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Appeal
from the Superior Court in Maricopa County, The Honorable M.
Scott McCoy, Judge, No. CR2010-048824-001.
Mark
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
Arizona
James
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
CHIEF
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.
OPINION
BRUTINEL, CHIEF JUSTICE
[¶1]
This automatic appeal arises from James Clayton Johnsons
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
13-4033(A)(1).
[¶2]
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.
[¶3]
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
her stomach.
[¶4]
Johnson fled to his girlfriends apartment where he washed
his clothes and truck. Three days later, Johnson robbed a
Christmas
Page 796
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
Johnsons involvement. The State charged Johnson with one
count each of first degree murder, kidnapping, and burglary
in the first degree.
[¶5]
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).
[¶6]
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 Johnsons proffered mitigation was not sufficiently
substantial to call for leniency and sentenced Johnson to
death.
DISCUSSION
A. The A.R.S. § 13-751
Sentencing Scheme
[¶7]
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 Johnsons constitutional challenge de
novo. See State v. Smith, 215 Ariz. 221,
228 ¶ 20, 159 P.3d 531, 538 (2007).
[¶8]
In 2013, Johnson joined in litigation challenging Arizonas
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 Arizonas
death penalty statutes. That litigation eventually led to our
decision in State v. Hidalgo (Hidalgo I), 241 Ariz. 543,
549-52 ¶¶ 14-29, 390 P.3d 783, 789-92 (2017). There, we
observed that United States Supreme Court case law undermined
the defendants position, id. at 550 ¶ 19, 390 P.3d
at 790, and affirmed the constitutionality of Arizonas
sentencing scheme, id. at 550-52 ¶¶ 19-29, 390 P.3d
at 790-92. For the same reasons we expressed in Hidalgo
I, we reject Johnsons argument here.
[¶9]
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), __ U.S. __, 138
S.Ct. 1054, 1057, 200 L.Ed.2d 496 (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, 390
P.3d at 788.
[¶10]
As we noted in Hidalgo I, neither Hamdi v.
Rumsfeld, 542 U.S. 507, 124 S.Ct. 2633, 159 L.Ed.2d 578
(2004), nor Mathews v. Eldridge, 424 U.S. 319, 96
S.Ct. 893, 47 L.Ed.2d 18 (1976) requires an evidentiary
hearing. 241 Ariz. at 548-49 ¶¶ 10-13, 390 P.3d at 788-89.
And though Johnson points to Justice Breyers 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
defendants 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).
[¶11]
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 Hidalgos, he can include the deprivation of the
hearing as a
Page 797
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, 390
P.3d at 789. The trial courts denial of the evidentiary
hearing was not an abuse of discretion. See id. ¶
13.
[¶12]
Separately, Johnson claims the trial courts rulings violated
his right to effective assistance of counsel because his
counsels ability to challenge the death penalty was impeded
by the denial of the hearing. See Strickland v.
Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80
L.Ed.2d 674 (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.
[¶13]
Lastly, Johnson argues that Hidalgo I did not
address whether Arizonas 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, 896 P.2d 830,
838 (1995) (stating that an argument not sufficiently
developed on appeal is waived).
B. The A.R.S. §
13-751(F)(6) Aggravator
i. Unconstitutionality of the (F)(6)
aggravator
[¶14]
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, 390
P.3d at 788, and whether the jury instructions correctly
stated the law, see State v. Burbey, 243
Ariz. 145, 146 ¶ 5, 403 P.3d 145, 146 (2017).
[¶15]
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 depraved.
"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
doubt.
"Especially cruel." The term "cruel"
focuses on the victims 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 would suffer.
"Especially heinous or depraved." The term
"especially heinous or depraved" focuses ... upon
the defendants state of mind at the time of the offense as
reflected by the defendants 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
deterioration.
[¶16]
The court then instructed on the State v. Gretzler
factors of gratuitous violence, helplessness, and
senselessness, stating:
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
Page 798
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
defendants objective.
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, 659 P.2d 1, 10-12 (1983).
[¶17]
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 jurys discretion when deciding
whether to impose the death penalty. See Walton
v. Arizona, 497 U.S. 639, 652-53, 110 S.Ct. 3047, 111
L.Ed.2d 511 (1990), overruled on other grounds by
Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153
L.Ed.2d 556 (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, __ Ariz. __, __, 447 P.3d 297, 321-22,
2019 WL 3676317, at *15 ¶¶ 75-76 (Ariz. Aug. 7, 2019).
[¶18]
Johnson next argues the trial courts narrowing instructions
failed to provide sufficient guidance on whether Johnsons
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, 237 ¶ 27 & n.6, 236 P.3d 1176, 1184 & n.6 (2010).
[¶19]
Nevertheless, Johnson argues that while the Walton
Court affirmed Arizonas 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, 110 S.Ct. 3047, the jury has no such contextual
knowledge, and thus Waltons justification no longer
applies. Johnson further argues, citing State v. Mata (Mata
II), 185 Ariz. 319, 324, 916 P.2d 1035, 1040 (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, 562 P.2d 704, 716 (1977)
(providing narrowing definitions for "heinous,"
"cruel," and "depraved"), see
State v. (Ruben M.) Johnson, 212 Ariz. 425, 431-32 ¶¶ 19-22,
133 P.3d 735, 741-42 (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 ).
[¶20]
Lastly, Johnson argues the "gratuitous violence"
instruction incorrectly focused the jurys attention on the
physical violence rather than Johnsons 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 Johnsons mental state and
intentions at the time he committed the crime. See
State v. Bocharski, 218 Ariz. 476, 494 ¶ 87, 189
P.3d 403, 421 (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
Page 799
inflict violence after he knew or should have known that a
fatal action had occurred provides essential evidence of the
defendants intent to inflict gratuitous violence").
[¶21]
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, 250 P.3d
1145, 1161 (2011) (upholding jury instructions from vagueness
challenge).
ii. Arguing the (F)(6) aggravator during
closing
[¶22]
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
courts ruling on the scope of closing argument for an abuse
of discretion. State v. Pandeli, 215 Ariz. 514, 525
¶ 30, 161 P.3d 557, 568 (2007).
[¶23]
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.
[¶24]
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, 659 P.2d 22, 27 (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, 858 P.2d 1152, 1205 (1993) (limiting closing
argument to the evidence presented at trial); State v.
Greenway, 170 Ariz. 155, 171, 823 P.2d 22, 38 (1991)
("The trial courts consideration of other similarly
situated defendants is inapposite to this
defendants character or record, and does not show any of
the circumstances surrounding this defendants
offense that would call for a sentence less than
death.").
[¶25]
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, 250 P.3d at 1161 (allowing defendants to rely on
"norm of first-degree murder" instruction and argue
it during closing).
iii. Sufficiency of (F)(6) evidence
[¶26]
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, 234 P.3d 590, 593 (2010). In reviewing
Johnsons claim, we "review[ ] the record to determine
whether substantial evidence supports the jurys finding,
viewing the facts in the light most favorable to sustaining
the jury verdict." State v. Roque, 213 Ariz.
193, 218 ¶ 93, 141 P.3d 368, 393 (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).
[¶27]
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.
Page 800
[¶28]
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, 896 P.2d at 851. In addition to the fatal neck wound,
which involved at least two cuts to Fus 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, 298
P.3d 887, 903 (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, 183 P.3d 503, 510 (2008) (finding consciousness where
the expert concluded, based on the nature of the victims
injuries and condition of the apartment, that a struggle
probably occurred).
[¶29]
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
defendants 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 victims pain. Our caselaw defeats
this argument. In State v. Stokley, we stated that
"[c]ruelty focuses on the victim." 182 Ariz. 505,
517, 898 P.2d 454, 466 (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, 826 P.2d 783,
799 (1992))). The evidence sufficiently supports the jurys
finding of cruelty.
[¶30]
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, 234 P.3d at
593. A murder involves gratuitous violence when the defendant
uses violence beyond that necessary to kill. See
Gretzler, 135 Ariz. at 52, 659 P.2d at 11. 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, 189
P.3d at 421. 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 victims 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 Fus neck. Even if Johnson did
not know that the neck wound was fatal, he should have.
[¶31]
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,
633 P.2d 315, 324 (1981) (upholding the finding of depravity
where the defendant carved "Bonzai" on the victims
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, 211
P.3d 684, 694 (2009) (upholding the finding of heinous or
depraved where the defendant cut off the victims finger
after beating the victim with an aluminum bat, reasoning that
the removal of the finger constituted either gratuitous
violence or mutilation).
[¶32]
Johnson does not challenge the jurys finding that the murder
was senseless and the victim helpless, but the evidence
Page 801
nonetheless supports those conclusions.[1] The evidence
established that Fu was bound, and therefore helpless, and
that her restraints prevented her from interfering with
Johnsons attempt to rob her or flee, indicating the murder
was senseless. See State v. Ross, 180 Ariz.
598, 605, 886 P.2d 1354, 1361 (1994) ("A murder is
senseless when it is unnecessary to allow the defendant to
complete his objective.").
C. The Lynch v.
Arizona "Ineligible for
Parole" Instruction
[¶33]
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
Courts decision in Lynch v. Arizona (Lynch II), __ U.S. __,
136 S.Ct. 1818, 195 L.Ed.2d 99 (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, 250
P.3d at 1165 (quoting State ex rel. Thomas v.
Granville, 211 Ariz. 468, 471 ¶ 8, 123 P.3d 662,
665(2005)). We review a trial courts decision whether to
grant a mistrial for an abuse of discretion. State v.
Leteve, 237 Ariz. 516, 526 ¶ 33, 354 P.3d 393, 403
(2015).
[¶34]
Before trial, Johnson requested a jury instruction that he
was ineligible for parole, in accordance with Simmons v.
South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129
L.Ed.2d 133 (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, 114 S.Ct. 2187. Relying on our
decision in State v. Lynch (Lynch I), 238 Ariz. 84, 103 ¶ 65,
357 P.3d 119, 138 (2015), the trial court granted Johnsons
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 years
imprisonment."
[¶35]
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
Johnsons motion.
[¶36]
After the penalty phase trial, the court instructed the jury
as follows:
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
clemency.
[¶37]
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, 250 P.3d at 1165.
[¶38]
Nevertheless, Johnson argues the post-Lynch II
instruction could not cure the courts 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.
[¶39]
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, 770 P.2d 328, 337 (1989). The State neither
raised nor argued future dangerousness. Johnson
Page 802
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.
[¶40]
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, 74 P.3d 231,
244 (2003). The court did not abuse its discretion in denying
Johnsons motion for mistrial.
D. The Significant Impairment Instruction
[¶41]
Johnson argues the courts 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, 166 P.3d 91, 100 (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, 425 P.3d 1078, 1085 (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, 425
P.3d at 1083-84 (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)).
[¶42]
Section 13-751(G)(1) provides mitigation when "[t]he
defendants 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 defendants 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
law.[2]
[¶43]
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
Page 803
that Fu had cut herself, reversed his truck when driving away
to prevent his license plate from being seen, and went to his
girlfriends apartment to clean his truck and clothes—
indicating that he knew his conduct was wrong.
[¶44]
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 defendants 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 Johnsons
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.
E. Prison Housing Conditions and Johnsons Right to
Trial
[¶45]
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
courts rulings regarding the admissibility of evidence for
an abuse of discretion. State v. Gill, 242 Ariz. 1,
3 ¶ 7, 391 P.3d 1193, 1195 (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, 126 P.3d 148, 150 (2006).
i. Prison housing conditions
[¶46]
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, 364 P.3d 472, 473-74
(2015). The State responded that it intended to rebut
Johnsons 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 Johnsons
motion to admit his plea offers, but deferred ruling on the
scope of the States rebuttal until trial.
[¶47]
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 defendants sole
motivation," but that "this is a man whos been to
[the Department of Corrections] twice" and thus was
"aware of classifications and movement systems and
numbering." The court denied Johnsons motion.
[¶48]
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
custody levels.
[¶49]
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.
[¶50]
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 Ill
plead guilty.
Nothing stops a defendant from pleading guilty if thats 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
Page 804
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 Corrections
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 defendants 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?
[¶51]
In Busso-Estopellan, we held that the
"[a]cceptance of responsibility is a non-statutory
mitigating circumstance" and that defendants plea offer
"is relevant because it tends to make his acceptance of
responsibility ... more probable." 238 Ariz. at 554-55 ¶
67, 364 P.3d at 473-74. 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 ¶¶
10-11, 364 P.3d at 474.
[¶52]
Johnson argues that evidence of prison housing conditions is
irrelevant. See, e.g., People v.
Quartermain, 16 Cal.4th 600, 66 Cal.Rptr.2d 609, 941
P.2d 788, 807 (1997) ("[E]vidence of the conditions of
confinement that a defendant will experience if sentenced to
life imprisonment without parole is irrelevant to the jurys
penalty determination because it does not relate to the
defendants character, culpability, or the circumstances of
the offense."). The State argues that it was permitted
to include evidence of prison housing conditions to rebut
Johnsons plea offers by establishing a motivation for
pleading guilty other than remorse or acceptance of
responsibility. See People v. Ledesma, 39
Cal.4th 641, 47 Cal.Rptr.3d 326, 140 P.3d 657, 724 (2006)
(finding nothing improper about the prosecutor questioning
defense witnesses about the defendants motive to plead
guilty to rebut defendants claim that he pled guilty to
accept responsibility).
[¶53]
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.
[¶54]
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, 364 P.3d at 473-73. 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, 364 P.3d at 473 (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, 362 P.3d 484, 486 (2015)); see
also Guarino, 238 Ariz. at 441 ¶ 15, 362 P.3d
at 488 (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 Johnsons
motion.
[¶55]
The State argues the error is nevertheless harmless.
SeeEscalante, 245 Ariz. at 144 ¶ 30, 425
P.3d at 1087 (stating that under this standard the state must
show "beyond a reasonable doubt that the error did not
contribute to or affect the ...