                                                                    FILED BY CLERK
                             IN THE COURT OF APPEALS                    JUN 29 2007
                                 STATE OF ARIZONA                       COURT OF APPEALS
                                   DIVISION TWO                           DIVISION TWO




THE STATE OF ARIZONA,                        )
                                             )
                                Appellee,    )        2 CA-CR 2005-0320
                                             )        DEPARTMENT A
                      v.                     )
                                             )        OPINION
ZACHARY SAMUEL EGGERS,                       )
                                             )
                                Appellant.   )
                                             )


          APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY

                                Cause No. CR200301056

                           Honorable Stephen M. Desens, Judge

                                      AFFIRMED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Alan L. Amann                                          Tucson
                                                                Attorneys for Appellee

Harriette P. Levitt                                                            Tucson
                                                                Attorney for Appellant


V Á S Q U E Z, Judge.
¶1            A jury found Zachary Samuel Eggers guilty of two counts of first-degree

murder, and the trial court sentenced him to two, consecutive, natural life terms of

imprisonment. On appeal, he asserts that A.R.S. § 13-501, Arizona’s automatic filing statute

that requires juveniles charged with certain crimes to be tried as adults, violates his state and

federal due process rights; the trial court’s refusal to suppress his confessions constitutes

reversible error; and natural life sentences for juveniles constitute cruel and unusual

punishment. For the reasons discussed below, we affirm.

                         I. Factual and Procedural Background

¶2            We view the facts and all reasonable inferences therefrom in the light most

favorable to upholding the convictions. See State v. Carlos, 199 Ariz. 273, ¶ 2, 17 P.3d

118, 120 (App. 2001). On Monday, December 8, 2003, Bradley Eggers, Sr. left work

around noon to have lunch with his wife Delyn Eggers. Both were employed by the

Department of Corrections, but worked different shifts. Bradley did not return to work that

day, and both failed to show up for work or call the next day. When they did not come to

work or call on Wednesday, a coworker contacted the sheriff’s department to request a

“welfare check.”

¶3            Deputies contacted Joshua, Bradley and Delyn’s youngest son, and Michele,

a cousin who had been living with the Eggers family, at school. Deputies later contacted

Zachary, then sixteen years old, at the school. All three separately accompanied the

deputies to the Eggerses’ residence, and Joshua let detectives into the house to conduct the


                                               2
welfare check. After finding nothing that indicated Bradley’s and Delyn’s whereabouts, the

detectives obtained a warrant to search the property. In Zachary’s room, the detectives

found his father’s wallet, his mother’s purse, a 12-gauge shotgun, $77 in cash, and a brick

of marijuana. The single fingerprint later found on the gun matched Zachary’s right little

finger.

¶4             After concluding their search of the house that evening, detectives took

Zachary, Joshua, and Michele to the sheriff’s department substation where they were

individually questioned about Bradley’s and Delyn’s disappearance. Zachary’s adult older

brother, Bradley Eggers, Jr. (Bradley Jr.) had been notified of his parents’ disappearance and

was asked to meet the detectives at the family residence. The detectives also asked him to

be present at the substation while they interviewed Joshua, Michele, and Zachary, none of

whom was given Miranda1 warnings prior to being interviewed. Approximately thirty

minutes into his interview, Zachary confessed to murdering his parents. Detectives

immediately stopped the interview, administered Miranda warnings, and resumed

questioning one minute later. Zachary then gave a detailed account of the murders and told

detectives where he had buried his parents’ bodies on the Eggerses’ property. He was then

arrested and charged with two counts of first-degree murder. A jury found him guilty of

both counts, and after a sentencing hearing, the court sentenced him to natural life in prison.

This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21 and 13-4033.


          1
          Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

                                              3
                             II. The Automatic Filing Statute

¶5            Eggers challenges the constitutionality of Arizona’s automatic filing statute,

A.R.S. § 13-501(A), which mandates a county attorney to “bring a criminal prosecution

against a juvenile in the same manner as an adult” when the juvenile is fifteen, sixteen, or

seventeen years of age and is charged with certain violent crimes, including first-degree

murder. He argues the automatic filing of charges against juveniles in adult court violates

federal and state constitutional prohibitions against cruel and unusual punishment and his

state and federal due process rights because it fails to require “individualized consideration”

of a juvenile before permitting the juvenile to be tried as an adult.2

¶6            We review a statute’s constitutionality de novo. State v. Korzuch, 186 Ariz.

190, 192, 920 P.2d 312, 314 (1996). “There is a strong presumption supporting the

constitutionality of statutes, and the party challenging the validity of a statute has the burden

to establish its invalidity beyond a reasonable doubt.” State v. Padilla, 169 Ariz. 70, 71,

817 P.2d 15, 16 (App. 1991).


       2
        Eggers asserts the statute violates amendments V, VI, VIII, and XIV to the United
States Constitution and article II, §§ 4, 11, 15, 23, and 24 of the Arizona Constitution.
However, he specifically supports only Eighth Amendment and due process claims in his
brief. Additionally, Eggers’s argument that A.R.S. § 13-501 violates the Eighth Amendment
because it fails to require transfer hearings is indistinct from his argument that natural life
sentences for juveniles are unconstitutional. Cf. State v. Davolt, 207 Ariz. 191, ¶¶ 97-109,
84 P.3d 456, 478-81 (2004) (discussing Eighth Amendment challenge to § 13-501’s lack
of transfer hearing requirement in tandem with defendant’s Eighth Amendment challenge
to death sentence). To the extent he challenges the lack of a transfer hearing, that argument
is addressed in Part II of this opinion. To the extent he challenges his sentence as a result
of having been tried as an adult pursuant to § 13-501, that argument is addressed in Part V.

                                               4
A. State due process claim

¶7            In 1996, Arizona voters passed Proposition 102, amending the Arizona

Constitution to grant the legislature, or the people by initiative or referendum, the authority

to enact laws regarding all proceedings and matters affecting juvenile offenders. Ariz. Const.

art. IV, pt. 2, § 22. The amendment provides in pertinent part:

                     In order to preserve and protect the right of the people to
              justice and public safety, and to ensure fairness and
              accountability when juveniles engage in unlawful conduct . . . :

                     1. Juveniles 15 years of age or older accused of murder,
              forcible sexual assault, armed robbery or other violent felony
              offenses as defined by statute shall be prosecuted as adults.

Id. Section 13-501 was enacted to implement the constitutional amendment authorizing the

automatic filing of charges in adult criminal court when a juvenile has reached a certain age

and is alleged to have committed either violent or repeated felonies. Section 13-501(A)

provides in relevant part:

                       The county attorney shall bring a criminal prosecution
              against a juvenile in the same manner as an adult if the juvenile
              is fifteen, sixteen or seventeen years of age and is accused of any
              of the following offenses:

                     1. First degree murder . . . .

¶8            “The stated intent of Proposition 102 was to make possible more effective and

more severe responses to juvenile crime.” State v. Davolt, 207 Ariz. 191, ¶ 100, 84 P.3d

456, 479 (2004). And “[t]he effect of the constitutional amendment and legislation was to

subject older juvenile offenders accused of violent crimes to the adult criminal system,

                                              5
unless specifically excepted.” State v. Oaks, 209 Ariz. 432, ¶ 13, 104 P.3d 163, 166 (App.

2004). Because the state constitution explicitly authorizes the part of the statute in

question, and the statute contains essentially the same language as the constitution, the

statute cannot offend state constitutional provisions.

B. Federal due process claim

¶9            We next turn to Eggers’s claim that the lack of individualized consideration

under the automatic filing statute violates his due process rights under the Fifth and

Fourteenth Amendments. He asserts that juveniles have a due process right to a judicial

determination of their fitness to stand trial as adults. In support, Eggers relies on Arizona

and United States Supreme Court cases decided before the death penalty was held to be

unconstitutional when applied to juveniles in Roper v. Simmons, 543 U.S. 551, 125 S. Ct.

1183 (2005), that mandated a case-by-case determination in juvenile death penalty cases.

In Davolt, 207 Ariz. 191, ¶ 110, 84 P.3d at 481, our supreme court held that “the State may

not seek the death penalty against a juvenile pursuant to Arizona’s Automatic Filing Statute

. . . without an individual assessment of the juvenile’s maturity and moral responsibility at

the time of the offense.” See also Stanford v. Kentucky, 492 U.S. 361, 375, 109 S. Ct.

2969, 2978 (1989) (individualized consideration required in “the realm of capital

punishment”), abrogated by Simmons; Thompson v. Oklahoma, 487 U.S. 815, 834, 108

S. Ct. 2687, 2698 (1988) (“‘[P]unishment should be directly related to the personal

culpability of the criminal defendant.’”), quoting California v. Brown, 479 U.S. 538, 545,


                                             6
107 S. Ct. 837, 841 (1987) (O’Connor, J., concurring); Eddings v. Oklahoma, 455 U.S.

104, 110, 102 S. Ct. 869, 874 (1982) (applying rule that all mitigating evidence offered by

defendants to support sentence other than death must be considered).

¶10           Eggers correctly asserts that in these cases, the courts recognized the inherently

less culpable nature of juveniles. See Simmons, 543 U.S. at 572-73, 125 S. Ct. at 1197

(“The differences between juvenile and adult offenders are too marked and well understood

to risk allowing a youthful person to receive the death penalty despite insufficient

culpability.”); Thompson, 487 U.S. at 834, 108 S. Ct. at 2698 (adolescents are less mature

and responsible than adults); Eddings, 455 U.S. at 115-16, 102 S. Ct. at 877 (same);

Davolt, 207 Ariz. 191, ¶ 103, 84 P.3d at 480 (recognizing juveniles “have lower levels of

maturity and culpability than adults”).

¶11           From this language, Eggers asks us to extrapolate that juveniles have a due

process right to a hearing before being subjected to trial as an adult. As we understand his

argument, Eggers contends the courts’ recognition that juveniles are less mature and less

responsible than adults, resulting in the requirement for an individualized consideration of

culpability prior to Simmons and in Simmons abolishing the death penalty for juvenile

offenders, also mandates a hearing to determine whether a juvenile is sufficiently culpable

to be tried as an adult. Eggers asserts that “[h]ad he been eligible for evaluation by the

juvenile court, he would have had a chance at rehabilitation and eventual reintegration into

society.”


                                              7
¶12             Implicit in this argument is the notion that juveniles have a protected liberty

interest in being adjudicated in the juvenile system. But Division One of this court has

addressed and rejected this precise argument in Andrews v. Willrich, 200 Ariz. 533, 29 P.3d

880 (App. 2001). There, the defendant challenged the constitutionality of § 13-501(B)3 on

separation of powers and due process grounds. 200 Ariz. 533, ¶ 5, 29 P.3d at 882. In

addressing the state and federal due process arguments, the court noted “[d]ue process

requires a meaningful opportunity to be heard only when a person may be deprived of life,

liberty, or property.” Id. ¶ 23. But, it said, “our constitution clearly provides that juvenile

offenders do not possess rights to be adjudicated in juvenile court.” Id., citing Ariz. Const.

art. IV, pt. 2, § 22. Therefore, the court concluded, “due process does not require that a

juvenile offender be afforded notice and an opportunity to be heard” before being tried as

an adult. Id.

¶13             Other state and federal courts considering the issue have also soundly rejected

the argument that juveniles have a due process right to be adjudicated in the juvenile system.

See, e.g., Woodard v. Wainwright, 556 F.2d 781, 787 (5th Cir. 1977); Manduley v.

Superior Court, 41 P.3d 3, 22 (Cal. 2002); State v. Angel C., 715 A.2d 652, 662 (Conn.

1998); Hansen v. State, 904 P.2d 811, 822 (Wyo. 1995). But see Kent v. United States,

383 U.S. 541, 562, 86 S. Ct. 1045, 1057 (1966) (holding that when hearing is required by


       3
        Under A.R.S. § 13-501(B), the county attorney has discretion to prosecute juveniles
as adults for certain felonies if they are at least fourteen years of age at the time the crime
is committed.

                                               8
statute, hearing must satisfy basic due process requirements). Accordingly, we find due

process does not require a hearing before a juvenile is tried as an adult under § 13-501(A),

and the statute does not violate Eggers’s due process rights under the federal constitution.

                          III. Motion to Suppress Confessions

A. Facts relating to confessions

¶14           Eggers next contends the trial court erred in denying his motion to suppress

his confessions to the detectives. He argues that both confessions were inadmissible because

detectives did not give him Miranda warnings prior to questioning him and because the

confessions were involuntary. We review the denial of a motion to suppress evidence for an

abuse of discretion. State v. Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d 303, 306-07 (App.

2000). We consider only the evidence presented at the hearing on the motion, viewing it in

the light most favorable to upholding the court’s decision. Id. ¶ 2. We review the trial

court’s factual findings for an abuse of discretion and review de novo its legal conclusions.

Id. ¶ 9.

¶15           The facts surrounding Eggers’s confessions generally are not disputed. Shortly

after 1:15 p.m. on December 10, 2003, Sergeant Morales was sent from the Eggerses’

residence to Douglas High School to speak with Eggers. Morales questioned Eggers for

approximately ten minutes in the principal’s office with the principal and Lieutenant

Tomlinson present. Morales then asked Eggers if he would accompany him to the house,




                                             9
and Eggers agreed. Eggers was not told that he had to go with Morales, nor was he

handcuffed when he was placed in the back seat of Morales’s vehicle.

¶16           When they arrived at the residence, Eggers remained in the back seat of

Morales’s vehicle while deputies searched the house. The other children were also sitting

in patrol vehicles during the search. When Eggers needed to use the restroom, Morales

escorted him to some bushes, waited, and escorted him back to the vehicle and closed the

door. By 5:00 p.m., it was getting dark, so the deputies secured the residence to resume the

search the following day. The deputies took Eggers, Joshua, and Michele separately to the

substation for additional questioning and kept them apart at the station. Eggers waited in

Morales’s office prior to his interview.

¶17           Michele was the first to be interviewed, followed by Joshua, and then Eggers

who was interviewed by Detectives Gerencser and Ritchie at 7:51 p.m. with Bradley Jr.

present. Prior to being questioned, Eggers was not read his Miranda rights. He was not

placed under arrest or told that he was free to leave. As they did with Joshua and Michele,

the detectives began Eggers’s interview with general questions about where Bradley and

Delyn Eggers might be and about Eggers’s activities the previous few days. The detectives

also photographed some scratches on his arms and torso. Sometime during the interview,

the detectives left the room to discuss what to ask Eggers next. When they returned, they

immediately confronted Eggers with the evidence that had been found in his room.




                                            10
¶18           The detectives pointed out inconsistencies in Eggers’s answers and accused

him of lying. While detectives were questioning him about the individual pieces of evidence,

Bradley Jr. commented to Eggers, “But you have it and they’re gone. Pretty . . .

incriminating if you don’t tell ’em what’s going on. They’re gonna arrest you.” Detective

Ritchie then started to question Eggers about the keys to his parents’ truck, but before she

finished the question, Eggers stated, “Cause I shot them.” The detectives immediately ended

the interview at 8:26 p.m. The interview resumed at 8:27 p.m., and Eggers was read his

Miranda rights. Eggers acknowledged he understood his rights, but he did not expressly

waive them. However, he readily answered the detectives’ questions and gave a very

detailed confession. The interview concluded at 9:24 p.m.

¶19           The trial court denied Eggers’s motion to suppress his confessions after finding:

(1) he was not in custody for purposes of Miranda; (2) Miranda did not apply to Eggers’s

first inculpatory statement because it was made in response to Bradley Jr.’s statement and

was “freely volunteered” in the presence of law enforcement officers; (3) the pre-Miranda

statements did not taint the post-Miranda statements; and (4) Eggers’s statements were

voluntary.

B. Failure to give Miranda warnings

¶20           Individuals, including juveniles, are not constitutionally entitled to the

protection of Miranda every time they speak with law enforcement officers. See State v.

Carter, 145 Ariz. 101, 106, 700 P.2d 488, 493 (1985); State v. Montes, 136 Ariz. 491, 493,


                                             11
667 P.2d 191, 193 (1983); In re Navajo County Juvenile Action No. JV91000058, 183

Ariz. 204, 205-06, 901 P.2d 1247, 1248-49 (App. 1995). “The triggering event for Miranda

warnings is custodial interrogation by state law enforcement agents.” Navajo County

Juvenile Action No. JV91000058, 183 Ariz. at 206, 901 P.2d at 1249.

¶21           Whether a person is in custody for purposes of Miranda is a mixed question

of fact and law, warranting deference to the trial court’s factual findings that are supported

by the record and de novo review of the court’s legal conclusions. See Thompson v.

Keohane, 516 U.S. 99, 112-13, 116 S. Ct. 457, 465 (1995); see also State v. Blackmore,

186 Ariz. 630, 632, 925 P.2d 1347, 1349 (1996). The test for determining whether a

suspect is in custody for Miranda purposes is an objective one. Yarborough v. Alvarado,

541 U.S. 652, 667, 124 S. Ct. 2140, 2151 (2004); State v. Perea, 142 Ariz. 352, 354, 690

P.2d 71, 73 (1984). A suspect is in custody if “‘under the totality of the circumstances a

reasonable person would feel that he was in custody or otherwise deprived of his freedom

of action in a significant way.’” State v. Smith, 197 Ariz. 333, ¶ 4, 4 P.3d 388, 390 (App.

1999), quoting Carter, 145 Ariz. at 105, 700 P.2d at 492; see also State v. Spreitz, 190

Ariz. 129, 143, 945 P.2d 1260, 1274 (1997) (“The test used to determine if a person is in

custody under a Fifth Amendment analysis is whether the person’s freedom of movement

is restricted to the extent it would be tantamount to formal arrest.”).

¶22           There are four factors that bear on the issue of custody: (1) the presence of

objective indicia of arrest, (2) the interrogation site, (3) the length and form of the


                                             12
interrogation, and (4) the focus of the investigation on the accused if conveyed by word or

conduct to the accused.4 See Stansbury v. California, 511 U.S. 318, 323-25, 114 S. Ct.

1526, 1529-30 (1994); see also State v. Stanley, 167 Ariz. 519, 523, 809 P.2d 944, 948

(1991). These factors apply to juveniles, “‘but with additional elements that bear upon a

child’s perceptions and vulnerability, including the child’s age, maturity and experience with

law enforcement and the presence of a parent or other supportive adult.’” In re Jorge D.,

202 Ariz. 277, ¶ 15, 43 P.3d 605, 608-09 (App. 2002), quoting State v. Doe, 948 P.2d 166,

173 (Idaho Ct. App. 1997). But see Alvarado, 541 U.S. at 666, 124 S. Ct. at 2151 (“Our

opinions applying the Miranda custody test have not mentioned the suspect’s age, much less

mandated its consideration.”).


       4
        We acknowledge that “the focus of the investigation on the accused” is not sufficient
standing alone to constitute a factor for determining the issue of custody. See State v.
Wright, 161 Ariz. 394, 397, 778 P.2d 1290, 1293 (App. 1989) (“Miranda warnings are not
required merely because the questioned person is one whom the police suspect.”). However,
in Stansbury v. California, 511 U.S. 318, 325, 114 S. Ct. 1526, 1530 (1994), the Supreme
Court concluded

              an officer’s views concerning the nature of an interrogation, or
              beliefs concerning the potential culpability of the individual
              being questioned, may be one among many factors that bear
              upon the assessment whether that individual was in custody, but
              only if the officer’s views or beliefs were somehow manifested
              to the individual under interrogation and would have affected
              how a reasonable person in that position would perceive his or
              her freedom to leave.

 The Court also stated, “An officer’s knowledge or beliefs may bear upon the custody issue
if they are conveyed, by word or deed, to the individual being questioned.” Id.; see also
State v. Buchanan, 543 S.E.2d 823, 829 (N.C. 2001).

                                             13
¶23           Eggers contends he was in custody from the moment he was placed into the

back of Morales’s vehicle at the high school. We disagree. “The voluntary accompaniment

of an officer from the place of their first encounter to a police station or some other place

for further investigation cannot, without more, be considered an arrest.” State v. Clemons,

27 Ariz. App. 193, 196, 552 P.2d 1208, 1211 (1976); State v. Navarro, 201 Ariz. 292, ¶

18, 34 P.3d 971, 976 (App. 2001). Applying the relevant factors, at that point in the

investigation, no sufficient, objective indicia of arrest were present to conclude Eggers was

in custody for Miranda purposes. The only questioning had occurred at the high school and

lasted for ten minutes. It was not confrontational and sought information that might help

locate Eggers’s parents. Eggers had voluntarily accompanied Morales to the residence in

Morales’s vehicle, and he had not been handcuffed or told he was not free to leave.

Furthermore, because the evidence had not yet been discovered in Eggers’s closet, the

deputies had no way of knowing what, if any, crime had been committed. Therefore, it

cannot reasonably be said that Eggers had become the focus of the investigation, so that

message could not have been conveyed to Eggers by the officers. See Perea, 142 Ariz. at

355, 690 P.2d at 74; see also Stansbury, 511 U.S. at 325, 114 S. Ct. at 1530. Because no

other indicia of custody were present, Eggers was not in custody at that point.

¶24           That changed, however, as the investigation progressed. See Thompson, 516

U.S. at 112, 116 S. Ct. at 465 (custody inquiry focuses on particular “circumstances

surrounding the interrogation”). Although he still had not been handcuffed or told he was


                                             14
not free to leave after arriving at the residence, Eggers was physically confined to the back

seat of a police vehicle and remained exclusively in an officer’s presence for an extended

period of time. He was also accompanied outside the car by an officer when he needed to

relieve himself.

¶25           Thereafter, Eggers was transported to the sheriff’s substation in the back of a

police vehicle after having been confined to the car for at least two hours except for the few

minutes when he was escorted to the bushes. From the moment Morales first made contact

with him to the time he confessed more than six hours later, Eggers was not out of an

officer’s sight or physical control except for a minute or two when Morales left Eggers in his

office to get him some water. He was also questioned for thirty-five minutes at the

substation in a way that communicated to him that he was a suspect in his parents’

disappearance, as the state conceded at oral argument. After the evidence had been

discovered in Eggers’s closet, and prior to his confession, the nature of the investigation

changed from general to one that focused on Eggers. The second round of questioning took

place at the substation, rather than a school principal’s office, and, unlike the earlier

interview, it became highly confrontational. Eggers was never told he could leave and was

left alone for only one or two minutes. See Alvarado, 541 U.S. at 665, 124 S. Ct. at 2150

(noting as factors suggesting defendant was in custody that interview was at police station,

interview lasted two hours, and defendant not told he was free to leave).




                                             15
¶26           From the detectives’ interviews with Eggers, Michele, and Joshua, it is

apparent that prior to Eggers’s interrogation, the investigation had focused on him, and that

suspicion was conveyed to Eggers during his interrogation. Although the detectives

questioned all three children generally about the parents’ schedule and recent activities, a

substantial portion of their questions of all three focused on Eggers.5 And Eggers’s own

interview focused substantially more on his activities and whereabouts the previous two days

than on his parents’. During the initial part of the interview, the detectives probed

inconsistencies in his statements and how he knew his parents were not home when he

brought his friends over in the middle of the night. They questioned him about his underage

drinking and illegal drug use and photographed the scratches on his arms and back. And,

after the first break in the interrogation, they confronted Eggers with the objects found in his

closet, clearly told him they did not believe him, and suggested he knew where his parents

were. At that point, as the state acknowledged at oral argument in this court, the detectives

questioned Eggers in a confrontational and accusatory manner, which communicated to him

that he was the focus of the investigation.


       5
        During their interviews, the detectives asked Michele and Joshua about Eggers’s
friends, drug habits, and whether he had recently fought with or ever physically threatened
his parents. However, they did not ask similar questions about Joshua or Michele.
Specifically, they asked Joshua whether he would keep Eggers’s secrets, if he thought Eggers
had done something wrong, if Eggers had threatened him, and whether he had ever seen
Eggers with weapons. They also asked Joshua if Eggers had been behaving “differently”
since his parents disappeared, and when Joshua said Eggers had invited someone over when
his parents would not have allowed him to do so, Detective Gerencser suggested that Eggers
would not have done so unless he knew his parents were not coming back.

                                              16
¶27           Although Detective Gerencser testified at the suppression hearing that Eggers

was not a suspect prior to his confessing and that Gerencser was “shocked” when Eggers first

confessed, these assertions were contradicted by his testimony at trial.6 Gerencser admitted

at trial to having been “suspicious” of Eggers and “that some . . . foul play may have

occurred” before he interviewed Eggers. Furthermore, at the suppression hearing, Detective

Ritchie testified that they waited to tell Eggers they had found evidence in his room because

“[m]aybe he would tell us where his parents were—what happened to his parents.”

¶28           Despite the state’s assertion on appeal that the investigation was a “broad[]

investigation to determine what, if anything, had happened to [the] parents,” taking into

account the totality of the circumstances, we conclude Eggers was in custody for purposes

of Miranda at the time of his interview at the substation. Because the trial court’s contrary



       6
         Citing Arizona’s well-established general rule that we may only consider evidence
presented at the suppression hearing in addressing a trial court’s pretrial ruling on a motion
to suppress, see State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069 (1996), the state
contends we should not consider Detective Gerencser’s trial testimony. Because that
testimony directly contradicted his prior testimony at the suppression hearing on a point
directly relevant to the merits of the motion, and because Eggers alerted the trial court to
that fact and renewed his motion to suppress on that basis during trial, we exercise our
discretion under these particular circumstances in considering this limited portion of
Gerencser’s trial testimony. Cf. State v. Farley, 452 S.E.2d 50, 57 n.7 (W. Va. 1994)
(“[W]here there is a change in circumstances, the trial court has discretion to reconsider a
pretrial ruling on a motion to suppress.”), citing Thompson v. Steptoe, 366 S.E.2d 647, 649
(W. Va. 1988); see also State v. Strayhand, 184 Ariz. 571, 596, 911 P.2d 577, 602 (App.
1995) (McGregor, J., concurring in part and dissenting in part). In so doing, however, we
do not purport to comprehensively address what other circumstances, if any, would possibly
justify deviating from the general rule that limits what evidence may be considered in
reviewing a trial court’s ruling on a motion to suppress.

                                             17
conclusion was not clearly based on resolution of any conflicting facts, weighing of

testimony presented at the suppression hearing, or evaluation of witness credibility, but

rather, hinged merely on the undisputed facts and the transcript of the interrogation, we do

not owe any particular deference to the trial court’s custody ruling. See Tovrea Land &

Cattle Co. v. Linsenmeyer, 100 Ariz. 107, 114, 412 P.2d 47, 51 (1966) (“[I]f the facts are

undisputed, we may ignore the trial court’s findings and substitute our own analysis of the

record.”); see also Gen. Dynamics Corp. v. Zantop Int’l Airlines, 147 Ariz. 92, 93, 708

P.2d 773, 774 (App. 1985). Given the entire chain of events and all the surrounding

circumstances, a reasonable person would have felt as though his freedom of movement was

significantly restricted, tantamount to formal arrest. See State v. Spreitz, 190 Ariz. 129,

143, 945 P.2d 1260, 1274 (1997); Jorge D., 202 Ariz. 277, ¶¶ 15-16, 43 P.3d at 608-09.

C. State action

¶29           The trial court found that Eggers’s initial confession was not the product of

state action but, instead, was “in response to a question posed to [him] by his older adult

brother, a third party.” Although Eggers was in custody, if his statement was not the product

of questioning by law enforcement agents, Miranda would not require its suppression. See

State v. Sharp, 193 Ariz. 414, 421, 973 P.2d 1171, 1178 (1999) (“Fulfilling the state action

requirement is essential because the protections contemplated by the Fourteenth

Amendment, and by incorporation of the Fifth Amendment, apply only to state actors, not

to private parties.”); see also Navajo County No. JV91000058, 183 Ariz. at 206, 901 P.2d


                                             18
at 1249. The Supreme Court has broadly defined interrogation as “not only . . . express

questioning, but also . . . any words or actions on the part of the police . . . that the police

should know are reasonably likely to elicit an incriminating response from the suspect.”

Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689-90 (1980); see also

Montes, 136 Ariz. at 493-94, 667 P.2d at 193-94. Eggers argues that he confessed in

response to the questioning by law enforcement officers, not to Bradley Jr.’s “interject[ion],”

and in any event, that Bradley Jr. was an instrument of the detectives and his statement

should therefore be attributed to them.

¶30           Eggers’s argument has merit. The detectives had, prior to Eggers’s interview,

expressly enlisted Bradley Jr.’s assistance in interviewing Joshua. Particularly telling is

testimony that, when the detectives announced that they had concluded their interview of

Joshua, Detective Gerencser deliberately left the tape recorder on. He told Bradley Jr. the

tape recorder would be left on while he and Joshua were left alone in the room, and he

asked Bradley Jr. to see if he could get Joshua to tell him what was going on. And it is

apparent that the detectives had focused on the evidence found in Eggers’s closet because

they had told Bradley Jr. about it. Bradley Jr. told Joshua that the detectives “seem to think

that Zach may have had a hand in something. . . . [T]hey found some, mom’s purse, mom’s,

dad’s wallet and the shotgun in Zach’s closet.” Bradley Jr. urged Joshua not to “cover for

[Zachary] no matter what’s going on.”




                                              19
¶31           At the suppression hearing, the detectives’ testimony concerning Eggers’s

interrogation was the only substantive evidence considered, other than the actual transcript

of the interview, on whose statements prompted Eggers’s confession. Neither Detective

Gerencser nor Detective Ritchie testified that, having been present at the interview, they

believed Eggers’s initial confession had been in response to what Bradley Jr. said. Although

both detectives testified that Eggers’s confession “immediately” followed Bradley Jr.’s

statement, both acknowledged that Ritchie made an intervening comment about the truck

keys. This is not disputed by the defense and is not contradicted by the interview transcript.

Even assuming Bradley Jr. was not an “instrumentality” of the detectives, the detectives’

testimony does not resolve the issue of to whom Eggers was responding when he confessed;

it merely confirms the order in which things were said.

¶32           Furthermore, the trial court adopted both parties’ proposed findings of fact,

including the state’s proposed finding that Eggers’s “initial confession was prompted, at least

in part, by the confrontational nature of the statement made by his older brother.” However,

this finding referred exclusively to the transcript of Eggers’s interrogation, not to any

testimony presented at the suppression hearing, and the trial court’s own finding in its

minute entry does not reflect any reliance on suppression hearing testimony. Therefore, we

are not bound by the trial court’s finding regarding which statement or statements prompted

Eggers’s confession, see Tovrea, 100 Ariz. at 114, 412 P.2d at 51; General Dynamics, 147

Ariz. at 93, 708 P.2d at 774, nor do we find its conclusion supported by the transcript itself.


                                              20
¶33           Immediately after the detectives returned from conferring about how to

proceed, they confronted Eggers with the evidence found in his closet. When Eggers did not

answer their questions to their satisfaction, the following exchange took place:

              [Detective Gerencser]: We can sit here and listen to you lie
              forever if you want. You think we gonna believe this crap
              you’re telling us?

              ....

              [Detective Gerencser]: You know they weren’t there, that’s
              why you brought your friends there. Right? So, where are
              they?

              [Eggers]: I don’t know.

              [Detective Gerencser]: Why do you have your Mom’s purse?

              [Eggers]: I don’t know.

              [Detective Gerencser]: Well, these are things that your
              parents don’t do. They don’t allow you to have this stuff,
              correct?

              [Eggers]: Yeah.

              [Bradley Jr]: But you have it and they’re gone. Pretty . . .
              incriminating if you don’t tell ’em what’s going on. They’re
              gonna arrest you.

              [Detective Ritchie]: Including their keys to the truck in your,
              ahem, . . .

              [Eggers]: Cause I shot them.




                                             21
¶34           As Eggers’s counsel pointed out at oral argument in this court, Eggers’s

statement was actually not responsive to Bradley Jr. The last full, unanswered question had

been asked by Detective Gerencser when he asked why Delyn Eggers’s purse was in Eggers’s

room. The subsequent comments by both detectives and Bradley Jr. only add details to the

overarching question of why Eggers’s parents’ belongings were in his closet. Thus, while

it is true that Bradley Jr.’s comment preceded Eggers’s confession, it is also true that

Detective Ritchie’s comment did as well. On this record, we cannot agree with the trial

court that Eggers’s statement was made in response to his brother’s comment rather than the

confrontational interrogation taking place around it. And, as we have determined, under the

circumstances, the detectives should have given Eggers Miranda warnings prior to

questioning him at the substation. Certainly, once the detectives confronted Eggers with the

evidence and accused him of lying after stopping the interview to strategize on their course

of action, they should have known their questions were reasonably likely to elicit an

incriminating response. See Innis, 446 U.S. at 301, 100 S. Ct. at 1689-90; see also Montes,

136 Ariz. at 493-94, 667 P.2d at 193-94.

¶35           The content and confrontational nature of Eggers’s interview went beyond

investigatory efforts to simply find out where his parents might be. It was the type of police

conduct and questioning “normally attendant to arrest and custody.” Innis, 446 U.S. at 301,

100 S. Ct. at 1689. On this basis, we conclude the evidence does not support the trial

court’s finding that Eggers’s initial confession was not the result of a custodial interrogation.


                                               22
See State v. Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d 303, 307 (App. 2000) (reviewing court

defers to trial court’s findings of fact if reasonable evidence supports them). Therefore, the

trial court erred in admitting Eggers’s initial confession.

D. Eggers’s second confession

¶36           Although the trial court ruled that Eggers “was not in custody for purposes of

Miranda” and had voluntarily confessed both before and after receiving and validly waiving

his Miranda rights, the court also concluded Eggers’s “post-Miranda statements were not

tainted by or as a result of his pre-Miranda statements.” Eggers contends his second

confession, obtained after he was informed of his Miranda rights, should also have been

excluded at trial because it was obtained in violation of the Supreme Court’s holding in

Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601 (2004). The state did not address this

issue.

¶37           Prior to Seibert, successive unwarned and warned confessions were governed

by Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285 (1985). There, the Court held that an

initial unwarned inculpatory statement made while in police custody does not render a

subsequent warned confession inadmissible if both statements were made voluntarily. Id.

at 314, 105 S. Ct. at 1296. However, in Seibert, a four-justice plurality held that Miranda

warnings given mid-interrogation, after an inculpatory statement had already been obtained,

were ineffective to protect the purposes Miranda was designed to serve, and the confession

repeated after the warnings was inadmissible. 542 U.S. at 616-17, 124 S. Ct. at 2612-13.


                                              23
Justice Kennedy, concurring in the judgment, would have restricted the holding to narrower

grounds, finding that unless, as was the case in Seibert, the police specifically employ an

interrogation process intentionally designed to undermine Miranda, Elstad should continue

to govern post-warning statements. 542 U.S. at 618-22, 124 S. Ct. at 2614-16 (Kennedy,

J., concurring). In reaching a different result from Elstad, the Court relied heavily on

Seibert’s distinguishable facts. 542 U.S. at 615-16, 124 S. Ct. at 2612-13.

¶38           In Elstad, the defendant was arrested in his home but was not immediately

warned. 470 U.S. at 300-01, 105 S. Ct. at 1288-89. While one of the officers spoke with

Elstad’s mother, the other officer asked Elstad if he knew why the officers were there. Id.

When he stated he did not, the officer told him, and Elstad subsequently made an

inculpatory statement. Id. He was then transported to the police station, where he waited

for approximately an hour and received Miranda warnings prior to the resumption of

questioning. 470 U.S. at 301, 105 S. Ct. at 1289.

¶39           In Seibert, the defendant was arrested, taken to the police station, and

purposely interrogated for thirty to forty minutes without being given any warnings. 542

U.S. at 604-05, 124 S. Ct. at 2606. During that time, she confessed, and after a twenty-

minute coffee break, she was warned and the officer obtained her confession again. Id. at

605, 124 S. Ct. at 2606. In holding Seibert’s warned confession inadmissible, the plurality

distinguished the case before it from Elstad based on whether, in these circumstances, “the




                                            24
warnings could function ‘effectively’ as Miranda requires.” 542 U.S. at 611-12, 124 S. Ct.

at 2610. Distinguishing the facts from those in Elstad, the plurality noted that

              a series of relevant facts . . . bear on whether Miranda warnings
              delivered midstream could be effective enough to accomplish
              their object: the completeness and detail of the questions and
              answers in the first round of interrogation, the overlapping
              content of the two statements, the timing and setting of the first
              and the second, the continuity of police personnel, and the
              degree to which the interrogator’s questions treated the second
              round as continuous with the first.

542 U.S. at 615, 124 S. Ct. at 2612.

¶40           Comparing the two cases, the plurality in Seibert discussed how, in Elstad,

the lapse in time and change in location between the statements was sufficient to create a

“new and distinct experience” in which the defendant could exercise “a genuine choice

whether to follow up on the earlier admission.” 542 U.S. at 615-16, 124 S. Ct. at 2612.

The Court characterized the initial statement in Elstad as the result of a “good-faith

Miranda mistake.” 542 U.S. at 615, 124 S. Ct. at 2612. In contrast, Seibert contained no

real lapse in time or change in location, and unlike Elstad, the unwarned questioning was

“systematic, exhaustive, and managed with psychological skill.” 542 U.S. at 616, 124 S. Ct.

at 2612. In Seibert, the officer “testified that he made a ‘conscious decision’ to withhold

Miranda warnings, thus resorting to an interrogation technique he had been taught:

question first, then give the warnings, and then repeat the question ‘until I get the answer

that she’s already provided once.’” 542 U.S. at 605-06, 124 S. Ct. at 2606. Furthermore,

Seibert’s post-Miranda interrogation was conducted with reference to the unwarned

                                             25
confession. 542 U.S. at 605, 124 S. Ct. at 2606. The plurality concluded the facts in the

two cases were in sharp contrast, and those in Seibert “by any objective measure reveal a

police strategy adapted to undermine the Miranda warnings.” 542 U.S. at 616, 124 S. Ct.

at 2612.

¶41           Generally, the holding of a plurality opinion is only that of the narrowest

grounds on which the concurring justices agree. Marks v. United States, 430 U.S. 188, 193,

97 S. Ct. 990, 993 (1977). But deciphering Seibert’s meaning is difficult. Although

Arizona has yet to apply Seibert to these two-stage (unwarned, then warned) confessions,

other jurisdictions have done so. Some have adhered to Justice Kennedy’s apparent reliance

on the subjective intent of the officers. See United States v. Nunez-Sanchez, 478 F.3d 663,

668 (5th Cir. 2007); United States v. Briones, 390 F.3d 610, 613-14 (8th Cir. 2004).

Others have adopted a totality-of-the-circumstances approach that examines both the

subjective intent of the police, which was the focus of Justice Kennedy’s approach, and the

objective factors outlined in the plurality opinion to determine the admissibility of the post-

warning statements. See, e.g., United States v. Williams, 435 F.3d 1148, 1160 (9th Cir.

2006); State v. Brown, 912 A.2d 525, 529 (Conn. App. Ct. 2006).

¶42           Because, as this case bears out, the intent of the officer may be difficult, if not

impossible, to determine in many cases, we decline to focus exclusively on that factor. See

Seibert, 542 U.S. at 616 n.6, 124 S. Ct. at 2612 n.6. Instead, we agree with the jurisdictions




                                              26
that have adopted Seibert’s multifactor analysis. See id. at 615, 124 S. Ct. at 2612. As

noted above, these factors include:

              (1) the completeness and detail of the prewarning interrogation,
              (2) the overlapping content of the two rounds of interrogation,
              (3) the timing and circumstances of both interrogations, (4) the
              continuity of police personnel, (5) the extent to which the
              interrogator’s questions treated the second round of
              interrogation as continuous with the first and (6) whether any
              curative measures were taken.

Williams, 435 F.3d at 1160.

¶43           In the present case, we have an unwarned confession that was the product of

a custodial interrogation. Detectives Ritchie and Gerencser paused the initial interrogation

to determine how best to get information from Eggers. When they returned, they confronted

Eggers with the evidence found in his closet and the inconsistencies in his statements, but

they did not, at that time, inform him of his Miranda rights. A few minutes later, at 8:26

p.m., Eggers confessed to having shot his parents. Ritchie and Gerencser testified they were

“shocked” when Eggers confessed, so Gerencser stopped the interview to give Eggers

Miranda warnings and “collect [his] thoughts.” The interrogation resumed only one minute

later, however, and the detectives conducting the questioning did not change. After reading

the warnings, Gerencser stated: “[Y]ou want to start from the beginning.” Although the

second confession was significantly more detailed than the first, once Eggers had admitted

having shot his parents, there was little left for him to say that would further incriminate him.




                                               27
¶44           The detectives took no curative measures other than to recite Miranda

warnings. They did not tell Eggers the prior statement would not be used against him or do

anything “to dispel the oddity of warning about legal rights to silence and counsel” after the

detectives had already elicited an inculpatory statement. Seibert, 542 U.S. at 616, 124 S.

Ct. at 2613. Instead, the detectives treated the post-Miranda questioning as a continuation

of the first by merely suggesting that Eggers “start from the beginning.” Thus, “any

uncertainty

. . . about a right to stop talking about matters previously discussed would only have been

aggravated” by the detective’s clear reference to Eggers’s initial admission, and it would have

been reasonable for Eggers “to regard the two sessions as parts of a continuum, in which it

would have been unnatural to refuse to repeat at the second stage what had been said

before.” Seibert, 542 U.S. at 616-17, 124 S. Ct. at 2613.

¶45           Therefore, we conclude that the detectives’ mere recitation of Miranda rights

after Eggers had already confessed to shooting his parents did not cure the deficiency created

by their failure to warn him initially. The trial court thus abused its discretion in admitting

Eggers’s second confession.7


       7
        Eggers also contends his confessions were involuntary. “Voluntariness and Miranda
are two separate inquiries.” State v. Montes, 136 Ariz. 491, 494, 667 P.2d 191, 194 (1983).
“Preclusion of evidence obtained in violation of Miranda is based on the Fifth Amendment
privilege against self-incrimination. Preclusion of involuntary confessions is based on the
Due Process Clause of the Fourteenth Amendment and applies to confessions that are the
product of coercion or other methods offensive to due process.” In re Jorge D., 202 Ariz.
277, ¶ 19, 43 P.3d 605, 609 (App. 2002) (citation omitted). But, because we have

                                              28
                                  IV. Harmless Error

¶46           “When statements should have been suppressed as violative of Miranda, ‘the

appellate court . . . simply reviews the remainder of the evidence against the defendant to

determine whether the admission of the confession was harmless beyond a reasonable

doubt.’” State v. Rodriguez, 186 Ariz. 240, 246, 921 P.2d 643, 649 (1996), quoting

Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 1265 (1991); see also State

v. Davolt, 207 Ariz. 191, ¶ 43, 84 P.3d 456, 470 (2004); In re Jorge D., 202 Ariz. 277, ¶¶

17-18, 43 P.3d 605, 609 (App. 2002). We need not reverse a criminal conviction if we can

say the error is harmless. See State v. Henderson, 210 Ariz. 561, ¶ 18, 115 P.3d 601, 607

(2005).

¶47           Although the erroneous admission of a confession can be harmless, we note

that “[a] confession is like no other evidence. Indeed, ‘the defendant’s own confession is

probably the most probative and damaging evidence that can be admitted against him.’”

Fulminante, 499 U.S. at 296, 111 S. Ct. at 1257, quoting Bruton v. United States, 391 U.S.

123, 139-40, 88 S. Ct. 1620, 1630 (1968) (White, J., dissenting). This is particularly true

when the statement is a full and complete confession rather than a statement that only

becomes inculpatory when linked with other evidence. See id. at 296, 111 S. Ct. at 1258.




determined the statements should have been precluded on Miranda grounds, we need not
decide the issue of voluntariness. And, in any event, even assuming Eggers’s confessions
were involuntary, we would still apply the same harmless error review. See State v. Ross,
180 Ariz. 598, 604, 886 P.2d 1354, 1360 (1994).

                                            29
¶48           At oral argument, Eggers urged this court not to find the error in this case

harmless, claiming the confession was such a damning piece of evidence that this court could

not say, beyond a reasonable doubt, that it had no effect on the verdicts. He contends the

prosecutor’s emphasis on the confession in his closing argument illustrates the importance

of the confession to the state’s case. See State v. Fulminante, 193 Ariz. 485, ¶¶ 50, 54-55,

975 P.2d 75, 90, 91 (1999) (given state’s “thin case for murder,” prosecutor’s emphasis of

improperly admitted evidence during closing argument contributed to finding of reversible

error).

¶49           That the prosecutor understandably stressed in closing argument Eggers’s

confession, however, does not necessarily negate a finding of harmless error. It is true that

courts have repeatedly and consistently said “[e]rror is harmless if the reviewing court can

say, beyond a reasonable doubt, that it did not contribute to or affect the verdict.” State v.

Poyson, 198 Ariz. 70, ¶ 21, 7 P.3d 79, 86 (2000); see also Fulminante, 499 U.S. at 295-96,

111 S. Ct. at 1257; Davolt, 207 Ariz. 191, ¶ 39, 84 P.3d at 470. However, if the court can

say, beyond a reasonable doubt, that the verdict would have been the same without the

inadmissible evidence, the erroneously admitted evidence cannot be said to have contributed

to the verdict. Davolt, 207 Ariz. 191, ¶ 43, 84 P.3d at 470. Thus, to determine whether the

error was harmless, “we must look to the impact of the inadmissible statements in light of

the totality of properly admitted evidence.” Fulminante, 193 Ariz. 485, ¶ 50, 975 P.2d at




                                             30
90; see also Davolt, 207 Ariz. 191, ¶¶ 39-43, 84 P.3d at 470; State v. Ross, 180 Ariz. 598,

604, 886 P.2d 1354, 1360 (1994).

¶50           Aside from Eggers’s confession, the evidence in this case was largely

circumstantial but was nonetheless highly probative of guilt. “There is no distinction in the

probative value of direct and circumstantial evidence. A conviction may be sustained on

circumstantial evidence alone.” State v. Green, 111 Ariz. 444, 446, 532 P.2d 506, 508

(1975); see also Davolt, 207 Ariz. 191, ¶ 43, 84 P.3d at 470 (probative weight of

circumstantial evidence “sufficient to justify the verdict[]” and uphold conviction on

harmless error analysis).

¶51           Eggers’s mother’s purse and his father’s wallet were found in Eggers’s closet.

During their search of the property the day after Eggers’s arrest, deputies discovered the

parents’ bodies where they had been buried in shallow graves.8 Delyn Eggers died from a


       8
        The trial court expressly found that, separate and apart from Eggers’s confession,
“[t]he physical evidence and the bodies would have inevitably been discovered by lawful
means.” Eggers neither challenges that ruling nor argues that evidence of his parents’ bodies
should have been excluded. However, even assuming he had, it was still admissible under
the doctrine of inevitable discovery. See State v. Castaneda, 150 Ariz. 382, 387, 724 P.2d
1, 6 (1986) (evidence of location of victim’s body admissible despite coercion in obtaining
location because it would have been discovered at first light). At the time Eggers confessed,
a search warrant for the Eggerses’ property had been obtained, and the scene had been
secured for the night by the Arizona Rangers. Furthermore, cadaver dogs would have been
brought to search the property if the Eggerses could not be located. Therefore, the bodies
would lawfully have been discovered without Eggers’s confession, and evidence about them
was properly admitted. See State v. Davolt, 207 Ariz. 191 ¶ 38, 84 P.3d 456, 469 (2004);
Castaneda, 150 Ariz. at 387, 724 P.2d at 6; see also United States v. Patane, 542 U.S. 630,
633-34, 124 S. Ct. 2620, 2624 (2004) (officers’ failure to give suspect Miranda warnings
does not require “suppression of the physical fruits of the suspect’s unwarned but voluntary

                                             31
single shotgun blast to the face, and Bradley Eggers died from shotgun wounds to the

abdomen and chest. The shotgun used to kill his parents was also found in Eggers’s closet

with his fingerprint on it. The state elicited testimony that Eggers was not allowed to have

the gun unless his parents were present. Two witnesses testified that Eggers had told them

he hated his mother and father. And another witness testified that Eggers had “loosely”

commented he was so mad he could kill his parents. Yet another witness testified Eggers

had said he wanted to know what it felt like to kill someone, but she had not taken him

seriously.

¶52             The evidence of Eggers’s behavior during his parents’ disappearance is

particularly compelling. Bradley Jr., Joshua, and Michele all testified that the parents would

never have permitted Eggers to have friends visit in the middle of the night, and he was never

permitted to drive the truck. However, following his parents’ disappearance, Eggers brought

his friends to the house late at night, and they stayed until the early morning hours. He also

told his friends that his parents were out of town. Earlier, he told his boss that his parents

had applied for a transfer out of the area. And Eggers did not merely use the truck during

his parents’ disappearance; he drove it to Agua Prieta, Mexico, where he sold it for

approximately $800-$1,000, an amount substantially below its fair market value.

¶53             From Eggers’s behavior, the only reasonable inference the jury could draw was

that he knew his parents were not home and would not be coming home. The testimony of


statements”).

                                              32
Eggers’s relatives and friends about his behavior following his parents’ disappearance,

combined with the physical evidence, overwhelmingly supports the jury’s verdicts. See

Davolt, 207 Ariz. 191, ¶ 43, 84 P.3d at 470. “Thus, even without [the confessions] that

should have been excluded, the verdicts would not have been different. Upon review of the

entire record, we conclude, as a matter of law, that the introduction of the [confessions] was

harmless beyond a reasonable doubt.” Id.; see also Ross, 180 Ariz. at 604, 886 P.2d at

1360.

               V. Constitutionality of Juvenile Natural Life Sentences

¶54           Eggers asserts that the trial court’s “imposition of a natural life prison term in

this case constitutes cruel and unusual punishment.”9 He argues that “[b]ecause a juvenile

cannot fully understand the consequences of his actions and cannot fully understand what

it means to empathize with others, juveniles simply should not be punished as adults, even

for serious crimes.” He contends A.R.S. § 13-501 “unfairly exposes juvenile offenders to

the maximum penalty available under the law as an adult” and “therefore results in cruel and

unusual punishment of juvenile offenders.”

¶55           In noncapital cases, the Eighth Amendment prohibits only those punishments

that are “‘grossly disproportionate’” to the crime committed. Ewing v. California, 538 U.S.



        9
         Eggers does not argue, and we do not find, a “compelling reason” to interpret article
II, § 15 of the Arizona Constitution as prohibiting cruel and unusual punishment differently
from the Eighth Amendment. State v. Davis, 206 Ariz. 377, ¶ 12, 79 P.3d 64, 67-68
(2003). Therefore, our Eighth Amendment discussion encompasses Eggers’s state claim.

                                              33
11, 23, 123 S. Ct. 1179, 1187 (2003), quoting Harmelin v. Michigan, 501 U.S. 957, 1001,

111 S. Ct. 2680, 2705 (1991) (Kennedy, J., concurring).            Whether a sentence is

disproportionate is determined according to a process first articulated in Justice Kennedy’s

concurring opinion in Harmelin and later adopted by the Court in Ewing. 538 U.S. at 23-

24, 123 S. Ct. at 1187. First, the reviewing court determines whether a “threshold

comparison of the crime committed and the sentence imposed leads to an inference of gross

disproportionality.” Harmelin, 501 U.S. at 1005, 111 S. Ct. at 2707 (Kennedy, J.,

concurring). Then, if such an inference arises, it is tested through comparing that state’s

punishment scheme for other crimes and the sentences imposed in other states for the same

crime. Id.

¶56           “[O]nly in ‘exceedingly rare’ cases will a sentence to a term of years violate

the Eighth Amendment’s prohibition on cruel and unusual punishment.” State v. Berger,

212 Ariz. 473, ¶ 17, 134 P.3d 378, 382 (2006), cert. denied, ___ U.S. ___, 127 S. Ct. 1370

(2007), quoting Ewing, 538 U.S. at 22, 123 S. Ct. at 1186. That a natural life prison

sentence is not disproportionate for an adult who commits first-degree murder is beyond

dispute. See State v. Parle, 110 Ariz. 517, 521, 521 P.2d 604, 608 (1974). The issue here,

then, is whether such a sentence is disproportionate for juveniles because of their less

culpable nature.

¶57           In considering whether the sentences imposed in this case are grossly

disproportionate to the gravity of the offenses, we “must accord substantial deference to the


                                             34
legislature and its policy judgments.” Berger, 212 Ariz. 473, ¶ 13, 134 P.3d at 381. Four

basic principles guide a court’s threshold evaluation of proportionality. Ewing, 538 U.S.

at 23, 123 S. Ct. at 1186. These include “‘the primacy of the legislature, the variety of

legitimate penological schemes, the nature of our federal system, and the requirement that

proportionality review be guided by objective factors.’” Id., quoting Harmelin, 501 U.S.

at 1001, 111 S. Ct. at 2705 (Kennedy, J., concurring).

¶58           Our first step is to determine whether the legislature had a reasonable basis to

believe that its sentencing scheme substantially furthers the goals of its criminal justice

system. See Ewing, 538 U.S. at 28, 123 S. Ct. at 1189; Berger, 212 Ariz. 473, ¶ 17, 134

P.3d at 382. Section 13-501 was enacted to implement the constitutional amendment

expressly authorizing more severe treatment of juvenile offenders. See In re Cameron T.,

190 Ariz. 456, 459, 949 P.2d. 545, 548 (App. 1997) (“The overall intent of [the initiative]

was to make possible faster, more effective, and in some cases more stringent responses to

juvenile crime.”). And “[t]he effect of the constitutional amendment and legislation was to

subject older juvenile offenders accused of violent crimes to the adult criminal system,

unless specifically excepted.” State v. Oaks, 209 Ariz. 432, ¶ 13, 104 P.3d 163, 166 (App.

2004). Although the initiative did not explicitly address sentences for juveniles tried as

adults, it was quite clear that “[u]pon conviction all such juveniles shall be subject to the

same laws as adults.” Ariz. Const. art. IV, pt. 2, § 22(1). And it is equally clear that the




                                             35
amendment intended certain juveniles to be punished as adults. It cannot be said that the

legislature, in giving effect to that intent, acted unreasonably.

¶59           Eggers nonetheless contends the statute subjects juveniles, who are less

culpable than adults, to the “maximum penalty” and constitutes cruel and unusual

punishment. His argument stems from the Court’s acknowledgment in Roper v. Simmons,

543 U.S. 551, 572-73, 125 S. Ct. 1183, 1197 (2005), and other cases that juveniles are

inherently less morally culpable than adults. As we have said: “Although we agree . . . that

being prosecuted as an adult potentially involves ‘more severe consequences,’ we do not

agree that the mere exposure to adult prosecution constitutes ‘enhanced punishment.’”

State v. Rodriguez, 205 Ariz. 392, ¶ 26, 71 P.3d 919, 926 (App. 2003). “‘The . . . statute

does not per se increase punishment; it merely establishes “a basis for . . . [adult] court

jurisdiction of prosecutions to which it applies.”’” Id., quoting United States v. Juvenile,

228 F.3d 987, 990 (9th Cir. 2000), quoting United States v. David H., 29 F.3d 489, 491

(9th Cir. 1994).

¶60           In Simmons, the Court found that juveniles’ “insufficient culpability” rendered

capital punishment cruel and unusual when applied to them. 543 U.S. at 572-73, 125 S.

Ct. at 1196-97. This conclusion was based on the Court’s determination that “[c]apital

punishment must be limited to those offenders who commit ‘a narrow category of the most

serious crimes’ and whose extreme culpability makes them ‘the most deserving of

execution.’” Id. at 568, 125 S. Ct. at 1194, quoting Atkins v. Virginia, 536 U.S. 304, 319,


                                              36
122 S. Ct. 2242, 2251 (2002). And, because the “susceptibility of juveniles to immature

and irresponsible behavior” lessens their culpability and means that they “cannot with

reliability be classified among the worst offenders,” they cannot constitutionally be subject

to the death penalty. Id. at 569, 570, 125 S. Ct. at 1195. However, it does not necessarily

follow that this lesser culpability also means juveniles cannot be classified among those

offenders deserving of natural life sentences.

¶61           Sentences for terms of years are analytically distinct from capital punishment.

See Harmelin, 501 U.S. at 1000-01, 111 S. Ct. at 2704-05 (Kennedy, J., concurring); Solem

v. Helm, 463 U.S. 277, 294, 103 S. Ct. 3001, 3012 (1983); Rummel v. Estelle, 445 U.S.

263, 272, 100 S. Ct. 1133, 1138 (1980). In this case, we are dealing with natural life

sentences imposed on a juvenile, tried as an adult, who has been convicted of first-degree

murder. As noted above, this is undoubtedly a severe sentence for a juvenile, but first-

degree murder is an equally serious crime. The Constitution does not prohibit severe

sentences; it prohibits only “grossly disproportionate” sentences. Harmelin, 501 U.S. at

1001, 111 S. Ct. at 2705 (Kennedy, J., concurring). We cannot say that a natural life

sentence is grossly disproportionate to the crime of first-degree murder, even when

committed by a juvenile.

                           VI. Evolving Standards of Decency

¶62           Eggers nevertheless argues that because he is a juvenile, with less culpability

than an adult in his position, a sentence of life in prison without the possibility of parole


                                             37
violates evolving standards of decency as “outlined” in Simmons. As he points out, to

determine evolving standards of decency, a court reviews “objective indicia of society’s

standards” to identify whether there exists a national consensus regarding a particular mode

of punishment. 543 U.S. at 563, 125 S. Ct. at 1191. First, this argument is not properly

before this court because Eggers raised it for the first time in his reply brief. See State v.

Shipman, 208 Ariz. 474, n.2, 94 P.3d 1169, 1170 n.2 (App. 2004). And, even assuming he

has not waived the argument, we would still not address it. The argument essentially

requires a comparison of how other states address the same issue to determine whether there

is a national consensus on the matter. This constitutes an interjurisdictional analysis that we

do not conduct unless we have first found an inference of gross disproportionality, which

we have expressly not found. See Harmelin, 501 U.S. at 1005, 111 S. Ct. at 2707

(Kennedy, J., concurring). Thus, we confirm the constitutionality of natural life sentences

for juveniles convicted of first-degree murder.

¶63           For the foregoing reasons, we affirm Eggers’s convictions and sentences.




                                               ____________________________________
                                               GARYE L. VÁSQUEZ, Judge


CONCURRING:



____________________________________

                                              38
JOHN PELANDER, Chief Judge



____________________________________
JOSEPH W. HOWARD, Presiding Judge




                                 39
