                                 IN THE

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

                                    v.

                        THOMAS MICHAEL RILEY,
                             Appellant,


                           No. CR-15-0411-AP
                           Filed March 10, 2020

          Appeal from the Superior Court in Maricopa County
               The Honorable Peter C. Reinstein, Judge
                       No. CR2011-008004-002
                          CR2013-002559-002
                            AFFIRMED

COUNSEL:

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

James J. Haas, Maricopa County Public Defender, Mikel Steinfeld (argued),
Deputy Public Defender, Phoenix; Attorneys for Thomas Michael Riley

JUSTICE LOPEZ authored the opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, AND JUSTICES
BOLICK, GOULD, BEENE, and PELANDER (RETIRED) * joined.



JUSTICE LOPEZ, opinion of the Court:

¶1           This automatic appeal arises from Thomas Michael Riley’s
convictions and death sentence for the murder of Sean Kelly. We have

*
  Justice William G. Montgomery has recused himself from this case.
Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable
John Pelander, Justice of the Arizona Supreme Court (Retired), was
designated to sit in this matter.
                             STATE V. RILEY
                            Opinion of the Court

jurisdiction under article 6, section 5(3) of the Arizona Constitution and
A.R.S. §§ 13-4031, -4033(A)(1).

                                 BACKGROUND

¶2             In June 2008, Riley and Kelly were inmates at the Arizona
State Prison Complex-Lewis in Buckeye. With the intent of gaining full
membership into the Aryan Brotherhood (“AB”), a violent prison gang
composed of white inmates, Riley requested and received authorization
from the AB to assault Kelly. On June 29, after divulging his plan to three
other AB prospective members (“probates”), all of whom refused to assist
and tried to talk him out of the murder, Riley and two accomplices sneaked
into Kelly’s cell and stabbed him with homemade prison knives 114 times. 1
Riley then changed into Kelly’s clothing from his cell, washed up, and
returned to his cell. Kelly was dead by the time correctional officers and
medical staff responded to his cell.

¶3            In the subsequent investigation, correctional officers found
blood on Riley’s elbows and forearm. Inside Kelly’s cell, investigators
found a bloody pair of pants with Riley’s inmate card inside its pocket and
a bloody shirt imprinted with Riley’s inmate number. Inside Riley’s cell,
investigators found a pair of socks and a t-shirt with Riley’s inmate number,
both of which had blood on them. Subsequent DNA testing confirmed that
the blood on Riley, as well as the blood on the socks and t-shirt in his cell,
matched Kelly’s DNA profile.

¶4             An investigator discovered that Riley had sent a change-of-
address form to a book publisher listing his new address as a maximum-
security facility. The investigator surmised that Riley mailed the form
before Kelly’s murder because he had been in lockdown since the incident.
At the time, Riley had not been scheduled for relocation.

¶5            Nearly two years after Kelly’s murder, another inmate gave
investigators a letter he had received from Riley, explicitly describing the
murder. Handwriting analysis, as well as the identification of Riley’s
fingerprint on the letter, confirmed that he wrote it. In the letter, Riley

1Investigators suspected that one of Riley’s accomplices was Eric Olsen, an
inmate living in C Pod in a cell immediately above Kelly’s, who was
affiliated with the AB.

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                             Opinion of the Court

claimed he had stabbed Kelly fifty times and his accomplices had stabbed
Kelly twenty times each. He also listed three “defining moments” from the
murder: (1) passing a frightened, young inmate on his way into Kelly’s
housing area; (2) the look on the face of an inmate who had stumbled onto
the scene while Riley was washing up; and (3) the sound of Kelly’s last
breath leaving his limp body. Riley drew a large smiley face after that final
sentence and signed the letter “Your hero the butcher” in both German and
English.

¶6             A jury found Riley guilty of first degree murder and assisting
a criminal street gang. The jury also found five aggravating circumstances:
Riley was previously convicted of a serious offense; he committed the
murder in an especially heinous, cruel, or depraved manner; he committed
the murder while in the custody of the Arizona Department of Corrections
(“ADOC”); he committed the murder to promote, further or assist a
criminal street gang; and he committed the murder in a cold and calculated
manner without pretense of moral or legal justification. A.R.S. §§ 13-
751(F)(2), (F)(6), (F)(7)(a), (F)(11), and (F)(13) (2012). Considering these
factors and the mitigation evidence, the jury found death was the
appropriate sentence for Kelly’s murder. The trial court also sentenced
Riley to 11.25 years’ imprisonment, consecutive to the death sentence, for
the criminal street gang offense.

                                DISCUSSION

       A.     Denial of Motion to Change Counsel

¶7             Riley argues the trial court erroneously denied his motion to
change counsel. We review the court’s denial of a request for new counsel
for abuse of discretion. State v. Hernandez, 232 Ariz. 313, 318 ¶ 11 (2013).
An abuse of discretion occurs when “the reasons given by the court for its
action are clearly untenable, legally incorrect, or amount to a denial of
justice.” State v. Chapple, 135 Ariz. 281, 297 n.18 (1983), superseded by statute
on other grounds.

¶8            On August 25, 2013, nearly two years after the initial
indictment and two years before trial, Riley filed a motion to change his
lead counsel, Randall Craig, on a pre-prepared form that provided no
factual basis for the request. Craig responded by informing the court in
writing “that communication between Defendant and Counsel now ceases

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                            Opinion of the Court

to exist. Defendant is no longer accepting Counsel’s advice.” Craig also
stated, “A mutual distrust exists between Defendant and Counsel. Counsel
has tried to repair the damaged relationship but has been unable to do so.”
Ultimately, he urged the court to grant the motion to ensure Riley
“receive[d] adequate assistance of counsel.”

¶9             On September 11, the trial court held a hearing to address
Riley’s motion. After noting the lack of grounds supporting the motion, the
court asked Riley if he had anything to add. Riley made general statements
regarding the lack of communication, cooperation, and trust between him
and Craig, dating back six to eight months. The court informed Riley he
was entitled to competent counsel, not “a great relationship,” and observed
that both of Riley’s attorneys were competent. Riley complained Craig was
frequently unreachable and had only spent four hours at the prison
discussing Riley’s case with him in the preceding year-and-a-half. Riley
stated that his relationship with Craig had “clearly deteriorated to where
there is no trust at all.”

¶10           When questioned by the court, Craig stated, “[W]ith all
candor to the court, I must say we aren’t communicating. I have to be
honest with that fact. We are not. He doesn’t seem to like me.” After the
court noted that Riley did not have to like his attorneys, Craig stated, “I
understand. And that’s all that I am going to say at this point.” The court
then informed Riley that it was not inclined to grant the motion “without
more.” Riley added that Craig had failed to show up to four or five
scheduled meetings at the prison, had failed to conduct witness interviews,
and had failed to appear at an appointment to view the crime scene. In
response to the trial court’s observation that Craig appeared to be preparing
his defense, as evidenced by his hiring mitigation specialists and an
investigator, Riley conceded that “[t]he mitigation aspect is ahead of
schedule. I will give him credit.” After Riley finished his argument and
after a brief recess, the trial court denied Riley’s motion to change lead
counsel.

¶11           Craig continued as Riley’s counsel after the trial court denied
the motion to change counsel. Craig served as Riley’s advisory counsel
during his brief period of self-representation (April 1, 2015–October 5, 2015)
and then resumed his role as lead counsel during the trial. Riley did not
renew his motion to change counsel.


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                            Opinion of the Court

¶12            The Federal and Arizona Constitutions guarantee criminal
defendants the right to representation by competent counsel. State v.
Goudeau, 239 Ariz. 421, 447 ¶ 77 (2016) (citing U.S. Const. amend. VI; Ariz.
Const. art. 2, § 24; A.R.S. § 13-114(2); State v. LaGrand, 152 Ariz. 483, 486
(1987)). An indigent defendant, however, is not “entitled to counsel of
choice, or to a meaningful relationship with his or her attorney.” State v.
Torres, 208 Ariz. 340, 342 ¶ 6 (2004) (quoting State v. Moody (“Moody I”), 192
Ariz. 505, 507 ¶ 11 (1998)). “But when there is a complete breakdown in
communication or an irreconcilable conflict between a defendant and his
appointed counsel, that defendant’s Sixth Amendment right to counsel has
been violated” and a resulting conviction must be reversed. Id.; accord
Moody I, 192 Ariz. at 509 ¶ 23.

¶13            To preserve a defendant’s Sixth Amendment right to counsel,
the trial court has a “duty to inquire as to the basis of a defendant’s request
for substitution of counsel.” Torres, 208 Ariz. at 343 ¶ 7. During this
inquiry, the defendant bears the burden of proving either a “complete
breakdown in communication or an irreconcilable conflict.” Id. at 342 ¶ 6.
“To satisfy this burden, the defendant must present evidence of a ‘severe
and pervasive conflict with his attorney or evidence that he had such
minimal contact with the attorney that meaningful communication was not
possible.’” Hernandez, 232 Ariz. at 318 ¶ 15 (quoting United States v. Lott,
310 F.3d 1231, 1249 (10th Cir. 2002)). A defendant must show more than
“personality conflicts or disagreements with counsel over trial strategy.”
State v. Cromwell, 211 Ariz. 181, 187 ¶ 30 (2005). A defendant’s claims
against his attorney of ineffective trial preparation and failure to
communicate, when unsupported by the record, are generally
characterized as disagreements over trial strategy. See Hernandez, 232 Ariz.
at 321 ¶ 33.

¶14             In response to Riley’s complaints, Craig acknowledged that
“communication between Defendant and counsel now ceases to exist,”
which is precisely the situation that, if true, would entitle Riley to
substitution of counsel. Craig added that mutual distrust existed with his
client, that efforts to repair the relationship were unsuccessful, and that the
motion should be granted to ensure Riley received adequate counsel. But
the “mere possibility that the defendant had a fractured relationship with
counsel does not amount to structural error.” Torres, 208 Ariz. at 344 ¶ 12.
The trial court was entitled to delve into the substance behind the assertions
and, in doing so, it found the basis for substitution wanting.

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                            Opinion of the Court


¶15             At the hearing, Riley alleged that Craig failed to conduct any
interviews and failed to appear for an appointment to view the crime scene.
We have repeatedly rejected these types of complaints as disagreements
over trial strategy, which do not amount to irreconcilable differences. See
Goudeau, 239 Ariz. at 447 ¶ 76, 448 ¶ 84; State v. Henry, 189 Ariz. 542, 547
(1997). Riley’s primary complaint against Craig at the hearing, however,
was lack of communication. Riley alleged Craig had only met with him for
a total of four hours in the preceding year and a half and had missed several
appointments to meet with him in prison. Craig agreed in his response to
Riley’s motion and at the hearing that his communications with Riley had
ceased to exist.

¶16            We have historically required “intense acrimony and depth of
conflict” before finding a complete breakdown in communication and
requiring new counsel. See Cromwell, 211 Ariz. at 188 ¶ 37; see also
Hernandez, 232 Ariz. at 318 ¶ 16, 321 ¶ 36 (finding no abuse of discretion
even though defendant alleged only four visits with counsel over the course
of two years). Riley attempts to compare his minimal interactions with his
attorney to those between the defendant and his attorney in Moody I. But
the Moody I record was “replete with examples of a deep and irreconcilable
conflict” between the defendant and his attorney. 192 Ariz. at 507
¶ 13. Moody accused his lawyer and the lead public defender of being
“incompetent and crazy.” Id. at 508 ¶ 16. He developed an “obsessive
hatred” for his attorney and the public defender’s office and, on at least one
occasion, he and his attorney were “almost at blows” with one
another. Id. Moody believed his lawyers were conspiring with the
prosecutor, the court, and the doctor tasked with evaluating his
competency to have him declared insane. Id. He also threatened to file
ethical complaints against his lawyer and the public defender’s
office. Id. ¶ 18. None of these examples of “intense acrimony and depth of
conflict” is present here. See also Torres, 208 Ariz. at 343 ¶ 9 (“[Defendant]
presented specific factual allegations that raised a colorable claim that he
had an irreconcilable conflict with his appointed counsel.”).

¶17           On the contrary, despite Riley’s and Craig’s claim of an
irreconcilable conflict or a complete breakdown in communications, the
record belies their stark characterization of their relationship. Riley gave
Craig’s defense team “credit” for their efforts in preparing mitigation.
Riley’s knowledge of the status of his case further demonstrates that he and

                                      6
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                            Opinion of the Court

Craig were communicating about his defense. In fact, Riley regularly
corresponded with Craig in writing before the change of counsel hearing,
albeit primarily to complain about the frequency of Craig’s visitation and
status reports, but their substantive written correspondence continued after
denial of his motion. Thus, because Riley failed to demonstrate an
irreconcilable conflict or a completely fractured relationship with Craig, the
trial court was not required to appoint new counsel. See Cromwell, 211 Ariz.
at 186 ¶ 29.

¶18           To the extent Riley faults the trial court for failing to conduct
further inquiry into the source of his alleged conflict with Craig, Riley and
Craig effectively foreclosed further inquiry. For his part, Riley explained
the reasons for his dissatisfaction, which the trial court deemed insufficient
to require new counsel. Craig simply noted that “[Riley] doesn’t seem to
like me” and “that’s all I’m going to say at this point.” Moreover, neither
Riley nor Craig requested or intimated that an ex parte hearing was
necessary to determine the source of the alleged conflict. Under these
circumstances, the record does not support Riley’s assertion of an
irreconcilable conflict or complete breakdown in communications.

¶19           If the defendant shows “[c]onflict that is less than
irreconcilable,” a trial court should consider the conflict as a factor among
several other factors in determining whether to appoint new counsel. Id.
¶ 29. The other factors—often referred to as the LaGrand factors—are:
(1) “whether new counsel would be confronted with the same conflict;”
(2) “the timing of the motion;” (3) “inconvenience to witnesses;” (4) “the
time period already elapsed between the alleged offense and trial;” (5) “the
proclivity of the defendant to change counsel;” and (6) the “quality of
counsel.” Id. at 187 ¶ 31 (quoting LaGrand, 152 Ariz. at 486–87).

¶20           These factors tend to favor substitution here, save the last,
given that no dispute exists that Riley’s counsel was competent. But
“quality of counsel” was the only one of the six factors that the trial court
expressly considered. The State acknowledged that different counsel
would probably not have the same conflict. Although the request for
substitution occurred well into trial preparation, no trial date was yet
scheduled, so the case presumably could have proceeded without
significant disruption as Riley showed no prior proclivity toward
substituting counsel. See Moody I, 192 Ariz. at 509–10 ¶ 21.


                                      7
                              STATE V. RILEY
                             Opinion of the Court

¶21           Applying the LaGrand factors against the backdrop of Craig’s
avowal of a complete breakdown in communication, there were clear
grounds to grant the motion. However, because the trial court conducted
a hearing to determine whether there was an actual breakdown in the
attorney/client relationship, we review the trial court’s decision to deny the
request for an abuse of discretion. Goudeau, 239 Ariz. at 446 ¶ 68. In
denying Riley’s motion to change counsel, the trial court did not refer to the
LaGrand factors and gave no explicit reasons for denying the motion. But
this Court may affirm on any basis in the record. See, e.g., State v. Robinson,
153 Ariz. 191, 199 (1987).

¶22            Based on the hearing, it appears that the core of Riley’s claims
against Craig regarding the cause of their asserted breakdown in
communication was rooted in disagreements over trial strategy. 2 But “[a]
single allegation of lost confidence in counsel does not require the
appointment of new counsel, and disagreements over defense strategies do
not constitute an irreconcilable conflict.” Cromwell, 211 Ariz. at 186 ¶ 29;
Hernandez, 232 Ariz. at 321 ¶ 33. Moreover, the trial court witnessed Riley
and Craig interact for more than a year which led to the trial court’s
conclusion that Riley’s lead counsel was providing competent
representation. Accordingly, the trial court did not abuse its discretion
when it denied Riley’s motion to change lead counsel, and Riley is not
entitled to relief on this issue.

¶23           Finally, even if the trial court abused its discretion in denying
Riley’s change of counsel motion, it is subject to harmless error review
because Riley failed to prove an irreconcilable conflict or complete
breakdown in communication. Cf. Torres, 208 Ariz. at 343–44 ¶¶ 11–13
(holding that structural error applies to only a few enumerated situations
and the harmless error standard applies to a trial judge’s summary denial
of a motion to change counsel); see also State v. Ring (III), 204 Ariz. 534, 552–
53 ¶ 46 (2003) (“The Supreme Court has defined relatively few instances in


2 Riley’s trial strategy dispute with Craig persisted after the trial court
denied his motion for new counsel. On April 1, 2015, when the trial court
granted Riley’s motion for self-representation, Riley clarified that the basis
for his motion was that he and Craig were “at odds with strategy and the
direction of the case.” But Riley also emphasized the importance of
retaining “the same team as [his] legal advisors” because they had been
working on the case together for three and a half years.
                                     8
                              STATE V. RILEY
                             Opinion of the Court

which we should regard error as structural.”). It is difficult to understand
how any error caused an unfair trial given that Riley does not contest that
his counsel was competent; and indeed, Riley complains here about issues
that arose when he self-represented or rejected his attorney’s advice. Riley
is not foreclosed from raising issues concerning inadequate representation
in subsequent proceedings, but we conclude that his Sixth Amendment
right to counsel was not violated in light of the evidence before the trial
court.

       B.     Description of Aggravating Factors in Juror Questionnaire

¶24            Riley argues the juror questionnaires erroneously described
Arizona’s aggravating factors as “very few” and “very specific,” which
created an illegitimate eligibility factor that the State never proved. Because
Riley did not object to the language in the questionnaires at trial, we review
for fundamental error. See State v. Anderson, 210 Ariz. 327, 341 ¶ 45 (2005).
Under fundamental error review, the defendant bears the burden to
establish that (1) error exists, (2) the error is fundamental, and (3) the error
caused him prejudice. State v. Escalante, 245 Ariz. 135, 140 ¶ 21 (2018); State
v. Bearup, 221 Ariz. 163, 168 ¶ 21 (2009); see also State v. Henderson, 210 Ariz.
561, 567–68 ¶¶ 19–20 (2005). An error is fundamental when it “goes to the
foundation of [the defendant’s] case, takes away a right that is essential to
[the defendant’s] defense, [or] is of such magnitude that [the defendant]
could not have received a fair trial.” Henderson, 210 Ariz. at 568 ¶ 24 (citing
State v. Hunter, 142 Ariz. 88, 90 (1984)); see also Escalante, 245 Ariz. at 140
¶ 16 (holding that the three prongs for determining when an error is
fundamental are disjunctive).

¶25             At the beginning of jury selection, the trial court provided
jurors with written questionnaires. Both Riley (then pro per) and the
prosecutor reviewed and approved the questionnaire at a status conference
prior to trial. In describing the penalty phase of the trial, the questionnaire
stated:

              The penalty phase of the trial may contain two
              parts. The state must first prove beyond a
              reasonable doubt that one or more aggravating
              circumstances exist for a defendant to be eligible
              for a death sentence.               Aggravating
              circumstances are set forth in the law. The law

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                             STATE V. RILEY
                            Opinion of the Court

              allows only a very few and very specific aggravating
              circumstances to be used, if proven beyond a
              reasonable doubt, to make a defendant convicted of
              Murder in the First Degree eligible for a death
              sentence.

(emphasis added). The portion emphasized above was also repeated as an
introduction to Question 59 of the questionnaire.

¶26           While questioning one of the jurors during voir dire, Riley
highlighted the “very few” and “very specific” language, asking the
prospective juror whether he or she agreed with the statement made in the
preamble to Question 59. After reading the statement twice verbatim, Riley
reworded the statement as follows:

              In layman’s terms, there is a [sic] very few
              criteria that qualify a murder from being a
              murder to being a capital murder warranting
              the death penalty, and you would have to agree
              and follow those rules and not allow other
              subjectivity to come in to make your decision on
              that.

Riley then asked the prospective juror whether he or she would follow
those instructions.

              i.     Legal Accuracy of the Statement

¶27           Although the court provided further instructions to the jurors
regarding the aggravating factors during both the aggravation and penalty
phases of the trial, neither the court nor the parties ever used the “very few”
or “very specific” language again during the trial.

¶28           Riley argues (1) the statement in the jury questionnaire
describing Arizona’s aggravating factors as “very few” and “very specific”
misstates the law; (2) that misstatement created an unproven, invalid
sentencing factor that constituted fundamental error; and (3) he was
prejudiced by this error because it led the jury to believe that he was one of
only a “very few” individuals eligible for the death penalty.


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                              STATE V. RILEY
                             Opinion of the Court

¶29            The legal accuracy of the description of Arizona’s aggravators
as “very few” is debatable. Both Riley and the State recognize that the
statement provided a subjective description of the number of statutory
aggravating factors in Arizona. But while Riley argues that thirty different
aggravating circumstances (ten individual circumstances with a total of
twenty sub-parts) cannot reasonably equate to a “very few,” the State,
ironically, relies solely on the semantic ambiguity of the description to
defend the statement’s legal accuracy. At most, the description of Arizona’s
aggravators as “very few” is ambiguous and irrelevant.

¶30            The description of Arizona’s aggravators as “very specific,”
however, likely misstates the law. To pass constitutional muster,
aggravators must “not apply to every defendant convicted of a murder, but
only to a subclass, and the aggravating circumstance may not be overly
vague.” State v. Hausner, 230 Ariz. 60, 82 ¶ 99 (2012) (citing Tuilaepa v.
California, 512 U.S. 967, 972 (1994)). We have repeatedly upheld the
constitutionality of Arizona’s aggravators, especially those deemed facially
vague, based on the “adequate specificity” of narrowing constructions in
jury instructions. See, e.g., Anderson, 210 Ariz. at 352–53 ¶¶ 109–14
(addressing constitutionality of (F)(6) aggravator). Undoubtedly then,
Arizona’s aggravators must contain some specificity to overcome challenges
for vagueness. But there is a substantial semantic difference between “not
overly vague” and “very specific.” More to the point, there is a noteworthy
distinction between “adequately specific” and “very specific.”

¶31          Accordingly, because all or part of the statement likely
misstates the law, Riley has fulfilled the first requirement to prove
fundamental error. See supra ¶ 24

              ii.     Fundamental Nature of the Error

¶32           Assuming the statement misstates the law, its single
appearance in the jury questionnaire was insufficient to constitute
fundamental error. Riley must also prove that the error went to the
foundation of his case, took away a right essential to his defense, or was of
such magnitude that he could not have received a fair trial. See Henderson,
210 Ariz. at 568 ¶ 24 (citing State v. Hunter, 142 Ariz. 88, 90 (1984)); see also
Escalante, 245 Ariz. at 140 ¶ 16 (holding that the three prongs for
determining when an error is fundamental are disjunctive).


                                       11
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                             Opinion of the Court

¶33             Riley contends the error was fundamental as it prevented him
from receiving a fair trial because (1) the statement implied that the court
had conducted some narrowing function that identified Riley as “one of
only ‘a very few’ individuals that could actually be put to death” and (2) the
subjective nature of the statement left its meaning “open to any
interpretation each juror wished to assign.” According to Riley, this
implication—and the jury’s acceptance of it—created an unproven
eligibility factor or aggravator.

¶34            Riley exaggerates the impact of the statement. Immediately
before the statement, the questionnaire stated, “The state must first prove
beyond a reasonable doubt that one or more aggravating circumstances
exist.” This informed the jurors of the proper order of proceedings and the
State’s burden to prove at least one aggravating factor, rendering the
subsequent challenged statement irrelevant. Moreover, during voir dire,
after the jurors had completed the questionnaire, Riley explained the
statement “in layman’s terms,” emphasizing that jurors had to rely on the
aggravating factors, not “other subjectivity,” to impose the death penalty.
After voir dire, neither the trial court nor the State ever repeated the
statement at issue; instead the trial court reiterated the State’s burden of
proof in both the aggravation and penalty phases of the trial.

¶35            Contrary to Riley’s assertion, the statement did not insert an
additional eligibility factor or aggravator. At no point did the trial court or
the State assert—or even imply—that Riley’s eligibility for the death
penalty had been predetermined before trial based on the number or
specificity of Arizona’s aggravators. In the unlikely event that a juror
inferred as much from the jury questionnaire on the first day of trial, the
trial court’s repeated instructions regarding the State’s burden of proof in
the subsequent months of trial surely disavowed any such inference by the
time the jury found more than a month later that the State had proven all
five alleged aggravating circumstances.

¶36            Accordingly, because the misstatement error did not go to the
foundation of Riley’s case, did not take away a right that was essential to
his defense, and was too insignificant to impact the fairness of his trial, Riley
has failed to meet his burden to prove fundamental error and is not entitled
to relief on this issue.



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                            Opinion of the Court

       C.     Failure to Question Jurors on Questionnaire Answers Sua
              Sponte

¶37          Riley argues the trial court erred by failing to question Jurors
1 and 16 sua sponte based upon their answers on the juror questionnaires.
Because Riley did not raise a challenge to either of these jurors for cause,
we review this claim for fundamental error. See State v. Bible, 175 Ariz. 549,
573 (1993).

¶38          On the juror questionnaire, Juror 1 answered “no” to
Question 40, which asked whether she agreed that a defendant is not
required to present any evidence. In explaining her disagreement on the
questionnaire, she asked, “Without being totally familiar with the law—
how can a defendant defend themselves without presenting evidence?” In
a follow-up question asking whether she could follow this law even if she
disagreed with it, Juror 1 answered “yes.”

¶39           During voir dire involving Juror 1, the court, the prosecutor,
and Riley all explained the State’s burden of proving all elements beyond a
reasonable doubt and that the defendant had no obligation to testify or
present evidence. The prosecutor asked all jurors whether any of them had
any questions about the process or any additional information relevant to
whether he or she should serve as a juror. No juror replied affirmatively.

¶40            On her questionnaire, Juror 16 answered “yes” to Question
51, which asked whether she believed that a law enforcement officer is
always more believable in giving testimony than is a lay person. In
answering Question 52, she stated she could follow the court’s instruction
that a law enforcement officer is not entitled to any greater believability
than any other witness by virtue of his or her position as a law enforcement
officer. She also disclosed that her father is a retired sheriff’s deputy and
her sister-in-law is an attorney with the San Francisco District Attorney’s
Office.

¶41          The prosecutor did not question Juror 16 directly during voir
dire. But he questioned two other jurors who also answered affirmatively
for Question 51, and he acknowledged there were other jurors who had
answered similarly. The prosecutor asked the panel whether they could
follow the court’s instruction that all witnesses were initially entitled to the
same credibility, and all the jurors agreed.

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                            Opinion of the Court


¶42           After several jurors mentioned having family members who
worked in law enforcement, the prosecutor asked “everyone who has law
enforcement in their family or friends” whether there was “[a]nything
about those relationships that would affect your ability to be [a] fair and
impartial juror?” All prospective jurors except one—who was not
impaneled on the jury—shook their heads in the negative. During the voir
dire proceedings involving Jurors 1 and 16, Riley failed to question either
of them about their answers at issue here, and he did not move to strike
either juror.

              i.     Failure to Question or Strike Jurors

¶43             Riley argues that the trial court erred by failing to question,
sua sponte, Jurors 1 and 16 to determine whether those jurors could render
a fair and impartial verdict. By alleging that both jurors had biases that
prevented them from rendering such a verdict, Riley necessarily implies
that the trial court erred by failing to strike these jurors. See State v.
Velazquez, 216 Ariz. 300, 306–07 ¶ 18 (2007) (“A defendant is entitled to ‘a
fair trial by a panel of impartial, indifferent jurors.’” (quoting Morgan v.
Illinois, 504 U.S. 719, 727 (1992))). Riley’s argument is unpersuasive.

¶44            A trial court does not err by failing to question a juror who
indicates a disagreement with, or a misunderstanding of, the law if that
juror also indicates that he can be fair and impartial, that he will follow the
law, and that he has gained understanding of the law he previously
misunderstood. See Bible, 175 Ariz. at 573. Furthermore, “the trial judge’s
invitation to counsel to ask follow-up questions mitigates any deficiency in
the court’s questioning.” State v. Moody (“Moody II”), 208 Ariz. 424, 452 ¶ 98
(2004).

¶45            In Bible, one of the seated jurors in a death penalty case
indicated on the jury questionnaire that “he would not treat the testimony
of police officers as he would other witnesses, did not understand that the
State had the burden of proof for each element, and did not agree with the
presumption of innocence.” 175 Ariz. at 573. Neither the trial court nor the
parties conducted follow-up oral inquiry with the juror. Id. We held that it
was not fundamental error to allow the juror to sit because he subsequently
“indicated that he could fairly and impartially listen to and weigh the
evidence and render a verdict in accordance with the law,” he “understood

                                      14
                             STATE V. RILEY
                            Opinion of the Court

that the State had the burden of proof beyond a reasonable doubt,” and he
“expressed no disagreement with the presumption of innocence, the jury’s
duty to judge credibility, or the State’s burden to prove guilt beyond a
reasonable doubt.” Id. We concluded “follow-up oral inquiry of [the] juror
would have been appropriate,” but it was “[n]either error [n]or
fundamental error for the judge to have failed to sua sponte strike the
[juror] for cause.” Id. at 573–74.

¶46           Here, although Juror 1 initially disagreed that a defendant
need not present evidence, she clarified that her disagreement was based
on a lack of understanding of the law. Addressing the very next question,
the juror indicated affirmatively that she would follow this law even if she
did not agree with it. During subsequent voir dire, she gave no indication
that she could not or would not hold the State to its burden of proof.

¶47            Juror 16 answered in her questionnaire that a law
enforcement officer is more believable than a lay witness. She also
indicated that she had family who worked in law enforcement, but unlike
the juror in Bible, Juror 16 answered affirmatively that she would consider
the testimony of law enforcement as she would the testimony of any other
witness. Along with other jurors on the panel, she also agreed to follow the
court’s instructions to gauge the credibility of witnesses equally. When
asked whether anything about her relationship with law enforcement
would affect her ability to be fair and impartial, she responded “no” with
the rest of the panel.

¶48            Furthermore, Riley had full opportunity to question Jurors 1
and 16 regarding their answers on the questionnaire, but he failed to do so.
Both jurors gave sufficient indication that they would be fair and impartial,
and the trial court did not err by failing to question or strike them from the
jury.

¶49           Riley relies on Morgan v. Illinois, 504 U.S. 719 (1992) for the
proposition that a juror’s acknowledgement on a jury form that he could
follow the law is insufficient to adequately examine a juror’s potential
biases. Although the United States Supreme Court held that such an
acknowledgement would be insufficient to ascertain a potential juror’s
beliefs about the death penalty, Morgan, 504 U.S. at 734–35, neither of the
juror questions at issue queried the jurors’ death penalty views.
Accordingly, Morgan has no bearing on this issue.

                                     15
                             STATE V. RILEY
                            Opinion of the Court


¶50            Riley also argues that Arizona Rule of Criminal Procedure
18.5(d) requires trial courts to conduct oral examinations of each juror.
Although the rule requires a court to “conduct a thorough oral examination
of the prospective jurors and control the voir dire examination,” it only
requires a court to probe a prospective juror’s willingness to follow the law
“where the trial judge is left with the definite impression that a prospective
juror would be unable to faithfully and impartially apply the law” or in
cases of “heightened danger of juror prejudice or bias” from media exposure.
See Wainright v. Witt, 469 U.S. 412, 425–26 (1985) (emphasis added); Bible,
175 Ariz. at 572 n.12 (emphasis added). These factors are not present here.

              ii.    Lack of Prejudice

¶51           Even if the trial court erred, Riley “must demonstrate not only
that the voir dire examination was inadequate, but also that, as a result of
the inadequate questioning, the jury selected was not fair, unbiased, and
impartial.” Moody II, 208 Ariz. at 451 ¶ 95. “Prejudice will not be presumed
but must appear affirmatively from the record.” State v. Hoskins, 199 Ariz.
127, 141 ¶ 48 (2000). Riley fails to meet this burden.

¶52            Riley claims that the record supports a finding of prejudice
resulting from Juror 1’s response because it indicated that even though she
was willing to follow the law, she did not understand or agree with it. This
argument is unpersuasive. Juror 1’s initial response indicates that she did
not understand the law and was, therefore, confused as to how a defendant
could win his case without presenting evidence. This confusion was
unquestionably dispelled by the trial court’s and both parties’ repeated
reference to the burden of proof. After being informed of this burden, Juror
1—along with the rest of the panel on October 5, 2015—raised no further
questions for clarification.

¶53            Riley also claims the prosecutor’s rebuttal closing argument
in the guilt phase contributed to the prejudice. At that time, the prosecutor
stated:

              I have to say, [the defense attorney]’s right. I’ve
              got news for you. Every party has the power to
              subpoena through the Court any witness. He’s
              right. He has subpoena power. Does that mean

                                         16
                              STATE V. RILEY
                             Opinion of the Court

              he has to do it? No. Of course not. I have the
              burden of proof. I always do. But just as we can
              say no inmates testified to—that Tommy Riley
              did it, no inmates testified that Tommy Riley
              wasn’t there. No inmates from A Pod testified
              that, “Hey, you know what? I saw him. He
              wasn’t in C Pod.”

According to Riley, these statements were “tailored to appeal to Juror 1’s
belief” because they insinuated that Riley failed to call witnesses to support
his defense. This argument is equally unpersuasive. A prosecutor may
properly comment on a defendant’s failure to present exculpatory evidence
which would substantiate defendant’s theory, provided the remark is not a
comment on the defendant’s silence. State ex rel. McDougall v. Corcoran, 153
Ariz. 157, 160 (1987).

¶54            Here, the prosecutor merely commented on Riley’s failure to
present witnesses to support the theory of his defense. In his closing
argument, Riley’s attorney stated, “[N]obody came forward to say Riley
and [his cellmate Dennis] Levis did this. You heard no eyewitness
testimony.” Before making the statements at issue, the prosecutor explicitly
told the jury, “[A]s the judge told you, [the defendants] are not obligated to
put on anything and that never changes. And nothing I say, suggest, it is
not a wink and a nod. That never ever changes. We always have the
burden.” During closing arguments alone, the jury heard numerous
times—from the judge, Riley’s attorney, and the prosecutor—that the State
bore the burden of proof. Nothing in the prosecutor’s statements expressly
or impliedly directed the jury’s attention to Riley’s failure to testify. Rather,
the prosecutor simply maintained that Riley was free to produce witness
testimony favorable to his defense.

¶55            Regarding Juror 16, Riley asserts that he was prejudiced by
the juror’s bias in favor of law enforcement officers because the “trial court
did not ascertain how deeply held her bias was or if she would feel
pressured to return a guilty verdict because she was concerned about her
deputy father’s or her prosecutor sister-in-law’s opinion if she did not.” But
this is not evidence of bias; it is an expression of potential or presumed bias.
See Hoskins, 199 Ariz. at 141 ¶ 48 (“Prejudice will not be presumed but must
appear affirmatively from the record.”).


                                       17
                             STATE V. RILEY
                            Opinion of the Court

¶56            In sum, Riley has failed to show that he was prejudiced, and
he is not entitled to relief.

       D.     Admission of Alleged Inadmissible Evidence

¶57           Riley argues the trial court erred by admitting evidence in
violation of the Arizona Rules of Evidence that, coupled with the
prosecutor’s arguments, deprived him of a fair trial.

              i.     Evidence of Kelly’s Time in Protective Custody

¶58             The State presented evidence that Kelly was placed in
protective custody in 2002, six years before his murder, because he had
refused an order to commit violence against another inmate and that his
prior protective custody status made him a target of the AB. Riley argues
that the trial court erred in admitting this evidence because (1) Kelly’s prior
custody status was irrelevant; (2) since Kelly’s prior protective custody
status was irrelevant, the reason given for it—that Kelly was put in
protective custody because he “had a target on his back” because he refused
to commit a violent act during a previous incarceration—was also
irrelevant; and (3) the State failed to establish a foundation that Riley knew
that Kelly was previously in protective custody which was a prerequisite to
proving Riley’s motive. Because Riley did not object to the admission of
this evidence at trial, we review these claims for fundamental error. See
Anderson, 210 Ariz. at 341 ¶ 45.

¶59            Keland Boggs, a special investigator for the ADOC, testified
for the State that “the only sure way to gain membership into the [AB] is to
commit a homicide of a target of the [AB].” Boggs further explained that
inmates who entered an Arizona prison with gang-related “political ink”
and who refused to commit an act of violence to earn that tattoo “could be
targeted to be killed” and that they commonly requested protective
custody.

¶60           Officer William Dziadura, an ADOC criminal investigations
manager, testified for the State that Kelly had been in protective custody in
2002 after refusing a request from “influential white inmates to assault
another inmate.” When Kelly refused the request, he was told “to cover up
some lightning bolts tattoo that he had on his person or be injured.” Officer


                                      18
                              STATE V. RILEY
                             Opinion of the Court

Dziadura also testified that inmates in protective custody were “perceived
as being weak.”

¶61           During his opening statement, the prosecutor noted that Kelly
“had a target on his back” because “he refused to commit an act of violence
on another inmate.” He declared that “in the world of the [AB], that’s
weakness. And weak inmates are targets for men who want membership
in the [AB].” The prosecutor later stated in his penalty phase rebuttal
closing argument that “[y]ou don’t have two more different people, Sean
Kelly, who had to go to protective custody because he wouldn’t be a part
of that world, and the defendant, who executed him.”

¶62           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. 401(a). “[M]otive is relevant in a murder prosecution.” State v.
Hargrave, 225 Ariz. 1, 8 ¶ 14 (2010).

¶63           The State’s theory was that Riley targeted Kelly because he
had spent time in protective custody, which gangs like the AB viewed as a
weakness. In fact, Riley described in a letter to another inmate how he was
looking for a “golden goose” before he was segregated and how he had to
move fast once he got the “green light.” More importantly, the State’s
theory was that Kelly had been in protective custody for refusing to carry
out an order from “influential white inmates” and refusing such an order
could get an inmate targeted to be killed. This testimony allowed the State
to establish Riley’s motive for killing Kelly; therefore, Kelly’s prior stay in
protective custody was relevant.

¶64             Similarly, Riley’s argument that the State failed to lay a proper
relevance foundation for motive by not proving that he knew that Kelly was
previously held in protective custody is unpersuasive. Motive may be
proven by circumstantial evidence. State v. Parker, 231 Ariz. 391, 407 ¶ 71
(2013). Here, Officer Dziadura testified that Kelly was previously put into
protective custody for refusing an order to assault another inmate from
“influential white inmates.” This supports an inference that Kelly was an
AB target. Further, Riley’s own letter said that he was “hunting big time”
for his “golden goose” and that he was constantly “sending names” for
approval but kept being told “no” before he got the “green light.” In this
context, Riley’s lack of direct knowledge of Kelly’s prior protective custody
status is irrelevant because Riley killed Kelly not because he had previously

                                       19
                             STATE V. RILEY
                            Opinion of the Court

targeted him, but because the AB sanctioned the murder and rewarded
Riley for killing Kelly. In other words, as Riley’s letter makes clear, the AB’s
motive in killing Kelly may be imputed to Riley. This is strong
circumstantial evidence of motive that was properly presented for the jury
to weigh its merits.

              ii.    Evidence of Kelly’s Character

¶65           Riley also objects to portions of Officer Melissa Vincent’s
testimony. At one point, Officer Vincent, a Correctional Officer who
worked in the control room for Kelly’s prison pod, testified regarding
Kelly’s character, stating “I thought he was one of the better inmates.
Always very polite to me, never disrespected me, which a lot of them did.
Very easy to get along with, quiet.” Riley argues that this testimony
regarding Kelly’s character was irrelevant. Riley claims this implicitly
invited the jury to compare Kelly’s character with Riley’s.

¶66           Because Riley objected to the relevance of this portion of
Officer Vincent’s trial testimony, we examine the trial court’s decision
regarding those statements for abuse of discretion. See State v. Steinle, 239
Ariz. 415, 417 ¶ 6 (2016).

¶67            Under Arizona Rule of Evidence 404(a)(2), a victim’s
character for peacefulness may be presented only to rebut a claim that the
victim was the first aggressor. If the defendant does not claim self-defense
and there is no evidence that the victim was the initial aggressor, the
victim’s aggressive or peaceful character is irrelevant. State v. Hicks, 133
Ariz. 64, 68–69 (1982). Here, Riley never admitted that he killed Kelly, in
self-defense or otherwise. Riley’s defense was that he found Kelly dead in
his cell and tried to revive him. Thus, the trial court erroneously admitted
evidence of Kelly’s character.

¶68           Because the trial court erred, we must determine if it was
harmless error. State v. Bass, 198 Ariz. 571, 580 ¶ 39 (2000). As such, the
State must show “beyond a reasonable doubt that the error did not
contribute to or affect the verdict or sentence.” Escalante, 245 Ariz. at 144
¶ 30 (quoting State v. Escalante-Orozco, 241 Ariz. 254, 286 ¶ 126 (2017)). “The
standard is an objective one, and requires a showing that without the error,
a reasonable jury could have plausibly and intelligently returned a different
verdict.” Id. ¶ 31. “The inquiry . . . is not whether, in a trial that occurred

                                      20
                            STATE V. RILEY
                           Opinion of the Court

without the error, a guilty verdict would surely have been rendered, but
whether the guilty verdict actually rendered in this trial was surely
unattributable to the error.” Bible, 175 Ariz. at 588 (quoting Sullivan v.
Louisiana, 508 U.S. 275, 279 (1993)).

¶69            Here, a reasonable jury could not have reached a different
verdict. The improperly admitted evidence is inconsequential compared to
the properly admitted evidence of Riley’s guilt, including that (1) Riley was
found with Kelly’s blood on him; (2) Riley was found with blood on his
clothes; (3) Riley’s clothes and ID badge were found at the murder scene;
(4) an eyewitness saw Riley in Kelly’s housing pod the night of the murder;
and (5) Riley hand-wrote a letter graphically detailing Kelly’s murder and
Riley’s quest to become a “patched” AB member by looking for a “golden
goose.” For these reasons, improper admission of two sentences of
testimony concerning Kelly’s character for peacefulness was harmless
error.

             iii.   Rule 403 Violations

¶70             Riley argues the trial court erred in admitting evidence of
Kelly’s time in protective custody in violation of Arizona Rule of Evidence
403, which prohibits admission of relevant evidence whose probative value
is substantially outweighed by the risk of unfair prejudice. “Unfair
prejudice means an undue tendency to suggest decision on an improper
basis . . . such as emotion, sympathy or horror.” State v. Schurz, 176 Ariz.
46, 52 (1993) (internal quotation marks omitted) (quoting Fed. R. Evid. 403).

¶71          Here, Riley’s Rule 403 argument is unavailing because the
trial court did not abuse its discretion by admitting relevant motive
evidence. Although such evidence likely undermined Riley’s defense, it
was not admitted to evoke “emotion, sympathy, or horror.” Id. (“[N]ot all
harmful evidence is unfairly prejudicial. After all, evidence which is
relevant and material will generally be adverse to the opponent.”). There
was no Rule 403 violation.

             iv.    Officer Vincent’s Testimony Regarding the “Atta-Boy”
                    Gesture

¶72          Officer Vincent also testified that, on the night of the murder,
as Riley and Levis were exiting C Pod, she saw Riley pat Levis on the
shoulder “kind of atta-boying him” and that Riley looked “happy.” Riley
                                    21
                             STATE V. RILEY
                            Opinion of the Court

argues that the trial court violated several Arizona Rules of Evidence in
admitting this testimony, including Rule 602 because Officer Vincent did
not know the significance of Riley’s pat on Levis’s shoulder; Rule 701(a)
because the testimony was not rationally based on Officer Vincent’s
perception; and Rule 701(b) because the testimony was not helpful to the
jury. In sum, Riley contends that Officer Vincent’s testimony was not
necessary because the jury could determine on its own the significance of
Riley’s gestures and interactions with Levis.

¶73            Because Riley did not object to the admission of this evidence
at trial, we review these claims for fundamental error. See Anderson, 210
Ariz. at 341 ¶ 45.

¶74          Riley’s argument that Officer Vincent’s testimony does not
pass muster under Rule 602 is unpersuasive. The rule provides that “[a]
witness may testify to a matter only if evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter.”
Ariz. R. Evid. 602. In essence, Rule 602 permits a witness’s observation
testimony. Here, Officer Vincent’s testimony was based on her own
perception and her characterization of a pat on the back and a smile as a
congratulatory gesture is unremarkable.

¶75         Officer Vincent’s testimony also did not violate Rule 701,
which provides:

              If a witness is not testifying as an expert,
              testimony in the form of an opinion is limited to
              one that is:
              (a) rationally based on the witness’s perception;
              (b) helpful to clearly understanding the
              witness’s testimony or to determining a fact in
              issue . . . .

See State v. King, 180 Ariz. 268, 280 (1994) (reasoning that a witness’s opinion
as to whether a person depicted on video was the defendant was admissible
under Rule 701 because it was based on his perception and “assisted the
jury in determining a fact in issue—the identity of the person on the
videotape”). Officer Vincent’s testimony did not violate Rule 701(a)
because her opinion was rationally based on her perception that Riley’s
smile and pat of Levis’s back was congratulatory.

                                      22
                             STATE V. RILEY
                            Opinion of the Court


¶76            Officer Vincent’s testimony was also admissible under Rule
701(b) because it was helpful to aid the jury’s understanding of a fact at
issue. Riley contends that he was in Kelly’s housing pod the night of the
murder because he intended to warn him of the murder plot. Upon
discovering that Kelly was dead, Riley claimed that he panicked and “took
off.” The State contested Riley’s explanation. Officer Vincent’s testimony
assisted the jury in determining this fact because her description of Riley’s
behavior is inconsistent with a panicked man—as Riley claimed to be—and
tended to prove the State’s theory of the case. Further, contrary to Riley’s
claim, the jury was not in the same position as Officer Vincent to discern
the significance of Riley’s “atta-boy” or “happy” expression because she
was the only percipient witness to the interaction. Officer Vincent’s
testimony provided information to assist the jury in determining Riley’s
role in Kelly’s murder. For these reasons, the trial court did not err in
admitting Officer Vincent’s testimony.

              v.     Comparison of the Worth of Kelly’s Life with Riley’s

¶77           Riley argues that when the prosecutor stated in his penalty
phase rebuttal closing argument “[y]ou don’t have two more different
people, Sean Kelly, who had to go to protective custody because he
wouldn’t be a part of that world, and the defendant, who executed him,”
he impermissibly compared the value of Riley’s and Kelly’s lives. Riley did
not object so we review for fundamental error. See Anderson, 210 Ariz. at
341 ¶ 45.

¶78           This argument is unpersuasive because the statement did not
compare the value of Kelly’s and Riley’s lives. Instead, the prosecutor
merely urged the jury to reject Riley’s suggestion that it should consider the
violent prison environment as mitigation because Riley and others involved
in the AB created the “kill-or-be-killed” environment and that, unlike Riley,
Kelly had rejected that culture. Likewise, any error was harmless in light
of the substantial evidence of Riley’s guilt.

       E.     Inclusion of      Duress     Defense    in   Guilt-Phase      Jury
              Instructions

¶79           Riley argues the trial court erred by instructing the jurors that
duress is not a defense to first degree murder. Because Riley did not object

                                      23
                             STATE V. RILEY
                            Opinion of the Court

to the jury instructions, we review this claim for fundamental error. See
Hunter, 142 Ariz. at 90.

¶80            On November 2, 2015, during a conference to discuss jury
instructions, the prosecutor requested to add an instruction that duress is
not a defense to first degree murder. Defense counsel claimed they would
not be raising the duress defense, but agreed to the instruction’s inclusion.
Before the trial court read the final instructions to the jury, defense counsel
again approved the instruction. The court instructed the jurors that “[a]
person compelled to commit a crime by the threat or use of immediate force
against that person is not justified in committing the crime if it involved
homicide or serious physical injury.”

¶81           Throughout the trial, the State produced evidence that AB
probates, like Riley at the time of the murder, were not at liberty to refuse
orders and that Kelly had previously been in protective custody after he
received threats from “influential white inmates” for refusing to carry out
an assault on another inmate. The State argues that the duress instruction
“clarified any misconception the jurors may have developed that Riley
would not be criminally responsible for killing Kelly if he had acted under
threat from the [AB].”

¶82           The State concedes that no reasonable juror would have
believed that Riley acted under duress, and neither the State nor Riley relied
on a theory of duress. During closing arguments, defense counsel
specifically addressed the duress instruction and noted that it would not
“come into play” because “nobody has said that Mr. Riley was compelled
to commit this crime by threats or use of force. That has never come out
ever, not even in the slightest.”

¶83            “A party is entitled to any jury instruction reasonably
supported by the evidence.” State v. Burns, 237 Ariz. 1, 17 ¶ 48 (2015). But
the giving of an abstract instruction, which “broadens the issues beyond the
scope of the evidence and thus impliedly submits to the jury issues and
questions not properly before it,” constitutes error. See State v. Willits, 96
Ariz. 184, 190–91 (1964); Glenn v. Chenowth, 71 Ariz. 271, 273–74 (1951)
(holding a self-defense instruction was improper in a civil suit where
neither party asserted such a claim and “[t]he instruction was susceptible
of conveying the impression to the jury that the trial judge may possibly
have thought that [the plaintiff] had been attacked by [the defendant]”).

                                      24
                             STATE V. RILEY
                            Opinion of the Court


¶84            Here, although neither party relied on a theory of duress, the
trial court did not err in giving the duress instruction because, without it,
the jury could have improperly concluded that Riley killed Kelly to avoid
physical harm by the AB. Courts may instruct a jury under these
circumstances to minimize the risk that a jury will base its verdict on an
erroneous legal assumption. See, e.g., State v. Champagne, 247 Ariz. 116, 137
¶ 60 (2019) (holding the trial court did not commit instructional error when,
“without the voluntary intoxication instruction the jury could have rejected
[defendant]’s claim of innocence but improperly concluded that his
voluntary intoxication prevented him from forming the necessary intent for
criminal liability”).

¶85            Nevertheless, even if the trial court erred in giving the duress
instruction, such error was not fundamental because it did not amount to a
comment on the evidence by the trial judge. A judge violates Arizona’s
constitutional prohibition against commenting on evidence by expressing
“an opinion as to what the evidence proves,” in a way that interferes “with
the jury’s independent evaluation of that evidence.” State v. Rodriguez, 192
Ariz. 58, 63 ¶¶ 28–29 (1998); see also Ariz. Const. art. 6, § 27. An abstract
instruction may amount to a comment on the evidence if the instruction
indicates the trial judge’s opinion regarding some evidence of the case. See
Chenowth, 71 Ariz. at 273–74.

¶86           Contrary to Riley’s argument, the duress instruction did not
amount to a comment on the evidence. Unlike the instruction in Chenowth,
where the self-defense instruction could have indicated to the jury that the
judge had formed an opinion about who hit whom first, the duress
instruction here carried no such implication. Riley asserts that the
instruction implied that the judge believed there was evidence of duress,
and because Riley’s defense that he intended to warn Kelly of an impending
attack was the only evidence that came close to the issue of duress, the
instruction further implied that the jury should not consider Riley’s
defense.

¶87            But this argument is unpersuasive for several reasons. First,
the trial court expressly informed the jury, prior to closing arguments, that
they could disregard inapplicable instructions. Second, the prosecutor did
not state or imply that Riley may have acted under duress, and defense
counsel expressly informed the jury that the duress instruction did not

                                      25
                              STATE V. RILEY
                             Opinion of the Court

apply.     Third, Riley’s letter discussing Kelly’s murder provided
overwhelming evidence that Riley did not act under duress. Finally, no
reasonable juror would have discounted Riley’s defense based on the
duress instruction because Riley’s entire defense rested on the premise that
he did not kill Kelly. The sole purpose of the duress instruction was to
accurately inform the jury that a defendant cannot rely on duress to justify
a killing. See A.R.S. § 13-412(C). Because Riley’s defense did not rely on
any such justification, the instruction did not impact his defense.

¶88            In any event, even if the error were fundamental because it
went to the foundation of the case or deprived him of an essential right, see
Escalante, 245 Ariz. at 142 ¶ 21, Riley failed to show prejudice. Riley argues
that the abstract instruction was prejudicial by misleading and confusing
the jury because it raised a significant possibility that jurors believed they
could not consider Riley’s defense. For the same reasons stated above, this
argument is unpersuasive. The trial court informed the jurors that they
could—and they presumably did—disregard any inapplicable instructions.
Moreover, Riley has pointed to no evidence in the record indicating he was
prejudiced by the duress instruction, but rather asks us to speculate that the
jurors were misled or confused by the instruction. See State v. Broughton,
156 Ariz. 394, 397–98 (1988) (holding that prejudice requires a showing of
more than mere speculation); State v. Munninger, 213 Ariz. 393, 397 ¶ 14
(App. 2006) (holding that defendant could not show prejudice through
speculation). Accordingly, Riley is not entitled to relief on this issue.

       F.     Sufficiency of the (F)(13) Aggravator Instruction

¶89           Riley argues that the trial court’s failure to include, in the § 13-
751(F)(13) aggravator jury instruction, a baseline statement that all first
degree murders are cold and calculating to some extent rendered the
instruction insufficient to narrow the aggravator because it allowed the jury
“to begin with the assumption that there are premeditated first degree
murders that are not cold and calculating and that any evidence of the cold
and calculating component would be sufficient to find the aggravator.”

¶90           Although we generally “review de novo whether jury
instructions adequately state the law,” State v. Gallardo, 225 Ariz. 560, 567
¶ 30 (2010) (quoting State v. Tucker, 215 Ariz. 298, 310 ¶ 27 (2007)), “absent
an objection by the defendant, we review for fundamental error,” Velazquez,
216 Ariz. at 309–10. Here, because Riley does not challenge the instruction

                                       26
                            STATE V. RILEY
                           Opinion of the Court

as an inadequate statement of the law but rather as an inadequate
narrowing of a facially vague aggravator, his failure to object to the
instruction means “he is not entitled to relief unless he can show
fundamental error.” See Hausner, 230 Ariz. at 83 ¶ 107.

¶91            Concerning the (F)(13) aggravator, the trial court instructed
the jurors as follows:

             The State alleges that the murder was
             committed in a cold, calculated manner without
             pretense of moral or legal justification. This
             aggravating circumstance requires more than
             the premeditation necessary to find a defendant
             guilty of first degree murder. This aggravating
             circumstance cannot be found to exist unless the
             State has proved beyond a reasonable doubt
             that the defendant exhibited a cold-blooded
             intent to kill that is more contemplative, more
             methodical, more controlled than that necessary
             to prove premeditated first degree murder. In
             other words, a heightened degree of
             premeditation is required.

             “Cold” means the murder was the product of
             calm and cool reflections.

             “Calculated” means having a careful plan or
             prearranged design to commit murder.

             This aggravating circumstance focuses on the
             defendant’s state of mind at the time of the
             offense, as reflected by the defendant’s words
             and acts. To determine whether a murder was
             committed in a cold, calculated manner without
             pretense of moral or legal justification, you
             must find that the State proved beyond a
             reasonable doubt that the defendant:




                                    27
                               STATE V. RILEY
                              Opinion of the Court

                      1. Had a careful plan or prearranged
               design to commit murder before the fatal
               incident; and

                      2. Exhibited a cool and calm reflection
               for a substantial period of time before killing;
               and

                       3. Had no pretense of moral or legal
               justification or excuse.

                       A “pretense of moral or legal
               justification” is any claim of justification or
               excuse that, though insufficient to reduce the
               degree of murder, nevertheless rebuts the
               otherwise cold, calculated nature of the murder.

Thus, the (F)(13) aggravator qualifies a first degree murder for the death
penalty if “[t]he offense was committed in a cold, calculated manner
without pretense of moral or legal justification.” A.R.S. § 13–751(F)(13)
(2012). The jury found this aggravator beyond a reasonable doubt.

¶92            We addressed the constitutionality of Arizona’s (F)(13)
aggravator in Hausner. Relying on the rationale of a Florida case that
analyzed the constitutionality of a substantially similar aggravator, we held
that the (F)(13) aggravator was facially vague. Hausner, 230 Ariz. at 82 ¶ 102
(citing Jackson v. State, 648 So. 2d 85 (Fla. 1994)). But, like the court in Jackson,
we subsequently held that the instruction provided to the jury there
adequately narrowed the aggravator. Id. at 83 ¶ 105. Noting that the trial
court provided “narrowing instructions substantially the same as those
approved in Jackson,” we reasoned that the (F)(13) instruction “clarified to
the jury that ‘all first degree premeditated murders are, to some extent,
committed in a cold, calculated manner,’ but distinguished this aggravator
as one that ‘cannot be found to exist unless . . . the defendant exhibited a
cold intent to kill and is more contemplative, more methodical, more
controlled than that necessary to commit premeditated first degree
murder.’” Id. ¶ 104 (citation omitted).

¶93          The instruction further defined the terms “cold” and
“calculated” and “emphasized that the jury must look to the defendant’s

                                         28
                             STATE V. RILEY
                            Opinion of the Court

state of mind at the time of the offense to determine whether there exists
any pretense of moral or legal justification that rebuts cold and
calculated . . . .” Id. The instruction also required the jury to “find beyond
a reasonable doubt that there is (1) a careful plan or prearranged design
before the murder, and (2) a cool and calm reflection for a substantial period
of time before the murder.” Id. We ultimately concluded “[t]his instruction
adequately narrowed the aggravator, making it clear that it is not the cold
and calculated nature of every murder that will satisfy it, but that the jury
must find some degree of reflection and planning that goes beyond the
premeditation required to find first degree murder.” Id. ¶ 105.

¶94           Here, the (F)(13) instruction provided to Riley’s jury was
materially identical to the Hausner instruction with one exception: the
instruction here did not include the baseline statement that all first degree
murders are cold and calculating to some extent. Riley’s argument that the
absence of this statement renders the instruction insufficient to
constitutionally narrow the aggravator is unpersuasive for several reasons.

¶95           First, the instruction from the Florida Supreme Court to
which we approvingly compared the Hausner instruction did not contain
any such baseline statement. See Jackson, 648 So. 2d at 89–90, 89 n.8. Second,
the instruction here expressly stated that the aggravator “require[d] more
than the premeditation necessary to find a defendant guilty of first degree
murder” and required the jury to find “a heightened degree of
premeditation” as compared to first degree murder. Finally, like the
instruction in Hausner, it expressly defined “cold” and “calculated” and
further distinguished the aggravator from other first degree murders by
requiring a finding that the murder was “more contemplative, more
methodical, [and] more controlled than that necessary to prove
premeditated first degree murder.” These numerous distinctions between
the aggravator and other first degree murders satisfy Hausner’s
requirement that a proper instruction must inform the jury that it “must
find some degree of reflection and planning that goes beyond the
premeditation required to find first degree murder.” See Hausner, 230 Ariz.
at 83 ¶ 105.

¶96          If we were to determine that the absence of the baseline
statement renders the instruction insufficient to narrow the aggravator,
such an error would unquestionably be fundamental. See, e.g., Maynard v.
Cartwright, 486 U.S. 356, 362 (1988) (“[C]hanneling and limiting of the

                                     29
                              STATE V. RILEY
                             Opinion of the Court

sentencer’s discretion in imposing the death penalty is a fundamental
constitutional requirement for sufficiently minimizing the risk of wholly
arbitrary and capricious action.”). But because Riley contends that this
error went to the foundation of his case or deprived him of a right essential
to his defense, it would not require reversal because Riley failed to show
prejudice. Escalante, 245 Ariz. at 140 ¶ 16; see also Henderson, 210 Ariz. at 568
¶ 24. The evidence produced at trial overwhelmingly established that Riley
acted in a cold and calculated manner that exceeded the norm of first degree
murders. The contents of his letter, corroborated by the evidence from the
night of the murder, show that Riley actively sought out a potential target,
requested permission from the AB leadership to kill his target, ignored the
advice from other inmates who discouraged his plans, and concocted a plan
to get in and out of Kelly’s pod and cell. He also packed his belongings and
changed his mailing address in anticipation of repercussions from
completing the murder.

¶97           In sum, the (F)(13) instruction provided to the jury sufficiently
narrowed the facially vague aggravator; therefore, the instruction, as
provided, did not constitute error. Even if the lack of a baseline statement
did constitute fundamental error, Riley did not suffer prejudice.

       G.     Constitutionality of the (F)(6) Aggravating Factor

¶98           The § 13-751(F)(6) aggravator provides: “The defendant
committed the offense in an especially heinous, cruel or depraved manner.”
Riley argues that the (F)(6) aggravator is unconstitutional for two reasons:
(1) this Court’s lack of finite limitations on the (F)(6) aggravator render it
unconstitutionally vague; and (2) any meaningful guidance, if it does exist,
cannot be adequately conveyed through jury instructions. We review the
constitutionality of aggravating factors de novo. State v. Nelson, 229 Ariz.
180, 186 ¶ 25 (2012).

¶99           In January 2015, Riley filed a pre-trial motion to strike the
(F)(6) aggravator, in part, for the same reasons articulated above. The trial
court subsequently rejected Riley’s motion. At trial, the jury instructions—
approved by Riley—read as follows:

              Concerning this aggravating circumstance, all
              first degree murders are, to some extent,
              heinous, cruel or depraved. However, this

                                       30
                            STATE V. RILEY
                           Opinion of the Court

             aggravating circumstance cannot be found to
             exist unless the State has proved beyond a
             reasonable doubt that the murder was
             “especially” cruel, “especially” heinous or
             “especially” depraved. “Especially” means
             “unusually great or significant.”

             The term “especially cruel,” or “especially
             heinous or depraved” are considered
             separately; therefore, the presence of any one
             circumstance is sufficient to establish this
             aggravating circumstance. However, to find
             that this aggravating circumstance is proven,
             you must find that “especially cruel” has been
             proven unanimously beyond a reasonable
             doubt or that “especially heinous or depraved”
             has been proven unanimously beyond a
             reasonable doubt.

             The term “cruel” focuses on the victim’s pain
             and suffering. To find that the murder was
             committed in an “especially cruel” manner, you
             must find that the victim consciously suffered
             physical or mental pain, distress or anguish
             prior to death. The defendant must know or
             should have known that the victim would
             suffer.

             The term “especially heinous or depraved”
             focuses upon the defendant’s state of mind at
             the time of the offense, as reflected by the
             defendant’s words and acts. A murder is
             especially heinous if it is hatefully or shockingly
             evil; in other words, grossly bad. A murder is
             especially depraved if it is marked by
             debasement,     corruption,       perversion     or
             deterioration.

The instructions further defined “relishing,” “gratuitous violence,” and
“mutilation.” At the end of the aggravation phase, the jury unanimously

                                     31
                              STATE V. RILEY
                             Opinion of the Court

found that the State had proved that Riley committed the murder in both
an especially cruel manner and an especially heinous or depraved manner.

¶100            In State v. Gretzler, this Court described circumstances, or
factors, which narrowed the meaning and constitutional application of the
“especially heinous, cruel, or depraved” aggravators. 135 Ariz. 42, 50–53
(1983). In Walton v. Arizona, the Supreme Court found this aggravating
factor facially vague, but it held that Gretzler’s definition of the provision
rendered it “constitutionally sufficient because it [gave] meaningful
guidance to the sentencer.” 497 U.S. 639, 654, 655 (1990), overruled on other
grounds by Ring v. Arizona, 536 U.S. 584 (2002). Although Riley does not
argue that Walton was wrongly decided, he contends it no longer protects
the constitutionality of Arizona’s (F)(6) aggravator because “[t]he Supreme
Court’s . . . justifications for upholding Arizona’s vague [(F)(6)] aggravator
no longer exist.”

¶101            First, Riley contends that our interpretation of the Gretzler
factors as non-exclusive guides contradicts the Supreme Court’s reliance on
Gretzler as a finite list of limiting factors. See Walton, 497 U.S. at 655 (finding
this Court’s definitions of the (F)(6) aggravators to be constitutionally
sufficient). Contrary to Riley’s argument, the Supreme Court has noted that
this Court did not view the Gretzler factors as an exclusive list. Indeed,
Walton expressly noted the availability of multiple constructions of the
(F)(6) aggravator that would be “constitutionally acceptable.” Id. (citing
Maynard, 486 U.S. at 365); id. at 695 (Blackmun, J., dissenting) (“Since its
decision in Gretzler, the Arizona Supreme Court has continued to identify
new factors which support a finding that a particular murder was heinous
or depraved.”). Our expansion of the Gretzler factors, therefore, does not
render its guidance—embodied in the jury instructions—any less
meaningful.

¶102          Second, Riley contends “[t]his Court has affirmatively created
more of a constitutional problem by removing any meaning from the word
‘especially.’” He argues the dictionary definition of especial and our
historical analysis of the (F)(6) aggravator requires that a “jury must be able
to compare the factor against the norm” or the “prototypical murder.”
Although the jury instructions included a definition of “especially,” Riley
maintains a mere definition of the word “give[s] the jury no way to
determine whether the [defendant’s] conduct meets this definition.”
Effectively, Riley is making an argument we rejected in State v. Johnson:

                                        32
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                              Opinion of the Court

“that the term ‘especially’ in [§ 13-751(F)(6)] 3 essentially requires some kind
of comparison between death-eligible murder cases and the ‘norm.’” 212
Ariz. 425, 431–32 ¶¶ 19–20 (2006) (rejecting that argument based on this
Court’s prior rejection of proportionality review).

¶103           Riley errs here by patching together a non-existent “above the
norm test” that effectively revives proportionality review, which we
abandoned in State v. Salazar, 173 Ariz. 399, 416–17 (1992). Undoubtedly, as
Riley argues, the death penalty “should be reserved for cases in which
either the manner of the commission of the offense or the background of the
defendant places the crime ‘above the norm of first-degree murders.’” See
State v. Carlson, 202 Ariz. 570, 582 ¶ 45 (2002) (quoting Hoskins, 199 Ariz. at
163 ¶ 169); see also State v. Andriano, 215 Ariz. 497, 506 ¶ 43 (2007) abrogated
on other grounds by State v. Ferrero, 229 Ariz. 239 (2012) (“[J]urors must assess
whether the murder was so cruel that it rose above the norm of first degree
murders.”). But we have never held that a jury must compare one murder
to another, and we have expressly rejected the argument that juries must be
informed of any comparison to the “norm.” See State v. Bocharski, 218 Ariz.
476, 487–88 ¶¶ 47–50 (2008).

¶104          Indeed, by providing statutory aggravators and
constitutionally acceptable definitions to the terms “especially heinous,
cruel, or depraved,” the legislature and this Court have provided juries
with the means to distinguish a murder that satisfies the (F)(6) aggravator
from the “norm.” See Carlson, 202 Ariz. at 582 ¶ 45; see also State v. Hidalgo,
241 Ariz. 543, 551–52 ¶¶ 27–28 (2017) (noting that Arizona’s death penalty
scheme provides several means of narrowing the class of death-eligible
persons). In other words, the specific, thorough definitions as to what
constitutes “especially heinous, cruel, or depraved” murder necessarily
imply that “normal” murders do not meet these definitions; thus, juries do
not require any comparison of the facts before them to other murders.
Although Riley may be correct in stating “[t]he ‘above the norm’ standard
in the (F)(6) is not and never has been a proportionality review,” the
standard to which he is referring has never required juries to compare the
facts of one murder against another. This standard is satisfied by
constitutionally acceptable jury instructions that provide meaningful
guidance to the jury.



3   Previously A.R.S. § 13-703(F)(6).
                                        33
                              STATE V. RILEY
                             Opinion of the Court

¶105            Finally, to the extent that Riley challenges the constitutional
sufficiency of the definitions provided in the jury instructions, we have
repeatedly upheld jury instructions materially identical to those here. See,
e.g., State v. Medina, 232 Ariz. 391, 408–09 ¶¶ 74–75 (2013); State v. Prince,
226 Ariz. 516, 531–33 ¶¶ 48–54 (2011); Gallardo, 225 Ariz. at 566 ¶¶ 21–23;
State v. Chappell, 225 Ariz. 229, 237–38 ¶ 27 (2010); State v. Pandeli (“Pandeli
III”), 215 Ariz. 514, 523–24 ¶¶ 20–21 (2007).

¶106           Assuming our jurisprudence has provided meaningful
guidance, Riley argues that guidance cannot be “adequately reduced to a
jury instruction.” Although Riley attempts to introduce a novel argument
here—contrasting the descriptive nature of this guidance against the
prescriptive nature of jury instructions—we have repeatedly held that the
(F)(6) aggravator may be constitutionally applied if given substance and
specificity by jury instructions that follow our constructions. See Anderson,
210 Ariz. at 352–53 ¶¶ 109–14; see also Hargrave, 225 Ariz. at 13 ¶ 44;
Andriano, 215 Ariz. at 505 ¶ 38; State v. Tucker, 215 Ariz. 298, 310 ¶ 28 (2007);
Cromwell, 211 Ariz. at 188–89 ¶¶ 40–42.

¶107          Riley first posits “[t]he rationale of Walton does not apply to
jury sentencing” because Walton was decided at a time when the sentencers
in Arizona were trial judges, who “are presumed to know the law and
apply it in making their decisions.” He focuses once more on the word
“especially,” arguing that the descriptive nature of our guidance grants trial
judges—but not juries—the necessary context to distinguish between
“normal” murders and “especially heinous, cruel, or depraved” murders.
But we rejected a similar argument in Cromwell, stating “Supreme Court
case law . . . dispels that notion because it distinguishes constitutional
statutes from unconstitutional statutes on the basis of the clarifying
definition, not on the supposition that judges may apply the statute one
way and jurors another.” 211 Ariz. at 189 ¶ 44 (citing Maynard, 486 U.S. at
365). Because the Supreme Court has held constitutional our definitions of
the (F)(6) aggravator, jury instructions that convey those definitions with
adequate specificity protect the constitutionality of the (F)(6) aggravator
when a jury, rather than a judge, conducts the fact-finding.

¶108         Relying on one sentence from Newton v. Main, Riley also
contends jury instructions must be prescriptive. See 96 Ariz. 319, 321 (1964)
(“The test to be used in determining the correctness of instructions is
whether upon the whole charge the jury will gather the proper rules to be

                                       34
                              STATE V. RILEY
                             Opinion of the Court

applied in arriving at a correct decision.”). He argues that jury instructions
must “establish a formula into which a sentencer might insert facts to
determine the existence of an . . . aggravating factor.” Therefore, according
to Riley, our descriptive guidance cannot satisfy this requirement.

¶109          Our discussion on jury instructions in Newton does not
support this novel proposition. Both Newton and the cases upon which it
relied examined jury instructions for correctness—that is, for correct
statements of the law. See Newton, 96 Ariz. at 320; see also Musgrave v.
Githens, 80 Ariz. 188, 192–93 (1956); Daly v. Williams, 78 Ariz. 382, 387 (1955).
Nothing in Newton or any other Arizona case suggests that courts must
provide juries with formulaic plug-and-play instructions.

¶110           In sum, Riley has provided no valid arguments challenging
the constitutional sufficiency of our guidance regarding Arizona’s (F)(6)
aggravator or the constitutional applicability of the aggravator by a jury,
rather than a judge. Accordingly, Riley is not entitled to relief on this issue.

       H.     Inclusion of the Accomplice Liability Instruction During
              Aggravation Phase

¶111          Riley argues that the prosecutor’s recitation of the guilt-phase
accomplice liability instruction (“accomplice instruction”) in the
aggravation phase violated the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution because they contradicted
the jury instructions for the (F)(6) and (F)(13) aggravators and lessened the
State’s burden to prove those aggravators beyond a reasonable doubt.
Although Riley initially objected to the prosecutor’s introduction of the
accomplice instruction, he withdrew that objection. Because Riley did not
object to the reference to the accomplice jury instruction, we review for
fundamental error. See Anderson, 210 Ariz. at 341 ¶ 45.

¶112          During the trial’s aggravation phase, Riley’s attorney made
several statements that seemed to contest his guilt. Specifically, Riley’s
attorney stated:

              Let’s look at the evidence. When Dr. Hu
              testified, he can’t say what wounds—or who
              caused the wound exactly. And he can’t say


                                       35
                            STATE V. RILEY
                           Opinion of the Court

             when Sean Kelly was unconscious. It could
             have been the first wound.
             ....
             No gratuitous violence. You see [sic] and you
             heard testimony there were other people
             involved in this. Other people involved. If
             there is [sic] other people involved, how do we
             know beyond a reasonable doubt—which is the
             law—that Mr. Riley was the one who caused all
             this infliction or violence to Mr. Riley? [sic]
             Who can say that? I wasn’t there. The State
             wasn’t there.

¶113          To counter these statements, the prosecutor read, on rebuttal,
an excerpt from the guilt-phase accomplice instruction, stating:

             The defendant is criminally accountable for the
             conduct of another if the defendant is an
             accomplice of such other person in the
             commission of the offense, including any
             offense that is a natural and probable or
             reasonably foreseeable consequence of the
             offense for which the person was an accomplice.

Riley initially objected to the prosecutor’s statement, but he withdrew his
objection once he understood that the prosecutor was reading from the
guilt-phase instruction.

¶114         After reading the accomplice instruction, the prosecutor
remarked:

             In other words, if you’re in for a penny, you’re
             in for a pound. You do not need to know which
             wound was inflicted by Thomas Riley. That’s
             not the law that the judge gave you.

             The law in the state of Arizona is that if you and
             your accomplices go out and start stabbing
             somebody, you don’t get to run to the jury and
             say: Oh, I don’t know which one I inflicted.

                                    36
                            STATE V. RILEY
                           Opinion of the Court


             In for a penny, in for a pound. That is the law.
             And these guys were working in concert with
             each other. By the defendant’s own admission,
             he stabbed the most. You do not need to focus
             on which one did what. The law doesn’t make
             that distinction.

             And that makes sense. You don’t get the benefit
             that: I stabbed him too many times. I couldn’t
             keep track.

             You don’t get that benefit. That is not the law.

             So go back and look at your instructions. But on
             page 29, you will see: If you and your
             accomplices are—if you’re the lookout and
             they’re in there, you are still accountable. That’s
             the law. And it’s right there in black and white,
             page 29.

¶115           Riley argues that the prosecutor’s reading of the accomplice
instruction, combined with his statements on accountability, amounted to
an instruction to the jury about how it should weigh the evidence presented
during the aggravation phase. Riley contends this was fundamental error
because the accomplice instruction and the aggravation-phase instructions
conflict: The accomplice instruction allows for a conviction based on a co-
conspirator’s actions, but the aggravation instructions require the jury to
find that the defendant individually had the requisite mens rea. He further
argues that this was fundamental error because it relieved the State of its
burden to prove Riley had the requisite mens rea for the (F)(6) and (F)(13)
aggravators. Finally, Riley argues that the inclusion of the accomplice
instruction was prejudicial because the (F)(6) and (F)(13) aggravators were
the “most powerful aggravators” found, and without them a reasonable
jury could have sentenced Riley to life, not death.

¶116          The State’s introduction of the guilt-phase accomplice
instruction in the aggravation phase did not constitute an error, much less
a fundamental one. Riley’s statements regarding causation could be
construed to contest his guilt rather than the aggravating factors. It was

                                     37
                             STATE V. RILEY
                            Opinion of the Court

proper, therefore, for the prosecutor to rebut those statements by drawing
the jury’s attention to the guilt-phase accomplice instruction. See A.R.S.
§ 13-751(D) (“The prosecution and the defendant shall be permitted to rebut
any information received at the aggravation or penalty phase of the
sentencing proceeding and shall be given fair opportunity to present
argument as to whether the information is sufficient to establish the
existence of any of the circumstances included in subsections F and G of
this section.”).

¶117          But even assuming that the introduction of the accomplice
instruction constituted fundamental error that went to the foundation of his
case or deprived him of a right essential to his defense, Riley failed to show
that he was prejudiced. To prove prejudice, he has the burden of showing
that a reasonable jury could have come to a different verdict. See Escalante,
245 Ariz. at 144 ¶ 29. Riley failed to meet that burden.

¶118           After the aggravation phase, the jury had sufficient evidence
to find the State proved the (F)(6) and (F)(13) aggravators beyond a
reasonable doubt. No reasonable jury would have found the murder—a
stabbing death with over 100 stab wounds inflicted with prison shanks—
was not conducted in a cruel, heinous, and depraved manner. Likewise,
Riley’s letter shows that he planned the murder beforehand and that his
motive was to become a patched member of the AB, demonstrating along
with other evidence that the murder was “committed in a cold, calculated
manner without pretense of moral or legal justification.” A.R.S. § 13-
751(F)(13) (2012).

¶119            Although Riley asserts that the jury would not have found
these aggravators absent the accomplice instruction, nothing in the record
supports that assertion. Taken altogether, the evidence discussed above
was more than sufficient to allow the jury to find beyond a reasonable
doubt—before the prosecutor introduced the accomplice instruction—that
the State proved the (F)(6) and (F)(13) aggravators. Even if this Court
ignores the fact that the prosecutor read the accomplice instruction to rebut
Riley’s re-litigation of his guilt during the aggravation phase, Riley’s letter
served to prove these aggravators regardless of whether the accomplice
instruction was presented erroneously.

¶120          Accepting Riley’s argument that the jury would not have
found the (F)(6) and (F)(13) aggravators absent the accomplice instruction,

                                      38
                              STATE V. RILEY
                             Opinion of the Court

Riley still would be unable to prove that the outcome (i.e., the jury’s death
sentence verdict) could have been different. The jury found the State
proved three other aggravators beyond a reasonable doubt, and Riley does
not challenge them. Rather, he argues that the remaining aggravators—
conviction of a prior serious offense, current offense committed in custody,
and current offense committed to promote a criminal street gang—were
weaker aggravators and intrinsic to the offense. And according to Riley, a
reasonable jury left with only these “weaker” aggravators could have
rendered a life sentence rather than a death sentence.

¶121           To support his argument, Riley cites to State v. Willoughby,
where we stated that the quality of the aggravating factor should be
considered when weighing aggravators against mitigation evidence. 181
Ariz. 530, 549 (1995). But against his counsel’s advice, Riley waived his
right to present mitigation evidence—there was little for the jury to weigh
the aggravators against. Under these circumstances, in which Riley
committed an in-custody murder to promote a violent gang, even absent
the (F)(6) and (F)(13) aggravators, he failed to carry his burden to show that
a reasonable jury could have reached a different conclusion. See Escalante,
245 Ariz. at 144 ¶ 29; see also Hausner, 230 Ariz. at 84 ¶ 114 (finding that even
if an (F)(13) aggravator was improperly considered by the jury, the three
remaining, proven aggravators were sufficient for the jury to render a death
sentence).

¶122           Riley also challenges the prosecutor’s statement
accompanying his introduction of the guilt-phase accomplice instruction
wherein he told the jury that Riley was accountable for the actions of his co-
conspirators. As discussed, supra ¶ 116, the prosecutor’s comments are not
improper because they properly rebutted Riley’s counsel’s statements
which addressed Riley’s guilt, not his mindset. See § 13-751(D). But Riley
is correct that his guilty verdict for first degree murder does not relieve the
State of its burden of proving, at the aggravation stage, his level of
involvement in the murder and his mindset in relation to the (F)(6) and
(F)(13) aggravators. See State v. Garcia, 224 Ariz. 1, 13 ¶ 44 (2010) (noting
that Arizona law “specifically requires the trier of fact to make
Enmund/Tison findings in the aggravation phase.”) (quoting State v. Garza,
216 Ariz. 56, 67 ¶ 46 (2007)). However, we find no error, fundamental or
otherwise, because Riley does not allege Enmund/Tison error and evidence
of his involvement in Kelly’s murder is overwhelming.


                                       39
                            STATE V. RILEY
                           Opinion of the Court

¶123           In sum, the prosecutor’s comments were proper to rebut the
re-litigation of Riley’s guilt. Even if the comments were an error, Riley has
failed to carry his burden of proving a reasonable jury could have found a
death sentence inappropriate.

      I.     Prosecutorial Misconduct

¶124            Riley argues that several of the prosecutor’s statements
constitute misconduct because they deprived him of his due process and
fair trial rights guaranteed by the Fifth and Fourteenth Amendments to the
United States Constitution and article 2, sections 4 and 24 of the Arizona
Constitution.

¶125          “In determining whether an argument is misconduct, we
consider two factors: (1) whether the prosecutor’s statements called to the
jury’s attention matters it should not have considered in reaching its
decision and (2) the probability that the jurors were in fact influenced by
the remarks.” Goudeau, 239 Ariz. at 466 ¶ 196 (internal quotation marks
omitted). Because Riley did not object to the statements below, we review
for fundamental error. See Anderson, 210 Ariz. at 341¶ 45.

             i.      Juror Questionnaire’s Description of Aggravating Factors
                    and Inclusion of Accomplice Liability Instructions in
                    Aggravation Phase

¶126           Riley contends that the jury questionnaire’s description of
aggravating factors as “very few” and “very specific” constitutes
prosecutorial misconduct. We note this is barren soil for such a claim since
the trial court must approve the questionnaire. In any event, as discussed,
supra ¶¶ 24–36, while there was error in this description of Arizona’s
aggravating factors, it was not fundamental. Similarly, Riley argues that
the prosecutor’s inclusion of the accomplice liability instruction during
aggravation phase constitutes prosecutorial misconduct. As we explain
above, supra ¶¶ 111–23, there was no error, and even if there were, it was
not fundamental.       Accordingly, Riley’s argument on this point is
unavailing.

             ii.    Prosecutor’s Statements Regarding “Crossing the Line”

¶127        During the defense’s penalty-phase closing argument,
defense counsel argued that the death penalty is meant for truly heinous
                                  40
                             STATE V. RILEY
                            Opinion of the Court

murderers like Ted Bundy, Jeffrey Dahmer, Charles Manson, Timothy
McVey, etc., stating:

              The worst of the worst. That is what [the death
              penalty] is reserved for. That is who the death
              penalty was founded for, the worst of the worst.
              It was founded for Timothy McVey, the
              Oklahoma Bomber. You see how the death
              sentence is applied to the worst of the worst.
              Mr. Riley is not the worst of the worst for our
              society.

In rebuttal, the prosecutor stated, “[I]t is standard practice to talk about
Jeffrey Dahmer and Charles Manson and everything else, but the law
doesn’t care how far you cross the line. The law only matters [sic] that you
cross it.” Riley argues that this comment misstated the law because simply
killing another person does not mean that the death penalty is warranted
and that the misstatement “so infected the trial with unfairness as to make
the resulting conviction a denial of due process” because the trial court did
not correct it.

¶128         Riley also argues that these statements constitute
fundamental error because they lessened the burden on the State to prove
aggravators. However, as the State points out, the statements were made
in the penalty phase—after the jury had already found aggravators—so
they could not have lessened the burden of proving aggravators.

¶129           “Prosecutors are given ‘wide latitude’ in presenting closing
argument to the jury.” Goudeau, 239 Ariz. at 466 ¶ 196. “[I]f the prosecutor’s
remarks were ‘invited,’ and did no more than respond substantially in
order to ‘right the scale,’ such comments would not warrant reversing a
conviction.” United States v. Young, 470 U.S. 1, 12–13 (1985); see also State v.
Alvarez, 145 Ariz. 370, 373 (1985) (“Prosecutorial comments which are a fair
rebuttal to areas opened by the defense are proper.”).

¶130         Riley’s argument is unpersuasive. Riley’s comments that the
death penalty is “reserved” for the “worst of the worst” like mass
murderers and serial killers is clearly contrary to the law, and those
comments could have led the jury to believe that they could not vote for the
death penalty because Riley is neither a mass murderer nor a serial killer.

                                      41
                             STATE V. RILEY
                            Opinion of the Court

Riley’s comments invited the prosecutor to respond to “right the scale.” See
Young, 470 U.S. at 12–13. Thus, the prosecutor’s comments did not draw
“the jury’s attention [to] matters it should not have considered in reaching
its decision.” See Goudeau, 239 Ariz. at 466 ¶ 196 (quoting Nelson, 229 Ariz.
at 189 ¶ 39). And if the statement influenced the jury, it influenced it to the
legally correct conclusion: One does not have to be a mass murderer or
serial killer to receive the death penalty. The prosecutor acted well within
his “wide latitude” in his response and there is no error here.

              iii.   Prosecutor’s   Statements   Allegedly   Unsupported    by
                     Evidence

¶131          Riley contends that the prosecutor engaged in misconduct by
making several comments unsupported by the evidence during the guilt
and penalty trial phases, resulting in fundamental, prejudicial error.
“Specific evidence may be referenced in the opening statement as long as
the proponent has a good faith basis for believing the proposed evidence
exists and will be admissible.” State v. Pedroza-Perez, 240 Ariz. 114, 116 ¶ 12
(2016). We address in turn each of the prosecutor’s contested statements.

¶132           First, the prosecutor stated in his guilt-phase opening
statement, “Now, Sean Kelly was just a guy. He was in prison because he’s
[sic] a drug addict and he was caught in the revolving door of prison,
addiction, prison, even though he had a loving family that cared for him.”
That Kelly had a loving family was later corroborated by the victim impact
statements of his former fiancé and their daughter. Although no evidence
was presented to show that Kelly was a drug addict or that he was caught
in a “revolving door of prison,” no misconduct occurred because there was
a very low probability that the prosecutor’s statement would improperly
influence the jury by characterizing Kelly as a sympathetic victim. See
Goudeau, 239 Ariz. at 466 ¶ 196. If anything, the statement made Kelly a
less-sympathetic victim because it described him as a drug addict and
recidivist criminal.

¶133          Second, the prosecutor stated in his guilt-phase opening
statement:

              Sean [Kelly] had to go into protective custody
              because while he was in prison once, he refused


                                      42
                            STATE V. RILEY
                           Opinion of the Court

             to commit an act of violence on another inmate,
             so he was forced to go into PC.

             Now in the outside world, that would be
             normal. But to the world that the defendant
             lived in and the world of the [AB], that’s
             weakness. And weak inmates are targets for
             men who want membership in the [AB].

This statement was later corroborated by expert witness testimony on gang
culture as well as Riley’s letter. The prosecutor’s good faith is evinced by
this corroboration. There is no misconduct here.

¶134           Third, the prosecutor stated in his guilt-phase opening
statement, “[A shank is] designed for one purpose and one purpose only
and that is to kill.” This statement is corroborated by expert testimony that
shanks are weapons. Certainly, the lethal purpose of the shanks in this case
is evinced by the fact that Kelly was killed with them. No misconduct
occurred here.

¶135           Fourth, the prosecutor stated in his guilt-phase opening
statement, “The door to Sean’s cell had been left open probably by Sean’s
cellmate Kenneth Severns who was not inside the cell.” Riley interprets this
statement as meaning that “[Sean Kelly’s] cellmate left open the cell door in
order to facilitate the offense.” Riley misinterprets the prosecutor’s
statement. The prosecutor said that Severns probably left the cell door
open—he did not assert that Severns did so to facilitate the murder. That
Severns probably left the door open was later corroborated by Officer
Vincent’s testimony that Severns was outside his cell during the time when
Kelly was murdered. The statement did not imply that Severns left the door
open to facilitate Kelly’s murder. No misconduct occurred here.

¶136         Fifth, the prosecutor stated in his guilt-phase opening
statement:

             Now Eric Olsen lived in the C Pod so he was
             able to slither away quickly back to his cell
             unnoticed. But the defendant and his cellmate
             and accomplice, Dennis Levis, had farther to go.


                                     43
                             STATE V. RILEY
                            Opinion of the Court

              They had to cross from Cell 6 back to Cell A—
              or back from Cell 6 to A Pod to Cell 9.

Riley interprets this statement to mean that Olsen was an accomplice “and
was able to get back to his cell without being seen.” That Olsen lived in C
Pod while Levis and Riley lived in A Pod was later corroborated by Officer
Todd Springsteen and Officer Dziadura. Further, the State charged Riley
with first degree murder. An element of first degree murder is
premeditation. A.R.S. § 13-1105(A)(1). Olsen’s alleged participation shows
premeditation because it would tend to show that the murder was planned
beforehand, so the prosecutor’s comments did not “call[] to the jury’s
attention matters it should not have considered in reaching its decision.”
See Goudeau, 239 Ariz. at 466 ¶ 196 (quoting Nelson, 229 Ariz. at 189 ¶ 39).
Rather, the comments appropriately drew the jury’s attention to an element
of the charged crime. No misconduct occurred here.

¶137           Sixth, the prosecutor stated in his guilt-phase closing
argument, “Where did they stab? What did Dr. Hu tell you? . . . Where are
they stabbing with these knives? The neck, the heart, the kidney. There is
nowhere that you can put this in your neck and not be lethal.” The last
sentence was not supported by Dr. Hu’s testimony because he did not
testify that every neck stab wound is lethal; however, it is not clear that the
prosecutor intended to attribute his comment on the lethality of neck
wounds to Dr. Hu. More importantly, the statement was not misconduct
because it did not “call[] to the jury’s attention matters it should not have
considered in reaching its decision.” See id. Taken in context, this statement
was meant to impress upon the jury that stabbing someone in the neck is
generally lethal, evincing Riley’s intent to murder Kelly. Intent is an
element of first degree murder. See § 13-1105(A)(1). Further, there is no
reasonable probability that the jury was “influenced by the remarks” to find
intent where there was none. See Goudeau, 239 Ariz. at 466 ¶ 196. Kelly was
stabbed 114 times. Even without the prosecutor’s characterization of neck
wounds as always being fatal, the jury could find intent to murder from the
number and location of Kelly’s stab wounds. Thus, this statement was well
within the “wide latitude” given to parties in closing argument and was not
misconduct. See id.

¶138          Seventh, the prosecutor stated in his guilt-phase closing
argument, “But what Dr. Hu told you is that it’s impossible, impossible for
blood spatter to get behind your ear and onto—the small little particles onto

                                      44
                            STATE V. RILEY
                           Opinion of the Court

your body if the victim is dead.” This is a reasonable inference from Dr.
Hu’s testimony that bleeding does not occur if the heart is not beating. See
id. No misconduct occurred here.

¶139         Finally, the prosecutor stated in his guilt-phase closing
argument:

             So the question is who did it. We constantly
             heard about cell seven and cell one. Cell seven
             we can eliminate right off the bat. But the
             moment CO [correctional officer] Franco—the
             idea cell seven had anything to do with this
             crime was blown out the window. It was
             impossible. CO Franco told you that she stood
             at that cell, she spoke to the inmates—to those
             inmates and she shut the door.

             So that only leaves whoever was up on the
             second tier and CO Vincent told you that she
             had an eye on them. And it’s just common
             sense. There was no way they could rush down,
             whoever these mystery little inmate ninjas are,
             completely undetected, stab, stab, stab, rush
             back up and do this without leaving a lick of
             blood.

Riley interprets this statement to mean that “[n]o one could come down
from the second tier of the cell block without CO Vincent’s knowledge.”
But the prosecutor’s statements are “reasonable inferences from the
evidence.” See id. Specifically, Officer Vincent testified that she was
watching the area, and Exhibit 14 shows that she had a full vantage point
of both tiers of C Pod. No misconduct occurred here.

             iv.    Consistency of Prosecutor’s Remarks During Guilt-Phase
                    Opening Statements and Aggravation-Phase Closing
                    Arguments

¶140         Riley briefly argues that the prosecutor committed
misconduct when he made inconsistent statements during guilt-phase
opening statements and aggravation-phase closing arguments concerning

                                    45
                            STATE V. RILEY
                           Opinion of the Court

whether Riley targeted Kelly or whether Kelly’s murder was at random.
The guilt-phase opening statements are the following:

             Sean had to go into protective custody because
             while he was in prison once, he refused to
             commit an act of violence on another inmate, so
             he was forced to go into PC.

             Now in the outside world, that would be
             normal. But to the world that the defendant
             lived in and the world of the [AB], that’s
             weakness. And weak inmates are targets for
             men who want membership in the [AB].

The aggravation-phase closing statements at issue are the following:

             He [Riley] says—I believe it’s on page 2 or 3 [of
             his letter]—that he is hunting big time. He is
             hunting. He is not hunting for one person,
             specifically. He is coldly and dispassionately
             laying out any target that he can get. It doesn’t
             matter who. Any golden goose.

¶141          These statements are not inconsistent. The prosecutor’s
statements reflect the State’s theory that the AB targeted Kelly because of
his previous actions and that Riley did not care who he killed so long as it
gained him admission to the AB. Once Riley received AB approval, he
killed Kelly not because he had previously targeted him, but because the AB
sanctioned the murder and rewarded Riley for killing Kelly. No error
occurred here.

¶142           Riley asserts there was another inconsistency in the guilt-
phase opening statement and closing arguments. In the opening statement,
the prosecutor told the jury Olsen was able to “slither away quickly back to
his cell unnoticed.” See supra ¶ 136. However, in the closing, the prosecutor
stated that CO Vincent had a view of the second tier and none of the
prisoners could have rushed down to commit the murder. See supra ¶ 139.
Because Olsen lived on the second tier, Riley argues the comments were
inconsistent.


                                     46
                             STATE V. RILEY
                            Opinion of the Court

¶143          These statements may be inconsistent; however, Riley cites to
no case law, and we have found none, which holds that inconsistent
statements per se constitute misconduct. Rather, the standard for
determining misconduct remains the two-prong Goudeau test. 239 Ariz. at
466 ¶ 196. Evidence of Olsen’s participation, as discussed in the first
statement, was proper because it tended to show premeditation, which is
an element of first degree murder. See § 13-1105(A)(1). As for the second
statement, suggestion of Olsen’s non-participation did not bring anything
to the attention of the jury, for or against Riley. If anything, such an
inconsistency likely inured to Riley’s benefit to the extent it undermined the
State’s theory. In any event, any inconsistency in the prosecutor’s
statements regarding Olsen’s participation in Kelly’s murder was unlikely
to influence the jury as to Riley’s guilt given the weight of the evidence. See
Goudeau, 239 Ariz. at 466 ¶ 196.

¶144           As a final note on the prosecutor’s opening statement and
closing argument, any prejudice was ameliorated by the trial court’s
curative instructions. When a trial court instructs the jury that the
statements made by the attorneys are not evidence, the instructions
“generally cure any possible prejudice from argumentative comments
during opening statements.” State v. Manuel, 229 Ariz. 1, 6 ¶¶ 23–24 (2011).
Here, the trial court instructed the jury three times that the statements made
by the attorneys were not evidence. Thus, any prejudice that Riley may
have suffered due to the prosecutor’s comments during opening statement
or closing argument is ameliorated by the trial court’s curative instructions.

              v.     Prosecutor’s Statements Regarding Lack of Witnesses for
                     Riley

¶145          Riley argues that the prosecutor committed misconduct by
asserting that no witnesses had come forward to testify due to AB
intimidation. In his guilt-phase closing argument, Riley said, “Now, all of
these guys are neighbors. Look at the photo in that exhibit. You’re telling
me that nobody heard any screaming. Nobody came forward and said that
they saw something or heard something. This was an inside-of-C-Pod job,
and their silence speaks volumes.” On rebuttal, the prosecutor said, “Why
wouldn’t people testify against Tommy Riley? . . . Maybe because the [AB]
did their job that day. What did Keland Boggs tell you? Fear and
intimidation is how they run the prisons.”


                                      47
                            STATE V. RILEY
                           Opinion of the Court

¶146          Here, Riley’s closing argument invited the prosecutor’s
response. See Young, 470 U.S. at 12–13; see also Alvarez, 145 Ariz. at 373.
Riley implied that no witnesses had come forward because the murder was
an “inside job,” thus evincing Riley’s innocence. The prosecutor rebutted
that the lack of witnesses was likely due to the AB’s intimidation tactics.
Further, this statement was a fair inference from the evidence. No
misconduct occurred here.

             vi.    Prosecutor’s Statements About Kelly’s Time in Protective
                    Custody

¶147         During the guilt-phase of the trial, the following colloquy
occurred between the prosecutor and Officer Dziadura:

             Q. With respect to Sean Kelly, what did you
             learn about the reasons why he had went into
             protective custody?

             A. Well, he was at our Douglas facility. He was
             asked by influential white inmates to assault
             another inmate. He refused to do so. They
             came back to him and told him if he wasn’t
             going to do it he needed to cover up some
             lightning bolts tattoo that he had on his person
             or be injured.

In his closing argument in the mitigation phase, the prosecutor said:

             They honestly got up there and asked you about
             how about it is [sic] the Department of
             Correction’s fault, how they create a kill-or-kill-
             be killed environment. You want to talk about
             kill-or-be-killed environment; he [Riley] is the
             kill-or-get-killed environment.

             You don’t have two more different people, Sean
             Kelly, who had to go to protective custody
             because he wouldn’t be a part of that world, and
             the defendant, who executed him. It is not kill
             or get killed. It is like that because people like

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                             STATE V. RILEY
                            Opinion of the Court

              Tommy Riley control the prisons. Men like
              Sean Kelly put their head down and do their
              time and they won’t attack another inmate.
              People like the defendant prey on that and they
              show no mercy.

¶148          Riley specifically challenges the statements that Kelly went
into protective custody to avoid the “kill-or-get-killed environment.” Riley
interprets the prosecutor’s commentary as asserting that Kelly had
renounced violence and argues that the prosecutor intended to portray
Kelly in a more positive light. Riley asserts this was intentional misconduct,
was fundamental error, and ultimately prejudiced him because Kelly’s
renunciation of violence was not in evidence, was irrelevant and, thus,
called the attention of the jury to matters which it should not have
considered.

¶149         Riley’s arguments are unpersuasive. First, the evidence of
why Kelly went into protective custody is relevant. See Ariz. R. Evid. 401.
The State’s theory was that Kelly was targeted because he entered
protective custody to avoid the AB’s directive to assault another inmate.
The comment, thus, tends to make Riley’s guilt more probable because it
shows motive which is relevant when determining guilt.

¶150          Second, the prosecutor’s commentary in his mitigation-phase
closing argument was a reasonable inference from the trial evidence,
namely Officer Dziadura’s testimony that Kelly went into protective
custody because he refused to assault another inmate and Boggs’s
testimony that refusing to earn a “political tattoo” could result in murder
of the refusing party. See Goudeau, 239 Ariz. at 466 ¶ 196. Accordingly, no
misconduct occurred here, much less fundamental error.

              vii.   Prosecutor’s Statements That Allegedly Inflamed the Jury’s
                     Passions

¶151          During the guilt-phase opening statement, the prosecutor
stated:

              Now Sean wasn’t a child molester, he wasn’t a
              rapist and he wasn’t a snitch. Sean had to go
              into protective custody because while he was in

                                     49
                            STATE V. RILEY
                           Opinion of the Court

             prison once, he refused to commit an act of
             violence on another inmate, so he was forced to
             go into PC.
             ...
             The man that the defendant chose to hunt and
             murder was a man by the name of Sean Kelly.
             Now, Sean Kelly was just a guy. He was in
             prison because he’s a drug addict and he was
             caught in the revolving door of prison,
             addiction, prison, even though he had a loving
             family that cared for him.

During the penalty-phase closing argument, the prosecutor illustrated the
differences between the victim, who went into protective custody to avoid
prison violence, and the defendant, who embraced it. See supra ¶ 147. Riley
argues that the prosecutor improperly intended “to promote a verdict
based on sympathy for the victim.”

¶152           Riley’s argument is unpersuasive. Even if we accept the
premise that these statements brought to the jury’s attention matters it
should not have considered—i.e., sympathy for the victim—there is little-
to-no probability that the statements—which characterized Kelly as a drug
addict and a recidivist offender—influenced the jury. See Goudeau, 239 Ariz.
at 466 ¶ 196. The statements were fleeting and unconnected, and the jury
was instructed four times to not take sympathy for the victim into account
when making its decision. See Escalante-Orozco, 241 Ariz. at 282 ¶ 102
(finding that fleeting comments made by the State did not constitute
fundamental, reversible error especially because the court instructed the
jury to not take sympathy for the victim into consideration).

¶153        Riley also objects to the prosecutor’s comments during the
penalty-phase closing argument. There, the prosecutor said:

             But he did not die alone. He did not die alone,
             because the defendant, like a jackal standing
             over a fresh kill, turned over his dying body and
             picked him clean from his clothing so that he
             could get away with this murder. That is how
             Sean Kelly died.


                                    50
                              STATE V. RILEY
                             Opinion of the Court

But unflattering analogies during closing arguments that are supported by
facts in common knowledge are permissible. State v. Jones, 197 Ariz. 290,
306 ¶ 41 (2000). In Jones, the prosecutor told the jury that just because the
defendant was a “nice guy” and “polite” did not mean that he could not
have committed the charged murders and mentioned that Ted Bundy and
John Wayne Gacy were also polite. Id. We found these statements to be
permissible because “jurors may be reminded of facts that are common
knowledge” and because the statement “drew an analogy between Jones’s
attitude at trial and that of well-known murderers.” Id.; see also Goudeau,
239 Ariz. at 465-66 ¶¶ 195–97 (referring to a defendant as a “wolf in sheep’s
clothing” during closing argument was not improper). Here, it is common
knowledge that jackals are opportunistic, predatory animals. Comparing
Riley’s cold act of divesting a dying man of his clothing from his cell to a
jackal’s actions was within the range of permissible argument.

¶154           Finally, Riley contends the prosecutor’s comment near the
conclusion of the penalty-phase closing argument invited the jury to convict
him based on anger rather than on the evidence presented. The prosecutor
said:

              You are here to uphold the law, and that is the
              law that the judge gave you. We can show our
              outrage at this crime through your verdict. We
              can show outrage at this crime through the
              punishment of the defendant.

¶155           First, it is not clear that this statement appealed to the jury’s
passions at all. The prosecutor urged the jury to express its outrage at the
crime for which Riley was already convicted by punishing him. Certainly,
it is proper for the State to urge the jury to punish a defendant for his crimes.
An invitation to show “outrage” at the crime does not invite the jury to
punish the defendant on anything other than the evidence presented at
trial.

¶156         Second, even if the statement were misconduct, it did not
amount to fundamental error. In Jones, the State asked the jury to convict
the defendant on behalf of the victim, their families, and the people of
Arizona. 197 Ariz. at 307 ¶ 43. Even though we acknowledged that such a
statement may have improperly evoked emotion in the jury, we found that
any error did not amount to reversible error because it was a single

                                       51
                              STATE V. RILEY
                             Opinion of the Court

statement, the evidence against the defendant was substantial, and any
error was cured by the trial judge instructing the jury to ignore statements
“invoking sympathy.” Id. at 306–07 ¶¶ 42–43. Here, the prosecutor made a
much less provocative statement, and the trial judge instructed the jury to
not be influenced by sympathy or passion on four separate occasions. Thus,
any error was cured by the trial court’s instructions.

              viii.   Prosecutor’s Elicitation of Testimony in Violation of Rules
                      of Evidence

¶157          Riley asserts that the prosecutor improperly elicited
testimony regarding Kelly’s time in protective custody and other evidence
in violation of Arizona’s Rules of Evidence. As discussed, supra ¶¶ 57–78,
any error that may have arisen from the admission of that evidence was not
fundamental. For this reason, Riley’s argument on this point fails.

              ix.     Cumulative Effect

¶158           We may reverse a conviction due to prosecutorial misconduct
if “the cumulative effect of the alleged acts of misconduct shows that the
prosecutor intentionally engaged in improper conduct and did so with
indifference, if not a specific intent, to prejudice the defendant.” Escalante-
Orozco, 241 Ariz. at 280 ¶ 91 (quoting Bocharski, 218 Ariz. at 492 ¶ 74). Riley
argues that the cumulative effect of the alleged misconduct proves the
prosecutor’s intent to prejudice him and his conviction should be reversed.
For the reasons discussed, we reject Riley’s claim; there was no error in the
prosecutor’s contested statements. Even if there were error, Riley has failed
to prove that the prosecutor did so with “indifference” or “specific intent.”
For these reasons, Riley is not entitled to relief on these grounds.

       J.     Failure to Instruct Jurors of Ineligibility for Parole

¶159          Riley argues that the trial court committed error by failing to
issue a Simmons instruction regarding his ineligibility for parole. See
Simmons v. South Carolina, 512 U.S. 154 (1994). Because Riley failed to object
on Simmons grounds during his trial, “our review [is limited] to
fundamental error.” State v. Bush, 244 Ariz. 575, 591 ¶¶ 66–68 (2018) (citing
State v. Valverde, 220 Ariz. 582, 584–85 ¶¶ 9–12 (2009), abrogated on other
grounds by Escalante, 245 Ariz. 135); see also Hargrave, 225 Ariz. at 14 ¶¶ 50–
51.

                                       52
                               STATE V. RILEY
                              Opinion of the Court

¶160          Riley argues that he sufficiently objected by submitting his
own Proposed Preliminary Instructions (guilt phase) that did not “include
the objectionable reference to release,” which the trial court rejected. This
argument is unpersuasive for two reasons. First, neither Riley’s nor the trial
court’s preliminary instructions read to the jury contained the
“objectionable reference to release” because the guilt phase instructions did
not pertain to the prospective penalty following conviction; thus, Riley’s
proposed guilt phase jury instructions cannot reasonably be construed as
an objection to the reference to release. Second, as discussed below, at no
point did Riley object to any reference to the possibility of release nor did
he affirmatively request an alternative instruction regarding his ineligibility
for parole.4

¶161           During jury selection, the trial court provided prospective
jurors with written questionnaires. Both Riley and the prosecutor reviewed
and approved the questionnaire at a pre-trial status conference. In
describing the penalty phase of the trial, the questionnaire stated, in
relevant part:

               If you unanimously find the mitigation is
               sufficiently substantial to call for leniency, the
               Court will sentence the defendant to either life
               imprisonment without the possibility of release
               or life without release until at least twenty-five years
               have passed.

Question 62 substantially reiterated that statement and asked the jurors if
they “agree[d] with the law that requires the judge, not the jury, to make
the decision about which type of life sentence to impose.”

¶162           On September 29, 2015, on the second day of voir dire, the
trial court discussed with the parties whether they wanted the trial court to
read an overview of the death penalty process to each juror panel before
questioning them. Riley stated that he was “comfortable” with the contents

4 Riley raises several other arguments for de novo or fundamental error
review, most of which are based on the proposition that a court must sua
sponte issue a Simmons instruction. Riley’s arguments are unavailing
because he fails to distinguish Bush, which expressly forecloses his claim in
light of his failure to object to his possibility of release. 244 Ariz. at 593 ¶ 75.

                                         53
                             STATE V. RILEY
                            Opinion of the Court

of the overview and, along with his counsel, agreed that the trial court
should read the overview to each panel. Two days later, during a
conference to settle miscellaneous matters, the trial court reiterated its
intent to read the overview to the jurors, and neither side objected nor
raised any concerns.

¶163           On October 5, before the first juror panel entered the
courtroom, the trial judge again reiterated his intent to read the overview
to the jurors, and neither side objected. As part of the overview, the trial
court informed the first juror panel that:

              If your sentence is death, he will be sentenced to
              death. If your verdict is that the defendant
              should be sentenced to life, he will not be
              sentenced to death, and the Court will sentence
              him to either life without the possibility of release
              until 35 calendar years are served, or natural life,
              which means the defendant would never be
              released from prison.

Later the same day and over the next few days of voir dire, the trial court
continued to instruct each juror panel with the same language from the
overview.

¶164          On November 4, following Riley’s conviction and during a
telephonic status conference before the aggravation phase, the trial court
stated, “[M]y JA [Judicial Assistant] sent out the instructions and she didn’t
hear back from either lawyer as far as the eligibility phase instructions that
she sent out.” In response, both the State and Riley’s counsel stated that
they had received the instructions and had no corrections.

¶165          On November 5, at the start of the aggravation phase, the trial
court informed counsel for both sides that it would begin by reading the
instructions. Both parties acknowledged that they had reviewed the
instructions, and neither party objected to their contents. The approved
instructions the trial court read to the jury expressly stated that Riley could
be sentenced to life imprisonment “with the possibility of release after 25
years.”



                                       54
                              STATE V. RILEY
                             Opinion of the Court

¶166            On November 12, at the end of the penalty phase, the trial
court read and explained the verdict form before releasing the jury to
deliberate. As part of its explanation, the trial court stated that if the jury
found that Riley should be sentenced to life, then Riley could be “sentenced
to life in prison with the possibility of release in 25 years.” Riley’s counsel
reviewed and approved the verdict form.

¶167          Riley argues the trial court violated his right to due process
by failing to provide the jury with a Simmons instruction—one that
informed the jury that Riley was ineligible for parole if given a life sentence.
Riley’s argument, however, is premised on authority that predates our
decision in Bush, which forecloses his claim. See 244 Ariz. at 593 ¶ 74.

¶168          In Bush, we adopted a “narrow interpretation of Simmons,”
reasoning that “the due process right under Simmons merely affords a
parole-ineligible capital defendant the right to ‘rebut the State’s case’ (if
future dangerousness is at issue) by informing the jury that ‘he will never
be released from prison’ if sentenced to life.” 244 Ariz. at 592–93 ¶¶ 73–74
(quoting Simmons, 512 U.S. at 177 (O’Connor, J., concurring in judgment)).
We noted that relief under Simmons “is foreclosed by [the defendant’s]
failure to request a parole ineligibility instruction at trial.” Id. at 593 ¶ 74
(quoting Campbell v. Polk, 447 F.3d 270, 289 (4th Cir. 2006)). Ultimately, we
held that despite the trial court’s repeated instructions to the jury that Bush
would be eligible for parole, and defense counsel’s brief and “vaguely
voiced disagreement before jury selection over whether jurors should ‘be
advised as to the possibility of release,’” no fundamental Simmons error
occurred because Bush failed to show “that he was deprived of the right to
inform the jury of his parole ineligibility.” Id. at 590 ¶ 64, 592 ¶ 70, 593 ¶ 75
(“Unlike in the aforementioned cases [in which courts found reversible
Simmons error], the trial court neither refused to instruct, nor prevented
Bush from informing, the jury regarding his parole ineligibility.”).

¶169           Here, the trial court afforded Riley numerous opportunities
to object to, or modify, the jury questionnaire, the death penalty overview,
the eligibility phase jury instructions, and the verdict form, but Riley and
his counsel declined. More importantly, at no point did Riley or his counsel
offer parole ineligibility instructions orally or in writing. As in Bush, Riley
“has not shown that he was deprived of the right to inform the jury of his
parole ineligibility.” 244 Ariz. at 593 ¶ 75. Despite the trial court’s
numerous references to Riley’s release eligibility, “the trial court neither

                                       55
                             STATE V. RILEY
                            Opinion of the Court

refused to instruct, nor prevented [him] from informing, the jury regarding
his parole ineligibility.” See id. In fact, Riley’s counsel repeatedly informed
the jury that Riley would never be released from prison if given a life
sentence and the prosecutor never disputed the point. Thus, Riley failed to
establish a Simmons error and is not entitled to relief on this issue.

¶170          Consequently, because Riley failed to establish error even if
he would have been entitled to a requested Simmons instruction because
future dangerousness was at issue, we need not address that issue.
Similarly, we need not address whether Riley “carried his burden of
establishing prejudice resulting from any alleged Simmons error.” Id.

       K.     Request to Revisit Decisions Made in Hidalgo

¶171           Riley argues Arizona’s capital punishment scheme is
unconstitutional because it fails to legislatively narrow the class of first
degree murders eligible for the death penalty and the trial court abused its
discretion by refusing to grant an evidentiary hearing on this issue. We
recently rejected substantially similar claims in Hidalgo. 241 Ariz. at 549–52
¶¶ 14–29.

¶172          We review constitutional questions de novo, State v. Smith,
215 Ariz. 221, 228 ¶ 20 (2007), and a trial court’s failure to grant an
evidentiary hearing for an abuse of discretion, State v. Gomez, 231 Ariz. 219,
226 ¶ 29 (2012).

¶173          In Hidalgo, we rejected the argument that Arizona’s death
penalty scheme does not sufficiently narrow the class of defendants eligible
for the death penalty. 241 Ariz. at 549–52 ¶¶ 14–29. That argument was
premised, in part, on the same statistical evidence put forth by Riley. Id. at
551 ¶ 25. We also rejected the argument that the trial court’s refusal to grant
an evidentiary hearing when the previous issue was raised below was an
abuse of discretion. Id. at 548–49 ¶¶ 8–13.

              i.     Constitutionality of Arizona’s Death Penalty Statutes

¶174          We have repeatedly rejected the argument “that our
legislature has not narrowed the class of persons eligible for the death
penalty.” State v. Greenway, 170 Ariz. 155, 164 (1991); see Hidalgo, 241 Ariz.
at 551 ¶ 27. But Riley asks us to reconsider that argument based primarily

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                            Opinion of the Court

on statements by Justice Breyer in the denial for certiorari for Hidalgo.
Hidalgo v. Arizona, 138 S. Ct. 1054, 1057 (2018) (mem.) (Breyer, J., statement).
We are not persuaded.

¶175          “To pass constitutional muster, a capital sentencing scheme
must ‘genuinely narrow the class of persons eligible for the death penalty
and must reasonably justify the imposition of a more severe sentence on the
defendant compared to others found guilty of murder.’” Lowenfield v.
Phelps, 484 U.S. 231, 244 (1988) (quoting Zant v. Stephens, 462 U.S. 862, 877
(1983)). State legislatures can provide this narrowing function by either
narrowly defining capital offenses “so that the jury finding of guilt
responds to this concern,” or by “broadly defin[ing] capital offenses and
provid[ing] for narrowing by jury findings of aggravating circumstances at
the penalty phase.” Id. at 246.

¶176          Riley first asks us to “review the holistic aggravation
scheme.” Although this argument is somewhat unclear, Riley appears to
be urging us to examine the aggravating factors in their entirety—as
opposed to individually—when considering whether the legislature has
sufficiently narrowed the class of persons eligible for the death penalty. If
that is the case, we rejected a similar argument in Hidalgo, noting that
Supreme Court precedents undermine such a position. 241 Ariz. at 550–51
¶¶ 19–20, 26 (“Observing that at least one of several aggravating
circumstances could apply to nearly every murder is not the same as saying
that a particular aggravating circumstance is present in every murder.”).

¶177            Riley next argues that Arizona’s broad definition of first
degree murder does not satisfy the legislative duty to narrow the class of
persons eligible for the death penalty. On this point, Riley is likely correct.
In Hidalgo, we referenced Arizona’s limitation of the death penalty to first
degree murder as one of several factors to support our holding. 241 Ariz.
at 552 ¶ 28 (citing Greenway, 170 Ariz. at 164). But Arizona’s definition of
first degree murder is overly broad, encompassing all intentional,
premeditated murders. See § 13-1105(A); cf. Lowenfield, 424 U.S. at 245
(discussing, with approval, the constitutionality of the death penalty
statutes of Texas and Louisiana which “narrowly defined the categories of
murders for which a death sentence could be imposed”). Nevertheless, we
expressly rejected that argument in Greenway, and the lack of a narrow
definition of first degree murder is not dispositive. See Greenway, 170 Ariz.
at 164; see also Lowenfield, 484 U.S. at 246.

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¶178           Next, relying on the statistical analysis presented to the trial
court, Riley contends those results directly contradict our holding in Hidalgo
that Arizona’s death penalty scheme sufficiently narrows the class of
persons eligible for the death penalty. In addressing this argument in
Hidalgo, we stated:

              The Court has not looked beyond the particular
              case to consider whether, in aggregate, the
              statutory     scheme     limits  death-sentence
              eligibility to a small percentage of first degree
              murders. Even if Hidalgo is right in his factual
              assertion that nearly every charged first degree
              murder could support at least one aggravating
              circumstance, no defendant will be subject to a
              death sentence merely by virtue of being found
              guilty of first degree murder and, as Hidalgo
              acknowledges, death sentences are in fact not
              sought in most first degree murder
              cases. Observing that at least one of several
              aggravating circumstances could apply to
              nearly every murder is not the same as saying
              that a particular aggravating circumstance is
              present in every murder.

241 Ariz. at 551 ¶ 26. Justice Breyer interpreted these statements to mean
we “assum[ed] that the aggravating circumstances fail to materially narrow
the class of death-eligible first-degree murder defendants.” Hidalgo v.
Arizona, 138 S. Ct. at 1056. This suggests that our rejection of the “holistic
view” of aggravating circumstances in favor of the narrowing nature of
individual aggravating circumstances is contrary to at least four of the
Justices’ interpretation of Supreme Court precedent. But because we
decline to overrule our holding in Hidalgo in favor of a minority opinion
from the Supreme Court, this argument carries little weight. See Teague v.
Lane, 489 U.S. 288, 296 (1989) (noting that opinions accompanying certiorari
denials have no precedential value).

¶179            Finally, Riley argues we erroneously relied on jury functions
(i.e., finding the existence of an alleged aggravating circumstance beyond a
reasonable doubt) and individualized sentencing to support our holding in

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                            Opinion of the Court

Hidalgo because the former “do[es] not show the necessary legislative
narrowing that [U.S. Supreme Court] precedents require” and the latter
“concerns an entirely different capital punishment requirement.” Both
arguments are supported by Supreme Court precedents, which require the
legislature to provide the narrowing function within the statutory
definitions of the capital offenses or the aggravating circumstances. See
Tuilaepa, 512 U.S. at 979; Lowenfield, 484 U.S. at 246; Zant, 462 U.S. at 878.
But, as stated previously, we held in Hidalgo that the aggravating
circumstances set forth by the Arizona Legislature provide the
constitutionally required narrowing function, and that holding remains
binding precedent. Thus, the fact that some of the arguments put forth to
support that holding may be contradicted by some Supreme Court
precedents does not invalidate that holding.

¶180          In sum, the arguments and accompanying conclusions of law
enunciated by Justice Breyer and embraced by Riley are not mandated by
any current, binding precedents. Accordingly, because Riley has not
established that Hidalgo’s holding is incorrect, he is not entitled to relief on
this issue.

              ii.    Denial of Evidentiary Hearing

¶181          Riley provides three reasons to support his argument that the
trial court abused its discretion by failing to grant an evidentiary hearing
on the facts supporting his claim that Arizona’s death penalty scheme was
unconstitutional. None of them is persuasive.

¶182          First, Riley argues the trial court’s refusal to conduct an
evidentiary hearing infringed his right to a meaningful appeal because the
lack of a hearing resulted in a record that was insufficiently complete to
allow an adequate appeal of the issue. Riley relies on Justice Breyer’s
statement respecting denial of certiorari in Hidalgo to show the impact the
lack of hearing had on his appeal. See Hidalgo, 138 S. Ct. at 1056 (Breyer, J.,
statement) (noting that the trial court’s refusal to grant a hearing denied the
defendant the opportunity to develop the record). Riley contends that
Justice Breyer’s statement contradicts our conclusion that Hidalgo was
afforded an opportunity to be heard.

¶183         A record that is of “sufficient completeness for adequate
consideration of the errors assigned” is “satisfactory to afford [a] defendant

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                             Opinion of the Court

a meaningful right of appeal.” State v. Schackart, 175 Ariz. 494, 499 (1993)
(quoting in part State v. Moore, 108 Ariz. 532, 534 (1972)). Because the trial
court assumed as true the evidence Riley and the other defendants
presented for the constitutional issue, and we addressed the same issue on
appeal in Hidalgo, there was no error for which the record was lacking.

¶184          Second, Riley argues that the refusal to conduct a hearing
violated his right to due process because the right fundamentally requires
an opportunity to be heard at a meaningful time and in a meaningful
manner. He further contends that capital cases are entitled to a heightened
due process protection because they are unique in their finality. Riley also
cites the Arizona Constitution, stating that article 2, section 24 “provides
broader protections for criminal appeals” than the Federal Constitution,
which therefore “carries with it a greater demand for process.”

¶185          To support this argument, Riley relies on the same cases relied
upon by Hidalgo. In Hidalgo, we agreed that “due process entitles parties
to notice and a meaningful opportunity to be heard” and “capital
defendants are accorded heightened procedural safeguards,” but we found
the cases upon which Hidalgo relied were inapposite. 241 Ariz. at 548 ¶¶ 9–
10. We also “recognized that evidentiary hearings are not required when
courts need not resolve factual disputes to decide constitutional issues.” Id.
at 548 ¶ 8. And we rejected the argument “that a capital defendant is
entitled to an evidentiary hearing on a pretrial motion even if the court’s
ruling does not turn on disputed facts.” Id. ¶ 9. Although Hidalgo may not
have relied on the Arizona Constitution to support his arguments, we
clearly stated that “[p]rocedural due process does not require an
evidentiary hearing on a motion when the legal claims do not turn on
disputed facts.” Id. at 549 ¶ 11. Riley has provided no case law to support
his proposition that the Arizona Constitution would contradict this
holding. Therefore, the trial court’s refusal to conduct an evidentiary
hearing did not violate his right to due process.

¶186           Finally, Riley argues under Strickland v. Washington, 466 U.S.
668 (1984), that the refusal to conduct a hearing violated his right to effective
counsel because it impeded his counsel’s ability “to make independent
decisions about how to conduct the defense.” This argument is likewise
unpersuasive. The examples of government interference with a counsel’s
independent decisions discussed in Strickland reflect a direct interference
with the rights of a defendant. See, e.g., Geders v. United States, 425 U.S. 80,

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                            Opinion of the Court

88–89 (1976) (bar on attorney-client consultation during overnight recess
denied defendant his right to confer with counsel); Herring v. New York, 422
U.S. 853, 864–65 (1975) (bar on summation at bench trial denied defendant
his right to be heard). Here, as discussed previously, Riley did not have a
right to an evidentiary hearing. Therefore, the trial court’s refusal to
conduct one did not violate his right to effective counsel.

¶187           Because the trial court did not abuse its discretion by refusing
to grant an evidentiary hearing on the facts supporting Riley’s claim that
Arizona’s death penalty scheme was unconstitutional, Riley is not entitled
to relief on this issue.

       L.     Constitutionality of A.R.S. § 13-752(G) and Defendant’s
              Right to Waive Presentation of Mitigating Evidence

¶188           Riley argues that A.R.S. § 13-752(G) is unconstitutional
because it fails to provide a process to allow jurors to consider mitigating
evidence when a defendant waives his right to present such evidence. He
also argues that the trial court erred by allowing him to waive his right to
present mitigating evidence during the penalty phase of the trial.

¶189          We “review constitutional issues de novo, and, when
possible, construe statutes to uphold their constitutionality.” Hausner, 230
Ariz. at 82 ¶ 99. Because Riley failed to raise his second claim below, we
review that challenge for fundamental error. Henderson, 210 Ariz. at 567
¶ 19.

¶190          In the aggravation phase, Riley’s counsel told the trial court
that Riley wanted to waive mitigation, against his counsel’s advice. Riley’s
counsel declared that he had intended to call several witnesses to testify
about various mitigating circumstances. The trial court then engaged Riley
in a colloquy, and Riley avowed that he understood his right to present
mitigation, he was aware of the evidence his attorneys intended to present,
he had discussed his waiver with his attorneys, he understood that the State
could still argue for the death penalty even if Riley waived his right to
present mitigating evidence, and he understood that the jurors would still
make the decision on whether death was the appropriate sentence. Riley
confirmed his decision to waive mitigation and avowed he was doing so
voluntarily.


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                           Opinion of the Court

¶191          The trial court found that Riley’s waiver was made
knowingly, intelligently, and voluntarily, but it approved Riley’s counsel’s
motion to have Riley prescreened for competency. After receiving the
results confirming Riley’s competency, the court denied Riley’s counsel’s
request for another competency evaluation, but it reengaged Riley in
another mitigation waiver colloquy, which substantially mirrored its
previous discussion with him. The court again found that Riley waived his
right to present mitigation knowingly, intelligently, and voluntarily.

¶192         During the penalty phase, the court instructed the jury as
follows:

             During this part of the sentencing hearing, the
             defendant and the State may present any
             evidence that is relevant to the determination of
             whether there is mitigation that is sufficiently
             substantial to call for a sentence less than death.
             ...

             Mitigating circumstances may be found from
             any evidence presented during the trial, during
             the first part of the sentencing hearing, or
             during the second part of the sentencing
             hearing.

             You should consider all of the evidence without
             regard to which party presented it. Each party
             is entitled to consideration of the evidence
             whether produced by that party or by another
             party.
             ...

             Mitigating circumstances may be offered by the
             defendant or State or be apparent from the
             evidence presented in any phase of these
             proceedings. You are not required to find that
             there is a connection between a mitigating
             circumstance and the crime committed in order
             to consider the mitigation evidence. Any
             connection or lack of connection may impact the

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                           Opinion of the Court

             quality and strength of the mitigation evidence.
             ...

             The fact that the defendant has been convicted
             of first degree murder is unrelated to the
             existence of mitigating circumstances. You
             must give independent consideration to all of
             the     evidence      concerning      mitigating
             circumstances despite the conviction. You may
             also consider anything related to the
             defendant’s character, propensity, history or
             record, or circumstances of the offense.
             ...

             You are not limited to mitigating circumstances
             offered by the defendant. You must also
             consider any other information that you find is
             relevant in determining whether to impose a life
             sentence, so long as it relates to an aspect of the
             defendant’s        background,           character,
             propensities, record, or circumstances of the
             offense.

¶193          Riley argues that § 13-752(G) is unconstitutional because the
Eighth Amendment requires the sentencer in a capital case to consider all
available mitigating evidence, regardless of the defendant’s desire to have
that information presented, and the statute does not provide a process to
allow jurors to consider mitigating evidence when a defendant waives his
right to present such evidence. He asserts that a jury cannot perform the
requisite individualized determination in a consistent manner if
consideration of mitigating circumstances is subject to “the whim of the
defendant.”

¶194          The cases upon which Riley relies do indeed hold that the
Eighth Amendment requires individualized consideration of mitigating
factors by the sentencer, but none of them suggests that when a defendant
waives his right to present mitigation, the court must provide some other
means by which the sentencer can consider that potentially available but
unoffered mitigating evidence. See Tuilaepa, 512 U.S. at 972–73 (noting the
requirement for individualized consideration is satisfied “when the jury can

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                            Opinion of the Court

consider relevant mitigating evidence” (emphasis added)); Lockett v. Ohio,
438 U.S. 586, 608 (1978) (holding unconstitutional a statute that limited the
“range of mitigating circumstances which may be considered by the
sentencer” (emphasis added)).

¶195           In fact, the Supreme Court expressly rejected the argument
that a jury’s failure to consider mitigating circumstances due to the
defendant’s waiver of his right to present evidence of those circumstances
violates the Eighth Amendment. See Blystone v. Pennsylvania, 494 U.S. 299,
306–08, 206 n.4 (1990). The Eighth Amendment requires only that juries in
capital cases be allowed to consider all relevant mitigating evidence, and that
requirement is satisfied when the jury “[is] specifically instructed to
consider, as mitigating evidence, any matter concerning the character or
record of the defendant, or the circumstances of his offense.” Id. at 307–08
(internal quotations marks omitted). Similarly, relying on Blystone, we have
repeatedly held that a defendant’s knowing, intelligent, and voluntary
waiver of his right to present mitigation does not violate the Eighth
Amendment even when it precludes a jury from considering all relevant
mitigation in determining whether to impose the death penalty. See
Gunches, 240 Ariz. at 203–04 ¶¶ 15–20; Goudeau, 239 Ariz. at 473–74 ¶¶ 244–
45; Hausner, 230 Ariz. at 85 ¶ 118; State v. Murdaugh, 209 Ariz. 19, 33–34
¶¶ 70–71 (2004).

¶196            Riley attempts to incorporate our analysis in State v. Prince,
226 Ariz. 516 (2011), to support his arguments, asserting that juries have a
duty to consider, and therefore must consider, all mitigating evidence. But
that case is inapposite. Although we did discuss the jury’s “duty” to
consider mitigating evidence, it did not suggest in any way that a
defendant’s waiver of his right to present mitigating evidence impedes that
duty. See id. at 526–27 ¶¶ 15–20. In discussing the jury’s duty, we cited to
State ex rel. Thomas v. Granville. Id. ¶ 16. Granville emphasized that any
mitigating circumstances to be considered by the jury must be “proved by
the defendant or present in the record.” 211 Ariz. 468, 472–73 ¶¶ 17–18
(2005); see also State v. Roscoe, 184 Ariz. 484, 499 (1996) (“That the burden is
on the defendant reinforces the conclusion that his personal decision not to
present certain mitigating evidence is within his discretion.”). Indeed, this
Court impliedly held § 13-752(G) to be constitutionally sound when we
ultimately concluded that the “liberal admission of . . . evidence” under
§ 13-752(G) “preserves the entire statutory scheme’s constitutionality.”
Prince, 226 Ariz. at 526 ¶ 16, 527 ¶ 20.

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                            Opinion of the Court


¶197          Riley argues that we should reconsider our numerous
holdings on this issue and adopt a procedure from Florida that requires
prosecutors to compile comprehensive reports of potentially mitigating
evidence when a defendant refuses to present his own mitigation. See
Marquardt v. State, 156 So. 3d 464, 491 (Fla. 2015). But we rejected a similar
argument in Hausner, refusing to follow the decisions of a minority of courts
that held that mitigation must be presented even over a defendant’s
objection to satisfy the state’s interest in a fair and reliable sentencing
determination. 230 Ariz. at 85 ¶ 120 (citing State v. Koedatich, 548 A.2d 939,
992–97 (N.J. 1988), which Florida courts relied on to adopt their mitigation
procedures).

¶198         In sum, both the Supreme Court and this Court have
repeatedly held that the Eighth Amendment requires only that a jury be
allowed to consider mitigating evidence; it does not require a jury to be
presented with that evidence over a defendant’s objections. More
importantly, we have already implicitly found § 13-752(G) constitutional.
Accordingly, the failure of the statute to provide a process for presenting
mitigating evidence over a defendant’s objections does not render that
statute unconstitutional, and Riley is not entitled to relief on this issue.

¶199          Riley’s argument that the trial court erred by allowing him to
preclude the presentation of mitigating evidence relies on his proposed
solution to resolving the potential conflict between a defendant’s right to
self-representation under the Sixth Amendment and a trial court’s authority
to “requir[e] the defense to present mitigating evidence over the
defendant’s opposition.” See Hausner, 230 Ariz. at 85 ¶ 119. Riley argues
that Sixth Amendment rights are not absolute and must give way to the
Eighth Amendment requirement for individualized consideration. In the
alternative, Riley argues that the trial court should have denied Riley’s
request to preclude mitigating evidence because he effectively revoked his
waiver of self-representation.

¶200          But even accepting Riley’s arguments as true, thereby
resolving the Sixth Amendment conflict identified in Hausner, Riley has
failed to provide any persuasive arguments that support his underlying
premise—that juries are constitutionally required to consider all mitigating
evidence, even if that means presenting such evidence over the defendant’s
objections. No such constitutional requirement exists, and we expressly

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                            Opinion of the Court

rejected adopting any procedure that would impose such a requirement.
See id. ¶ 120. In sum, we have repeatedly held that a competent defendant
may knowingly, intelligently, and voluntarily waive mitigation. See, e.g.,
Gunches, 240 Ariz. at 203 ¶ 17; Goudeau, 239 Ariz. at 473 ¶ 240; Hausner, 230
Ariz. at 84 ¶ 116. Absent any constitutional prohibition on defendants
waiving their right to present mitigation, Riley is entitled to relief on this
issue only if he did not knowingly, intelligently, and voluntarily waive
mitigation.

¶201         Here, Riley unquestionably waived his right to present
mitigation. After multiple colloquies with Riley, the trial court determined
he waived his right knowingly, intelligently, and voluntarily. The court’s
determination was further supported by the results of a competency
evaluation requested by Riley’s counsel. Before the jury’s deliberations in
the penalty phase, the trial court also properly instructed the jury, at length
and in various ways, to consider all mitigating evidence from the parties
and from the record, regardless of the source.

¶202          The trial court did not err by finding that Riley waived his
right to present mitigating evidence, and Riley has not persuaded us to
reconsider our numerous precedents supporting a competent defendant’s
choice to waive mitigation. Accordingly, Riley is not entitled to relief on
this issue.

       M.     Abuse of Discretion in Jury’s Imposition of Death Penalty

¶203          Riley argues that the jury abused its discretion in finding he
should be sentenced to death because there was no reasonable evidence in
the record to sustain that decision. Because Riley committed the murder
after August 1, 2002, we must review the jury’s findings of aggravating
circumstances and the imposition of death sentences for abuse of discretion,
A.R.S. § 13-756(A), viewing the facts in the light most favorable to
sustaining the verdicts. State v. Naranjo, 234 Ariz. 233, 249 ¶ 81 (2014). “A
finding of aggravating circumstances or the imposition of a death sentence
is not an abuse of discretion if ‘there is any reasonable evidence in the
record to sustain it.’” State v. Delahanty, 226 Ariz. 502, 508 ¶ 36 (2011)
(quoting State v. Morris, 215 Ariz. 324, 341 ¶ 77 (2007)).




                                      66
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                            Opinion of the Court

              i.      Aggravating Circumstances

¶204          As to Kelly’s murder, the prosecution alleged, and the jury
found beyond a reasonable doubt, five aggravating circumstances: (1) Riley
was previously convicted of a serious offense, § 13-751(F)(2); (2) Riley
committed the murder in an especially heinous, cruel, or depraved manner,
§ 13-751(F)(6); (3) Riley committed the murder while in the custody of the
ADOC, § 13-751(F)(7)(a); (4) Riley committed the murder to promote,
further or assist a criminal street gang, § 13-751(F)(11); and (5) Riley
committed the murder in a cold and calculated manner without pretense of
moral or legal justification, § 13-751(F)(13).

¶205           For the (F)(2) aggravator, the prosecution provided
undisputed evidence that Riley was previously convicted of multiple
counts of aggravated assault, kidnapping, and armed robbery. For the
(F)(6) aggravator, the prosecution provided sufficient evidence for the jury
to determine that Riley murdered Kelly in an especially cruel manner. On
the cruelty prong, the prosecution provided evidence of Kelly’s defensive
wounds and his attempt to flee his attackers by wedging himself under the
toilet in his cell. The prosecution also produced evidence of Riley’s own
written account of the murder, in which he recounted Kelly’s final words
as he died. On the heinous or depraved prong, the prosecution provided
evidence that Riley relished the attack immediately afterwards and
engaged in gratuitous violence. The prosecution also relied again on Riley’s
letter, focusing on Riley’s graphic and celebratory account of the murder.

¶206          For the (F)(7)(a) aggravator, the prosecution provided
undisputed evidence that Riley was in the custody of the ADOC when he
committed the murder. For the (F)(11) aggravator, the prosecution
provided evidence of Riley’s affiliation with the AB with pictures of his
gang tattoos, his own written account of why he committed the murder,
and testimony from Boggs—the special investigator—who identified the
AB as a criminal street gang and testified that Riley met certain criteria as a
member. Finally, for the (F)(13) aggravator, the prosecution relied once
more on Riley’s written account of the murder, focusing on Riley’s lengthy
planning and “hunting” for a target.

¶207           In sum, because the record provides substantial, reasonable
evidence to support these uncontested findings, the jury did not abuse its
discretion in finding the five aggravating circumstances.

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                            Opinion of the Court


              ii.    Imposition of Death Sentence

¶208           Based on the record, the jury did not abuse its discretion when
it sentenced Riley to death for murdering Kelly. Because each juror makes
an individual finding of whether any mitigating circumstances were
sufficient to warrant leniency, we must uphold a death sentence “if any
reasonable juror could conclude that the mitigation presented was not
sufficiently substantial to call for leniency.” Naranjo, 234 Ariz. at 250 ¶ 89
(citation omitted) (internal quotation marks omitted); see also Morris, 215
Ariz. at 341 ¶ 81. Riley waived his right to present mitigation during the
penalty phase, but “evidence admitted at the guilt phase is admitted for
purposes of the sentencing phase, A.R.S. § 13–752(I), and the jury must
‘consider the mitigating circumstances, whether proved by the defendant
or present in the record, in determining whether death is the appropriate
sentence.’” Hausner, 230 Ariz. at 87 ¶ 129 (quoting Granville, 211 Ariz. at
473 ¶ 18).

¶209           Most of the mitigating evidence upon which Riley relies from
the guilt phase of the trial is actually a lack of evidence. Riley contends that
the lack of evidence of his direct participation in Kelly’s murder and general
prison gang activity “reduced his moral culpability in the offense”
sufficient to constitute an abuse of discretion on the jury’s imposition of a
death sentence. The core of Riley’s argument appears to suggest there may
have been residual doubt about his participation in Kelly’s murder. But
any such “claim[] of . . . residual doubt do[es] not constitute mitigation for
sentencing purposes.” State v. Moore, 222 Ariz. 1, 22 ¶ 133 (2009).

¶210          Riley also argues that the evidence that prison gangs could
intimidate other prisoners into committing violent crimes on their behalf
“did not support a conclusion that [he] had a ‘choice’ to refrain from
participating in gang activity.” But Riley’s own written account of the
murder conclusively counters this argument. In his letter, Riley explained
in detail how he sought to identify and obtain approval to kill a victim to
earn full membership with the AB.

¶211           Most importantly, Riley does not challenge the sufficiency of
the evidence supporting the jury’s finding of any aggravating
circumstances, except for a vague reference to the accomplice liability issue.
See State v. Cruz, 218 Ariz. 149, 170 ¶ 136 (2008) (holding that a jury did not

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                            Opinion of the Court

abuse its discretion by finding a particular aggravator because the
defendant did not contest the evidence supporting the existence of that
aggravator). Accordingly, because we conclude that a reasonable juror
could find that Riley failed to establish sufficient and credible mitigation
evidence, the jury did not abuse its discretion in returning a death sentence.

       N.     Issues Raised to Avoid Preclusion

¶212         Riley identifies thirty-four issues he seeks to preserve for
federal review. As he concedes, we have previously rejected each of his
claims. We decline to revisit them.

                              CONCLUSION

¶213          We affirm Riley’s convictions and sentences.




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