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State v. Valenzuela

Supreme Court of Arizona

September 25, 2018

State of Arizona, Appellee,
v.
Jose Alejandro Acuna Valenzuela, Appellant.

          Appeal from the Superior Court in Maricopa County The Honorable Peter C. Reinstein, Judge No. CR2011-140108

          Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor General Lacey Stover Gard, Chief Counsel, Jeffrey L. Sparks (argued), Assistant Attorney General, Capital Litigation Section, Phoenix, Attorneys for State of Arizona

          Bruce Peterson, Office of the Legal Advocate, Kerri L. Chamberlin (argued), Colin F. Stearns, Deputy Legal Advocates, Phoenix, Attorneys for Jose Alejandro Acuna Valenzuela

          VICE CHIEF JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF JUSTICE BALES and JUSTICES PELANDER, TIMMER, BOLICK, and GOULD and JUDGE JONES [*] joined.

          OPINION

          BRUTINEL, VICE CHIEF JUSTICE

         ¶1 This automatic appeal arises from Jose Alejandro Acuna Valenzuela's ("Acuna") convictions and death sentence for the murder of Edgar S. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. §§ 13-4031 and 13-4033(A)(1).

         ¶2 In August 2011, Edgar S. and his girlfriend Perla M. went to a local Baskin-Robbins to get ice cream. They saw Acuna, who had previously been Edgar's friend. In 2008, Edgar had testified against Acuna during a criminal proceeding in which Acuna was sentenced to prison. Thereafter, their relationship soured.

         ¶3 When Acuna saw the couple inside Baskin-Robbins, he looked at them twice, his eyes widened, and he walked toward an exit door and yelled at Edgar, "I told you I didn't want to [expletive] see you." Once outside, Acuna saw Sandra P., a friend from high school, who was running errands in the same shopping complex. Acuna appeared upset while talking with Sandra, saying (about Perla) that she "told me that she hadn't seen him, that she wasn't talking to him no more," and she "lied to me," and (about Edgar) that "I did prison time for him." Sandra offered to help Acuna, reassuring him that she would support him in a fight against Perla.

         ¶4 After Edgar and Perla left the Baskin-Robbins and got into Perla's car, Edgar said, "Baby, he's coming." Over her right shoulder, Perla saw Acuna running and firing a gun at her vehicle. Bullets shattered the car window and struck Edgar. Edgar tried to get out of the vehicle while Acuna continued to run behind the car and shoot at Perla. Acuna then left the scene in Sandra's car.

         ¶5 Edgar sustained multiple bullet wounds, and Perla was hit in her upper back. She survived, ultimately undergoing two surgeries. Edgar died from his injuries.

         ¶6 Acuna was convicted after trial of first degree murder, attempted first degree murder, discharge of a firearm at a structure, and misconduct involving weapons. The jury found two aggravating circumstances: (1) that Acuna had been previously convicted for another serious offense (the attempted first degree murder of Perla); and (2) that he murdered Edgar in retaliation for testimony in a court proceeding. A.R.S. § 13-751(F)(2), (F)(12). Considering these factors and the mitigation evidence, the jury decided that Acuna should be sentenced to death for Edgar's murder. For the other convictions, the trial court imposed concurrent prison sentences, the longest for 15.75 years, to be served consecutively to the death sentence.

         DISCUSSION

         A. Misconduct-Involving-Weapons Charge

         ¶7 Acuna contends the trial court erred by failing to sua sponte sever the misconduct-involving-weapons charge, thus permitting the jury to hear that he was a convicted felon. Because Acuna did not object at trial, we review only for fundamental error. See State v. Laird, 186 Ariz. 203, 206 (1996).

         ¶8 Before trial, the State noticed its intent to present evidence of Acuna's previous felony conviction and Edgar's prior testimony against Acuna as other-act evidence showing motive. See Ariz. R. Evid. 404(b); State v. Ferrero, 229 Ariz. 239 (2012). At trial, the State introduced testimony that Edgar had "testified in a previous criminal matter against" Acuna, that Acuna was not legally entitled to possess a firearm because "[h]e was a prohibited possessor [and h]e had a prior felony conviction," that the felony conviction was for a "lesser charge," and that he had been sentenced to the Department of Corrections for 2.25 years. A minute entry from the previous trial, as well as a Maricopa County Superior Court affidavit (stating there was no court record showing that Acuna's right to possess a firearm had been restored following his felony conviction), and redacted copies of Acuna's prison records were all admitted.

         ¶9 Under the version of Rule 13.4(a) in effect at the time of trial, the trial court was authorized, but not required, to order a severance of offenses on its own initiative when "necessary to promote a fair determination of the guilt or innocence of any defendant of any offense." Ariz. R. Crim. P. 13.4(a) (2011) (emphasis added).[1] But, "[t]he right to severance is waived if the defendant fails to timely file and renew a proper motion for severance." Ariz. R. Crim. P. 13.4(c).

         ¶10 The trial court did not err, much less commit fundamental error, in failing to sua sponte order severance. Acuna argues the trial court had a duty to protect his constitutional rights, relying upon State v. Torres, 206 Ariz. 52, 58 ¶ 18 (App. 2003), vacated in part, 208 Ariz. 340 (2004). Torres, however, is distinguishable as it addressed a defendant's right to competent counsel, a right especially "vulnerable to violation." See State v. Longoria, 123 Ariz. 7, 10 (App. 1979) (stating that Rule 13.4 "does not require the court to order a severance; it only gives it the discretion to do so on its own initiative").

         ¶11 Acuna also argues that the trial court erred by allowing evidence of his prior felony conviction as extrinsic evidence and by permitting the State to refer to the conviction as a "less serious offense." We review a trial court's evidentiary rulings for an abuse of discretion but interpret the Arizona Rules of Evidence de novo. State v. Steinle, 239 Ariz. 415, 417 ¶ 6 (2016).

         ¶12 Arizona Rule of Evidence 404(b) provides that evidence of other acts is admissible to show "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." To introduce such evidence, a proper purpose must be shown under Rule 404(b), it must be relevant under Rule 402, the probative value of the evidence must not be substantially outweighed by its potential prejudicial effect under Rule 403, and the court must give a proper limiting instruction if requested under Rule 105. State v. Hulsey, 243 Ariz. 367, 381-82 ¶ 45 (2018); see also State v. Mott, 187 Ariz. 536, 545 (1997).

         ¶13 The trial court did not err in admitting the sanitized evidence. Proof of Acuna's prior conviction was relevant to prove motive under Rule 404(b), as it was directly related to his statement, immediately before the murder, that he "did prison time for [Edgar]." In addition, the trial court sanitized the conviction by allowing reference only to a "less serious offense."

         ¶14 The trial court's order supporting this ruling was brief. It stated that the court conducted "a Rule 403 analysis" and found "that the prejudicial effect of telling the jury" about the specific charge on which Acuna was previously convicted "outweigh[ed] its probative value." Although we encourage trial courts to make their 404(b) findings on the record, the record here nevertheless supports the court's ruling. See State v. Jeffers, 135 Ariz. 404, 417 (1983) (stating we will affirm a trial court's Rule 404(b) rulings when "supported by the facts before the court"); cf. State v. Escalante-Orozco, 241 Ariz. 254, 278 ¶ 77 (2017) ("Before admitting [Rule 404(b)] evidence, the court must find (1) clear and convincing proof that the defendant committed the act; (2) it is offered for a proper purpose under Rule 404(b); (3) it is relevant to prove that purpose; and (4) its probative value is not substantially outweighed by the danger of unfair prejudice." (emphasis added)).

         B. Voir Dire Issues

         1. Limiting voir dire

         ¶15 Acuna argues the trial court arbitrarily limited voir dire, impairing his rights to a fair and impartial jury. We review a trial court's decision to impose a time limit on voir dire for an abuse of discretion. Escalante-Orozco, 241 Ariz. at 271 ¶ 33.

         ¶16 By rule, the trial court "shall control the voir dire examination and shall conduct a thorough oral examination of prospective jurors. . . . Upon the request of any party, the court shall permit that party a reasonable time to conduct a further oral examination of the prospective jurors." Ariz. R. Crim. P. 18.5(d). To prevail, Acuna must "demonstrate not only that the voir dire examination was inadequate, but also that . . . the jury selected was not fair, unbiased, and impartial." State v. Moody, 208 Ariz. 424, 451 ¶ 95 (2004); see also Escalante-Orozco, 241 Ariz. at 271 ¶¶ 33-34 (determining that despite initial time limit, trial court posed appropriate follow-up questions to jurors and defendant failed to demonstrate that the seated jury "was not fair, unbiased, and impartial").

         ¶17 Here, the trial court stated it would provide "approximately 20 minutes" per side for the small panel voir dire. But, when defense counsel objected to the time restriction, the court asked if more time was needed and requested feedback from both parties. Later that day, the court provided defense counsel with additional time to question prospective Juror 22 following an objection, until counsel stated, "I have no further questions." The court then proceeded with two full pages of its own follow-up on prospective Juror 22.[2] The trial court curtailed questioning of prospective Juror 100, [3] but then followed up with its own questions to inquire whether that juror could follow the law. Defense counsel twice generally objected to the time limit during voir dire, and the trial court twice enforced a time limit upon defense counsel. But, on several other occasions, the trial court allowed additional time when requested.

         ¶18 Although the court set time limitations, it was flexible with granting extra time when requested or by posing its own follow-up questions, see Escalante-Orozco, 241 Ariz. at 271 ¶¶ 33-34, and appropriately modified the time limit throughout the process.

         ¶19 Acuna objected to the time limits during voir dire; however, he has not demonstrated how the jury was biased, unfair, or partial in light of the general time limit imposed. Furthermore, because of the trial court's general flexibility in not adhering to the time limit by granting more time and asking follow-up questions on multiple occasions, the court did not abuse its discretion in allowing voir dire for a "reasonable time" under Rule 18.5(d), and thus no error occurred.

         2. Juror rehabilitation and strikes for cause

         ¶20 Acuna claims that prospective Jurors 23, 100, 122, and 140 (seated Jurors 4, 9, 10, and 11, respectively) expressed a predisposition for the death penalty and inability to consider mitigation. Acuna argues the court erred in failing to strike these jurors for cause. Acuna also asserts that the trial court violated A.R.S. § 21-211 by refusing to strike prospective Juror 202 (later, empaneled Juror 16) "despite her close relationship with a member of the Maricopa County Attorney's Office."[4]

         ¶21 This Court reviews a trial court's refusal to strike a juror for abuse of discretion. State v. Lavers, 168 Ariz. 376, 390 (1991). "[T]he party asserting that the trial court erred in denying a motion to strike a juror for cause has the burden of establishing that the juror is incapable of rendering a fair and impartial verdict." Id. Because Acuna objected at trial, we review any error for harmlessness. See State v. Henderson, 210 Ariz. 561, 567 ¶ 18 (2005).

         ¶22 As an initial matter, the State argues that because Acuna did not use his peremptory strikes on these jurors, he failed to preserve this issue for review, citing State v. Eddington, 226 Ariz. 72 (App. 2010), aff'd on other grounds by 228 Ariz. 361 (2011), and State v. Rubio, 219 Ariz. 177 (App. 2008). Specifically, the State argues that this Court should adopt the reasoning of the court of appeals that "in order to preserve an appellate claim that a trial court erred in failing to strike a venireperson for cause, a defendant must use a peremptory strike to remove that person from the panel." Eddington, 226 Ariz. at 79 ¶ 20.

         ¶23 We decline to do so, as the situations contemplated in Eddington and Rubio are inapposite. Seven of Acuna's ten peremptory strikes were used on jurors who had been unsuccessfully challenged for cause. Even if Acuna had used his remaining three peremptory strikes to remove the jurors he complains of here, there would still be two remaining trial jurors whom he tried to remove for cause. Rubio's reasoning that, through peremptory strikes, "any and all unfair or biased jurors will be removed for cause," 219 Ariz. at 181 ¶ 12, does not account for this situation, and we therefore decline to apply such a rule in this context.

         ¶24 With regard to the individual jurors, a juror's preconceived notions or opinions about a case do not necessarily render that juror incompetent to fairly and impartially sit on the case. State v. Martinez, 196 Ariz. 451, 459 ¶ 28 (2000) (citing State v. Poland, 144 Ariz. 388, 398 (1985), affd on other grounds sub nom. Poland v. Arizona, 476 U.S. 147 (1986)). "If a juror is willing to put aside his opinions and base his decision solely upon the evidence, he may serve." Id. The trial court can rehabilitate a challenged juror through follow-up questions to assure the court that he can sit as a fair and impartial juror. Martinez, 196 Ariz. at 459 ¶ 28. The trial court is "in the best position to 'assess the demeanor of the venire, and of the individuals who compose it.'" State v. Naranjo, 234 Ariz. 233, 239 ¶ 12 (2014) (quoting Uttecht v. Brown, 551 U.S. 1, 9 (2007)).

         ¶25 Here, both sides and the trial court conducted extensive questioning of the challenged jurors. Prospective Juror 23 initially stated he was leaning toward the death penalty. But when defense counsel revisited this statement and asked whether the juror would favor the death penalty after a guilty verdict, the juror replied that he would not, because mitigation would still need to be shown. The trial court directly asked whether prospective Juror 23 could keep an open mind in the penalty phase if the defendant were found guilty of first degree murder, to which the juror replied, "Yes." Prospective Juror 23 was rehabilitated and the trial court did not abuse its discretion in denying a strike for cause.

         ¶26 Prospective Juror 100 initially stated that she would "consider" the death penalty for intentional, premeditated murder, but would likewise consider a life sentence for the same act. She expressed some confusion about the overall process, but indicated she understood the clarifications provided. She also stated, "I know that I can be fair."

         ¶27 Furthermore, the trial court twice asked her, in detail, if she could follow the instructions at each stage of the process. She replied "Yes," and "I believe I can." Juror 100 was adequately rehabilitated, and the trial court did not abuse its discretion in refusing to strike her for cause. Cf. Martinez, 196 Ariz. at 458-59 ¶ 27 (finding juror rehabilitated who responded to judge that "I think I can be fair").

         ¶28 Upon initial questioning, prospective Juror 122 indicated a potential inclination for the death penalty if the death "wasn't a weird freak accident." But, following defense counsel's explanation of the different phases of the trial, the juror stated he could "consider a life penalty." Prospective Juror 122 also stated that he wanted to "have everything laid out before [he] ma[de] any kind of decision like that," and would not go into the mitigation phase leaning toward imposing the death penalty. Furthermore, although the trial judge did not question Juror 122 to require him to reconcile his views, neither did defense counsel, despite having the opportunity (choosing instead to ask questions on mitigation and whether he would be swayed by fellow jurors). Cf. Smith, 215 Ariz. at 231 ¶ 43 (stating that counsel must have "sufficient opportunity to determine whether a particular juror would automatically impose the death penalty upon a guilty verdict"). Prospective Juror 122 was adequately rehabilitated and the trial court did not abuse its discretion.

         ¶29 Prospective Juror 140 initially stated he would automatically impose the death penalty for premeditated first degree murder. Following this statement, the court and counsel conducted an extensive voir dire of Juror 140. The juror expressed confusion at certain points throughout questioning; however, when defense counsel asked, "[I]f you listen to the aggravation and you listen to the mitigation you say that aggravation is not substantial to me your vote would have to be life?" the juror replied, "Right." Defense counsel moved to strike this juror for cause based on lack of understanding, which the trial court denied.

         ¶30 In searching for an impartial jury, the "quest is for jurors who will conscientiously apply the law and find the facts." Wainwright v. Witt, 469 U.S. 412, 423 (1985); see also Franklin v. Anderson, 434 F.3d 412, 422 (6th Cir. 2006) (finding a juror was not impartial "because she demonstrated that she could not comprehend the legal standard that she was supposed to apply"). In State v. Hoskins, this Court determined that although a challenged juror "exhibited an initial, fundamental misapprehension" of burdens of proof, she responded affirmatively to follow-up questioning about understanding the law. 199 Ariz. 127, 140 ¶ 44 (2000), supplemented, 204 Ariz. 572 (2003). Although the juror here did not respond in the same affirmative manner as the juror in Hoskins, we defer to the decision of the trial judge who actually heard the testimony and observed the juror's demeanor. The trial judge denied Acuna's motion to strike this juror for cause, indicating that he thought the juror understood the process sufficiently to serve as a fair and impartial juror. This juror was rehabilitated, and the trial court did not abuse its discretion in declining to strike him.

         ¶31 During voir dire, prospective Juror 202 openly admitted to a close friendship with a prosecutor in the Maricopa County Attorney's Office, but stated she thought it would "more likely than not" be irrelevant to her ability to be fair and impartial in this case. When answering questions from both parties, she also stated she would "[absolutely" be open to imposing a life sentence, "[b]ecause life is precious," later stating that "[e]very life is precious. Absolutely" - an assertion which she applied to everyone in the courtroom. Defense counsel sought to remove her for cause, arguing she never stated that she could put her friendship aside; however, the trial court denied the strike for cause.

         ¶32 Any person who is "interested directly or indirectly in [a] matter" is disqualified from sitting on a jury in that case, as are those who are "biased or prejudiced in favor of or against either of the parties." A.R.S. § 21-211(2), (4); see also State v. Eddington, 228 Ariz. 361, 362 ¶ 1 (2011). But, a "juror's assurances of impartiality need not be couched in absolute terms." Hoskins, 199 Ariz. at 139 ¶ 37; see also id. at 140 ¶ 42, 141 ¶ 48 (concluding that a juror responding "I believe so" to whether he could put aside sympathy for the victim sufficed to assure the trial judge that he could remain fair and impartial). Furthermore, a juror who knows some of the people involved in a case is not automatically barred from serving on a jury. State v. Hill, 174 Ariz. 313, 319 (1993). Although this is a close question, particularly in light of Juror 202's subsequent conduct (discussed below, infra ¶¶ 51-64), prospective Juror 202's answers did not reflect an inability to decide the case fairly and impartially. The trial court did not abuse its discretion in denying the motion to strike this juror.

         C. A.R.S. § 13-751(F)(12)

         ¶33 The (F)(12) aggravator, § 13-751(F)(12), provides: "The defendant committed the offense to prevent a person's cooperation with an official law enforcement investigation, to prevent a person's testimony in a court proceeding, in retaliation for a person's cooperation with an official law enforcement investigation or in retaliation for a person's testimony in a court proceeding." Acuna argues (1) that this aggravator violates the Eighth and Fourteenth Amendments to the United States Constitution by not adequately channeling the sentencer's discretion with clear, objective standards; (2) that his jury subsequently lacked sufficient guidance in interpreting the (F)(12) factor; and (3) that the (F)(12) aggravating factor requires a singular motivation or, in the alternative, that the instruction as given "permitted the jury to make a finding based upon a correlating event."

         ¶34 We review constitutional and "purely legal issues" de novo. State v. Moody, 208 Ariz. 424, 445 ¶ 62 (2004); see also State v. Zaragoza, 221 Ariz. 49, 53 ¶ 15 (2009) ("[W]e review de novo whether a jury instruction correctly states the law . . . ."). We also review issues of statutory construction de novo, construing statutes to preserve their constitutionality, if possible. See State v. Hulsey, 243 Ariz. 367, 423 ¶ 53, 426 ¶ 67 (2018).

         ¶35 At the close of the aggravation phase, the trial court agreed with Acuna's request to truncate the wording of the (F)(12) aggravating factor so that the jury instruction applied only to the factual situation at hand. The jury instruction read: "The Defendant committed the offense in retaliation for a person's testimony in a court proceeding." Acuna argued in his aggravation-phase closing that retaliation must be the sole reason for the murder in order for the aggravator to apply.

         ¶36 During deliberations, the jury asked the following question: "We would like clarification regarding the second aggravating circumstance. 'The defendant committed the offense in retaliation for a persons [sic] testimony . . .' Does this need to be the only reason? Most of the reason? A portion of the reason? 100% of the reason?" The parties could not agree on a supplemental instruction, so the trial court returned the jury's note with the following reply: "Please refer to your jury instructions and to the evidence presented to answer the above question." The jury ultimately returned a verdict finding the (F)(12) (and the uncontested (F)(2) aggravator) proven.

         ¶37 An aggravator must meet two criteria to be constitutional: (1) the circumstance must apply to only a subclass of defendants convicted of a murder, and (2) the circumstance must not be overly vague. State v. Hausner, 230 Ariz. 60, 82 ¶ 99 (2012) (citing Tuilaepa v. California, 512 U.S. 967, 972 (1994)). With respect to vagueness, "a factor is not unconstitutional if it has some common-sense core of meaning . . . that criminal juries should be capable of understanding." Tuilaepa, 512 U.S. at 973 (internal quotation marks omitted).

         ¶38 The (F)(12) aggravator cannot apply to every first degree murder, and instead applies only to a particular subset of circumstances. Stated differently, not every first degree murder is committed to retaliate against or prevent a person's adverse trial testimony or cooperation in a law-enforcement investigation. The instruction provided to the jury here, as an excerpt of the full statutory provision, narrows the subclass even further, to only those defendants convicted of first degree murder of persons who testified against them in a previous court proceeding. Both the statutory provision and the provided jury instruction sufficiently narrow the aggravator to apply only to a subclass of defendants in accordance with the first of the two required criteria.

         ¶39 The (F)(12) aggravator also contains a common-sense core of meaning. The jury was asked to determine whether Acuna murdered Edgar "in retaliation for [Edgar's] testimony in a court proceeding." § 13-751(F)(12). "Retaliate" generally means "to repay (as an injury) in kind," or "to return like for like; esp: to get revenge." Retaliate, Merriam-Webster's Collegiate Dictionary (11th ed. 2003). Unlike "heinous" or "cruel," "retaliation" possesses a core meaning that an ordinary person is capable of understanding. To that end, the jury note from deliberations did not indicate a lack of understanding or confusion as to what "retaliation" meant, but whether the retaliation was required to be the only possible reason for the murder. The language of the (F)(12) aggravator sufficiently channels the sentencer's discretion and neither it, nor the provided jury instruction, was unconstitutionally vague or overbroad.

         ¶40 Acuna's third argument regarding the (F)(12) aggravator challenges the statutorily required causal relationship between the aggravator and the subsequent murder. We previously addressed the (F)(12) aggravator in State v. Miller, where the defendant "made several statements that he wanted to kill [the victims] because of their cooperation with the arson investigation," and where "[h]e began planning and taking steps to carry out the murders shortly after he was indicted for arson." 234 Ariz. 31, 45 ¶ 56 (2013).

         ¶41 Here, the pertinent events parallel the occurrences in Miller. Like the defendant's statements about the victims in Miller, Acuna made statements-indeed, immediately before the murder-about doing prison time for Edgar and not wanting to ever see him again. Although longer than the timeframe in Miller, here sixteen months, Acuna murdered Edgar within a relatively brief period following his release from prison.

         ¶42 We also find § 13-751(F)(5) and related cases instructive in determining the causal relationship for the (F)(12) aggravator. Section 13-751(F)(5) establishes Arizona's "pecuniary gain" aggravator, which the state may allege when "[t]he defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value." We have stated that pecuniary gain need not be the only motive for the (F)(5) aggravator to apply. See, e.g., State v. Martinez, 218 Ariz. 421, 435 ¶ 66 (2008) ("Pecuniary gain . . . need only be a motive for the murder, not the sole motive."); State v. Kayer, 194 Ariz. 423, 433 ¶ 33 (1999) ("A financial motive need not be the only reason the murder was committed for the pecuniary gain aggravator to apply."). Furthermore, the state "must establish that 'pecuniary gain was a motive, cause, or impetus for the murder and not merely the result.'" State v. Garcia, 224 Ariz. 1, 20 ¶ 91 (2010) (emphases added) (quoting State v. Canez, 202 Ariz. 133, 159 ¶ 91 (2002), superseded by rule on other grounds).

         ¶43 The (F)(5) and (F)(12) aggravators both refer to a defendant's potential motivation, rather than to some set of circumstances surrounding the defendant, victim, or crime (e.g., age of those involved, status of defendant, manner of murder), and the language of both statutory provisions requires a clear causal connection. Compare § 13-751(F)(5) ("as consideration"; "in expectation"), with (F)(12) ("in retaliation"). Like the (F)(5) statutory text, nothing in the language of (F)(12) requires the state to establish that the defendant's sole motivation was retaliation.

         ¶44 Furthermore, a clear causal connection, and not just a "correlating event," exists here. See State v. Ring, 204 Ariz. 534, 560 ¶ 76 (2003) ("The state must establish the connection between the murder and [pecuniary gain] motive through direct or strong circumstantial evidence."). See also Miller, 234 Ariz. at 45 ¶¶ 55-56. The statute does not require retaliation to be the sole motive, and, while the State must establish a clear causal connection between the motive and the murder, it did so here. Supra ¶ 41. See also Miller, 234 Ariz. at 45 ¶¶ 55-56. The trial court did not err in declining to provide further jury instructions.

         D. Trial Court Statement on Witness Testimony

         ¶45 Acuna argues that the trial court improperly commented upon evidence presented to the jury, denying him a fair trial and his right, under the Arizona Constitution, to independent jury evaluation of the evidence. See U.S. Const. amends. V, VI, ...


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