                     SUPREME COURT OF ARIZONA
                              En Banc

STATE OF ARIZONA,                 )   Arizona Supreme Court
                                  )   No. CR-09-0342-AP
                        Appellee, )
                                  )   Maricopa County
                 v.               )   Superior Court
                                  )   No. CR2006-114651-001 DT
ISIAH PATTERSON,                  )
                                  )
                       Appellant. )
                                  )   O P I N I O N
__________________________________)


         Appeal from the Superior Court in Maricopa County
                The Honorable Janet E. Barton, Judge

                            AFFIRMED
________________________________________________________________


THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL                    Phoenix
     By   Kent E. Cattani, Division Chief Counsel
          Jeffrey A. Zick, Section Chief Counsel
          Julie A. Done, Assistant Attorney General,
          Capital Litigation Section
Attorneys for State of Arizona

STEPHEN M. JOHNSON                                       Phoenix
     By   Stephen M. Johnson
Attorney for Isiah Patterson
________________________________________________________________

B R U T I N E L, Justice

¶1         In 2009, a jury found Isiah Patterson guilty of the

first degree murder of Consquelo Barker, and he was sentenced to

death.   We have jurisdiction over this automatic appeal under

Article 6, Section 5(3) of the Arizona Constitution and A.R.S.




                                 1 
§ 13-4031 (2010).1

                                          I. FACTUAL AND PROCEDURAL BACKGROUND

¶2                           At           approximately                1:30   a.m.    on     March        17,       2006,

Patterson                       and            Consquelo,          his    girlfriend,       were     in    his       Mesa

apartment                        with               their        three-year-old      son     when     they          began

fighting.2                         A downstairs neighbor heard loud crashes and things

rolling                  on         the           floor.          After    about   ten   minutes,         the   noises

stopped.                      After another ten minutes or so had passed, Consquelo

ran from the apartment, naked and screaming for help.

¶3                           Patterson chased Consquelo through the outdoor common

areas               of         the           apartment           complex.       He   caught    her        at    a    sand

volleyball pit, sat over her, and stabbed her thirteen times in

the face, torso, and arm.                                              The wounds perforated her lungs,

diaphragm                        and            spleen,          and     fractured   her     arm.          Patterson

continued stabbing Consquelo until a neighbor, awakened by her

screams, yelled for him to stop.                                              Consquelo then stumbled from

the volleyball pit, asking for help before collapsing beneath a

bush,               where                she             died.      Patterson      walked     back    toward          his

apartment, telling neighbors, “That’s what happens when you try

to turn a whore into a housewife.”

¶4                           Patterson was arrested and indicted for Consquelo’s
                                                            
1
     This opinion cites the current version of statutes, unless
otherwise noted.
2
     “We view the facts in the light most favorable to upholding
the verdicts.”   State v. Chappell, 225 Ariz. 229, 233 ¶ 2 n.1,
236 P.3d 1176, 1180 n.1 (2010).
                                2 
murder.                    The State sought the death penalty.                                    Finding Patterson

guilty and that the crime was especially cruel, see A.R.S. § 13-

751(F)(6), the jury determined he should be sentenced to death.

                                                                II. ISSUES ON APPEAL

A. Voir Dire Questioning

¶5                           Patterson                         contends    the     trial   court    restricted      his

questioning                            of           prospective            jurors     contrary      to    Morgan     v.

Illinois, 504 U.S. 719 (1992).                                                   Morgan held that due process

requires a trial court to allow inquiry into whether a potential

juror would automatically impose the death penalty.                                                      Id. at 733.3

Patterson                       challenges                       the   trial     court’s   refusal       to   let   him

question                      potential                         jurors     about    specific       aggravating      and

mitigating                         factors                     and   its   requirement     that    he    mention    the

mitigation phase of the trial in a hypothetical question he

asked jurors.                               We review a trial court’s ruling on voir dire for

an abuse of discretion.                                              See State v. Glassel, 211 Ariz. 33, 45

¶ 36, 116 P.3d 1193, 1205 (2005).                                                  Patterson is not entitled to

relief on these claims.



                                                            
3
     Although Patterson purports to base this and all his other
constitutional claims on both the federal and the Arizona
constitutions, his arguments relate solely to the federal
constitution.   Because he has not separately argued any state
constitutional claims, we consider only his federal claims. See
State v. Dean, 206 Ariz. 158, 161 ¶ 8 n.1, 76 P.3d 429, 432 n.1
(2003).

                                                                            3 
            1. Specific Aggravator and Mitigator Questions

¶6          Before trial, the State moved to preclude Patterson

from   asking   prospective        jurors       what    factors    they    would   find

aggravating or mitigating.           Patterson did not oppose the motion.

Accordingly, we review this issue only for fundamental error.

See State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601,

607 (2005).

¶7          During voir dire, Patterson asked one juror what kind

of circumstances she would find mitigating.                     The court sustained

the State’s objection.

¶8          The trial court did not err by granting the State’s

motion or sustaining its objection.                Defendants are not entitled

to   “ask   potential      jurors    what       types     of    evidence    they   will

consider to be mitigating.”           Glassel, 211 Ariz. at 47 ¶ 44, 116

P.3d at 1207; see also State v. Johnson, 212 Ariz. 425, 434

¶ 31, 133 P.3d 735, 744 (2006) (noting that “[e]xtant authority

unanimously rejects” the argument that a defendant is entitled

to   voir   dire    jury   panel    about       specific       mitigating   factors).

Similarly, neither the state nor the defense is entitled to ask

jurors about specific aggravators.                     See State v. Smith, 215

Ariz. 221, 231 ¶ 42, 159 P.3d 531, 541 (2007).

¶9          This     restriction      did        not    prevent     Patterson      from

sufficiently       investigating     the        beliefs    of     potential   jurors.

Although precluding him from questioning on specific aggravating
                                           4 
and mitigating circumstances, the trial judge allowed Patterson

to    probe       jurors   “on       their    basic       beliefs,        views,          biases   and

prejudices         concerning         the     death       penalty,       as     well       as   their

general           views        concerning             aggravating             and         mitigating

circumstances that must be considered in determining whether to

impose    a       sentence      of    life     or     death.”         As       the      trial   court

suggested,         a   defendant       may     legitimately           ask      what       mitigation

means to that juror.                  He could also ask whether the juror can

imagine       a    situation          where     the       totality        of       a     defendant’s

character,         including         things    he      has      endured       or       accomplished,

could warrant mercy despite his crimes.                               See, e.g., State v.

Velazquez, 216 Ariz. 300, 307 ¶ 20, 166 P.3d 91, 98 (2007);

Glassel,      211      Ariz.     at    46     ¶ 41,       116    P.3d     at       1206    (allowing

defendant to ask potential jurors what “sufficiently substantial

to call for leniency” meant to them).                           And the record here shows

that Patterson did, in fact, ask these types of questions.

              2. Hypothetical Question

¶10           The trial court also did not abuse its discretion by

requiring         Patterson      to    mention         mitigation         in       a    hypothetical

question      he       asked.         During        the      first      voir       dire     session,

Patterson’s counsel asked four jurors whether they thought death

is an appropriate sentence if the jury finds a defendant guilty

of premeditated first degree murder and also finds at least one

aggravator.             They     agreed       that        it    is.         The        trial    court
                                                 5 
interjected to clarify that a fair and impartial juror is one

who, even after finding guilt and aggravation, would be able to

begin the sentencing phase without leaning toward or against the

death penalty.

¶11                          When questioning concluded, Patterson moved to strike

three of the jurors who had been questioned before the trial

court’s                    clarification.4                              The        State     objected,       arguing       that

Patterson’s                           counsel                   had     intentionally          “bait[ed]”         them    into

suggesting                          they              would           not    consider        mitigation.            It    then

requested                           that,                      prospectively,          if      counsel        used        this

hypothetical, she be required to mention mitigation.                                                               The trial

court agreed.

¶12                          On           appeal,                   Patterson        notes     that     defendants         are

entitled to impartial juries, but he has not explained how the

trial court erred in its ruling.                                                    Error does not result from the

court’s                  correctly                       instructing          prospective          jurors    on     the   law.

See           State                v.          Kreutzer,               928    S.W.2d        854,    864-65     (Mo.       1996)

(finding                     no           error                when     court       required       counsel     to    conform

questions                       “to            the             dictates       of     existing      law”      and    “allowed

sufficient                        latitude                     in     determining      whether        each    venireperson

could fairly and impartially follow the court’s instructions”);

see also State v. Riggins, 111 Ariz. 281, 285, 528 P.2d 625, 629
                                                            
4
     None of these jurors was ultimately chosen for the jury
panel.

                                                                              6 
(1974)      (noting      that,    under        the   Arizona   Rules      of    Criminal

Procedure, trial court has discretion to forbid confusing voir

dire questions).

¶13           Here, the trial court clarified that the appropriate

inquiry was whether a juror could be impartial at the beginning

of the penalty phase.             It did not curtail questions tending to

reveal a prospective juror’s predisposition to vote for death

after      finding    guilt      and   an      aggravator,     but    before       hearing

mitigation.       Because the court interfered only minimally with

Patterson’s       voir    dire    questioning         in   order     to   avoid     juror

confusion and allowed him wide latitude to discover death-biased

jurors, it did not abuse its discretion.                        See Kreutzer, 928

S.W.2d at 864-65.

B. Juror Strike

¶14           Patterson next argues that the trial court abused its

discretion by striking for cause a juror who worked for the

Maricopa     County      Public    Defender’s         Office   and     had     expressed

strong opposition to the death penalty.                    We review for an abuse

of discretion, giving great deference to the trial court, which

was   in    the   best     position       to    personally     observe       the    juror.

Glassel, 211 Ariz. at 47 ¶ 46, 116 P.3d at 1207.

¶15           Juror Twelve stated in her juror questionnaire that

she was an “Initial Services Specialist” for the Maricopa County

Public Defender’s Office, who “conduct[ed] initial interviews”
                                               7 
and “jail visits.”            She knew that Patterson’s lead attorney had

once worked for the Public Defender’s Office and also knew two

other members of Patterson’s defense team.                   Juror Twelve further

reported that “it would be hard for [her]” to participate in a

capital case because she had “worked close to death penalty

cases    in       [her]    office,”   she   did    not   believe   in   the   death

penalty, and she has always held anti-death penalty views.                     She

marked       a    box    stating   that   her    “position    against   the   death

penalty [was] so strong that [she] could not vote for the death

penalty under any circumstances” and added that she did not

believe she has “the right to be part of taking someone’s life.”

¶16              During voir dire, Juror Twelve initially reiterated

these positions, but on further questioning by the State, she

responded that she was able to be fair and impartial and that

she thought she would be able to serve on this jury.                            She

further stated that she would be able to sentence someone to

death if she felt that it was the appropriate sentence.

¶17              The State moved to strike Juror Twelve, pointing out

that    in       her    questionnaire,    she    had   “repeatedly   and   clearly

pointed out her absolute objection” to the death penalty and

“indicated she cannot follow the law.”                   Yet, the State noted,

during questioning she provided answers “completely different

and contrary” to those in her questionnaire.                    Over Patterson’s

objection, the trial court struck Juror Twelve, explaining:
                                            8 
          I have concerns, as I said before, over that juror’s
          veracity.   I have the ability to observe her here,
          to review the question[naire].      This is not a
          situation where this juror was wishy-washy in her
          questionnaire as to what she could or could not do,
          nor is this a situation where she was rehabilitated.
          This is a situation where this juror, who works for
          the Public Defender’s office and says she has worked
          on death-penalty cases, totally flip-flopped her
          answers.

¶18         The     trial     court       did     not    abuse    its     discretion.

Although    a     juror    may     not    be    excluded    merely       for     voicing

objection to the death penalty, Witherspoon v. Illinois, 391

U.S. 510, 520 (1968), the trial court is entitled to remove

potential jurors whose views and biases would interfere with the

performance of their duties, Glassel, 211 Ariz. at 47-48 ¶ 47,

116 P.3d at 1207-08.             “[E]ven if a juror is sincere in his

promises to uphold the law, a judge may still reasonably find a

juror’s equivocation ‘about whether he would take his personal

biases in the jury room’ sufficient to substantially impair his

duties as a juror, allowing a strike for cause.”                               State v.

Ellison,    213    Ariz.    116,    137    ¶ 89,    140    P.3d   899,     920    (2006)

(quoting Glassel, 211 Ariz. at 48 ¶¶ 49-50, 116 P.3d at 1208).

C. Denial of Mistrial

¶19         Patterson       maintains      that    the    trial    court       erred   by

denying    his    request     for     a   mistrial       based    on    prosecutorial

misconduct.       He contends that the prosecutor’s unprofessional

behavior, combined with the State’s failure to timely disclose a
                                9 
PowerPoint presentation, which itself contained a misstatement

of law, amounted to misconduct warranting a mistrial.                                                    We review

the trial court’s ruling for an abuse of discretion, see State

v. Lehr, 227 Ariz. 140, 150 ¶ 43, 254 P.3d 379, 389 (2011), and

will             not           reverse                   unless      misconduct    occurred    and    there   is   a

reasonable likelihood it could have affected the jury’s verdict

and denied Patterson a fair trial, see State v. Prince, 226

Ariz. 516, 537 ¶ 84, 250 P.3d 1145, 1166 (2011).

¶20                          Patterson                         contends   that   “[d]uring    jury    selection[,]

the defense was constantly pointing out” that the prosecutor had

“sighed inappropriately, smirked at the questions proposed by

the defense, and constantly called attention to [her]self by

head nodding, and other unprofessional conduct.”                                                     This conduct,

if it occurred, would certainly deserve disapprobation even if

it did not rise to the level of misconduct.                                                  But the record does

not             support                     Patterson’s               contention     that     the     prosecutor’s

courtroom demeanor and behavior amounted to misconduct.

¶21                          Patterson points to a single motion accusing the State

of unprofessionalism during voir dire.                                               In denying this motion,

the trial court did not confirm that any of the alleged behavior

actually occurred.5                                            And even if it did, Patterson has not shown


                                                            
5
     The record does suggest that some jurors might have
perceived the prosecutor’s behavior as inappropriate at times.
On a jury question form, one juror asked the trial court to tell
                               10 
that it amounted to “persistent and pervasive misconduct” that

denied him a fair trial.                                                           Prince, 226 Ariz. at 539 ¶ 92, 250

P.3d             at         1168             (considering                            cumulative                         effect                 of         prosecutor’s

actions without first concluding any misconduct had occurred)

(internal quotation omitted).

¶22                          We next consider Patterson’s claim that the State’s

belated disclosure of a PowerPoint presentation that misstated

the law amounted to prosecutorial misconduct.                                                                                                   The State first

disclosed the presentation on the day of its guilt-phase closing

argument.                              Patterson                        moved                to           preclude                      the            presentation.

Although displeased with the late disclosure, the trial court

denied                Patterson’s                          request,                     while              remaining                       open            to         specific

objections to the presentation’s contents.                                                                                             During the State’s

argument, Patterson objected to a slide explaining the law on

second degree murder.

¶23                          During a break, Patterson moved for a mistrial based

on both the late disclosure and a diagram in one of the State’s

slides.6                       The trial court denied the motion, but reconsidered

                                                                                                                                                                                               
                                                                                                                                                                                               
the prosecutor to stop rolling her eyes and talking during
testimony,   describing   the  conduct as  “distracting”  and
“unprofessional.”   The juror appears to have concluded that,
rather than prejudicing Patterson, the prosecutor’s behavior
reflected poorly on the State.
6
     Although Patterson recounts his objection to this slide, he
makes no argument based on it.     And, in any event, we would
decline to address any such argument because Patterson has not
                               11 
Patterson’s                          previous                    objection                      to         the           State’s                  description                           of

second degree murder, noting that the prosecutor had incorrectly

stated that to find Patterson guilty of second degree murder,

the jury would “have to find [the murder] was the instant result

of sudden quarrel or heat of passion.”                                                                                 The court instructed the

prosecutor to “straighten[] [it] out in front of the jury.”

Upon resuming its argument, the State cured the misstatement,

explaining that the distinction between first and second degree

murder                 is         premeditation.                                      Patterson                       did           not           object                 to          the

State’s revised statement of the law.

¶24                          We         find            no         abuse               of        discretion.                               The           choice                 of         a

sanction for late disclosure is a matter within the discretion

of a trial court, and we will not reverse its ruling absent a

showing of prejudice.                                                  See State v. Rienhardt, 190 Ariz. 579,

586, 951 P.2d 454, 461 (1997).                                                                   Patterson has not explained how

the State’s late disclosure prejudiced him, and no prejudice is

evident from the record. 

¶25                          Similarly,                        the            State’s                  misstatement                             of         law           in          its

                                                                                                                                                                                               
                                                                                                                                                                                               
preserved the slide as part of the record.          See State v.
Herrera, 174 Ariz. 387, 396, 850 P.2d 100, 109 (1993) (declining
to address trial court’s exclusion of hearsay evidence when
defendant did not offer it into evidence and no copy of it made
part of the record); see also State v. Hargrave, 225 Ariz. 1, 16
¶ 61, 234 P.3d 569, 584 (2010) (stating that appellate court
needs a sufficient record “to allow adequate consideration of
the errors assigned”) (internal quotation omitted).

                                                                                            12 
argument and on the slide did not require a mistrial.                                The slide

was     not   admitted         into    evidence.             Although       the     prosecutor

misstated the law, it corrected the misstatement.                              And the trial

court      properly        defined     second         degree       murder      in    its     jury

instructions.            These actions cured any error resulting from the

prosecutor’s initial misstatement.                     See Prince, 226 Ariz. at 538

¶¶ 89-90, 250 P.3d at 1167 (concluding that jury instructions

and     prosecutor’s           correction       of     his        own     statements       cured

misstatements of law). 

D. Denial of Manslaughter Instruction 

¶26           Patterson        contends       that     the    trial       court     abused    its

discretion         by    denying   his    requested          jury       instruction     on   the

lesser included offense of manslaughter.                          See State v. Wall, 212

Ariz. 1, 3 ¶ 12, 126 P.3d 148, 150 (2006) (reviewing denial of

lesser included offense instruction for abuse of discretion).

He contends that evidence that he and Consquelo fought in the

apartment      supported        such     an    instruction.              See   A.R.S.      § 13-

1103(A)(2) (defining manslaughter as “[c]ommitting second degree

murder . . . upon a sudden quarrel or heat of passion resulting

from adequate provocation by the victim”). 

¶27           The trial court correctly rejected Patterson’s request

for    a   manslaughter         instruction          because      the    evidence     did    not

support one.            See State v. Gomez, 211 Ariz. 494, 501 ¶ 32, 123

P.3d       1131,        1138    (2005)    (finding           no     error      in     refusing
                                               13 
manslaughter instruction when defendant presented no evidence of

adequate provocation for killing).                  Testimony reflected that any

mutual combat, if it occurred at all, ended at least ten minutes

before Consquelo fled the apartment.                        No reasonable juror could

find that the unarmed Consquelo had done anything constituting

“adequate    provocation”          for    Patterson          to    chase     her    from   the

apartment, run her down, and stab her to death. 

E. Inclusion of Dangerousness Allegation in Guilt-Phase Verdict
Forms and Jury Instructions

¶28          Patterson       argues,     and      the   State       concedes,       that   the

trial court erred by instructing the jury at the guilt phase on

the   State’s    allegation        of    dangerousness             and     by   including   a

finding on this issue in the verdict forms.                              We conclude that

the error was harmless. 

¶29          When      the    State      alleges        a        non-capital       sentencing

aggravator      such    as     dangerousness,           see       A.R.S.    § 13-704,      the

aggravator    should         not   be    mentioned          in    jury     instructions     or

otherwise during the guilt phase of the trial.                              Ariz. R. Crim.

P. 19.1(b).         The non-capital sentencing aggravator should be

tried only if a guilty verdict is returned unless the defendant

has admitted the allegation.              Id. Ariz. R. Crim. P. 19.1(b)(2). 

¶30          Contrary to Rule 19.1(b)(1), the trial court included

the dangerousness allegation in its guilt-phase verdict forms

and instructed the jury that a dangerous offense is one that

                                            14 
“involved   the    discharge,   use    or     threatening   exhibition     of    a

‘deadly weapon’ or ‘dangerous instrument’ or the ‘intentional’

or    ‘knowing’    infliction   of     ‘serious     physical     injury’     upon

another.”    It also instructed the jury on the definitions of the

terms    “deadly     weapon,”      “dangerous       instrument,”     “intent,”

“knowingly,” and “serious physical injury.” 

¶31         This error was undoubtedly harmless.               Patterson never

disputed that he killed Consquelo with a butcher knife, which

any reasonable jury would find to be a dangerous instrument.                    As

the State correctly noted, the evidence of dangerousness was the

same as the evidence of the underlying murder.                   The jury was

instructed not to decide dangerousness unless it first found

Patterson   guilty    of   first     degree    murder.      Accordingly,      the

dangerousness finding was implicit in the guilty verdict and,

under these circumstances, failing to bifurcate the trial could

not have influenced the verdict. 

F. Exclusion of Defense Witnesses During Aggravation Phase 

¶32         Patterson   contends      that    the   trial   court   abused    its

discretion by excluding defense mitigation witnesses from the

courtroom during the aggravation phase of trial.                A trial court

must, at the request of a party, “exclude prospective witnesses

from the courtroom during opening statements and the testimony

of other witnesses.”        Ariz. R. Crim. P. 9.3(a).                This rule

applies during the aggravation and penalty phases, and the trial
                                       15 
court did not err in granting the State’s motion to exclude

prospective witnesses under Rule 9.3.                          See id. cmt. (“Section

(a) extends the language of the 1956 Arizona Rules of Criminal

Procedure . . . to all proceedings.”) 

G. Denial of Right to Allocute 

¶33          Patterson             claims           that        the          trial          court

unconstitutionally denied him the opportunity to allocute by not

asking     him    if    he   wanted      to        do    so    before       the   jury      began

deliberating.          The court discussed allocution with the parties

on the record before the penalty phase.                             A few days later, the

trial court asked defense counsel whether Patterson intended to

allocute, and counsel responded that she did not know.                                     On the

last day of the penalty phase, the court again inquired whether

Patterson    intended        to    allocute.              Patterson        declined      through

counsel.     After the jury had retired, however, the trial judge

spoke    with     Patterson        to   assure          that    he    was    knowingly        and

willingly foregoing allocution.                    When the judge asked if he knew

he had the right to allocute and whether it was his decision not

to,     Patterson      responded        equivocally,           ultimately         failing      to

answer. 

¶34          Although        the    better         practice         would    have     been     to

confirm     Patterson’s        waiver         of        allocution      before       the      jury

retired, we see no error on this record.                              The judge explained

allocution       and   Patterson        was    advised         by    his    counsel      on   his
                                              16 
decision.      Patterson       declined      through   counsel       and,    moreover,

never claimed — and does not now claim — that he wanted to

allocute. 

H. Review of the Death Sentence 

¶35          Because Patterson committed the murder after August 1,

2002,   we    review     the    jury’s       aggravation      finding       and    death

sentence for abuse of discretion.               A.R.S. § 13-756(A). 

¶36          Patterson     does     not      dispute       that   his       murder    of

Consquelo was  especially cruel.                “A murder is especially cruel

under A.R.S. § 13-751(F)(6) when the victim consciously suffered

physical pain or mental anguish during at least some portion of

the crime and the defendant knew or should have known that the

victim would suffer.”          State v. Dixon, 226 Ariz. 545, 556 ¶ 61,

250 P.3d 1174, 1185 (2011) (internal quotation omitted). 

¶37          The record supports a finding that Consquelo suffered

both mental anguish and physical pain during the crime.                              She

remained     conscious    while     Patterson        repeatedly       stabbed        her.

Although     mortally    wounded,      she      attempted    to   escape     and     seek

help.      The jury did not abuse its discretion in finding the

(F)(6) “especially cruel” aggravating factor. 

¶38          Patterson maintains, however, that the mitigation he

presented     supports     a    life      sentence.         Patterson        presented

evidence regarding thirteen mitigating circumstances: (1) his

mother’s     lack   of   mental     stability;       (2)    mental    illness;        (3)
                                          17 
abandonment by his father at a young age; (4) strong family

support      from   his        children     and      grandchildren;        (5)    consistent

employment despite poor education; (6) ongoing separation from

his siblings; (7) a family history of severe mental illness; (8)

childhood bed wetting; (9) his father forcing him to leave the

family home at age fourteen; (10) lack of education; (11) that

he loves and is loved by his family; (12) that he is the father

of    many    children;         and    (13)    remorse.            The    State    presented

rebuttal evidence with respect to much of Patterson’s mitigation

evidence and otherwise argued that it was not substantial.

¶39           Patterson chased down a helpless woman, sat over her,

and then brutally murdered her by stabbing her repeatedly.                                     The

(F)(6)    especially           cruel   aggravating          circumstance         was    clearly

established.        On this record, even if we assume that Patterson

met   his    burden      of     establishing          the   existence       of    mitigating

circumstances       by     a    preponderance         of    the    evidence,       we    cannot

conclude that the jury abused its discretion in determining that

the    mitigating        circumstances,           taken      as    a     whole,    were        not

sufficiently        substantial        to     call    for    leniency.      See        State    v.

Villalobos, 225 Ariz. 74, 85 ¶ 51, 235 P.3d 227, 238 (2010).                                   We

therefore affirm the death sentence.

                                            III. CONCLUSION

¶40           For    the       foregoing       reasons,       we       affirm     Patterson’s


                                               18 
conviction and sentence.7

                                                               _____________________________________
                                                               Robert M. Brutinel, Justice




CONCURRING:


_____________________________________
Rebecca White Berch, Chief Justice


_____________________________________
Scott Bales, Vice Chief Justice


_____________________________________
A. John Pelander, Justice




                                                                      APPENDIX

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

                  2.         The   death   penalty  is   imposed   arbitrarily   and
                             irrationally in Arizona in violation of the Eighth and
                             Fourteenth   Amendments    to   the    United    States
                             Constitution and Article 2, § 15 of the Arizona
                                                            
7
     Patterson raises twenty-two issues to avoid preclusion on
federal review. His statements of those issues and the cases he
cites as rejecting his contentions are presented verbatim in the
Appendix. Some of these contentions, however, do not appear to
apply to Patterson; we have included footnotes denoting which
are inapplicable.

 

                                                                     19 
                             Constitution, as well as Patterson’s right to due
                             process under the Fifth and Fourteenth Amendments to
                             the United States Constitution and Article 2, § 4 of
                             the Arizona Constitution.  State v. Beaty, 158 Ariz.
                             232, 762 P.2d 519 (1988).

                  3.         Application of the death penalty on the facts of this
                             case would constitute cruel and unusual punishment in
                             violation of the Eighth and Fourteenth Amendments to
                             the United States Constitution and Article 2 §§ 1, 4,
                             and 15 of the Arizona Constitution.

                  4.         The prosecutor’s discretion to seek the death penalty
                             has no standards and therefore violates the Eighth and
                             Fourteenth    Amendments   to    the   United   States
                             Constitution and Article 2, §§ 1, 4, and 15 of the
                             Arizona Constitution.    State v. Sansing, 200 Ariz.
                             347, 361, 26 P.3d 1118, 1132 (2001).

                  5.         Aggravating factors under A.R.S. § 13-703(F) are
                             elements of capital murder and must be alleged in an
                             indictment and screened for probable cause. Arizona’s
                             failure to require this violates a defendant’s right
                             to due process and a fair trial under the Sixth and
                             Fourteenth    Amendments    to    the   United    States
                             Constitution and Art. 2, §§ 4 and 24 of the Arizona
                             Constitution.   McKaney v. Foreman, 209 Ariz. 268, 100
                             P.3d 18 (2004).      Recently, although not mandating
                             aggravators to be screened for probable cause on
                             constitutional   grounds,    this   Court   found   that
                             defendants had a right under the rules of criminal
                             procedure to have the aggravators screened for
                             probable cause.    See Chronis v. Steinle, 220 Ariz.
                             559, 208 P.3d 210 (2009).8


                  6.         The absence of proportionality review of the death
                             sentences by Arizona courts denies capital defendants
                             due process of law and equal protection and amounts to
                             cruel and unusual punishment in violation of the
                             Fifth, Eighth, and Fourteenth Amendments to the United
                             States Constitution and Article 2, § 15 of the Arizona
                             Constitution.   Harrod, 200 Ariz. at 320, 26 P.3d at
                                                            
8
     This claim does not appear to apply to Patterson because
the record reflects he did receive a Chronis hearing.

                                                               20 
     503.   Proportionality review serves to identify which
     cases are “above the norm” of first degree murder thus
     narrowing the class of defendants who are eligible for
     the death penalty.

7.   Arizona’s     capital     sentencing     scheme     is
     unconstitutional because it does not require that the
     State prove that the death penalty is appropriate.
     Failure to require this proof violates the Fifth,
     Eighth, and Fourteenth Amendments to the United States
     Constitution and Article 2, § 15 of the Arizona
     Constitution.   State v. Ring, 200 Ariz. 267, 284, 25
     P.3d 1139, 1156 (2001) (Ring I), rev’d on other
     grounds by Ring II.


8.   A.R.S. § 13-703 provides no objective standards to
     guide the sentencer in weighing the aggravating and
     mitigating circumstances and therefore violates the
     Eighth and Fourteenth Amendments of the United States
     Constitution and Article 2, § 15 of the Arizona
     Constitution.   State v. Pandeli, 200 Ariz. 365, 382,
     26 P.3d 1136, 1153 (2001).

9.   Arizona’s death penalty scheme is unconstitutional
     because it does not require the sentencer to find
     beyond a reasonable doubt that the aggravating
     circumstances outweigh the accumulated mitigating
     circumstances, in violation of the Fifth, Eighth, and
     Fourteenth    Amendments   to   the    United   States
     Constitution and Article 2, §§ 4 and 15 of the Arizona
     Constitution.   State v. Poyson, 198 Ariz. 70, 83, 7
     P.3d 79, 92 (2000).

10. A.R.S. § 13-703 does not sufficiently channel the
    sentencer’s discretion.      Aggravating circumstances
    should narrow the class of persons eligible for the
    death penalty and reasonably justify the imposition of
    a harsher penalty.      The broad scope of Arizona’s
    aggravating factors encompasses nearly anyone involved
    in a murder, in violation of the Eighth and Fourteenth
    Amendments to the United States Constitution and
    Article 2, § 15 of the Arizona Constitution. Pandeli,
    200 Ariz. at 382, 26 P.3d at 1153.



                          21 
                  11. Execution by lethal injection is cruel and unusual
                      punishment in violation of the Eighth and Fourteenth
                      Amendments to the United States Constitution and
                      Article 2, § 15 of the Arizona Constitution. State v.
                      Hinchey, 181 Ariz. 307, 315, 890 P.2d 602, 610 (1994).

                  12. Arizona’s   current   protocols   and  procedures  for
                      execution by lethal injection constitute cruel and
                      unusual punishment in violation of the Eighth and
                      Fourteenth Amendments.    State v. Andriano, 215 Ariz.
                      497, 510, 161 P.3d 540, 553 (2007).

                  13. Arizona’s death penalty unconstitutionally requires
                      imposition of the death penalty whenever at least one
                      aggravating     circumstance   and    no     mitigating
                      circumstances exist, in violation of the Eighth and
                      Fourteenth    Amendments    to  the    United    States
                      Constitution and Aritcle 2, § 15 of the Arizona
                      Constitution.   State v. Miles, 186 Ariz. 10, 19, 918
                      P.2d 1028, 1037 (1996).

                  14. A.R.S.    § 13-703,    (now     13-751,   et.     seq.)
                      unconstitutionally fails to require the cumulative
                      consideration   of  multiple   mitigating  factors   or
                      require that the jury make specific findings as to
                      each mitigating factor.     State v. Gulbrandson, 184
                      Ariz. 46, 69, 906 P.2d 579, 602 (1995).

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

                  16. Death sentences have been applied arbitrarily and
                      irrationally and in a discriminatory manner against
                      impoverished males whose victims have been Caucasian.
                      State v. West, 176 Ariz. 432, 455, 862 P.2d 192, 215
                      (1993).9

                                                            
9
     Although the record suggests that Patterson was not well-
to-do at the time of the murder, neither the State nor Patterson
presented any evidence that he was actually impoverished.
Additionally, his victim was not Caucasian. This claim does not
appear to apply to Patterson.  

                                                               22 
                  17. Subjecting Appellant to a second trial on the issue of
                      aggravation and punishment before a new jury violates
                      the double jeopardy clause of the Fifth Amendment.
                      State v. Ring, 204 Ariz. 534, 550, 65 P.3d 915, 931
                      (2003) (Ring III).10

                  18. The   reasonable   doubt  jury    instruction at  the
                      aggravation trial lowered the state’s burden of proof
                      and deprived Appellant of his right to a jury trial
                      and due process under the Sixth and Fourteenth
                      Amendments. State v. Dann, 205 Ariz. 557, 575-76, 74
                      P.3d 231, 249-50 (2003) (Dann I).

                  19. Arizona’s death statute creates an             unconstitutional
                      presumption of death and places an             unconstitutional
                      burden   on   Appellant  to  prove              mitigation   is
                      “sufficiently substantial to call               for leniency.”
                      State v. Glassel, 211 Ariz. 33, 52,             116 P.3d 1193,
                      1212 (2005).

                  20. The introduction of victim impact evidence is improper
                      because a defendant does not receive pretrial notice
                      or an opportunity to confront and cross examine the
                      victim witness.    Lynn v. Reinstein, 205 Ariz. 186,
                      191, 68 P.3d 412, 417 (2003).

                  21. 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, 107
                      P.3d 900, 916-917 (2005).

                  22. The jury instruction requiring 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, 140 P.3d 899, 922 (2006).




                                                            
10
     This case is not a Ring remand and the same jury found
guilt, aggravation, and imposed the death sentence. This claim
clearly does not apply to Patterson.

                                                               23 
