from the Superior Court in Maricopa County The Honorable M.
Scott McCoy, Judge No. CR2010-048824-001
Brnovich, Arizona Attorney General, O.H. Skinner, Solicitor
General, Lacey Stover Gard, Chief Counsel, Capital Litigation
Section, Tucson, Jeffrey L. Sparks (argued), Ginger Jarvis,
Assistant Attorneys General, Phoenix, Attorneys for State of
J. Haas, Maricopa County Public Defender, Mikel Steinfeld
(argued), Rena P. Glitsos, Kevin Heade, Deputy Public
Defenders, Law Office of the Public Defender, Phoenix,
Attorneys for James Clayton Johnson
JUSTICE BRUTINEL authored the opinion of the Court, in which
VICE CHIEF JUSTICE TIMMER and JUSTICES BOLICK, GOULD, LOPEZ,
BALES (Retired), and JUDGE MCMURDIE [*] joined.
BRUTINEL CHIEF JUSTICE.
This automatic appeal arises from James Clayton Johnson's
convictions and death sentence for the murder of Xiaohung Fu.
We have jurisdiction under article 6, section 5(3) of the
Arizona Constitution and A.R.S. §§ 13-4031 and
In December 2010, Johnson entered Taiwan Massage. Inside, he
encountered its owner, Fu. A struggle ensued, in which
Johnson bound and repeatedly stabbed Fu, killing her.
Next door, Marvin Pearce and Terry Weathers heard the
commotion. Weathers rushed to check on Fu. When he entered
Taiwan Massage, he found the front entrance in disarray.
Weathers shouted "hello" but got no response. After
a moment, Johnson exited the bathroom at the end of the hall,
drying his hands. Weathers asked where Fu was, and Johnson
replied she had cut herself and left in an ambulance.
Weathers then rushed next door to tell Pearce what he
witnessed and called for help. Weathers and Pearce then
watched as Johnson got into his truck and sped away. When
officers arrived on the scene, they found Fu dead. Fu had
been stabbed several times, including one laceration down her
back that penetrated through her lung and a near four-inch
cut into her neck. She also suffered superficial cuts across
Johnson fled to his girlfriend's apartment where he
washed his clothes and truck. Three days later, Johnson
robbed a Christmas tree lot and was arrested. (Johnson
pleaded guilty to armed robbery on December 21, 2010.) Based
on similarities between the two crimes, police linked Johnson
to the Taiwan Massage killing. Cell phone tower data and DNA
evidence substantiated Johnson's involvement. The State
charged Johnson with one count each of first degree murder,
kidnapping, and burglary in the first degree.
The State noticed its intent to seek the death penalty,
alleging the following aggravating circumstances: (1) Johnson
was previously convicted of a serious offense, A.R.S. §
13-751(F)(2); (2) Johnson committed the offense for pecuniary
gain, § 13-751(F)(5); (3) Johnson committed the offense
in an especially heinous, cruel, or depraved manner, §
13-751(F)(6); and (4) Johnson committed the offense while on
release, § 13-751(F)(7)(a), and while on probation for a
felony, § 13-751(F)(7)(b).
After trial, the jury found Johnson guilty on all counts and
found that the State had proved the (F)(2), (F)(6), and
(F)(7)(a) and (b) aggravating factors beyond a reasonable
doubt. After considering mitigation evidence, the jury found
that Johnson's proffered mitigation was not sufficiently
substantial to call for leniency and sentenced Johnson to
The A.R.S. § 13-751 Sentencing Scheme
Johnson argues that Arizona has not complied with its
constitutional obligation to legislatively narrow the class
of first degree murders that are eligible for the death
penalty. We review Johnson's constitutional challenge de
novo. See State v. Smith, 215 Ariz. 221, 228 ¶
In 2013, Johnson joined in litigation challenging
Arizona's death penalty for failing to sufficiently
narrow the class of first degree murders eligible for a
capital sentence. As part of the challenge, the defendants
requested but were denied an evidentiary hearing. The trial
court denied the defendants' consolidated challenge to
the constitutionality of Arizona's death penalty
statutes. That litigation eventually led to our decision in
State v. Hidalgo (Hidalgo I), 241 Ariz. 543, 549-52
¶¶ 14-29 (2017). There, we observed that United
States Supreme Court case law undermined the defendants'
position, id. at 550 ¶ 19, and affirmed the
constitutionality of Arizona's sentencing scheme,
id. at 550-52 ¶¶ 19-29. For the same
reasons we expressed in Hidalgo I, we reject
Johnson's argument here.
Johnson next argues the court erred when it failed to hold
the requested evidentiary hearing to allow defendants to
support their challenge. Johnson further contends that the
failure to hold an evidentiary hearing resulted in an
incomplete record likely to preclude Supreme Court review.
See Hidalgo v. Arizona (Hidalgo II), 138 S.Ct. 1054,
1057 (2018) (mem.) (Breyer, J., respecting the denial of
certiorari). We review the denial of an evidentiary hearing
for an abuse of discretion. See Hidalgo I, 241 Ariz,
at 548 ¶7.
As we noted in Hidalgo I, neither Hamdi v.
Rumsfeld, 542 U.S. 507 (2004), nor Mathews v.
Eldridge, 424 U.S. 319 (1976) requires an evidentiary
hearing. 241 Ariz, at 548-49 ¶¶ 10-13. And though
Johnson points to Justice Breyer's statement respecting
the denial of certiorari in Hidalgo II, Justice
Breyer neither implied that the Constitution requires an
evidentiary hearing in that case nor explained why an
expanded record would provide a more compelling basis for
granting review than the explicit finding that the
defendant's factual claims were true. See Hidalgo
II, 138 S.Ct. at 1057 (stating that the
"opportunity to develop the record through an
evidentiary hearing was denied" and, "[a]s a
result/' the record was undeveloped).
Further, though Johnson argues that denying remand and an
evidentiary hearing will condemn a future petition for writ
of certiorari to the United States Supreme Court to the same
fate as Hidalgo's, he can include the deprivation of the
hearing as a basis for review where Hidalgo chose not to. And
to the extent Johnson argues that Hidalgo was unable to
adequately present the issue to the Supreme Court, his
argument ignores that Hidalgo was allowed to supplement the
record on appeal with an expanded study of first degree
murder cases in Arizona, which found that one or more
aggravating circumstances were present in 856 of 866 murders.
See Hidalgo I, 241 Ariz, at 549 ¶ 17. The trial
court's denial of the evidentiary hearing was not an
abuse of discretion. See id. ¶ 13.
Separately, Johnson claims the trial court's rulings
violated his right to effective assistance of counsel because
his counsel's ability to challenge the death penalty was
impeded by the denial of the hearing. See Strickland v.
Washington, 466 U.S. 668, 686 (1984) (providing that the
right to counsel includes the right to effective assistance
of counsel). But counsel is not ineffective where he
requested, and the court denied, the exact hearing Johnson
complains was required.
Lastly, Johnson argues that Hidalgo I did not
address whether Arizona's constitution provides broader
protections or requires an evidentiary hearing. But Johnson
fails to develop the argument or offer any legal support as
to why the Arizona Constitution would mandate a different
result than that required by the Constitution of the United
States. We thus decline to consider it. See State v.
Bolton, 182 Ariz. 290, 298 (1995) (stating that an
argument not sufficiently developed on appeal is waived).
The A.R.S. § 13-751(F)(6) Aggravator
Unconstitutionality of the (F)(6) aggravator
Johnson argues that the (F)(6) especially cruel, heinous, or
depraved aggravator is unconstitutionally vague and that the
narrowing instructions were inaccurate and insufficient. We
review de novo both the constitutional challenge, see
Hidalgo I, 241 Ariz, at 548 ¶ 7, and whether the
jury instructions correctly stated the law, see State v.
Burbey, 243 Ariz. 145, 146 ¶ 5 (2017).
During the trial, the court instructed the jury as follows:
Definition of especially heinous, cruel, or depraved.
Concerning this aggravating circumstance, all first degree
murders are to some extent heinous, cruel, or depraved.
However, this aggravating circumstance cannot be found to
exist unless the State has proved beyond a reasonable doubt
that the murder was especially cruel, especially heinous, or
"Especially" means unusually great or significant.
The terms "especially cruel," or "especially
heinous or depraved" are considered separately.
Therefore the presence of any one circumstance is sufficient
to establish this aggravating circumstance. However, to find
that this aggravating circumstance is proven, you must find
that the [sic] especially cruel has been proven unanimously
beyond a reasonable doubt or that... especially heinous or
depraved has been proven unanimously beyond a reasonable
"Especially cruel." The term "cruel"
focuses on the victim's pain and suffering. If you find
the murder was committed in an especially cruel manner, you
must find that the victim consciously suffered physical or
mental pain, distress, or anguish prior to death. The
defendant must know or should have known that the victim
"Especially heinous or depraved." The term
"especially heinous or depraved" focuses ... upon
the defendant's state of mind at the time of the offense
as reflected by the defendant's words and acts. A murder
is especially heinous if it is hatefully or shockingly evil.
In other words, grossly bad. A murder is especially depraved
if it is marked by de[b]a[s]ement, corruption, perversion, or
The court then instructed on the State v. Gretzler
factors of gratuitous violence, helplessness, and
To determine whether a murder was especially heinous or
depraved, you must find that the State proved beyond a
reasonable doubt that the defendant exhibited such a mental
state at the time of killing by inflicting gratuitous
violence on the victim beyond that necessary to kill. To find
that the defendant inflicted gratuitous violence you must
find the defendant intentionally inflicted violence clearly
beyond what was necessary to kill the victim and that the
defendant continued to inflict this violence after the
defendant knew or should have known that the defendant had
inflicted a fatal injury.
To assist you in determining whether the murder is heinous or
depraved, you may consider the helplessness of the victim and
the senselessness of the murder. Helplessness means that the
victim is unable to resist. All murders are senseless because
of their brutality and finality, yet not all are senseless as
the term is used to distinguish those first degree murders
that warrant a death sentence from those that do not. Rather
a senseless murder is one that is unnecessary to achieve the
A finding of helplessness and/or senseless[ness] alone or
together is not sufficient to prove that a first degree
murder was heinous or depraved. A first degree murder is not
heinous or depraved unless you also unanimously find that the
defendant inflicted gratuitous violence on the victim beyond
that necessary to kill.
See 135 Ariz. 42, 51-53 (1983).
First, Johnson argues that the (F)(6) "especially
cruel" aggravator violates the Eighth and Fourteenth
Amendments to the United States Constitution because it does
not adequately limit the jury's discretion when deciding
whether to impose the death penalty. See Walton v.
Arizona, 497 U.S. 639, 652-53 (1990), overruled on
other grounds by Ring v. Arizona, 536 U.S. 584 (2002).
We have repeatedly rejected this argument in light of further
narrowing instructions, as were provided here. See, e.g.,
State v. Champagne, No. CR-17-0425-AP, 2019 WL 3676317,
at *15 ¶¶ 75-76 (Ariz. Aug. 7, 2019).
Johnson next argues the trial court's narrowing
instructions failed to provide sufficient guidance on whether
Johnson's murder exceeded the norm of first degree
murders. But again, we have repeatedly upheld jury
instructions like those given here. See, e.g., State v.
Chappell, 225 Ariz. 229');">225 Ariz. 229, 237 ¶ 27 & n.6 (2010).
Nevertheless, Johnson argues that while the Walton
Court affirmed Arizona's capital sentencing scheme on the
basis that the court- familiar with comparable first degree
murder cases - determined whether the crime was
"especially heinous, cruel or depraved," 497 U.S.
at 652-56, the jury has no such contextual knowledge, and
thus Walton's justification no longer applies.
Johnson further argues, citing State v. Mata (Mata
II), 185 Ariz. 319, 324 (1996), that it is impossible to
craft a formulaic set of narrowing instructions that can
sufficiently guide the jury without comparative review. But
we have previously rejected such challenges when the court
provides further narrowing instructions based on
Gretzler and State v. Knapp, 114 Ariz. 531,
543 (1977) (providing narrowing definitions for
"heinous," "cruel," and
"depraved"), see State v. (Ruben M.)
Johnson, 212 Ariz. 425, 431-32 ¶¶ 19-22 (2006)
(approving narrowing instructions and disavowing comparative
review), and Johnson provides no persuasive reason for us to
revisit those decisions here. See also Smith v.
Ryan, 823 F.3d 1270, 1293-95 (9th Cir. 2016) (approving
the narrowing construction employed in Gretzler).
Lastly, Johnson argues the "gratuitous violence"
instruction incorrectly focused the jury's attention on
the physical violence rather than Johnson's mental state.
But the instruction specifically required the jury to find
that Johnson "exhibited such a mental state" and
"intentionally" inflicted gratuitous violence,
thereby focusing the jury on Johnson's mental state and
intentions at the time he committed the crime. See State
v. Bocharski, 218 Ariz. 476, 494 ¶ 87
(2008) (requiring the state to "show that the defendant
continued to inflict violence after he knew or should
have known that a fatal action had occurred,"
because "[a] showing that a defendant continued to
inflict violence after he knew or should have known that a
fatal action had occurred provides essential evidence of the
defendant's intent to inflict gratuitous violence").
The instructions, when viewed as a whole, required that to
find the aggravator, the crime must be "unusually great
or significant," "especially cruel," or
"hatefully or shockingly evil," and therefore
correctly informed the jury that the crime must be above and
beyond the normal first degree murder. These instructions
sufficiently narrowed the (F)(6) aggravator. See State v.
Prince, 226 Ariz. 516, 532 ¶ 51 (2011) (upholding
jury instructions from vagueness challenge).
Arguing the (F)(6) aggravator during closing
Johnson next argues the trial court improperly prevented him
from arguing during closing that the State failed to meet its
burden in showing the murder was committed in an especially
cruel, heinous, or depraved manner. We review the trial
court's ruling on the scope of closing argument for an
abuse of discretion. State v. Pandeli, 215 Ariz.
514, 525 ¶ 30 (2007).
During closing, Johnson reiterated the burden of proof
required to prove the murder was "especially"
cruel, heinous, or depraved, and rhetorically asked whether
his crime was "unusually great or significant"
where the jury had "nothing ... to compare it to."
The State immediately objected.
Counsel is given wide latitude in closing argument to
"comment on the evidence and argue all reasonable
inferences therefrom." State v. Zaragoza, 135
Ariz. 63, 68 (1983). "Counsel may not, however, comment
on matters which were not introduced in evidence" or
"call matters to the attention of the jury that the jury
could not properly consider." Id. Just as we
have denied the consideration of proportional review in jury
instructions, supra ¶¶ 20-21, we decline
to allow closing arguments suggesting comparative review.
See State v. Bible, 175 Ariz. 549, 602 (1993)
(limiting closing argument to the evidence presented at
trial); State v. Greenway, 170 Ariz. 155, 171 (1991)
("The trial court's consideration of other similarly
situated defendants is inapposite to this
defendant's 'character or record', and does not
show any of the circumstances surrounding this
defendant's 'offense' that would call for a
sentence less than death.").
Thus, Johnson could not argue that his crime was not cruel,
heinous, or depraved by comparing it to other murders, nor
could he argue that the State did not meet its burden by
failing to introduce evidence of similarly situated
defendants. He was allowed, however, to argue from the
evidence that his crime was not especially cruel, heinous, or
depraved; and he was free to point to jury instructions and
elaborate upon them, based on the evidence in the record,
which he did here. See Prince, 226 Ariz, at 532
¶ 51 (allowing defendants to rely on "norm of
first-degree murder" instruction and argue it during
Sufficiency of (F)(6) evidence
Last, Johnson argues that there was insufficient evidence to
support the (F)(6) aggravator. Although the (F)(6) aggravator
is a single aggravating circumstance, it is written in the
disjunctive, and thus we will uphold the (F)(6) finding so
long as the murder was either especially cruel or especially
heinous or depraved. See State v. Gunches, 225 Ariz.
22, 25 ¶ 15 (2010). In reviewing Johnson's claim, we
"review the record to determine whether substantial
evidence supports the jury's finding, viewing the facts
in the light most favorable to sustaining the jury
verdict." State v. Roque, 213 Ariz. 193, 218
¶ 93 (2006). "Substantial evidence is such proof
that reasonable persons could accept as adequate and
sufficient to support [the finding of the aggravator] beyond
a reasonable doubt." Id. (internal quotation
marks omitted) (citation omitted).
After deliberation, the jury unanimously found that the
murder was especially cruel, inflicted gratuitous violence
beyond that necessary to kill, was senseless, and that the
victim was helpless.
The finding that the murder was especially cruel is supported
by the record. "A murder is especially cruel if the
victim consciously experiences physical abuse or mental
anguish before death." Bolton, 182 Ariz, at
311. In addition to the fatal neck wound, which involved at
least two cuts to Fu's neck, Johnson inflicted a deep
wound to her jaw, a gash to her ribs, and a long gash down
her back that collapsed her lung. See State v.
Boyston, 231 Ariz. 539, 555 ¶¶ 82-84 (2013)
(stating the jury could conclude, based on the number of stab
wounds, which included a 3.5-inch deep cut to the pericardium
and heart, that the victim suffered physical pain and mental
anguish while being stabbed to death and that the defendant
knew or should have known that). Though Johnson argues the
evidence did not establish that Fu was alive and conscious,
Dr. Keen testified that Fu was likely alive during the
attack: The angle of the back wound indicated Fu was
standing, the evidence established that there was a struggle,
and Fu suffered defensive hand wounds. See State v.
McCray, 218 Ariz. 252, 259 ¶¶ 31-33 (2008)
(finding consciousness where the expert concluded, based on
the nature of the victim's injuries and condition of the
apartment, that a struggle probably occurred).
Johnson next argues the murder was not especially cruel
because there was no evidence that he inflicted pain and
suffering in a wanton, insensitive, or vindictive manner.
Johnson argues the infliction of pain "in a wanton,
insensitive, or vindictive manner" focuses on the
defendant's state of mind and that there was no evidence
that he committed the crime as revenge or to inflict harm,
pain, or with no regard for the victim's pain. Our
caselaw defeats this argument. In State v. Stokley,
we stated that "[c]ruelty focuses on the victim."
182 Ariz. 505, 517 (1995) (contrasting that
"[h]einousness and depravity" go to the
"mental state and attitude" of the defendant
"as reflected by his words or actions" (quoting
State v. Brewer, 170 Ariz. 486, 502 (1992))). The
evidence sufficiently supports the jury's finding of
The evidence also supports a finding that the murder was
committed in an especially heinous or depraved manner. The
state may prove the murder was especially heinous or depraved
by establishing that the defendant inflicted gratuitous
violence. Gunches, 225 Ariz, at 25 ¶ 15. A
murder involves gratuitous violence when the defendant uses
violence beyond that necessary to kill. See
Gretzler, 135 Ariz, at 52. To prove gratuitous violence,
the state must first show that the defendant did "use
violence beyond that necessary to kill."
Bocharski, 218 Ariz, at 494 ¶ 85. Second, the
state must show "the defendant continued to inflict
violence after he knew or should have known that a fatal
action had occurred." Id. ¶ 87 (emphasis
removed). In addition to the multiple stab wounds, Johnson
carved on the victim's stomach. Based on the blood loss,
Dr. Keen confirmed that the stomach carving likely occurred
after the victim suffered the fatal neck wound, which itself
likely required multiple cuts and penetrated four inches into
Fu's neck. Even if Johnson did not know that the neck
wound was fatal, he should have.
Johnson argues that the instructions blurred the line between
mutilation and gratuitous violence. Even if true, the manner
of the murder and the stomach carving reflected mutilation.
See State v. Vickers, 129 Ariz. 506, 515 (1981)
(upholding the finding of depravity where the defendant
carved "Bonzai" on the victim's back after
killing him). Either Fu was alive when Johnson carved into
her stomach, establishing gratuitous violence, or she was
already dead, resulting in mutilation. See State v.
Bearup, 221 Ariz. 163, 173 ¶¶ 50-53 (2009)
(upholding the finding of heinous or depraved where the
defendant cut off the victim's finger after beating the
victim with an aluminum bat, reasoning that the removal of
the finger constituted either gratuitous violence or
Johnson does not challenge the jury's finding that the
murder was senseless and the victim helpless, but the
evidence nonetheless supports those
conclusions. The evidence established that Fu was
bound, and therefore helpless, and that her restraints
prevented her from interfering with Johnson's attempt to
rob her or flee, indicating the murder was senseless. See
State v. Ross, 180 Ariz. 598, 605 (1994) ("A murder
is senseless when it is unnecessary to allow the defendant to
complete his objective.").
The Lynch v. Arizona "Ineligible for
Johnson argues the court erred by initially failing to
instruct the jury that he was ineligible for parole. Johnson
further argues that, following the United States Supreme
Court's decision in Lynch v. Arizona (Lynch II),
136 S.Ct. 1818 (2016), the trial court erred by failing to
declare a mistrial. We review jury instructions de novo
"as a whole to ensure that the jury receives the
information it needs to arrive at a legally correct
decision." Prince, 226 Ariz, at 536 ¶ 77
(quoting State ex rel. Thomas v. Granville, 211
Ariz. 468, 471 ¶ 8 (2005)). We review a trial
court's decision whether to grant a mistrial for an abuse
of discretion. State v. Leteve, 237 Ariz. 516, 526
¶ 33 (2015).
Before trial, Johnson requested a jury instruction that he
was ineligible for parole, in accordance with Simmons v.
South Carolina, 512 U.S. 154 (1994). Under
Simmons, when future dangerousness is placed at
issue, the defendant has the right to a jury instruction that
he is ineligible for parole if the only alternative to a
death sentence is natural life. Id. at 162, 168-69.
Relying on our decision in State v. Lynch (Lynch I),
238 Ariz. 84, 103 ¶ 65 (2015), the trial court granted
Johnson's request to instruct the jury that parole was
not currently available but declined his request to inform
the jury that he was never eligible for parole since §
13-751 (A) authorized release in the form of executive
clemency. The court then instructed the jury that, among the
sentences imposable if it found Johnson guilty, was "a
life sentence with the possibility of parole after serving 25
On the second day of the penalty phase, the United States
Supreme Court issued Lynch II, reversed our decision
in Lynch I, and held that the possibility of
executive clemency did not justify refusing the
parole-ineligible instruction. 136 S.Ct. at 1819-20. Johnson
moved for a mistrial. The State responded that future
dangerousness was never placed at issue and that a curative
instruction could be given regardless. The court denied
After the penalty phase trial, the court instructed the jury
Defendant ineligible for parole. A defendant sentenced to
life without the possibility of release after [sic] 25 years
must serve the entire 25 years before the defendant can apply
for release. There is no automatic release after 25 years.
Arizona law does not provide for parole. The only form of
release for which defendant is eligible is executive
The trial court complied with Lynch II. It informed
the jury that Johnson was ineligible for parole and that the
only possibility for release was by executive clemency after
he served at least twenty-five years. The jury thus
"receive[d] the information it need[ed] to arrive at a
legally correct decision." Prince, 226 Ariz, at
536 ¶ 77.
Nevertheless, Johnson argues the post-Lynch II
instruction could not cure the court's original deficient
instruction because the jury repeatedly heard during voir
dire that Johnson was eligible for parole and the only way to
ensure his right to a fair trial was to declare a mistrial.
But" [d]eclaring a mistrial is an unusual remedy for
trial error and should not be resorted to unless justice
requires such a result." State v. White, 160
Ariz. 24, 33 (1989). The State neither raised nor argued
future dangerousness. Johnson does not point to any evidence
showing the jury was confused regarding the law, either
before or after the curative instruction. And during closing,
Johnson argued that the only alternative to a death sentence
was life in prison; the State did not argue otherwise.
After the issuance of Lynch II, the trial court
instructed the jury that Johnson was ineligible for parole
and that "release" meant only executive clemency;
we presume the jury followed those instructions. See
State v. Dann, 205 Ariz. 557, 570 ¶ 46 (2003). The
court did not abuse its discretion in denying Johnson's
motion for mistrial.
The Significant Impairment Instruction
Johnson argues the court's significant impairment
instruction reflected the standard established by the guilty
except insane ("GEI") instruction and that it,
therefore, imposed a higher burden than that required by the
§ 13-751(G)(1) mitigator. Because Johnson did not object
at trial, we review his claim for fundamental error only.
See State v. Velazquez, 216 Ariz. 300, 309 ¶ 37
(2007). An error is fundamental if it goes to the foundation
of the case, takes away from the defendant a right essential
to his defense, or is of such magnitude that the defendant
could not have possibly received a fair trial. State v.
Escalante, 245 Ariz. 135, 142 ¶ 21 (2018). To
prevail, a defendant must establish both that fundamental
error occurred and that it caused him prejudice (though
showing the former may establish the latter). Id. at
140-41 ¶¶ 13/16 (stating that "an error of
such a magnitude that a defendant could not possibly have
received a fair trial is always prejudicial" (internal
quotation marks omitted)).
Section 13-751(G)(1) provides mitigation when "[t]he
defendant's capacity to appreciate the wrongfulness of
his conduct or to conform his conduct to the requirements of
law was significantly impaired, but not so impaired as to
constitute a defense to prosecution." During the trial,
Johnson attempted to show that he was under the influence of
Xanax and possibly cocaine at the time of the murder. The
court instructed the jury as follows:
Significant impairment. It is a mitigating circumstance that
the defendant's capacity to appreciate the wrongfulness
of his conduct or to conform his conduct to the requirements
of law was significantly impaired but not so impaired as to
constitute a defense to prosecution. The defendant has the
burden of proving this mitigating circumstance by a
preponderance of the evidence.
"Significantly impaired" means that the defendant
suffered from mental illness, personality disorder or
substance abuse at or near the time of the offense that
prevented the defendant from appreciating the wrongfulness of
the conduct or conforming his conduct to the requirements of
The State concedes that limiting the definition of
"significantly impaired" to the defendant being
prevented from appreciating the wrongfulness of the
conduct was error, but argues the error is not prejudicial.
The jury instructions specifically noted that the burden was
not so high "as to constitute a defense to
prosecution." And the State did not argue that Johnson
was required to prove the impairment fully prevented
him from knowing the criminal act was wrong, but instead that
he was not so high on Xanax that he was unable to appreciate
the wrongfulness of his conduct. Indeed, the State argued
that impairment only referred to an "impact [on] his
ability to know right from wrong," and it argued that
the jury had heard how Johnson acted when he was actually
impaired - slurring his speech, being unable to stay awake -
but that on the day of the murder nobody described any such
impairment. Instead, the evidence showed that Johnson took
affirmative steps to conceal his role in the murder-Johnson
falsely claimed that Fu had cut herself, reversed his truck
when driving away to prevent his license plate from being
seen, and went to his girlfriend's apartment to clean his
truck and clothes - indicating that he knew his conduct was
Further, the court instructed the jury that it was "not
limited to the mitigating circumstances offered by the
defendant/' but must "also consider any other
information that you find is relevant in determining whether
to impose a life sentence so long as it relates to an aspect
of the defendant's background, character, propensities,
history or record or circumstances of the offense."
Johnson presented a large mitigation case. He called several
mitigation witnesses who testified that he was a student at
Columbine during the infamous school shooting, about his
history of substance abuse and a personality disorder, his
family love and support, his adoption, and other struggles.
Similarly, Johnson presented evidence of his behavior while
on drugs. Yet, the jury heard and considered Johnson's
mitigation and found it lacking when compared to the three
aggravating factors and the nature of the murder. Johnson was
not prejudiced by the instruction.
Prison Housing Conditions and Johnson's Right to
Johnson argues the court erred by allowing the State to
introduce evidence of prison housing conditions and to
comment on his exercise of the right to trial. We review the
court's rulings regarding the admissibility of evidence
for an abuse of discretion. State v. Gill, 242 Ariz.
1, 3 ¶ 7 (2017). "An error of law committed in
reaching a discretionary conclusion may, however, constitute
an abuse of discretion." State v. Wall, 212
Ariz. 1, 3 ¶ 12 (2006).
Prison housing conditions
Before trial, Johnson moved to admit his offers to plead
guilty as mitigating evidence, per Busso-Estopellan v.
Mroz, 238 Ariz. 553, 554-55 ¶¶ 5-7 (2015). The
State responded that it intended to rebut Johnson's plea
offers with evidence that the offers were conditioned on
receiving a life sentence and that prisoners serving such
sentences have better prison housing conditions than those on
death row. While Johnson agreed that the State could rebut
his plea offers by showing they were conditioned, he argued
that the prison housing evidence was irrelevant because he
was unaware of preferable prison housing conditions and the
State had no evidence showing he offered to plead guilty to
obtain them. The court granted Johnson's motion to admit
his plea offers, but deferred ruling on the scope of the
State's rebuttal until trial.
During trial, Johnson repeated his objection, filing a motion
to preclude the evidence. The State countered that it did not
"have to prove that this was the defendant's sole
motivation," but that "this is a man who's been
to [the Department of Corrections] twice" and thus was
"aware of classifications and movement systems and
numbering." The court denied Johnson's motion.
At trial, Johnson introduced his conditioned plea offers. In
rebuttal, the State presented the testimony of a Department
of Corrections administrator, who explained the potential
housing differences, based on custody levels, between an
inmate serving a life sentence and one serving a death
sentence. In her testimony, she described the
"privileges" and "incentives" a life
sentence inmate can receive as a result of potential lower
At the close of mitigation, Johnson allocuted. He apologized
for the murder, stated that he "would have pled guilty
to this first-degree murder as early as March of 2012,"
and asked for leniency.
In closing, the State argued:
And you never heard once, in the mitigation claim or the
defendant standing in front of you, that he only made a
conditional offer to plead guilty to the crimes. That
condition being you give me the sentence I want and I'll
Nothing stops a defendant from pleading guilty if that's
what they choose. But in this case, the defendant would only
plead guilty if he could get the least sentence available. Is
that truly admitting guilt and accepting responsibility, to
demand he get the least sentence available if convicted of
this crime? How worthy is that evidence when the defendant
slaps a condition on it?
And you heard from [the Department of Correction's
administrator] the possible benefits he can get with a
natural life sentence, that being within the first five years
and on a review period thereafter, being reduced all the way
down from maximum custody, to closed custody, to medium
custody, enjoying all of those privileges, freedoms and
benefits. In light of that evidence introduced to solely
rebut the defendant's claim of an offer of
responsibility, of an acceptance of responsibility, how
mitigating are those facts when compared to that defendant
would only plead guilty if the State gave him what he wanted?
In Busso-Estopellan, we held that the
"[a]cceptance of responsibility is a non-statutory
mitigating circumstance" and that defendant's plea
offer "is relevant because it tends to make his
acceptance of responsibility ... more probable." 238
Ariz, at 554-55 ¶ 67. We further stated that "the
court may exercise its discretion to determine how best to
admit the evidence," "may avert... confusion ... by
instructing the jury that the State was not required to
extend a plea offer," and "may permit introduction
of part of the offer letter." Id. at 555
Johnson argues that evidence of prison housing conditions is
irrelevant. See, e.g., People v. Quartermain, 941
P.2d 788, 807 (Cal. 1997) ("[E]vidence of the conditions
of confinement that a defendant will experience if sentenced
to life imprisonment without parole is irrelevant to the
jury's penalty determination because it does not relate
to the defendant's character, culpability, or the
circumstances of the offense."). The State argues that
it was permitted to include evidence of prison housing
conditions to rebut Johnson's plea offers by establishing
a motivation for pleading guilty other than remorse or
acceptance of responsibility. See People v. Ledesma,
140 P.3d 657, 724 (Cal. 2006) (finding nothing improper about
the prosecutor questioning defense witnesses about the
defendant's motive to plead guilty to rebut
defendant's claim that he pled guilty to accept
But the State presented no evidence that Johnson was aware of
the housing differences or that a difference in housing
conditions motivated his plea offer. The State thus failed to
prove the antecedent fact necessary to make the evidence
relevant and thus admissible.
And even if the State introduced evidence that Johnson knew
of the differences and made his plea offer based on those
differences, evidence of prison housing conditions would
still likely be inadmissible. The State may rebut the
motivation of the plea offers by showing that some motivating
factor compelled the plea offer other than remorse or an
acceptance of responsibility. Busso-Estopellan, 238
Ariz, at 554-55 ¶¶ 5-7, 10-11. But evidence of
prison housing conditions is only marginally probative of an
alternative motive for the plea offer and is likely
outweighed by the potential prejudice from the inference that
a defendant would receive enhanced living conditions if not
sentenced to death. See id. at 554 ¶ 6 (stating
that though "the Arizona Rules of Evidence do not apply
in the penalty phase, we are 'guided by fundamentally the
same considerations'" (quoting State v.
Guarino, 238 Ariz. 437, 439 ¶ 6 (2015)); see
also Guarino, 238 Ariz, at 441 ¶ 15 (noting that
unduly prejudicial evidence in the penalty phase may be
precluded, even where it would otherwise be relevant). The
trial court erred in denying Johnson's motion.
The State argues the error is nevertheless harmless. See
Escalante, 245 Ariz, at 144 ¶ 30 (stating that
under this standard the state must show "beyond a
reasonable doubt that the error did not contribute to or
affect the verdict or sentence" (internal quotation
marks omitted)). We agree.
Johnson did not object to the evidence's prejudicial
impact nor does he now argue that the evidence deprived him
of due process because it was unduly prejudicial. Cf.
Prince, 226 Ariz, at 534 ¶ 65 ("[T]he
Fourteenth Amendment's Due Process Clause prohibits . . .
evidence that 'is so unduly prejudicial that it renders
the trial fundamentally unfair.'" (quoting Payne
v. Tennessee, 501 U.S. 808, 825-26 (1991))). Even so, in
cross-examination of the Department of Corrections
administrator and closing, Johnson showed the differences in
housing conditions were minimal. Further, the State offered
evidence of the prison housing conditions for a limited
purpose-"to solely rebut the defendant's claim of an
offer of responsibility" (which was also motivated by
Johnson's desire to escape the death penalty). It did not
rely on the evidence of prison housing conditions to argue
that death was required because a life sentence would
otherwise reward Johnson and the evidence was cumulative to
the State's evidence that his plea offer was contingent
on his receiving a natural life sentence. Last, the jury
found significant aggravation in this case-the (F)(2),
(F)(6), and (F)(7)(a) and (b) aggravators. Based on the
foregoing, we conclude that even if the erroneously admitted
evidence had been excluded, no reasonable jury would have
reached a different result. Cf. State v. Dann, 206
Ariz. 371, 374 ¶ 14 (2003) (asking whether, after
reviewing the evidence, a reasonable jury would weigh the
mitigation evidence differently and thus reach a different
Comment on plea offers and Johnson's allocution
Johnson next argues the court erred by allowing the State to
comment during the penalty phase closing that "[n]othing
stops a defendant from pleading guilty if that's what
they choose. ... Is [it] truly admitting guilt and accepting
responsibility, to demand he get the least sentence available
if convicted of this crime?" But the State's comment
related to evidence in the record and was proper rebuttal to
Johnson's allocution and plea offers. See
Chappell, 225 Ariz, at 238 ¶ 32 (stating the right
to allocution is not absolute and that the state may present
appropriate rebuttal); United States v. Fell (Fell
II), 531 F.3d 197, 220-21 (2d Cir. 2008) (finding the
prosecutor's comment-"if [the defendant] wanted to
plead guilty he could have" -to be a reasonable response
to defendant's use of his plea offer and that no Fifth or
Sixth Amendment right was violated). And the State's
closing did not otherwise comment on or reference
Johnson's allocution in a way that penalized him for
exercising his right to go to trial. Cf United States v.
Whitten, 610 F.3d 168, 195 (2d Cir. 2010) (stating that
the defendant's "constitutionally protected decision
to go to trial was cited as a reason to sentence him to
death, and thus to 'enhance' what would otherwise be
a life sentence").
Inconsistent Mercy, Sympathy, and Presumption of Death
Johnson argues the trial court gave internally inconsistent
jury instructions regarding mercy, sympathy, and the
presumption of death and that the instructions likely caused
juror confusion resulting in an unconstitutional sentence.
Because Johnson failed to object at trial, we review for
fundamental error only. Velazquez, 216 Ariz, at 309
During the trial, the jury was instructed as follows:
Each one of you must decide individually whether any
mitigating circumstance exists.
You are not limited to the mitigating circumstances offered
by the defendant. You must also consider any other
information that you find is relevant in determining whether
to impose a life sentence so long as it relates to an aspect
of the defendant's background, character, propensities,
history or record or circumstances of the offense.
The defendant bears the burden of proving the existence of
any mitigating circumstance that the defendant offers by a
preponderance of the evidence ....
Even if a juror believes that the aggravating and mitigating
circumstances are of the same quality or value, that juror is
not required to vote for a sentence of death and may instead
vote for a sentence of life in prison. A juror may find
mitigation and impose a life sentence even if the defendant
does not present any mitigation evidence.
[E]ach of you must determine whether, in your individual
assessment, the mitigation is of such quality or value that
it warrants leniency in this case.
The law does not presume what is the appropriate sentence.
The defendant does not have the burden of proving that life
is the appropriate sentence. The State does not have the
burden of proving that death is the appropriate sentence. It
is for you as jurors to decide what you individually believe
is the appropriate sentence.
In reaching a reasoned, moral judgment about which sentence
is justified and appropriate, you must decide how compelling
or persuasive the totality of the mitigating factors is when
evaluated in connection with the totality of the aggravating
factors and the facts and circumstances of the case. This
assessment is not a mathematical one, but instead must be
made in light of each juror's individual qualitative
evaluation of the facts of the case, the severity of the
aggravating factors, and the quality of the mitigating
factors found by each juror.
If you unanimously agree there is mitigation sufficiently
substantial to call for leniency, then you shall return a
verdict of life. If you unanimously agree there is no
mitigation, or the mitigation is not sufficiently substantial