                        SUPREME COURT OF ARIZONA
                                 En Banc

STATE OF ARIZONA,                 )       Arizona Supreme Court
                                  )       No. CR-09-0077-AP
                        Appellee, )
                                  )       Maricopa County
                 v.               )       Superior Court
                                  )       Nos. CR2006-012721-001      DT
DALE SHAWN HAUSNER,               )            CR2006-048493-002      DT
                                  )            CR2007-006031-001      DT
                       Appellant. )            CR2008-006364-001      DT
                                  )            CR2008-007313-002      DT
                                  )
                                  )
                                  )       O P I N I O N
__________________________________)


            Appeal from the Superior Court in Maricopa County
                  The Honorable Roland J. Steinle, Judge

               AFFIRMED IN PART; REVERSED IN PART
________________________________________________________________

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL                           Phoenix
     By   Kent E. Cattani, Chief Counsel
          Criminal Appeals/Capital Litigation Section
          Lacey Stover Gard, Assistant Attorney General             Tucson
Attorneys for State of Arizona

BRUCE PETERSON, OFFICE OF THE LEGAL ADVOCATE             Phoenix
     By   Thomas J. Dennis, Deputy Legal Advocate
Attorney for Dale Shawn Hausner
________________________________________________________________

B A L E S, Justice

¶1            This automatic appeal arises from Dale Shawn Hausner’s

convictions and death sentences for six murders; he also was

convicted and sentenced for seventy-four non-capital offenses.

We   have    jurisdiction   under   Article   6,   Section   5(3)   of     the

Arizona Constitution and A.R.S. § 13-4031 (2011).              We reverse
 

Hausner’s    conviction       for      one        count   of      animal    cruelty     and

otherwise affirm his convictions and sentences.

                      FACTUAL AND PROCEDURAL BACKGROUND

¶2          Between June 2005 and August 2006, Hausner engaged in

a series of random shootings in the Phoenix area.                           He murdered

six people, wounded eighteen others, and also shot several dogs

and a horse.         The human victims were pedestrians or bicyclists;

the shootings largely occurred between 10 p.m. and 3 a.m.; and

the victims were shot from Hausner’s car with 12 gauge or .410

shotguns    or   a    .22   caliber      gun.        Samuel       Deiteman,    Hausner’s

friend and roommate, participated in many of the crimes.

¶3          Hausner was identified through efforts of the Phoenix

Police   Department.         In       spring      2006,    the     police    set   up    an

investigative task force after concluding that a serial shooter

was involved in an accelerating crime spree.                         In May 2006, one

person   (Claudia       Gutierrez-Cruz)            was    killed     and    five   others

wounded; eleven more people were wounded from June 1 to July 22.

In   mid-July,   an     anonymous       caller       –    later    identified      as   Ron

Horton – left a message with the “Silent Witness” program that

his friend “Sammy” had said he was involved in the shootings.

Horton   later   met     with     a    police       detective,      said    “Sammy”     was

Samuel Dieteman, and identified Dieteman in a video taken at a

Walmart store that had been set on fire.                           On July 30, Robin

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Blasnek was killed with a .410 shotgun while she was walking at

night in Phoenix.

¶4            At   the    request      of    police,    Horton    arranged      to   meet

Dieteman at a bar on August 1.                     Police saw Hausner, whom they

had not previously identified as a suspect, drop Dieteman off at

the bar around 6:30 p.m.               Hausner was driving a Toyota Camry,

and    witnesses    had       previously      told   police     that    a   “Camry-type

vehicle” had been involved in certain shootings.                            The police

followed Hausner to a mall, where they placed a GPS tracking

device on his car.              Hausner later returned to the bar, spoke

with Dieteman in the parking lot for about thirty minutes, and

then returned to Hausner’s apartment at about 8:20 p.m.

¶5            Shortly after 1 a.m. on August 2, Hausner drove from

his apartment and met Dieteman at a casino.                            Police officers

surreptitiously saw them open the trunk of Hausner’s car, wait

while a security guard drove past, and then remove a duffel bag

and place it on the back seat.                 They left the casino.            Over the

next    two   hours,     police     followed        them   as   they    drove    through

several cities in the southeastern Phoenix metropolitan area.

They    appeared         to    drive        aimlessly      through      business     and

residential neighborhoods, but when they approached pedestrians

or bicyclists, they slowed and sometimes circled back to pass

the person again.             At about 4 a.m., they returned to Hausner’s

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apartment, where an officer overheard one of them say “it’s

probably because of the rain,” as they walked inside.

¶6           On the evening of August 2, detectives met with the

Maricopa County Attorney, who approved emergency wiretaps for

Dieteman’s phone and for Hausner’s apartment and car.                        (This

opinion, like the parties in their briefs and the trial court in

its    rulings,    refers    to   the    electronic   monitoring   devices     as

“wiretaps.”)       That same night, detectives also obtained warrants

from a judge authorizing police to place the wiretaps in the car

and apartment.

¶7           From about 9:35 a.m. until midnight on August 3, the

police monitored conversations in the apartment.                   Hausner and

Dieteman made several statements implicating themselves in the

shootings, including comments boasting or joking about certain

killings and mocking their victims.              Police also collected items

from a bag Dieteman put in the apartment dumpster, including a

map    of   the    Phoenix    area      with   markings   near   some   of    the

shootings.        Hausner’s and Dieteman’s fingerprints were on the

map.    The discarded items also included .410 shotgun shells; a

written note listing Robin Blasnek’s name, date, and time of

shooting; and newspaper articles and clippings related to the

shootings.

¶8           Near midnight on August 3, police arrested Hausner and

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Dieteman.      Hausner    later   admitted        owning   shotguns,   but     told

detectives    he    was   not   involved     in    the   shootings.     He     also

mentioned that a .410 shotgun had been used in the shootings, a

fact the police had not publicized.               On August 7, Hausner held a

press conference and again denied involvement in the shootings.

¶9           After Hausner’s arrest, police searched his apartment

and found shotguns, ammunition, and news clippings and videos

about the shootings.          In Hausner’s car, police found .22 shell

casings and bullets, as well as .410 shot and 20 gauge shotgun

shells.     Hausner had once owned two .22 caliber rifles made by

the Marlin Company.       Based on rifling patterns found on bullets,

a forensic expert determined that a .22 Marlin had been used in

six of the crimes.        The expert also matched shell casings found

in Hausner’s car to guns used in some of the crimes.

¶10          The State filed eighty-eight charges against Hausner

in five indictments: eight counts of first degree, premeditated

murder; two counts of aggravated assault; twenty-six counts of

drive-by shooting; ten counts of animal cruelty; two counts of

discharging a firearm at a non-residential structure; one count

of discharging a firearm at a residential structure; one count

of discharging a firearm within Tempe city limits; two counts of

conspiracy     to    commit     first   degree       murder;   one     count     of

conspiracy to commit animal cruelty; and two counts of arson

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involving two Walmart stores.

¶11            The    cases       were    consolidated          for    trial.         Dieteman

entered    a    plea    agreement        and     testified         against     Hausner,     who

testified on his own behalf.                     A jury found Hausner guilty of

eighty    offenses          and    acquitted         him   of      seven.          (The   State

dismissed       one.)         During      the        aggravation       phase,      the    State

presented evidence to prove that the murders of Gutierrez-Cruz

and   Blasnek        were    “especially        cruel”       and      thus   death-eligible

under A.R.S. § 13-751(F)(6).                    (This opinion cites the current

version of criminal statutes unless they have materially changed

since the conduct at issue.)                    The State relied on guilt-phase

evidence to prove other aggravating factors.

¶12            With respect to Gutierrez-Cruz and Blasnek, the jury

found     the    (F)(6)       aggravator        because         each    murder      was    both

“especially cruel” and “heinous or depraved.”                                The jury found

the (F)(6) aggravator with respect to victims Jose Ortis and

Marco Carillo because their murders were “heinous or depraved.”

With respect to these four victims, the jury also found the

murders    were       committed      in    a     “cold,      calculated         manner,”     an

aggravating factor under § 13-751(F)(13).                          Finally, with respect

to    these     victims       and    victims         David      Estrada      and     Nathanial

Shoffner, the jury found both the (F)(1) (conviction of another

offense subject to sentence of life imprisonment or death) and

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(F)(2) (prior conviction of a “serious offense”) aggravators.

¶13         Hausner waived mitigation other than allocution.                     The

jury determined that death was the appropriate sentence for each

of the six murder convictions.                 The trial court also sentenced

Hausner to consecutive life terms for his two convictions for

conspiracy to commit first degree murder and various concurrent

and consecutive sentences for his other non-capital convictions.

This automatic appeal followed.

                                      DISCUSSION

¶14         This opinion discusses issues that Hausner raised and

argued     on    appeal.         An     appendix         lists     seventeen    other

constitutional claims that Hauser seeks to preserve for later

review, along with the prior decisions of this Court that he

identifies as rejecting them.

      A. Dismissal of Prospective Jurors

¶15         Hausner argues that the trial court erred by granting

the State’s motion to strike potential jurors 235A and 164B, who

voiced   hesitation,       but   said     they    could     vote    for   the   death

penalty.        He maintains that the trial court dismissed these

jurors “merely to taper an over-abundance of qualified jurors”

and to make a “clean record through jury selection,” and thereby

violated    Witherspoon     v.    Illinois,        391    U.S.   510   (1968),    and

Wainwright v. Witt, 469 U.S. 412 (1985).

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¶16        A potential juror may not be struck for cause merely

because he “voiced general objections to the death penalty.”

State v. Prince (Prince II), 226 Ariz. 516, 528 ¶ 27, 250 P.3d

1145,   1157   (2011)    (quoting     Witherspoon,    391   U.S.   at   522).

However, a trial court “may strike a juror whose views about

capital punishment ‘would prevent or substantially impair the

performance of his duties as a juror in accordance with his

instructions and his oath.’”         Prince II, 226 Ariz. at 528 ¶ 27,

250 P.3d at 1157 (quoting Witt, 469 U.S. at 433).

¶17        During voir dire, when the trial court denied motions

to strike certain jurors for cause, it placed them in a “pool”

for later reconsideration.           The pool included jurors 235A and

164B and six jurors to whom Hausner objected.           Subsequently, the

trial court – without objection by Hausner – reconsidered the

objections to these eight jurors and struck them all.              The court

noted that there was “no issue” with respect to forty-one jurors

remaining on the clerk’s juror list (the list was in ascending

numeric order, first for “A” jurors and then “B” jurors).                 The

court drew a line after Juror 129B and struck jurors numbered

130B or higher.     Having narrowed the field to forty jurors, the

court   allowed   each   side   to   exercise   ten   peremptory    strikes,

leaving twenty jurors for trial.

¶18        The trial court did not commit reversible error in

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dismissing jurors 235A and 164B.               Any error in dismissing Juror

164B    was   plainly   harmless,   as        Hausner’s   counsel    acknowledged

during oral argument, because this juror was not among the first

forty on the clerk’s list and thus would not have been in the

final pool even if not dismissed for cause.

¶19           During voir dire, Juror 235A said she did not think

she could choose between life and death, and did not want to be

placed in that situation, but could follow the law and vote to

impose death.       She stated that she felt “a little intimidated to

make that choice.”       The State moved to strike Juror 235A because

“she obviously doesn’t want to be placed in this situation.”

¶20           By   granting   the   State’s       motion,    the     trial   court

apparently struck the juror based on her reluctance to serve

rather than her opposition to the death penalty.                   We have upheld

dismissal when a juror is conflicted about imposing the death

penalty, Prince II, 226 Ariz. at 528 ¶ 29, 250 P.3d at 1157, and

we defer to the trial judge’s determination that “a prospective

juror would be unable to faithfully and impartially apply the

law.”    Witt, 469 U.S. at 424-26; see also State v. Ellison, 213

Ariz. 116, 137 ¶ 89, 140 P.3d 899, 920 (2006).                       Given Juror

235A’s desire not to serve and her conflicting statements, the

trial judge did not abuse his discretion in striking her.



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      B. Admission of Wiretap Conversations

¶21          Hausner argues that the trial court erred in failing

to suppress recorded conversations obtained by the wiretap in

his apartment on August 3.       The County Attorney approved the

wiretap   under   Arizona’s   “emergency   wiretap”   statute,   A.R.S.

§ 13-3015.     This statute allows the Arizona Attorney General, a

county attorney, or other designated prosecutors to authorize

temporary wiretaps if he or she “reasonably determines that an

emergency situation exists involving immediate danger of death

or serious physical injury to any person, and that such death or

serious physical injury may be averted by interception of wire,

electronic or oral communications before an order authorizing

such interception can be obtained.”         Id.   Within forty-eight

hours, the prosecutor must apply for a court order authorizing

the interception in accordance with the general wiretap statute,

A.R.S. § 13-3010.     If such authorization is not obtained, the

prosecutor must “immediately terminate” the interception, and

“any communications intercepted without judicial authorization

may not be used as evidence.”    A.R.S. § 13-3015(C).

¶22          Hausner argues that the wiretap was illegal because

(1) there was not an “emergency situation” under § 13-3015; (2)

the wiretap failed otherwise to satisfy statutory requirements;

and (3) Article 2, Section 8 of Arizona’s Constitution forbids

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the    warrantless         intrusion      into         a    home       absent        exigent

circumstances, and police inaction (here, the failure of the

police to arrest Dieteman or otherwise intercede) cannot create

such circumstances.         We reject these arguments.

             1.     Factual and Statutory Background

¶23          We review the denial of a motion to suppress wiretap

evidence for an abuse of discretion, State v. Ring, 200 Ariz.

267,   273   ¶ 14,    25    P.3d   1139,        1145       (2001),     rev’d     on       other

grounds,     Ring   v.     Arizona,    536      U.S.       584   (2002),       and     review

questions     of    constitutional      and      statutory         interpretation           de

novo, State v. Armstrong, 218 Ariz. 451, 463 ¶ 54, 189 P.3d 378,

390    (2008).       We     consider      the      evidence        presented         at    the

suppression       hearing    and   view      the    facts        in    the     light      most

favorable to sustaining the trial court’s ruling.                                State v.

Manuel, 229 Ariz. 1, 4 ¶ 11, 270 P.3d 828, 831 (2011).

¶24          On July 28 and 29, Ron Horton told detectives that

Dieteman, his former roommate, had said he was involved in the

shootings     and    had    used   a    .410       shotgun.            Police    had       not

publicized    information       about     the      weapon.            Horton    also      said

Dieteman referred to the crimes as “RRV’ing,” which stood for

random, recreational violence.               On July 30, Robin Blasnek was

killed with a .410 shotgun while walking at night.

¶25          When police followed Dieteman on the evening of August

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1 and early morning of August 2, they saw him meet Hausner,

transfer   a    duffel   bag    from   the   trunk   to   the   back   seat    of

Hausner’s car, and then drive around in a manner suggesting that

Dieteman and Hausner could be looking for victims.                 Around 4:30

or 5 p.m. on August 2, detectives briefed the County Attorney,

who   approved   emergency      wiretaps     for   Hausner’s    home   and   car.

That evening, detectives sought and obtained warrants to place

the wiretaps.

¶26        On    August    3,     conversations       between     Hausner     and

Dieteman in the apartment were recorded from approximately 9:35

a.m. until 11:55 p.m., when the two were arrested.                 At around 2

p.m. on August 3, police sought and obtained warrants to search

Hausner’s apartment and car; the warrants were to be executed

that evening between 10 p.m. and 6 a.m.              Consistent with A.R.S.

§ 13-3015, at 4:15 p.m. on August 4, the afternoon after Hausner

and Dieteman were arrested, the police submitted an affidavit

applying for a court order approving the emergency wiretaps, and

the superior court granted the order that day.

¶27        Arizona law generally prohibits the interception of

wire, oral, or electronic communications.              See A.R.S. § 13–3005.

Upon proper application, however, a judge may issue an ex parte

order authorizing an interception pursuant to A.R.S. § 13–3010:

      [I]f the judge determines on the basis of the facts
      submitted by the applicant that:
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        1. There is probable cause to believe that a person is
        committing, has committed or is about to commit a
        particular crime.

        2. There is probable cause to believe that particular
        communications   concerning   that offense  will   be
        obtained through the interception.

        3. Normal investigative procedures have been tried and
        have failed or reasonably appear to be unlikely to
        succeed if tried or to be too dangerous.

        4. There is      probable    cause    to    believe    any    of   the
        following:

        (a) Wire or electronic communications concerning the
        offense are being made or are about to be made by the
        person over the communication facilities for which
        interception authority is granted.

        (b) Oral communications concerning the offense are
        being made or are about to be made by the person in
        the location for which interception authority is
        granted.

        (c) Communications concerning the offense are being
        made or are about to be made by the person in
        different and changing locations, or from different
        and changing facilities.

A.R.S. § 13-3010(C).

¶28         In   1984,     we   held    that       Arizona’s    wiretap      scheme

substantially complied with federal law, which allows states to

adopt    more,   but   not   less,     restrictive     limits    on    electronic

surveillance than are imposed by 18 U.S.C. §§ 2510-2520, the

federal wiretap statute colloquially known as “Title III.”                       See

State v. Gortarez, 141 Ariz. 254, 259 ¶ 4, 686 P.2d 1224, 1229


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(1984).         In    1988,        the     legislature           enacted      § 13-3015,         the

emergency wiretap provision, as part of legislation intended to

conform Arizona law to amendments to Title III. 1998 Ariz. Sess.

Laws, ch. 149, § 13 (2d Reg. Sess.).

¶29          Arizona’s         emergency          wiretap        statute      largely      tracks

federal    law,       but    has     some    different           language.          The   federal

statute    applies          when     an     emergency           situation      “requires”        an

interception before a court order authorizing it “can, with due

diligence,       be    obtained.”            18     U.S.C.        § 2518(7)(a).           Without

explicitly referring to due diligence, Arizona’s statute allows

interception if an emergency “may be averted . . . before an

order authorizing such interception can be obtained.”                                      A.R.S.

§ 13-3015(A).          Arizona’s statute requires that an application

for an ex parte order be made “as soon as practicable, and in no

event     later       than     forty-eight              hours”      after      the     emergency

interception begins.            Id. § 13-3015(B).

             2.       Existence of an Emergency Situation

¶30          Hausner        argues        that    an     emergency       situation        did    not

exist.      He       contends      that     the         State    was    not   faced       with    an

“immediate danger of death or serious physical injury to any

person,”    §     13-3015(A),         because           the    immediate      danger      must   be

“clear and present, not speculative and too distant.”

¶31          Citing         United       States     v.        Crouch,   666    F.    Supp.      1414

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(N.D. Cal. 1987), Hausner argues that an emergency wiretap is

permissible only if the emergency is “imminent” and not merely

because     “serious        criminal     activity           is   planned     for      some

unspecified date in the future.”                     Id. at 1417.          He contends

there was no emergency here because police had no idea whether a

criminal act would occur, they did not have any information

about “when or where or who might be victimized in a future

criminal    act,”     and    there     was     no    “immediate       danger”      because

police had him and Dieteman under constant surveillance.

¶32          These arguments ignore the trial court’s findings.                         In

denying the motion to suppress, the court noted that there had

been   a   shooting    only    days     before        the    emergency     wiretap    was

placed.     Phoenix police observed Dieteman and Hausner drive as

if they might be “trolling for victims” on the night of August

1.      Crediting     the     detectives’           testimony,    the      trial     court

concluded that police could not have prevented another shooting

merely by surveillance because the random shootings were made

from a car.        Instead, the court found that the police “needed

the    emergency    intercept     in    order        to     prevent   another      random

shooting.”     These findings, which Hausner has not challenged,

establish that there was an immediate danger of death or serious

physical injury.

¶33          Hausner’s argument that “the entire emergency could

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have    been    avoided      by    simply       arresting        Dieteman,       whom   police

clearly had probable cause to arrest,” is also unconvincing.

The    trial    court      specifically         found      that    the     information       the

officers had on August 2 was insufficient to support a finding

of    probable      cause    to    arrest.            Even    though       the      police   had

sufficient       information        to    obtain       a     warrant      to     install     the

wiretaps on August 2, whether probable cause existed to support

a wiretap or a search is a different question from whether the

officers had probable cause to arrest an individual for having

committed       a   particular        crime.           See      A.R.S.     § 13-3010(C)(1)

(authorizing interception in certain circumstances when there is

probable       cause    to    believe      a     person       is       about   to     commit    a

particular crime).

¶34            Hausner also argues that even if the police did not

have probable cause to arrest Dieteman by 5 p.m. on August 2

(when the County Attorney was briefed on the emergency wiretap),

they did by 2 p.m. the next day, when they submitted search

warrant affidavits asserting they had probable cause to search

Hausner’s apartment.              In this respect, Hausner contends that an

emergency wiretap must end if the emergency initially justifying

its implementation no longer exists.                       We disagree.          Police “are

under    no     constitutional           duty     to     call      a    halt     to   criminal

investigation        the     moment      they     have     the     minimum       evidence      to

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establish probable cause” to arrest the suspect.                     Kentucky v.

King,    131    S.     Ct.   1849,   1860–61      (2011)     (internal    quotation

omitted).       Police instead may delay making an arrest “in the

hope of ferreting out any hitherto unknown individuals involved

in    the   illicit       undertakings,      gathering       additional   evidence

substantiating the crimes believed to have been committed, or

discovering         any   other   offenses      in   which    the   suspects   are

involved.”          United States v. Hultgren, 713 F.2d 79, 87 (5th Cir.

1983).

               3.     Compliance with Other Statutory Requirements

¶35            Hausner argues that the trial court also misconstrued

A.R.S. § 13-3015 by failing (1) to recognize that an emergency

wiretap is only permitted in circumstances in which a court

could order a wiretap under § 13-3010; (2) to interpret the law,

like the federal statute, as permitting emergency wiretaps only

if a court order cannot be obtained with “due diligence” in time

to avert the emergency; and (3) to require the State to have an

“emergency purpose” for the wiretap.

¶36            None of these arguments suggests the trial court erred

in denying the motion to suppress.                    We agree that § 13-3015

authorizes      emergency     wiretaps     only      in   factual   circumstances

that, if time permitted, would support a court-approved wiretap.

As noted above, evidence from an emergency wiretap is admissible

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only    if   an    application          for   a      court    order    authorizing       the

interception “in accordance with the provisions of § 13-3010” is

submitted within forty-eight hours and granted.                           § 13-3015(B).

This conclusion, however, does not avail Hausner because he did

not argue below and has not demonstrated on appeal that the

superior     court    erred      in     approving       the    emergency       wiretap   on

August 4.

¶37          With respect to “due diligence,” although Arizona’s

statute does not expressly declare that an emergency wiretap is

permissible       only    when     a    court       order    approving   a     wiretap    in

advance      cannot       be    obtained        by     “due     diligence,”       such     a

requirement is implicit.               Section 13-3015(A) allows an emergency

wiretap only when it may avert an emergency situation that might

occur   “before      an    order       authorizing      such    interception       can   be

obtained.”        Subsection (B) further provides that evidence from

an emergency wiretap is not admissible unless an application for

a court order is submitted “as soon as practicable, and in no

event     later     than       forty-eight          hours”     after     the    wiretap’s

inception.        A.R.S. § 13-3015(B).                These statutory restrictions

on emergency wiretaps would not be satisfied if a court-approved

wiretap could, with due diligence, have been obtained to avert

the emergency.

¶38          Although the trial court did not recognize that § 13-

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3015    effectively          incorporates            a     “due    diligence”       requirement

similar to federal law, cf. Gortarez, 141 Ariz. at 259, 686 P.2d

at 1229 (concluding that Arizona’s conventional wiretap statute

was    “sufficiently          compatible            with    the    federal    one     to    ensure

compliance with the federal standards”), this does not mean the

court erred in denying Hausner’s motion to suppress.                                   Evidence

at    the    suppression          hearing        established         that     a     conventional

wiretap order could not have been obtained through due diligence

on the night of August 2.                     Detective Richard Lebel, who prepared

the     affidavit       for        a     post-wiretap             order     under     § 13-3015,

testified that “[i]n terms of a conventional wiretap, there’s no

way    I    could      have       had    that       prepared       for    [the      judge]    that

evening.”          He also said that, once the emergency wiretap was

approved, he had to work almost continuously to complete the

forty-one page affidavit to submit the application for a post-

wiretap order to the superior court by 5 p.m. on August 4.                                      The

trial      judge    credited           this    testimony,          noting    that    “Detective

Lebel was very clear that a conventional wiretap request could

not be obtained without more facts and in order to get it, would

have    taken      a    great      deal        of    time.”         In    short,      the     State

established        that      it    could       not        have    obtained    a     conventional

wiretap      with      due    diligence          when       the    emergency        wiretap    was

approved.

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¶39         Finally, Hausner argues that the trial court should

have considered whether the County Attorney approved the wiretap

for investigative purposes rather than to avert an emergency.

This argument is irrelevant given the trial court’s finding that

“the    State’s    main   focus   was   the    safety   of   the        citizens   of

Maricopa County” and “the investigative nature of its action was

secondary to the main goal of public safety.”                 If a prosecutor

reasonably       determines   that      an    interception        may     avert    an

“immediate danger of death or serious physical injury” before a

court   order     approving   the    interception    can     be    obtained,       see

§ 13-3015, the validity of the interception should not turn on

whether the prosecutor also subjectively has an investigative

purpose, see King, 131 S. Ct. at 1859 (noting that in Fourth

Amendment context, reasonableness of a search turns on objective

factors rather than officer’s subjective state of mind).

            4.     Article 2, § 8 of the Arizona Constitution

¶40         Hausner also argues that the wiretap violated Article

2, § 8 of the Arizona Constitution, which states that “[n]o

person shall be disturbed in his private affairs, or his home

invaded, without authority of law.”              Citing State v. Ault, 150

Ariz. 459, 463 n.1, 724 P.2d 545, 549 (1986), he argues that

Article 2, § 8 forbids the warrantless intrusion into a home

absent exigent circumstances, the exigency cannot be created by

                                        20 

 
 

police inaction, and any exigency here resulted only because the

police chose not to arrest Dieteman or to execute the search

warrant they obtained at 2 p.m. on August 3.

¶41         This    Court   has   recognized       that    Article   2,    § 8   may

afford greater protections than the Fourth Amendment, at least

in the context of physical intrusions into a home.                        In Ault,

police officers had probable cause to arrest a suspect when he

met them at the door of his apartment.                  Id. at 463, 724 P.2d at

549.   Rather than arrest him, they asked him to accompany them

to the station, which he agreed to do.                  They then followed him,

over his objection, when he went inside to get some clothes.

Rejecting arguments that the entry was justified because of the

danger that the suspect might retrieve a weapon, the Court noted

that “[t]he exigent circumstances . . . were created by the

arresting deputies” when they did not arrest the suspect when he

came to the door.           Id. at 463, 724 P.2d at 549.                  The Court

concluded    that    it     “cannot      allow    the     creation   of     exigent

circumstances in order to circumvent the warrant requirement.”

Id.; see also State v. Cañez, 202 Ariz. 133, 152 ¶ 56, 42 P.3d

564, 583 (2002) (following Ault).

¶42         Ault,   however,      does    not    control    our   analysis    here.

For reasons noted above, we reject Hausner’s argument that the

police had probable cause to arrest Dieteman when the County

                                         21 

 
 

Attorney approved the emergency wiretap on August 2.              Inasmuch

as the police made a physical intrusion into Hausner’s apartment

to place the wiretap, that entry was supported by the warrant

issued on the evening of August 2.          Finally, to the extent that

Hausner argues that exigent circumstances were also required to

justify   the     recording     of   conversations   resulting   from    the

placement of the wiretap, we conclude that such circumstances

exist if the statutory requirements for an emergency wiretap

exist.    Cf. State v. Bixby, 698 S.E.2d 572, 582 (S.C. 2010)

(upholding      South   Carolina     emergency    wiretap   provision     as

application of exigent circumstances exception), cert. denied,

131 S. Ct. 2154 (2011).

      C. Joinder

¶43          Hausner argues that the trial court erred by denying

his motions to sever and by consolidating the offenses charged

in the five indictments for trial.           The trial court made these

rulings   after    conducting    a   multi-day   evidentiary   hearing   and

later denied Hausner’s renewed severance motions.                We review

trial court rulings on joinder and severance for an abuse of

discretion.       State v. Prince (Prince I), 204 Ariz. 156, 159

¶ 13, 61 P.3d 450, 453 (2003).

¶44          Two or more offenses may be joined in an indictment if

they “are alleged to have been part of a common scheme or plan.”

                                      22 

 
 

Ariz. R. Crim. P. 13.3(a)(3).                        Charges in separate indictments

that     could        have    been       joined        in    one       indictment       may    be

consolidated          “if    the   ends        of    justice      will    not    be     defeated

thereby.”        Ariz. R. Crim. P. 13.3(c).                       If offenses are joined

under Rule 13.3(a)(3), a court need only order severance when

“necessary       to    promote       a   fair        determination        of    the    guilt   or

innocence    of        any    defendant.”              Ariz.      R.   Crim.     P.     13.4(a).

Because we conclude that the offenses were properly joined under

Rule 13.3(a)(3) or could have been joined under this Rule and

were   properly        consolidated,            we    do    not    address      the     parties’

arguments concerning joinder under Rules 13.3(a)(1) or (2).

¶45         For purposes of Rule 13.3(a)(3), a “common scheme or

plan” is a “particular plan of which the charged crime is a

part.”     State v. Ives, 187 Ariz. 102, 109, 927 P.2d 762, 769

(1996) (internal quotation omitted).                        The analysis “focus[es] on

whether the acts are part of an over-arching criminal plan, and

not on whether the acts are merely similar.”                                    Id.      Hausner

contends that his crimes, although similar, were not part of a

common scheme or plan, citing State v. Lee, 189 Ariz. 590, 944

P.2d 1204 (1997).

¶46         In Lee, this Court ruled that charges arising from two

similar    robberies         could       not    be    joined      under    Rule       13.3(a)(3)

because the crimes were not “part of an over-arching criminal

                                                23 

 
 

plan.”     Id. at 598, 944 P.2d at 1212.              Although the robberies

occurred near the same time and were similar in other respects

(for example, the victims were similarly employed and were shot

with   a   .22    caliber),    the   Court    noted   that    “no   testimony    or

evidence suggests that the two robberies were part of a single

plan.”     Id. at 599, 944 P.2d at 1213.

¶47          Here, in contrast to Lee, the State presented evidence

showing    that    Hausner’s    crimes    were    part   of    an   over-arching

criminal plan.        A forensic psychiatrist testified that, after

reviewing information about the crimes, he concluded that this

scheme was “the seeking of thrills or excitement or relief of

boredom or relief of negative feelings.”                 Such a scheme could

include even the killing of animals because, as the psychiatrist

testified, “[w]ith respect to trying to make one’s self feel

better through violence, I think it makes no difference whether

the targeted victim is a human or some other animal.”                           Two

detectives also testified about similarities among the various

shootings. On this record, the trial court did not abuse its

discretion in finding a common scheme or plan based on a general

thrill-seeking scheme or by consolidating the charges in the

separate indictments.

¶48          Nor did the court abuse its discretion in denying the

motions to sever.         “When a defendant challenges a denial of

                                        24 

 
 

severance on appeal, he must demonstrate a compelling prejudice

against which the trial court was unable to protect.”                       Prince I,

204   Ariz.     at      159    ¶ 13,   61    P.3d   at    453   (internal    quotation

omitted).       Hausner cannot show such prejudice because the trial

court instructed the jurors to consider each charged offense

separately and advised them that the State had to prove each

beyond a reasonable doubt.              See id. at 160 ¶ 17, 61 P.3d at 454.

        D. Sufficiency of Evidence on Animal Cruelty Charges

¶49           Hausner contends that the State presented insufficient

evidence to sustain his convictions for animal cruelty involving

the horse Apache and dogs Shep, Irving, Payton, and Martin, and

his conviction for discharging a firearm at a shed belonging to

Payton and Martin’s owner.                  A person may be found guilty of a

class 6 felony under Arizona law if he or she “[i]ntentionally

or knowingly subjects any animal to cruel mistreatment.”                       A.R.S.

§ 13-2910(A)(9).              Hausner argues that the State did not present

sufficient evidence identifying him as the shooter for these

incidents.

¶50           We     review     the    sufficiency       of   evidence   presented   at

trial    only      to    determine      if    substantial       evidence    exists   to

support the jury verdict.                State v. Stroud, 209 Ariz. 410, 411

¶ 6, 103 P.3d 912, 913 (2005).                Substantial evidence is evidence

that “reasonable persons could accept as sufficient to support a

                                             25 

 
 

guilty verdict beyond a reasonable doubt.”       State v. Hughes, 189

Ariz. 62, 73, 938 P.2d 457, 468 (1997).         We view the facts in

the light most favorable to sustaining the jury verdict.         State

v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987).

¶51         Dogs Irving and Shep were shot outside their owners’

houses with a .22 caliber gun.         Police later found .22 caliber

shell casings, guns, and live cartridges in Hausner’s apartment

and car.    Irving and Shep were shot on November 11, 2005, within

a mile and an hour of each other.        This was also the same night

that Hausner shot and killed Nathaniel Shoffner.         Just before

Irving was shot, one of his owners saw a four-door car pull up

and a hand extend from the passenger window.       Shep’s owner heard

a car outside his house, the discharge of a .22, and then his

dog’s yelp.     Dieteman testified that Hausner and his brother

Jeff told him they had been “out targeting a dog” on the night

when   they   shot   Shoffner.     Sufficient     evidence   supported

Hausner’s convictions for shooting these two dogs.

¶52         Dogs Martin and Payton were shot outside their owner’s

house with a .22 on December 30, 2005.         Their owner was inside

when they were shot, but he heard two pops that sounded like a

small caliber weapon firing, followed by a loud cry from one of

the dogs.     This was the same night that Hausner shot a car at

the ABC Bartending School, shot victims Ortiz, Carillo, Timothy

                                 26 

 
 

Tordai and the dog Peanut with a .22, and also shot the dog

Cherokee and victim Clarissa Rowley.                 Martin and Payton were

shot just after midnight, three miles from where Hausner shot

the dog Peanut at 12:30 a.m.              This is sufficient evidence to

support    the    jury’s   conclusion     that   Hausner     shot    Martin   and

Payton and discharged a firearm at a shed belonging to their

owner.

¶53         Apache, the horse, was shot with a .22 between 10:30

p.m. on July 19, 2005, and 5:30 a.m. on July 20.                     When shot,

Apache was in a pen outside his owner’s house in Tolleson.                    The

owner did not see or hear any gunshots.              Just before midnight on

July 19, Hausner shot and killed the dog Whiskey with a .22 in

Phoenix,    two   miles    from   where     Apache   was    shot.     From    this

evidence alone, a jury could not reasonably conclude beyond a

reasonable doubt that Hausner also shot Apache.                  Accordingly, we

reverse    Hausner’s   conviction    and     sentence      for   animal   cruelty

with respect to the shooting of Apache.

      E. Evidentiary Issues

¶54         Hausner challenges the admission of evidence of out-

of-court statements by attempted-murder victims Joseph Roberts,

David Perez, and Miguel Rodriguez.               Hausner also contends the

trial court erred in admitting certain “other acts” evidence.



                                      27 

 
 

             1. Roberts’ Statements

¶55          Joseph Roberts was shot while walking with his bike on

the night of July 2, 2006.                Roberts spoke with Detective Clark

Schwartzkopf at a hospital the next morning, but Roberts could

not recall this meeting when he testified at the 2009 trial.

Roberts testified that, after he was shot, he saw a four-door,

silver car on the opposite side of the street, but he could not

see how many people were inside.                            He did not remember ever

describing the car’s driver.

¶56          Detective       Schwartzkopf              testified         about    contacting

Roberts at the hospital.              Schwartzkopf said Roberts told him

that   “as     the    vehicle      slowed,           he     saw    the    driver’s     window

completely     down    and    he    saw        what        he   described    as    a   barrel

protruding from the driver’s side of the vehicle. . . . [H]e

believed that it was a rifle or shotgun barrel,” and that he

thought the driver was Caucasian.                      Roberts described the car as

a   “silver,    passenger”        vehicle,           and    said   its    headlights     were

turned off just before the shooting.

¶57          Hausner    objected          to    Schwartzkopf’s            testimony     about

Roberts’     statements      as    inadmissible             hearsay.       Overruling     the

objection,     the    trial       court    ruled           that    the    statements     were

admissible as prior inconsistent statements under Arizona Rule

of Evidence 801(d)(1).             Considering the factors identified in

                                               28 

 
 

State v. Allred, 134 Ariz. 274, 277, 655 P.2d 1326, 1329 (1982),

the    trial    court    further      found       that    the       statements     were    not

unduly prejudicial.             Alternatively, the trial court ruled that

the statements were sufficiently reliable to be admissible under

the    residual       hearsay     exception       in     Arizona      Rule    of     Evidence

803(24) (since renumbered Rule 807).

¶58            We   review      admission     of       evidence       for    an    abuse    of

discretion.         See State v. Tucker, 205 Ariz. 157, 165 ¶ 41, 68

P.3d    110,    118     (2003).       A   statement           is    not    hearsay    if   the

declarant      testifies,       the   statement          is    inconsistent        with    the

declarant’s testimony, and the declarant is subject to cross-

examination about it.             Ariz. R. Evid. 801(d)(1)(A).                    “A claimed

inability to recall, when disbelieved by the trial judge, may be

viewed   as     inconsistent       with    previous           statements.”         State    v.

King, 180 Ariz. 268, 275, 883 P.2d 1024, 1031 (1994) (internal

quotation omitted).

¶59            Hausner argues that nothing suggests Roberts feigned

lack    of     memory    about     his    statements           in    the    hospital,      and

therefore they could not be admitted as “inconsistent” with his

trial testimony.          Cf. id. at 275, 883 P.2d at 1031 (concluding

that record supported trial court’s finding that witness feigned

loss of memory).             Moreover, because Roberts could not recall

talking to Schwartzkopf, Hausner argues that the trial court

                                            29 

 
 

erred    in    finding         the    statements       sufficiently       reliable      to    be

admissible under the residual hearsay exception.

¶60           Although the trial “court has considerable discretion

in determining whether a witness's evasive answers or lack of

recollection may be considered inconsistent with that witness's

prior out-of-court statements,” State v. Salazar, 216 Ariz. 316,

319 ¶ 15, 166 P.3d 107, 110 (App. 2007), here the court did not

find and the record does not suggest that Roberts feigned his

lack    of    memory      at    trial.          Roberts,     as   one     of   the    shooting

victims, would have no apparent reason to do so.                               Cf. State v.

Robinson, 165 Ariz. 51, 59, 796 P.2d 853, 861 (1990) (finding

trial court did not abuse its discretion in admitting extrinsic

evidence of out-of-court statement under Rule 613(b) when court

could not tell if witness was being evasive or merely had poor

recollection, but record amply suggested reasons for witness to

be evasive).            The trial court erred in concluding that Roberts’

statements         at     the        hospital     were      “inconsistent”           with    his

testimony and admissible under Rule 801(d)(1).

¶61           We    need       not    determine        if   the   trial    court      properly

concluded that the statements were also admissible under the

residual hearsay exception.                 Roberts testified that he had seen

a four-door silver car across the street after he was shot.                                  The

out-of-court hospital statements introduced through Schwartzkopf

                                                 30 

 
 

provided the further details that Roberts was shot by the car’s

Caucasian      driver,    who    pointed    a     rifle      or   shotgun    from     the

driver’s window and turned off the car’s headlights.                             Roberts

did not identify Hausner as the shooter in his testimony or the

hospital statements.            Instead, Dieteman testified that Hausner

was driving and shot Roberts from the driver’s window with a

.410 shotgun.       Because we conclude that the hospital statements

did not impact the jury’s verdict, any error in their admission

was harmless.       See State v. Bocharski, 218 Ariz. 476, 486 ¶¶ 38-

41, 189 P.3d 403, 413 (2008) (applying harmless error analysis

to admission of hearsay).

              2. Perez and Rodriguez Statements

¶62           Hausner    also    objected       to     testimony    by     two     police

officers      regarding     statements          made    by     victims      Perez     and

Rodriguez.       Neither victim was available to testify at trial,

but the officers testified to statements made by each victim

when   the    officers    arrived    on    the       scenes.       The     trial    court

admitted      the   statements      as    excited       utterances.          (Although

Hausner      initially    argued    that    admission        of    these    statements

violated the Confrontation Clause, he abandoned that argument in

light of Michigan v. Bryant, 131 S. Ct. 1143 (2011), as it is

clear that the statements were not testimonial.)

¶63           An excited utterance is a statement “relating to a

                                          31 

 
 

startling event or condition, made while the declarant was under

the   stress    of    excitement     that       it    caused.”           Ariz.   R.   Evid.

803(2).    This       exception      to   the        rule    generally       barring     the

admission of hearsay turns on three factors: there must be a

startling event, the words must be spoken soon afterwards, and

the words must relate to the startling event.                            State v. Cruz,

218 Ariz. 149, 161 ¶ 54, 181 P.3d 196, 208 (2008).

¶64        The first victim, Perez, was shot in the early morning

on July 7, 2006, and Officer Shoemaker was one of the first

officers to arrive at the scene.                     Shoemaker testified that he

asked   Perez    what    happened,        and    that       “[h]e     told    me   he    was

standing out into the street in front of the property using a

telephone when a car, which he described as a blue Contour,

drove from west to east in an eastbound manner on State Avenue

and fired, what he said, was a shot at me.                        He told me he didn’t

see a license plate of the car, he didn’t see any possible

suspect that may have fired the . . . the shot.”                                 Shoemaker

explained that he had questioned Perez in order to secure the

scene and meet an on-going emergency.

¶65        The       trial   court    did       not       abuse    its    discretion      in

finding   that       Perez’s   statements            to     Officer      Shoemaker      were

excited utterances.          The shooting was a startling event; Perez

made the statements soon after he was shot; and the statements

                                          32 

 
 

related to the event.

¶66           Victim Rodriguez was shot on May 31, 2006, and Phoenix

Police Officer Baiardi was one of the first to arrive on the

scene.     Baiardi testified that Rodriguez told him he was shot

and that “[h]e was in a lot of pain” and that “I tried to get as

much     information     as     possible,         because     when     the    shooting

occurred, I wasn’t too far from the scene.”                     He also testified

that Rodriguez “told me that . . . the shot, he believed, came

from a white vehicle that was going westbound on Indian School

. . . [T]he one thing I do remember he said is that it was a

white imported car or white foreign vehicle.”

¶67           Rodriguez’ statements to Officer Baiardi were properly

admitted as excited utterances.                  Rodriguez was the victim of a

shooting and he made statements about the event soon after it

occurred.

              3. Other Acts Evidence

¶68           Hausner   also    argues     that     the     trial    court    erred   in

allowing the State to submit “other acts” evidence that he (1)

is bisexual, (2) set fire to a tree, shoplifted, and slashed

tires    at   a   casino,     (3)    was   present    when     his    brother,    Jeff

Hausner,      stabbed   a     man,   (4)    while     in     court,    made    obscene

gestures to victim Paul Patrick and Rebecca Estrada, the mother

of murder victim David Estrada, and (5) was physically violent

                                           33 

 
 

toward his ex-wife.       We review a trial court’s decision to admit

evidence of other acts for an abuse of discretion.                           State v.

Villalobos, 225 Ariz. 74, 80 ¶ 18, 235 P.3d 227, 233 (2010).

¶69          Evidence of “other acts” generally “is not admissible

to prove the character of a person in order to show action in

conformity    therewith.”       Ariz.     R.    Evid.    404(b).        But     it    is

admissible     “for    other   purposes,       such     as    proof     of     motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.”               Id.    When the State seeks to

admit evidence of other acts of the defendant, it must prove by

clear and convincing evidence that the defendant committed the

other acts; they must be offered for a proper purpose; they must

be    relevant;   and,   consistent     with     Rule   403,    their        probative

value must not be substantially outweighed by the danger of

unfair prejudice.        See State v. Terrazas, 189 Ariz. 580, 583,

944 P.2d 1194, 1197 (1997).

               a. Evidence of Hausner’s bisexuality

¶70          Hausner first challenges the trial court’s admitting

evidence of his alleged bisexuality.                  During the guilt phase,

Hausner    testified     on    direct    examination         that     Dieteman       was

bisexual, that he was not, and that several sexually-themed text

messages between the two of them were intended to be humorous.

Over his objections, the court allowed the State to ask Hausner

                                        34 

 
 

on    cross-examination           about    his    sexuality       and    to    introduce

testimony by his ex-wife that she had seen him kiss another man

on the neck and that he had once told her he thought he was gay.

The trial court ruled that Hausner had opened the door to the

issue of his sexual orientation by his own testimony and that

this evidence was relevant to his relationship with Dieteman,

who participated with Hausner in many of the crimes and whom

Hausner suggested was responsible for them.                         The trial court

also instructed the jury, before its deliberations, that:

        “[a]person’s sexuality does not make it any more or
        less likely that a person committed the crimes alleged
        in the indictment.      You are not to consider any
        allegation of bisexuality to consider if Mr. Hausner
        committed the crimes alleged in this indictment.”

¶71          The trial court did not clearly abuse its discretion

in    admitting   this      evidence,       particularly         given    that     Hausner

himself     placed    his     bisexuality         at    issue     and    attempted        to

distance     himself        from      Dieteman         by   characterizing              their

respective sexual orientations.                   We underscore, however, that

trial    courts    must      be    cautious       in   admitting        evidence    of     a

witness’s    sexual        orientation       in   cases     in    which       it   is    not

directly relevant, given the danger that it may be unfairly

prejudicial.         Any    error     in    admitting       evidence      of   Hausner’s

bisexuality,      moreover,        was     harmless     because    the     trial    court

instructed     the     jurors       not     to    consider       such     evidence        in

                                            35 

 
 

determining if Hausner committed the alleged crimes.                         See State

v. Velazquez, 216 Ariz. 300, 307-08 ¶ 24, 166 P.3d 91, 98-99

(2007).

                   b. Acts of vandalism, arson, and shoplifting

¶72          Hausner     also     contends       the     trial    court      erred    in

admitting evidence that he and Dieteman set a palm tree on fire,

shoplifted, and slashed tires in a casino parking lot.                          During

his direct examination, Hausner testified that he would never

harm a person or an animal, that he “would never harm anything,”

and that he was “not a violent person.”                       On cross-examination,

Hausner     denied     shoplifting      or    setting     a    tree   on     fire,   but

admitted slashing tires.              Dieteman subsequently testified that

he was with Hausner and Jeff when they set fire to a tree and

that   he    and    Hausner     regularly     shoplifted       alcohol,      DVDs,   and

games.      The State also presented testimony from security guards

at the casino where the tires were slashed and from a Chandler

police officer regarding the tree burning.

¶73          The     trial    court     did     not    abuse    its   discretion      in

allowing other acts evidence tending to show Hausner’s violent

nature,     including     the    tire    slashing       and     the   tree    burning.

Hausner opened the door to such evidence, and thereby waived any

objection to its admission by testifying on direct that he was

not a violent person.           See State v. Arriola, 99 Ariz. 332, 334-

                                          36 

 
 

35, 409 P.2d 37, 39-40 (1965).                    Evidence Rule 404(a)(1) allows

the admission of “[e]vidence of a pertinent trait of character

offered by an accused, or by the prosecution to rebut the same.”

This    rule    allowed     the     State   to     introduce      evidence      to   rebut

Hausner’s testimony about his non-violent nature.

¶74            Dieteman’s     testimony       regarding          shoplifting      habits,

however, is not admissible to rebut Hausner’s assertions that he

is not violent.        Such evidence was perhaps of some relevance in

rebutting      Hausner’s      assertion       that      he     magnanimously      allowed

Dieteman to live with him, inasmuch as both were earning money

by     stealing.       In     any    event,       any    error     in    admitting     the

shoplifting        evidence    was     harmless         because    the    trial      court

instructed the jury that it could not consider the evidence to

determine Hausner’s character or character trait or to determine

that     he    acted   in     conformity      with       the     same    and    therefore

committed the charged offenses.

                 c. Evidence of stabbing

¶75            On direct examination, Hausner testified that he knew

that his brother Jeff had been arrested for stabbing a man, but

Hausner said he was not present at this stabbing.                              He further

testified that he had never been present with Jeff and Dieteman

at a stabbing and had not met Dieteman until several days after

the stabbing.

                                            37 

 
 

¶76         Over     Hausner’s     objection,        the    State     subsequently

elicited    testimony      from    Dieteman    that    he    and     Hausner     were

present    when    Jeff    committed   the    stabbing.        Because     Hausner

discussed the stabbing in direct examination, he cannot claim

error from the State’s introducing evidence to contradict his

denials.    See Arriola, 99 Ariz. at 334-35, 409 P.2d at 39-40.

                 d. Obscene gestures in courtroom

¶77         During    cross-examination,       Hausner      testified     that     he

thought the murders were tragic and had felt that way during the

entire    trial.     The    prosecutor    asked      Hausner   if    he   had    made

obscene gestures in the courtroom to victim Paul Patrick and to

Roberta Estrada, mother of victim David Estrada.                    Hausner denied

doing so.        Over Hausner’s objection, the State later presented

testimony by Patrick and Roberta Estrada, each of whom said that

Hausner had gestured to them by raising his middle finger.

¶78         The trial court did not err in admitting this evidence

of    Hausner’s    in-court   demeanor,      given    Hausner’s      assertion    on

cross-examination that throughout the trial he had thought the

murders were tragic.

                 e. Acts of violence against ex-wife

¶79         The trial court permitted Hausner’s ex-wife to testify

to    specific    incidents   of   violence,      including    that,      in    2001,

Hausner drove her to Wickenberg and held her at gunpoint in the

                                       38 

 
 

desert, and on another occasion, he chased her down in his car,

caught her, and ripped her clothing.

¶80          Hausner opened the door to this evidence by testifying

that he was non-violent and would never harm anyone or anything.

The court specifically found that the ex-wife’s testimony about

Hausner’s prior assaults was admissible under Rule 404(b) and

not unduly prejudicial under Rule 403.                   On the day his ex-wife

testified,     the     court     gave    the     jury    an    appropriate     404(b)

limiting instruction, and the court in its final instructions

generally directed the jurors that they could not consider other

acts to show that Hausner acted in conformity with a character

trait and therefore committed the charged offenses.                        The trial

court did not abuse its discretion in admitting this evidence.

               f. Denial of surrebuttal

¶81          Hausner     contends       that     the    trial    court     erred    by

refusing to allow him to present surrebuttal evidence to the

other acts evidence.

¶82          Because    trial     courts        must    be    able   to   limit    the

presentation    of     witnesses        and     other   evidence     on    collateral

issues, only rarely will a trial court abuse its discretion in

denying surrebuttal.           State v. Steelman, 120 Ariz. 301, 319, 585

P.2d 1213, 1231 (1978); see Ariz. R. Crim. P. 19.1.                       Hausner had

an opportunity to deny the other acts during his testimony, and

                                          39 

 
 

the trial court did not abuse its discretion in refusing to

allow surrebuttal testimony.

      F. Constitutionality of Abuse of Discretion Review

¶83           Under   A.R.S.    § 13-756(A),       this   Court   reviews      death

sentences to determine if the jury abused its discretion in

finding   aggravating       circumstances      and    imposing    a   sentence   of

death.      Hausner argues that the abuse of discretion standard

violates the Eighth Amendment or due process.                  Recognizing that

State v. Martinez, 218 Ariz. 421, 189 P.3d 348 (2008), rejected

arguments that the Eighth Amendment requires independent review

of    death    sentences,      Hausner    argues      that   Martinez    did     not

consider the importance of independent review in ensuring that

Arizona’s     sentencing     scheme      “genuinely    narrows    the   class    of

persons eligible for the death penalty.”

¶84           We decline to reconsider Martinez.             See State v. Cota,

229 Ariz. 136, 153 ¶ 92, 272 P.3d 1027, 1044 (2012) (citing

Martinez in observing “we have already determined that abuse of

discretion review is constitutional”).

      G. Jury Findings that Four Murders were “Especially
         Heinous, Cruel, or Depraved”

¶85           Under A.R.S. § 13–751(F)(6), a first degree murder is

aggravated when “[t]he defendant committed the offense in an

especially heinous, cruel or depraved manner.”                    Hausner argues


                                         40 

 
 

that    the   jury    abused   its   discretion            in   finding   the    (F)(6)

aggravating factor with respect to the murders of victims Ortis,

Carillo, Gutierrez-Cruz, and Blasnek.                  The jury found that each

of    these   murders    was   committed        in    an    especially     heinous      or

depraved manner; it also found the murders of Gutierrez-Cruz and

Blasnek were especially cruel.

¶86           “Heinousness and depravity go to a defendant’s mental

state as reflected in his words and actions at or near the time

of the offense.”        State v. Johnson, 212 Ariz. 425, 439 ¶ 55, 133

P.3d 735, 749 (2006).          Cruelty, in contrast, depends in part on

the victim’s mental state.           To establish cruelty, the State must

prove beyond a reasonable doubt that “the victim consciously

experienced physical or mental pain prior to death, and the

defendant knew or should have known that suffering would occur.”

Martinez, 218 Ariz. at 436 ¶ 70, 189 P.3d at 363 (citation and

internal quotation marks omitted).

¶87           To establish that the murders were especially heinous

or    depraved,   the    State    presented          evidence     that    Hausner      had

relished the murders.            “Relishing refers to words or actions

that show debasement or perversion,” State v. Greene, 192 Ariz.

431, 439 ¶ 34, 967 P.2d 106, 114 (1998) (internal quotation

omitted), and “requires that the defendant say or do something,

other    than   the   commission     of    the       crime      itself,   to    show    he

                                          41 

 
 

savored the murder.”          State v. Doerr, 193 Ariz. 56, 67-68 ¶ 54,

969 P.2d 1168, 1179-80 (1998) (internal quotation omitted).                      A

defendant’s      “post-murder     statements       suggesting       indifference,

callousness, or lack of remorse” can constitute relishing, so

long as “they indicate, beyond a reasonable doubt, that the

killer savored or enjoyed the murder at or near the time of the

murder.”    Greene, 192 Ariz. at 440-41 ¶ 39, 967 P.2d at 115-16.

¶88         The jury here was instructed as follows:

      Defendant relished the murder if defendant, by words or
      actions, savored the murders.    These words or actions
      must show debasement or perversion and not merely the
      defendant had a vile state of mind or callous attitude.

      Statements suggesting indifference as well as those
      reflecting calculated plan to kill, satisfaction over
      the apparent success of the plan, extreme callousness,
      lack of remorse, or bragging after the murder are not
      enough unless there is evidence that the defendant
      fully relished the act of murder at or near the time of
      the killing.

¶89         Hausner     does    not    challenge       the   instructions     with

respect     to   relishing,      but   instead     argues      that   there     was

insufficient evidence from which the jury could conclude that he

relished the act of killing “at the time he was doing it.”

¶90         In reviewing whether a jury has abused its discretion

in finding an aggravating factor, 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,
                                        42 

 
 

218 ¶ 93, 141 P.3d 368, 393 (2006).                 “Substantial evidence is

such proof that reasonable persons could accept as adequate and

sufficient to support a conclusion of [the] defendant’s guilt

beyond a reasonable doubt.”          Id. (internal quotations omitted).

¶91        Substantial evidence supports the jury’s finding that

Hausner   relished      the   four   murders   at     or   near   the   time   he

committed them.      Blasnek was his last victim; he killed her on

the night of July 30, 2006.            In recorded conversations in his

apartment on August 3, Hausner joked with Dieteman about killing

Blasnek and other victims and declared, “I love shooting people

in the back, it’s so much fun.”          He and Dieteman read each other

articles about the serial shooting investigation and Blasnek’s

murder.    Responding to a police tally of six victims, Hausner

said, “It’s higher than that!          What about the guy I fucking shot

at 27th Avenue in the yard?”          When Dieteman told him that police

were    looking   for     similar    crimes    in    other   states,    Hausner

responded, “so we’re being copycatted, Sam?                   We’re pioneers,

Sam?    We’re leading the way for a better life for everybody,

Sam?”

¶92        Hausner, after listening to Dieteman read an article

about the Blasnek shooting, said “She was on her knees.                    ‘Oh,

I’ve been shot!’        Blood pouring out, right.”         He then said, in a

voice mimicking Blasnek’s, “I’ve been shot,” and he and Dieteman

                                       43 

 
 

mimicked crying, laughed, and referred to Blasnek scornfully.

Reading from an obituary, Dieteman later asked Hausner if he

knew a “Blasnek,” and Hausner responded “I know a ‘blast neck.’”

Hausner also recorded, on a piece of paper, Blasnek’s name and

the date and time of her murder.

¶93          Gutierrez-Cruz, the next-to-last victim, was shot by

Hausner and Dieteman with a .410 shotgun on May 2, 2006, and

died while in surgery.               Two days after the shooting, Hausner,

according to Dieteman, came to their apartment in a “jovial”

mood,    with   a    “big    grin     on    his     face,”      and     read   Dieteman    a

newspaper article describing the murder.                     Hausner told Dieteman,

“Oh, dude, you got the first murder of the year in Scottsdale.

I’m jealous.”

¶94          Hausner murdered Carillo and Ortis within two blocks

of    each   other   in     Phoenix    on     December       29,      2005.     That   same

evening, in the same area, he shot and attempted to kill another

pedestrian, who survived.             The following night, Hausner shot and

attempted to kill yet another victim, who also survived.                                  He

kept news clippings about each of the four murders.

¶95          Hausner      argues      that     retaining         news     clippings      and

bragging     about    a     murder    after        the   fact      do   not    suffice    to

establish relishing.          The evidence showed, however, that Hausner

did not merely keep some news stories or brag about the murders.

                                             44 

 
 

Hausner demonstrated through his words and actions that, as he

said, he “loved shooting people in the back.”                      Words or actions

after a murder may prove the murderer savored the act of killing

at or near the time it occurred.               See State v. West, 176 Ariz.

432, 437, 862 P.2d 192, 197 (1993) (defendant bragging to multiple

people about murdering older man and describing how he killed

him   was   relishing),    overruled      on    other    grounds          by    State    v.

Rodriguez, 192 Ariz. 58, 961 P.2d 1006 (1998).                            The evidence

amply supported a jury finding that Hausner savored the murders

at or near the time he committed them.

¶96          Hausner    also     argues      that   the        jury       abused        its

discretion in finding the murders of Gutierrez-Cruz and Blasnek

especially    cruel.      Because     the      finding    that      each       of   these

murders was heinous or depraved suffices to establish the (F)(6)

aggravator, we need not address the jury’s finding of cruelty.

See State v. Morris, 215 Ariz. 324, 341 ¶ 80, 160 P.3d 203, 220

(2007).

      H. Jury Findings that Certain Murders were Committed in a
         “Cold, Calculated Manner”

¶97          The (F)(13) aggravator qualifies a first degree murder

for the death penalty if “[t]he offense was committed in a cold,

calculated     manner     without      pretense         of        moral        or   legal

justification.”        A.R.S. § 13-751(F)(13).               The jury found this

aggravator    with     respect   to   the      murders       of    Ortis,       Carillo,
                                       45 

 
 

Gutierrez-Cruz, and Blasnek.

¶98          Hausner      contends              that   the     (F)(13)         aggravator      is

unconstitutional          on        its     face,      the     jury       was       erroneously

instructed as to its meaning, it does not sufficiently narrow

the application of the death penalty, and it was not supported

by the evidence.

¶99          We    review      constitutional             issues    de      novo,    and,   when

possible, construe statutes to uphold their constitutionality.

State v. Hargrave, 225 Ariz. 1, 13 ¶ 42, 234 P.3d 569, 581

(2010).     The death penalty may not be imposed under sentencing

procedures that create a substantial risk that the punishment

will be inflicted in an arbitrary and capricious manner.                                 Furman

v. Georgia, 408 U.S. 238, 256 (1972).                            To pass constitutional

muster,    then,     an        aggravator          must      meet     two      criteria:      the

circumstance may not apply to every defendant convicted of a

murder, but only to a subclass, and the aggravating circumstance

may not be overly vague.                  Tuilaepa v. California, 512 U.S. 967,

972 (1994).

¶100         Vagueness         is     a    difficult       concept       to     analyze,      but

sentencing    factors          that       the    Supreme      Court      has    found    to    be

impermissibly       vague       have       often       been    those        that    present    a

“specific proposition that the sentencer had to find true or

false     (e.g.,     whether          the        crime     was      especially         heinous,

                                                 46 

 
 

atrocious, or cruel).”             Id. at 974.           Where a sentencing factor

is a specific proposition, such as “cold and calculated,” the

concern is that it have some “common-sense core of meaning . . .

that criminal juries should be capable of understanding.”                              Id.

at 975 (internal quotation omitted).

¶101           Although     this        Court      has      never      addressed       the

constitutionality         of    the      (F)(13)        aggravator,     state   supreme

courts    in      Illinois        and    Florida         have    considered     similar

aggravators.          The Illinois Supreme Court upheld an aggravator

for    murders    that     were    “cold,       calculated,      and    premeditated,”

finding that it was not unconstitutionally vague.                             People v.

Johnson, 609 N.E.2d 294, 372-73 (Ill. 1993).                            (Illinois has

since abolished the death penalty.)                      In contrast, the Florida

Supreme    Court       ruled      that     Florida’s        cold,      calculated      and

premeditated      (“CCP”)      aggravator         was    unconstitutionally       vague.

Jackson v. State, 648 So. 2d 85, 90 (Fla. 1994).                           The Florida

statute made murders death-eligible if they were “committed in a

cold, calculated, and premeditated manner without any pretense

of     moral     or     legal      justification.”               Fla.     Stat.       Ann.

§ 921.141(5)(i).          The court in Jackson concluded that “[w]ithout

the benefit of an explanation that some ‘heightened’ form of

premeditation is required to find CCP, a jury may automatically

characterize      every     premeditated          murder    as   involving      the    CCP

                                            47 

 
 

aggravator.”      648 So. 2d at 89.

¶102        Jackson       is instructive.                Although Arizona’s statute

differs from Florida’s in that it omits the word “premeditated,”

and    instead    allows    for     death          penalty   eligibility      if     “[t]he

offense    was    committed     in       a    cold,      calculated    manner      without

pretense    of    moral    or   legal        justification,”         Arizona’s     (F)(13)

aggravator otherwise tracks the language of Florida’s statute.

A.R.S.     § 13-751(F)(13).          In Jackson, the court found the jury

received “no instruction to illuminate the meaning of the terms

‘cold,’ ‘calculated,’ or ‘premeditated.’”                         648 So. 2d at 89-90.

Without    further    instruction,            the     Jackson      court    noted,    “[i]t

would also be reasonable for the general public to consider

premeditated first degree murder as ‘cold-blooded murder.’”                             Id.

at 89.     On its face, Arizona’s (F)(13) aggravator suffers from

the same vagueness infirmity as Florida’s statute.

¶103        An aggravator that is vague on its face, however, can

be     properly    narrowed         by       a      court    to     bring     it     within

constitutional bounds.            State v. Chappell, 225 Ariz. 229, 237

¶ 26, 236 P.3d 1176, 1184 (2010), cert. denied, 131 S. Ct. 1485

(2011)    (“vagueness.      .   .    .       may    be   remedied    with    appropriate

narrowing instructions.”) (internal quotation omitted); see also

State v. Tucker, 215 Ariz. 298, 310 ¶ 28, 160 P.3d 177, 189

(2007); Walton v. Arizona, 497 U.S. 639, 655 (1990), overruled

                                              48 

 
 

on   other    grounds       by   Ring,   536        U.S.       584.     In     Jackson,     upon

remand,      Florida’s      CCP    aggravator            was    narrowed       through      jury

instructions        defining      its    terms,          648    So.    2d    at    89-90,    and

subsequent       death     sentences     in    Florida,          under       these   narrowing

instructions, have been upheld.                     See, e.g., McWatters v. State,

36 So. 3d 613, 643 (Fla. 2010), cert. denied, 131 S. Ct. 510

(2010).

¶104          The    trial       court   here        gave       narrowing         instructions

substantially        the    same    as    those          approved       in     Jackson.       It

clarified     to     the    jury    that      “all        first       degree      premeditated

murders are, to some extent, committed in a cold, calculated

manner,” but distinguished this aggravator as one that “cannot

be found to exist unless . . . the defendant exhibited a cold

intent to kill and is more contemplative, more methodical, more

controlled       than     that    necessary         to    commit       premeditated       first

degree murder.”           The instruction further defined the term “cold”

as “a product of a calm and cool reflection” and “calculated” as

“having a careful plan or prearranged design to commit murder.”

The court emphasized that the jury must look to the defendant’s

state of mind at the time of the offense to determine whether

there exists any pretense of moral or legal justification that

rebuts    cold      and    calculated,     and       that       it    must    find   beyond    a

reasonable doubt that there is (1) a careful plan or prearranged

                                              49 

 
 

design before the murder, and (2) a cool and calm reflection for

a substantial period of time before the murder.

¶105       This instruction adequately narrowed the aggravator,

making it clear that it is not the cold and calculated nature of

every murder that will satisfy it, but that the jury must find

some degree of reflection and planning that goes                                beyond     the

premeditation required to find first degree murder, channeling

the jury’s discretion by “clear and objective standards” that

provide “specific and detailed guidance.”                         Godfrey v. Georgia,

446 U.S. 420, 428 (1980).

¶106       Apart    from       arguing    that        the    (F)(13)         aggravator     is

facially   vague,       Hausner   also     contends          that       the    trial     court

incorrectly       defined       particular        terms           in     its       narrowing

instructions.           Specifically,       he        argues:          the    instructions

incorrectly       defined       “cold;”         the     term           “calculated”        was

superfluous;      and    the    trial    court’s        explanation           of    “without

pretense of moral or legal justification” “makes no sense at all

in conjunction with Arizona’s law.”

¶107       “We     review       de      novo      whether          jury        instructions

adequately state the law.”               State v. Gallardo, 225 Ariz. 560,

567 ¶ 30, 242 P.3d 159, 166 (2010) (internal quotation omitted).

Because Hausner did not object to the (F)(13) instructions on

these   grounds    below,      however,     he    is        not   entitled         to   relief

                                          50 

 
 

unless he can show fundamental error.

¶108          The trial court did not incorrectly define the terms

of the (F)(13) aggravator.              The court instructed the jury that

“[c]old    means   the    murder   was     a    product    of     a   calm   and    cool

reflection.        Calculated       means       having    a       careful    plan     or

prearranged     design     to   commit     murder.”           Arizona    cases      have

previously used the terms “cold” or “cold-blooded” to describe

murders or crimes marked by a lack of emotion in the act of

killing.      See, e.g., King, 180 Ariz. at 286, 883 P.2d at 1042

(describing the thought out, deliberate killing to eliminate a

witness as “cold-blooded”); State v. Schurz, 176 Ariz. 46, 56,

859 P.2d 156, 166 (1993) (describing the deliberate, careful

burning to death of a person who attempted to flee as “cold-

blooded”); Gretzler, 135 Ariz at 58, 659 P.2d at 17 (describing

the    cold   blooded    murder    of    nine    persons,       including     shooting

sleeping children as they lay in their beds).                     Nor did the trial

court’s definition make superfluous the term “calculated,” which

the    instructions      defined   to    mean    “having      a    careful    plan    or

prearranged design to commit murder.”

¶109          Hausner also faults the trial court’s definition of

“without pretense of moral or legal justification.”                          The court

instructed the jury that this phrase means without “anything of

justification or excuse that, though insufficient to reduce the

                                         51 

 
 

degree    of    murder,     nonetheless    rebuts    the    otherwise      cold,

calculated nature of the murder.”            Hausner contends the court

should have explained to the jury the legal justifications that

exist under Arizona law.         But this mistakenly presumes that the

jury could only consider legally recognized justifications.                  The

statute refers more broadly to a “pretense” of legal or moral

justification, and the trial court reasonably defined this as

“anything of justification or excuse.”

¶110        The    trial     court   properly       narrowed      the    (F)(13)

aggravator so that it was constitutional, despite its facial

vagueness, and it defined the terms to the jury in a permissible

manner that did not constitute fundamental error.

¶111        Hausner also argues the jury abused its discretion in

finding   the     (F)(13)   aggravator,    contending      that   his    murders

could not have been “cold and calculated” because they were

“random.”       We disagree.     The fact that victims were randomly

targeted does not preclude a finding of the elements of the

(F)(13) aggravator.         There is ample evidence that Hausner had a

careful plan or prearranged design for each of the four murders

even if he randomly identified the particular victim.                   The jury

could also find that he exhibited a cool and calm reflection for

a substantial period of time before killing and that he had no

pretense of moral or legal justification or excuse.

                                     52 

 
 

¶112         We note that Hausner has not argued that there was any

constitutional error based on the trial court adopting narrowing

instructions for (F)(13) that had not been approved by this

Court before he committed the relevant murders.                           Cf. State v.

Schmidt, 220 Ariz. 563, 566 ¶ 10, 208 P.3d 214, 217 (2009)

(holding that use of vaguely defined statutory aggravator as

sole factor to enhance sentence violated due process).                            We do

not address whether the trial court erred in this respect.

¶113         Finally, we conclude that any error by the trial court

in applying the (F)(13) aggravator - and we have not identified

any    for   reasons    explained    above        -     was    harmless      beyond     a

reasonable doubt.       This Court may apply “harmless-error analysis

when errors [regarding sentencing factors] have occurred in a

capital sentencing proceeding,” Clemons v. Mississippi, 494 U.S.

738,   754   (1990),    so   long   as     the    errors       do    not    permit    the

sentencer to consider otherwise inadmissible evidence.                          Id. n.5;

see Brown v. Sanders, 546 U.S. 212, 220-21 (2006) (stating that

due    process   requires    reversal      of    death        sentence     if    invalid

sentencing factor allowed sentencer to consider evidence that

otherwise    would     not   have   been       before    it);       cf.    Jennings    v.

McDonough, 490 F.3d 1230, 1249-50 (11th Cir. 2007) (approving

Florida Supreme Court’s harmless error analysis with regard to

vaguely defined aggravator).

                                         53 

 
 

¶114          The use of the (F)(13) aggravator did not allow the

jury to consider any evidence that otherwise would not have been

before it.       The jury properly found three other aggravators –

the (F)(1), (2), and (6) – with respect to each of the four

victims for which it also found the (F)(13).                   Hausner presented

no mitigation evidence.              In these circumstances, we conclude

that    any     error      regarding       the    (F)(13)   aggravator     did   not

influence the jury’s decision to impose death sentences.                         Cf.

State v. Sansing, 206 Ariz. 232, 241 ¶ 38, 77 P.3d 30, 39 (2003)

(affirming court-imposed death sentence upon concluding that any

reasonable      jury       would    have    found    the    mitigation     was   not

sufficiently substantial to call for leniency).

       I. Waiver of Presentation of Mitigation

¶115          Hausner argues that the trial court should not have

allowed       him,    over    his    lawyers’       objection,   to      waive   the

presentation of mitigation during the penalty phase.

¶116          A defendant may waive mitigation if he is competent

and     makes        the     decision       knowingly,      intelligently,       and

voluntarily.         State v. Murdaugh, 209 Ariz. 19, 33-34 ¶¶ 70-71,

97 P.3d 844, 858-59 (2004).                The trial court ordered Hausner to

undergo a competency examination when he stated that he wished

to waive the presentation of mitigating evidence.                        After the

examiner concluded that Hausner was competent, the trial court

                                            54 

 
 

confirmed with Hausner that he had discussed his decision and

its consequences with his counsel.                The court then found that he

had knowingly, intelligently, and voluntarily waived mitigation.

Hausner does not challenge these findings.

¶117          During the penalty phase, Hausner’s lawyers did not

make    an     opening       statement     or    closing     argument.           During

allocution, Hausner apologized to his family and to the victims,

but    he    also    urged   the   jury   to     sentence    him       to   death:   “I’m

willing to take whatever punishment you guys give me, and I

firmly believe, to help the victims heal, that should be the

death penalty.”         The trial court instructed the jury that it was

not limited to considering mitigating circumstances offered by

the defendant, that it must consider any relevant mitigating

evidence offered during any phase of the trial, and that each

juror   must      individually     determine      whether        the   mitigation     was

sufficiently substantial to call for leniency.

¶118          Although the proceedings here complied with Murdaugh,

Hausner argues that we should reconsider that decision.                                He

contends that allowing a defendant to waive mitigation prevents

the jury from considering all relevant mitigation in determining

whether      to     impose   a   death    sentence.         He    also      argues   that

Murdaugh misinterpreted Blystone v. Pennsylvania, 494 U.S. 299

(1990).      These arguments are not convincing.                   Blystone rejected

                                           55 

 
 

an Eighth Amendment challenge to a death sentence imposed by a

jury that was instructed, as was the jury here, that it should

consider any mitigation evidence presented at trial in deciding

on the penalty.           Although the defendant in Blystone waived the

presentation       of     mitigation,       the    Supreme       Court   held    that   the

sentencing procedures did not impermissibly preclude the jury

from considering all relevant mitigation evidence presented at

trial.     See id at 307-08.

¶119            Hausner also has no viable argument that the Sixth

Amendment requires the defense to present mitigation despite the

defendant’s waiver.            In Schriro v. Landrigan, the Court held

that a defendant could not establish the prejudice prong for a

claim of ineffective assistance of counsel related to counsel’s

failure to investigate mitigation evidence when the defendant

decided to not present any mitigation.                     550 U.S. 465, 476, 481

(2007).         Indeed, requiring the defense to present mitigating

evidence over the defendant’s opposition arguably would conflict

with      the     defendant’s        Sixth         Amendment        right       to   self-

representation.           See United States v. Davis, 285 F.3d 378, 384–

85 (5th Cir. 2002); People v. Blair, 115 P.3d 1145, 1177-78

(Cal. 2005).

¶120            Hausner    notes     that    the     New     Jersey      Supreme     Court,

recognizing        the     state’s    interest        in     a    fair    and    reliable

                                             56 

 
 

sentencing     determination,        has     held      that    mitigation    must    be

presented     even     over    the    defendant’s         objection.        State     v.

Koedatich,     548    A.2d    939,   992-97       (N.J.   1988).       We   find    more

persuasive the majority of courts that have declined to follow

Koedatich and instead have held that a capital defendant may

waive the presentation of mitigation.                     See, e.g., Blair, 115

P.3d    at   1178-79      (citing    state       and   federal   cases);     State    v.

Jordan, 804 N.E.2d 1, 16-17 (Ohio 2004) (rejecting Koedatich as

inconsistent with autonomy of defendant and for its reliance on

subsequently         repudiated      California         case     law);      State     v.

Arguelles, 63 P.3d 731, 752-53 (Utah 2003) (noting that the

“vast majority” of courts have held that a capital defendant may

waive the presentation of mitigation and declining to follow

Koedatich).

¶121         The State correctly notes that the Supreme Court has

never    imposed     an    “informed    and       knowing”     requirement    upon    a

defendant’s decision to waive the presentation of mitigation,

see Landrigan, 550 U.S. at 47, but this Court has consistently

required a voluntary, knowing, and intelligent waiver of this

important constitutional right, see, e.g., State v. Delahanty,

226 Ariz. 502, 508 ¶ 34, 250 P.3d 1131, 1137 (2011) (affirming

capital sentence imposed after trial court ordered competency

evaluation     and     found    defendant         knowingly      and   intelligently

                                           57 

 
 

waived right to present mitigation); State v. Bearup, 221 Ariz.

163, 173 n.3, 211 P.3d 684, 694 (2009) (noting trial court had

conducted    colloquies       and    determined          defendant       had   knowingly,

intelligently, and voluntarily waived right to counsel and to

present mitigation during penalty phase).                       Here, the trial court

took steps to ensure that Hausner was competent and that he

knowingly, intelligently, and voluntarily waived mitigation.

¶122           We commend the approach adopted by the trial court

and, in our supervisory capacity, direct that similar procedures

be   prospectively      applied     when        a    capital    defendant      elects   to

waive the presentation of all mitigation.                       See Ariz. Const. art.

6, § 3; cf. State v. Ashworth, 706 N.E.2d 1231, 1237 (Ohio 1999)

(requiring      trial    court      to     inquire       if     the     waiver     of   all

mitigating evidence in a capital case is knowing, voluntary, and

competent).      The trial court should engage the defendant in a

colloquy to ensure that the defendant understands the penalty

phase    process,       the   right      to         present     mitigation,      and    the

consequences     of     waiving     this    right.            Defense    counsel    should

confirm on the record that he or she has discussed with the

defendant the nature of the mitigation that could be presented

and the consequences of waiver.                 The court should confirm on the

record   that     the    defendant         is       waiving     the     presentation    of

mitigation knowingly, intelligently, and voluntarily.                              If the

                                            58 

 
 

circumstances           present       questions             about        the        defendant’s

competence,       the     court    should           order      an    appropriate           mental

examination before accepting the waiver. These procedures will

help ensure that waivers are made on an informed and voluntary

basis and, by avoiding subsequent questions on these issues,

also facilitate the review of any related capital sentences.

       J. Denial of Counsel’s Motion to Withdraw

¶123        Hausner also argues that the trial court abused its

discretion by denying his counsel’s motion to withdraw after

allowing him to waive the presentation of mitigation evidence.

Defense    counsel      may    move    to    withdraw          in    a   criminal        case   if

counsel believes that continued representation will or is likely

to result in the violation of the Rules of Professional Conduct

or other law.           See Rodriquez v. State, 129 Ariz. 67, 70, 628

P.2d 950, 953 (1981) (discussing motion to withdraw based on

violation    of    Disciplinary          Rules);         Ariz.      Sup.   Ct.      R.    41,    ER

1.16(a)(1), (c).          We review a trial court’s ruling on a motion

to withdraw for abuse of discretion.                        State v. Jones, 185 Ariz.

471, 482, 917 P.2d 200, 211 (1996).

¶124        Hausner       argues      that,      once     he     elected       to    waive      the

presentation      of     mitigation       and       to    prevent        his    lawyers        from

arguing    for    leniency,        the      lawyers’        continued          representation

violated    Guideline         10.11(L)      of      the     ABA      Guidelines          for    the

                                              59 

 
 

Appointment of Defense Counsel in Death Penalty Cases (the “ABA

Guidelines”) and ER 1.16 of the Arizona Rules of Professional

Conduct.           The      ABA     guideline       requires         counsel           to     fully

investigate mitigation and “to take advantage of all appropriate

opportunities to argue why death is not suitable punishment.”

ER    1.16    provides       that    a    lawyer        shall    withdraw        if    continued

representation          would     result     in     a    violation        of     law    and     may

withdraw      if     the    client       insists    upon        taking    action       that    the

lawyer       considers      repugnant       or     with    which     the        lawyer      has   a

fundamental disagreement.

¶125           The    ABA    Guidelines       are,       under     our        Criminal      Rules,

guidelines and not requirements.                        By its terms, Criminal Rule

6.8(b)(1)(iii) states that trial counsel “shall be familiar with

and    guided      by      the    performance       standards”           of    the     2003    ABA

Guidelines, and the 2006 comment to this Rule notes that “[s]ome

guidelines may not be applicable to Arizona practice or to the

circumstances of a particular case.”                      Moreover, ER 1.16 does not

mandate withdrawal any time continued representation may result

in a violation of an ethical rule or other law; instead ER

1.16(c) provides that “[w]hen ordered to do so by a tribunal, a

lawyer shall continue the representation notwithstanding good

cause for terminating the representation.”

¶126           Because Hausner was entitled to waive the presentation

                                              60 

 
 

of mitigation, his lawyers were ethically required to abide by

that   decision.          See    ER   1.2    (noting    that     a   lawyer   generally

“shall abide by the client’s decisions concerning the objectives

of representation” and that, in criminal cases, the lawyer shall

“abide by the client’s decision, after consultation with the

lawyer, as to a plea to be entered, whether to waive jury trial

and whether the client will testify”).                         Hausner’s decision to

waive mitigation and to instruct his lawyers not to argue for a

life sentence unquestionably put them in a difficult position

and one they may have found morally repugnant.                       The trial court,

however, did not abuse its discretion in denying their motion to

withdraw.

       K. Review of Death Sentences

¶127          Because      the    murders     occurred     after     August     1,   2002,

this Court must review Hausner’s death sentences to “determine

whether   the      trier    of    fact      abused   its    discretion     in    finding

aggravating     circumstances         and     imposing     a    sentence   of    death.”

A.R.S. § 13–756(A).             A finding of an aggravating circumstance is

not an abuse of discretion if there is “any reasonable evidence

in the record to sustain it.”                  Morris, 215 Ariz. at 341 ¶ 77,

160    P.3d   at    220    (internal        quotation      omitted).       The       jury's

determination that death is the appropriate sentence will not be

reversed “so long as any reasonable jury could have concluded

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that     the    mitigation        established          by    the    defendant          was    not

sufficiently substantial to call for leniency.”                           Id. ¶ 81.

               1. Aggravating Circumstances

¶128           For reasons explained above, the jury did not abuse

its discretion in finding the (F)(6) and (F)(13) aggravating

factors with respect to victims Carillo, Ortis, Gutierrez-Cruz,

and Blasnek.          Sufficient evidence also exists to support the

jury’s    finding      of    the       (F)(1)     (conviction           for    other    offense

subject to sentence of life imprisonment or death) and (F)(2)

(prior     conviction        of    a     “serious      offense”)         aggravators         with

respect to each of these victims and victims David Estrada and

Nathanial Shoffner.

               2.    Mitigating Circumstances

¶129           Although Hausner did not present mitigation evidence

during the penalty phase, evidence admitted at the guilt phase

is admitted for purposes of the sentencing phase, A.R.S. § 13-

752(I),        and     the        jury     must        “consider          the      mitigating

circumstances, whether proved by the defendant or present in the

record,        in    determining         whether       death       is     the     appropriate

sentence.”          State ex rel. Thomas v. Granville (Baldwin), 211

Ariz. 468, 473 ¶ 18, 123 P.3d 662, 667 (2005).                                The trial court

properly       instructed     the      jury     that    it   must       consider       relevant

mitigation presented at any phase of the trial.

                                                62 

 
 

¶130          Hausner      contends     that        evidence   at     the      guilt    phase

established that he was a caring father for his daughter, who

was    born   in     2004,      suffered      from    Von    Gierke’s        disease,     and

required special care and feeding, and that he had two sons who

died in 1994 at ages two and three in a car crash in which he

was a passenger.           He also states that he expressed sympathy for

his    victims     at     his   post-arrest         press    conference        and     during

allocution, that he had no felony convictions before this case,

and that he was using methamphetamine daily when he committed

the offenses and had overcome a prior addiction in 1994.

¶131          In     response,        the     State      notes        that      there     was

conflicting evidence about the degree of Hausner’s concern for

his daughter; that he had tried to exploit the tragedy of his

sons’    deaths      by    falsely      testifying          that    he    visited       their

gravesites     one      night    of    the    shootings;       that      his    remorse    is

entitled to little weight because he maintained his innocence;

that the lack of prior convictions is not compelling given his

many convictions in this case; and that he presented no evidence

connecting his methamphetamine use to the crimes.

¶132          We will uphold a jury’s decision to impose death if

any     “reasonable       juror       could     conclude       that      the    mitigation

presented      was      not      sufficiently         substantial         to     call     for

leniency.”         Gallardo, 225 Ariz. at 570 ¶ 52, 242 P.3d at 169.

                                              63 

 
 

In   light      of    the    several    aggravating      circumstances     for    each

murder, and the limited mitigation, the jury did not abuse its

discretion in imposing death sentences for the six murders.

        L.    Sentencing on Non-Capital Counts

¶133           Hausner       argues     that    the   trial      court     committed

fundamental          error     by   enhancing   several     of   his     non-capital

sentences      under     A.R.S.     § 13-702.02    (2006)    (since    amended    and

renumbered A.R.S. § 13-703).                This statute provides for enhanced

sentences for defendants who are convicted of multiple offenses

committed       on     separate     occasions   but   consolidated       for   trial.

Hausner contends that “[d]ue process and fundamental fairness

under the Sixth and Fourteenth Amendments required the State to

give notice that it intended to seek enhanced sentencing for the

non-capital counts under A.R.S. § 13-702.02.”

¶134           At the relevant time, A.R.S. § 13-702.02(G) stated:

        The court shall inform all of the parties before the
        sentencing occurs of its intent to increase or
        decrease the sentence pursuant to this section.    If
        the court fails to inform the parties, a party waives
        the right to be informed unless the party timely
        objects at the time of sentencing.

¶135           The     State    filed   a   sentencing    memorandum     asking    the

trial court to enhance the sentences on most of the non-capital

counts under § 13-702.02.               Hausner did not object, and the trial

court        imposed     enhanced       sentences.         On    appeal,       Hausner

acknowledges that this Court has never held that the state must
                               64 

 
 

provide pretrial notice of its intent to seek enhanced sentences

under this statute.

¶136           We need not decide whether the state must specifically

provide notice before trial of its intent to seek an enhancement

under    § 13-702.02.          Hausner      in    fact    received    notice.         The

consolidated trial indictment expressly alleged § 13-702.02 for

certain animal cruelty charges.                   With respect to the charges

more     generally,      the     State      filed        notices     of        non-capital

aggravating factors with respect to each cause number, stating:

“[i]f the jury convicts the defendant of multiple felony counts

that are not used to enhance the sentence under A.R.S. § 13-

702.02     .    .   .   the    state     intends     to     allege        the    multiple

convictions as an aggravating circumstance.”

¶137           No fundamental error occurred.              The State indicated in

its pretrial filings that it might seek enhanced sentences under

A.R.S. § 13-702.02, and Hausner has not shown any prejudice from

the lack of more specific notice.                   Cf. State v. Tresize, 127

Ariz. 571, 574, 623 P.2d 1, 4 (1980) (finding sufficient notice

for     enhancement     for    use     of    a    deadly    weapon        or    dangerous

instrument based on allegations in indictment, although there

was no separate allegation or statutory citation).




                                            65 

 
 

                                 CONCLUSION

¶138         We   reverse   Hausner’s     conviction    on   count   eight   for

animal   cruelty      and   otherwise         affirm   his   convictions     and

sentences.

¶139

                              _____________________________________
                              Scott Bales, Vice Chief Justice

CONCURRING:


____________________________________
Rebecca White Berch, Chief Justice


____________________________________
A. John Pelander, Justice


____________________________________
Robert M. Brutinel, Justice


____________________________________
*




* Before his resignation on June 27, 2012, as a result of his
appointment to the United States Court of Appeals for the Ninth
Circuit, Justice Andrew D. Hurwitz participated in this case,
including oral argument, and concurred in this opinion’s
reasoning and result.

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                             APPENDIX

     Hausner raises seventeen issues to preserve them         for
federal review.     This Appendix lists his claims and        the
decisions he identifies as rejecting them.

1.   The death penalty is cruel and unusual under any
circumstances and violates the Eighth and Fourteenth Amendments
to the United States Constitution and Article 2, § 15 of the
Arizona Constitution.  State v. Harrod, 200 Ariz. 309, 320, 26
P.3d 492, 503 (2001).

2.   The death penalty is irrational and imposed arbitrarily,
and serves no other purpose that is not adequately addressed by
life in prison, in violation of Hausner’s due process under the
Fourteenth Amendment to the U.S. Constitution and Article 2, §§
1 and 4 of the Arizona Constitution. State v. Smith, 203 Ariz.
75, 82 ¶ 36, 50 P.3d 825, 832 (2002); State v. Beaty, 158 Ariz.
232, 762 P.2d 519 (1988).

3.   The prosecutor’s discretion to seek the death penalty has
no standards and therefore violates the Eighth and Fourteenth
Amendments, and Article 2, §§ 1, 4 and 15 of the Arizona
Constitution.   State v. Sansing, 200 Ariz. 347, 361 ¶ 46, 26
P.3d 1118, 1132 (2001), vacated on other grounds by Ring, 536
U.S. at 584.
4.   Proportionality review serves to identify which cases are
above the norm of first degree murder, narrowing the class of
defendants who are eligible for the death penalty. Thus, the
absence of proportionality review of death sentences by Arizona
courts denies capital defendants due process of law and equal
protection and amounts to cruel and unusual punishment in
violation of the Fifth, Eighth, and Fourteenth Amendments, and
Article 2, § 15 of the Arizona Constitution. Harrod, 200 Ariz.
at 320 ¶ 65, 26 P.3d at 503.

5.   The State‘s failure to allege an element of a charged
offense in the grand jury indictment – the aggravating factors
under A.R.S. § 13-703(F) (renumbered as A.R.S. § 13-751(F),
effective January 1, 2009) that made Defendant death eligible –
is a fundamental defect that renders the indictment
constitutionally defective under the Fifth, Sixth, Eighth, and
Fourteenth Amendments and Article 2, §§ 1, 4, 13, 15, 23 and 24
of the Arizona Constitution. See U.S. v. Chesney, 10 F.3d 641
(9th Cir. 1993); Apprendi v. New Jersey, 530 U.S. 466 (2000).
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See McKaney v. Foreman, 209 Ariz. 268, 270-71 ¶¶ 11-13, 100 P.3d
18, 20-21 (2004).

6.   The (F)(6) aggravating factor of “especially cruel,
heinous, or depraved” is unconstitutionally vague and overbroad
because the jury does not have enough experience or guidance to
determine when the aggravator is met, and the finding of this
aggravator by a jury violates the Eighth and Fourteenth
Amendments because it does not sufficiently place limits on the
discretion of the sentencing body – the jury, which has no
“narrowing construction[s]” to draw from and give “substance” to
the otherwise facially vague law. See Walton v. Arizona, 497
U.S. 639, 654 (1990), overruled on other grounds by Ring, 536
U.S. 584. See also Chappell, 225 Ariz. at 337-38 ¶¶ 26-27, 236
P.3d at 1184-85; Hargrave, 225 Ariz. at 13-14 ¶¶ 42-46, 234 P.3d
at 581-82.

7.   The fact-finder in capital cases must be able to consider
all relevant mitigating evidence in deciding whether to give the
death penalty, see Woodson v. North Carolina, 428 U.S. 280, 304
(1976), and the trial court‘s limitation of the jury to
consideration of mitigation proven by a preponderance of the
evidence is unconstitutional under the Eighth and Fourteenth
Amendments. McGill, 213 Ariz. at 161 ¶ 59, 140 P.3d at 944
(citing Medina, 193 Ariz. at 514-15 ¶ 43, 975 P.2d at 104-05).

8.   Arizona’s capital sentencing scheme is unconstitutional
because it does not require the State to prove the death penalty
is appropriate or require the jury to find beyond a reasonable
doubt that the aggravating circumstances outweigh the
accumulated mitigating circumstances, or make specific findings
as to mitigation. Instead, Arizona‘s death penalty statute
requires defendants to prove their lives should be spared, in
violation of the Fifth, Eighth, and Fourteenth Amendments, and
Article 2, § 15 of the Arizona Constitution. Roque, 213 Ariz.
at 225-26, ¶¶ 138-141, 141 P.3d at 400-401.

9.   Arizona’s death penalty scheme does not sufficiently
channel the sentencing jury’s discretion; aggravating
circumstances should narrow the class of persons eligible for
the death penalty and reasonably justify the imposition of a
harsher penalty; and Arizona’s death penalty statutes are
unconstitutional because they provide no objective standards to
guide the jury in weighing the aggravating and mitigating
circumstances. Rather, the broad scope of Arizona’s aggravating
factors encompasses nearly anyone involved in a murder, in
                                68 

 
 

violation of the Fifth, Eighth and Fourteenth Amendments, and
Article 2, § 15 of the Arizona Constitution. State v. White,
194 Ariz. 344, 355 § 49, 982 P.2d 819, 830 (1999).

10. Arizona’s death penalty statutes lack standards necessary
for the jury to find aggravation, to evaluate aggravation and
the mitigation, and to determine what “sufficiently substantial
to call for leniency” means, resulting in the arbitrary and
capricious imposition of the death penalty in Arizona, in
violation of Due Process, the Eighth and Fourteenth Amendments,
as well as Ariz. Const. art. 2, § 15.925. See Beaty, 158 Ariz.
at 247, 762 P.2d at 534.

11. Arizona’s death penalty laws unconstitutionally require
imposition of the death penalty whenever at least one
aggravating circumstance and no mitigating circumstances exist,
in violation of the Eighth and Fourteenth Amendments, and
Article 2, § 15 of the Arizona Constitution. Arizona’s death
penalty law cannot constitutionally presume that death is the
appropriate default sentence. State v. Miles, 186 Ariz. 10, 19,
918 P.2d 1028, 1037 (1996).

12. The death penalty is the irreversible denial of human
rights and the international community of nations has evolved to
a state of maturity that abolishes the death penalty. Today,
the majority of nations have abolished the death penalty.
Amnesty International, Facts and Figures on the Death Penalty
(January 1, 2006). The Universal Declaration of Human Rights,
GA Res. 217A (III), U.N. GAOR, 3d Sess. Art. 3, U.N. Doc. A/810
(1948), provides that “Everyone has the right to life, liberty,
and security of person.” The death penalty thus violates the
Universal Declaration of Human Rights, and is a violation of
international law. State v. Ross, 180 Ariz. 598, 602, 886 P.2d
1354, 1358 (1994) (citing State v. Richmond, 136 Ariz. 312, 322,
666 P.2d 57, 67 (1983)).

13. Execution by lethal injection is cruel and unusual
punishment in violation of the Eighth and Fourteenth Amendments,
and Article 2, § 15 of the Arizona Constitution. Defendant
acknowledges that this argument was rejected in Van Adams, 194
Ariz. at 422 ¶ 55, 984 P.2d at 30, and State v. Hinchey, 181
Ariz. 307, 315, 890 P.2d 602, 610 (1995). See Koniaris, et al.,
Inadequate Anesthesia in Lethal Injection For Execution, 365
Lancet 1412-14 (April 16, 2005) (suggesting that protocols for
lethal injection are insufficient to assure painless death and
evidence of botched executions).
                                69 

 
 


14. The penalty-phase jury instructions incorrectly told the
jury that if the Defendant was not put to death, the judge could
sentence him to a sentence of natural life or to life with
release, and that this violated his constitutional due process
rights under the Fifth and Fourteenth Amendments because there
was no real possibility that Defendant would ever be released
from prison. See Simmons v. South Carolina, 512 U.S. 154
(1994)(reversible error to instruct jury that defendant could be
released when he could not); Hargrave, 225 Ariz. at 14-15 ¶¶ 50-
53, 234 P.3d at 582-83.

15. By allowing victim impact evidence at the penalty phase of
trial, the trial court violated Defendant‘s rights under the
Fifth, Sixth, Eighth and Fourteenth Amendments and Article 2,
§§ 1, 4, 13, 15, 23 and 24 of the Arizona Constitution. Lynn v.
Reinstein, 205 Ariz. 186, 68 P.3d 412 (2003).

16. The trial court improperly omitted from the penalty phase
jury instructions words to the effect that they may consider
mercy or sympathy in deciding the value to assign the mitigation
evidence, instead telling them to assign whatever value the jury
deemed appropriate and told the jury not to be influenced by
sentiment, passion, or prejudice in determining these facts.
These instructions limited the mitigation the jury could
consider in violation of the Fifth, Sixth, Eighth and Fourteenth
Amendments and Article 2, § 1, 4, 15, 23, and 24 of the Arizona
Constitution. State v. Carreon, 210 Ariz. 54, 70-72 ¶¶ 81-87,
107 P.3d 900, 916-18 (2005). See also State v. Kuhs, 223 Ariz.
376, 386-87 ¶¶ 51-56, 224 P.3d 192, 202-03 (2010).

17. The reasonable doubt instruction of State v. Portillo, 182
Ariz. 592, 898 P.2d 970 (1995), dilutes and shifts the burden of
proof in violation of the Sixth Amendment to the United States
Constitution. State v. Ellison, 213 Ariz. 116, 133 ¶ 63, 140
P.3d 899, 916 (2006).




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