                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                          STATE OF ARIZONA,
                              Appellee,

                                   v.

                        SHAWN PATRICK LYNCH,
                             Appellant.

                           No. CR-12-0359-AP
                        Filed September 10, 2015


          Appeal from the Superior Court in Maricopa County
              The Honorable Karen L. O’Connor, Judge
                         No. CR2001-092032
                            AFFIRMED


COUNSEL:

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor
General, Lacey Stover Gard (argued), Chief Counsel, Capital Litigation
Section, Jeffrey L. Sparks, Assistant Attorney General, Tucson, Attorneys
for State of Arizona

Tennie B. Martin, Mikel Steinfeld (argued), Deputy Public Defenders,
Phoenix, Attorneys for Shawn Patrick Lynch

JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
BERCH and TIMMER joined.


JUSTICE BRUTINEL, opinion of the Court:
                             STATE V. LYNCH
                            Opinion of the Court

¶1            Shawn Patrick Lynch was convicted of first-degree murder,
kidnapping, armed robbery, and burglary. He was sentenced to death for
the murder and to twenty-one years’ imprisonment for the other offenses.
We remanded for a new penalty-phase proceeding on the murder
conviction in State v. Lynch (Lynch I), 225 Ariz. 27, 43 ¶ 89, 234 P.3d 595, 611
(2010). On resentencing, the jury again returned a death verdict. We have
jurisdiction over this automatic appeal pursuant to Article 6, Section 5(3) of
the Arizona Constitution and A.R.S. §§ 13-755 and 13-4031.

                    I.     FACTUAL BACKGROUND

¶2            The victim, James Panzarella, was seen at a Scottsdale bar
with Lynch and Michael Sehwani on March 24, 2001. Lynch, Sehwani, and
Panzarella went to Panzarella’s residence early the next morning. Later that
morning, Sehwani used Panzarella’s American Express card at a
supermarket. Ten minutes later, the card was reported lost. Sehwani again
used the card at a convenience store and unsuccessfully attempted to use it
at a department store. The same day, Panzarella’s Bank One card was used
at a restaurant, a convenience store, and a motel. The Bank One card was
used the following day to make a cash withdrawal and various purchases,
including Everlast shoes.

¶3           The next afternoon, Panzarella was found in his home tied to
a chair with his throat slit. Police also found credit card receipts from
purchases made that morning at a supermarket and convenience store.

¶4            Police arrested Lynch and Sehwani that afternoon as they
entered a truck in a motel parking lot. Sehwani was wearing Everlast shoes
and had Panzarella’s credit cards and checks in his wallet. In the truck and
a motel room, police found keys to Panzarella’s car, a sweater with
Panzarella’s blood on it, and a .45 caliber pistol belonging to Panzarella.
Blood on Lynch’s shoes matched Panzarella’s DNA.

¶5            A jury found Lynch guilty of first-degree murder, armed
robbery, burglary, and kidnapping. In his first aggravation-phase trial, the
jury made separate findings that the murder was especially heinous and
cruel, but could not agree on whether it was especially depraved. See A.R.S.
§ 13-751(F)(6). The jury also could not decide if the murder was committed
in expectation of pecuniary gain. See A.R.S. § 13-751(F)(5). That jury did
not reach a unanimous verdict in the penalty phase. A second penalty-

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                             Opinion of the Court

phase jury found that the murder was especially depraved and committed
for pecuniary gain and that a death sentence was appropriate. We
remanded for a new penalty-phase trial because the trial judge erroneously
instructed the second penalty-phase jury that the (F)(6) aggravator
constituted three separate aggravating circumstances. Lynch I, 225 Ariz. at
42–43 ¶¶ 82–89, 234 P.3d at 610–11. Following the new penalty-phase trial,
Lynch was again sentenced to death.

                       II.     ISSUES ON APPEAL

   A. Prosecutorial Misconduct

¶6            Lynch asserts that the State engaged in prosecutorial
misconduct in several ways, individually and in combination. “This Court
will reverse a conviction for prosecutorial misconduct only when (1)
misconduct is indeed present; and (2) a reasonable likelihood exists that the
misconduct could have affected the jury’s verdict, thereby denying [the]
defendant a fair trial.” State v. Martinez, 218 Ariz. 421, 426 ¶ 15, 189 P.3d
348, 353 (2008) (internal quotation marks omitted). Even when an instance
of prosecutorial misconduct does not warrant reversal, “an incident may
nonetheless contribute to a finding of persistent and pervasive misconduct
if the cumulative effect of the incidents shows that the prosecutor
intentionally engaged in improper conduct and did so with indifference, if
not a specific intent, to prejudice the defendant.” State v. Roque, 213 Ariz.
193, 228 ¶ 155, 141 P.3d 368, 403 (2006) (citations and internal quotation
marks omitted).

¶7            When a defendant fails to object to an alleged incident of
prosecutorial misconduct in the trial court, this Court reviews for
fundamental error. Id. at 228 ¶ 154, 141 P.3d at 403. To establish
fundamental error, Lynch must show that “there was error that went to the
foundation of his case and denied him a fair trial, and that he was, in fact,
prejudiced by the error.” State v. VanWinkle, 230 Ariz. 387, 393 ¶ 25, 285
P.3d 308, 314 (2012).

      1. Argument during opening statements

¶8           Lynch first asserts the prosecutor improperly presented
arguments during his opening statement that “largely focused on
persuading the jury that little weight should be given to certain mitigating

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                            Opinion of the Court

factors and expected evidence.” The trial court sustained two of Lynch’s
objections to the State’s opening statement—that Lynch’s childhood should
not be considered a mitigating circumstance because “it happened 30 years
ago” and that the defense wanted to “pull at [the jury’s] heart strings” in its
presentation of mitigating evidence. The court overruled Lynch’s objection
to the prosecutor’s remark that no medical records supported Lynch’s
assertion that his father intentionally burned his hand as a child. Finally,
the State implied that little weight should be given to a defense expert’s life-
expectancy testimony because the expert relied on a Wikipedia article and
Lynch had outlived the expert’s prediction for his life expectancy. The trial
judge overruled Lynch’s objection to these remarks.

¶9            “Opening statement is counsel’s opportunity to tell the jury
what evidence they intend to introduce. Opening statement is not a time to
argue the inferences and conclusions that may be drawn from evidence not
yet admitted.” State v. Bible, 175 Ariz. 549, 602, 858 P.2d 1152, 1205 (1993)
(internal citation omitted). “[C]autionary instructions by the court
generally cure any possible prejudice from argumentative comments
during opening statements,” because we presume that jurors follow the
court’s instructions. State v. Manuel, 229 Ariz. 1, 6 ¶ 24, 270 P.3d 828, 833
(2011).

¶10           Here, the court instructed the jury that it should only consider
testimony, exhibits, and stipulations as evidence and that attorneys’
remarks are not evidence. As to the disallowed statements listed above, the
trial judge sustained objections and properly instructed the jury not to
consider them as evidence. These instructions cured any prejudice. On
balance, although the prosecutor improperly made argumentative
statements during opening, we find no reasonable likelihood that the
misconduct affected the jury’s verdict. See Martinez, 218 Ariz. at 426 ¶ 15,
189 P.3d at 353. The State’s opening statement did not deny Lynch a fair
trial.

       2. Improper witness examination

¶11           Lynch argues that the prosecutor committed misconduct
during his cross-examination of defense witnesses. The trial court
sustained Lynch’s objections to two questions that were asked and
answered, the State’s interruption of defense witnesses on two occasions,
the State’s comment to a defense expert that she should “just answer my

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                            Opinion of the Court

question for once,” and other argumentative questions. The judge
overruled Lynch’s objections to combative remarks, including, “No, let me
ask you the question.”

¶12           Although the State’s cross-examination was aggressive, and
the court would have been well within its discretion to have sustained the
objections and required the prosecutor to rephrase his questions in a more
civil manner, the questioning did not deny Lynch a fair trial. See State v.
Bolton, 182 Ariz. 290, 308, 896 P.2d 830, 848 (1995) (“The questioning may
have been argumentative. Nevertheless, the misconduct was not so
egregious that it permeated the entire trial and probably affected the
outcome.”). As in Bolton, “the prosecutor here did not call defendant
pejorative names, refer to matters not in evidence, suggest unfavorable
matter for which no proof exists, or abuse defendant in any other way.” Id.
The court instructed the jury to disregard questions to which objections
were sustained; to only consider testimony, exhibits, and stipulations as
evidence; and that attorneys’ remarks are not evidence. We presume that
jurors follow instructions. Manuel, 229 Ariz. at 6 ¶ 25, 270 P.3d at 833
(presuming that jury followed instructions even though the prosecutor
“aggressively cross-examined” the defendant and another witness). We do
not find fundamental error in the examination as a whole. As for the
remarks to which Lynch’s objections were overruled, while the trial court
should have exercised more control over the aggressive questioning, the
court did not abuse its discretion in overruling the objections.

       3. Questions related to veracity of other witnesses

¶13            Lynch argues that the State improperly questioned his expert,
Dr. Jolie Brams, a clinical psychologist, on the veracity of other witnesses’
statements by accusing her of vouching for witnesses and asking her to
comment on the truthfulness of witnesses. “Arizona prohibits lay and
expert testimony concerning the veracity of a statement by another
witness” because it is the province of the jury to determine veracity and
credibility, “and opinions about witness credibility are ‘nothing more than
advice to jurors on how to decide the case.’” State v. Boggs, 218 Ariz. 325,
335, 185 P.3d 111, 121 (2008) (quoting State v. Moran, 151 Ariz. 378, 383, 728
P.2d 248, 253 (1986)).

¶14          Brams interviewed several people who knew Lynch and,
based in part on those interviews, concluded that Lynch grew up in an

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                            Opinion of the Court

atmosphere of violence and neglect. During cross-examination, the State
asked Brams to recount her testimony in another criminal trial in which she
had testified that it was highly unlikely that the witness could have
remembered previous encounters with a defendant absent some
meaningful event and that the witness’ recollections were the result of
suggestions by law enforcement. The State then asked Brams if testifying
about recollected memories is “really just vouching for what somebody is
saying” and if she had opined that a witness was not truthful in a third case.
Lynch did not object to either question, and Brams answered both questions
in the negative. Contrasting her testimony in the previous case to Brams’s
interview of Lynch’s uncle, the prosecutor asked Brams whether a witness
was not credible if he said he remembered something that happened forty-
nine years earlier even though it did not stand out in his mind, “because
you can vouch for people[.]” The trial court sustained Lynch’s objection.
The State also asked, “[Y]ou are telling us that, for example, [Lynch’s sister],
in your opinion, was telling the truth about everything?” Lynch failed to
object to this question, and Brams replied that she did not think the sister
was being purposefully deceitful.

¶15            These questions did not deny Lynch a fair trial. They related
to Brams’s witness interviews, not the testimony of other witnesses. These
interviews were the foundation for Brams’s testimony. The prosecutor did
not encroach on the jury’s evaluation of witness veracity, but rather tested
Brams’s credibility by attempting to show that she believed interviewees
when their story was helpful but was skeptical when their story was not
helpful. The State’s closing argument addressed Brams’s bias and
credibility, not her opinion as to the veracity of testimony. The only
improper remark was the suggestion that Brams “can vouch for people,”
and the trial court sustained Lynch’s objection and instructed the jury that
it was to disregard questions to which objections were sustained. The jury
instructions sufficiently cured any prejudice. See State v. Hardy, 230 Ariz.
281, 293–94 ¶¶ 61–62, 283 P.3d 12, 24–25 (2012).

       4. Speaking objections

¶16            Lynch asserts that the prosecutor improperly made
arguments through speaking objections. While making a relevance
objection, the State argued that Brams was “obviously vested.” After Lynch
made a relevance objection to the State’s cross-examination of Dr. Gerald
Altschuler—a hematologist, oncologist, and internist—the State responded

                                       6
                             STATE V. LYNCH
                            Opinion of the Court

that Altschuler “is a jack of all trades and not a master of this.” While
making a relevance objection to what a witness recalled, the State said, “If
he wants to just ask him what is in the transcript, I have no objection to that
but what he remembers is irrelevant.” The State also clarified the basis for
a “cumulative” objection after the judge replied, “I’m sorry?” Finally, the
prosecutor suggested that the jury be given an interview transcript in lieu
of testimony as to what the transcript contained. Lynch did not object to
any of these comments at trial. Lynch takes issue with the State twice
objecting to his speaking objections, once in the presence of the jury,
asserting that the State made speaking objections throughout the trial but
did not allow him to do so.

¶17           Arizona law does not explicitly prohibit speaking objections,
but “[t]o the extent practicable, the court must conduct a jury trial so that
inadmissible evidence is not suggested to the jury by any means.” Ariz. R.
Evid. 103(d). Lynch does not identify—and we have not found—any
inadmissible evidence that the State incorporated into its speaking
objections. Further, Lynch did not object at trial and fails to demonstrate
fundamental error. See State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d
601, 607 (2005).

       5. Attacks on defense experts

¶18            Lynch contends that the prosecutor committed misconduct
by unfairly attacking his expert witnesses. During opening statements, the
State told the jury that Altschuler, Lynch’s expert regarding his hepatitis C
diagnosis, would testify about the Child–Pugh standard for evaluating
chronic liver disease. The prosecutor opined that the Child–Pugh standard
is a subjective standard that “comes from Wikipedia”1 and pointed out that
Lynch had already outlived the two-year life expectancy Altschuler had
given. In response to a defense objection, the trial court commented that
the jury had been informed that the opening statement was not evidence,
but did not rule on the objection. During Altschuler’s cross-examination,
the prosecutor asked whether Altschuler examined patients after
chemotherapy or if the examination was “done offsite where they actually
receive the chemotherapy treatment.” Lynch objected on relevance
grounds, and the State responded that it was attempting to show

1     Lynch offered into evidence an article about the Child–Pugh
standard that had “Wikipedia” printed at the bottom of the page.
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                             STATE V. LYNCH
                            Opinion of the Court

Altschuler’s lack of specific expertise—that he “is a jack of all trades and
not a master of this.” The court overruled the objection.

¶19           As noted above, during the cross-examination of Brams, the
prosecutor, referring to Brams’s interview of Lynch’s uncle, asked Brams
whether a witness was not credible if he said he remembered something
that happened forty-nine years earlier even though it did not stand out in
his mind, “because you can vouch for people[.]” The trial court sustained
Lynch’s objection. After asking whether Brams had testified in a prior case
that a witness was mistaken in his memory of long-past events, the
prosecutor then inquired, “Well, this is the same sort of thing here, isn’t it?
On this particular case you took a look at what somebody said and you
reached a conclusion that perhaps they were mistaken or whatever term
you want to use, right?” Brams explained that her testimony in the prior
case was that a suggestive police interview might have influenced the
interviewee’s statements. Finally, the prosecutor asked Brams about her
refusal to produce two documents he requested. Brams explained that she
did not realize she had the documents. The prosecutor replied, “And so
what you’re saying is had you known that those two pages were in your
binder, you would have removed them before the interview?” Brams
began to deny the accusation, but the prosecutor interrupted. The judge
sustained Lynch’s objection to the interruption, and Brams explained that
she would have disclosed the pages had she known she had them.

¶20            The prosecutor also asked Brams whether being an expert on
recollected memories is “really just vouching for what somebody is
saying,” but Lynch did not object. Lynch also failed to object to the
prosecutor’s remark during closing argument that Brams “was able to tell
the Court under oath that [a] witness was wrong, without ever speaking to
that witness” and that she followed improper procedures such as taking
written notes that “no one can interpret.” The prosecutor also accused
Brams of refusing to disclose her notes and slanting the truth. Again, Lynch
did not object. Lynch also takes issue with the State’s comments during
closing argument such as, “That’s the person they chose,” because, in
Lynch’s view, the comments were calculated to tie Brams’s supposed
disclosure violations and improper practices to defense counsel. Lynch
failed to object at trial.

¶21        A prosecutor may “inquire into the credentials and
employment of an expert witness to show bias or motive,” but cannot

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                             STATE V. LYNCH
                            Opinion of the Court

“insinuate that an expert is unethical or incompetent without properly
admitted evidence to support it.” State v. Bailey, 132 Ariz. 472, 478–79, 647
P.2d 170, 176–77 (1982).

¶22           Here, although the prosecutor was aggressive, there was no
reversible error. See id. The trial court sustained Lynch’s objections to many
of the questions, and the court’s instructions to disregard the statements
cured any possible prejudice. See Manuel, 229 Ariz. at 6 ¶ 24, 270 P.3d at
833. The court did not abuse its discretion in overruling any of the
objections. As to the remarks to which Lynch did not object, he fails to show
prejudice. Accordingly, the State’s remarks during closing argument did
not amount to fundamental error. State v. Morris, 215 Ariz. 324, 337 ¶ 59,
160 P.3d 203, 216 (2007).

       6. Appeal to the fears of the jury

¶23            Lynch next contends that the prosecutor improperly appealed
to the jurors’ fears during his cross-examination of defense expert James
Aiken. While inquiring about the security designation that Lynch would
receive in prison, the prosecutor asked about an unrelated incident in
Arizona where convicted murderers escaped from prison. Lynch did not
object to this question. The prosecutor also asked Aiken whether it was
possible that Lynch “could stick or prick, with a sharp object, one of the
corrections officers.” When Aiken answered that the probability was
miniscule, the prosecutor asked whether “that would be comfort to the
person who got stuck by a needle that Shawn Lynch had used.” The trial
judge overruled Lynch’s relevance objection. Lynch argues on appeal that
the State did not offer any reason to believe that the escaped prisoners were
in a similar position as him and that there was no evidence to support the
State’s assertion that he would attack an officer.

¶24             Although the cross-examination was argumentative, and the
trial judge could have sustained an objection on that basis, it was relevant.
The defense elicited from Aiken testimony that Lynch could be safely
housed in prison. The cross-examination was relevant rebuttal to that
testimony. See Ariz. R. Evid. 401(a) (“Evidence is relevant if [] it has any
tendency to make a fact more or less probable than it would be without the
evidence . . . .”); Ariz. R. Evid. 611(b) (“A witness may be cross-examined
on any relevant matter.”). That other offenders escaped from prison makes
it less likely that Lynch could be housed safely. Additionally, that Lynch’s

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                             STATE V. LYNCH
                            Opinion of the Court

hepatitis C could be transmitted through needles makes him more of a
threat in prison than one without such a disease.

       7. Misstating the evidence

¶25            During the cross-examination of Brams, the State asked
whether she had previously said it was a waste of time to go over her notes
and, after Brams said she did not recall, played a recording in which she
said it would be a waste of time to go through every word of her notes. The
trial court sustained Lynch’s objection to the admission of the recording on
the ground that Brams’s statement was taken out of context. The prosecutor
also asked Brams, “[D]idn’t you tell us about a case involving a guy named
Braulio Martinez yesterday where you said that he was mistaken because
you can read minds?” The trial judge sustained Lynch’s objection. Finally,
the court sustained Lynch’s objection to a statement in the State’s closing
argument that renting pornographic movies demonstrated Lynch’s poor
character.

¶26           Intentionally misstating evidence constitutes misconduct. See
State v. Cannon, 148 Ariz. 72, 77, 713 P.2d 273, 278 (1985). When defense
counsel can correct the misstatement at trial, however, we are hesitant to
find reversible error. Id. Although the prosecutor made inappropriate
remarks, defense counsel’s objections were sustained and the prosecutor
did not argue those points further. The trial judge instructed the jury at the
beginning and end of the proceedings not to consider matters to which the
court sustained objections. We presume juries follow instructions, Manuel,
229 Ariz. at 6 ¶ 25, 270 P.3d at 833, and there is no evidence that the jury
failed to heed this instruction. Lynch has not shown that the prosecutor’s
remarks could have affected the jury’s verdict. See Martinez, 218 Ariz. at
426 ¶ 15, 189 P.3d at 353.

       8. Ad hominem attacks on defense counsel

¶27           Lynch argues that the prosecutor committed misconduct by
repeatedly resorting to ad hominem attacks against defense counsel.
During opening statement and closing arguments, the prosecutor
repeatedly characterized Lynch’s mitigation evidence as “a myth” and
“fanciful” and made other similar comments. The prosecutor also attacked
the defense theory that Lynch was not the killer by stating that the DNA
evidence “is something that you perhaps will not consider when you are

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                              STATE V. LYNCH
                             Opinion of the Court

asked to speculate, as they put it[,] or try to determine who was the person
who did the cutting.” Lynch did not object to any of these statements.

¶28            We have consistently held that prosecutors have wide
latitude in closing arguments and may argue all reasonable inferences from
the evidence. State v. Hill, 174 Ariz. 313, 322, 848 P.2d 1375, 1384 (1993). But
it is always improper for the prosecutor to “impugn the integrity or honesty
of opposing counsel.” State v. Newell, 212 Ariz. 389, 403 ¶ 66, 132 P.3d 833,
847 (2006) (holding it was improper to imply that defense counsel was
arguing for a position he knew to be false). Nonetheless, such comments
warrant reversal only if a defendant can show a reasonable likelihood that
the misconduct could have tainted the jury’s verdict. Id. Moreover,
“[c]riticism of defense theories and tactics is a proper subject of closing
argument.” State v. Ramos, 235 Ariz. 230, 238 ¶ 25, 330 P.3d 987, 995 (App.
2014) (quoting United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997)).
In Ramos, the court ruled that the prosecutor’s accusation that the defense
raised “red herrings” and asked the jury to “check [their] common sense at
the door” was proper criticism of defense tactics even though it suggested
that defense counsel attempted to mislead the jury. Id. at 237–38 ¶¶ 24–25,
330 P.3d at 994–95.

¶29            Here, although the prosecutor repeatedly suggested that
Lynch’s defense was not credible, his criticism was directed at defense
theories rather than defense counsel. Compare State v. Amaya-Ruiz, 166 Ariz.
152, 171, 800 P.2d 1260, 1279 (1990) (no misconduct where prosecutor called
defense theories “outrageous,” a “smoke screen,” and supported only by
“innuendo and inference”), with State v. Hughes, 193 Ariz. 72, 86 ¶ 61, 969
P.2d 1184, 1198 (1998) (misconduct to argue that defense counsel and
experts “fabricated” insanity defense without evidentiary support). The
prosecutor’s remarks were not improper. Moreover, the trial judge
instructed the jury that the lawyers’ arguments are not evidence. The
prosecutor’s comments did not deprive Lynch of a fair trial. See Newell, 212
Ariz. at 403 ¶ 67, 132 P.3d at 847.

       9. Vouching and relying on evidence outside of the record

¶30          During closing argument, the prosecutor commented that
“this defendant—and he did—slash [Panzarella’s] throat.” Lynch contends
this was improper because the prosecutor had previously objected to the
introduction of the guilty verdict, which indicated that only eight of the

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                            Opinion of the Court

guilt-phase jurors found that Lynch had killed a person,2 and the trial court
precluded it. Lynch argues the State improperly argued that Lynch was the
actual killer and interfered with his ability to dispute this point by objecting
to the introduction of the guilty verdict. Lynch also contends that the
prosecutor vouched for the police officers involved by saying, “the
Scottsdale Police Department did its darndest” and “[t]hey tried,” referring
to the department’s attempt to find Panzarella’s DNA on Sehwani’s shirt.
The prosecutor also referred to blood-spatter evidence as “the law” and
said “the State does not agree that [Lynch’s mitigating circumstances] are
mitigating circumstances.” Lynch did not object to any of these comments
at trial.

¶31           A prosecutor improperly vouches by either placing the
prestige of the government behind its evidence or suggesting that facts not
before the jury support the state’s evidence. Newell, 212 Ariz. at 402 ¶ 62,
132 P.3d at 846; State v. Vincent, 159 Ariz. 418, 423, 768 P.2d 150, 155 (1989).
Even if vouching occurs, the trial court may “cure the error by instructing
the jury not to consider the attorneys’ arguments as evidence.” State v.
Payne, 233 Ariz. 484, 512 ¶ 109, 314 P.3d 1239, 1267 (2013).

¶32            Although the prosecutor said the crime lab tried its
“darndest” and referred to blood-spatter analysis as “the law,” it was
proper for the State to suggest that, because police did not find Panzarella’s
blood on Sehwani, the jury should infer that Lynch actually committed the
murder. Contrary to Lynch’s assertion, the fact that four jurors on the guilt-
phase jury were not convinced that Lynch was the killer does not make the
prosecutor’s comments misconduct. See Bible, 175 Ariz. at 602, 858 P.2d at
1205 (“[D]uring closing arguments counsel may summarize the evidence,
make submittals to the jury, urge the jury to draw reasonable inferences
from the evidence, and suggest ultimate conclusions.”). Finally, Lynch did
not object to the prosecutor’s reference to blood-spatter evidence as the law
or the prosecutor’s comment that “the State does not agree,” and he fails to
show that these remarks denied him a fair trial. Although the prosecutor
put the prestige of the government behind his evidence by saying that “the
State does not agree,” the trial court cured the error by instructing the jury



2      The jury was unanimous only in finding that Lynch was a major
participant in the felony and had acted with reckless indifference for human
life.
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                            Opinion of the Court

not to consider the attorneys’ arguments as evidence. The prosecutor’s
comments did not constitute sufficient misconduct to warrant reversal.

       10. Misstatement of the law

¶33           Lynch contends the prosecutor committed misconduct by
misstating the law. A prosecutor should not misstate the law during closing
argument. State v. Serna, 163 Ariz. 260, 266, 787 P.2d 1056, 1062 (1990). Trial
courts are given broad discretion in controlling closing argument, and their
rulings will only be overturned for an abuse of discretion. State v. Tims, 143
Ariz. 196, 199, 693 P.3d 333, 336 (1985).

          a. A.R.S. § 13-751(G)(1)

¶34            Substantial impairment of a person’s capacity to appreciate
the wrongfulness of his conduct is a statutorily identified mitigating
circumstance. A.R.S. § 13-751(G). The prosecutor argued that a person can
only fail to appreciate the wrongfulness of conduct if the person admits the
conduct. The trial court overruled Lynch’s objection. The prosecutor also
questioned why Lynch would leave the crime scene and take the knife if he
did not think his conduct was wrong. Lynch argues that this was a
misstatement of the law because the mental impairment mitigating factor
“is a sliding consideration,” and the prosecutor argued that it “was a yes or
no proposition.”

¶35          Under § 13-751(G)(1), jurors must consider a “defendant’s
capacity to appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of law.” The State’s remark was not a
misstatement of law, but rather an attempt to point out an inconsistency in
Lynch’s story. The prosecutor was entitled to argue that Lynch committed
the murder and appreciated the wrongfulness of his conduct.

          b. History of substance abuse

¶36           Lynch contends that the prosecutor misstated the law by
arguing that Lynch’s substance abuse was not a mitigating factor, but rather
something that made the crime worse. Lynch did not object at trial.
Substance abuse can be a mitigating factor in capital cases. State v. Kayer,
194 Ariz. 423, 438 ¶ 52, 984 P.2d 31, 46 (1999). But a prosecutor does not
commit misconduct by arguing that a mitigating factor does not warrant

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leniency or that jurors should give it little consideration. State v. Anderson,
210 Ariz. 327, 350 ¶ 97, 111 P.3d 369, 392 (2005), supplemented 211 Ariz. 59,
116 P.3d 1219 (2005); see also State v. Prince, 226 Ariz. 516, 538 ¶ 90, 250 P.3d
1145, 1167 (2011) (no fundamental error where prosecutor argued that
defendant’s bad temper was not sufficiently substantial to warrant leniency
but rather “should be aggravation” where State was precluded from
retrying aggravators). The prosecutor did not commit misconduct by
suggesting that Lynch’s drug use did not warrant leniency.

           c. Pornographic videos

¶37            Lynch claims the prosecutor misstated the law by arguing
that Lynch’s renting pornographic videos “shows a debasement in the part
of [Lynch’s] character. And that has already been found, because this
murder has been found . . . to be especially heinous and depraved.” The
trial court correctly sustained Lynch’s objection to this argument, properly
instructed the jury on the issue, and instructed the jury to disregard
remarks to which the court sustained objections. Lynch has not overcome
the presumption that the jury followed these instructions. See Manuel, 229
Ariz. at 6 ¶ 25, 270 P.3d at 833.

           d. Dysfunctional childhood

¶38           Lynch contends that the prosecutor misstated the law by
arguing that Lynch’s difficult childhood was “so remote” that it was “an
excuse, not a mitigating factor.” Lynch was thirty-nine years old at the time
of the murder. We have held that “[a] difficult or traumatic childhood is a
mitigating circumstance.” Prince, 226 Ariz. at 541 ¶ 109, 250 P.3d at 1170.
Although a defendant does not have to demonstrate a connection between
the mitigating circumstances and the crime, the remoteness or lack of a
connection between the mitigating factor and the crime may make the
mitigating factor less persuasive. Id. Thus, a jury may give less
consideration to a difficult childhood when a defendant is older. See id.
(noting on independent review that “[d]ifficult childhood circumstances
also receive less weight as more time passes between the defendant’s
childhood and the offense”).

¶39           These remarks were not improper. See State v. Villalobos, 225
Ariz. 74, 83 ¶¶ 37–39, 235 P.3d 227, 236 (2010) (reasoning that prosecutor’s
remark that “there is absolutely nothing mitigating about who he is in light

                                       14
                             STATE V. LYNCH
                            Opinion of the Court

of what you’ve seen him do” was not improper); Anderson, 210 Ariz. at 350
¶ 97, 111 P.3d at 392 (“Once the jury has heard all of the defendant’s
mitigation evidence, there is no constitutional prohibition against the State
arguing that the evidence is not particularly relevant or that it is entitled to
little weight.”). Additionally, the court properly instructed the jury on this
mitigating factor, and Lynch has not shown that the jury disregarded the
instruction.

          e. Life as a “free bite of the apple”

¶40           Lynch argues that the prosecutor misstated the law by
arguing that the jury should disregard Lynch’s prison sentences. As
mitigation, Lynch pointed out that he would never leave prison alive
because of his consecutive prison terms. The prosecutor contended that this
argument gave Lynch a “free bite of the apple.” The prosecutor was not
stating the law; rather, he was arguing that the jury should not spare
Lynch’s life merely because he committed other crimes for which he would
have to serve considerable prison time. Moreover, the court properly
instructed the jury on this issue.

          f. (F)(6) aggravator

¶41          Lynch contends that the prosecutor misstated the law by
characterizing the (F)(6) aggravator as involving separate aggravating
factors. During voir dire, the prosecutor told prospective jurors:

       [T]his crime and this is one aggravating factor, was
       committed in an especially cruel, especially heinous or
       especially depraved fashion but the prior jury has already
       found that he was guilty not only of it—even though it’s one
       factor, especially depraved, that’s what they found, it was
       especially heinous.

Lynch objected that the prosecutor was addressing single prongs of the
aggravator. The trial court denied Lynch’s motion to strike the statement,
but told the prosecutor to be clear that it was only one aggravator. The
prosecutor then told prospective jurors that the murder “was found to be
especially heinous, especially cruel and especially depraved.” The trial
judge sustained Lynch’s objection to the use of the word “and.”


                                      15
                              STATE V. LYNCH
                             Opinion of the Court

¶42            In his closing argument, the prosecutor described both
especial cruelty and especial heinousness and indicated that each had
already been established in this case. He then told the jury, “[C]ompare
those three aspects, the murder and the aggravating circumstances, but
there is also this indication that [it] was for pecuniary gain.” Lynch did not
object in the trial court, but now asserts that the prosecutor sought to
indicate three aggravators existed when there were only two. Lynch argues
this was not accidental, citing the prosecutor’s comment that he wished to
call witnesses “to show the four factors [he] proved previously,” his request
to include the definitions of especially cruel, especially heinous, and
especially depraved in the preliminary jury instructions, and his proposed
jury instruction indicating that “Lynch committed the murder in an
especially heinous, cruel and depraved manner.”

¶43           The (F)(6) aggravator is “a single aggravating circumstance
that can be established in alternative ways.” Lynch I, 225 Ariz. at 42 ¶ 84,
234 P.3d at 610. The prosecutor struggled at times during voir dire and
closing argument with the disjunctive “or” and conjunctive “and” in
explaining the (F)(6) aggravator, but Lynch objected to the misstatements
and the trial court had the prosecutor clarify that the (F)(6) aggravator is
only one aggravator. The trial court also properly instructed the jury on the
(F)(6) aggravator. Lynch has not identified any reversible error.

       11. Comment on Lynch not testifying

¶44          The prosecutor, referring to the encounter between Lynch and
Panzarella immediately before the murder, asked the jury in closing
argument, “What’s going on?” and then asked, “Were words exchanged?
Who knows.” Lynch did not object, but now asserts that these comments
were improper because the only people who could have answered those
questions were the victim and Lynch.

¶45             A prosecutor may not comment on a defendant’s decision not
to testify, either directly or indirectly. State v. Rutledge, 205 Ariz. 7, 12 ¶ 26,
66 P.3d 50, 55 (2003). A prosecutor’s statement is a comment on a
defendant’s “protected silence” if a jury would “naturally and necessarily”
perceive it as a comment on a defendant’s failure to testify. Payne, 233 Ariz.
at 514 ¶ 126, 314 P.3d at 1269 (internal quotation marks omitted).




                                        16
                              STATE V. LYNCH
                             Opinion of the Court


¶46            Here, the prosecutor’s statements were proper. They did not
call attention to the fact that Lynch did not testify, but rather pointed out
that the events leading up to the murder were unclear. The jury would not
have “naturally and necessarily” perceived the remarks as a comment on
Lynch’s failure to testify.

       12. Personalization

¶47           Lynch asserts that the prosecutor improperly encouraged the
jurors to put themselves in the victim’s position. During his opening
statement, the prosecutor said:

       So what happens is the defendant then, as Mr. Panzarella sits
       there, goes behind him and begins and cuts his throat from
       ear to ear. The problem of the unfortunate aspect of that,
       because in and of itself, cutting somebody’s throat is a
       horrific, ghastly thing, you can only imagine. I don’t think
       you can even imagine what it’s like for somebody to approach
       you with a knife. You cannot move and you know they’re
       manhandling you and they are going to cut your throat.

The trial court sustained Lynch’s objection and granted his motion to strike.
The prosecutor also quoted a line from a poem indicating that every
person’s death diminishes society as a whole, “so therefore send no one to
find for whom the bell tolls, it tolls for thee.” The prosecutor concluded his
argument by stating that “[the bell] tolls for each and every one of you, in
light of the evidence in this case, to return a verdict of death on Shawn
Patrick Lynch.”

¶48            A prosecutor has wide latitude in closing argument, but may
not make arguments that appeal to the jury’s fear or passion. Morris, 215
Ariz. at 337 ¶ 58, 160 P.3d at 216. This includes inviting jurors to place
themselves in the victim’s position because doing so plays on the jurors’
fear of the defendant or sympathy for the victim. See id. The proper
response to an improper prosecutorial comment is an objection, motion to
strike, and a jury instruction to disregard the stricken comment. See Newell,
212 Ariz. at 403 ¶ 69, 132 P.3d at 847.




                                     17
                             STATE V. LYNCH
                            Opinion of the Court

¶49            The prosecutor’s first comment was improper. By telling the
jurors that they could not know what it was like to be “manhandled” by the
knife-wielding defendant, the prosecutor invited the jurors to place
themselves in the victim’s position and appealed to their fears. But the trial
court properly sustained Lynch’s objection, struck the argument, and told
the jury to disregard it. Given the presumption that jurors follow
instructions, we conclude that this comment did not affect the jury verdict.
See id.

¶50            Because Lynch did not object to the prosecutor’s referencing
the poem at trial, we review for fundamental error. See Morris, 215 Ariz. at
337 ¶ 59, 160 P.3d at 216. Lynch cannot show that the references deprived
him of a fair trial. The prosecutor did not appeal to the jury’s fear of Lynch
or sympathy for the victim or ask the jurors to place themselves in the
victim’s shoes during the murder. Rather, the prosecutor commented that
murder affects society as a whole.

       13. Cumulative misconduct

¶51           Lynch argues that even if none of the individual instances of
prosecutorial misconduct warrants reversal, the cumulative effect requires
reversal, particularly given the prosecutor’s experience and track record of
misconduct. “We consider whether persistent and pervasive misconduct
occurred and whether the cumulative effect of the incidents shows that the
prosecutor intentionally engaged in improper conduct and did so with
indifference, if not a specific intent, to prejudice the defendant.” State v.
Gallardo, 225 Ariz. 560, 570, 242 P.3d 159, 169 (2010) (quoting Morris, 215
Ariz. at 339 ¶ 67, 160 P.3d at 218) (internal quotation marks omitted).

¶52           During this retrial of the penalty phase, the prosecutor
disturbingly made a number of inappropriate comments, prompting valid
objections by Lynch that the trial court sustained. Although the prosecutor
made some improper remarks, they did not amount to persistent and
pervasive misconduct that deprived Lynch of a fair trial. The trial judge
sustained objections to all of the improper comments except, “No, let me
ask you the question.” The court instructed the jury to disregard questions
to which objections were sustained, to only consider testimony, exhibits,
and stipulations as evidence, and that attorneys’ remarks are not evidence.
We presume that jurors follow instructions, Manuel, 229 Ariz. at 6 ¶ 25, 270
P.3d at 833, and any cumulative prejudice resulting from the prosecutor’s

                                     18
                              STATE V. LYNCH
                             Opinion of the Court

remarks is insufficient to overcome this presumption. See Gallardo, 225 Ariz.
at 569 ¶ 40, 242 P.3d at 168 (reasoning that similar instructions cured any
prejudice). Given these instructions, and that the “let me ask you the
question” remark was the only improper comment to which the court
overruled Lynch’s objection, the prosecutor’s conduct did not deny Lynch
a fair trial. As to the statements to which Lynch did not object, we have
concluded that Lynch failed to prove fundamental error. We consider these
statements as well in our conclusion that prosecutorial misconduct, while
present in some instances, was not so pronounced or sustained as to require
a new sentencing trial.

   B. Limiting Retrial to Penalty Phase and Preclusion of Guilty
      Verdict

¶53            Lynch claims that the trial court erred when it denied his
motion to retry the aggravation phase and prohibited him from offering the
guilty verdict as an exhibit during the penalty-phase retrial. He contends
that these errors deprived him of an individualized sentencing because they
denied the jury an adequate opportunity to evaluate the evidence
supporting the aggravating circumstances and established a presumption
of death. We review the interpretation of statutes and constitutional
provisions de novo, State v. Hansen, 215 Ariz. 287, 289 ¶ 6, 160 P.3d 166, 168
(2007), and evidentiary rulings for an abuse of discretion. State v. Benson,
232 Ariz. 452, 466 ¶ 58, 307 P.3d 19, 33 (2013).

¶54            Following Lynch’s second penalty-phase trial, we reversed
Lynch’s death sentence and remanded for a new penalty-phase proceeding.
Lynch I, 225 Ariz. at 43 ¶ 89, 234 P.3d at 611. We ordered the trial court to
instruct the jury “that the (F)(5) and (F)(6) aggravators have been previously
found and that it is not to retry those issues.” Id. (citing A.R.S. § 13-752(K)).
Relying on this language, the trial court on remand denied Lynch’s request
for an aggravation-phase retrial.




                                       19
                             STATE V. LYNCH
                            Opinion of the Court


¶55           Section 13-752(K) provides:

       At the penalty phase, if the trier of fact is a jury and the jury
       is unable to reach a verdict, the court shall dismiss the jury
       and shall impanel a new jury. The new jury shall not retry the
       issue of the defendant’s guilt or the issue regarding any of the
       aggravating circumstances that the first jury found by
       unanimous verdict to be proved or not proved. If the new
       jury is unable to reach a unanimous verdict, the court shall
       impose a sentence of life or natural life on the defendant.

A.R.S. § 13-752(K). Lynch contends that § 13-752(K) only applies when a
jury is unable to decide upon a penalty, and § 13-752(N) applies when a
death sentence has been vacated. Under § 13-752(N), “[i]f the sentence of a
person who was sentenced to death is overturned, the person shall be
resentenced pursuant to this section by a jury that is specifically impaneled
for this purpose as if the original sentencing had not occurred.” Lynch
argues that because the aggravation phase is part of the sentencing
proceeding, A.R.S. § 13-752(C), both the aggravation and penalty phases
should have been retried. The State responds that the error this Court
previously found in Lynch I was only in the penalty phase, not the entire
sentencing proceeding, and reading the statute as a whole, this Court
properly remanded for a trial of only the penalty phase.

¶56             There are two provisions of § 13-752 that inform our analysis.
As noted above, § 13-752(N) provides that, “[i]f the sentence of a person
who was sentenced to death is overturned, the person shall be resentenced
pursuant to this section . . . as if the original sentencing had not occurred.”
Based on this language, Lynch argues he was entitled to an entirely new
sentencing proceeding. See A.R.S. § 13-752(C), (D) (indicating that a
“sentencing proceeding” consists of both the aggravation and penalty
phases). But under § 13-752(O), a defendant whose sentence is overturned
must simply be “resentenced . . . by a jury that is specifically impaneled”
for that purpose. See A.R.S. § 13-752(D) (“If the trier of fact finds that one
or more of the alleged aggravating circumstances have been proven, the
trier of fact shall then immediately determine whether the death penalty
should be imposed. This proceeding is the penalty phase of the sentencing
proceeding.”). Thus, the statute’s text leaves it unclear when a defendant
is entitled to an entirely new sentencing proceeding, and when a defendant

                                      20
                             STATE V. LYNCH
                            Opinion of the Court

is entitled to only a new penalty-phase proceeding. We conclude, as we did
in Lynch I, that Lynch was entitled only to a new penalty-phase proceeding.

¶57           The history of § 13-752 suggests that subsection (N) applies
only to a particular subset of sentences overturned on appeal. The United
States Supreme Court decided in Ring v. Arizona (Ring II), 536 U.S. 584
(2002), that Arizona’s capital-sentencing scheme violated the Sixth
Amendment because judges, rather than juries, found aggravating factors
that made defendants death eligible. Id. at 609. This opinion left a large
number of capital cases in flux, particularly those cases where defendants
had not exhausted their appeals. See State v. Ring (Ring III), 204 Ariz. 534,
544 ¶ 5, 65 P.3d 915, 925 (2003) (“At the time of the Ring II decision, thirty-
one defendants sentenced to death had matters pending on direct appeal
before this court.”). In response, the legislature passed an emergency
measure, S.B. 1001, to bring Arizona’s death penalty statutes into
compliance with Ring II. Id. at 545 ¶ 13, 65 P.3d at 926. By using the
language “a person who was sentenced to death,” the legislature intended
for subsection (N) to be a limited solution for Ring II-defective sentences. A
defendant who “was sentenced” to death after a judge found aggravating
circumstances was entitled to an entirely new sentencing proceeding,
unless this Court found the Ring error to be harmless beyond a reasonable
doubt, because an error of constitutional significance tainted the aggravation
phase of every such case. Thus, the legislature instructed the courts to act
as if the original sentencing simply “had not occurred” and to start the
sentencing process over again. A.R.S. § 13-752(N).

¶58           Subsection (O), on the other hand, is more general and
pertains to sentences overturned for any reason. This subsection does not
instruct the courts that they must act as if the original sentencing had not
occurred, but rather directs them to simply sentence or resentence a
defendant as appropriate to remedy a sentencing error. A.R.S. § 13-752(O).
This Court “may reverse, affirm or modify the judgment appealed from,
and may grant a new trial or render any judgment or make any order which
is consistent with the justice and the rights of the state and the defendant.”
A.R.S. § 13-4036. Arizona’s sentencing statute seeks to avoid retrials of
proceedings untainted by error. A.R.S. § 13-752(J) (providing that, where a
jury cannot reach a verdict on aggravating circumstances, “[t]he new jury
shall not retry the issue of the defendant’s guilt”); A.R.S. § 13-752(K)
(providing that, where a jury cannot reach a verdict in the penalty phase,
“[t]he new jury shall not retry the issue of the defendant’s guilt or the issue

                                      21
                              STATE V. LYNCH
                             Opinion of the Court

regarding any of the aggravating circumstances that the first jury found by
unanimous verdict to be proved or not proved”). Requiring a retrial of the
entire sentencing proceeding when the error occurred only during the
penalty phase would undermine the statute’s purpose.

¶59           We limited the retrial to the penalty phase because Lynch’s
original sentence was not reversed for a Ring II-defective sentence or any
other error in the aggravation phase. Rather, the error arose from an
improper penalty-phase instruction. Lynch I, 225 Ariz. at 42–43 ¶ 88, 234
P.3d at 610–11. Limiting the retrial to the penalty phase was consistent with
justice and the rights of the parties.

¶60            Likewise, limiting the retrial to the penalty phase did not
deprive Lynch of an individualized sentencing. “[D]uring a second penalty
phase, the state and the defendant may introduce evidence pertaining to
the aggravating circumstances previously found” because aggravation-
phase evidence is “directly relevant to whether the mitigation is
‘sufficiently substantial to call for leniency.’” Prince, 226 Ariz. at 526 ¶¶ 16,
18, 250 P.3d at 1155 (quoting A.R.S. § 13-752(G)). This affords jurors
sufficient opportunity to evaluate the aggravating circumstances when
determining whether death is the appropriate penalty. During Lynch’s
penalty-phase retrial, the jury heard abundant testimony concerning the
circumstances of the offense and the aggravating factors, and Lynch was
free to offer additional evidence from the guilt and aggravation phases. He
was not entitled, however, to retry the aggravation phase when no error
occurred in that proceeding.

¶61           Precluding the guilty verdict from evidence likewise did not
deprive Lynch of an individualized sentencing. Lynch contends the fact
that most of the jurors found him guilty only of felony murder, not
premeditated murder, was relevant as a mitigating circumstance. The trial
court did not abuse its discretion in ruling that the verdict form was “not
related to any aspect of the defendant’s character, propensities or record, or
circumstances of the offense.” Neither the guilty-verdict form nor the
jurors’ votes provided evidence of the circumstances of the murder.

   C. Refusal to Give Simmons Instruction

¶62            Lynch next contends the trial court erred in refusing to
instruct the jury that he would never be released if sentenced to prison. He

                                       22
                              STATE V. LYNCH
                             Opinion of the Court

attempted to waive his right to be considered for a release-eligible sentence
and requested that the jury be instructed regarding his ineligibility for
release. The trial court ruled that Lynch could not “unilaterally choose
which sentence should be imposed” and denied his motion.

¶63             We review jury instructions and alleged constitutional
violations de novo. State v. Nelson, 229 Ariz. 180, 185 ¶ 21, 273 P.3d 632, 637
(2012); State v. McGill, 213 Ariz. 147, 157–58 ¶ 45, 140 P.3d 930, 940–41 (2006).
But we review a court’s refusal to inform the jury of the defendant’s
willingness to waive parole eligibility for an abuse of discretion. Benson,
232 Ariz. at 465 ¶ 52, 307 P.3d at 32.

¶64           The United States Supreme Court has held 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.” Simmons v. South
Carolina, 512 U.S. 154, 156 (1994) (plurality opinion). The State suggested at
trial that Lynch could be dangerous. Further, parole is available only to
individuals who committed a felony before January 1, 1994, and juveniles.
A.R.S. § 41-1604.09(I).

¶65            Parole eligibility is not a right that can be waived. Benson, 232
Ariz. at 465 ¶ 54, 307 P.3d at 32. To the contrary, the eligibility decision is
within the trial court’s discretion. Id.; see also State v. Dann, 220 Ariz. 351,
373 ¶ 124, 207 P.3d 604, 626 (2009) (holding that defendants may not
“presentence” themselves). The sentencing statute in effect at the time of
the murder authorized the imposition of release-eligible sentences. A.R.S.
§ 13-703(A) (renumbered as A.R.S. § 13-751(A)). The trial judge thus
properly instructed the jury that she could impose a release-eligible
sentence if the jury did not return a death verdict. “Simmons applies only
to instances where, as a legal matter, there is no possibility of parole if the
jury decides the appropriate sentence is life in prison.” Ramdass v. Angelone,
530 U.S. 156, 169 (2000) (emphasis added). Because § 13-703(A) permitted
the possibility of Lynch obtaining release, refusing a Simmons instruction
was not error. See Benson, 232 Ariz. at 465 ¶ 56, 307 P.3d at 32. An
instruction that parole is not currently available would be correct, but the
failure to give the Simmons instruction was not error.

¶66           Further, the alternative instruction Lynch offered was
inaccurate. Instead of merely instructing on the unavailability of parole, it

                                       23
                             STATE V. LYNCH
                            Opinion of the Court

would have informed the jury, “If your verdict is that Mr. Lynch should be
sentenced to life . . . the court will sentence him to natural life which means
Mr. Lynch would never be released from prison for his entire life.” As
discussed, the court could have imposed a release-eligible sentence. Even
if parole remained unavailable, Lynch could have received another form of
release, such as executive clemency. We have previously rejected a
similarly overbroad instruction. State v. Boyston, 231 Ariz. 539, 552–53 ¶ 67–
68, 298 P.3d 887, 900–01 (2013) (rejecting instruction that defendant would
“never be eligible to be released from prison for any reason for the rest of
his life” because it “referred more broadly to any form of release or
commutation of sentence”).

   D. Batson Challenge

¶67           Lynch next argues the trial court violated Batson v. Kentucky,
476 U.S. 79 (1986), when it permitted the State to strike five Hispanic jurors
over his objection. “A denial of a Batson challenge will not be reversed
unless clearly erroneous.” Newell, 212 Ariz. at 400 ¶ 52, 132 P.3d at 844. We
defer to the trial court’s ruling regarding the State’s motives for a
peremptory strike, State v. Garcia, 224 Ariz. 1, 10 ¶ 22, 226 P.3d 370, 379
(2010), and review the trial court’s application of the law de novo. Newell,
212 Ariz. at 401 ¶ 52, 132 P.3d at 845.

¶68           The State used five of its ten peremptory strikes on
prospective jurors 8, 32, 34, 49, and 255, all of whom identified themselves
as Hispanic. The prosecutor explained that Number 255 “indicated that she
is philosophically opposed to the death penalty” and could not explain
“why she believed that life was preferable to death.” Number 49 had
previously served on two hung juries, and the State argued she would cause
the Lynch jury to hang, which would prevent the State from retrying the
case. Number 34 had tattoos on his legs and arm, and one of Lynch’s
mitigating circumstances was that he had hepatitis C—which he contracted
when he received a tattoo—and the State did not want a juror on the panel
who could identify with Lynch. The prosecutor claimed that Number 32
had “facial hair resembl[ing] ZZ Top” and a long ponytail “like Jerry
Garcia,” which motivated striking that juror. The State noted that it also
struck a white juror with long hair and facial hair. Number 8 “had a brother
who was convicted of child abuse, and she was pretty unhappy.” The State
referred to Lynch’s allegation that he had been abused. The trial court
found that the State’s reasons for striking the prospective jurors were race

                                      24
                             STATE V. LYNCH
                            Opinion of the Court

neutral. Lynch responded that the State’s reasons for striking Numbers 32
(long hair and facial hair) and 34 (tattoos) did not justify the strikes.

¶69            “[T]he Equal Protection Clause forbids the prosecutor to
challenge potential jurors solely on account of their race . . . .” Batson, 476
U.S. at 89. Batson challenges are subject to the following three-step analysis:

       (1) the party challenging the strike must make a prima facie
       showing of discrimination; (2) the striking party must provide
       a race-neutral reason for the strike; and (3) if a race-neutral
       explanation is provided, the trial court must determine
       whether the challenger has carried its burden of proving
       purposeful racial discrimination.

Garcia, 224 Ariz. at 10, 226 P.3d at 379 (quoting State v. Canez, 202 Ariz. 133,
146 ¶ 22, 42 P.3d 564, 577 (2002)). “[T]he ultimate burden of persuasion
regarding racial motivation rests with, and never shifts from, the opponent
of the strike.” Id. (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995) (per
curiam)). A peremptory strike does not violate Batson where the
prosecutor’s explanation is facially race neutral and the defendant “offer[s]
no evidence, other than inference, to show that the peremptory strike was
a result of purposeful racial discrimination.” Newell, 212 Ariz. at 402 ¶ 58,
132 P.3d at 846.

¶70            The trial court found that the State’s proffered reasons for the
strikes were race neutral, implicitly ruling that Lynch did not carry his
burden of proving purposeful racial discrimination. The fact that the State
did not ask voir dire questions related to Juror 32’s long hair and facial hair
or Juror 34’s tattoos does not establish that the strikes were pretextual. See
Canez, 202 Ariz. at 145 ¶ 18, 42 P.3d at 576 (affirming trial court’s denial of
Batson challenge even though the defendant argued the State’s justification
was pretextual because it did not ask follow-up questions). The court did
not err.

   E. Denial of Motion to Strike Juror 5

¶71           Lynch contends the trial court erred in refusing to strike Juror
5, who had previously worked at the same hospital as one of the State’s
witnesses, Dr. Vincent Honan. Lynch bore “the burden of establishing that
the juror [wa]s incapable of rendering a fair and impartial verdict.” State v.

                                      25
                              STATE V. LYNCH
                             Opinion of the Court

Lavers, 168 Ariz. 376, 390, 814 P.2d 333, 347 (1991). This Court does not set
aside a trial court’s refusal to strike a juror “absent a clear showing that the
court abused its discretion.” Id.

¶72            The State called Honan, a gastroenterologist who worked at
Banner Good Samaritan Hospital, to testify about hepatitis C, the liver, and
Lynch’s life expectancy. Juror 5 sent the trial judge a letter explaining that
she previously worked in the medical surgical ICU at Banner Good
Samaritan and recognized Honan. Juror 5 “had no direct dealings with Dr.
Honan,” but thought “the surgeons that work at Good Sam are excellent
surgeons.” She indicated that she could still be fair in Lynch’s case. After
reviewing Juror 5’s questionnaire and considering her responses in open
court, the trial judge denied Lynch’s motion to strike Juror 5.

¶73            A court is obligated to excuse a juror who cannot render a fair
and impartial verdict. Ariz. R. Crim. P. 18.4(b); see also A.R.S. § 21-211. We
examine three factors when determining if a juror may continue to serve
after that juror’s objectivity is challenged: (1) the nature of the relationship
between the witness and the juror; (2) whether the juror will properly assess
the testimony; and (3) the importance of the testimony and whether the
testimony was disputed. Bible, 175 Ariz. at 574, 858 P.2d at 1177.

¶74           The relationship between Juror 5 and the witness was not
sufficient to warrant dismissal. Although knowledge of or professional
acquaintance with a witness calls a juror’s objectivity into question, it does
not require automatic disqualification. See Hill, 174 Ariz. at 319–20, 848 P.2d
at 1381–82 (finding no abuse of discretion in not dismissing juror who was
professionally acquainted with prosecutor, investigator, and coroner
involved in the case). Here, Juror 5 only recognized Honan as someone she
had seen at the hospital where she no longer worked. Juror 5 stated that,
although she may have worked on some of Honan’s patients, her dealings
were with his surgical residents and not with him.

¶75             Second, Juror 5 assured the court that her knowledge of
Honan would not prevent her from examining the evidence objectively.
Although this is not conclusive, it weighs heavily against dismissal absent
any indicia that the juror could not objectively analyze the evidence. See,
e.g., id. at 320–21, 848 P.2d at 1382–83; Bible, 175 Ariz. at 574–75, 858 P.2d at
1177–78. Although Juror 5 indicated that she thought all the surgeons at
Good Samaritan were “excellent,” she repeatedly affirmed that this would

                                       26
                              STATE V. LYNCH
                             Opinion of the Court

not taint her decision-making. The trial court did not abuse its discretion
in refusing to strike Juror 5.

   F. Constitutionality of Arizona’s Death Penalty

¶76          Lynch contends that Arizona’s death penalty is
unconstitutional because it involves torture and a lingering death. He cites
the “botched” lethal injection of Joseph Wood III as support for the
contention that Arizona cannot humanely implement the death penalty.

¶77            The United States and Arizona Constitutions prohibit cruel
and unusual punishment. U.S. Const. amend. VIII; Ariz. Const. art. 2, § 15.
Punishment involving “torture or a lingering death” is cruel. In re Kemmler,
136 U.S. 436, 447 (1890). This Court and the United States Supreme Court
have rejected the argument that lethal injection is cruel and unusual
punishment. See, e.g., Glossip v. Gross, 135 S. Ct. 2726, 2738 (2015); Baze v.
Rees, 553 U.S. 35, 41 (2008); State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d 602,
610 (1995).

¶78             We decline to reverse our prior rulings on this
issue. Moreover, Lynch’s challenge to the current execution protocol is
premature and may instead be raised in Rule 32 proceedings. State v. Kiles
(Kiles II), 222 Ariz. 25, 42 ¶ 92 n.20, 213 P.3d 174, 191 n.20 (2009) (quoting
Andriano, 215 Ariz. at 510 n.9, 161 P.3d at 553 n.9). Lynch’s objections to the
current injection procedure—the lack of transparency and the protocol to
be used—involve information not contained in the record on appeal and
are more properly raised in a Rule 32 petition. See State v. Walton, 164 Ariz.
323, 328, 793 P.2d 80, 85 (1990) (“One of the purposes of a Rule 32
proceeding ‘is to furnish an evidentiary forum for the establishment of facts
underlying a claim for relief, when such facts have not previously been
established of record.’” (quoting State v. Scrivner, 132 Ariz. 52, 54, 643 P.2d
1022, 1024 (App. 1982))).

   G. Independent Review

¶79           Lynch next argues the mitigation evidence he presented is
sufficiently substantial to call for leniency. Because Lynch’s crimes
occurred before 2002, we “independently review the trial court’s findings
of aggravation and mitigation and the propriety of the death sentence.”
A.R.S. § 13-755(A). In doing so, we review the record de novo, considering

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                            Opinion of the Court

“the quality and the strength, not simply the number, of aggravating and
mitigating factors.” State v. Roseberry, 210 Ariz. 360, 374 ¶ 77, 111 P.3d 402,
416 (2005) (quoting State v. Greene, 192 Ariz. 431, 443 ¶ 60, 967 P.2d 106, 118
(1998)). When “there is a doubt whether the death sentence should be
imposed, we will resolve that doubt in favor of a life sentence.” State v.
Carlson, 202 Ariz. 570, 588 ¶ 70, 48 P.3d 1180, 1198 (2002).

       1. Aggravation

          a. (F)(5)

¶80             An aggravating circumstance is established when “[t]he
defendant committed the offense as consideration for the receipt, or in
expectation of the receipt, of anything of pecuniary value.” A.R.S. § 13-
751(F)(5). A murder must be “prompted by the desire for pecuniary gain”
for the (F)(5) aggravator to apply. Anderson, 210 Ariz. at 351 ¶ 105, 111 P.3d
at 393.

¶81           After initially leaving Panzarella’s residence, Lynch and
Sehwani used his American Express card at two stores and attempted to
use it at a third. Panzarella reported the card as lost, and Lynch and
Sehwani returned to Panzarella’s residence, tied him to a chair, and killed
him. Panzarella’s debit card and credit card were then repeatedly used,
including to secure charges at a motel room registered in Lynch’s name.
Authorities found Panzarella’s gun and magazine in Lynch’s motel room
and Panzarella’s car keys in the truck Lynch was entering at the time of his
arrest. These facts establish that Lynch and Sehwani returned to
Panzarella’s residence intending to steal more and to murder Panzarella to
avoid detection. The (F)(5) aggravator was established.

          b. (F)(6)

¶82              Under A.R.S. § 13-751(F)(6), an aggravating circumstance is
established when “[t]he defendant committed the offense in an especially
heinous, cruel or depraved manner.” A murder is especially cruel if “the
victim was conscious during the violence and . . . the defendant knew or
should have known that the victim would suffer mental anguish or physical
pain.” State v. Hargrave, 225 Ariz. 1, 13 ¶ 43, 234 P.3d 569, 581 (2010).
“Mental anguish” includes a victim’s uncertainty about his fate. State v.
Kiles (Kiles I), 175 Ariz. 358, 371, 857 P.2d 1212, 1225 (1993).

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                             Opinion of the Court

¶83             Panzarella’s spinal column was not cut, so his nervous system
remained intact and he felt pain from the time his throat was cut until he
lost consciousness. Panzarella also experienced mental anguish. The
evidence demonstrated that he was conscious when bound to the chair. The
cord used to bind Panzarella was tied in a large number of knots that were
“fairly secured,” indicating that Panzarella had ample time to contemplate
his fate. Ligatures, abrasions, and bruising on Panzarella’s wrists, hands,
forearm, shoulder blade, back, and chest indicate that he struggled. See
State v. Djerf, 191 Ariz. 583, 596 ¶ 50–51, 959 P.2d 1274, 1287 (1998) (inferring
mental anguish from contusions and abrasions on victim’s wrists). The
murder was especially cruel, so the (F)(6) aggravator was established.

       2. Mitigation

           a. Medical condition

¶84            Lynch emphasizes his medical condition as a reason for
leniency. Dr. Altschuler testified at length about Lynch’s hepatitis C and
complications thereof, including cellulitis in his legs from a bacterial
infection, the possibility that he could lose his legs, his several
hospitalizations for encephalopathy, and his diminished life expectancy.
Defense counsel argued that Lynch would die in prison because of his
medical condition and his 21-year sentence for the non-capital offenses.
The State’s expert, Dr. Honan, agreed that Lynch has “significant chronic
liver disease,” but did not “see negative prognostic indicators to suggest
that he is terminally ill.”

¶85           Although there need not be a nexus between mitigation and
the crime in order for mitigation to be considered, “failure to establish such
a causal connection may be considered in assessing the quality and strength
of the mitigation evidence.” Newell, 212 Ariz. at 405 ¶ 82, 132 P.3d at 849.
We assign minimal mitigating value to a defendant’s post-murder physical
health because it “does not address his pre-murder character, nor does it
address his propensities, his record, or the circumstances of the offense.”
Kayer, 194 Ariz. at 440 ¶ 61, 984 P.2d at 48.

¶86          Here, Lynch’s medical condition is a mitigating circumstance
of only minimal value. The defense suggested that he obtained hepatitis C
from receiving a tattoo in jail after the murder, so his medical condition is
not probative of his character, propensities, or record at the time of the

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                             Opinion of the Court

murder or the circumstances of the offense. Further, we afford minimal
value to the fact that a defendant will remain imprisoned for the rest of his
life. State v. Lehr, 227 Ariz. 140, 155 ¶ 78, 254 P.3d 379, 394 (2011) (reasoning
that the fact that a defendant “would remain imprisoned for his natural life
if he is not sentenced to death” is entitled to little mitigating value).

           b. Killer unknown

¶87           “[P]articipation in a crime may be considered as mitigation
where a defendant demonstrates that while he was legally accountable for
the conduct of another, his participation in the crime was relatively minor.”
State v. Hoskins, 199 Ariz. 127, 150 ¶ 100, 14 P.3d 997, 1020 (2000),
supplemented 204 Ariz. 572, 65 P.3d 953 (2003). The evidence demonstrated
that Lynch was a major participant in the crime. The American Express
receipts discovered in Panzarella’s residence indicate that Lynch and
Sehwani returned after Panzarella reported the card lost. Property
belonging to Panzarella was located in Lynch’s motel room and in the truck
Lynch was entering at the time of his arrest. There was also ample evidence
indicating that Lynch was the killer. The evidence showed that the person
who cut Panzarella’s throat was standing behind Panzarella, the blood on
Lynch’s shoes was consistent with him standing in that position, and the
footwear impressions at the crime scene were consistent with Lynch’s
shoes.    Lynch’s alleged minimal participation is not a mitigating
circumstance.

           c. Disparity in sentence

¶88            “A disparity in sentences between codefendants and/or
accomplices can be a mitigating circumstance if no reasonable explanation
exists for the disparity.” Garcia, 224 Ariz. at 21 ¶ 98, 226 P.3d at 390 (quoting
Kayer, 194 Ariz. at 439 ¶ 57, 984 P.2d at 47). Disparity is not mitigating if it
results from factors suggesting the appropriateness of the sentences, such
as a difference in culpability or “an appropriate plea agreement with one of
the defendants.” State v. Detrich, 188 Ariz. 57, 69, 932 P.2d 1328, 1340 (1997).
Here, evidence suggested that Lynch was the killer, and Sehwani received
a life sentence as a result of a plea agreement. Sentencing disparity is not a
mitigating circumstance here.




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                             Opinion of the Court


           d. Drug abuse

¶89           Lynch argues that his drug use is both a statutory and non-
statutory mitigating circumstance. A mitigating circumstance is proven if
“[t]he defendant’s capacity to appreciate the wrongfulness of his conduct
or to conform his conduct to the requirements of law was significantly
impaired, but not so impaired as to constitute a defense to prosecution.”
A.R.S. § 13-751(G)(1). Lynch asserts that drug use impaired his ability to
appreciate wrongfulness. In such a case, the defendant must show some
relationship between drug use and the offense to avail himself of the (G)(1)
mitigating circumstance. State v. Murdaugh, 209 Ariz. 19, 34 ¶ 74, 97 P.3d
844, 859 (2004); see also State v. Sansing, 206 Ariz. 232, 239–40 ¶¶ 28–29, 77
P.3d 30, 37–38 (2003) (finding failure to prove (G)(1) factor where defendant
presented “only minimal testimony about his drug use on the day of the
murder”).

¶90           Lynch presented evidence that he suffered from drug and
alcohol abuse and that he used drugs around the time of the offense. He
also explained how crack cocaine use affects the brain. Lynch failed to show
a relationship between his drug and alcohol use and the offense, however,
other than merely suggesting that he used crack cocaine near the time of the
murder. Any drug use is therefore entitled to minimal mitigating value.

¶91           As to non-statutory mitigation, Lynch’s drug abuse is entitled
to minimal value. Even if a defendant establishes his drug addiction, we
give minimal value to this evidence if he “‘fail[s] to tie his . . . drug abuse to
the crime or to his mental functioning’ when the murder occurred.” Garcia,
224 Ariz. at 22 ¶ 104, 226 P.3d at 391 (quoting State v. Pandeli, 215 Ariz. 514,
532 ¶ 75, 161 P.3d 557, 575 (2007)). Although Lynch showed that he abused
drugs, he did not tie his drug abuse to the crime other than by stating
generally that crack cocaine use causes delusional thinking. Lynch’s drug
abuse deserves little value as a mitigator.

           e. Dysfunctional childhood and abuse

¶92          Lynch presented evidence that he was raised in a
dysfunctional family where he was physically and emotionally abused, his
parents neglected him, and his parents were alcoholics. A difficult
childhood may be a mitigating circumstance, but we give it little value

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                              Opinion of the Court

“absent a showing that it affected the defendant’s conduct in committing
the crime.” Garcia, 224 Ariz. at 22 ¶ 107, 226 P.3d at 391. The amount of
time that has passed since the defendant’s childhood is relevant. Prince, 226
Ariz. at 541–42 ¶ 111, 250 P.3d at 1170–71 (“Prince was twenty-six years old
when he killed Cassandra, attenuating the impact of his dysfunctional
childhood on his conduct.”); Garcia, 224 Ariz. at 22 ¶ 107, 226 P.3d at 391
(affording little value to difficult family background because defendant was
thirty-nine at the time of the murder and “no evidence linked his childhood
experiences to the murder”); State v. Ellison, 213 Ariz. 116, 144 ¶ 136, 140
P.3d 899, 927 (2006) (reasoning that “childhood troubles deserve[d] little
value as a mitigator for the murders [defendant] committed at age thirty-
three”).

¶93         Here, Lynch was thirty-nine years old at the time of the
murder. He failed to establish that his childhood affected his conduct.
Lynch’s dysfunctional family background deserves little value as a
mitigator.

           f. Brother’s death

¶94           Lynch also asserts that the drug-overdose death of his
brother, Donald, is a mitigating factor. Donald died after the murder, so his
death deserves little value as mitigation. See Newell, 212 Ariz. at 405 ¶ 82,
132 P.3d at 849 (reasoning that even though we do not require a nexus
between the mitigation and the crime before we consider mitigation
evidence, the absence of “such a causal connection may be considered in
assessing the quality and strength of the mitigation evidence”).

           g. Lack of future dangerousness and other sentences

¶95            Lynch also presented evidence that he would not be a danger
to prison staff, inmates, or the general public if he received a life sentence.
He also offered as mitigation his twenty-one-year sentence for the non-
capital crimes that would run consecutively to the sentence he received for
the first-degree murder. We “accord minimal weight to the prospect that
[a defendant] will be a ‘model prisoner’” because “[a]ll prisoners are
expected to behave in prison.” Lehr, 227 Ariz. at 155 ¶ 78, 254 P.3d at 394.
The fact that a defendant “would remain imprisoned for his natural life if
he is not sentenced to death” is also entitled to little value. Id.; see also Garcia,
224 Ariz. at 22 ¶ 108, 226 P.3d at 391 (affording minimal value to

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                          Opinion of the Court

defendant’s argument that he posed no risk of future dangerousness
because he would never be released from prison). We give Lynch’s low risk
of misbehavior in prison and consecutive non-capital sentences little value
as mitigation.

      3. Propriety of death sentence

¶96            In light of the (F)(5) and (F)(6) aggravating circumstances,
which reflected an especially cruel murder committed for pecuniary gain,
we conclude that Lynch has not identified mitigating circumstances
sufficiently substantial to call for leniency.

                         III.   CONCLUSION

¶97          For the reasons stated, we affirm Lynch’s death sentence.3




3     Lynch raises twenty-six additional constitutional claims that he
acknowledges this Court has previously rejected but that he wishes to
preserve for federal review. We decline to revisit these claims.
                                    33
