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State v. Johnson

Supreme Court of Arizona

August 23, 2019

STATE of Arizona, Appellee,
James Clayton JOHNSON, Appellant.

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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




         [¶1] 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 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 girlfriend’s apartment where he washed his clothes and truck. Three days later, Johnson robbed a Christmas

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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.

         [¶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 Johnson’s proffered mitigation was not sufficiently substantial to call for leniency and sentenced Johnson to death.


          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 Johnson’s 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 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, 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 Arizona’s 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 Johnson’s 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 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).

         [¶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 Hidalgo’s, he can include the deprivation of the hearing as a

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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 court’s denial of the evidentiary hearing was not an abuse of discretion. See id. ¶ 13.

         [¶12] 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, 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 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, 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 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 would suffer.
"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 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

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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 defendant’s 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 jury’s 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 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, 237 ¶ 27 & n.6, 236 P.3d 1176, 1184 & n.6 (2010).

         [¶19] 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, 110 S.Ct. 3047, 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, 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 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, 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

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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").

         [¶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 court’s 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 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.").

         [¶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 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, 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.

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         [¶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 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, 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 victim’s 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 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, 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 jury’s 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 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.

         [¶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 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, 211 P.3d 684, 694 (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 mutilation).

         [¶32] Johnson does not challenge the jury’s finding that the murder was senseless and the victim helpless, but the evidence

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nonetheless supports those conclusions.[1] 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, 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 Court’s 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 court’s 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 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 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 Johnson’s 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 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.

         [¶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

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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 Johnson’s motion for mistrial.

          D. The Significant Impairment Instruction

         [¶41] 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, 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 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 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

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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 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 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.

          E. Prison Housing Conditions and Johnson’s 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 court’s 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 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.

         [¶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 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.

         [¶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 I’ll plead guilty.
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

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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?

         [¶51] 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, 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 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, 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 defendant’s motive to plead guilty to rebut defendant’s 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 Johnson’s 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 ...

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