                    SUPREME COURT OF ARIZONA
                             En Banc

STATE OF ARIZONA,                 )   Arizona Supreme Court
                                  )   No. CR-10-0138-AP
                        Appellee, )
                                  )   Maricopa County
                 v.               )   Superior Court
                                  )   No. CR2005-014235-001
RONNIE LOVELLE JOSEPH,            )
                                  )
                       Appellant. )   O P I N I O N
_________________________________ )

        Appeal from the Superior Court in Maricopa County
             The Honorable Arthur T. Anderson, Judge

                             AFFIRMED
________________________________________________________________

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL                Phoenix
     By   Kent E. Cattani, Chief Counsel,
               Criminal Appeals/Capital Litigation Section
          Amy Pignatella Cain,                             Tucson
               Assistant Attorney General
          Jeffrey A. Zick,                               Phoenix
               Assistant Attorney General
Attorneys for State of Arizona

MICHAEL J. DEW ATTORNEY AT LAW                           Phoenix
     By   Michael J. Dew
Attorney for Ronnie Lovelle Joseph
________________________________________________________________

B E R C H, Chief Justice

¶1       A jury found Ronnie Lovelle Joseph guilty of felony

murder and other crimes.    He was sentenced to death for the

murder and to prison terms on the other convictions.        We have

jurisdiction over this automatic appeal under Article 6, Section

5(3) of the Arizona Constitution and A.R.S. § 13–4031 (2010).
                  I.   FACTS AND PROCEDURAL HISTORY1

¶2          Ronnie Joseph went to the apartment where his wife,

Darlene Brown, lived with Jerry Roundtree and her fourteen-year-

old nephew, Tommar Brown.        Joseph and Darlene began to argue in

Darlene’s locked bedroom, and Joseph pulled a gun and shot her.

Jerry kicked open the bedroom door, but turned and ran when he

saw Joseph holding a gun.         Joseph shot at him, hitting him in

the hand.

¶3          As Jerry fled, he saw Tommar go into the bathroom.

Joseph pushed open the bathroom door and fired two or three

shots, hitting Tommar in his left buttock and chest.             The shot

to Tommar’s chest passed through his heart, killing him.

¶4          Joseph saw Jerry near the front door of the apartment

and shot him in the chest before returning to Darlene’s bedroom

and firing a few more shots, at least two of which hit Darlene.

Joseph then fled.

¶5          When police arrived, both Darlene and Jerry identified

Joseph as the shooter.          Police apprehended Joseph three days

later.

¶6          The jury found Joseph guilty of the first degree murder

of Tommar, attempted second degree murder of Darlene, attempted

first    degree   murder   of   Jerry,     first   degree   burglary,   and

1
     We view the facts in the light most favorable to sustaining
the jury’s verdict.   State v. Dann, 205 Ariz. 557, 562 n.1, 74
P.3d 231, 236 n.1 (2003).
                                   - 2 -
misconduct involving weapons.                  In the aggravation phase of the

trial,    the      jury     found      two         aggravating     factors:         Joseph

previously had been convicted of a serious offense, A.R.S. § 13-

751(F)(2) (2010), and the victim was less than fifteen years

old, id. § 13-751(F)(9).               Joseph did not present any mitigating

evidence in the penalty phase, and the jury determined that he

should be sentenced to death for Tommar’s murder.                               The trial

judge imposed prison terms for the other convictions.

                                II.    ISSUES ON APPEAL

     A.      Confrontation Clause

¶7          To     prepare      for     his    testimony,         the   State’s     medical

expert, Dr. Philip Keen, reviewed Tommar’s autopsy report, which

Dr. Ruth Kohlmeier had prepared.                     Dr. Kohlmeier did not testify

and the report itself was not admitted into evidence.                               Joseph

asserts that the trial court violated his Sixth Amendment right

to confront Dr. Kohlmeier when, over his objection, it allowed

Dr. Keen to testify based on Dr. Kohlmeier’s report.                            We review

de   novo    whether        the       admission       of     evidence      violates    the

Confrontation Clause.             See State v. Smith, 215 Ariz. 221, 228

¶ 20, 159 P.3d 531, 538 (2007).

¶8          This     Court      has     previously         held    that    a   testifying

medical     examiner      may     offer       an    opinion    based      on   an   autopsy

performed     by    a     non-testifying            expert    without     violating    the

Confrontation Clause.             Id. at 229 ¶ 26, 159 P.3d at 539; see

                                          - 3 -
also State v. Tucker, 215 Ariz. 298, 315 ¶ 62, 160 P.3d 177, 194

(2007).     We reasoned that “[b]ecause the facts underlying an

expert’s opinion are admissible only to show the basis of that

opinion and not to prove their truth, an expert does not admit

hearsay or violate the Confrontation Clause by revealing the

substance of a non-testifying expert’s opinion.”                      Tucker, 215

Ariz. at 315 ¶ 62, 160 P.3d at 194.             Joseph presents no argument

persuading us to abandon this reasoning today.

¶9          Joseph       asserts       that      Dr.        Keen’s      testimony

“constructively placed [the autopsy report] before the jury,”

making    the   report   like    the    affidavit      of   the   non-testifying

witness in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).

But this case differs in two material respects from Melendez-

Diaz.     Here, the court did not admit the autopsy report into

evidence and the State presented testimony by a witness subject

to cross-examination.

¶10         Even if the autopsy report were itself “testimonial,”

Dr. Keen did not testify to any of Dr. Kohlmeier’s conclusions.

Cf. United States v. Feliz, 467 F.3d 227, 236 (2d Cir. 2006)

(stating that autopsy reports are not testimonial because they

are not prepared for purposes of litigation).                        He testified

instead    to   opinions    he     formed      after    reviewing      facts   and

photographs contained in the report.                See State v. Dixon, 226

Ariz. 545, 553 ¶¶ 36-37, 250 P.3d 1174, 1182 (2011) (finding no

                                       - 4 -
error when medical examiner testified based on his review of an

autopsy report and photographs).

¶11         Joseph        also    argues      that    the       State’s     failure    to

establish Dr. Kohlmeier’s unavailability violated his right to

confrontation.         Before         testimonial     statements      of     an    absent

witness may be admitted into evidence, the Confrontation Clause

requires a showing that the witness is unavailable and that the

defendant    had      a     prior       opportunity        for    cross-examination.

Bullcoming v. New Mexico, 131 S. Ct. 2705, 2713 (2011).                               But

here, no testimonial “statement” by Dr. Kohlmeier was admitted

into evidence.        The report itself was not admitted and Dr. Keen

did not testify to any of Dr. Kohlmeier’s conclusions.                         Instead,

Dr. Keen testified to his own conclusions regarding Tommar’s

injuries and did not act as a mere “conduit” for Dr. Kohlmeier’s

opinions.    See State v. Snelling, 225 Ariz. 182, 187 ¶ 19, 236

P.3d 409, 414 (2010).            Thus, there was no error.

¶12         Finally, Joseph argues that the trial court abused its

discretion by denying his motion to limit Dr. Keen’s testimony

and   failing    to   instruct        the    jury    not   to    consider    the   facts

recited by Dr. Keen for their truth.                   But in Smith, this Court

concluded that “[e]xpert testimony that discusses reports and

opinions    of   another         is    admissible      under      [Arizona     Rule    of

Evidence 703] if the expert reasonably relied on these matters

in reaching his own conclusion.”                    215 Ariz. at 228 ¶ 23, 159

                                            - 5 -
P.3d at 538; see also Williams v. Illinois, 132 S. Ct. 2221,

2228 (2012) (“Out-of-court statements that are related by the

expert solely for the purpose of explaining the assumptions on

which that opinion rests are not offered for their truth and

thus   fall    outside     the    scope      of    the    Confrontation          Clause.”)

(plurality opinion).            Similarly, testimony regarding an autopsy

photograph is not hearsay when offered to show the basis of the

testifying expert’s opinion and not to prove the truth of prior

reports or opinions.            Smith, 215 Ariz. at 228 ¶ 23, 159 P.3d at

538.

¶13           The trial court did not err in permitting Dr. Keen to

testify about the basis for his conclusions regarding Tommar’s

injuries     and   cause    of    death.      Dr.       Keen’s      testimony     did   not

exceed its permissible scope, and he did not offer any matters

contained in Dr. Kohlmeier’s autopsy report to show their truth.

Although the trial court might properly have given a limiting

instruction regarding the use of Dr. Keen’s testimony, Joseph

did    not    request    one     and   the    failure          to   give    it    was   not

fundamental error.

       B.     Enmund/Tison Instructions

¶14           Joseph contends that the trial court erred by denying

his    request     for     an    Enmund/Tison           jury    instruction       at    the

aggravation phase of trial.             We review a trial court’s refusal

to    give   requested     instructions           for    an    abuse   of   discretion.

                                        - 6 -
State v. Johnson, 212 Ariz. 425, 431 ¶ 15, 133 P.3d 735, 741

(2006).

¶15         The   jury    found    Joseph     guilty       of    felony    murder    for

killing Tommar during the course of a burglary.                            The Eighth

Amendment does not allow the death penalty to be imposed for

felony murder unless the defendant “himself kill[s], attempt[s]

to kill, or intend[s] that a killing take place or that lethal

force will be employed,” Enmund v. Florida, 458 U.S. 782, 797

(1982), or is a major participant in the crime and acts with

reckless indifference, Tison v. Arizona, 481 U.S. 137, 157-58

(1987).     Joseph does not dispute that he acted alone in killing

Tommar.     Because Enmund allows imposition of capital punishment

on a defendant who actually kills a victim in the course of

committing    another      felony,      458   U.S.     at       797-98,    the   Eighth

Amendment did not require that an Enmund/Tison instruction be

given.

¶16         Joseph nonetheless asserts that the State failed to

present sufficient evidence of his intent to kill to support

imposition of the death penalty.                He argues that because the

felony murder instruction required only a finding that he caused

Tommar’s     death      during    the    course      of     the    felony,       without

reference    to   any    mental    state,     the    one    juror    who    voted   for

felony murder but not premeditated murder might have believed

that   Joseph     unintentionally       killed      Tommar,       and     such   intent

                                        - 7 -
cannot suffice to support the death penalty.

¶17           Joseph misapprehends the Enmund/Tison requirements.                         A

defendant       convicted    of       felony      murder     may     receive     a    death

sentence regardless of his intent if he actually kills a victim

during the course of a felony, or if he is a major participant

along    with    others     in    committing       the     felony     and    “acts    with

reckless indifference to human life.”                        State v. Garcia, 224

Ariz. 1, 15 ¶ 55, 226 P.3d 370, 384 (2010) (citing Tison, 481

U.S. at 158).

¶18           Here, the jury found Joseph guilty of felony murder

because he fatally shot Tommar during the course of first degree

burglary.       The burglary was established because Joseph brought a

gun into the apartment and remained there unlawfully, intending

to commit the attempted murders at issue.                          See A.R.S. §§ 13-

1507, -1508 (2010).              Sufficient evidence supports the felony

murder finding.        Enmund required the State to show only that,

during   the     commission      of    a   felony,       Joseph     personally       killed

Tommar, a fact that is not in dispute.                           The State must show

“reckless indifference” to human life only when the defendant is

a major participant in the felony, but is not the actual killer.

See Garcia, 224 Ariz. at 15 ¶ 55, 226 P.3d at 384 (because the

defendant was convicted under                  Tison, the State had to prove

beyond    a     reasonable       doubt     that     he     had     acted    as   a    major

participant in the crime and was recklessly indifferent to the

                                           - 8 -
victim’s life); State v. Bearup, 221 Ariz. 163, 170 ¶ 33, 211

P.3d 684, 691 (2009) (same); accord People v. Letner, 235 P.3d

62,   132      (Cal.       2010)    (rejecting      argument    that    death    sentence

cannot be imposed on actual killer convicted of felony murder

absent finding that defendant was a major participant and had a

culpable mental state).                   Joseph does not dispute that he shot

and killed Tommar during the commission of a felony.                                 Thus,

there is sufficient evidence to support the imposition of the

death penalty.             The trial court did not abuse its discretion by

not giving an Enmund/Tison instruction in this case.

        C.     Waiver of Mitigation

¶19            Joseph argues that his waiver of the right to present

mitigating evidence was “constitutionally invalid” because he

did     not         make     his         waiver    knowingly,       voluntarily,       and

intelligently.

¶20            Although a defendant has a “constitutionally protected

right[]       to    provide        the    jury    with   the   mitigating     evidence,”

Williams v. Taylor, 529 U.S. 362, 393 (2000), he may waive that

right        even    if     mitigating       evidence     exists,      see   Schriro    v.

Landrigan, 550 U.S. 465, 476 (2007); accord State v. Hausner,

___ Ariz. ___, ___ ¶¶ 121-22, ___ P.3d ___, ___ (2012); State v.

Delahanty, 226 Ariz. 502, 507-08 ¶¶ 28-34, 250 P.3d 1131, 1136-

37 (2011).          The Supreme Court has never imposed an “informed and

knowing”        requirement         upon     a    defendant’s    decision       to   waive

                                              - 9 -
mitigating evidence, Landrigan, 550 U.S. at 479, but this Court

requires    a   voluntary,   knowing,      and     informed   waiver      of   this

important constitutional right, see Delahanty, 226 Ariz. at 504

¶ 5, 508 ¶ 34, 250 P.3d at 1133, 1137.

¶21         We recently addressed this issue in detail in Hausner,

___ Ariz. at ___ ¶ 122, ___ P.3d at ___, and there set forth the

inquiries that the trial court should make to determine that the

defendant    (1)   understands   what      mitigation    is,   the     right    to

present    mitigation   evidence,    and     the    consequences     of   waiving

that right, and (2) makes the decision voluntarily.

¶22         The trial judge here took many of the steps recommended

in Hausner and repeatedly had Joseph confirm that he understood

his rights and yet chose not to present any mitigating evidence.

For example, during a status conference after the guilt phase,

the judge explained the penalty phase and what mitigation might

entail:

      As you know, that is the time where the jury considers
      any mitigation evidence they may have found [in] the
      case thus far, and any mitigating evidence they might
      find during the mitigation or penalty phase itself.
      And as I indicated before, it’s a pretty wide open
      presentation. There could be witnesses that could be
      called on your behalf. You can speak on your behalf.
      You can also submit something in writing, if you
      choose, to alert the jury to any factors that you
      believe are mitigating; or in other words, to have
      them   render  a  finding   that  leniency  would   be
      appropriate here.

Joseph replied that he wanted to waive his right to mitigation.


                                    - 10 -
After continued discussion, the court reminded Joseph that he

could do as he chose, but cautioned that the court had to ensure

that Joseph understood his rights.

¶23           The     trial          court       explained          mitigation     to    Joseph    at

length.       Joseph demonstrated that he understood the consequences

of the penalty phase by giving such responses as, “there’s no

mitigation circumstances that I would ask you to feel pity or

mercy on me.          Let the hatchet fall.”                         His statements satisfied

the “knowing” requirement.                       Joseph also stated that “death don’t

scare    me,”       reflecting            his    understanding           that    his    case   could

result in a death sentence and that he could ask the jury for

“pity    or       mercy”    if       he    so    desired.            The   court     found     Joseph

competent and detailed its reasons for allowing Joseph to waive

mitigation.

¶24           Joseph repeatedly expressed his desire not to present

mitigating         evidence.              Although       defense         counsel     notified     the

court     pursuant              to    Rule           15.2(h)        of     certain       mitigating

circumstances that might have helped Joseph’s case and later

made    an    offer        of    proof          of    mitigating         circumstances,        Joseph

voluntarily         refused          to     present           any    mitigating        evidence   or

statements during the penalty phase.                                We conclude that Joseph’s

waiver       of    his     right          to     present        mitigation       was     voluntary,

knowing, and informed.



                                                     - 11 -
      D.       Review of the Death Sentence

¶25            Because the murder occurred after August 1, 2002, we

review the death sentence to “determine whether the trier of

fact abused its discretion in finding aggravating circumstances

and imposing a sentence of death.”                    A.R.S. § 13–756(A) (2010).

A finding of aggravating circumstances or the imposition of a

death sentence is not an abuse of discretion if “there is any

reasonable evidence in the record to sustain it.”                              State v.

Morris,    215    Ariz.     324,   341    ¶    77,    160     P.3d    203,   220    (2007)

(internal quotation marks omitted).

¶26            The jury found two aggravating factors proven:                       Joseph

previously had been convicted of a serious offense, A.R.S. § 13-

751(F)(2), and the victim was less than fifteen years of age,

§ 13-751(F)(9).       Joseph does not contest either finding and the

record supports the jury’s findings.

¶27            Once an aggravating factor has been established, the

penalty     phase     jury    determines         whether,        in    light       of    any

mitigating       circumstances,      death       is     the    appropriate       penalty.

A.R.S. §§ 13-751(C), -752(D), (F).

¶28            Although Joseph elected not to present any mitigating

evidence,      the   jury    still   could       consider       in    mitigation        “any

evidence that was presented at any prior phase of the trial.”

A.R.S.     §     13-752(I).        The        record,       however,     shows      little

mitigation.       The jury did not abuse its discretion in concluding

                                         - 12 -
that   the     mitigating   circumstances       were   not   sufficiently

substantial to call for leniency.

                            III.   CONCLUSION

¶29          We affirm Joseph’s convictions and sentences.2



                            _____________________________________
                            Rebecca White Berch, Chief Justice


CONCURRING:


_____________________________________
Scott Bales, Vice Chief Justice


_____________________________________
A. John Pelander, Justice


_____________________________________
Robert M. Brutinel, Justice




2
     Joseph did not challenge any of the non-capital convictions
or sentences.    He did raise eighteen claims to avoid federal
preclusion.   Those claims, and the opinions by this Court he
identifies as rejecting them, are presented verbatim in the
Appendix.
                                   - 13 -
           APPENDIX:   ISSUES RAISED TO AVOID PRECLUSION

1.   The death penalty is per se cruel     and unusual punishment.
Gregg v. Georgia, 428 U.S. 153, 186-87,   96 S.Ct 2909, 49 L.Ed.2d
859 (1976); State v. Salazar, 173 Ariz.    399, 411, 844 P.2d 566,
578 (1992); State v. Gillies, 135 Ariz.   500, 507, 662 P.2d 1007,
1014 (1983).

2.   Execution by lethal injection is cruel and unusual
punishment. State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d 602,
610 (1995).

3.   The death statute is unconstitutional because it fails to
guide the sentencing jury. State v. Greenway, 170 Ariz. 155,
164, 823 P.2d 22, 31 (1991).

4.   The statute unconstitutionally fails to require either
cumulative consideration of multiple mitigating factors or that
the jury make specific findings as to each mitigating factor.
State v. Gulbrandson, 184 Ariz. 46, 69, 906 P.2d 579, 602
(1995); State v. Ramirez, 178 Ariz. 116, 131, 871 P.2d 237, 252
(1994); State v. Fierro, 166 Ariz. 539, 551, 804 P.2d 72, 84
(1990).

5.   Arizona’s statutory scheme for considering mitigating
evidence   is    unconstitutional because   it   limits  full
consideration of that evidence. State v. Mata, 125 Ariz. 233,
242, 609 P.2d 48, 57 (1980).

6.   Arizona’s   death   statute  insufficiently  channels  the
sentencer’s discretion in imposing the death sentence. State v.
West, 176 Ariz. 432, 454, 862 P.2d 192, 214 (1993); Greenway,
170 Ariz. at 162, 823 P.2d at 31.

7.   Arizona’s death statute is unconstitutionally defective
because it fails to require the State to prove that death is
appropriate. Gulbrandson, 184 Ariz. at 72, 906 P.2d at 605.
8.   The prosecutor’s discretion to seek the death penalty
unconstitutionally lacks standards. Salazar, 173 Ariz. at 411,
844 P.2d at 578.

9.   The Constitution requires a proportionality review of a
defendant’s death sentence. Salazar, 173 Ariz. at 416, 844 P.2d
at 583; State v. Serna, 163 Ariz. 260, 269-70, 787 P.2d 1056,
1065-66 (1990).

10.   There is no meaningful distinction between capital and non-

                               - 14 -
capital cases. Salazar, 173 Ariz. at 411, 844 P.2d at 578.

11. Applying a death statute enacted after the Supreme Court’s
decision in Ring II violates the ex post facto clauses of the
federal and state constitutions and A.R.S. § 1-244. Ring III,
204 Ariz. at 545-47 ¶¶ 15-24, 65 P.3d at 926-928.

12. The death penalty is cruel and unusual because it is
irrationally and arbitrarily imposed and serves no purpose that
is not adequately addressed by life in prison. State v. Pandeli,
200 Ariz. 365, 382, ¶ 88, 26 P.3d 1136, 1153 (2001), vacated on
other grounds, Ring v. Arizona, 536 U.S 584, 122 S.Ct. 2428, 153
L.Ed.2d 556 (2002); State v. Beaty, 158 Ariz. 232, 247, 762 P.2d
519, 534 (1988).

[13. missing; no text]

[14. missing; no text]

15. Arizona’s death penalty statute is unconstitutional because
it requires imposition of the death penalty whenever at least
one aggravating circumstance and no mitigating circumstances
exist. Walton v. Arizona, 497 U.S. 639, 648, 110 S.Ct. 3047, 111
L.Ed.2d 511 (1990); State v. Miles, 186 Ariz. 10, 19, 918 P.2d
1028, 1037 (1996); State v. Bolton, 182 Ariz. 290, 310, 896 P.2d
830, 850 (1995). State v. Tucker (“Tucker II”), 215 Ariz. 298,
160 P.3d 177 (2007).

16. The death penalty is unconstitutional because it permits
jurors unfettered discretion to impose death without adequate
guidelines to weigh and consider appropriate factors and fails
to provide means to distinguish between those who deserve to die
or live. State v. Johnson, 212 Ariz. 425, 440 ¶ 69, 133 P.3d
735, 750 (2006).

17. The    trial   court   improperly   omitted  penalty   phase
instructions that the jury could consider mercy or sympathy in
evaluating the mitigation evidence and determining whether to
sentence the defendant to death. State v. Carreon, 210 Ariz. 54,
70-71 ¶¶ 81-87, 107 P.3d 900, 916-17 (2005).

18. The jury instruction that required the jury to unanimously
determine that the mitigating circumstances were “sufficiently
substantial to call for leniency” violated the Eighth Amendment.
State v. Ellison, 213 Ariz. 116, 139 ¶¶ 101-102, 140 P.3d 899,
922 (2006).


                             - 15 -
19. The refusal to permit voir dire of prospective jurors
regarding their views on specific aggravating and mitigating
circumstances violates Appellant’s rights under the Sixth and
Fourteenth Amendments. State v. Johnson, 212 Ariz. 425, 440 ¶¶
29-35, 133 P.3d 735, 750 (2006).

20. Refusing to instruct the jury or permit the introduction of
evidence   and  argument   regarding   residual  doubt   violated
Appellant’s rights under the Sixth, Eighth and Fourteenth
Amendments and Arizona law. State v. Harrod (Harrod III), 218
Ariz. 268, 278-79 ¶¶ 37-39, 183 P.3d 519, 529-30 (2008); State
v. Garza, 216 Ariz. 56, 70 ¶ 67, 163 P.3d 1006, 1020 (2007).




                             - 16 -
