ariz. at 285
¶ 121 (stating that defendant's future dangerousness
was at issue when, during the penalty phase, the prosecutor
presented evidence that the defendant "choked his
ex-wife" and "threatened her life" by holding
a "knife to her throat"; threatened his ex-wife by
biting off "part of someone's finger in a
fight" and showing it to her; and, on another occasion,
fought with his ex-wife, "tore off her clothes,
threatened her with a knife, and dragged her outside by her
hair while she was naked").
The circumstances surrounding Schala's murder did not
place Sanders' future dangerousness at issue by
suggesting that the death penalty was the only means to
protect society. See Ramos, 463 U.S. at 1003. The
record shows that Sanders committed this murder in the
context of a specific domestic situation that came to a head
in the summer of 2009. Specifically, at the time of the
murder, Sanders was living in cramped, stressful conditions
in his mother's house, where neither Schala nor Susan
were welcome; Sanders and Susan were chronically unemployed,
causing severe financial distress; Susan had abdicated
parenting responsibilities, thrusting Sanders into the role
of the sole responsible parent; and Sanders was suffering
from undiagnosed, untreated PTSD.
Unlike Sanders' case, cases before this Court involving
future dangerousness have entailed a random or predatory
murder involving a stranger who had the misfortune of
crossing the defendant's path. See, e.g., State v.
Hulsey, 243 Ariz. 367, 375 ¶¶ 2-5 (2018)
(following a traffic stop, the defendant, who was a passenger
in the car and had an outstanding warrant, opened fire and
killed a police offer when the officer asked him to step out
of the car); Rushing, 243 Ariz. at 216 ¶¶
2-6 (defendant beat and stabbed his prison cellmate after a
few weeks of being housed together);
Escalante-Orozco, 241 Ariz. at 265 ¶¶ 2-5
(defendant, a live-in maintenance worker at an apartment
complex, beat, raped, and stabbed a resident, and then sold
his car and fled to Mexico, remaining at-large for over six
years). In such cases, the inference that the defendant posed
a danger to society was far stronger than in Sanders'
Sanders claims, however, that there was evidence, extrinsic
to Schala's murder, showing his propensity for violence.
Specifically, Sanders points to evidence that (1) he was
investigated for rape while he was in the Marine Corps, and
(2) he was involved in a "choking" incident with
The rape investigation was referenced during the testimony of
Dr. Smith, a mitigation expert who testified about
Sanders' PTSD. Dr. Smith testified that his evaluation
and diagnosis of Sanders were based largely on Sanders'
self-reporting. At one point during his examination, defense
counsel asked Dr. Smith whether Sanders had advised him that
"while he was in California he was charged with an
offense" and "those charges were dropped." Dr.
Smith testified that Sanders had reported this incident but
did not disclose the nature of the charges.
The State attempted to impeach Dr. Smith's PTSD
diagnosis. To do so, the prosecutor asked a series of
questions about Sanders' purported lack of full
disclosure during his examination. In line with this
questioning, at one point the prosecutor asked Dr. Smith if
Sanders had disclosed that his prior criminal investigation
was for rape. Dr. Smith stated that Sanders had not.
The prosecutor's question to Dr. Smith did not elicit
information or itself suggest that Sanders was in fact a
rapist or had a propensity for violence. We recognize that
the prosecutor should have been more careful about this
question's potentially prejudicial impact. However, this
isolated question was the only reference to the rape
investigation, and the prosecutor never argued or discussed
it in her closing argument. This fleeting episode did not
create a specter of future dangerousness.
The "choking incident" was introduced by defense
counsel during her direct examination of Susan's cousin,
Bianca Smallwood. Defense counsel presented this testimony as
part of Sanders' mitigation evidence. Specifically, in
questioning Bianca, defense counsel sought to establish the
stressful domestic circumstances that led to Schala's
murder. See supra ¶ 20. In this context,
defense counsel asked Bianca about an incident where Susan
threw Sanders' expensive remote-control helicopter across
the room, and Sanders reacted by "grabb[ing] her by the
Bianca testified that this was the only time she saw Sanders
exhibit any violence toward Susan. Additionally, the
prosecutor sought to establish that the incident never
occurred. On cross-examination the State sought to show when
Bianca claimed this incident occurred, Sanders could not
afford an expensive remote-control helicopter. The State also
presented testimony from Detective Kaminsky that (1) no
report was made to the police about this incident, and (2)
there were no police reports regarding any other
domestic violence incidents occurring between Sanders and
The State never argued that the helicopter incident showed
that Sanders was a violent or dangerous person. Indeed, the
State argued that the incident, if it occurred, was an
anomaly in Sanders' relationship with Susan, and that
everything between them appeared to be "fine." The
sole reference the State made to the incident stressed this
Ladies and gentlemen, [Sanders and Susan] both expressed a
desire to see each other. This was not a relationship the
defendant was in because Susan had forced him to be into it.
He wanted to be into it. He had a desire to marry her. The
only thing standing in his way was a lack of money. He
described his relationship with Susan as good. It was a
little rocky because they had financial concerns at that
time. It's also important, and I bring up the point of
Bianca Smallwood because the defense brought her up in their
first close. And what she said is that when they were
together, they appeared fine, with the exception of this
whole choking incident, with what she describes as really a
mutual combat issue, that Susan had provoked the defendant,
and he reacted. And she talks about how the defendant cared
Sanders also argues that the State placed his future
dangerousness at issue by emphasizing the brutality of the
murder. We disagree.
The prosecutor never suggested that based on the brutality of
the murder, Sanders posed a danger to society. Rather, in
describing the murder and Sanders' conduct as
"horrific," "cold," "ruthless,"
"callous," and "mean," the prosecutor
argued for retribution, focusing the jury's attention on
the "moral outrage" and "affront to
humanity" of Sanders' conduct. See Gregg v.
Georgia, 428 U.S. 153, 183-84 & nn.29-30 (1976). In
her closing argument the prosecutor emphasized that Sanders
deserved the death penalty as punishment for beating Schala
Now, in closing, I would like to talk to you about what
you're being asked to do here today. In society, we often
want to believe there has to be something mentally wrong with
someone who could commit such an act of violence against such
an innocent person, a little child. Wouldn't we want to
believe that a person must have had a horrible childhood to
cause them to commit such a terrible act? That there must
have been some event in that person's life that led them
to brutalize a human being. But, ladies and gentlemen, as Dr.
Seward alluded to, sometimes people just do bad
things. And that's what the evidence in this case
This defendant is a normal, intelligent person. He
had a normal upbringing. You have seen a binder full of
memories from birth into adulthood . . . .
But Schala's death could have been prevented.
All it would have required is that he stopped. When he saw
those bruises forming on her body, that he stopped. And he
chose not to. And for that, ladies and gentlemen, he
does deserve the ultimate punishment, the death penalty.
Ladies and gentlemen, the State is asking you to impose a
just sentence for what this defendant did to Schala.
(emphasis added). See Commonwealth v. Chmiel, 889
A.2d 501, 537-38 (Pa. 2005) (finding prosecutor's
arguments focusing on the brutality of the murders, and
imposing death as retribution for the inhumanity of the
murders, as opposed to defendant's propensity for
violence, did not place future dangerousness at issue).
In contrast, in many cases finding future dangerousness was
at issue, the prosecutor argued that the defendant's
propensity for violence was so great that, if released from
prison, he would pose a continuing threat to society.
See, e.g., Kelly, 534 U.S. at 249-50 (during his
closing argument, the prosecutor compared the defendant to a
serial killer, stating that he was dangerous and
unpredictable, and referred to him as "the butcher of
Batesburg," "Bloody Bill," and "Billy the
Kid," and at the end of his argument, remarked that
"murderers will be murderers [and the defendant] is the
cold-blooded one right over there"); Simmons,
512 U.S. at 157; id. at 175-76 (O'Connor, J.,
concurring) (holding that future dangerousness was at issue
where the State argued that the defendant was "a vicious
predator who would pose a continuing threat to the
community," the jury had to decide "what to do with
[defendant] now that he is in our midst," and
"[y]our verdict should be a response of society to
someone who is a threat. Your verdict will be an act of
self-defense"); Hulsey, 243 Ariz. at 395
¶¶ 130-31 (holding the state placed the
defendant's future dangerousness at issue when, during
the penalty phase, "the prosecutor discussed
[defendant's] proclivity throughout his life to get into
fights, stating, '[h]e just gets angry and wants to beat
people up, whether he is high or not,' and, '[i]f you
don't agree with him, he will explode, '" he
"recounted testimony that [defendant] 'likes to see
when you put a firecracker in a cat's anus just so you
can see the entrails flow out as the cat dies, '"
and the "prosecutor repeatedly mentioned how an expert
who contacted [defendant] was afraid of him and felt
threatened," and "elicited testimony that when
previously incarcerated, [defendant] had choked a fellow
inmate and threatened the inmate and other inmates who saw
Accordingly, based on the record in this case, Sanders'
future dangerousness was not at issue, nor was it a logical
inference from the evidence. Therefore, no Simmons
of Juror 19
Sanders claims that he was deprived of a jury of twelve
qualified jurors because Juror 19, who was later empaneled as
the presiding juror, was a convicted felon and therefore
ineligible to serve on the jury. Juror 19 stated in his
written questionnaire that he had been "convicted of a
white-collar crime" in 2004. The juror later advised the
trial court during voir dire that his civil rights had been
restored. Sanders claims, however, that this ...