                               IN THE

    SUPREME COURT OF THE STATE OF ARIZONA

                          STATE OF ARIZONA,
                              Appellee,

                                  v.

                         JASON EUGENE BUSH,
                              Appellant.


                          No. CR-11-0107-AP
                         Filed August 16, 2018


            Appeal from the Superior Court in Pima County
               The Honorable John S. Leonardo, Judge
                       No. CR-2009-2300-003
                             AFFIRMED


COUNSEL:

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

John L. Saccoman (argued), Law Office of John L. Saccoman, Phoenix; and
Brent E. Graham, Law Office of Brent E. Graham, PLLC, Glendale,
Attorneys for Jason Eugene Bush


JUSTICE PELANDER authored the opinion of the Court, in which VICE
CHIEF JUSTICE BRUTINEL, and JUSTICES TIMMER, BOLICK, and
GOULD joined. CHIEF JUSTICE BALES authored a separate opinion
                             STATE V. BUSH
                            Opinion of the Court

concurring in part. JUDGE WINTHROP authored a separate opinion
concurring in part and dissenting in part. ∗


JUSTICE PELANDER, opinion of the Court:

¶1            This automatic appeal arises from Jason Eugene Bush’s
convictions and death sentences for murdering nine-year-old Brisenia
Flores and her father, Raul “Junior” Flores, in their Arivaca home. We have
jurisdiction under article 6, section 5(3) of the Arizona Constitution and
A.R.S. §§ 13-4031 and 13-4033(A)(1).

                             BACKGROUND

¶2            The facts largely mirror those in State v. Forde, in which this
Court affirmed the first degree murder convictions and death sentences of
Shawna Forde, Bush’s accomplice and the “self-proclaimed leader of a
private ‘minuteman’ border monitoring group” in which Bush participated.
233 Ariz. 543, 552 ¶ 2 (2014). On the evening of May 29, 2009, Junior Flores,
his wife, Gina Gonzales, and their daughter, Brisenia, were at their home
while the couple’s other daughter spent the night with a relative. After
Junior and Gina went to bed, and as Brisenia slept on the living room couch,
Junior woke Gina to tell her law enforcement officers were at their door.
Gina rose from bed and joined Brisenia, who was still asleep on the couch,
while Junior went to the door.

¶3             Gina heard two voices, a male and female, order Junior to
open the door so they could enter to “take a look.” Junior complied, and a
man and woman entered the Flores’s home. The man was tall, wore
camouflage and black face paint, and carried a handgun and a longer gun
covered with duct tape. Junior pressed the intruders for identification and
asked the man why one gun was covered in duct tape. The man responded,
“Don’t take this personally but this bullet has your name on it,” and shot
Junior in the chest. The man then turned the handgun on Gina and shot her
in the shoulder and thigh. After Gina fell to the floor, the man focused again


∗ Justice John R. Lopez IV has recused himself from this case. Pursuant to
article 6, section 3 of the Arizona Constitution, the Honorable Lawrence F.
Winthrop, Judge of the Arizona Court of Appeals, Division One, was
designated to sit in this matter.


                                      2
                            STATE V. BUSH
                           Opinion of the Court

on Junior, who was yelling, “Stop shooting my wife,” and killed him with
additional shots.

¶4            Lying on the floor feigning death, Gina heard two more men,
both Spanish-speaking, enter the home. Brisenia awoke, began crying, and
asked the armed man why he shot her father. He told Brisenia everything
would be okay, that nobody would hurt her, and asked about her sister’s
whereabouts. Brisenia said her sister was spending the night with a
relative. Gina then heard the man load his gun while Brisenia repeatedly
begged, “Please don’t shoot me.” Despite her pleas, the man fatally shot
Brisenia twice in the face at point-blank range.

¶5            After hearing the female intruder tell the group to leave, Gina
called 911 and attempted to aid Brisenia, who was shaking and struggling
to breathe. The female intruder then returned, saw that Gina was still alive,
and ordered someone to “go back and finish her off.” Gina immediately
rushed to the kitchen, grabbed a gun Junior kept there, and collapsed on
the kitchen floor. Meanwhile, the tall man with black face paint reentered
the home and began shooting at Gina, who returned fire. Gina heard the
man cry out in pain before leaving the home. When another man entered,
Gina yelled, “Get the hell out,” and “That is enough,” which prompted the
man to leave. Gina returned to the phone, which was still connected to the
911 dispatcher, and waited for police.

¶6            Law enforcement officers identified Albert Gaxiola as a
suspect in the murders and, after obtaining a search warrant, discovered
Bush’s DNA, fingerprints, and other incriminating items at Gaxiola’s home.
Officers located Bush ten days later at the residence he shared with his
girlfriend. Bush, who had been wounded by Gina’s gunfire, told his
girlfriend that he had been shot in the leg while working for the military as
an undercover immigration operative.

¶7           After arresting Bush on June 11, 2009, officers questioned him
at the Mohave County Sheriff’s Department for approximately four hours.
Though initially denying any involvement in the murders, Bush eventually
confessed to shooting and killing Junior and Brisenia, claiming that his
accomplices threatened to kill him and his family if he did not do so. In
addition to making numerous incriminating statements, Bush drew a
diagram of the Flores’s home and marked where each victim was when he
shot them. The State charged Bush with two counts of first degree murder,
A.R.S. § 13-1105, attempted first degree murder, A.R.S. § 13-1001, two


                                     3
                             STATE V. BUSH
                            Opinion of the Court

counts of aggravated assault, A.R.S. § 13-1204, first degree burglary, A.R.S.
§ 13-1508, armed robbery, A.R.S. § 13-1904, and aggravated robbery, A.R.S.
§ 13-1903.

¶8            A jury found Bush guilty on all counts. For the murder
convictions, the jury found three aggravating circumstances: Bush was
convicted of a serious offense, committed multiple homicides on the same
occasion, and murdered a person under the age of fifteen. See A.R.S.
§ 13-751(F)(2), (8), (9). Considering those factors and the mitigation
evidence, the jury sentenced Bush to death for each murder. For the
non-capital convictions, the trial court sentenced Bush to prison terms
totaling seventy-eight years.

                               DISCUSSION

   A. Pretrial Motions for a Change of Venue and Continuance

¶9             Bush contends the trial court abused its discretion in denying
his motion for a change of venue or, alternatively, a continuance, which he
argues was necessary because of outrageous and extensive pretrial
publicity about the case. We review for abuse of discretion a trial court’s
denial of a motion for a change of venue or continuance. Forde, 233 Ariz.
at 553 ¶ 11; State v. Dixon, 226 Ariz. 545, 555 ¶ 53 (2011).

¶10           Bush’s motion, filed a week before his trial, cited numerous
internet articles allegedly containing “an overwhelming amount of
prejudicial and inflammatory statements” about him. In denying the
motion, the trial court reasoned that Bush had not shown he was entitled to
a presumption of prejudice and could not show actual prejudice because
the jury had not yet been selected. The court indicated it would explore
Bush’s concerns if the voir dire process failed to “yield an impartial jury.”
Bush unsuccessfully moved for a mistrial after jury selection but did not
renew his motions for a change of venue or continuance.

¶11           Our review of pretrial publicity issues “entails a two-step
inquiry to decide ‘whether, under the totality of the circumstances, the
publicity attendant to [the] defendant’s trial was so pervasive that it caused
the proceedings to be fundamentally unfair.’” Forde, 233 Ariz. at 553 ¶ 12
(quoting State v. Cruz, 218 Ariz. 149, 156 ¶ 13 (2008)). The first inquiry is
whether “the publicity so pervaded the proceedings that the trial court
erred by not presuming prejudice.” Id. at 554 ¶ 12; accord Cruz, 218 Ariz.


                                      4
                              STATE V. BUSH
                             Opinion of the Court

at 156 ¶ 14. If the trial court properly declined to presume prejudice, the
next inquiry is “whether the defendant showed actual prejudice.” Forde,
233 Ariz. at 554 ¶ 12; accord Cruz, 218 Ariz. at 156 ¶ 14. We find no error
under either inquiry.

¶12             Courts “rarely presume prejudice due to outrageous pretrial
publicity,” State v. Bible, 175 Ariz. 549, 564 (1993), because of the defendant’s
extremely heavy burden to show “the publicity [is] ‘so unfair, so
prejudicial, and so pervasive that [the trial court] cannot give any credibility
to the jurors’ answers during voir dire,’” Cruz, 218 Ariz. at 157 ¶ 15 (quoting
State v. Bolton, 182 Ariz. 290, 300 (1995)); accord Bible, 175 Ariz. at 564–65.
“In other words, . . . the ‘media coverage [must be] so extensive or
outrageous that it permeate[s] the proceedings or create[s] a ‘carnival-like’
atmosphere,’” Cruz, 218 Ariz. at 157 ¶ 15 (quoting State v. Atwood, 171 Ariz.
576, 631 (1992)), devoid of the “fundamental and essential element[s] of . . .
‘dignity, order, and decorum,’” Bible, 175 Ariz. at 567 (quoting Illinois v.
Allen, 397 U.S. 337, 343 (1970)).

¶13           Bush argues that pretrial publicity created the prohibited
carnival-like atmosphere in his proceedings. But in Forde, which involved
the same murders underlying this case, we noted that “[m]ost of the
publicity occurred in the immediate aftermath of the crimes —
approximately eighteen months before [Forde’s] trial,” and “most news
accounts were essentially factual.” 233 Ariz. at 554 ¶ 14; see also State v.
Kiles, 222 Ariz. 25, 35–36 ¶¶ 46–50 (2009) (change of venue denied despite
ten years of media coverage).

¶14            Questionable or allegedly inaccurate publicity alone is not
enough to presume prejudice, particularly when, as here, the “information
in the great bulk of the news reports” was “largely factual.” Bible, 175 Ariz.
at 564. Nor does a presumption of prejudice arise merely because the media
published an interview to which Bush agreed, or other articles stating that
he confessed to the murders or discussing facts adduced during Forde’s
trial that implicated Bush in the murders. In short, Bush has not shown that
“the media successfully influenc[ed] law enforcement officers[,] . . . court
personnel[,] [or] the court itself.” Id. at 565.

¶15           “Absent presumed prejudice, the focus is whether the
potential jurors ‘could not judge impartially the guilt of the defendant.’” Id.
at 566 (quoting Patton v. Yount, 467 U.S. 1025, 1035 (1984)). To prevail, the
defendant must show that “the dissemination of the prejudicial material


                                       5
                             STATE V. BUSH
                            Opinion of the Court

will probably result in the party being deprived of a fair trial.” Ariz. R.
Crim. P. 10.3(b) (2011); see also Bible, 175 Ariz. at 566–67 (applying Rule
10.3(b)). Bush fails to make that required showing.

¶16           Bush’s actual prejudice argument primarily rests on the
allegedly “inconsistent answers” Jurors 1, 5, 11, and 13 gave about their
exposure to pretrial publicity. But all empaneled jurors disclosed their
preliminary opinions regarding Bush’s guilt and provided adequate
assurances they would set their opinions aside and consider only the
evidence presented at trial. These assurances plainly “undercut [his]
prejudice claim.” Bible, 175 Ariz. at 566. Additionally, nothing in the record
supports departing from the well-established presumption that the jurors
followed the trial court’s instructions to consider only the evidence
presented at trial. Cruz, 218 Ariz. at 158 ¶ 25. The court did not abuse its
discretion in denying Bush’s motion for a change of venue.

¶17            Because Bush failed to show that the pretrial publicity
prejudiced him, we likewise reject his claim of error relating to his motion
for a continuance. State v. Burns, 237 Ariz. 1, 11 ¶ 10 (2015) (“We will not
find that a trial court abused its discretion in denying a continuance unless
the defendant shows prejudice.”).

   B. Jury Selection and Voir Dire Issues

       1. Non-statutory Aggravators in Juror Questionnaire

¶18            Jury selection in this case lasted five days and involved 225
potential jurors. Before trial, each juror received and completed an
eighteen-page juror questionnaire containing many questions probing the
juror’s ability to deliver a fair and impartial verdict. In various ways, the
questionnaire delved into the prospective jurors’ views on capital
punishment, and some questions sought to identify jurors who might
harbor death-favorable views. The State and Bush’s defense team received
copies of the prospective jurors’ completed questionnaires. In addition, the
trial court conducted three voir dire sessions in which subgroups of
prospective jurors were sworn in, instructed on the phases of a capital
murder trial, and made available to the parties for questioning.

¶19         Bush contends the trial court erred by allowing the State,
through the juror questionnaire, to “improperly inject non-statutory




                                      6
                              STATE V. BUSH
                             Opinion of the Court

aggravating factors . . . for consideration by prospective jurors.” Bush’s
argument is based on question 27, which stated:

       27. If you agree the death penalty may be appropriate in some
       cases, please rank the following reasons from 1 to 4, 1 being
       most important, that would cause you to favor the death
       penalty.

              ____ To deter others from committing murder.

              ____ For economic reasons. It is expensive to house
                   prisoners for the remainder of their lives.

              ____ Because an eye for an eye, is fair.

              ____ To protect the public against defendants who
                   might get out of jail in the future.

              ____ Other (please specify): ______________________.

¶20             “We review a trial court’s decisions regarding the use and
content of jury questionnaires for abuse of discretion,” State v. Naranjo,
234 Ariz. 233, 241 ¶ 24 (2014), and “will not disturb the trial court’s selection
of the jury in the absence of a showing that a jury of fair and impartial jurors
was not chosen,” State v. Moody, 208 Ariz. 424, 451 ¶ 93 (2004) (internal
quotation marks omitted) (quoting State v. Walden, 183 Ariz. 595, 607
(1995)).

¶21            Despite having been furnished in advance with the trial
court’s proposed questionnaire, Bush did not object to question 27 or any
other part. Instead, after the prospective jurors received, completed, and
submitted their questionnaires, but before voir dire began, Bush moved for
a mistrial on the ground that question 27 “engrained in [the jurors] that it is
appropriate at some level for them to consider” the “improper and
impermissible” non-statutory aggravating factors it lists. The trial court
denied the motion but instructed the potential jurors that they were not to
consider the factors listed in question 27. The court also asked the potential
jurors whether they would disregard that instruction, but no juror indicated
any such intent.

¶22         The trial court’s instruction and follow-up query
notwithstanding, defense counsel still “ask[ed] each [potential juror]


                                       7
                              STATE V. BUSH
                             Opinion of the Court

individually” about whether they could “put those [reasons listed in
question 27] aside” as non-factors and be fair and impartial. But in his
further probing of the prospective jurors, counsel confusingly stated he was
not “saying [they] can’t think about these [factors].” The trial court later
clarified that defense counsel’s follow-up questioning was meant to
determine whether the factors listed in question 27 are “still going to be
something that you consider even if the Court instructs you [otherwise].”

¶23            In response to Bush’s questioning, and contrary to their prior
statements that they would follow the trial court’s instructions on this
point, petit Jurors 9, 11, and 13 indicated by raising their hands that they
would consider a factor listed in question 27. Even so, and despite insisting
he would move to strike any jurors who indicated they would consider
question 27’s factors, Bush did not move to strike any of these jurors.

¶24             Arizona law provides fourteen “aggravating circumstances”
that, if alleged by the state, a capital case jury shall consider “in determining
whether to impose a sentence of death.” A.R.S. § 13-751(F). Bush contends
that “question 27 called jurors’ attention to non-statutory aggravating
factors” and that he is entitled to a new trial because the final response of
Jurors 9, 11, and 13 during voir dire indicates that “at least [their] verdicts
were influenced by improper considerations.”

¶25           We disagree. On its face, question 27 does not instruct jurors
that the reasons it lists are aggravating factors, but rather expressly states
that its purpose is to determine what reasons would lead a particular juror
to “favor the death penalty” if given that sentencing option. Moreover, the
trial court and the parties explained several times that each juror must
follow the court’s instructions generally and that jurors were not to consider
the factors question 27 mentions. We presume the jurors heeded those
instructions, Cruz, 218 Ariz. at 158 ¶ 25, and Bush’s assertion that the
reasons listed in question 27 influenced any juror’s deliberation or decision
is purely speculative.

¶26            Bush nevertheless contends that the post-instruction,
show-of-hand responses made by Jurors 9, 11, and 13 indicate inadequate
rehabilitation. But those conflicting responses at most suggest the jurors
did not understand the purpose or substance of defense counsel’s
questioning. And to the extent there was confusion, it was at least partially
attributable to counsel’s misguided statement to the prospective jurors that
“we’re not saying you can’t think about these [factors].”


                                       8
                             STATE V. BUSH
                            Opinion of the Court

¶27            In any case, later in the jury selection process the trial court
asked if any prospective jurors “would be unable to follow the law” as
given in the court’s instructions, “disregarding [their] own notions of what
the law is” or “ought to be.” No juror responded or expressed any concern.
In addition, during voir dire and later in the aggravation phase the
prosecutor and the trial court clearly explained the separate phases of a
capital case trial, the distinct issues the jurors would have to decide in each
phase, and the three aggravators the State alleged.                The court’s
aggravation-phase instructions expressly stated that “the State has the
burden of proving beyond a reasonable doubt the aggravating
circumstances it has alleged,” all of which are listed in § 13-751(F). Bush
fails to rebut the presumption that the jurors followed the court’s
instructions. See State v. Prince, 226 Ariz. 516, 537 ¶ 80 (2011).

¶28           In sum, the trial court did not abuse its discretion in allowing
the prospective jurors to answer question 27 of the juror questionnaire.
Nonetheless, we see little purpose for, and a potential risk of confusion and
possible prejudice created by, a question such as question 27. We therefore
disapprove of its future use in capital case pretrial juror questionnaires.

       2. Denial of Individual Voir Dire

¶29             Bush contends the trial court violated his constitutional rights
to a fair trial and due process by denying his request for individual voir
dire. “We review a trial court’s rulings on voir dire of prospective jurors for
abuse of discretion,” State v. Glassel, 211 Ariz. 33, 45 ¶ 36 (2005), and
necessarily defer largely to a trial court’s “sound discretion” in such
matters, Ristaino v. Ross, 424 U.S. 589, 594 (1976) (internal quotation marks
omitted) (quoting Connors v. United States, 158 U.S. 408, 413 (1895)).

¶30            Bush moved before trial for individual, sequestered, and
in-chambers voir dire, asserting it was necessary to “put the prospective
juror at ease and encourage honest responses.” The trial court denied the
motion, noting that Bush’s request was impracticable because of the large
number of potential jurors. But the court said it would privately question
a prospective juror “if that need became apparent” either from the juror’s
request or to avoid tainting the other prospective jurors. Based on the same
reasoning, the trial court denied Bush’s two subsequent filings seeking
individual voir dire.




                                       9
                              STATE V. BUSH
                             Opinion of the Court

¶31           Notwithstanding the trial court’s rulings, during the first day
of voir dire defense counsel asked individualized questions to make sure
the jurors were being “honest with [him].” The court took issue with the
inefficient and ineffective manner of his questioning, but counsel insisted
that he “ha[d] the right to ask [jurors] individually” because the juror
questionnaire “implanted in their mind” that the factors listed in question
27 were appropriate. The trial court ultimately gave counsel considerable
“leeway,” such that his extensive and uninterrupted voir dire questions
were a mixture of individual and group inquiries.

¶32            Relying in part on Morgan v. Illinois, 504 U.S. 719 (1992), Bush
contends that individualized voir dire was constitutionally required in his
“complex, highly publicized capital trial.” But Morgan merely requires trial
courts to allow “more detailed questioning of prospective jurors beyond . . .
simple questions” to “evaluat[e] a prospective juror’s ability to be
impartial.” State v. Garza, 216 Ariz. 56, 64 ¶ 25 (2007); see also State v. Parker,
231 Ariz. 391, 400 ¶ 21 (2013) (“We have repeatedly rejected invitations to
expand Morgan’s holding.”). And unlike in Morgan, the trial court here did
not “refuse inquiry into whether a potential juror would automatically
impose the death penalty upon conviction of the defendant.” 504 U.S. at
721. Nor does Bush identify any occasion on which he unsuccessfully asked
for voir dire of a specific juror individually. Cf. State v. Moore, 222 Ariz. 1,
10 ¶ 36 (2009) (finding no Morgan error when defendant “was allowed to
question the jurors” and “[t]he trial court did not prevent defense counsel
from asking life-qualifying questions”). Instead, the record shows that
Bush had ample time and opportunity to probe the prospective jurors on
their juror questionnaire responses, pretrial publicity, and other matters.
See Garza, 216 Ariz. at 64 ¶ 25 (concluding that voir dire consisting of
“extensive oral questioning and . . . a twenty-four page questionnaire
completed by all prospective jurors” “complied with Morgan”).

¶33            To the extent Bush suggests individual voir dire was
necessary to prevent prospective jurors’ answers from tainting the panel,
we disagree. As in Bible, “the written questionnaire addressed many of the
questions that might normally militate in favor of individualized . . . or in
camera voir dire,” and Bush “cites no ‘contaminating’ comment made
during oral voir dire.” 175 Ariz. at 570; accord Forde, 233 Ariz. at 560
¶¶ 55–56. Accordingly, the trial court did not abuse its discretion in
denying individualized voir dire. See Bible, 175 Ariz. at 570 (“Whatever the
risk of the procedure used, the danger did not materialize.”).



                                        10
                              STATE V. BUSH
                             Opinion of the Court

       3. Exclusion of Evidence from Voir Dire

¶34           During the second day of voir dire, Bush moved to present to
prospective jurors some graphic photographs of the murder victims and a
tape recording of Gina’s 911 call that the State intended to introduce as
evidence at trial. Though acknowledging that this was a “novel idea that’s
generally not permitted during voir dire,” Bush contended it was necessary
to identify jurors who, after seeing the photographs and hearing the
recording, would be “substantially impaired” from being fair and impartial
during the mitigation phase. Bush argues that the trial court abused its
discretion and violated his constitutional rights to a fair trial and due
process by denying his request.

¶35            Although we generally review a trial court’s voir dire rulings
for abuse of discretion, State v. Patterson, 230 Ariz. 270, 273 ¶ 5 (2012),
fundamental error review applies to Bush’s constitutional claims because
he did not raise them at trial, State v. Henderson, 210 Ariz. 561, 567 ¶ 19 (2005)
(noting that “[a] defendant who fails to object at trial forfeits the right to
obtain appellate relief except in those rare cases” involving fundamental
error). Bush must therefore show error that is both fundamental and
prejudicial. Id. ¶ 20.

¶36            Voir dire is “not meant to allow a defendant to ‘ask a juror to
speculate or precommit on how that juror might vote based on any
particular facts.’” State v. Smith, 215 Ariz. 221, 231 ¶ 42 (2007) (quoting
United States v. McVeigh, 153 F.3d 1166, 1207 (10th Cir. 1998)). Nor must a
trial court allow a defendant to ask questions “designed to condition the
jurors to damaging evidence expected to be presented at trial and to commit
them to certain positions prior to receiving the evidence.” State v. Melendez,
121 Ariz. 1, 3 (1978). Rather, “part of the guarantee of a defendant’s right
to an impartial jury is an adequate voir dire to identify unqualified jurors.”
Morgan, 504 U.S. at 729 (emphasis added); see also Burns, 237 Ariz. at 13 ¶ 21
(rejecting argument that Morgan entitles defendant “to ask whether
[potential jurors] would impose the death penalty based on the specific
facts of his case”). Here, Bush was allowed to question potential jurors on
whether the anticipated evidence would prevent them from being fair and
impartial.

¶37          In his voir dire questioning, Bush repeatedly referred to this
case as involving “first degree, premeditated, cold-blooded, inexcusable
murder” and vividly described the “gruesome photographs” and other


                                       11
                             STATE V. BUSH
                            Opinion of the Court

“gut-wrenching” evidence that would be presented. Because Bush’s
statements sufficiently informed the potential jurors about the graphic
nature of the evidence in the case, exposing them to the 911 tape and
photographs would have unnecessarily risked conditioning the jurors to
the State’s damaging evidence. See Melendez, 121 Ariz. at 3. As such, the
trial court did not err in precluding Bush from presenting that evidence
during voir dire.

       4. Failure to Strike Jurors Sua Sponte

¶38             Bush argues that the trial court committed structural error
and violated his rights “to due process and a fair trial by an impartial jury,
and . . . to be free from cruel and unusual punishment” under the federal
and Arizona constitutions by failing to strike sua sponte four allegedly
“death-presumptive jurors” who served on the petit jury. Specifically, he
contends the court erred by not striking Jurors 2, 3, 8, and 9 because they
allegedly “made death-presumptive statements in their questionnaires for
which they were never rehabilitated.” We find no structural or other error.

¶39           During the jury selection process the trial court dismissed
forty-five potential jurors for cause, including several whom Bush moved
to strike because he believed they would automatically vote to impose a
death sentence. Bush did not move to strike empaneled Jurors 2, 3, 8, or 9.
But after voir dire he moved for a mistrial based “on the entire way [the
jury selection] process has been conducted” and argued that some
prospective, stealth jurors, without specifically identifying the four now in
question, had “not been forthcoming with information” to shed light on
some of their responses in the juror questionnaire. Bush made clear that his
motion for mistrial was distinct from his request to strike certain specified
prospective jurors he viewed as death-biased. The trial court denied Bush’s
motion, stating that jury selection “has been an effective process” that
resulted in “a panel at this point that is fair and can be impartial and will
follow the law.”

¶40           We first reject Bush’s assertion that the trial court’s failure to
sua sponte strike Jurors 2, 3, 8, and 9 resulted in structural error. State v.
Anderson (Anderson I), 197 Ariz. 314 (2000), on which Bush relies, is
inapposite. There, contrary to our rules and case law, the trial court refused
the defendant’s request for oral voir dire to rehabilitate prospective jurors
who generally opposed the death penalty. Id. at 319 ¶ 10, 320–21 ¶¶ 13–14;
cf. Moore, 222 Ariz. at 10–11 ¶¶ 41–42 (finding Anderson I “not analogous”


                                      12
                              STATE V. BUSH
                             Opinion of the Court

to situation where trial court failed “to specifically ask jurors if they could
set aside their beliefs”). Here, in contrast, the trial court did not deny Bush
his right to voir dire, let alone his right to strike jurors based on their
allegedly death-presumptive statements. Nor did any of the jurors in
question express a belief that “death should be imposed ipso facto upon
conviction of a capital offense,” Morgan, 504 U.S. at 735, or otherwise state
that he or she would “automatically vote for the death penalty without
regard to the mitigating evidence,” id. at 738.

¶41            Bush alternatively argues that “[f]undamental error analysis
does not apply here as [he] specifically objected to the court’s voir dire as
inadequate and moved for a mistrial.” We disagree. Bush does not argue
that the trial court erred in denying his motion for a mistrial. And that
motion was, at best, a “general objection to death qualification,” which is
insufficient to preserve issues relating to the qualification of particular
jurors. E.g., Moody, 208 Ariz. at 449–50 ¶ 85. Furthermore, even assuming
Bush’s oral motion for a mistrial constituted a challenge to the panel, it
failed to comply with Arizona Rule of Criminal Procedure 18.4(a), which at
all relevant times required such challenges to be “in writing.” We therefore
review his claim for fundamental error, which requires Bush to show that
the trial court’s failure to sua sponte strike Jurors 2, 3, 8, and 9 constituted
error that was fundamental and prejudicial. Henderson, 210 Ariz. at 567
¶¶ 19–20; see also Garza, 216 Ariz. at 64 ¶¶ 28–29 (reviewing death-biased
jury claims for fundamental error); Bible, 175 Ariz. at 573–74 (same).

¶42               “When there is reasonable ground to believe that a juror
cannot render a fair and impartial verdict, the court, on its own
initiative, . . . shall excuse the juror from service in the case.” Ariz. R. Crim.
P. 18.4(b) (2011); see also Morgan, 504 U.S. at 729 (“The Constitution . . .
[requires] that the defendant be afforded an impartial jury.”). But a
potential juror is not precluded from jury service “[s]imply because [the]
juror favors the death penalty” so long as the juror is “willing to put aside
his opinions and base his decisions solely upon the evidence.” State v.
Velazquez, 216 Ariz. 300, 307 ¶ 19 (2007) (internal quotation marks omitted)
(quoting State v. Martinez, 196 Ariz. 451, 459 ¶ 28 (2000)). Thus, whether
fundamental error occurred turns on whether the trial court empaneled
jurors who were unwilling to set aside their favorable views of the death
penalty.

¶43         Jurors 2, 3, 8, and 9 each gave responses to some questions in
the juror questionnaire that, viewed in isolation, arguably indicate


                                       13
                             STATE V. BUSH
                            Opinion of the Court

death-favorable views. But Bush’s assertion that those jurors “were not
asked any follow-up questions on [their] biases” is plainly incorrect.
Several questions in the juror questionnaire asked the prospective jurors
about their willingness and ability to set their beliefs and views aside and
render a fair and impartial verdict based solely on the evidence presented
at trial and the court’s instructions on the law. Indeed, one of the questions
in the juror questionnaire was nearly identical to the United States Supreme
Court’s Witherspoon-Witt standard for juror impartiality. See Wainwright v.
Witt, 469 U.S. 412, 424 (1985); Witherspoon v. Illinois, 391 U.S. 510, 519–20
(1968).

¶44            Each of the four jurors in question here responded to these
questions in a manner indicating they would be fair and impartial.
Moreover, the questionnaire stated that jurors were “sworn and instructed
to answer [the] questionnaire under oath,” such that their “answers will
have the effect of a statement given to the Court under oath.” Considered
in their entirety, the responses made by Jurors 2, 3, 8, and 9 to these
questions indicated that, despite any potential bias in favor of, or
misunderstanding of the law relating to, the death penalty, they were
willing to set their views aside and render a fair and impartial verdict.

¶45           Bush’s claims of juror ineligibility are premised on the
mistaken assumption that these jurors’ questionnaire responses exposed a
death-favorable bias or mitigation impairment that could only be
rehabilitated through voir dire. But it does not matter that the jurors’
statements assuring their fairness and impartiality were in questionnaire
responses. See Velazquez, 216 Ariz. at 307 ¶ 20 (rejecting a capital
defendant’s death-biased jury claim based, in part, on a juror’s
questionnaire response indicating that “he would not automatically impose
a death sentence”). And Anderson I does not support Bush’s contention that
a “clear statement of willingness to set aside personal opinions and beliefs
[must] appear in the voir dire record,” as opposed to a juror questionnaire.

¶46             In any case, the relevant questionnaire responses are not the
only evidence in the record of these jurors’ fitness for service. During voir
dire, the trial court, Bush, and the State explained multiple times the “three
phases in a first degree murder trial where the State is seeking the death
penalty” so as “to make sure that [each potential juror] fully understood
what the jury’s role would be in this case.” This included detailed
explanations of the aggravation and mitigation phases and repeated queries
as to whether any prospective juror would “be unwilling or unable . . . to


                                     14
                             STATE V. BUSH
                            Opinion of the Court

listen to [Bush]’s mitigation . . . information.” Indeed, during defense
counsel’s questioning of the potential jurors all jurors agreed that a life
sentence, not a death sentence, is required for a “first degree, premeditated,
cold-blooded, inexcusable murder” unless the State establishes one or more
aggravating circumstances. Viewed in its entirety, the jury selection record
confirms that “the presence or absence of . . . mitigating circumstances [was
not] entirely irrelevant” to these jurors. Morgan, 504 U.S. at 729.

¶47            In sum, we find no merit to Bush’s allegation that “no clear
statement of willingness to set aside personal opinions and beliefs appears
in the voir dire record.” The trial court committed no error, let alone
structural or fundamental error, in empaneling Jurors 2, 3, 8, and 9.

   C. Confession Issues

       1. Admissibility of Evidence of Bush’s Confession

¶48            Detective Navarro testified at trial that after Bush was
arrested and received Miranda warnings, he voluntarily spoke with
detectives for about four hours and, though initially denying any
involvement, confessed to having shot the victims. Bush did not object to
that testimony and did not cross-examine the detective. Nor did either
party offer into evidence the video recording or written transcript of Bush’s
interrogation.

¶49           “To be admissible, a statement must be voluntary, not
obtained by coercion or improper inducement.” State v. Ellison, 213 Ariz.
116, 127 ¶ 30 (2006). Bush argues that his confession was involuntary
because the State “extracted [it] using coercive promises” and because his
“will was overborne by the State’s coercive conduct.” But at no point before
or during trial did Bush move to suppress evidence of his statements,
request a voluntariness hearing, or object to admission of his statements.
He therefore forfeited his argument by failing to timely raise any issue
about the voluntariness of his confession, as our procedural rules required.
See Ariz. R. Crim. P. 16.1(b)–(c) (2011).

¶50           At all relevant times, Arizona Rule of Criminal Procedure
16.1(b) provided that all pretrial “motions shall be made no later than 20
days prior to trial, or at such other time as the court may direct.” And Rule
16.1(c) provided that “[a]ny motion, defense, objection, or request not
timely raised under Rule 16.1(b) shall be precluded, unless the basis thereof


                                     15
                            STATE V. BUSH
                           Opinion of the Court

was not then known, and by the exercise of reasonable diligence could not
then have been known, and the party raises it promptly upon learning of
it.” The comment to the rule indicates that Rule 16.1(c) overruled State v.
Kananen, 97 Ariz. 233 (1965), which held that “a defendant was not
precluded by his failure to make a pretrial suppression motion from
objecting to the admission of illegally-obtained evidence at trial.” Ariz. R.
Crim. P. 16.1 cmt. (2011) (emphasis added).

¶51             Bush does not argue that his failure to move to suppress his
statements, request a voluntariness hearing, or object to Detective
Navarro’s trial testimony about Bush’s confession was based on evidence
that “was not then known” or that “could not then have been known” if he
exercised “reasonable diligence” to discover it. Ariz. R. Crim. P. 16.1(c)
(2011). Therefore, Bush forfeited any argument that his confession was
involuntary. Cf. United States v. Wright, 215 F.3d 1020, 1026 (9th Cir. 2000)
(declining to reach the merits of defendant’s argument challenging the
legality of his arrest “because he failed to raise the issue of his allegedly
illegal arrest in a pre-trial suppression motion” in contravention of Federal
Rule of Criminal Procedure 12(b)(3) and noting that Rule 12(f) provided
that the “failure to bring a timely suppression motion constitute[d] a waiver
of the issue”).

¶52           Likewise, although Bush argues in his supplemental opening
brief that the prosecutor engaged in misconduct by eliciting (and later
arguing) evidence of Bush’s confession through Detective Navarro’s
testimony, Bush did not object to that testimony or to any alleged
prosecutorial misconduct in the trial court. Bush therefore forfeited his
claim of prosecutorial misconduct absent fundamental error, which he fails
to establish here. See State v. Montano, 204 Ariz. 413, 427 ¶ 70 n.6 (2003).

      2. Bush’s Right to a Voluntariness Hearing

¶53            In a related argument, Bush contends the trial court erred in
failing to sua sponte conduct a hearing to determine whether his confession
was voluntary. We disagree.

¶54          A defendant “objecting to the admission of a confession” has
a constitutional right grounded in the Fourteenth Amendment’s Due
Process Clause “to a fair hearing in which both the underlying factual issues
and the voluntariness of his confession are actually and reliably
determined.” Jackson v. Denno, 378 U.S. 368, 380 (1964). But the United


                                     16
                             STATE V. BUSH
                            Opinion of the Court

States Constitution “does not require a voluntariness hearing absent some
contemporaneous challenge to the use of the confession.” Wainwright v.
Sykes, 433 U.S. 72, 86 (1977). Because Bush did not move to suppress
evidence of his statements to law enforcement, request a voluntariness
hearing, or object to Detective Navarro’s trial testimony, the trial court was
not required to hold a voluntariness hearing. Bush neither presented any
evidence nor argued to the jury that his confession was involuntary.
Nonetheless, for reasons that are unclear, the trial court (without objection)
instructed the jury in the guilt phase to “not consider any statements made
by the defendant to a law enforcement officer” unless the jurors “determine
beyond a reasonable doubt that the defendant made the statements
voluntarily.”

¶55            In Jackson, the United States Supreme Court concluded that
the defendant in that case had a due process right to a voluntariness
hearing. 378 U.S. at 391. The Court reasoned that, although defense counsel
“did not specifically object to the admission of the confession initially, the
trial court indicated [during trial] its awareness that [defense] counsel was
questioning the circumstances under which [the defendant] was
interrogated.” Id. at 374. Later, in Wainwright, the Court stated that a
defendant does not have a right “to a hearing as to the voluntariness of a
confession” when he “does not object to its admission.” 433 U.S. at 86. The
Court explained that “the [Jackson] defendant’s objection to the use of his
confession was brought to the attention of the trial court” and nothing in
that “opinion suggests that a hearing would have been required even if it
had not been.” Id.; see also State v. Alvarado, 121 Ariz. 485, 487 n.2 (1979)
(stating that in Jackson the defendant “never specifically objected that his
confession was involuntary,” but that Wainwright “interprets the [Jackson]
defendant’s line of questioning . . . as having been the functional equivalent
of an objection”).

¶56           Bush argues that the trial court violated his due process right
to a voluntariness hearing because in a pretrial motion to continue he raised
a “general challenge,” consistent with Jackson, about the voluntariness of
his confession. We disagree.

¶57           In his motion to continue, Bush requested additional time to
undergo psychological testing and to investigate evidence that he might
present for mitigation purposes. Bush vaguely stated in the motion that he
had “serious question[s]” “in his own mind” about whether he “did”
confess or “intended” to confess. This unclear, isolated statement in a single


                                     17
                             STATE V. BUSH
                            Opinion of the Court

pretrial motion unrelated to voluntariness is plainly not a
“contemporaneous challenge to the use of the confession,” Wainwright, 433
U.S. at 86, or a “functional equivalent of an objection,” Alvarado, 121 Ariz.
at 487 n.2. Accordingly, the trial court did not violate Bush’s due process
rights by not holding a voluntariness hearing sua sponte.

¶58          Bush relatedly asserts that the trial court violated Arizona law
“by failing, sua sponte, to conduct a voluntariness hearing before
submitting evidence of Bush’s confession to the jury.” Again, we disagree.

¶59            In a line of post-Jackson but pre-Wainwright cases, this Court
variously stated that a trial court must hold a voluntariness hearing if a
defendant objects to the use of a confession or when the evidence raises a
question about the voluntariness of a confession. See State v. Finn, 111 Ariz.
271, 275 (1974) (stating that a trial court is not required to order a
voluntariness hearing sua sponte when “the question of voluntariness is
not raised either by the evidence or the defense counsel”); State v.
Armstrong, 103 Ariz. 280, 281 (1968) (stating that “[i]t is the duty of a trial
court to hold a hearing as to voluntariness of a statement or confession, if a
question as to its voluntariness is raised — either by the attorneys, or one is
presented by the evidence” (quoting State v. Goodyear, 100 Ariz. 244, 248
(1966))); State v. Simoneau, 98 Ariz. 2, 7 (1965) (stating that “where no
question is presented to the court either by counsel or by the evidence at
the trial suggesting that a confession is involuntary, there is no issue of fact
to be determined by the court in the absence of the jury and no need for a
specific ruling” and noting that even a “slight suggestion” arising from the
evidence “is sufficient to raise an issue”).

¶60            Although none of these cases clearly identifies the source of
the supposed duty when a question of voluntariness is “presented by the
evidence” and not by the defendant, Armstrong, 103 Ariz. at 281, at least two
of the cases — Armstrong and Simoneau — imply that the source of this rule
is the Fourteenth Amendment’s Due Process Clause, see id. (noting
immediately before announcing the rule that this rule arose “[a]fter the
opinion” in Jackson); Simoneau, 98 Ariz. at 6 (citing Jackson in the same
paragraph as the rule and also citing State v. Owen, 96 Ariz. 274 (1964), the
first case in which we interpreted Jackson).

¶61            As noted above, however, the Supreme Court in Wainwright
clarified the Jackson rule and rejected the interpretation of Jackson that we
applied in this older line of cases. Indeed, after Wainwright we concluded


                                      18
                             STATE V. BUSH
                            Opinion of the Court

in Alvarado that “the defendant . . . must move for a voluntariness hearing.”
121 Ariz. at 487. But we did not address, reference, or otherwise evaluate
the continuing validity of our pre-Wainwright cases. Therefore, we now
disavow any statements in those cases that are inconsistent with Wainwright
or Alvarado.

¶62            Bush does not argue that any Arizona constitutional
provision or statute requires a trial court to sua sponte hold a voluntariness
hearing when a question regarding the voluntariness of a defendant’s
confession is only arguably raised by the evidence. Bush cites A.R.S.
§ 13-3988(A) in passing, but that statute does not support his argument.
Section 13-3988(A) provides that before a “confession is received in
evidence, the trial judge shall, out of the presence of the jury, determine any
issue as to voluntariness.” (emphasis added). We interpret this statute to
mean that, consistent with Wainwright and Alvarado, a trial court must
address the issue of voluntariness if a defendant raises it.               Our
interpretation of Supreme Court precedent, our previous opinions that
analyze this issue, and § 13-3988(A) harmonize a defendant’s due process
rights with the procedural requirements necessary to effectuate those
rights. Simply put, § 13-3988(A) does not create a substantive right to a sua
sponte voluntariness hearing when a question as to voluntariness is merely
raised by the evidence. (On the other hand, if a trial court is aware of facts
indicating that a confession was involuntary, the court, in its discretion and
even absent a request, may order a voluntariness hearing.) Therefore, on
this record, we reject Bush’s argument that Arizona law required the trial
court to sua sponte conduct a voluntariness hearing.

   D. Alleged Simmons Error

¶63            Bush contends the trial court committed error under Simmons
v. South Carolina, 512 U.S. 154 (1994), by failing to inform the jury that he
would not be eligible for release if sentenced to life imprisonment. Bush
further contends that Simmons error is structural and requires automatic
reversal or, alternatively, that the error in this case was not harmless. The
State counters that fundamental error review applies, noting that Bush
failed to object below to any alleged Simmons error arising from the trial
court’s jury instructions.

¶64            Right before jury selection began, Bush belatedly objected to
a statement in the juror questionnaire that referred to a life sentence with
the possibility of release after twenty-five, rather than thirty-five, years. In


                                      19
                              STATE V. BUSH
                             Opinion of the Court

the ensuing discussion, Bush stated without elaboration that he did “not
agree the jury should be even advised as to the possibility of release,” and
assured the trial court he would follow up on that point later. He never
did. The trial court, after denying Bush’s oral motion for a mistrial on a
different ground, and without objection, instructed the first pool of
prospective jurors that if they were to find the defendant guilty, find one or
more aggravating circumstances, but nonetheless “unanimously agree[]
that . . . life in prison is the appropriate sentence, the Court will sentence the
defendant to either life imprisonment without the possibility of release or
life without the possibility of release until at least 35 calendar years have
been passed [sic].” The court repeated that same incorrect instruction the
next day, again without objection, before a different panel of prospective
jurors. The voir dire process then began, the petit jurors were selected, and
the jury found Bush guilty on all charges.

¶65             At the beginning of the aggravation phase nine days later, the
trial court instructed the jury about possible sentences Bush faced if the
jurors found one or more aggravating circumstances. The court explained
that if the jury returned a life sentence, “then the judge will sentence [Bush]
to either life imprisonment without the possibility of release or life
imprisonment with the possibility of release after 35 years.” “Life without
possibility of release from prison,” the court stated, “means . . . [Bush]
would never be eligible to be released from prison for any reason for the
rest of his life.” Although Bush objected to this instruction, he did so only
to “the order in which [the potential sentences] are put.”

¶66            Unless Simmons error is structural, Bush’s failure to object on
Simmons grounds at trial limits our review to fundamental error. State v.
Valverde, 220 Ariz. 582, 584–85 ¶¶ 9–12 (2009). Bush contends that Simmons
error is structural because it “undermine[s] confidence in the . . . outcome
of the proceeding.” But the “relatively few instances in which we . . . regard
error as structural” all involve errors that “deprive defendants of ‘basic
protections’” and infect “‘the entire trial process’ from beginning to end,”
and include “errors such as a biased trial judge [and the] complete denial
of criminal defense counsel.” State v. Ring (Ring III), 204 Ariz. 534, 552–53
¶¶ 45–46 (2003) (quoting Neder v. United States, 527 U.S. 1, 8 (1999)); cf.
McCoy v. Louisiana, 138 S. Ct. 1500, 1511 (2018) (“Structural error ‘affect[s]
the framework within which the trial proceeds,’ as distinguished from a
lapse or flaw that is ‘simply an error in the trial process itself.’” (alteration
in original) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991))).



                                       20
                             STATE V. BUSH
                            Opinion of the Court

¶67           Simmons error, in contrast, occurs only “whenever future
dangerousness is at issue in a capital sentencing proceeding,” Shafer v. South
Carolina, 532 U.S. 36, 51 (2001) (emphasis added), and neither “deprive[s]
defendants of ‘basic protections’” nor infects “‘the entire trial process’ from
beginning to end,” see Ring III, 204 Ariz. at 552–53 ¶¶ 45–46 (quoting Neder,
527 U.S. at 8); cf. O’Dell v. Netherland, 521 U.S. 151, 167 (1997) (describing
Simmons as a “narrow right of rebuttal” available “in a limited class of
capital cases” and rejecting argument that Simmons embodied a “watershed
rule[] of criminal procedure implicating the fundamental fairness and
accuracy of the criminal proceeding” (internal quotation marks and
citations omitted)). In addition, “harmless-error analysis when errors have
occurred in a capital sentencing proceeding . . . [is] constitutionally
permissible.” Clemons v. Mississippi, 494 U.S. 738, 754 (1990). That some
courts have reviewed alleged Simmons error for harmlessness further
undermines Bush’s claim that such error is structural. See, e.g., Richmond v.
Polk, 375 F.3d 309, 334–36 (4th Cir. 2004); State v. Loftin, 680 A.2d 677, 715
(N.J. 1996). We therefore hold that Simmons error is not structural.

¶68            Accordingly, we review Bush’s Simmons claim for
fundamental error. See State v. Hargrave, 225 Ariz. 1, 14 ¶¶ 50–51 (2010)
(reviewing defendant’s Simmons argument for fundamental error when he
failed to object to trial court’s possibility-of-release instruction).

       To establish fundamental error, a defendant must show that
       (1) an error occurred; (2) the error goes “to the foundation of
       the case, . . . takes from the defendant a right essential to his
       defense, [or is] of such magnitude that the defendant could
       not possibly have received a fair trial”; and (3) the error
       prejudiced the defendant.

Naranjo, 234 Ariz. at 246 ¶ 58 (alteration in original) (quoting Henderson, 210
Ariz. at 567 ¶¶ 19–20). We first address whether Bush has met his burden
to establish that Simmons error occurred. Id.; see also Henderson, 210 Ariz. at
568 ¶ 23 (“To obtain relief under the fundamental error standard of review,
[the defendant] must first prove error.”).

¶69            Under Simmons and its progeny, including Lynch v. Arizona
(Lynch II), 136 S. Ct. 1818 (2016), when a parole-ineligible defendant’s
“future dangerousness [is] at issue,” due process entitles him to “inform the
jury of his parole ineligibility.” Simmons, 512 U.S. at 171 (plurality opinion).
Bush argues that the trial court’s possibility-of-release instruction falls


                                      21
                              STATE V. BUSH
                             Opinion of the Court

squarely within Simmons and violates his due process rights because “the
correct information regarding [his] parole ineligibility [was] withheld from
the jury,” and “the jurors were repeatedly told that [he] was in fact eligible
for release.”

¶70            Although the trial court’s jury instruction referring to the
possibility of release conformed to this Court’s prior and then-applicable
case law, see, e.g., Hargrave, 225 Ariz. at 14–15 ¶¶ 50–53, the instruction
apparently was incorrect under the Supreme Court’s subsequent opinion in
Lynch II, 136 S. Ct. at 1818–20 (reversing State v. Lynch, 238 Ariz. 84, 103 ¶ 65
(2015), which found no Simmons error when trial court “properly instructed
the jury” that court “could impose a release-eligible sentence if the jury did
not return a death verdict”). Nonetheless, we disagree with Bush’s
assertion that fundamental Simmons error occurred.

¶71             Bush urges us to adopt a broader interpretation of Simmons
than the United States Supreme Court itself applies. In Simmons, four
Justices joined the Court’s plurality holding that “where the defendant’s
future dangerousness is at issue, and state law prohibits the defendant’s
release on parole, due process requires that the sentencing jury be informed
that the defendant is parole ineligible.” 512 U.S. at 156 (plurality opinion).
The plurality explained that “due process plainly requires that [the
defendant] be allowed to bring [his parole ineligibility] to the jury’s
attention by way of argument by defense counsel or an instruction from the
court” in order to “‘deny or explain’ the [state’s] showing of future
dangerousness.” Id. at 169 (quoting Gardner v. Florida, 430 U.S. 349, 362
(1977)); see also O’Dell, 521 U.S. at 159 (noting that in Simmons “there was no
opinion for the Court” and that four Justices merely “concluded that the
Due Process Clause required allowing the defendant to inform the jury —
through argument or instruction — of his parole ineligibility in the face of
a prosecution’s future dangerousness argument”).

¶72           Justice Ginsburg (who joined the Court’s plurality opinion)
wrote a separate concurrence, as did Justice O’Connor (who did not join the
plurality but separately concurred in the judgment, with Chief Justice
Rehnquist and Justice Kennedy joining her opinion). Justice Ginsburg’s
separate opinion in Simmons clarified that, in her view, “due process does
not dictate that the judge herself, rather than defense counsel, provide the
[parole ineligibility] instruction.” 512 U.S. at 174 (Ginsburg, J., concurring).
Justice O’Connor further clarified that when the prosecution seeks to show
a parole-ineligible defendant’s future dangerousness, “the defendant


                                       22
                              STATE V. BUSH
                             Opinion of the Court

should be allowed to bring his parole ineligibility to the jury’s attention —
by way of argument by defense counsel or an instruction from the court —
as a means of responding to the State’s showing of future dangerousness.”
Id. at 177 (O’Connor, J., concurring in the judgment). Under those
circumstances, Justice O’Connor stated, “due process entitles the defendant
to inform the capital sentencing jury — by either argument or instruction —
that he is parole ineligible.” Id. at 178.

¶73           Justice O’Connor’s opinion represents “the narrowest
ground[]” that “may be viewed as [the] position taken by” the Court on the
issue of what due process requires in this context. Marks v. United States,
430 U.S. 188, 193 (1977) (internal quotation marks omitted) (quoting Gregg
v. Georgia, 428 U.S. 153, 169 n.15 (1976) (joint opinion of Stewart, Powell,
and Stevens, JJ.)); State v. Medina, 232 Ariz. 391, 406 ¶ 57 (2013). Thus, the
due process right under Simmons merely affords a parole-ineligible capital
defendant the right to “rebut the State’s case” (if future dangerousness is at
issue) by informing the jury that “he will never be released from prison” if
sentenced to life. Simmons, 512 U.S. at 177 (O’Connor, J., concurring in the
judgment).

¶74            The Supreme Court’s subsequent cases, other federal
decisions, and this Court’s opinions support that narrow interpretation of
Simmons. See, e.g., Lynch II, 136 S. Ct. at 1818 (describing Simmons as
entitling the defendant to inform the jury, through instruction or argument,
of his parole ineligibility); O’Dell, 521 U.S. at 167 (describing Simmons as
providing a “narrow right of rebuttal”); Townes v. Murray, 68 F.3d 840, 850
(4th Cir. 1995) (“[T]he defendant’s right, under Simmons, is one of
opportunity, not of result.”); State v. Hulsey, 243 Ariz. 367, 396 ¶ 138 (2018)
(same); cf. State v. Escalante-Orozco, 241 Ariz. 254, 285 ¶ 118 (2017)
(suggesting that Simmons error is waivable). Furthermore, in every case in
which the Supreme Court or this Court has found reversible Simmons error,
the trial court either rejected the defendant’s proposed jury instruction
regarding his ineligibility for parole, prevented defense counsel “from
saying anything to the jury about parole ineligibility,” or both. Simmons,
512 U.S. at 175 (Ginsburg, J., concurring); accord, e.g., Lynch II, 136 S. Ct. at
1819 (both); Kelly v. South Carolina, 534 U.S. 246, 249 (2002) (refusal to
inform); Shafer, 532 U.S. at 41–46 (both); Hulsey, 243 Ariz. at 394 ¶¶ 124–27
(both); State v. Rushing, 243 Ariz. 212, 221 ¶ 36 (2017) (refusal to inform);
Escalante-Orozco, 241 Ariz. at 284 ¶ 116 (refusal to inform). In short,
Simmons “relief is foreclosed by [the defendant]’s failure to request a parole



                                       23
                              STATE V. BUSH
                             Opinion of the Court

ineligibility instruction at trial.” Campbell v. Polk, 447 F.3d 270, 289 (4th Cir.
2006); accord Townes, 68 F.3d at 850.

¶75            Here, Bush has not shown that he was deprived of the right
to inform the jury of his parole ineligibility. Unlike in the aforementioned
cases, the trial court neither refused to instruct, nor prevented Bush from
informing, the jury regarding his parole ineligibility. To the extent defense
counsel briefly and vaguely voiced disagreement before jury selection over
whether jurors should “be advised as to the possibility of release,” and
despite stating he would “talk more about that” disagreement “in a
second,” he failed to do so that day or at any time during trial. Thus, Bush
has not established Simmons error. Accordingly, we do not address
whether future dangerousness, a prerequisite to finding reversible Simmons
error, was at issue in this case, Lynch II, 136 S. Ct. at 1818; Simmons, 512 U.S.
at 156 (plurality opinion); Simmons, 512 U.S. at 177–78 (O’Connor, J.,
concurring in the judgment), nor do we address whether Bush has carried
his burden of establishing prejudice resulting from any alleged Simmons
error. See Henderson, 210 Ariz. at 567 ¶ 20, 568–69 ¶¶ 26–28.

   E. Victim-Impact Evidence

¶76           Bush contends the trial court abused its discretion by
allowing Gina, the surviving victim, to make an impact statement allegedly
containing impermissible characterizations and opinions about Bush and
the murders, which he claims served no purpose other than to inflame the
jury and inject non-statutory aggravation evidence into the proceedings.
Bush further argues that the victim-impact evidence violated his Fifth
Amendment privilege against self-incrimination and amounted to
prosecutorial misconduct.

¶77            After the aggravation phase and before Bush presented his
mitigation evidence, Gina read a prepared statement describing the impact
of her husband’s and daughter’s murders as the prosecution displayed
seven portrait-type photographs of Brisenia. The State noted that these
were the “same photographs that Ms. Gonzales used” in Forde’s trial, and
the trial court informed the jury that Gina would not be under oath and that
hers “is a statement of the victim . . . not subject to cross examination.”

¶78         Gina’s impact statement largely described the two murders
from her perspective, her and her surviving daughter’s struggles to
understand and cope with losing her husband and daughter, and those


                                       24
                             STATE V. BUSH
                            Opinion of the Court

victims’ individual characteristics. Gina did, however, state that her
“daughter was shot at close range, like she was worth nothing,” and
“[c]lose enough to almost blow her face completely off.” She also stated
that Bush “lied” to Brisenia and “knew what his intentions were,” and
expressed confusion about “how someone could have that much hate in
their heart.”

¶79            Bush did not object until several days after Gina gave her
statement, when he submitted limiting instructions and moved for a
mistrial. He alleged the statement violated Payne v. Tennessee, 501 U.S. 808
(1991), and Booth v. Maryland, 482 U.S. 496 (1987), because it was “clearly
directed toward the defendant” and did not “deal[] with the victim.” The
trial court denied Bush’s motion for a mistrial but agreed to give a
“cautionary instruction” directing jurors to consider Gina’s statement only
“as it relates to the personal characteristics and uniqueness of the victims
and the impact of their deaths on the victims’ family,” and to disregard any
portion “that may relate to her opinion of the crime or [Bush].”

¶80              We review the denial of a motion for a mistrial for abuse of
discretion. Burns, 237 Ariz. at 29 ¶ 136. A victim has the right “[t]o be heard
at any proceeding involving . . . sentencing.” Ariz. Const. art. 2, § 2.1(4).
Impact statements provide “evidence about the victim and . . . the impact
of the murder on the victim’s family,” Payne, 501 U.S. at 827, help inform
the jury about the “specific harm caused by the crime in question,” id. at
825, and rebut mitigation evidence “by reminding the [jury] that . . . the
victim is an individual whose death represents a unique loss to society
and . . . to his family,” id. (internal quotation marks omitted) (quoting Booth,
482 U.S. at 517 (White, J., dissenting)).

¶81           Victim-impact evidence is subject to constitutional
limitations. The Eighth Amendment, for example, prohibits victim-impact
statements from containing “victim’s family members’ characterizations
and opinions about the crime, the defendant, and the appropriate
sentence.” Id. at 830 n.2; accord Booth, 482 U.S. at 508. Likewise, due process
principles prohibit impact evidence that “is ‘so unduly prejudicial that it
renders the trial fundamentally unfair.’” State v. Dann, 220 Ariz. 351, 369
¶ 98 (2009) (quoting Payne, 501 U.S. at 825).

¶82           We cannot say Gina’s statements were unduly prejudicial.
She did not advocate for the death penalty, see State v. Carlson, 237 Ariz. 381,
397 ¶¶ 59–61 (2015), and her statements are no more problematic than


                                      25
                             STATE V. BUSH
                            Opinion of the Court

others this Court has found permissible, see, e.g., Burns, 237 Ariz. at 30 ¶ 141
(describing victim’s final moments was “not unduly prejudicial”); State v.
Rose, 231 Ariz. 500, 513 ¶ 57 (2013) (finding “cop killer” a permissible
statement); State v. Cota, 229 Ariz. 136, 150 ¶¶ 69–72 (2012) (describing the
victims’ bodies as “mutilated” and “tortured” permissible). Moreover, we
concluded in Forde that Gina’s similar statement in that case appropriately
conveyed her inability to comprehend the killings. 233 Ariz. at 570
¶¶ 113–14.

¶83           We also reject Bush’s challenge to a photo presentation that
pales in comparison to the 123-photograph presentation we upheld in
Burns, based partially on a limiting instruction like the one given here. 237
Ariz. at 29–30 ¶¶ 137–40. In short, the trial court did not abuse its discretion
in denying his motion for a mistrial.

¶84           Bush next argues that the State committed prosecutorial
misconduct amounting to prejudicial fundamental error when it
introduced (and later argued) Gina’s statements describing how Bush
bragged about the killings and retained a bullet from the crime scene as a
souvenir. Because Bush failed to object to the alleged prosecutorial
misconduct, our analysis is limited to fundamental error review. Cota, 229
Ariz. at 151 ¶ 79.

¶85            We find no evidence of prosecutorial misconduct in the
record. As Bush concedes, the prosecution did not allege, and the jury was
not instructed on, the relishing aggravator, and “[n]one of [Gina’s]
statements encouraged the jury to consider unproven aggravators.”
Id. ¶ 80. Furthermore, the trial court dispelled any lingering concern by
instructing the jury it may not consider Gina’s statement as aggravation.
See id. at 150 ¶ 72 (upholding a similar instruction).

¶86          We likewise reject Bush’s claim that the prosecution
committed misconduct when it “orchestrat[ed] the victim impact
presentation” that was “virtually identical” to that given in Forde, such that
Gina was “not simply speaking extemporaneously.” Because Forde
involved the same facts as this case, Gina’s impact statement was
unsurprisingly similar in both cases.

¶87           Bush also contends that Gina violated his Fifth Amendment
privilege against self-incrimination and Sixth Amendment Confrontation
Clause rights when she “directly addressed [him] . . . in open court, thereby


                                      26
                             STATE V. BUSH
                            Opinion of the Court

calling for an answer.” We rejected this argument in Forde, 233 Ariz. at 570
¶¶ 113–14, and Bush concedes that Gina’s statement in that case is
“virtually identical” to the statement she made in this case.

   F. Double Punishment

¶88            Bush argues that the sentences for his non-capital convictions
constitute impermissible double punishment. Although Bush’s failure to
object to his sentences in the trial court limits our analysis to fundamental
error review, an illegal sentence constitutes fundamental error. Forde,
233 Ariz. at 574 ¶ 137.

¶89           Bush was sentenced to a total of seventy-eight years’
imprisonment: twenty-one years for first degree burglary (count three);
twenty-one years for attempted first degree murder (count four); fifteen
years for aggravated assault (count five); fifteen years, to run concurrently
with his sentence for count five, for aggravated assault with a deadly
weapon (count six); twenty-one years for armed robbery with a deadly
weapon (count seven); and fifteen years, to run concurrently with his
sentence for count seven, for aggravated robbery while aided by one or
more accomplices (count eight).

¶90            Under Arizona law, “[a]n act or omission . . . made
punishable in different ways by different sections of the laws may be
punished under both, but in no event may sentences be other than
concurrent.” A.R.S. § 13-116. We apply a three-part test to determine
whether a defendant’s conduct constitutes a single “act or omission” under
the statute. State v. Gordon, 161 Ariz. 308, 315 (1989). Under Gordon, we first
“subtract[] from the factual transaction the evidence necessary to convict on
the ultimate charge” — here, the murders (as to Brisenia and Junior) and
attempted murder (as to Gina) — and then determine whether “the
remaining evidence satisfies the elements of the other crime[s].” Id. We
then determine “whether . . . it was factually impossible to commit the
ultimate crime without also committing the secondary crime[s].” Id.
Finally, we “consider whether the defendant’s conduct in committing the
[secondary] crime[s] caused the victim to suffer an additional risk of harm
beyond that inherent in the ultimate crime.” Id.

¶91           Bush’s sentences for his non-capital convictions satisfy
Gordon. His conviction for burglary (count three) satisfies the identical
elements test relative to, and was not a necessary component of, his murder


                                      27
                             STATE V. BUSH
                            Opinion of the Court

convictions, and subjected his victims to a distinct form of harm — violation
of privacy and security — different than loss of life. Compare A.R.S.
§ 13-1508, with § 13-1105. Bush further contends that his sentence for count
three must run concurrent with his sentence for count four because the
burglary did not subject Gina to an additional risk of harm beyond the
attempted murder, but this claim fails for the same reason.

¶92            Bush’s convictions for aggravated assault (counts five and six)
also satisfy the identical elements test as they relate to his attempted murder
conviction (count four). Bush nonetheless argues that his sentences for
those counts must be concurrent with his attempted murder sentence
because the harm inherent to aggravated assault is no different than the
harm inherent to attempted murder. We rejected a similar claim in Forde,
noting that the “aggravated assault convictions were established by
evidence that Bush shot Gina twice and seriously injured her soon after he
initially entered the home,” and that the “attempted murder conviction was
established by evidence that at the conclusion of the home invasion, Forde
discovered Gina on the phone and shouted for someone to ‘finish [her] off,’
prompting Bush to re-enter the home and shoot at Gina.” 233 Ariz. at 574
¶ 138 (alteration in original). We also noted that the “attempted murder
and aggravated assaults occurred at different times during the home
invasion and involved separate acts,” such that “it was possible . . . to
commit the former crime without committing the latter ones.” Id. ¶ 139.
Finally, we concluded that “the aggravated assaults caused Gina to suffer
physical injuries that were not inherent in the attempted murder.” Id.
Because the facts in this case and Forde are identical, Bush’s claim
necessarily fails.

¶93           Finally, Bush contends that his sentences for robbery and
aggravated robbery (counts seven and eight), which run concurrently with
each other, must also run concurrently with his sentence for attempted
murder (count four). But these counts also satisfy the identical elements
test because the elements of the relevant crimes, as with the facts underlying
those crimes, are not identical. Indeed, Bush and his accomplices ransacked
Gina’s home after the initial shootings and before Bush returned, at Forde’s
command, to kill Gina. Moreover, robbery involves the unlawful taking of
another’s possessions, which is a harm distinct from an unjustified attempt
to kill. Compare A.R.S. §§ 13-1902, -1903, with §§ 13-1001, -1105. As such,
the consecutive sentences do not violate § 13-116, and the trial court did not
err in sentencing Bush on these counts.



                                      28
                            STATE V. BUSH
                           Opinion of the Court

   G. Abuse of Discretion Review

¶94            We review the jury’s imposition of a death sentence for abuse
of discretion. A.R.S. § 13-756(A). Arizona law requires us to “review the
sentencing portion of the trial even when a defendant fails,” as Bush did
here, “to challenge the jury’s decision with regard to either the aggravating
factors or the imposition of the death sentences.” State v. Morris, 215 Ariz.
324, 340 ¶¶ 75–76 (2007); accord § 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.’” State v. Manuel, 229 Ariz. 1, 9 ¶ 42
(2011) (quoting Morris, 215 Ariz. at 341 ¶ 77). Moreover, “[t]he jury’s
determination that death is the appropriate sentence will not be reversed
‘so long as any reasonable jury could have concluded that the mitigation
established by the defendant was not sufficiently substantial to call for
leniency.’” Id. (quoting Morris, 215 Ariz. at 341 ¶ 81).

      1. Aggravating Circumstances

¶95           For Brisenia’s murder, the prosecution alleged, and the jury
found, that Bush “was an adult at the time” he murdered Brisenia, who
“was under fifteen years of age,” which is an aggravating circumstance
under A.R.S. § 13-751(F)(9). For both murders, the prosecution alleged, and
the jury found, that Bush committed multiple homicides on the same
occasion and after having been convicted of another serious offense
“committed on the same occasion as the homicide[s],” which are
aggravating circumstances under § 13-751(F)(2) and (8). Sufficient evidence
supports the jury’s finding of the aggravating circumstances.

      2. Mitigating Circumstances

¶96           Bush presented evidence of significant mental illness, a
severely troubled past, and a “very strong” “delusional system” involving
his military background. His mitigation expert, however, acknowledged
that Bush likely had the capacity to “know right from wrong” and that it
“was not typical for anyone to murder a nine year old girl.” And to the
extent that Bush offered evidence that he may have had militaristic
delusions, his expert also acknowledged that Bush was candid with him
about his background and never described any such delusions.
Furthermore, the prosecution offered evidence that doctors in another state
evaluated Bush for two weeks in 1998 and concluded that he, “although
claiming mental illness, . . . was not mentally ill” and “was prone to


                                     29
                             STATE V. BUSH
                            Opinion of the Court

attempt[] to manipulate others” in order to “gain preferential treatment in
prison.”

       3. Propriety of Death Sentences

¶97           Given the aggravating circumstances and the mitigation
presented, a reasonable juror could conclude that the mitigating
circumstances were not sufficiently substantial to call for leniency.
Accordingly, the jury did not abuse its discretion in returning death
verdicts for Bush’s murders of Brisenia and Junior Flores.

   H. Additional Issues

¶98           Stating that he wants to preserve certain “constitutional
challenges to his death sentences” based on claims that “have previously
been rejected by this Court or the federal courts,” Bush lists nineteen claims
and previous decisions rejecting them. We decline to revisit those claims.

   I. The Dissent

¶99           Judge Winthrop’s partial dissent asserts that the death
penalty currently is “both cruel and unusual” and therefore
unconstitutional under article 2, section 15 of the Arizona Constitution, this
state’s counterpart to the Eighth Amendment’s “cruel and unusual
punishment” clause. Infra ¶¶ 120, 136, 149 (Winthrop, J., concurring in part
and dissenting in part). We do not directly address that assertion because
well-established jurisprudential and procedural principles, as well as
constitutional constraints on our proper role as state court jurists under
Arizona’s separation of powers, prohibit us from overturning this state’s
capital scheme, at least in this case.

¶100           The dissent is odd on several levels. It purportedly rests on
the Arizona Constitution’s prohibition of cruel and unusual punishment
because, as the dissent acknowledges, binding United States Supreme
Court precedent has rejected Eighth Amendment challenges to the death
penalty. Infra ¶¶ 120, 131. Strangely, however, the dissent disregards our
state’s pertinent history and case law directly bearing on article 2, section
15, and instead relies largely on Supreme Court cases — mostly dissenting
and other non-majority opinions — interpreting the Eighth Amendment to
support its view. See infra ¶¶ 124, 126, 129–30, 136. This approach is
fruitless.



                                     30
                             STATE V. BUSH
                            Opinion of the Court

¶101            The United States Supreme Court has not suggested that
Arizona’s capital sentencing scheme is unconstitutional, whether in cases
involving our statutes or similar statutes of other states. Indeed, the Court
recently declined to directly address, invalidate, or even question this
state’s capital sentencing statutes. Hidalgo v. Arizona, 138 S. Ct. 1054 (2018).
To be sure, Justice Breyer has noted “a possible constitutional problem”
with Arizona’s statutory scheme based on its extensive list of aggravating
circumstances, id. at 1057 (Breyer, J., respecting the denial of certiorari), a
concern the dissent apparently shares, infra ¶ 120 n.1. But Justice Breyer’s
previously announced view that “it [is] highly likely that the death penalty
violates the Eighth Amendment” is not the view of a majority of Justices
and thus is not the law. Glossip v. Gross, 135 S. Ct. 2726, 2776–77 (2015)
(Breyer, J., dissenting).

¶102          As the dissent correctly notes, over forty years ago the
Supreme Court “essentially reaffirm[ed] the constitutionality of the death
penalty throughout the nation.” Infra ¶ 131; see also Glossip, 135 S. Ct. at
2732 (stating that “Gregg reaffirmed that the death penalty does not violate
the Constitution” and that “it is settled that capital punishment is
constitutional”); Gregg, 428 U.S. at 187, 207 (joint opinion of Stewart, Powell,
and Stevens, JJ.); Gregg, 428 U.S. at 207, 220–26 (White, J., concurring in the
judgment). In the four decades since, the Court has not found capital
punishment unconstitutional under the Eighth Amendment, whether
based on “the evolving standards of decency that mark the progress of a
maturing society,” infra ¶ 122 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)
(plurality opinion)), or otherwise.

¶103           As state court judges, we of course are bound by that
authority under the Supremacy Clause. U.S. Const. art. VI, cl. 2 (stating that
the federal “Constitution . . . shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby”); see also Ariz. Const. art. 2,
§ 3(A) (stating that “[t]he Constitution of the United States is the supreme
law of the land”). We therefore cannot interpret the federal Constitution to
be more restrictive than has the Supreme Court on issues that Court has
directly addressed. See, e.g., Arkansas v. Sullivan, 532 U.S. 769, 772 (2001)
(rejecting a state court’s holding that “it may interpret the United States
Constitution to provide greater protection than [the] Court’s own federal
constitutional precedents provide”); accord Oregon v. Hass, 420 U.S. 714, 719
(1975). Nor may we anticipate or assume that the Supreme Court will
overturn or alter its established precedent. See Hohn v. United States, 524



                                      31
                              STATE V. BUSH
                             Opinion of the Court

U.S. 236, 252–53 (1998) (stating that the Court’s “decisions remain binding
precedent” until the Court “see[s] fit to reconsider them, regardless of
whether subsequent cases have raised doubts about their continuing
vitality”); State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (stating that it is the
“Court’s prerogative alone to overrule one of its precedents”). Thus, the
dissent rightly acknowledges that this Court has no basis to declare
Arizona’s capital scheme invalid under the United States Constitution.
Infra ¶ 120.

¶104           The dissent ostensibly relies on article 2, section 15 of the
Arizona Constitution to support its view, but for several reasons that
reliance is misplaced here. First and foremost, that issue is not properly
before us as Bush did not raise it in the trial court or here on appeal. We
generally do not address issues not properly raised, developed, and argued
by the parties (and certainly would not do so here but for the dissent). See
State v. McCall, 139 Ariz. 147, 163 (1983) (stating in a capital case that
“[f]ailure to argue a claim constitutes abandonment”); see also Ariz. R. Crim.
P. 31.10(a)(7)(A) (requiring appellant’s brief to contain specific contentions
with supporting reasons, legal authorities, and record references); State ex
rel. Brnovich v. City of Tucson, 242 Ariz. 588, 599 ¶ 45 (2017) (“We generally
do not reach out to decide important constitutional issues or to upset
established precedent when no party has raised or argued such issues.”).

¶105          The dissent is flawed in other respects as well. This Court of
course may independently interpret and apply provisions of the Arizona
Constitution in a manner that affords greater protection to individual rights
than their federal counterparts. See, e.g., City of Mesquite v. Aladdin’s Castle,
Inc., 455 U.S. 283, 293 (1982) (citing William J. Brennan, Jr., State
Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489
(1977)). But any such analysis must be anchored in the text, history, and
considered interpretation of the state constitutional provision in question.
The dissent is untethered to any of those pertinent factors, leaving it adrift
and unrestrained.

¶106          To date, this Court has not interpreted article 2, section 15
differently than the Eighth Amendment. The language of both provisions
is virtually identical, both prohibiting infliction of “cruel and unusual
punishment” (the Eighth Amendment uses the plural, “punishments”). We
“do not follow federal precedent blindly” in interpreting our state’s
constitution, but up to this point we have found no “compelling reason to
interpret Arizona’s cruel and unusual punishment provision differently


                                       32
                              STATE V. BUSH
                             Opinion of the Court

from the related provision in the federal constitution.” State v. Davis, 206
Ariz. 377, 380–81 ¶ 12 (2003). Accordingly, “[w]e ordinarily interpret the
scope of a clause in the Arizona Constitution similarly to the United States
Supreme Court’s interpretation of an identical clause in the federal
constitution,” particularly when “this court has consistently followed
federal precedent in [the] area.” State v. Noble, 171 Ariz. 171, 173 (1992).

¶107           Such consistency is found in this Court’s article 2, section 15
jurisprudence regarding capital punishment. See State v. Jackson, 186 Ariz.
20, 25 (1996) (rejecting challenge to death penalty under article 2, section 15
and ascribing to it “the same meaning” as Eighth Amendment “where the
parties do not argue otherwise”); State v. Endreson, 108 Ariz. 366, 370 (1972)
(same, and stating: “Unless and until the United States Supreme Court
orders us to do otherwise, or until the Arizona legislature sees fit to abolish
the use of the death penalty in this State, we will continue to uphold its
constitutionality and affirm its imposition when, because of aggravating
circumstances, it is warranted.”); State v. Maloney, 105 Ariz. 348, 358–60
(1970) (upholding capital punishment under article 2, section 15 while
recognizing that societal status of that penalty was “in turmoil,” with “a
plethora of arguments pro and con on the question”); State v. Boggs, 103
Ariz. 328, 334–35 (1968) (holding that Arizona’s death penalty does not
violate article 2, section 15). The dissent’s reliance on article 2, section 15
thus finds no support in our case law.

¶108            Adopting the dissent’s position would require overruling that
longstanding Arizona precedent, apparently because it is deemed obsolete
as being out of step with “the evolving standards of decency” in our
“maturing society,” infra ¶ 122 (quoting Trop, 356 U.S. at 101 (plurality
opinion)), a notion this Court has not yet expressly embraced as a matter of
state constitutional law. Cf. Glossip, 135 S. Ct. at 2749 (Scalia, J., concurring)
(attempting “to divine ‘the evolving standards of decency that mark the
progress of a maturing society’” is “a task for which [judges] are eminently
ill suited” (quoting Trop, 356 U.S. at 101 (plurality opinion))). But even if
we assume that the Eighth Amendment standard applies for purposes of
article 2, section 15, neither Bush nor the dissent urges us to overrule any
prior Arizona case.

¶109         Nor does the history of Arizona’s provision seem to support
the dissent. When our state’s constitution, including article 2, section 15,
was approved and adopted in 1912, Arizona law authorized capital
punishment. See generally John D. Leshy, The Arizona State Constitution, at


                                       33
                              STATE V. BUSH
                             Opinion of the Court

79 n.24 (2d ed. 2013); C. McClennen, Capital Punishment in Arizona, Ariz.
Attorney 17–21 (Oct. 1992). (Arizona voters abolished the death penalty in
1916 but then quickly repealed the prohibition in 1918.) At the
constitutional convention, one delegate’s proposal to ban capital
punishment never reached the floor. Leshy, supra, at 79. And “another
delegate successfully insisted on changing the conjunction between cruel
and unusual from ‘or’ to ‘and’ to prevent the Arizona courts from
outlawing new methods of execution, such as electrocution, on the grounds
that they were simply unusual rather than cruel.” Id. In addition, later
amendments to the constitution explicitly refer to the death penalty,
arguably “negating any inference that capital punishment is per se cruel
and unusual in violation of [article 2, section 15].” Id.; see also Ariz. Const.
art. 2, § 23 (1972) (trial by jury and number of jurors); Ariz. Const. art. 22,
§ 22 (1992) (methods of execution on judgments of death).

¶110           In sum, the dissent’s resort to article 2, section 15 to support
its view that Arizona’s death penalty is unconstitutionally “cruel and
unusual” is difficult to reconcile with the relevant text, history, and caselaw.
Cf. Glossip, 135 S. Ct. at 2747 (Scalia, J., concurring) (noting that “not once in
the history of the American Republic has this Court ever suggested the
death penalty is categorically impermissible,” largely because “[i]t is
impossible to hold unconstitutional that which the Constitution explicitly
contemplates” under the Fifth Amendment). And even if relevant facts
might exist to support the dissent’s critique in some respects, they certainly
are not in this record as no such evidence was presented here. Cf. Hidalgo,
138 S. Ct. at 1057 (Breyer, J., respecting the denial of certiorari) (agreeing
with the Court’s denial of review when the undeveloped record lacked
relevant evidence and was “limited and largely unexamined by experts and
the courts below in the first instance”).

¶111          Absent a constitutional violation, the propriety of Arizona’s
capital scheme is strictly a matter of policy, which is outside our purview
under our constitution’s separation of powers. See Ariz. Const. art. 3
(“[T]he legislative, the executive, and the judicial . . . departments shall be
separate and distinct, and no one of such departments shall exercise the
powers properly belonging to either of the others.”). The dissent incorrectly
suggests that we would defer to the legislature on matters of constitutional
interpretation and application, abdicating our constitutional authority and
responsibility. Infra ¶¶ 123–25. But that mischaracterizes our position and
conflates constitutional issues, appropriate for judicial resolution, with



                                       34
                             STATE V. BUSH
                            Opinion of the Court

purely policy choices, appropriate for the law-making role of the legislature
and governor, or the people themselves.

¶112           The dissent’s various criticisms of the death penalty and its
alleged flaws — the time and cost involved in pursuing and administering
capital punishment; its arbitrary application and disproportionate or
discriminatory impact on minorities; implicit and explicit biases, including
racial and geographic disparities; and lack of any measurable deterrent
effect — are arguments that have been raised over the years for total
abolition of capital punishment. See, e.g., Maloney, 105 Ariz. at 358–59. But
these are largely policy-laden factors that are proper subjects for legislative
consideration, debate, and decision, not appropriate topics for judicial
resolution in the absence of any evidence or argument. See, e.g., Endreson,
108 Ariz. at 370 (stating that “the question of the abolishment of the death
penalty under the Arizona Constitution is a question properly left to the
legislature or the people of this State through constitutional amendment”);
State v. Alford, 98 Ariz. 124, 132 (1965) (declining to “pass upon whether
capital punishment, as a public policy, is effective” because under
Arizona’s separation of powers, “[w]e are limited to the judicial function of
faithfully and impartially interpreting the law as enacted by the
legislature”).

¶113           Finally, to the extent Bush raised any issues pertaining to the
constitutionality of capital punishment in general, or of Arizona’s statutory
scheme in particular, he did so only in summary fashion so as to avoid
preclusion in federal habeas corpus proceedings. We therefore decline the
invitation to revisit various un-argued claims that, as Bush acknowledges,
“have previously been rejected by this Court or the federal courts.” For all
these reasons, although we express no opinion prospectively if the issue is
raised, developed, and argued, this is not the appropriate case to address
or decide the validity of capital punishment under Arizona’s Constitution.

                              CONCLUSION

¶114          We affirm Bush’s convictions and sentences.




                                      35
                              STATE V. BUSH
                  CHIEF JUSTICE BALES, Concurring in Part

CHIEF JUSTICE BALES, concurring in part.

¶115          I join ¶¶ 1–98 of the majority’s opinion and ¶ 114 affirming
Bush’s convictions and sentences. Bush did not develop any argument that
Arizona’s capital sentencing scheme generally violates the Eighth
Amendment’s prohibition on cruel and unusual punishment or its
counterpart in article 2, section 15 of the Arizona Constitution. Those issues
are not before us, and I express no view on the prospective constitutional
validity of Arizona’s capital scheme based on properly raised arguments
under the federal or state constitution.




                                     36
                          STATE V. BUSH
       JUDGE WINTHROP, Concurring in Part and Dissenting in Part

JUDGE WINTHROP, concurring in part and dissenting in part.

¶116          Substantial evidence supports the jury’s determinations
regarding the defendant’s role and criminal intent in carrying out these
horrendous murders. I concur with the majority’s analysis and resolution
of the procedural and substantive issues raised in this appeal. I depart from
my colleagues, however, on the issue of imposition of the death penalty.
On that basis alone, and for reasons set forth below, I respectfully dissent.

¶117          The historical implementation of the death penalty bears little
resemblance to its current administration. In distant times when the death
penalty was quickly imposed, the execution was open for public viewing,
and there was minimal evidence to contradict the accuracy of a defendant’s
conviction, the death penalty may have served as an efficient method of not
only enforcing criminal law but also advancing legitimate policy goals.
Society, however, has evolved and no longer administers the death penalty
in this manner.

¶118           Instead of taking weeks, prisoners on death row, and the
victim’s families, often wait for decades for the sentence to be administered.
Further, over the years, numerous studies have criticized the death penalty
as disproportionally affecting defendants of color and, with increasing
frequency, in part due to advancements in technology, we have become
aware of defendants who have been wrongly convicted and whose death
sentences have ultimately been commuted―either due to their own actual
innocence or because of incurable procedural flaws from their trial. Some
of these wrongful convictions were obtained because of overzealous
prosecutors who pursued conviction and imposition of the death penalty at
the expense of candor; some convictions were obtained because of the
failures of defendants’ resource-deprived appointed counsel; some
convictions were obtained because of jurors’ biases; and some may have
been fortuitously imposed simply because of the county in which the
defendant committed the crime. Each conviction obtained through these
means highlights the flaws in administering the death penalty, and our
historic inability to devise a method to implement the death penalty free
from human bias and error.

¶119         Additionally, the death penalty has not been conclusively
shown to deter criminal behavior, a primary rationale of criminal law and
sentencing. Moreover, taxpayers are spending millions of dollars to
prosecute, convict, and sentence defendants to death. As further explained


                                     37
                           STATE V. BUSH
        JUDGE WINTHROP, Concurring in Part and Dissenting in Part

below, the death penalty has been shown to be cruel and unusual, to not
have any notable deterrent effect, to impose unintended trauma on the
victim’s family and friends, and to be cost prohibitive.

¶120          Although current United States Supreme Court jurisprudence
rejecting Eighth Amendment attacks on the death penalty preclude a state
court from interpreting the United States Constitution to provide greater
protection than the Court’s own federal constitutional precedents provide,
Arkansas v. Sullivan, 532 U.S. 769, 772 (2001), state courts “are absolutely free
to interpret state constitutional provisions to accord greater protection to
individual rights than do similar provisions of the United States
Constitution.” Arizona v. Evans, 514 U.S. 1, 8 (1995). Because we may
interpret Arizona’s Constitution to provide greater protections to Arizona
citizens, I would hold, as a matter of state law, that the death penalty is
unconstitutional. 1

    A. Cruel and Unusual Punishment

¶121          Throughout history, the Fifth Amendment has provided a
constitutional basis for the death penalty. U.S. Const. amend. V (“No
person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury.”). The Fifth
Amendment, however, does not grant unbridled discretion in sentencing
defendants convicted of capital crimes to death; rather, the Fifth
Amendment is limited by the Eighth Amendment’s prohibition against
cruel and unusual punishment. See U.S. Const. amend. VIII; see also Trop v.
Dulles, 356 U.S. 86, 100 (1958) (stating that “[w]hile the State has the power

1 In addition to the grounds discussed herein, I also note that Arizona’s
death penalty, as currently administered, may be flawed for additional
reasons. For a state’s capital sentencing scheme to be constitutional, it must
serve a narrowing function and “limit the class of murderers to which the
death penalty may be applied.” Brown v. Sanders, 546 U.S. 212, 216 (2006).
Instead of ensuring that only those who commit the most heinous crimes
are eligible for the death penalty, however, Arizona’s list of aggravating
factors, A.R.S. § 13-751(F), expands the class of death-eligible defendants to
nearly all first-degree murder defendants. See Hidalgo v. Arizona, 138 S. Ct.
1054, 1057 (2018) (Breyer, J., respecting the denial of certiorari) (stating that
the unrebutted evidence that approximately “98% of first-degree murder
defendants in Arizona were eligible for the death penalty . . . points to a
possible constitutional problem”).


                                       38
                          STATE V. BUSH
       JUDGE WINTHROP, Concurring in Part and Dissenting in Part

to punish, the [Eighth] Amendment stands to assure that this power be
exercised within the limits of civilized standards”). Similarly, Arizona’s
statutory capital sentencing scheme is limited by article 2, § 15 of the
Arizona Constitution (“Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishment inflicted.”).

¶122          Neither the federal nor state constitution defines what
constitutes “cruel and unusual” punishment. Instead, we determine what
constitutes cruel and unusual punishment based on “the evolving
standards of decency that mark the progress of a maturing society.” Trop,
356 U.S. at 101; accord Furman v. Georgia, 408 U.S. 238, 242 (1972) (Douglas,
J., concurring); see also Weems v. United States, 217 U.S. 349, 378 (1910)
(explaining that what is “cruel and unusual” “is not fastened to the
obsolete, but may acquire meaning as public opinion becomes enlightened
by a humane justice”) (citing Ex parte Wilson, 114 U.S. 417, 427 (1885) and
Mackin v. United States, 117 U.S. 348, 350 (1886)).

¶123           The majority opinion argues that determining “evolving
standards of decency that mark the progress of a maturing society” is a role
reserved for the legislature and, as a matter of respecting
constitutionally-mandated separation of powers, courts should decline to
usurp that role. Supra ¶¶ 108, 111–12. Although the lawmaking role
belongs to our legislature, legislative measures are not the sole determinant
of the bounds of the Eighth Amendment; indeed, the Eighth Amendment
is intended to safeguard against the abuse of legislative power. See Gregg
v. Georgia, 428 U.S. 153, 174 (1976). Because article 2, § 15 imposes a similar
restraint on the exercise of the legislative power as it relates to imposition
of the death penalty, our courts must bring their own independent
judgments to bear on this question. See Atkins v. Virginia, 536 U.S. 304, 312
(2002).

¶124         Further, it is expressly the role of the court to consider
“objective indicia of society’s standards, as expressed in legislative
enactments and state practice” to determine whether national consensus
repudiates the sentencing practice at issue. Roper v. Simmons, 543 U.S. 551,
563 (2005). And, guided by “the standards elaborated by controlling
precedents and by the [c]ourt’s own understanding and interpretation of the
Eighth Amendment’s text, history, meaning, and purpose,” the court must
determine whether the punishment in question violates the Constitution.
Kennedy v. Louisiana, 554 U.S. 407, 421 (2008) (emphasis added).



                                      39
                          STATE V. BUSH
       JUDGE WINTHROP, Concurring in Part and Dissenting in Part

¶125           Although article 3 of the Arizona Constitution appears to
prohibit any comingling of the legislative, executive, and judicial powers,
Arizona courts have acknowledged a sharing or blending of those powers,
particularly where the issue is prevention and punishment of criminal
activity. State v. Ramsey, 171 Ariz. 409, 413 (App. 1992). This Court has
acknowledged that blended powers are not per se invalid. State ex rel. Woods
v. Block, 189 Ariz. 269, 275–76 (1997). While still respecting Arizona’s
firmly-established principle of separation of powers, this Court adopted the
test established by the Arizona Court of Appeals that determines whether
“one branch of government is exercising the powers belonging to either of
the others.” Id. (adopting the multi-part test established in J.W. Hancock
Enters., Inc. v. Ariz. State Registrar of Contractors, 142 Ariz. 400, 405 (App.
1984)) (internal citation omitted). Where, as here, we review defendant’s
convictions and the imposition of the sentence of death―the ultimate
punishment intended, in theory, to deter criminal activity―the exercise of
such blended authority is indeed appropriate. See Ramsey, 171 Ariz. at 413.

¶126             We no longer question whether the Eighth Amendment
prohibits certain punishments like “public dissection, burning
alive, . . . crucifixion, [and] breaking on the wheel” as cruel and unusual,
because our courts have routinely found these punishments, or their
equivalents, to be unconstitutional. Glossip v. Gross, 135 S. Ct. 2726, 2792
(2015) (Sotomayor, J., dissenting) (internal quotation marks omitted)
(quoting Wilkerson v. Utah, 99 U.S. 130, 135–36 (1879) and In re Kemmler, 136
U.S. 436, 446 (1890)). Moreover, over the years we have categorically barred
certain punishments as cruel and unusual, such as punishments which
involve torture or the denaturalization of a citizen, in certain circumstances.
See Trop, 356 U.S. at 101. More recently, the Supreme Court has expanded
which punishments the Constitution categorically prohibits to include
imposing a death sentence on a minor, Roper, 543 U.S. at 568, or on a
defendant that suffers from a mental disability. Atkins, 536 U.S. at 321.

¶127          Society’s standard of what constitutes cruel and unusual
punishment has continued to evolve to the point where many states have
either abolished the death penalty in its entirety or, by inaction over a
period of years, have signaled concerns about the constitutionality of such




                                      40
                          STATE V. BUSH
       JUDGE WINTHROP, Concurring in Part and Dissenting in Part

a punishment. 2 This trend to abolish the death penalty or not carry out a
death sentence stands in stark contrast to the intransigence of other
jurisdictions’ continued implementation of the death penalty. As society
continues to evolve to reject the death penalty, so too should we.

          Unconstitutionally Cruel

¶128            Simply stated, the death penalty cannot be implemented in a
way that is not cruel. Most modern executions are conducted by lethal
injection, which is assumed to be a more humane method of death than
prior methods. See Death Penalty Info. Ctr., supra ¶ 127 n.2. This
assumption, however, has not proven to be true. Numerous defendants
executed by lethal injection do not die instantly and instead have appeared
to be “drowning in air.” Michael Kiefer, Reporter Describes Arizona
Execution: 2 Hours, 640 Gasps, Arizona Republic, Nov. 6, 2014,
https://www.azcentral.com/story/news/arizona/politics/2014/07/24/
arizona-execution-joseph-wood-eyewitness/13083637. Executions, which
are only supposed to last approximately ten minutes, have lasted for hours
before the defendant was pronounced dead. Id. Other execution attempts
have required the state to halt the process and later make another attempt
(often, multiple attempts) to execute a defendant. See, e.g., State v. Broom,
51 N.E.3d 620, 623 (Ohio 2016) (concluding that a state does not violate the
Constitution by attempting to execute a defendant after a failed execution),
cert. denied, 137 S. Ct. 590 (2016).

¶129            Not only does the defendant suffer the pain of dying by lethal
injection, which Justice Sotomayor has likened to be the “chemical
equivalent of being burned alive” Glossip, 135 S. Ct. at 2795 (Sotomayor, J.,
dissenting), but the defendant also suffers the mental and emotional
turmoil of uncertainty associated with the post-conviction process, the
delays associated with last-minute appeals and, ultimately, the uncertainty
as to the efficacy of the procedure itself. This “humane” method of death is



2 Nineteen states have abolished the death penalty and eleven states have
not had an execution in more than eight years. See Glossip, 135 S. Ct. at 2773
(Breyer, J., dissenting) (citing Death Penalty Info. Ctr., States With & Without
the Death Penalty (Nov. 9, 2016), http://www.deathpenaltyinfo.org/states-
and-without-death-penalty).



                                      41
                          STATE V. BUSH
       JUDGE WINTHROP, Concurring in Part and Dissenting in Part

failing. The result is that death row inmates are subject to physical and
emotional torture. 3

          Unconstitutionally Unusual

¶130           The death penalty not only inflicts unnaturally cruel
punishment, but the application and implementation of the death penalty
is, at best, arbitrary and capricious, and therefore constitutionally
“unusual,” and violative of article 2, § 15. The Supreme Court has found
that punishments that discriminate against a defendant based on “race,
religion, wealth, social position, or class” are unconstitutional. Furman, 408
U.S. at 242 (Douglas, J., concurring); see also Gregg, 428 U.S. at 188
(concluding that punishment which is “inflicted in an arbitrary and
capricious manner” is unconstitutional). Although the original intent may
have been to administer the death penalty consistently upon the worst
criminals, if anything, with time we have realized that we cannot devise a
way to implement the death penalty free from explicit or implicit bias.

¶131          In Furman, the Supreme Court struck down the death penalty,
as then implemented, as unconstitutional. 408 U.S. at 239–40. The Court
found that the states were disproportionately sentencing defendants of
color to death. Id. at 254–55 (Douglas, J., concurring). Following Furman,
many states attempted to devise a more precise sentencing scheme with the
goal of curtailing the arbitrary implementation of the death penalty. Four
years after Furman, the Supreme Court upheld Georgia’s sentencing
schemes in Gregg, essentially reaffirming the constitutionality of the death


3   Often lost in the media reporting of the delays and of the botched
execution attempts is the continued, inhumane trauma imposed on the
victim’s families and friends. See Jason Marsh, Does death penalty bring
closure?, CNN, May 20, 2015, https://www.cnn.com/2015/05/20/
opinions/marsh-tsarnaev-forgiveness/index.html (finding the victim’s
families and friends rarely feel closure once a defendant is sentenced to
death, in part, because the post-conviction process may take years during
which time the facts of the case continue to be replayed); see also Samuel R.
Gross & Daniel J. Matheson, What They Say at the End: Capital Victims’
Families and the Press, 88 Cornell L. Rev. 486, 490 (2003) (explaining that most
of the victim’s families and friends just want the process “to be over,” which
may not occur until decades after the sentence―after the defendant has
exhausted his appeals process).


                                      42
                          STATE V. BUSH
       JUDGE WINTHROP, Concurring in Part and Dissenting in Part

penalty throughout the nation. Unfortunately, the concerns raised in
Furman persist despite new sentencing schemes.

¶132          Although instances of overt discrimination have perhaps
abated, jurors today are still affected by racial bias. See David R. Dow, Death
Penalty, Still Racist and Arbitrary, N.Y. Times, July 8, 2011,
https://www.nytimes.com/2011/07/09/opinion/09dow.html.                   In the
years following Furman and Gregg, one study gained renown for
highlighting racial discrepancies in criminal sentencing. David C. Baldus,
Charles Pulaski & George Woodworth, Comparative Review of Death
Sentences: An Empirical Study of the Georgia Experience, 74 J. Crim. L. &
Criminology 661 (1983) (the “Baldus study”). The Baldus study evaluated
over 2000 homicides in Georgia and found that “black defendants were 1.7
times more likely to receive the death penalty than white defendants and
that murderers of white victims were 4.3 times more likely to be sentenced
to death than those who killed blacks.” Dow, supra; accord John D. Bessler,
Tinkering Around the Edges: The Supreme Court’s Death Penalty Jurisprudence,
49 Am. Crim. L. Rev. 1913, 1929 (2012). The Baldus study has been tested
numerous times since it was initially conducted and has been replicated in
other jurisdictions, and yet, “all [studies] reflect the same basic racial bias.”
Dow, supra.

¶133           As recently as 2015, Justice Breyer noted that “[n]umerous
studies . . . have concluded that individuals accused of murdering white
victims, as opposed to black or other minority victims, are more likely to
receive the death penalty.” Glossip, 135 S. Ct. at 2760–61 (Breyer, J.,
dissenting); see also Robert Barnes, Supreme Court Says Race-Based Testimony
Discriminated Against Black Death Row Inmate, Wash. Post, Feb. 22, 2017,
https://www.washingtonpost.com/politics/courts_law/supreme-court-
says-race-based-testimony-discriminated-against-death-row-black-
inmate/2017/02/22/c7a1590a-f915-11e6-9845-576c69081518_story.html
(reporting that the United States Supreme Court would reopen the
defendant’s sentencing after finding it was infected with racial prejudice);
Shelly Song, Race Consciousness in Imposing the Death Penalty, 17 Rich. J.L. &
Pub. Int. 739, 743 (2014) (finding that African Americans make up roughly
42% of the population on death row, and yet, make up only 12.6% of the
United States’ population). The potential for racial bias in imposition of the
death penalty is prevalent throughout the country, and Arizona is no
exception. See Fair Punishment Project, Too Broken to Fix: Part I, an In-depth
Look at America’s Outlier Death Penalty Counties, Fair Punishment Project 1,



                                       43
                          STATE V. BUSH
       JUDGE WINTHROP, Concurring in Part and Dissenting in Part

11–12, Aug. 2016, http://fairpunishment.org/wp-content/uploads/2016/
08/FPP-TooBroken.pdf (finding that, although African Americans make up
only 6% of the population in Maricopa County, they account for about 18%
of death penalty defendants).

¶134          Studies also suggest that, in addition to the arbitrariness of a
defendant’s perceived race, a defendant’s geographic location may also be
indicative of whether the death penalty will be imposed. See Glossip, 135 S.
Ct. at 2761 (Breyer, J., dissenting) (stating that “the imposition of the death
penalty heavily depends on the county in which a defendant is tried”). One
study examining the imposition of the death penalty from 2004 to 2009
found that “just 29 counties (fewer than 1% of counties in the country)
accounted for approximately half of all death sentences imposed
nationwide.” Id. (citing Robert J. Smith, The Geography of the Death Penalty
and Its Ramifications, 92 B.U. L. Rev. 227, 231–32 (2012)). This is largely
because “[m]ost death penalty cases are prosecuted at the county level, and
there are great disparities between the counties.” See Adam M. Gershowitz,
Pay Now, Execute Later: Why Counties Should Be Required to Post a Bond to Seek
the Death Penalty, 41 U. Rich. L. Rev. 861, 862 (2007). 4



4  Along with other select jurisdictions, Arizona is notorious for having
some of the most aggressive death penalty prosecutors in the country who,
at times, have violated ethical rules to obtain a conviction. See Fair
Punishment Project, America’s Top Five Deadliest Prosecutors: How
Overzealous Personalities Drive the Death Penalty, Fair Punishment Project 1,
20, 24, June 2016, http://fairpunishment.org/wp-content/uploads/2016/
06/FPP-Top5Report_FINAL.pdf (naming Kenneth Peasley, from Pima
County, known as a “death-penalty machine,” as a “runner up” and
Jeannette Gallagher, from Maricopa County, a “prosecutor to watch”); see
also State v. Hulsey, 243 Ariz. 367, 429–30 ¶ 89 (2018) (concluding that
another Maricopa County death-penalty prosecutor, Juan Martinez,
“engaged in several instances of misconduct” during the case); In re Peasley,
208 Ariz. 27, 29 ¶¶ 1, 66 (2004) (concluding disbarment for “present[ing]
false testimony in the prosecution of two capital murder defendants” was
required); Michael Kiefer, Rebecca McKinsey & Aubree Abril, Direct
Appeals of Death-Penalty Cases Since 2002, Arizona Republic,
http://archive.azcentral.com/news/projects/prosecutorial-conduct
(compiling a list of death penalty cases that underwent direct review by the



                                      44
                          STATE V. BUSH
       JUDGE WINTHROP, Concurring in Part and Dissenting in Part

¶135           Evidence of arbitrary application of the death penalty by
county exists in Arizona as well. While on a national level, relatively few
counties sentence defendants to death, Maricopa County is among one of
the most active counties to do so. A study published in August 2016, found
that only sixteen (including Maricopa County) out of 3143 counties or
county equivalents sentenced five or more individuals to death between
2010 and 2015. See Fair Punishment Project, supra ¶ 133, at 2. Maricopa
County’s rate of sentencing a defendant to death for a homicide “is
approximately 2.3 times higher than the rate for the rest of Arizona.” Id.,
at 8 (citing Frank Baumgartner, Rate of Death Sentencing 2006-2015, Aug. 15,
2016,           http://fairpunishment.org/wp-content/uploads/2016/08/
RateofDeathSentencing2006-2015.pdf). 5 Although this case arises from
Pima County, and we have rejected the defendant’s claims that the
prosecutor in this matter engaged in any improper conduct, the vast
sentencing differences among the counties demonstrates how arbitrary the
implementation of the death penalty is. To be sentenced to death may not
entirely depend on the egregiousness of the crime, but rather may be
impermissibly influenced by the county where a defendant is tried and/or
the prosecutorial charging practice in that county for capital-eligible
offenses.



Arizona Supreme Court from 2002–2009, and reporting that Peasley,
Gallagher, and Martinez were found to have engaged in improper conduct
during some of their cases) (last visited July 25, 2018).

5  One possible explanation for a higher incidence of death sentencing in
Maricopa County might be that it by far has the largest population of any
Arizona county; however, Maricopa County’s population is one percent of
the nation’s population, yet the data shows that it accounts for 3.6 percent
of the death sentences returned nationally between 2010 and 2015. See Fair
Punishment Project, supra ¶ 133, at 8. The same Harvard-based report also
argues that the charging of a capital offense―and, ultimately imposition of
the death penalty―may be as heavily influenced by the attitudes of the
County Attorney for the particular state county. Id. at 8–9 (noting the
capital case charging history of Andrew Thomas as Maricopa County
Attorney in pursuing capital charges at “nearly twice the rate of his
predecessor”); see also Jennifer Steinhauer, Policy Shift on Death Penalty
Overwhelms      Arizona    Court,     N.Y.    Times,    Mar.     5,    2007,
http://www.nytimes.com/2007/03/05/us/05death.html.

                                    45
                          STATE V. BUSH
       JUDGE WINTHROP, Concurring in Part and Dissenting in Part

¶136          Time has shown that the death penalty is imposed in an
arbitrary fashion and, other than abolition, states have not found a remedy
to cure these deficiencies. We simply can no longer ignore the seemingly
inherent variants and problems associated with implementing the death
penalty. See, e.g., Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J.,
dissenting) (“From this day forward, I no longer shall tinker with the
machinery of death.”). To continue to affirm the enforcement the death
penalty, given what we now know, is to approve a punishment that is both
cruel and unusual.

  B.   Deterrent Effect

¶137          One of the main historic rationales offered in support of the
death penalty is that it deters future crime. See Gregg, 428 U.S. at 183 (“The
death penalty is said to serve two principal social purposes: retribution and
deterrence of capital crimes by prospective offenders.”). Deterrence
purportedly works by “discourag[ing] or restrain[ing] [an] individual from
acting or proceeding through the inducement of fear, doubt, or some sense
of deprivation.” Frank G. Carrington, Deterrence, Death, and the Victims of
Crime: A Common Sense Approach, 35 Vand. L. Rev. 587, 588 (1982). The
theory of deterrence assumes that humans are motivated to increase gains
and minimize losses and will act accordingly. Id. Thus, a rational actor will
not commit a crime if the consequence (or the cost) of committing that crime
becomes too high. Id. In the criminal context, deterrence does not
necessarily discourage a defendant from committing similar, future crimes,
but “sends a message” and discourages the general public from committing
crimes based on the punishment a defendant receives. Id.

¶138           A flaw of the deterrence theory, however, is that it assumes
all individuals, including criminals, act rationally and will undertake a
cost/benefit analysis before acting. See Rudolph J. Gerber, Economic and
Historical Implications for Capital Punishment Deterrence, 18 Notre Dame J.L.
Ethics & Pub. Pol’y 437, 440 (2004). This assumption has proven unreliable.
Murders are often committed in situations where the defendant lacked the
capacity to act rationally, such as murders committed when the defendant
is under the influence of alcohol, is in a sudden fit or rage, or is mentally
incompetent (e.g., murder/suicides).         See Jeffrey Fagan, Death and
Deterrence Redux: Science, Law and Causal Reasoning on Capital Punishment, 4
Ohio St. J. Crim. L. 255, 276–77 (2006). Regardless of the irrationality of the
underlying criminal act, the death penalty has been justified precisely for
its assumed ability to deter future similar behavior. See Joanna M.


                                       46
                          STATE V. BUSH
       JUDGE WINTHROP, Concurring in Part and Dissenting in Part

Shepherd, Deterrence Versus Brutalization: Capital Punishment’s Differing
Impacts Among States, 104 Mich. L. Rev. 203, 204–05 (2005) (compiling
instances of government and public support for capital punishment
because of its deterrent effect).

¶139           In Gregg, the Court found that the death penalty’s deterrent
effect was inconclusive and essentially tasked the state legislatures to
determine whether the death penalty had a deterrent effect. See Gregg,
428 U.S. at 184–86 (“The value of capital punishment as a deterrent of crime
is a complex factual issue the resolution of which properly rests with the
legislatures, which can evaluate the results of statistical studies in terms of
their own local conditions.”). Gregg was decided in 1976; however, in the
subsequent years, there has been no consensus reached regarding this issue.

¶140          One of the most frequently cited, and criticized, studies on the
deterrent effect of the death penalty is Isaac Ehrlich’s study from the 1970s,
The Deterrent Effect of Capital Punishment: A Question of Life and Death, 65 Am.
Econ. R. 3 (1975); see also Allan D. Johnson, The Illusory Death Penalty: Why
America’s Death Penalty Process Fails to Support the Economic Theories of
Criminal Sanctions and Deterrence, 52 Hastings L.J. 1101, 1117 (2001).
Ehrlich’s study found that there was a positive correlation between the
death penalty and a decrease in homicides. See Ehrlich, at 397; Johnson,
at 1118. Ehrlich’s study, however, has never been replicated. Johnson,
at 1117–18. Indeed, “[m]ost modern empirical studies using Ehrlich’s . . .
analysis have found that the death penalty has virtually the same effect on
murder rates as long-term imprisonment.” Id. at 1118.

¶141           Subsequent studies of this issue, however, largely agree that
the death penalty has no measurable deterrent effect. See Thomas E. Robins,
Retribution, the Evolving Standard of Decency, and Methods of Execution: The
Inevitable Collision in Eighth Amendment Jurisprudence, 119 Penn. St. L. Rev.
885, 897 (2015) (finding “[a] recent study conducted by the National
Academy of Sciences found no evidence that capital punishment affected
homicide rates”); see also Michael L. Radelet & Traci L. Lacock, Do Executions
Lower Homicide Rates?: The Views of Leading Criminologists, 99 J. Crim. L. &
Criminology 489, 489–90 (2009) (“The findings demonstrate an
overwhelming consensus among these criminologists that the empirical
research conducted on the deterrence question strongly supports the
conclusion that the death penalty does not add deterrent effects to those
already achieved by long imprisonment.”). Even if we assumed that the
death penalty could deter future crimes, its deterrent effect flows at least in


                                      47
                          STATE V. BUSH
       JUDGE WINTHROP, Concurring in Part and Dissenting in Part

part from its historic implementation, which allowed for the public’s
observation of the execution. See Gerber, supra ¶ 138, at 449 (“Our nation’s
history of capital punishment demonstrates a steady departure from the
four requirements [(1) swiftness; (2) certainty; (3) proportionality; and (4)
publicity] needed both for deterrence and for rational calculation of
disincentives.”).

¶142          If capital punishment fails to serve a deterrent effect, which
we now know is likely true, there is little benefit to be gained from
sentencing a defendant to death. Surely any penological goal of retribution
is lost by the time the defendant is finally executed (sometimes decades
after the commission of the crime).

¶143           I by no means intend to diminish the pain experienced by the
families and friends of the deceased victims by suggesting that the death
penalty no longer fulfills the goals of, and its historical role in, criminal
punishment. Instead, I question the continued use of the death penalty if it
no longer serves society’s legitimate goals of deterring crime and bringing
just results to crime victims.

  C.   Financial Costs

¶144          Supporters of the death penalty view it as serving many
functions, both as a punishment for the defendant as well as a benefit to
society. It must be noted, however, that the cost of the death penalty,
especially considering its apparent minimal, if not nonexistent, deterrent
value, far outweighs any lasting benefit society might derive from its
continued implementation.

¶145          Some continue to hold the mistaken belief that the death
penalty is a cost-effective way to enforce criminal sentences. See Kelly
Phillips Erb, Considering the Death Penalty: Your Tax Dollars at Work, Forbes
(May 1, 2014, 12:12 AM), https://www.forbes.com/sites/kellyphillipserb/
2014/05/01/considering-the-death-penalty-your-tax-dollars-at-work/
#27e972b6664b. The actual costs of administering capital punishment,
however, are staggering. One estimate found that states spend as much as
two times the amount per year to simply house death-penalty inmates. Id.
Another report found that California alone spends approximately
$137 million a year on death-row inmates compared to $11.5 million on
inmates serving life sentences. See Amnesty Int’l, Death Penalty Cost,
Amnesty Int’l, https://www.amnestyusa.org/issues/death-penalty/


                                     48
                          STATE V. BUSH
       JUDGE WINTHROP, Concurring in Part and Dissenting in Part

death-penalty-facts/death-penalty-cost/ (last visited July 26, 2018) (citing
California Commission for the Fair Administration of Justice, July 2008). 6

¶146          Most of these costs are litigation-related. See Nicholas
Petersen & Mona Lynch, Prosecutorial Discretion, Hidden Costs, and the Death
Penalty: The Case of Los Angeles County, 102 J. Crim. L. & Criminology 1233,
1240–41 (2012). Death-penalty cases are extremely expensive to litigate, in
part, because death-penalty cases require at least two death-qualified
litigators―one who focuses on the guilt phase, and one who focuses on
gathering evidence to present in mitigation. 7 See Am. Bar Ass’n, American
Bar Association Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases, 31 Hofstra L. Rev. 913, 999 (2003). Moreover,
counties that do not have death-qualified litigators must contract at great
expense with outside counsel to represent defendants. See, e.g., David
Louis, The Cost of Death: Legal Fees in Mohave County Death Penalty Cases Cost
More than $1 Million for Each Trial, DailyMiner, Feb. 25, 2018,
https://kdminer.com/news/2018/feb/25/cost-death-legal-fees-mohave-
county-death-penalty-/.

¶147           Many death-penalty cases in Arizona cost the state millions of
dollars just for the first trial. 8 See Kent Cattani & Paul J. McMurdie, Jody


6 Although the exact amount of money a state spends on death-penalty
cases varies, the cost of trying death-penalty cases is overwhelmingly more
than non-death-penalty cases. See Amnesty Int’l, supra ¶ 145 (reporting that
Kansas spends seventy percent more, Tennessee spends around forty-eight
percent more, and Maryland spends approximately three times as much
money on death-penalty cases than non-death-penalty cases) (citations
omitted).

7  The requirements to become a death-qualified litigator understandably
limit the number of attorneys available to defend capital cases. The result
is that qualified counsel, from both the private and public bar, are
overworked and may not always be in the best position to provide
defendants with comprehensive representation.

8 These costs may include both the prosecution’s and the defense’s “cost of
preparing for capital trials―including mitigation investigation, retaining
experts for both guilt-innocence and punishment phase issues, [and]



                                     49
                          STATE V. BUSH
       JUDGE WINTHROP, Concurring in Part and Dissenting in Part

Arias and the Cost of Seeking the Death Penalty, The Nat’l Judicial Coll., Aug.
20, 2015, http://www.judges.org/jody-arias-and-the-cost-of-seeking-the-
death-penalty/ (reporting that the Arias trial cost the State around $3
million). The cost for the initial trial does not include the post-conviction
process, including appeals and habeas proceedings, which further increase
the costs to the taxpayers. Id. (finding “[t]he death penalty process in
Arizona includes . . . proceedings that generally span a period of more than
20 years, and such proceedings . . . add[] hundreds of thousands of dollars
in costs for the prosecution and defense, not to mention judicial costs”); see
also Michael Kiefer, Is the Death Penalty in Arizona on Life Support?, Arizona
Republic, Apr. 23, 2016, https://www.azcentral.com/story/news/local/
arizona-investigations/2016/04/23/death-penalty-lethal-injection-
arizona-midazolam/83242098/ (“A capital case that goes to trial and
results in a not-guilty verdict costs the county an average of $580,255 for
defense. A capital trial that ends in a death sentence costs an average of
$1,066,187 to defend.”). 9

¶148           One solution often offered when the issue of cost is raised is
to shorten the appeals process or reduce the number of attorneys
representing a defendant. That solution, however, creates even further
constitutional problems because it would severely inhibit a defendant’s
right to due process and fundamentally fair procedures. Any change in
how death-penalty cases are staffed, tried, or handled in the post-conviction
phase to make the process more affordable will likely create a system that
affords defendants even less procedural protections and leaves them open
to a greater chance that a wrongful conviction will be obtained. Moreover,
given the continued reports that demonstrate defendants may be sentenced
to death because of jurors’ inherent bias, and studies that demonstrate the


extensive motions practice.” Carol S. Steiker & Jordan M. Steiker, Cost and
Capital Punishment: A New Consideration Transforms an Old Debate, 2010 U.
Chi. Legal F. 117, 141 (2010).

9 One somewhat dated Arizona study, conducted in 2001, found that “it
cost an average of $163,897.26 for death sentence cases and $70,231.34 for
non-capital cases (resulting in life sentences).” Robert L. Gottsfield &
Marianne Alcorn, The Capital Case Crisis in Maricopa County, What (Little) We
Can Do About It, 45 Ariz. Att’y 22, 26 (May 2009). The authors of this study,
however, examined only thirty cases, and found that “when all true costs
are discovered and assessed, the figure will be considerably higher.” Id.


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                          STATE V. BUSH
       JUDGE WINTHROP, Concurring in Part and Dissenting in Part

death penalty has no identifiable deterrent effect, the answer to the question
of whether the cost of the death penalty outweighs the societal benefit is a
resounding, “No.”

                              CONCLUSION

¶149          For these reasons, I respectfully dissent as it relates to the
imposition of the death penalty. This Court should conclude that the death
penalty violates article 2, § 15 of the Arizona Constitution.




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